Petition for Writ of Certiorari — Doe v. Marshall

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Text

Petitioner

Agency and PETER F. GRUDEN, Special Agent,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

John Doe

206 Knoll Road

Wallingford, PA 19086

Tel. 610-565-2252

Pro Se

ill

QUESTIONS PRESENTED

1. Where petitioner’s settlement agreement with DEA protected his

employability by prohibiting DEA from disseminating unsupported

defamatory allegations to his prospective employers, was recission of

the agreement, on grounds which DEA has conceded are baseless, a

“taking” without compensation in violation of the Fifth Amendment

and was the recission and DEA’s subsequent firing of petitioner also

violative of his procedural and substantive due process rights under

the Fifth Amendment?

2. Did the Third Circuit err by holding federal courts lack jurisdiction

over petitioner's complaint seeking equitable relief for violations of

his First and the Fifth Amendment rights caused by DEA’s recission

of the settlement agreement and his subsequent firing ?

2. Is the Merit Service Protection Board an unconstitutional

Executive Branch “court” established in violation of Article III of

the United States Constitution to the extent the Civil Service

Reform Act purports to grant it power over constitutional claims

of federal employees?

see

TABLE OF CONTENTS Page

QUESTIONS PRESENTED il

TABLE OF CONTENTS il

TABLE OF AUTHORITIES iv-v

OPINIONS BELOW 1

JURISDICTION 2

STATUTES -CONSTITUTUIONAL PROVISIONS 2

STATEMENT OF THE CASE 2

REASONS FOR G G WRIT 15

|. THE THIRD CIRCUIT AS WELL THE DISTRICT

COURT VICLATED BELL V. HOOD, 327 U. S. 678 (1946)

AND 5 U.S. C. 702 BY CONVERTING DOE’S WELL-

PLEADED SUBSTANTIAL CLAIMS FOR EQUITABLE

RELIEF FOR CONSTITUTIONAL VIOLATIONS INTO A

“BREACH OF CONTRACT” CASE TO BE DECIDED BY

THE MSPB, AN EXECUTIVE BRANCH AGENCY 15

Il. DEA’s RECISSION OF THE SETTLEMENT

AGREEMENT WAS AN UNCONSTITUTIONAL TAKING

OF DOE’S FIFTH AMENDMENT PROPERTY 22

If] THE THIRD CIRCUIT ERRONEOUSLY HELD DOE )

FAILED TO ASSERT “GENUINE” FIFTH AMENDMENT

DUE PROCESS CLAIMS UNDER THE FIFTH

AMENDMENT 24

IV. THE THIRD CIRCUIT ERRED BY FAILING TO

REVIEW DOE’S FIRST AMENDMENT CLAIMS IN

AFFIRMING THAT THE DISTRICT COURT LACKED

SUBJECT MATTER JURISDICTION 26

V. THE MERIT SERVICE PROTECTION BOARD DOES

NOT QUALIFY AS AN ARTICLE II] COURT AND THUS

CANNOT HEAR PETITIONER’S CONSTITUTIONAL

CLAIMS 27

CONCLUSION 28

APPENDIX:

THIRD CIRCUIT OPINION & JUDGMENT 2a-15a

DISTRICT COURT OPINION & JUDGMENT 16a-23a

CONSTITUTION & STATUTES 24a-3la

COMPLAINT 32a-58a

COMPLAINT, EX. A 59a-67a

COMPLAINT, EX. B 68a-69a

COMPLAINT, EX. C 70a-73a

TRO HEARING, 3/23/98, EXCERPT P. 10-11 T4a

TRO HEARING, 3/23/98, EXCERPT P. 16 75a

TRO HEARING, 3/23/98, EXCERPT P. 36 76a

GRUDEN LETTER 3/12/98 77a

CONGRESSMAN WELDON’S LTR, 1/20/98 78a-79a

LOPARO DECLARATION 80a-8la

TABLE OF AUTHORITIES

Cases Page

Bell v. Hood, 327 U.S. 678 (1946) 15-19, 28

Department of the Army v. Blue Fox , Inc., 15, 20

525 U.S. 255 (1999) 15, 20

Bush v. Lucas, 462 U.S. 367 (1983) 19

Ex parte Young, 209 U.S. 123 (1908) 17

Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) 17

Hubbard v. EPA, 809 F.2d 1, 11 (D.C. Cir. 1986) 15, 20

Janicki Logging Co. v. Mateer, 42 F.3d 561 (9th Cir. 1994) 21

Lee v. Hughes, 1998 U.S.App.LEXIS 16045 (11 Cir.1998) 21

Lynch v. United States, 292 U. S. 571, 579 (1934) 22

Marano v. Dept. Of Justice, 2 F. 3d 1137 (Fed. Cir. 1993) 26

McVeigh v. Cohen, 983 F. Supp. 215 (D. C. D. C. 1996) 21,21

Mitchum v. Webb, 73 F. 3d 30 (3 Cir. 1995) 15, 17, 20, 27

Mortensen v. First Fed. Sav. 549 F.2d 884 (3d Cir. 1977) 17, 18

Northern Pipe Co. v. Marathon Pipe, 458 U. U. 50 (1982) 27

Osborn v. United States Bank, 22 U.S. 738 (1824) 17

Ramallo v. Reno, 931 F. Supp. 884, 892 (D. C. D. C. 1996) 23

Ruckleshaus v. Monsanto, 467 U.S. 986 (1984) 23

Santobello v. New York, 404 U. S. 257 (197 1) 24

Schweiker v. Chilicky, 487 U. S. 412 (1988) 19

Uniroyal Inc. v.Marshall, Sec. Of Dept Labor,

14 Empl. Prac. Dec. (CCH) P7672,

1977 U.S. Dist. Lexis 15306 (N. D. Ind. 1977) 23

United States v. Central Pacific R. CO., 118 U.S. 235 22

United States v. Fausto, 484 U. S. 439 (1988) 19

United States v, Lee, 106 U. S. 196 (1882) 22

Worthy v. McKesson Corp. 756 F. 2d 1370 (8 Cir. 1985). 23

Young v. Francis, 820 F. Supp. 940 (E.D. Pa. 1993)

Constitutional Provisions

U. S. Const. Art. Il

U.S. Const Amend. 1

U.S. Const Amend 5

Statutory Provisions:

5 U. S.C. 702

5 U.S.C. 1201 et seq.

5 U.S.C 2302(b)(8)(A),(B), (9), (10)

5 U.S. C. 7703

28 U.S.C 1331

Federal Rules of Civil Procedure

F.R.C.P. 12(b)(1)

F.R.C. P. 12(b)(6)

Miscellaneous Authorities

Wright & Miller, Federal Practice

And Procedure: Civil, § 1350 (2d ed. 1990)

“1,49

18, 19, 26

18, 19, 22, 24

15, 19, 27

4, 15, 26

17, 21, 30

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1999

JOHN DOE,

Petitioner

THOMAS CONSTANTINE, Administrator, Drug Enforcement

Agency and PETER F. GRUDEN, Special Agent,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Petitioner Doe prays that a writ of certorari issue to review the

opinion and judgment of the Court of Appeals for the Third Circuit

rendered in these proceedings on May 21, 1999.

OPINIONS BELOW

The United States District Court for the Eastern District of

Pennsylvania dismissed the complaint for lack of subject matter

jurisdiction on April 16, 1998 after one brief TRO hearing, holding

that the complaint merely alleged a breach of contract and not

constitutional violations. The unreported opinion of the District Court

is reproduced in the Appendix. (Ap. 16a-23a)!. On Appeal, the Third

Circuit Panel affirmed in an opinion marked “Unreported—Not

Precedential” filed May 21, 1999. (Ap. 2a-15a) -

JURISDICTION

This Court has jurisdiction under 28 U. S. C. 1254(1).

STATUTES AND CONSTITUTIONAL

AMENDMENTS INVOLVED

Yhe relevant portions of the Federal Statutes and Constitution

are reproduced in the Appendix. Ap. 24a-3 1a.

STATEMENT OF THE CASE?

Doe, a licensed Commercial pilot with an Instructor’s rating,

joined DEA in 1990 as Special Agent hoping to be assigned to its Air

Wing. After initial training, Doe was assigned to the Cleveland Field

Office of DEA. Soon he was merit- selected to participate in

Operation Snowcap, an extraordinarily dangerous drug interdiction

effort in which DEA agents, including Doe, were deployed for months

1 . References to the Appendix are described as “Ap. _”. Respondents

are sued, inter alia, in their capacities as past and present officials of

the Drug Enforcement Administration (DEA), a branch of the

Department of Justice. For simplicity, Respondents and DEA are

generally referred to as “DEA”.

