Petition for Writ of Certiorari — Hall v. Clinton

Supreme Court, U.S.

FILEO

a

001477 MAR 19 2001

No. an

SSS een iets Lin

In The

Supreme Court of the United States

October 2000 Term

SHERYL L. HALL,

Petitioner,

v.

HILLARY RODHAM CLINTON, MARK LINDSAY,

MARSHA SCOTT, LAURA TAYMAN,

JOHN DOE, JANE DOE,

Respondents.

On Petition for a Wnit of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Larry Klayman*

Paul J. Orfanedes

JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 725

Washington, DC 20024

(202) 646-5172

Counsel for Petitioner

* Denotes Counsel of Record

i

QUESTIONS PRESENTED

|. Whether a writ of certiorari should issue to resolve an

important question of federal law that has not been, but

should be, settled by this Court regarding the legal status and

lawful authority of the First Lady of the United States?

2. Whether a writ of certiorari should issue to resolve an

important question of federal law that has not been, but

should be, settled by this Court regarding whether the Civil

Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.

1111 (codified as amended in scattered sections of 5 U.S.C.)

(hereinafter “CSRA”) precludes civil rights claims brought by

federal officers under 42 U.S.C. § 1985(1)?

3. Whether a writ of certiorari should issue to resolve an

important question of federal law that has not been, but

should be, settled by this Court regarding whether the CSRA

precludes civil rights claims brought by federal officers under

Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971) against persons who are not

their supervisors and have no other lawful authority over

them, but nonetheless violate their constitutional rights while

acting under color of federal law?

The following is a list of parties and each corporate

party’s respective parent corporation and subsidiaries, if any

HT

LIST OF PARTIES

Petitioner:

1. Sheryl L. Hall

Respondents:

1. Hillary Rodham Clinton

2. Mark Lindsay

3. Marsha Scott

4. Laura Tayman

5. John Doe

6. Jane Doe

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ; |

LIST OF PARTIES 1

TABLE OF CONTENTS........... ete

TABLE OF CITATIONS ... Ore ee wets oe

OPINIONS BELOW ...............

STATEMENT OF JURISDICTION : 2

STATUTE AND CONSTITUTIONAL

PROVISION INVOLVED .......... 3

STATEMENT OF THECASE ................... 4

A. Procedural History ....................... +

B. Statement of Facts ..... Pua eke es Lchens oa

II.

I.

Vv

Page

THIS MATTER PRESENTS AN IMPORTANT

ISSUE OF FEDERAL LAW THAT HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT REGARDING THE LEGAL STATUS AND

LAWFUL AUTHORITY OF THE FIRST LADY OF

Tees WOR RPE hina CS a hwee enka een eee

THIS MATTER PRESENTS AN IMPORTANT

ISSUE OF FEDERAL LAW THAT HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT REGARDING WHETHER THE CSRA

PRECLUDES CIVIL RIGHTS CLAIMS BROUGHT

BY FEDERAL OFFICERS UNDER 42 U.S.C. §

i) PETE PREP ETERS TET ee EE ETRE TERETE

THIS MATTER PRESENTS AN IMPORTANT

ISSUE OF FEDERAL LAW THAT HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT REGARDING WHETHER THE CSRA

PRECLUDES CIVIL RIGHTS CLAIMS BROUGHT

BY FEDERAL OFFICERS UNDER B/VENS

AGAINST PERSONS WHO ARE NOT THEIR

SUPERVISORS AND HAVE NO OTHER LAWFUL

AUTHORITY OVER THEM, BUT NONETHELESS

VIOLATE THEIR CONSTITUTIONAL RIGHTS

WHILE ACTING UNDER COLOR OF FEDERAL

LAW

Vv

TABLE OF CITATIONS

CASES Page

Association of American Physicians and Surgeons,

Inc. v. Clinton, 997 F.2d 898 Sak Ge Ree cs 8

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 | EA Oa eas 1

Board of Regents v. Roth, 408 U.S. 564 ioe; rs 14

Bush v. Lucas, 462 U.S. 367 GEE so se aces cee 13

Griffin v. Breckenridge, 403 U.S. 88 23) Serene 12

Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir. 1986) ..11, 12

United States v. Fausto, 484 U.S. 439 DEE ba oes cen 14

Windsor v. The T. ennessean, 719 F.2d 155

Ge FIND oii so nl ie hele 12

Wisconsin v. Constantineau, 400 U.S. 433 2d) ee 14

STATUES, RULES AND REGULATIONS

V Amendment, U.S. Constitution ................... 3

PRR IIS i ss 05 gd weds eke 8

vi

§U.S.C. § 2104 .

§ U.S.C. § 2105

§ U.S.C, § 2302

S§US.C. § 2402(aK2 MAM) © OD)

SUS.C. § 2302(b)

28 U.S.C. § 1254(1) ee Tete

OO UGC. © ISDE o.ccevecccccvdadeceieenecaneeen 4

ADUS.C. § 1988 ccc ccc ccc cane ccauccuuces 3,12

42 U.S.C. § I9BS(D) occ cece eens passim

42 U.S.C. § 2000€-3 2c c ccc ccn ecu cueeees 4

SECONDARY AUTHORITIES

“Chef-Gate,” The Wall Street Journal, March 12, 2001 ..9

House Comm. on Government Reform and Oversight,

Investigation of the Conversion of the $1.7 Million

Centralized White House Computer System, Known

as the White House Office Database, and Related

Matters, H.R. Rep. No. 105-828, 105th Cong.,

ee , CRI 6 0 on6-0000 00 e5 bined sebdetawewsucbex 6

OPINIONS BELOW

The decision of the U.S. District Court for the Eastern

District of Virginia, Alexandria Division. (heremafter

“District Court”) is unreported. See Appendix B ut App. 12

18. The decision of the U.S. Court of Appeals for the Fourth

\ ircuit (hereinafter “Appellate Court") is r ported ai 2ASh Ad

U2. See Appendix A at App. | « 1]

2

STATEMENT OF JURISDICTION

The District Court entered a final judgment against

Petitioner Shery! L. Hall (hereinafter “Hall”) on December 3,

1999. Hall appealed to the Appellate Court, which affirmed

the District Court's final judgment on December 19, 2000

lhis petition for wrt of certiorari is timely, as it is being

filed within ninety (90) days of December 19, 2000, or by

March 19, 200]

SS A lS i Sil titaeas: a wa i i

If this petition for wrt of cervioran is granted, the U.S

Supreme Court will have jurisdiction over this matter

pursuant to 28 U.S.C. § 1254(1)

a aw.