2 . This petition summarizes Doe’s verified complaint, affidavits and

other exhibits, as well as pertinent testimony and exhibits at the

hearing on Doe’s motion for a TRO on March 23, 1998. DEA has

never answered Doe’s complaint nor has it under oath in the record

contradicted any of the following factual assertions herein.

in Central and South America. Doe successfully completed rigorous

Army Ranger and Navy Seal training courses and an in-depth foreign

language course, becoming fluent in the language most frequently used

by drug cartel members. Doe and his Snowcap team were assigned to

South and Central America with other DEA agents where they risked

their lives conducting dangerous missions, such as blowing up drug

labs. More than one of Doe’s fellow DEA agents was killed during the

missions they undertook. (Complaint, 45-6, Ap. 37a-38a)

After completion of his participation in Operation Snowcap, in

September 1996 Doe was assigned to Newington, a facility (Group

“X” in the Complaint) which has responsibility for matters of the

utmost secrecy and sensitivity. (Complaint 4 7, Ap. 38a)

Throughout Doe’s seven-year DEA career, he was always

promoted in a timely fashion and was never rated lower than “fully

successful” in his periodic reviews. He received an “Outstanding”

rating following his three-month 1994 assignment to Columbia and for

the period ending July 1996. ( Attachment A to the Settlement

Agreement, Exhibit A to the Complaint. (Ap. 67a) DEA has

acknowledged that Doe’s seven-year service record was exemplary and

unblemished. (Complaint, {| 20, 20A, Ap. 45a)

In 1995, in Cleveland, Doe and Sterling, a senior DEA Special

Agent, witnessed an illegal drug cash seizure by local area police and

lodged a verbal “Whistleblower” report with their DEA Supervisor at

the Cleveland Office. No corrective action was taken by DEA and the

local police were permitted to keep 15-25% of the approximately

$260,000 cash seized and DEA kept the balance. Thus, well prior to

his 1996 assignment to Newington, Doe was on record at DEA as an

agent whe would report wrongdoing. (Complaint, 429-32, Ap. 48a-

49a)

Then, at Newington trom the fall of 1996 to October 1997,

Doe discovered a serious pattern of security violations, sexual

escapades and gross musmanagement as set forth in the complaint.

(Complaum 4 34-44 Ap. 49a-53a) Pursuant to the “Whistleblower®

Act, 5 U- 8. ©. 2302, (68a), (B); (9), (10), LAp- 27a-29a], Doe

summarized the violations in writing substantially as they appear in the

complaint and copies were delivered to the Office of Special Counsel

(OSE) and to Hon. Curt Weldon, M.©., Chauman of the House Armed

Services Subconumitice on Research & Development. (Complaint, 4

47, Ap. 55a) Congressman Weldon sent Doe's report and letter to

Respondent Constantine on January 20, 1998, urging an investigation

of Doe's allegations at Newington on an “emergency” basis. (Ap. 78a-

79a) '

Following the 1995 “Whistleblowing” report in Cleveland, *

DEA commenced an all-out intensive “background” invesdgation of

3. Letter of Hon. Curt Weldon to Constantine January 20, 1998, Ap. 78a-79a

and Complaun, 4 49 [first 4 49], Ap. 55a..

4. Without any evidence in the record the courts below concluded the

background dvestigation was related to his Newington assignment and not iA

retaliation for Doe's Cleveland “Whistleblowing”. However, Doe was

assigned 49 Newington at the SCI level for 6 months before his “background”

InvesHgation was complete, a sequence Clearly indicating the background

Investigation was prompted by the cleveland mcident.

Doe's life. DEA concedes his service record was outstanding and

produced no facts demonstrating any misconduct by Doe in his

personal life.

Nevertheless, DEA sent Doe a “Firing Proposal” on March 15,

1997 (Complaint 4 12, Ap. 40a) The “Firing Proposal” is based upon

the following unverified hearsay allegations: (1) DEA claims to have

located a summer 1993 police call report, not in evidence, which DEA

asserts reflects a call that Doe could be seen without clothes in his

rented fo9m 12- 3 AM; (2) that a teenage girl, “M” and her friend,

“KS”, had been caught spying (from M’s darkened bedroom) on Doe

in the privacy of his rented room during this hot summer period and (3)

DEA claims its agents secured an affidavit from M alleging that Doe

urged her to watch him .

However, DEA has to this day withheld M’s alleged

“affidavit" from Doe and the courts below even though M, in her

alleged “affidavit”, is the sole accuser who DEA claims supports the

charge that Doe induced her to observe him in the privacy of his

rented room in July 1993. Moreover, M’s withheld “allegations”

are flatly contradicted by the DEA-prepared affidavit of ES, M’s ca-

“peeping tom”, an affidavit DEA attempted to withhold until it was

forced to turn it over to counsel for Doe just two days before the

March 23, TRO Hearing: KS’ affidavit completely exonerates Doe.

From any charge that he attempted to induce either M or KS to

observe him doing anything.§

5. DEA did not reveal KS's exculpatory affidavit until two days before the

FRO hearing, thereby depriving Dee's counsel of any chance to locate KS and

possibly arrange for her to testify for Doe.

DEA also repeatedly threatened Doe and his counsel with

criminal prosecution if they attempted to interview Doe's sale

aceuser, "M", about her supposed “affidavit”. Indeed, at the TRO

Hearing on March 23, 1998, Doe's Attorney, Mr. Bayless, testified

(Tr. 36, Ap: 76a):

“No we don’t have a copy of Ms. Martin’s [i. e. “M”” 5]

affidavit, which we felt was essential. We were also denied the

right to interview Ms. Martin or any other witnesses in Ohio, we

were expressly prohibited from doing that hy Mr. Greenley [sie,

Greenlee] whom | contacted to request the right to go ta Ohio.

[Doe] had been told that criminal charges would be brought

against him in very broad terms and I told Mr, Greenley [sie]

that we were concerned that that applied to his agents as

attorneys and he told me that was in faet the truth,”

Doe engaged attorney Herman Bayless to represent him in

contesting the charges in of the Firing Proposal. For more than four

months, October 1997 until February 4, 1998, Attorney Bayless

negotiated with Senior Attorneys of DBA, as directed by DEA’s

Deciding Officer, Mark Greenlee. (Complaint 4 13, Ap. 40a-41a) After

these four months of negotiations, the parties voluntarily agreed to

settle all differences between them.

Thus, DEA agreed to close all charges against Doe, to

withdraw the “Firing Proposal” and to seal the unfounded and

unproven allegations set forth in the “Firing Proposal” and any other

adverse allegations that Doe engaged in “inappropriate conduet” or

violated any rule, law, ete. Further, DEA agreed to send a letters of

reference (in the form attached ta the Settlement Agreement) to verify

his employment and superior evaluations to potential private sector

employers in the event Doe left DEA. (Complaint, Exhibit A,

Settlement Agreement Ap. 674-754)

The Settlement Agreement was signed February 4, 1998 after

its approval by all required DEA lawyers and officials, including

Deciding Officer Greenlee and DEA’s Deputy General Counsel

Gleason. (Complaint 413, Ap. 44a-45a)

Doe, a Commercial Pilot and Instructor, had applied for a

transfer to DEA’s Air Wing on several occasions during his DEA

career. In January 1998 Doe applied again, but on February 9, 1998,

Donnie Marshall, then Chief of the Air Wing © wrote Doe politely

advising his request could not be accommodated. The Settlement

Agreement was drafted on the basis that Doe might not be able to

transfer to the Air Wing, in which case, Doe wished to resign in order

to resume his commercial aviation career. (Settlement Agreement, 4 c,

App. 59a-60a) Thus, following receipt of Mr. Marshall's letter, acting

in reliance upon the Settlement Agreement and in accordance with its

terms (Complaint 4 16, Ap. 42a, Settlement Agreement, § ¢, App. 59a-

60a), Doe submitted his resignation on February 28, 1998 and

proceeded to resume his private sector commercial aviation career

including signing a $4000 contract with the Sheffield School of

Aeronautics in Florida in mid-February where he commenced

advanced commercial aviation training that month. (Complaint, 417,

17€, Ap. 42a-44a) Doe also began sending out job applications, with

5. Mr. Marshall is now Acting Administrator of DEA following Respondent

Constantine’s resignation the day after the Third Circuit handed down

its decision in this case.

the expectation that inquiries about his DEA career would be answered

by DEA letter attached to the Settlement Agreement as Attachment A.

(Complaint, 17B, Ap. 43a)

When Doe submitted his resignation by letter of February 28,

1998, as contemplated in the Settlement Agreement, Respondent

Gruden replied on March 5, 1998, refusing to accept the resignation

and “tendering it back” to Doe's Counsel. Doe responded by letter

dated March 5, 1988 that he had resigned pursuant to the binding

Settlement Agreement and because he “has resigned and is now a

former employee, there are no pending employment matters for you to

decide.” Gruden notified Doe by letter of March 12, 1998 (App. 77a)

that, despite Doe's resignation, he wood “forestall taking any action

with respect to the pending removal action against” him until on or

after April 1, 1998. Gruden continued: “As previously indicated, you

will receive 72 hours advance notice of any such action.” On March

31, 1998, Doe sent another letter of resignation. DEA did not

explicitly reject this resignation but nevertheless continued to consider

him as its employee until they fired him. |

. DEA’s refusal to permit Doe to resign contradicted its

Counsel's express representation to the district court when challenged

on this issue: “There's no problem with the plaintiff resigning, He

has---certainly, he can resign.” (App. 75a)

In their opinions, the courts below did not address Doe's two

resignations or his argument that since he had resigned, he could not be

“fired”, nor did the opinions mention the unqualified commitment of

DEA’s counsel who represented to the district court that “There's no

problem with the plaintiff resigning. He has — certainly he can resign.”

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(Tr. 16, Ap. 75a)

Within a few days after its execution, Richard Fiano learned of

the Settlement Agreement via means not known. Fiano, a 20-year

veteran of the old Federal Bureau of Narcotics (“BON”)—now DEA--

was (and may still be) the Special Agent In Charge of Newington, the

ultra-secret facility which is the precise target of Doe’s 1996-1997

“Whistleblowing” charges. DEA has never denied Doe’s principal

charges of serious security breaches at Newington, many of which

are described in the Complaint. Indeed, DEA has conceded it is

urgently seeking another site for the ultra-sensitive functions

performed at Newington, 7

Fiano immediately rushed to confer with another veteran DEA

agent who is also an old BON colleague, Respondent Gruden, and they

immediately went to Respondent DEA Administrator Constantine. In

the next two weeks, Fiano, Respondent Gruden, and Respondent

Constantine held at least two emergency meetings which led to a

decision that, notwithstanding the Settlement Agreement signed by all

parties on February 4, 1998 settled the Doe case, Respondent Gruden

would appoint himself as a new “Deciding Officer” and send Doe a

7. There is some indication that a number of law enforcement and intelligence

agencies also function at Newington, including military intelligence units,

which would explain Congressman’s Weldon’s urgent demand that

Respondent Constantine investigates Doe's charges on an “emergency” basis.

Mr, Constantine resigned on May 23, 1998, the next working day following

the decision of the Third Circuit and has been replaced by Donnie Marshall.

Mr. Marshall has announced publicly that DEA is seeking another site to

replace Newington.

letter on February 20, 1998 purporting to “rescind” the Settlement

Agreement. The Recission Letter, Exhibit B to the Complaint (Ap.

68a-69a) asserts: “subordinate elements in this agency . . . lacked

authority to bind the agency to the conditions . . . contained in the

agreement, “*

Doe filed the complaint in the district court for the Eastern

District of Pennsylvania on March 9, 1998. The emergency judge

granted Doe's motion to seal the case under F, R. C. P. 26 (c). Doe

also filed a motion for a TRO, which sought to enjoin DEA from firing

him, and for other equitable and declaratory relief.

Although DEA’s chief counsel, Cynthia Ryan, Esq., and

Respondent Constantine approved Respondent Gruden’s recission of

the Settlement Agreement on the “lack of authority” rationale, this

pretext was patently false since the Settlement Agreement was

authorized by all necessary persons within DEA. Thus, DEA was

forced to concede that the Settlement Agreement was authorized, a

-ONnCessi b t ch 23, 1998 TRO

“The Government's position... is that we're not -- we're not

saying that this agreement was signed by a junior DEA lawyer

who didn’t have authority to sign it. *** we're not saying Mr.

8 . DEA has not cited any legal authority whereby a DEA operative can

lawfully replace its “Deciding Officer” (Greenlee) in order to rescind a

Settlement Agreement approved by the Deciding Officer or whether

Respondent Gruden, a non-lawyer, could lawfully qualify as a Deciding

Officer under applicable law.

eee

Bayless didn’t have reason to think that the people he was

dealing with were authorized, so we’re not disputing that, ,...

»” (Tr. 10-11, Ap. 74a)

DEA then went to a fallback position that the Settlement

Agreement is void as against “public policy”, and could, therefore, be

unilaterally rescinded. DEA’s briefing does not specify the “public

policy” but clearly wishes to re-open and re-litigate the unproven,

contested and settled charges DEA relating to Doe’s alleged off-duty

conduct, charges emanating from a withheld affidavit of M and

contradicted by her partner’s affidavit, charges so sleazy and unproven

that DEA agreed to withdraw and seal them after 4 months of

intensive negotiations.

DEA’s briefing below ignored the key point that its most

senior lawyers and officials in charge of such matters painstakingly

reviewed all allegations against Doe in exhaustive detail during the

course of the settlement negotiations, including all allegations of

sexual misconduct, and concluded the same were without basis.

Yet, when DEA had to concede its “lack of authorization” rationale for

recission was false, DEA invented the “public policy” issue as a last-

ditch excuse for rescinding the Settlement Agreement, a position

which speciously implies, inter alia, that its Deputy General Counsel,

Mr. Gleason, and the many senior DEA lawyers and officials who

reviewed the Settlement Agreement ignored public policy.

In pursuit of its newly-developed “public policy” thesis,

DEA’s briefs below also assert Doe “really” did not resign in order to

pursue a career in commercial aviation and “thus” DEA would violate

public policy by telling potential employers that Doe had resigned to

go into commercial aviation. Contradicting this attempted falsification

of the record is the fact that Doe, a licensed Commercial pilot and

Instructor before he joined DEA, entered the Sheffield Aeronautical

School immediately after the Settlement Agreement was signed on

February 4, 1998 for advanced commercial aviation training and DEA

was immediately informed of his action.

DEA’s “public policy” position is also completely at odds with

the reference letter, Attachment A to the Complaint (Ap. 67a), which

states that Doe resigned to commence a career in commercial aviation.

Having slashed the honesty of its own senior lawyers and top officials

who took part in negotiating the Settlement Agreement and ignoring

the explicit wording of that DEA-drafted Agreement and its

Attachment as well as Doe’s status as a Commercial pilot and

Instructor prior to joining DEA and his frustration in being unable to

secure a coveted slot in the Air wing, DOJ counsel handling the case

then asserted that Mr. Marshall, now Acting Director of DEA,

participated in a fraud relating to the reference letter, a charge that he

vigorously denied in his deposition. Indeed, the matter is so bizarre

that it seems possible the Department of Justice Lawyers will seek to

declare Mr. Marshall a hostile witnesses in the event this case is

remanded for trial.

At the conclusion of the March 23, 1998 hearing, the district

court converted Doe’s Motion for a TRO to a Motion for a Preliminary

Injunction, granted Doe’s request to take certain DEA depositions (but

refused any document requests) and ordered that any motions Doe

might wish to make must be filed by April 8, 1998. Doe’s counsel took

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depositions of DEA officials and lawyers in Washington, DC and on

April 8, 1998 duly filed motions for summary judgment and renewed

Doe’s motions for a TRO and a Preliminary Injunction. The district

court set a hearing on those motions for Friday, March 17, 1998.

Faced with the Friday hearing, on Wednesday, April 15, 1998,

Respondent Gruden faxed the “Firing Letter” (dated April 14, 1998) to

Doe’s counsel purporting to “fire” Doe notwithstanding his Doe’s prior

letters of resignation. The fax was sent without the 72-hour advance

notice promised by Respondent Gruden in his letters to Doe, including

that dated March 12, 1988. (Ap. 77a)’ Nor did DEA ever explain how

it could lawfully “fire” a person who had already resigned."°

THE DISTRICT COURT’S OPINION

On April 16, 1998, the district court dismissed the case for

lack of subject matter jurisdiction, stating that “considering the

materials before it, the Court finds that Count IV is Doe’s attempt to

constitutionalize [sic] what is in essence a breach of contract claim”

9 . Respondent Gruden’s broken promise to Doe and to the district court to

provide at least 72 hours advance notice prior to any firing was a

representation made to forestall a TRO and upon which Doe relied upon to his

immense detriment.

10. As the record clearly shows, DEA wanted to fire Doe to tarnish his

reputation. Moreover, DEA’s refusal to accept Doe’s two letters of resignation

submitted right after the signing of the Settlement Agreement is at odds with

the assurance of DEA’s counsel who represented to the district court and Doe

that “There’s no problem with the plaintiff resigning. He has — certainly he

can resign.” (Tr. 18, Ap. 75a)

and “like the others is properly before the MSPB.” (Opinion Ap.22a)'"'

THE COURT OF APPEALS OPINION

The Third Circuit affirmed, agreeing with the district court that

Doe’s claim “is best described as a breach of contract rather than a

constitutional violation.” (Ap. 12a) In passages eerily reminiscent of

Kafka, the Third Circuit approved the district court’s findings of

inflammatory and highly prejudicial “facts” even though they were

not in evidence and were lifted from DEA’s briefs and its Firing

Proposal March 11, 1998 ”

11. Even though DEA failed to introduce any evidence in court or a single

affidavit or other writing under oath, Judge Hutton’s opinion describes at

length “actions” of Doe and purported matters “admitted” by Doe, concluding

that DEA acted “Given these facts”. (App. 19a-20a). The “facts” recited by

Judge Hutton are mere assertions derived from DEA’s briefs and from the

Firing Proposal, a DEA list of charges which is double hearsay.