STATUTE AND CONSTITUTIONAL

PROVISION INVOLVED

42 U.S.C, § 1985

(1) Preventing officer from performing duties

If two or more persons in any State or Territory

conspire to prevent, by intimidation, or threat, any

person from accepting or holding any office, trust, or

place of confidence under the United States, or from

discharging any duties thereof or to injure him in

his person or property on account of his lawful

discharge of the duties of his office, or while engaged

in the lawful discharge thereof, or to injure his

property so as to molest, interrupt, or impede him in

the discharge of his official duties:

In any case of conspiracy set forth in this section. if

one or more persons engaged therein do, or cause to

be done, any act in furtherance of the object of such

conspiracy, whereby another is injured in his or her

person or property, or deprived . . . the party so

injured or deprived may have an action for the

recovery of damages occasioned by such injury or

deprivation, against any one or more of the

conspirators.

United States Constitution, Amendment V:

No person shall be . . . deprived of life, liberty, or

property, without due process of law .. ..

4

STATEMENT OF THE CASE

A. Procedural History

Hall, a White House whistleblower, initiated this action,

pro se, on May 17, 1999. In so doing, Hall invoked the

District Court's “federal question” jurisdiction pursuant to 28

U.S.C. § 1331, among other relevant statutory provisions.

Hall’s pro se complaint attempted to state a variety of federal

claims against numerous defendants, including First Lady

Hillary Rodham Clinton.

On August 8, 1999, Hall, with the assistance of counsel,

filed an amended complaint. Hall’s amended complaint

narrowed her claims to include only three counts. Count I

asserted a claim against Mrs. Clinton, Marsha Scott, the

former head of the White House Correspondence Office, and

John and Jane Does Nos. 1-5 arising under 42 U.S.C. §

1985(1). Count II “sserted a claim against Mark Lindsay, in

his official capacity as Director of the Office of

Administration of the Executive Office of the President,

arising under 42 U.S.C. § 2000e-3. Count III asserted a claim

against Scott and two (2) former employees of the White

House Correspondence Office, Laura Tayman and Enc

Vaden, ansing under the Fifth Amendment to the U.S.

Constitution.

On December 3, 1999, the District Court dismissed all of

Hall’s claims. With respect to Hall’s claims arising under 42

U.S.C. § 1985(1) and the Fifth Amendment, the District Court

found that these claims were preempted by CSRA, even

though the defendants named in those claims had no

supervisory or other lawful authority over her and even

though Defendant Clinton was not even a federal employee.

5

The District Court also dismissed Hall’s federal employment

discrimination claim for failure to state a claim.

_ On December 19, 2000, the Appellate Court affirmed.

B. Statement of Facts

In October of 1992, Hall began working at The White

House as Manager of the Customer Support Branch of the

Information Systems and Technology Division of the Office

of Administration in the Executive Office of the President.

As such, Hall had substantial duties and responsibilities

relating to The White House’s computer systems, resource

management and budget. At times, Hall was responsible for

supervising as many as thirty-eight (38) persons.

In January of 1993, the President and Mrs. Clinton arrived

at The White House. Upon her arrival, Mrs. Clinton directed

that a new $1.7 million master database, known as the White

House Office Database or “WhoDB,” be developed to assist

in a variety of functions, including campaign fundraising:

[WhoDB] was not used for just official purposes;

senior White House staff planned, and, in fact, used it

to advance the campaign fundraising objectives of the

Democratic National Committee [DNC]. This

conversion of government property to the use of the

DNC constitutes theft of government property under

18 U.S.C. § 641.

* * *

[P]Jersons at the highest levels of the White House,

including the First Lady, knew of. and approved the

6

use of the White House Database for partisan political

purposes, or the use of government personnel and

resources to work on outside partisan political

databases. Either scenario is simply unlawful, and

represents a planned theft of government property for

partisan political purposes.

* * *

{T]he Database was more than just a White House

management tool — it required political loyalty and

secrecy.

House Comm. on Government Reform and Oversight,

Investigation of the Conversion of the $1.7 Million

Centralized White House Computer System, Known as the

White House Office Database, and Related Matters, H.R.

. Rep. No. 105-828, 105th Cong., 2d Sess. 1, 47, 55 (1998).

At the direction of Mrs. Clinton, development of WhoDB

was overseen by Scott, who at the time was head of the White

House Correspondence Office and thus had no supervisory or

other lawful authority over Hall. /d. at 49. Scott was assisted

in the development of WhoDB by Vaden and Tayman, who

also worked in the White House Correspondence Office and

likewise had no supervisory or other lawful authority over

Hall.

In November of 1993, Hall was assigned responsibility

for developing software for WhoDB. During a meeting in

November of 1993 concerning the development of WhoDB,

Scott described to Hall the political nature of some of the

information that Mrs. Clinton directed the new database to

contain and the political functions that Mrs. Clinton directed

aii apace

7

the new database to perform. When Hall expressed

reservations about the legality of using U.S. government

resources and personnel for such political activity, Scott

instructed Hail to “use her imagination” to circumvent the

law.

During a subsequent meeting in Scott’s White House

office, also in November of 1993, Hall told Scott directly that,

due to its political nature, U.S. government resources and

personnel could not lawfully be used to develop a database

containing the information and performing the functions

directed by Mrs. Clinton. Scott reacted angrily and ousted

Hall from her office.