12 . The Third Circuit also found it necessary to recite as “fact” non-record,

unsupported allegations against Doe. See footnote 1. (App. 4a) The Third

Circuit supported the district court ‘s “fact-finding” and ignored their non-

evidentiary source: “The facts in the district court’s memorandum relate to

allegations in the complaint... Moreover, the allegations regarding the girl

are drawn from the firing proposal that is part of the record.” (App. !3a-14a)

The Firing Proposal March 11, 1998 is nothing more than a list of hearsay

charges, a kind of civil indictment, yet the Third Circuit, like the district court,

accepted these charges as true.

PO LT ng

nt nit Meads RETO lle ates: Ae ah 2h AN AN he 2 od Saves

REASONS FOR GRANTING THE WRIT

I. THE THIRD CIRCUIT AS WELL THE DISTRICT COURT

VIOLATED BELL V. HOOD, 327 U. S. 678 (1946) AND 5 U.S. C.

702 BY CONVERTING DOE’S WELL-PLEADED

SUBSTANTIAL CLAIMS FOR EQUITABLE RELIEF FOR

CONSTITUTIONAL VIOLATIONS INTO A “BREACH OF

CONTRACT” CASE TO BE DECIDED BY THE MSPB, AN

EXECUTICE BRANCH AGENCY

28 U.S.C. § 1331 provides district courts of the United States

“have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States”. (Ap. 24a)

To avoid the statute’s clear grant of federal court subject

matter jurisdiction both courts below ignored Doe’s claim for

injunctive relief relative to the uncontroverted allegations of the

Complaint which describe DEA’s clearly illegal and massive

violations of Doe’s rights under the First and Fifth Amendments, as

well as “Whistleblower” Statute, 5 U. S. C 2302(b)(8)(A), (B), (9)

(10). (App. 27a, 29a-32a)

In so doing, they also failed to deal with the fact that, in 5 U.

S.C 702 (Ap. 25a), Congress did not waive sovereign immunity for

equitable relief “for other than money damages”. This exception 1s

explained in detail in Hubbard v. EPA, 809 F.2d 1 (D.C. Cir. 1986)

and Mitchum v. Webb, 73 F. 3d 30 (3 Cir. 1995), infra, and has been

acknowledged by this Court recently in Department of the Army v.

Blue Fox, Inc., No. 97-1642 decided January 20, 1999.

In “downsizing” Doe’s constitutional claims, moreover, the

courts below clearly violated Bell v. Hood, 327 U.S. 678, 681-82

(1946), which ruled a district court has no power to recharacterize a

constitutional claim as “really” a state law claim in order to defeat

federal question jurisdiction "’

The punitive and deceitful action of DEA and its clear intent

to ruin Doe for joining with Special Agent Sterling in reporting what,

in effect, was a theft by local Cleveland area police of a large portion

of $260,000 in 1995 and then for exposing its gross mismanagement

of its super-secret Newington facility, its trampling of his First and

Fifth Amendment rights, its unjustifiable refusal to permit Doe to

resign —as if he were in servitude, the bizarre and lawless fashion by

which it “rescinded” the Settlement Agreement and then fired him

13 . “Whether or not the complaint as drafted states a common law action in

trespass made actionable by state law, it is clear from the way it was drawn

that petitioners seek recovery squarely on the ground that respondents violated

the Fourth and Fifth Amendments. It cannot be doubted therefore that it was

the pleaders’ purpose to make violation of this Constitutional provisions the

basis of this suit. Before deciding that there is no jurisdiction, the district

court must look to the way the complaint is drawn so as to claim a right to

recover under the Constitution and laws of the United States.” (Bell at 681-

682) By contrast, the Third Circuit ignored the uncontroverted allegations of

outrageous Constitutional violations set forth in detail in the Complaint and

admissions of DEA witnesses under oath and, instead accused Doe of seeking

“to circumvent the Civil Service Reform Act’s administrative scheme” (App.

8a)

after he resigned, all as described and not controverted, cannot be

reduced to a de minimis non-federal claim of a “breach” of a

contract. In such circumstances, federal courts have subject matter

jurisdiction.

Indeed, as the Third Circuit stated in Mitchum v. Webb, 73 F.

3d 30, 35 (3 Cir. 1995) the “power of federal courts to grant equitable

relief for constitutional violations has long been established” citing

Osborn v. United States Bank, 22 U.S. 738, 838-46 (1824); Ex parte

Young, 209 U.S. 123, 156 (1908); See also Bell v. Hood, 327 U.S. 678,

684 (1946): (“[I] t is established practice for this Court to sustain the

jurisdiction of federal courts to issue injunctions to protect rights

safeguarded by the Constitution.”’).

For purposes of reviewing the dismissal of a complaint under

Federal Rule of Civil Procedure 12(b)(1), the district court must accept

the factual allegations in a complaint as true. See Wright & Miller,

Federal Practice And Procedure: Civil, § 1350 (2d ed. 1990) at pages

218-219. There are two types of attacks on subject matter jurisdiction _

pursuant to Fed. R. Civ. P. 12(b)(1): “facial” (claiming jurisdiction was

not properly pled) and “factual” (claiming that jurisdiction does not

actually exist). See Young v. Francis, 820 F. Supp. 940 (E.D. Pa.

1993); Holt v. United States, 46 F.3d 1000 (10th Cir. 1995); Mortensen

v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884 (3d Cir. 1977). Here,

DEA failed to articulate the type of attack it made under Rule 12(b)(1).

However, like Young, DEA never answered the Complaint or

introduced into evidence any facts to dispute the allegations of the

Complaint.

Thus, DEA’s position, which was adopted by the courts below,

Fests whelly on the “legal” argument that the Complaint “really” only

claims a “breach of contract” -DEA’s position under Rule 12(b)(1) was

thus “facial”. However, when presented with a “facial” attack, the

cases make it clear that the law offers safeguards which are similar to

F.RC.P. 12(6)(6): “the court must consider the allegations of the

complaint as true.” Mortensen, $49 F.2d at 891. And see Bell v. Hand,

327 U.S. 678, 681 (1946), emphasizing held that the plaintiff contrals

his pleading with respect to whether the suit “arises under” the

Constitution:

As described at page 16-17, infra, and elsewhere herein, Doe's

complaint alleges specific, manifeld acts by which DEA deprived Doe

of crucial, substantial constitutional rights, including:

I. Unlawful taking” ef the Settlement Agreement, a valid

contract and a Fifth Amendment Property Right ef Dee's.

2. Respondent Gruden’s firing Dee based upan unpFaven hearsay

and withheld allegations in the Firing Prepasal Mareh 11, 1998.

3. Fhat DEA maliciously deprived Doe of his property;

reputation and liherty witheut due process of law.

4. In Count 1Y, Bee explicitly seeks te “enjain DEA fram

rescinding the Settlement Agreement and further issuing a Declaratory

Judgment : - : that [Bee's] Fifth Amendment and Due Process Rights

have been and will be vielated by resurrecting the Firing Prepasal and

permitting it te be decided by [Respendent] Gruden.” (Complaint 928,

Ap. 27-28).

§. Caunt ¥ details Doe's exercise of his First Amendment speech

Fights and alleges in paragraph 51-53 that the rescission of the

Settlement Agreement and the predicted firing were in “retaliation far

CE eEVOOO

* Dae’s ‘Whistleblewing’ actions, including disclosing the grass

mismanagement by DEA at [SOD-Newingten] to Congress and OSC.”

(Complaint, 950, Ap. 38).

Thus, Doe could not have been clearer in alleging that DEA’s

illegal rescission of the Settlement Agreement and subsequent firing

was in Fetaliation for his exercise of his First and Fifth Amendment

Taken as a whole, the Complaint alleges that the Settlement

Agreement hammered out aver four menths ef negatiations was

designed te protect Dee's valuable emplayment rights, as well as

providing elaborate safeguards of his privacy and reputation ---clear

First and Fifth Amendment rights. Dae’s claims thus “arise under” the

Constitution and the Third Circuit's affirmance of the district caurt’s

dismissal ef the complaint “with prejudice” were wrong: Both courts

below failed to read and censtrue the complaint as required by Bell v.