In the following months, Scott expressed “grave” concern

about Hall to Mrs. Clinton’s Chief of Staff Maggie Williams

and Counsel to the President Bruce Lindsey. In a

memorandum to Mrs. Clinton and Lindsey, Scott falsely

characterized Hall as “old, less informed, unenthusiastic,

disloyal to the President’s Administration and an obstacle to

the development of WhoDB.” Tayman and Vaden also wrote

a memorandum circulated by Scott to White House Deputy

Chief of Staff Phil Lader that falsely characterized Hall as

disloyal, incompetent and lacking in managerial skills. Hall’s

duties, responsibilities and staff were taken away from her,

clearly as a result of objecting to the obviously illegality of

WhoDB and clearly at the direction of Mrs. Clinton. Hall

was given little or no work to perform, and her professional

reputation was severally damaged. She also suffered

substantial emotional distress, among other damages. She

thus initiated this action against Mrs. Clinton, Scott, Tayman

and Vaden, among others, to hold them accountable for the

substantial injuries they had caused her and to obtain

compensation for her damages.

8

REASONS FOR GRANTING THE WRIT

I. THIS MATTER PRESENTS AN IMPORTANT

ISSUE OF FEDERAL LAW THAT HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT REGARDING THE LEGAL STATUS

AND LAWFUL AUTHORITY OF THE FIRST

LADY OF THE UNITED STATES

Without question, when she became First Lady, Mrs.

Clinton usurped far-reaching powers never previously

associated with that position. These powers extended not

only to her role as the head of the President’s Task Force on

National Health Care Reform, to which she was formally

appointed by executive order,’ but also to a wide variety of

To Respondent’s knowledge, the only judicial decisions

addressing the legal status of the First Lady arose in the

context of the President’s health care task force. In

Association of American Physicians and Surgeons, Inc. v.

Clinton, 997 F.2d 898 (D.C. Cir. 1993), the U.S. Court of

Appeals for the District of Columbia Circuit (hereinafter

“D.C. Circuit”) ruled that Mrs. Clinton was a de facto officer

or employee of the United States for purposes of the Federal

Advisory Committee Act, 5 U.S.C. App. 2, after being

appointed being appointed by executive order to lead the task

force. Jd. at 911. Clearly, the unique circumstances

presented by the President’s executive order appointing his

wife to lead the health care task force has no bearing on the

legal status of the position of First Lady of the United States

in this instance. In fact, in reaching its decision, the D.C.

Circuit specifically “express[ed] no view as to [the First

Lady’s] status under any other statute. /d.

|

eee

9

other matters, including personnel and policy matters.

Among these are included, most famously, the White House

Travel Office firings, WhoDB, the hiring of David Craig

Livingstone, who unlawfully obtained and maintained

hundreds of FBI background investigation files on former

Reagan and Bush Administration appointees, employees and

staffers, and even the firing of the White House kitchen staff.

See, e.g., “Chef-Gate,” The Wall Street Journal, March 12,

2001 at 22A. As another White House whistleblower, Ms.

Linda Tripp, testified, Mrs. Clinton “ruled the school.”

Deposition of Linda R. Tripp in Alexander v. FBI, 1:96-cv-

2123/97-1288 (RCL) (D. District of Columbia Jan. 5, 1999)

at 359. The White House staff regarded Mrs. Clinton and a

her husband as “co-presidents” with equal authority. Jd. (“she

was every bit as presidential as he was, and we treated her

that way”); see also id. at 872 (“she could effectively order

things to happen without his permission’’).

In the instant case, Mrs. Clinton conspired with Scott and

other, currently unknown persons to misuse U.S. government

resources and personnel to further partisan political goals,

then to retaliate against Hall for objecting to Mrs. Clinton’s

illegal scheme. This retaliation — which included the

elimination of Hall’s duties, responsibilities and staff —

obviously injured Hall in her person and property on account

of Hall’s having lawfully discharged the duties of her office.

It also was intended to hinder and impede Hall in the

discharge of those duties, which included resource

management and budgeting. Hall’s Amended Complaint thus

stated a clear and obvious claim for a violation of 42 U.S.C.

§ 1985(1).

However, the rulings of the District Court and the

Appellant Court effectively put the First Lady beyond the

10

law. Both courts refused to hold Mrs. Clinton accountable

under 42 U.S.C. § 1985(1), yet the remedy they declared

supplants § 1985(1) — the CSRA - lets Mrs. Clinton

completely off the hook because she is not an “employee” of

the federal government or a supervisor as set forth in that

statute. See 5 U.S.C. §§ 2104, 2105, 2302. Mrs. Clinton’s

legal status with respect to Hall’s employment relationship

with the U.S. government was no different from that of any

other “ordinary” private citizen.

The raw power usurped by an ambitious First Lady such

as Mrs. Clinton cannot remained unchecked. Checks,

balances, and legal accountability provide the very foundation

of our system of government. While Mrs. Clinton is no

longer the First Lady of the United States, other highly

ambitious and politically motivated persons will undoubtedly

occupy this unique position. A petition for wnt of certiorari

must, respectfully, issue to address the legal status and lawful

authonty of the First Lady of the United States.

Il. THIS MATTER PRESENTS AN IMPORTANT

ISSUE OF FEDERAL LAW THAT HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT REGARDING WHETHER THE CSRA

PRECLUDES CIVIL RIGHTS CLAIMS

BROUGHT BY FEDERAL OFFICERS UNDER

42 U.S.C. § 1985(1)

In its ruling, the Appellate Court made the extraordinary

finding that the CSRA “implicitly repealed all other then-

existing statutory nghts of federal employees regarding

personnel decisions” including 42 U.S.C. § 1985(1). App. 9.

1]

The effect of the Appellate Court’s ruling is that third

parties and other persons external to the relationship between

a federal employee and the federal government — such as Mrs.