Head.

The Third Circuit mistakenly upheld the district court's

finding of lack ef subject matter jurisdiction an the basis of damage

cases, such as Bush y. Lucas, 462 U.8. 367 (1983 [damages against

Federal employees personally, but ne request for injunctive relief],

United States vy. Fauste, 484 U. 8. 439 (1988) [Federal employee suing

under the Backpay Act] and Schweikery.Chilicky, 487 U. 8. 412

(1988) [damages for denial of social Security benefits].

Hewever, § U. 8. €. 702 (App. 28a) of the Civil Service

Refarm Act ["CSRA"]. Expressly permits a “person”, including a

federal employee, from seeking nan-monetary equitable relief and a

declaratory judgment in federal court with respect to constitutional

20)

violations by federal agencies. See Department af the Army. [lus

Fox . Inc., supra. Thus, in Mi

1995)), the Third Circuit held:

"We therefore hold that Bush and the related Supreme Court

decisions on which we Fely

— 2201-02. " {E neti none |

Mitchum follewed Hubbard y. EPA, 809 F.2d 1, 11 (D.C. Cir.

1986), a decision joined by Justice Sealia when he was a judge of the

Court of Appeals for the District of Columbia. Hubbard, a Nareoties

Detective, sought damages and injunctive relief for violation of his

First Amendment rights, alleging he had been turned down for federal

employment based upon the exercise of his First Amendment rights by

speaking to the media. The Hubbard Court explained that Bush:

“anly precludes damage claims against individuals, not

equitable claims against agencies . . . federal courts have

jurisdiction to grant equitable relief to remedy agency violations

af constitutional — " ***Recause § U.S. C. 702 waives

eaieahaiaien’ : Cit iHavians

mitted, emphasis supplied) "Reinstatement clearly is ameng

those equitable remedies available to Hubbard. Hubbard is

therefore entitled to reinstatement ... if he can show that EPA's

rejection of his jab Application violated his first amendment

rights.” (809 F. 2d at 11)"

There is thus ne CSRA “scheme” which preempts the

equitable power of federal courts to enjoin “runaway” federal agencies

from arbitrarily firing employees and disseminating defamatory,

career-destroying allegations to ruin them. See MeVeigh vy.

F. Supp. 215 (D. €. D. C. 1996)."

The Third Circuit in the present case should have taken the

uncontroverted allegations of Doe's complaint as true---as written---

under Bell y. Hood and followed the equitable relief haldings under 5

U. 8. C 702 per Mitchum, Hubbard. and McVeigh.

Both courts below also failed to recognize that the Court in

Bush and Faust did not address subject matter jurisdiction at all.

indeed, the Court in Bush explicitly acknowledged that the district

court had jurisdiction. (462 U. 8. at 378) Numerous courts have since

recognized that Bush falls within the rubric of F. R.C. P. 12(b)(6)

failure to state a claim and does not involve subject matter jurisdiction

under Rule 12(b)(1) See, ¢.g., Lee vy. Hughes, 1998 U.S. Ap. LEXIS

16045, at #16 n.6 (11th Cir. July 9, 1998); Janicki Logging Co. v.

Mateer, 42 F.3d 561, 563-64 (9th Cir. 1994). Lee and Janicki explain

14. SU. 8. C 702 is reproduced in the Appendix at Ap. 3.

15. "Without this Court's immediate intervention, the plaintiff will lose his

job, income, pension, health and life insurance, and all the other benefits

attendant with being a naval officer. Having served honorably for the last

seventeen years, plaintiff will be separated from a position which is central to

his life on the sole ground he has been labeled a "homosexual". The stigma

that attaches to such an accusation without substantiation is significant enough

that this Court believes it must grant the injunctive relief sought".

that district courts clearly have subject matter jurisdiction over claims

of constitutional violations.

Il, DEA’S RECISSION OF THE SETTLEMENT AGREEMENT

WAS AN UNCONSTITUTIONAL TAKING OF DOE'S FIFTH

AMENDMENT PROPERTY

Doe's Complaint alleges that DEA's rescission of its

Settlement Agreement with him was a "taking" without compensation

in violation of his Fifth Amendment Right to compensation. The Third

Circuit's opinion, as noted, violates the E

v, rule by ignoring

the explicit constitutional claims, and further belittles them as not

being "genuine", as well as "vague" and “ill-defined” and which fail

"even to identify a protected property or liberty interest to invoke the

Constitution’ and concludes that DEA's recission of the Settlement

Agreement with Doe as "best described as a breach of contract",

Aside from ignoring the clear constitutional claims in Doe's

Complaint, the Third Circuit's holding also misses the obvious point

Of course, contracts made with the United States are

"Property" for purposes of the Fifth Amendment. "Rights against the

United States arising out of a contract with it are protected by the Fifth

Central Pacifi '0,, IK U,S. 23 5,

LYNe i ates, 292 U. 8. 571, 579 (1934), And see

Inited S 106 U.S, 196, 217 (1882) Intangible property,

including private and proprietary information, is similarly protected

from Taking in violation of the Fifth Amendment. Ruckleshaus v,

Monsanto, 467 U.S, 986 467 U.S. 986, 1002 (1984).

The unilateral termination of a Settlement Agreement with an

agency of the United States is a deprivation of rights under the due

process clause of the Fifth Amendment, See Uniroyal Inc. v. Uniroyal-

Marshall, Secretary Of Department Of Labor, 14 Empl. Prac. Dec.

(CCH) P7672, 1977 U, S, Dist. Lexis 15306 (N. D, Ind, 1977), Nor

can DEA justify its recission of its Settlement Agreement because it

subsequently decided it would be disadvantageous to it, Worthy v,

McKesson Corporation, 756 F, 2d 1370, 1372-1373 (8 Cir, 1985),

Indeed, general principals of agency law require DEA to honor

Settlement Agreements. Ramallo v. Reno, 931 F, Supp, 884, 892 (D.

C, D.C, 1996),

Furthermore, on demand by DEA, Doe released DEA from all

claims and agreed to withdraw all administrative and judicial claims in

the Settlement Agreement, Doe was thus "suckered" into releasing

DEA and when he had done so, DEA rescinded the Settlement

Agreement, (Applicable limitations rules may well bar Doe from filing

with the MSPB,) DEA knew had it had no facts to justify any

disciplinary action against him, DEA nevertheless still needed a way to

get him drop his “Whistleblowing” claims before the OSC and, more

dangerously, before Congressional committee(s) in order to get agent

Fiano (and any possible DEA cohorts) off the hook for gross

mismanagement at Newington, DEA's most secret and politically

sensitive facility in the ‘war’ on drugs.

Doe, in turn, simply wanted to pursue his objective of

becoming a full-time commercial pilot, so he signed the Settlement

Agreement in good faith and immediately changed his personal and

economic positions in reliance upon it, entering into a multi-thousand

dollar commercial aviation training school within two weeks after the

Settlement Agreement was signed. As such, having offered the

inducement, DEA 1s bound. Santobello v. New York, 404 U. S. 257,

262 (197 1).

Il. THE THIRD CIRCUIT ERRONEOUSLY HELD DOE

FAILED TO ASSERT “GENUINE” FIFTH AMENDMENT DUE

PROCESS CLAIMS UNDER THE FIFTH AMENDMENT

Doe's complaint clearly pleads violations of his the Fifth

Amendment procedural and substantive due process rights. The Third

Circuit ignored Doe's procedural and substantive due process claims

despite ample evidence of extraordinary procedural abuses by DEA

which are set forth amply 1n the complaint and summarized above at

pages 16-18 above.

The gross mangling of procedural due process is evident,

including withholding the allegedly key "M” affidavit, threatening Doe

and his counsel with criminal prosecution if either tried to interview

the “accuser” and a recission so falsely grounded that DEA’s counsel

was forced to withdraw it in open court. In short, DEA’s outrageous

behavior meets the test of the Third Circuit opinion (Ap. 12a) that the

deprivation must have taken place in a manner such as to "shock the

conscience",

Further, if being free from a federal agency disseminating

defamatory and unproven allegations of sexual misconduct 1s not a

"cognizable" liberty and property interest, one must ask what more

_ OOOO

damaging allegations are needed to state a substantive due process

claim. Indeed, the recission of crucially important contractual rights by

a bureaucracy management intent upon covering its serious

wrongdoing by discrediting the reputation of a star agent and firing on

a pretext is deprivation “of life, liberty or property” (Third Circuit

Opinion, Ap. 123a).

Advising potential employers that Doe was fired for “sexual

misconduct”, even though not proven, obviously renders Doe

essentially unemployable. Armintrout, Doe's employment practices

expert with many years of expertise, concludes “a terminated Federal

Law Enforcement Agent would have essentially no prospects of ever

being hired for a position of responsibility by any employer of stature.”