Clinton — can intimidate, pressure, and even threaten an

employee’s supervisor into taking adverse personnel actions

~ such as removing the employee’s duties, responsibilities,

and staff — without fear of legal recourse. This is precisely

what occurred in this instance, and this is precisely the result

of the Appellate Court’s ruling.’ Mrs. Clinton, who is not a

? In Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir. 1987), the

D.C. Circuit declared that it was precisely this type of

external threat to federal authority and federal institutions that

Reconstruction Era statutes such as 42 U.S.C. § 1985(1) were

enacted to address:

The nature of these provisions reveals an overarching

congressional concern to protect the authority,

institutions and processes of the Federal Government

from external, usually coercive, disruption . . . The

structure and origin of section 1985(1) reveal a grave

congressional concern to protect the authority and

institutions of the Federal Government from outside

interference.

809 F.2d at 34 (Silberman, J., concurring) (italics original).

Legally, and logically, it makes no difference whether

these external threats originate from Klan members

committing acts of violence against federal officials in the

Reconstruction Era South or an overly ambitious, present day

First Lady — who has no formal legal status or lawful

authority in the federal government — putting her political

12

federal employee and certainly had no lawful supervisory

authority over Hall — she is the legal equivalent of a complete

stranger to Hall — conspired with Scott to remove Hall’s

duties, responsibilities and staff after Hall, in the course of

carrying out her official duties, objected to the illegality of

WhoDB. Yet, under the Appellate Court’s ruling, Hall would

have no legal recourse against Mrs. Clinton under 42 U.S.C.

§ 1985(1).°

This cannot and must not be the law. Other appellate

courts addressing the impact of the CSRA on 42 U.S.C. §

1985(1) have not gone nearly as far. In Spagnola, for

example, the D.C. Circuit held only that the CSRA precludes

federal employees from bringing § 1985(1) claims against

their employers, which Mrs. Clinton clearly is not. Spagnola,

809 F.2d at 30. In Windsor v. The Tennessean, 719 F.2d 155

(6th Cir. 1983), by contrast, the U.S. Court of Appeals for the

Sixth Circuit held that a federal employee stated a cause of

action under §1985(1) against a group of defendants, one of

whom was his supervisor in the federal government. In fact,

this Court has urged lower courts to give the Reconstruction

Era Civil Rights Acts, which includes 42 U.S.C. § 1985(1),

“a sweep as broad as [their] language,” Griffin v.

Breckenridge, 403 U.S. 88, 97 (1971), and has even described

the sweep of § 1985 as “enormous.” /d. at 99-100. Not only

must a writ of certiorari issue to resolve this important

question of federal law, but the Appellate Court’s ruling is

interests ahead of the law and retaliating against

whistleblowers who stand in the way.

* The statute provides that a claim may be asserted against

“any one or more of the co-conspirators.” 42 U.S.C. § 1985.

13

thus in conflict with the rulings of other appellate courts as

well as with this Court’s ruling in Griffin.

lil, THIS MATTER PRESENTS’ AN

IMPORTANT ISSUE OF FEDERAL LAW

THAT HAS NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT REGARDING

WHETHER THE CSRA PRECLUDES CIVIL

RIGHTS CLAIMS BROUGHT BY FEDERAL

OFFICERS UNDER BIVENS AGAINST

PERSONS WHO ARE NOT THEIR

SUPERVISORS AND HAVE NO OTHER

LAWFUL AUTHORITY OVER THEM, BUT

NONETHELESS VIOLATE THEIR

CONSTITUTIONAL RIGHTS WHILE

ACTING UNDER COLOR OF FEDERAL

LAW

In Bush v. Lucas, 462 U.S. 367 (1983), this Court held

that the CSRA precluded federal employees from bringing

Bivens actions against supervisors who violate their

constitutional rights. However, the Court did nor decide the

issue of whether the CSRA precluded federal employees from

bringing Bivens actions against other, non-supervisory

employees who violate their constitutional rights.

In this particular instance, Hall was disparaged by Scott,

Tayman, and Vaden, none of whom had any supervisory or

other lawful authority over Hall. In fact, Scott, Tayman and

Vaden all worked in the White House Correspondence Office,

a separate and distinct office within The White House far

removed, both physically and organizationally, from the

office in which Hall worked.

14

Nonetheless, Scott prepared and circulated a

memorandum to Mrs. Clinton and presidential aide Bruce

Lindsey falsely characterizing Hall as “old, less informed,

unenthusiastic, disloyal to the President’s Administration and

an obstacle to the development of WhoDB.” Tayman and

Vaden also wrote a memorandum circulated by Scott to White

House Deputy Chief of Staff Phil Lader falsely characterizing

Hall as disloyal, incompetent and lacking in managerial skills.

Both memorandum disparaged Hall's good name,

professional reputation, honor and integnty, and deprived

Hall of her liberty interests therein. See Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971); see also Board of

Regents v. Roth, 408 U.S. 564, 573 (1972). However, in

neither instance was Hall afforded minimal due process

protections afforded by the Fifth Amendment.

The circulation of these false and disparaging memoranda

do not constitute a “personnel action” as that term is defined

by the CSRA. 5 U.S.C. § 2302(a)(2A)(i) - (xi). Neither

Scott, Tayman, nor Vaden even had authority to take, direct

others to take, recommend, or approve any “personnel action”

with respect to Hall. 5 U.S.C. § 2302(b). The CSRA simply

does not address instances such as this where one federal

employee's constitutional rights are violated by another in the

manner that Scott, Tayman and Vaden violated Hall’s Fifth

Amendment nghts.

The legal nghts of federal employees obviously raise

important issues of federal law, as this Court recognized when

it granted certiorarn in other cases involving the legal

relationship between federal employees and the federal

government. See, e.g., Bush, supra; United States v. Fausto,

484 U.S. 439 (1988). The legal relationships governing the

interaction among federa) employees are no less important

Ww

than the legal relationships governing federal employees, their

supervisors and personnel actions. A petition for writ of

certiorari should issue to address this obviously important

issue

CONCLUSION

For the foregoing reasons, Hall respectfully requests that

this petition for wnt of certiorari be granted.

Respectfully submitted,

Larry Klayman*

Paul J. Orfanedes

JUDICIAL WATCH, INC

501 School Street, S.W.

Suite 725

Washington, DC 20024

(202) 646-5172

Counsel for Petitioner

* Denotes Counsel of Record

App. |

APPENDIX A - DECEMBER 19, 2000

APPELLATE COURT OPINION

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHERYL L. HALL, )

)

Plaintiff-Appellant, )

)

and )

)

Donald R. Hall, )

)

Plaintiff, )

)

V. ) No. 99-2665

)

HILLARY RODHAM }

CLINTON; MARK )

LINDSAY; MARSHA )

SCOTT; LAURA )

TAYMAN; JOHN DOE; )

JANE DOE, )

)

)

)

)

)

)

)

)

)

)

Defendants-Appellees,

and

DEMOCRATIC NAT’L

COMMITTEE; OFFICERS,

AGENTS, EMPLOYEES;

FRANKLIN REEDER;

JODIE TORKELSON; ADA

App. 2

POSEY; CHARLES

BENJAMIN; CRAIG

SMITH; ERIC VADEN;

MAGGIE WILLIAMS;

JOSEPH ANDREW,

Defendants.

Nowe eee eee ee”

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-99-694-A)

Argued: November 2, 2000

Decided December 19, 2000

Before: WILKINSON, Chief Judge, and WILKINS

and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Wilkins wrote the

opinion, in which Chief Judge Wilkinson and Judge Motz

joined.

COUNSEL

ARGUED: Paul J. Orfanedes, Klayman & Associates, P.C.,

Washington, D.C., for Appellant, Michael Scott Raab,

Appellant Staff, Civil Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C. for

Appellees. ON BRIEF: Larry Klayman, Klayman &

Associates, P.C., Washington, D.C., for Appellant. David W.

Ogden, Acting Assistant Attorney General, Helen F. Fahey,

OT SS TE SS SSI SO CR ae BIS.

PEE Ee ar a ee Se ne a a

ODED Te

App. 3

United States Attorney, Mark B. Stern, Appellate Staff, Civil

Division, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees.

OPINION

WILKINS, Circuit Judge:

Sheryl L. Hall appeals a district court order dismissing her

claims under Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. §

1985(1) (West 1994), as being precluded by the Civil Service

Reform Act (CSRA) of 1978, Pub. L. No. 95-454, 92 Stat.

1111 (codified as amended in scattered sections of 5

U.S.C.A.). Because the CSRA constitutes the exclusive

remedy for claims arising out of federal employment, we

affirm.

I.

Hall alleged the following facts in her amended

complaint. On October 25, 1992, Hall began employment as

a manager in the Executive Office of the President (“EOP”’).

In the time she worked for the EOP, she received numerous

awards and high performance ratings. In November 1993,

Hall was responsible for developing software for what

became known as the “White House Office Database”

(“WhoDB”). Development of the WhoDB was overseen by

Director of White House Correspondence Marsha Scott and

by First Lady Hillary Rodham Clinton. Scott was assisted by

two employees of the White House Correspondence Office,

Eric Vaden and Laura Tayman. In November 1993, Hall and

Scott met regarding the WhoDB. When Scott described the

political nature of some of the information that Clinton

App. 4

intended to include in the WhoDB, Hall expressed concern

regarding the legality of doing so. In response. Scott

instructed Hall to do her best to circumvent the applicable

legal restrictions. In a subsequent meeting, also in November

1993, Hall informed Scott that she had concluded that using

WhoDB as described by Scott would indeed be illegal. Scott

responded angrily by “oust[ing]” Hall from Scott’s Office.

LP et. .

In January 1994, Scott transmitted a memorandum to

Clinton and Bruce Lindsey, and advisor to the President who

was employed in the White House Counsel’s Office. In the

memo, she stated that Clinton and the President wanted

WhoDB completed, and she falsely characterized Hall as

“old, less informed, unenthusiastic, disloyal to the President’s

administration, and an obstacle to the development of the

WhoDB.” /d. at 27-28 (amended complaint) (internal

quotation marks omitted).

Beginning in January 1994, ten employees were removed

from Hall’s supervision and she was relieved of her

responsibilities concerning WhoDB. Taymen and Vaden

transmitted a memorandum to Scott in March 1994 falsely

characterizing Hall as “disloyal, incompetent, and lacking in

management skills.” Jd. at 28. Hall received no prior

notification regarding this memo and no _ reasonable

opportunity to defend herself against the allegations therein.

Scott, in turn, transmitted the memo to White House Deputy

Chief of Staff Phil Lader and to Clinton. Neither Clinton,

Scott, Taymen, nor Vaden supervised Hall or had any

authority over her. Hall’s responsibilities continued to be

reduced in subsequent months, and in November 1996, her

position was eliminated and her responsibilities were assigned

vw

App. 5

to a less qualified employee for whom she was assigned to

work.

Hall subsequently initiated this suit, alleging two causes

of action that are relevant here: (1) that by transmitting the

false memoranda disparaging her, Scott, Tayman, and Vaden,

acting under color of law, violated Hall’s liberty interest in

her reputation without affording her the due process of law

required by the Fifth Amendment to the United States

Constitution; and (2) that Scott, Clinton, and other unnamed

officials violated 42 U.S.C. § 1985(1) by agreeing to impede

Hall by intimidation or threat from lawfully discharging her

duties or to injure Hall in her person or property because of

the lawful discharge of her duties.

The defendants moved to dismiss Hall’s complaint for

lack of subject matter jurisdiction and for failure to state a

claim. See Fed. R. Civ. P. 12(b)(1), (6). The district court

granted the motion, determining that it lacked subject matter

jurisdiction over the claims because they were precluded by

the CSRA. The court alternatively determined that the

complaint failed to state a Fifth Amendment Bivens claim

because Hall did not have a vested liberty interest in her

employment with the EOP and failed to state a 42 U.S.C. §

1985(1) claim because it did not allege class-based

discrimination.