(Affidavit of Edward Armintrout, Complaint Exhibit C, 412 at App.

73a)

Further, when Doe’s counsel informed the district court of DEA’s

outrageous threats to initiate criminal action if Doe and his Attorney

interviewed the supposed accuser, “M”, the district court ruled that M

could be interviewed. However, a DEA agent called the accuser's home

before Doe’s Licensed Private Investigators arrived. . Whatever what

was specifically said by DEA agent in that call is unknown at this time,

but when Doe's licensed private investigators arrived, the woman who

answered the door became hysterical and demanded they leave stating

that the federal agent who took her daughter's affidavit had called to

“warn” her. (Loparo Declaration, App. 80a-8 la) '°

16 . Based on the Loparo affidavit, the DEA Agent who made the intimidating

call which thus prevented any interviews of “M", was Tony Placido, another

veteran DEA operative who was promoted not long after finishing his role in

In short, DEA’s actions have been “shocking” and “contrary

to accepted notions of ordered liberty”-——and substantive due process.

IV. THE THIRD CIRCUIT ERRED BY FAILING TO REVIEW

DOE’S FIRST AMENDMENT CLAIMS IN AFFIRMING THAT

THE DISTRICT COURT LACKED SUBJECT MATTER

JURISDICTION

In its Opinion, the Third Circuit ignored the failure of the district

court to rule on Doe’s First Amendment claims and did not analyze the

allegations of the complaint which asserts, inter alia, that DEA violated

the "Whistleblower" Act 5 U.S. C. 2302, (Ap. 27a-29a), which

protects federal employee’s First Amendment Speech Rights by

prohibiting an employee from being fired or from other reprisal for

speaking out and reporting gross mismanagement, fraud, waste and the

like. 5 U. S. C. 2302 (b). Moreover, the burden of showing justification

for an adverse personnel action following "Whistleblowing” is upon

the federal agency to show the firing was not a prohibited reprisal, See

Marano v. Department Of Justice, 2 F. 3d 1137, 1140-1141 (Fed. Cir.

1993).

This case involves violations of First Amendment Speech

Rights no less serious as those pleaded in Mtchum. Indeed, at page 8 of

the opinion below, the Third Circuit concedes that, in Mitchum:

"The Mitchum employees of a Veterans Administration Medical

Center--claimed that DEA administrators violated their First

Amendment rights by imposing retaliatory measures because of

Doe’s case and is now a Country Attaché in South America, a much coveted

posting.

TT Ne RN Ne

their protected Whistleblowing speech. We permitted the

employees to seek injunctive and declaratory relief for their

claims in a district court without exhausting administrative

remedies. The Mitchum panel held that the Civil Service

Reform Act does not affect the traditional power to enjoin

unconstitutional acts by the government," [Emphasis supplied. ]

V. THE MERIT SERVICE PROTECTION BOARD DOES NOT

QUALIFY AS AN ARTICLE III COURT AND THUS CANNOT

HEAR PETITIONER’S CONSTITUTIONAL CLAIMS

The courts below held federal employees like Doe who seek

injunctive and declaratory relief for constitutional violations by federal

agencies must do so before the Merit Service Protection Board

(MSPB). However, there is no statutory basis for a such a “scheme” in

the CSRA and, as discussed, the holding clearly is wrong in view of

the non-waiver provision of 5 U. S. C 702. (App. 25a) Moreover, even

if such a statutory “scheme” existed in the CSRA, the operative

provisions would be unconstitutional because MSPB does not conform

to Article III. See Northern Pipeline Co. v. Marathon PipeLine Co.,

458 U. U. 50 (1982) where this Court invalidated the legislation which

established the Bankruptcy courts."”

17. MSPB members lack any of the protections afforded the Article III

Judiciary, as is plainly evident from 5 U. S. C 1201. (Ap. 2). As such, the

MSPB is only a quasi “judicial” arm of the Executive Branch, plainly devoid

of the Article III powers to hear Doe’s constitutional claims. Indeed, the

CSRA provides in 5 U. S. C 1201 (Ap. 26a) that the MSPB is composed of

three members Appointed by the President, with Senate advice and consent.

CONCLUSION

The Third Circuit committed reversible error in affirming the

district court’s characterization of the Complaint as a mere “breach of

contract” case 1n direct violation of Bell v. Hood, 327 U.S. 678 (1946).

The district court clearly had subject matter jurisdiction over Doe's

Complaint for equitable relief to prevent violations of his

constitutional rights.

This case represents what has become a crucial issue in

American governance. It is an unpleasant fact of life that persons in

high office and their cohorts engage in wrongful acts. In governmental

agencies a “Look The Other Way” philosophy has become ingrained,

an attitude quite understandable because federal employees who do

render candid reports to oversight bodies are so often hunted down and

fired. Retaliation for reporting wrongdoing is so much the rule that

federal employees often ask to testify about their agency’s conduct

from behind screens using devices to alter their voices to hide their

identity, the same system used 1n organized crime cases. The

consequential distrust of the federal government by ordinary citizens is

However, that section includes limits as to the political affiliation of the

members, a confine which itself would not pass muster under Article III.

Members can also hold other federal office(s), the term is 7 years (S U.S.C

1202) , removal is possible by the president for vague infractions including

“inefficiency” or “neglect" Compensation of the members is not stated, nor is

there any provision prohibiting reduction of compensation. Sections 5 U. S.C

702 (Ap 25a) and 7703 (Ap. 30a-31a) provide for judicial review of MSPB

decisions, but no de novo hearing by a n Article III federal court.

widespread, obvious and understandable.

The Founders were painfully aware of the consequences of

consigning dissidents to the “King’s Men” to adjudicate their destiny.

The consequences to those who offended offend the monarch were

certain. In operative practice, latter day “administrative boards” under

the Executive Branch are hardly different. Indeed, they reduce federal

dockets, but the practice dangerously erodes Article III ‘s promised

protection of an independent federal judiciary.

This case 1s no “routine federal employment matter”. It seeks

an answer to the question of whether otherwise carefully guarded

Constitutional Speech and Property Rights of federal employees will

be protected by Article III courts for reporting wrongdoing.

Doe and Sterling knew they were risking their careers in

reporting the illegal cash seizure in Cleveland in 1995. Moreover, late

in January 1998, when Doe authorized delivery of the Newington

Report to the OSC and Congressman Weldon, Doe knew he was

risking a Settlement Agreement about to be signed, an Agreement

which cleared his name and required DEA to seal the McCarthyite

trash DEA has used to disparage him, yet refuses to produce. So fearful

was DEA that its agent called ““M” ‘s mother to “warn” M. Not to talk?

Newington was designed to be the key intelligence center in

the “war” against drugs, yet it was and is a scandalous mess. As the

new Acting Administrator has acknowledged, DEA is searching for a

secure site. Doe’s contribution clearly has been to force that decision.

He deserves a commendation, not DEA’s scurrilous, baseless attacks

and irritable lower court opinions mandating that he bankrupt himself

by going through a trial before men from the same branch of

government which fired him for doing what was morally right.

The courts below engaged in subjective and demeaning

characterizations of Doe’s blunt Complaint, twisting and weaving

through Rule 12 (b)(1) to dodge Doe’s constitutional claims.

Doe spoke out and reported serious—and admitted—

wrongdoing in America’s most powerful internal police force. For his

efforts, he has been deprived of his property in the form of the

Settlement Agreement, cannot obtain a reference from DEA and is thus

essentially unemployable. Unless this Court overturns the Third

Circuit’s decision, Doe has no realistic chance of being employed as 4

commercial pilot or obtaining any other job of substance—for life.

The petition for certorari should be granted.

Respectfully submitted,

/s/ John Doe

John Doe

206 Knoll Road

Wallingford, PA 19086

Tel. 610-565-2252

Pro Se

UNREPORTED - NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1356

JOHN DOE,

Appellant,

VS.

THOMAS CONSTANTINE, Administrator Drug

Enforcement Agency, and PETER F. GRUNDEN, Special

Agent

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 98-cv-01238)

(District Judge: Honorable Herbert J. Hutton)

ARGUED JANUARY 15, 1999

BEFORE: NYGAARD, ALITO, and LEWIS, Circuit Judges.

(Filed May21, 1999)

ANN B. LAUPHEIMER (ARGUED)

Blank, Rome, Comisky & McCauley

One Logan Square

Philadelphia, PA 19103

STUART S. BOWIE

206 Knoll Road

Wallingford, PA 19086

Attorneys for Appellant

JOHN J. PEASE, TH (ARGUED)

Office of United States Atterney

615 Chestnut Street

Philadelphia, BA 19106

Attarney far Appellees

OPINION OF FHE COURT

LEWIS, Circuit Judge.