App. 6

Il.

Hall maintains that the district court erred in dismissing

her Fifth Amendment Bivens claim against Scott, Tayman,

and Vaden as being precluded by the CSRA. We disagree.

A Bivens action is a judicially created damages remedy

designed to vindicate violations of constitutional nghts by

federal actors. See Bivens, 403 U.S. at 395-97. In order for a

Bivens remedy to be available, a court must determine that (1)

Congress has not already provided an exclusive remedy; (2)

there are no “special factors counseling hesitation in the

absence of affirmative action by Congress’; and (3) there is

no “explicit congressional declaration” that money damages

not be awarded. /d. at 396-97; see Schwicker v. Chilicky, 487

U.S. 412, 423 (1988). The “special factors” concept

“include[s] an appropriate judicial deference to indications

that congressional inaction has not been inadvertent.”

Schwicker, 487 U.S. at 423.

The CSRA “comprehensively overhauled the civil service

system,” creating a “framework for evaluating adverse

personnel actions against [federal employees].” Lindhal v.

Office of Pers. Mgmt., 470 U.S. 768, 773-74 (1985). “It

prescribes in great detail the protections and remedies

applicable to such action, including the availability of

administrative and judicial review.” United States v. Fausto,

484 U.S. 439, 443 (1988). A primary purpose of enacting the

CSRA was “to replace the haphazard arrangements for

administrative and judicial review of personnel actions” that

existed prior to the CSRA. /d. at 444. When the CSRA was

enacted, the perception was that the existing appeals process

was so lengthy and complicated that federal supervisors were

discouraged from taking legitimate adverse personnel actions.

Ee =

App. 7

See id. at 445. Further, because multiple jurisdictions had

concurrent jurisdiction over actions challenging personnel

decisions, there was a wide variation in decisions regarding

the same or similar matters. See id. Accordingly, the CSRA

was designed to eliminate this problem as well. See ud.

The Supreme Court examined the availability of a Bivens

action in a federal employment context in Bush v. Lucas, 462

U.S. 367 (1983). In Bush, the Supreme Court determined that

federal employment constituted a “special factor” warranting

refusal to recognize a First Amendment Bivens claim asserted

by a federal employee. See Bush, 462 U.S. at 378-80;

Zimbelman v. Savage, 228 F.3d 367, 370 (4th Cir. 2000).

This court recently decided a similar case, the facts of which

are closely analogous to the case at bar. In Zimbelman, two

employees were fired from their jobs with the Air Force under

suspicion of having committed various acts of misconduct,

including theft and fraud. See Zimbelman, 228 F.3d at 369.

The employees brought suit against the supervisors and the

Air Force investigators who had conducted the investigation

into their misconduct, asserting several constitutional claims,

including one under Bivens for a violation of their Fifth

Amendment nght to preserve their reputations. See id. at 370.

This court affirmed the dismissal of the Bivens claim,

concluding that they “indisputably ar[o]se from a federal

employment relationship.” /d.

Hall contends that the CSRA does not preclude her Bivens

action because although the CSRA provides for

administrative or judicial review of the action taken against

her, her Bivens claim is not against her supervisor. Hall’s

argument is without merit, however. The salient fact here is

that the wrongful acts Hall alleges were taken against her

arose out of her federal employment relationship. Because

App. 8

they did arise out of her federal employment, Bush and

Zimbelman dictate that Hall’s claim 1s precluded. That the

CSRA does not provide the remedy that she would prefer is

of no moment. See Bush, 462 U.S. at 388-90 (refusing to

allow a Bivens action even though “existing remedies [did]

not provide complete relief’); Zimbelman, 228 F.3d at 370-71

(holding that plaintiffs were not released from the exclusive

remedial framework of the CSRA when their claims arose

from the federal employment even though the CSRA

provided plaintiffs with no remedy); cf’ Lombardi v. Small

Bus. Admin., 889 F.2d 959, 961 (10th Cir. 1989) (holding that

plaintiff's claims were precluded by the CSRA because

actions complained of arose from federal employment

relationship even though many of the alleged violations

occurred after the employment relationship was terminated);

Gleason v. Malcom, 718 F.2d 1044, 1048 (11th Cir. 1983)

(per curiam) (holding that claims by federal employees were

barred under Bush even though one claim was against

coworkers because “(t]he purpose of denying a private cause

of action to federal employees is to ensure that they do not

bypass comprehensive and carefully balanced statutory and

administrative remedies in order to seek direct judicial

relief’). Accordingly, the district court correctly dismissed

Hall’s Bivens claim.’

' Because we affirm the dismissal of this claim on this

ground, we do not address Hall’s arguments concerning the

alternative basis given by the district court for the dismissal

of the claim.

App. 9

III.

Hall next argues that, even assuming that the special

factor of federal employment mandates dismissal of her

Bivens claim, that factor does not counsel dismissal of her §

1985(1) claim. We disagree.

Hall correctly maintains that Bush is not controlling with

regard to her § 1985(1) claim because Bush “dealt only with

the effect of the CSRA on the judicial implication of

constitutional remedies, not with the foreclosure of statutory

claims.” Spagnola v. Mathis, 809 F.2d 16, 30 (D.C. Cir.

1986), reh'g en banc granted in part, 859 F.2d 223 (D.C. Cir.

1988); see United States v. Lund, 853 F.2d 242, 248 (4th Cir.

1988) (explaining that “cases holding that the comprehensive

nature of the remedies available to federal employees under

the CSRA preclude certain judicially-implied remedies for the

personnel practices the CSRA prohibits” are “completely

inapposite” to question of implicit repeal of express provision

of a statute). Nevertheless, we hold that Congress intended

that the CSRA would operate to the exclusion of all other

statutory remedies for claims arising out of the federal

employment relationship. Because “Congress clearly

intended the CSRA to be the exclusive remedy for federal

employees,” the comprehensive grievance procedures of the

CSRA implicitly repealed all other then-existing statutory

rights of federal employees regarding personnel decisions.’

In any event, we note that the CSRA appears to provide

a remedy for all of the actions on which Hall premised her §

1985(1) claim. See 5 U.S.C.A. § 2301(b)(2) (West 1996)

(stating that federal employees “should receive fair and

equitable treatment in all aspects of personnel management”);

App. 10

Pinar v. Dolce, 747 F.2d 899, 913 (4th Cir. 1984); see Petrini

v. Howard, 918 F.2d 1482, 1484-85 (10th Cir. 1990) (per

curiam) (explaining that the CSRA preempted state law

challenges to federal personnel decisions because the CSRA

“was intended to provide the exclusive procedure for

challenging” such decision); Spagnola, 809 F.2d at 30

(holding that federal employee was precluded from bringing

§ 1985(1) claim because “the CSRA is the exclusive remedy

for aggrieved federal employees advancing nonconstitutional

claims’).

Hall maintains that her claim should not be precluded

because neither Scott nor Clinton were her supervisors and

because Clinton was not a federal employee. Even if this is

true, however, someone with authority to do so made the

personnel decision of which Hall complains, regardless of

whether the decisions were influenced by someone without

such authority. Allowing a federal employee to sue those

people who may have influenced a supervisor’s decision to

take a certain personnel action”’would create an obstacle to the

attainment of Congress’s goal of unifying challenges to

5 U.S.C. A. § 2302(b)(3) (West 1996) (prohibiting “reprisals

for the refusal . . . to engage . . . in political activity”); 5

U.S.C.A. § 2302(b)(8)(A)(1) (West 1996) (prohibiting reprisal

for the “disclosure of information . .. which the employee. .

. reasonably believes evidences” the “violation of any law,

rule, or regulation’’); 5 U.S.C.A. § 2302(b)(9)(D) (West 1996)

(prohibiting reprisal for “refusing to obey an order that would

require an individual to violate a law’’); Fausto, 484 U’S. at

446 (describing 5 U.S.C.A. § 2302 as prohibiting “unlawful

discrimination, coercion of political activity, nepotism, and

reprisal against so-called whistleblowers’’).

App. 11

federal personnel decisions in a single administrative forum.”

Broughton v. Courtney, 861 F.2d 639, 641 (11th Cir. 1988).

Furthermore, knowledge by a supervisor that making a

particular personnel decision may give rise to a lawsuit

against those who may have influence over him would no

doubt discourage some supervisors from taking legitimate

personnel actions. Cf Fausto, 484 U.S. at 445; Bush, 462

U.S. at 389. For all of these reasons, the district court

correctly determined that Hall’s 1985(1) claim is precluded

by the CSRA.’

IV.

In sum, the district court correctly dismissed Hall’s Fifth

Amendment Bivens and 42 U.S.C.A. § 1985(1) claims for

lack of subject matter jurisdiction because they are barred by

the CSRA.

AFFIRMED

Because we affirm the dismissal of Hall’s § 1985(1) claim

on this basis, we do not address her arguments concerning the

alternative basis given by the district court for dismissing the

claim.

App. 12

APPENDIX B - DECEMBER 3, 1999

DISTRICT COURT ORDER

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

SHERLY L. HALL,

Plaintiff,

Civil Action No. 99-694-A

V.

HILLARY RODHAM

CLINTON, etal.,

)

)

)

)

)

)

)

)

)

Defendants. )

)

RDE

This case comes before the court on defendants’ (Hillary

Rodham Clinton, Marsha Scott, Laura Tayman, Mark

Lindsay, Jane Doe, and John Doe) motion to dismiss the

amended complaint under Fed. R. Civ. P. 12(b)(1) and

12(b)(6). Based on the parties’ submissions, and for the

reasons stated herein, it is hereby

ORDERED that:

1. The motion to dismiss is GRANTED with respect to

defendants Hillary Rodham Clinton, Marsha Scott, Laura

Tayman, Mark Lindsay, Jane Doe, and John Doe.

App. 13

2. Thecaseis therefore DISMISSED with prejudice with

respect to defendants Hillary Rodham Clinton, Marsha Scott,

Laura Tayman, Mark Lindsay, Jane Doe, and John Doe.

B ro

Beginning on October 25, 1992, plaintiff Sheryl Hall was

employed as the manager of the Customer Support Branch

with the Information Systems and Technology Division

(“ISTD”) of the Office of Administration (“OA”) of the

Executive Office of the President (“EOP”). According to the

amended complaint, in November of 1993, Hall had

responsibility for development of software for what is

presently known as the White House Office Database

(“WhoDB”), a master database designed to have standard

functions which could be utilized for a variety of purposes by

various White House offices. Development of WhoDB was

allegedly overseen by Marsha Scott, Director of the White

House Correspondence Office, upon the direction and with

the approval of Hillary Clinton.

In November of 1993, Hall met with Scott regarding

WhoDB. When Scott described the political nature of some

of the information which Clinton desired to be included in the

WhoDB and the political functions that Clinton desired the

software to perform, Hall expressed reservations about the

legality, under the Hatch Act, of the utilization of United

States government employees and resources for what

appeared to be political activity. Scott allegedly responded by

replying that Hall should use her imagination to circumvent

the legal restrictions imposed by the Hatch Act. In a

subsequent meeting regarding the same topic, Hall alleges

that Scott reacted angrily and ousted Hall from Scott’s office.

App. 14

In various memoranda transmitted by Scott over the next

several months in relation to the status of the WhoDB, Scott

allegedly characterized Hall as a gate keeper, old, less

informed, unenthusiastic,, disloyal to the President’s

administration, and an obstacle to the development of the

WhoDB. Hall alleges that these characterizations were

untrue, as evidenced by her long and distinguished career as

a federal civil servant, and made without prior notification to

Hall or the reasonable opportunity for Hall to defend herself.