Jahn Bee, a farmer emplayee ef the United States Drug

Enfarcement Administration ("DEA"), braught an actien against

the DEA in the United States District Court far the Eastern

District ef Pennsylvania te enfarce a settlement agreement. Dae

sought injunctive and declaratery relief, aleng with actual and

punitive damages, en beth statutery and eenstitutienal graunds.

Specifically, Bae attacked the BEA's refusal te abide by the

terms ef a Regetiated agreement that settled their emplayment

dispute. The District Court dismissed Bee's complaint against

Thomas Censtantine, administrater ef the BEA, and Special

Agent Peter Gruden far lack ef subject matter jurisdiction

pursuant te Federal Rule of Civil Precedure |2(b)(1). Fer the

fallawing Feasens, we will affirm the judgment af the District

Caurt:

Dee served as a special agent in the BEA fram 1991 te 1998. in

September 1996, the DEA transferred Bee from a field office ta

the Special O

peratians Division ('

'SOB"). As a result af the

ree thie

During the ensuing security backgraund check,

HH Of ihapp apFiate se

:' The DEA investigators referred the

matter te the Office of Professional Responsibility which, in

turn, issued a letter in October 1995 proposing Doe's dismissal

for violating the DEA's standards ef canduct that prohibit

"engaging in any criminal, infamous, dishenest, oF notoriously

disgraceful conduct or ather conduct prejudicial te DEA, te the

Department of Justice, of te the government of the United

States." Appendix ("App.") at 284-285. Dee, hawever, disputes

'. According te the DEA, Doe admitted to

investigaters that @R appreximately 20 agcasions

he had masturbated in his bedraam windew in

plain view of a thirteen-year-old girl and her

friends, lacated in the hause next deer. On one

occasion, the girl's family contacted the police

when Dee allegedly stead naked in his windaw

and called far the girl because he wanted to see

her: In 1996, the girl, then sixteen, reported that

Dee began writing sexually explicit letters ta her

expressing a desire te pursue a ramantic

relationship.

many of the details regarding his alleged conduct. In fact, he

denies both the facts of the allegations and that he made any

admissions regarding the conduct described hy the investigators.

Fallawing receipt af the October letter, Doe retained counsel to

challenge the DI:A's prapased personne! action. Doe's lawyers

eventually negotiated a settlement agreement with the DEA's

Office af Chief Counsel. +

os siemtatenaia thie aeenieadid, The DEA alee cai

io inform potential private sector employers that Doe resigned

voluniarily, with ne mention of the investigation, however, if law

enforcement or intelligence entities were to inquire, the DEA

agreed to mention only that Doe resigned at the conclusion of an

internal investigation but that he had vigerously denied any

wrongdoing. At the clase of negotiations, the agreement was

executed on February 4, 199% hy Dee's attorney and Charles

Walden, the DEA's assaciate chief counsel for administrative

law.

While the settlement negotiations were underway, Doe contacted

the U.S. Department of Justice's Office of the Special Counsel

and the chairman of a U.S. House of Representatives Armed

Services subcommittee to allege security violations, misconduct

and mismanagement in the SOD. As a direct result af Doe's

charges, which were forwarded to Administrator Constantine,

ar ceeeecenereniieaeieeeamaiaiailll

the subcommittee chairman urged an immediate investigation

into the allegations.

On approximately February 20, Gruden, then acting deputy

administrator af the DEA, rescinded the negotiated settlement

agreement on behalf of the DEA. In addition to the Feeission,

Gruden informed Doe that the DEA would not acknowledge his

resignation pursuant to the agreement and would instead

lerminate him under ordinary personnel procedures. Doe

suggests that Gruden's action be in retaliation to his protected

whistleblowing activities.

Doe filed a complaint and motion for a lemporary restraining

order in the District Court. Doe sought: (1) actual and punitive

damages for breach of contract; (2) a declaratory judgment that

his settlement agreement is enforceable; ( 4) an injunetion

preventing the DEA from rescinding the settlement agreement

due to failure to comply with § U.S.C. § 2302: and (4) an

injunetion preventing the DEA from rescinding the settlement

agreement due to his "Fifth Amendment and due process rights."

Finally, Doe alleged that the DEA's conduct violated the

Whistleblower Protection Act, 5 U.S.C. §§ 2302(b)( 4) and

(94).

The District Court found that Dee's claims alleged a breach of

contract, not a constitutional violation, and dismissed the

complaint for lack of subject matter jurisdiction. This appeal

followed.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C, §

1291. Since the grant of a motion to dismiss for lack of subject

matter jurisdiction is subject to plenary review, see FOCUS v.

Allegheny County Court of Common Pleas, 75 F.3d 834, 839-40

(3d Cir, 1996), we must independently decide whether Doe's

claims are preempted by the Civil Service Reform Act, Pub.L.

95-454 (codified at various sections of Title § U.S.C.), and

barred from being heard in federal district court without an

exhaustion of

administrative remedies.

A. Civil Service Reform Act Preemption

Congress enacted the Civil Service Reform Act to provide an

administrative framework to handle personnel disputes for

federal government employees. Unquestionably, the Civil

Service Reform Act legislative scheme provides federal

government employees with their primary vehicle for relief in

personnel matters. The Civil Service Reform Act mandates that

an employee must await final agency action on the personnel

matter in dispute. The then employee has a right of

administrative appeal to the Merit Systems Protection Board. See

§ U.S.C, §§ 7512, 7701,

Rather than take his claims to the Merits Systems Protection

Board, Doe filed suit in federal district court. Thus, Doe has

| | he Civil Service Ref '

administrative scheme. Doe argues that he is permritted to do so.

We will examine that argument in the context of the prevailing

case law,

In Bush v, Lucas, 462 U.S,367 (1983), a federal employee who

contended that he had been suspended in retaliation for

whistleblowing sought damages and attorney's fees in a Bivens

action.’ The Supreme Court, however, declined to create the

"new judicial remedy" he sought, Bush, 462 U.S. at 368. The

Court determined that Congress's development of the

“comprehensive procedural and substantive provisions" of the

Civil Service Reform Act counseled hesitation in permitting

alternative remedies. Bush, 462 U.S. at 368,

Later, in United States v. Fausto, 484 U.S. 439 (1988), the Court

pointed to the comprehensive nature of the Civil Service Reform

Act in holding that a federal employee could not bypass the

administrative apparatus by seeking back pay under the Back

* Bivens v, Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S, 388, 392-391

(1971) (recognizing an implied private right of

action for federal violations of an individual's

constitutional rights).

Pay Act, 5 U.S.C. § 5596, in federal district court. The Supreme

Court firmly established the Civil Service Reform Act and the

Merit Systems Protection Board as the primary means to

adjudicate personnel matters. Finally, in Schweiker v. Chilicky,

487 U.S. 412 (1988), the Court relied on Bush in declining to

recognize a damages claim for the unconstitutional denial of

Social Security disability benefits. The Court noted that "[w]hen

the design of a Government program suggests that Congress has

provided what it considers adequate remedial mechanisms for

constitutional violations that may occur in the course of its

administration, we have not created additional Bivens remedies."

Schweiker, 487 U.S. at 423.

Thus, as this trio of cases makes clear, a federal employee who

has meaningful administrative remedies under the Civil Service

Reform Act or any comparable scheme may not bypass that

scheme at will. As Doe correctly notes,

however, we have adopted a narrow exception to this general

rule, one which permits an employee seeking injunctive relief on

a constitutional claim to proceed in a district court. See Mitchum

v. Hurt, 73 F.3d 30 (3d Cir. 1995); see also Hubbard v. EPA, 809

F.2d 1 (D.C. Cir. 1986). At issue here is whether Doe's claim

falls under the Mitchum exception.

B. The Mitchum Exception

In Mitchum, we carved a narrow exception to the general rule

that employment disputes remain the exclusive jurisdiction of the

ieee

Merit Systems Protection Board pursuant to the Civil Service

Reform Act. The Mitchum plaintiffs -- employees of a Veterans

Administration Medica] Center -- claimed that government

administrators violated their First Amendment rights by

imposing retaliatory measures because of their protected

whistleblowing speech. We permitted the employees to seek

injunctive and declaratory relief for their claims in a district

court without exhausting administrative remedies. The Mitchum

panel held that the Civil Service Reform Act does not affect a

court's traditional power to enjoin unconstitutional acts by the

government. See Mitchum, 73 F.3d at 35 ("The power of the

federal courts to grant equitable relief for constitutional

violations has long been established.").