In January of 1994, Hall alleges that ten of her staff began

being removed from her supervision and that she was relieved

from responsibility related to the development of the WhoDB,

thereby significantly decreasing her duties. In March of 1994,

Hall alleges that Laura Tayman (employed in the White

House Correspondence Office under Scott’s supervision) and

Eric Vaden (employed in the White House Correspondence

Office under Scott’s supervision) transmitted a memorandum

to Scott characterizing Hall as disloyal, incompetent, and

lacking in management skills. This memorandum was

allegedly transmitted to Phil Lader, White House Deputy

Chief of Staff, and Clinton.

In subsequent months, Hall alleges that her

responsibilities continued to be reduced and that she found

herself increasingly idle and excluded from tasks and projects

in which she had previously been engaged and which she

had been employed to perform. Hall alleged that she further

became subjected to a hostile, intimidating, and abusive work

environment due to the conduct of her supervisor, Chuck

Benjamin. In September and October of 1996, Hall allegedly

opposed what she believed to be an unlawful and

discriminatory employment practice by twice complaining to

the OA Human Resources Manager of being ordered by her

supervisor, Banjamin (sic), to lower her performance

App. 15

appraisal of aan (sic) African-American male working under

her supervision. In November of 1996, Hall’s position was

allegedly eliminated and renamed, her duties and supervisory

responsibilities were assigned to a lesser qualified male, and

she was assigned to work under this lesser qualified male.

Hall alleges that the previous actions were undertaken

with the intention and for the purpose of forcing Hall’s

resignation. On December 19, 1996, Hall states that she filed

an informal equal employment opportunity (“EEO”)

complaint against Benjamin alleging gender discrimination.

On January 15, 1997, Hall filed a subsequent EEO complaint

against Benjamin. On February 7, 1997, Hall alleges that

Benjamin provided Hall with her performance appraisal for

the period ending in June of 1996. This appraisal allegedly

lowered Hall’s performance rating for the first time since she

had been employed by the OA and contained false,

misleading and unjustified negative narrative comments by

Benjamin. It is undisputed that Hall’s February 7, 1997

performance appraisal rated her as “exceed fully successful”

which is the second highest possible rating.

On October 30, 1998, the United States House of

Representatives Committee on Government Reform and

Oversight publicly disseminated the Fifth Report entitled

Investigation of the Conversion of the $1.7 Million

Centralized White House Computer System, Known as the

White House Office Data Base, and Related Matters. In this

report, the Oversight Committee found that senior White

House staff used WhoDB to advance the campaign fund

raising objectives of the Democratic National Convention

(sic) and that this conversion of government property

constituted theft of government property under 18 U.S.C. §

641.

App. 16

In count one under 42 U.S.C. § 1985(1), Hall alleges that

defendants Clinton, Scott, and other unknown people

unlawfully agreed to hinder or impede Hall by intimidation or

threat in the lawful discharge of her duties and to injure Hall

in her person or property on account of the lawful discharge

of her duties. In count two under 42 U.S.C. § 2000e-3, Hall

alleges that the adverse action taken against her by Benjamin

was in retaliation for her previous EEO complaints. In count

three under the Fifth Amendment to the United States

Constitution, Hall alleges that the derogatory and degrading

charges made about Hall by White House employees deprived

her of the nght to liberty without due process of law and

damaged her liberty interest in her good name, professional

reputation, honor, and integrity.

Discussion

Defendants argue that the court lacks subject matter

jurisdiction over counts one and three because the Civil

Service Reform Act (“CSRA”) bars plaintiff's claims. The

CSRA was enacted to replace the haphazard arrangements for

administrative and judicial review of personnel actions and

provides federal employees with a number of substantive and

procedural rights. Defendants assert that plaintiff’ s claims are

employment-related and fit within the CSRA’s broad

remedial scope. Plaintiff responds and argues that the CSRA

unmistakably provides that its proscnptions regarding

prohibited personnel actions apply only to certain individuals

that have the “authonty to take, direct others to take,

recommend or approve any persunnel action...” 5 U.S.C. §

2301(b)(ii). Plaintiff asserts that defendants were not her

supervisors and did not have this type of authority.

App. 17

The court finds that the actions of the defendants are

clearly employment-related and are encompassed under the

remedial scope of the CSRA. As plaintiff contends in her

amended complaint and admits in her brief, defendants had

the raw power and influence to cause and adverse action.

Plaintiff also admits that the development of WhoDB was

overseen by Scott upon the direction and with the approval of

Clinton and that plaintiff was responsible for the development

of software for WhoDB. Plaintiffs argument that the

defendants were not in a supervisory position is disingenuous.

If they did not have the authority to take, direct others to take,

or recommend or approve any personnel action, then plaintiff

would fail to state a claim upon which relief can be granted.

Therefore the CSRA applies to these parties and provides the

sole remedy for plaintiff's Fifth Amendment and § 1985(1)

claims. See Bush v. Lucas, 462 U.S. 367 (1983); Jones v.

Tennessee Valley Authority, 948 F.2d 258 (6th Cir. 1991).

In addition, the court sustains the motion to dismiss for

counts one and three under Fed. R. Civ. P. 12(b)(6).

Although there is some disagreement among the courts, a §

1985(1) claim must be supported by class-based

discrimination. None is alleged here. With respect to

plaintiff's Fifth Amendment claim, plaintiff does not have a

vested liberty interest in her job. In addition, Plaintiff's

alleged injury is deminimus (sic) because she did not suffer

any adverse employment action.

With regards to count two for retaliatory discrimination,

the court finds that the lower performance evaluation of

“exceed fully successful” does not constitute an adverse

employment action. Even if an adverse action were found,

the act of retaliation was allegedly taken by Chuck Benjamin

App. 18

(not a party to this case). The court can find no basis to

impute his liability to the moving defendants.

Conclusion

For these reasons, the court grants the motion to dismiss

and dismisses the case with prejudice with respect to

defendants Hillary Rodham Clinton, Marsha Scott, Laura

Tayman, Mark Lindsay, Jane Doe and John Doe.

/ S /

Albert V. Bryan, Jr.

United States District Judge

Alexandnia, Virginia

December 3rd 1999