Doe relies heavily on Mitchum in arguing that because his

complaint alleges that Constantine and Gruden's actions violated

his Fifth Amendment due process rights, they may be heard in

federal court. Doe argues further that the District Court

overstepped its bounds by reframing his Fifth Amendment

violation as a breach of contract claim. We disagree. While it is

true that Doe invokes the words "Fifth Amendment" in his

complaint, see App. at ISa ("Plaintiff's Fifth Amendment and

Due Process Rights have been and will be violated ...."), Doe has

not pleaded the type of genuine constitutional claim which

would activate the application of Mitchum. See Mitchum, 73

F.3d at 35 (noting "the right of civil servants to seek equitable

relief against their supervisors and the agency itself in

10a

vindication of their constitutional rights" in federal court despite

the Civil Service Reform Act) (quoting Hubbard, 809 F.2d at

11).

The mere assertion of a vague, ill-defined constitutional

violation is simply not enough to support jurisdiction under

Mitchum. See Bell v. Hood, 327 U.S. 678, 86283 (1946) (an

alleged claim under the Constitution may be dismissed if "made

solely for the purpose of obtaining jurisdiction or where such a

claim is wholly insubstantial and frivolous"). Doe has alleged a

Fifth Amendment violation; thus, he must demonstrate a

deprivation of life, liberty or property. However, in his

complaint, Doe has failed even to identify a protected property

or liberty interest to invoke the Constitution. We do not believe

that Doe's settlement agreement provides an adequate

constitutional property or liberty interest. Although the

agreement, if valid, , may impose some obligations on the DEA,

the mere existence of an agreement does not confer a dispositive

constitutionally protected property interest.’ See. e.g., Reich v.

* The parties have adopted differing positions on the

enforceability of the agreement; we decline to express any

opinion on the validity of the agreement or its terms.

* Generally, contract rights are only recognized as

constitutionally protected property in rare cases. For example,

where "the contract confers a protected status, such as those

characterized by a quality of either extreme dependence in

the case of welfare benefits, or permanence in the case of

tenure, or sometimes both.” See Uncer v. National Residents

Ts aeinilieiihiaiaieiilaiieaeaiceaieiaiasiaiasiidl

lla

Beharry, 883 F.2d 239, 242 (3d Cir. 1989) ("Every breach of

contract by someone acting under color of state law [does not}

constitute[] a deprivation of property for procedural due process

purposes."); Sudeikis v. Chicago Transit Authority, 774 F.2d

766, 770 (7th Cir. 1985) ("It has long been settled that a mere

breach of contract by the government does not give rise to a

constitutional claim."); Jimenez v. Almodovar, 650 F.2d 363,

370 (Ist Cir. 1981) ("A mere breach of contractual right is not a

deprivation of property without constitutional due process of law

.... Otherwise virtually every controversy involving an alleged

breach of contract by a government or a governmental institution

or agency or instrumentality would be a constitutional case.").

At oral argument, Doe stressed that his substantive due process

rights were violated by the DEA's recission of the settlement

agreement. The concept of "substantive due process" forbids the

government from depriving a person of life, liberty, or property

in such a way that "shocks the conscience" or "interferes with

rights implicit in the concept of ordered liberty." United States v.

Salerno, 481 U.S. 739, 746 (1987) (citations omitted). However,

to establish a substantive due process claim, a plaintiff must still

show a government deprivation of life, liberty or property. See

Sameric Corp. of Delaware Inc. v. Citv of Philadelphia, 142 F.3d

Matching Program, 928 F.2d 1392, 1399 (3d Cir. 1991)

(citations omitted). Those rare circumstances are not present

in this case.

12a

582, 590 (3d Cir. 1998) ("To establish a substantive due process

claim, a plaintiff must prove that it was deprived of a protected

property interest . . ."). Once again, Doe has asserted no

cognizable property or liberty interest.

To summarize, we do not believe Doe has clearly presented a

substantial constitutional claim under the Fifth Amendment. As

such, we agree with the District Court's determination that Doe's

claim 1s best described as a breach of contract rather than a

constitutional violation. Without a constitutional claim, Doe may

not use Mitchum to support jurisdiction. Accordingly, we will

affirm the District Court, and the case will be dismissed for lack

of subject matter jurisdiction because of a failure to exhaust

administrative remedies.”

Finally, Doe has asked us to strike the factual background of the

District Court's April 16, 1998 opinion. Doe argues that the

District Court could not make "findings of fact" and that by

5. The District Court also properly declined to extend

mandamus jurisdiction, jurisdiction “can be invoked only

when the plaintiff has a clear right to the relief sought, the

defendant has a clear duty to perform, and no other adequate

remedy is available.” Blaney v. United States, 34 F.3d 509,

513 (7th Cir. 1994) (citations omitted). Doe has not satisfied

these requirements. See also Bobula v. United States Dep't of

Justice, 970 F.2d 854, 860 (Fed Cir. 1992) (holding that "§

1361 cannot provide jurisdiction where the duty alleged is

merely a contractual duty unsupported by the Constitution, a

statute, or a regulation").

13a

writing a factual background it has "adopted the ugly,

unsupported and unproven allegations" copied from the DEA

memorandum. Appellant's Br. at 41. Doe also contends that these

facts were irrelevant or unnecessary for an opinion on subject

matter jurisdiction.

We find no reason to honor Doe's extraordinary request. Doe

cites no authority to support striking the factual section of the

District Court's opinion. The facts in the District Court's

memorandum opinion relate to the allegations in the complaint

and Doe's employment relationship with the DEA. Moreover, the

allegations regarding the teenaged girl are drawn from the firing

proposal that is a part of the record. Parties may disagree with or

dispute certain facts, but that alone does not mandate that we

rewrite the District Court's opinion. Although the District Court

ruled on a jurisdictional matter, the context and background of

the case is clearly relevant. :

IV.

For the foregoing reasons, we will affirm the District Court's

order granting the motion to dismiss for lack of subject matter

jurisdiction.

TO THE CLERK:

Please file the foregoing opinion.

/s/ Samuel A. Alito

Circuit Judge

l4a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1356

JOHN DOE,

Appellant

VS.

THOMAS CONSTANIINE, Administrator Drug Enforcement

Agency, and PETER F. GRVNDEN, Special Agent

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANLA

(D.C. Civil No. 98-cv-01238)

(District Judge: Honorable Herbert J. Hutton)

Present:

JUDGMENT

This cause came on to be heard on the record hom the United

States District Court for the Eastern District of Pennsylvania and

was argued by counsel on January 15, 1999.

On consideration whereof, it is now here ordered and adjudged

by this Court that the judgment of the said District Court entered

April 16, 1 99Y, be, and the same is hereby affirmed. Costs

taxed against appellant. All of the above in accordance with the

opinion of this Court.

ATTEST:/CLERK

Dated: May 21, 1999

3cjud

1Sa

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DOE : CIVIL ACTION

v. : UNDER SEAL

THOMAS CONSTANTINE, et al.: NO. 98-1238

MEMORANDUM AND FINAL JUDGMENT

HUTTON, J. April 16, 1998

Presently before the Court are the Plaintiff's

Motion for a Temporary Restraining Order and the Federal

Defendants' Omnibus Response thereto. In addition, the Court has

heard the parties' arguments at a Temporary Restraining

Order/Preliminary Injunction hearing held on March 23, 1998. For

the reasons that follow, the Federal Defendants’ motion to dismiss

for lack of

subject matter jurisdiction is granted.

I. BACKGROUND

Plaintiff John Doe was a Special Agent in the

Federal Drug Enforcement Agency (DEA) between the years of

1991 and 1998. On September 29, 1996, the DEA assigned Doe to

a project within the agency so secret that Doe only identifies it as

16a

the "X Group." As a result af the re-assignment, Bee had te

underge a security upgrade fram Tep Secret ta SEI. In the course

of the agency's security review, investigaters unearthed evidence

that during the summer of 1993. while statianed in Ohia, Bee

engaged in inapprepHate sexual conduct invelving thirteen year

ald girls.

Doe admitted ta investigatars that an at least twenty

accasions he had masturbated in his bedream windew in view af

a thirteen year ald girl and her friends in the house next deer. Bae

would get the girls' attention by flashing his lights er thrawing

things fram his bedraam windew te theits. On ane accasian, the

family af the neighboring girl called the pelice when Boe

allegedly stead naked in, his windew and called ane af the girls te

his house because he wanted ta see her. In 1996, after maving

fram the area, Dae began writing sexually explicit letters te his

farmer Reighbor--then sixteen--eXpressing an Interest 1A BUFSHIAg 4

relationship with her. Finally, during the summer of 1996, Boe

gave the girl the impression that he was stalking her. Bae called

her workplace and, when her superviser said she was busy, tald

the supervisor to tell her that she left the lights an in her car. When

the girl checked her car, she found that the lights were net an, bul

that Boe had left another ameraus card for her on the windshield.

Given these facts, the DEA referred the matter ta

its Office af Professional Responsibility, and an October 15, 1997,

Board af Professional Conduct Chairman Thomas Kukara issued

letter prapesing Dee's remeval for vielating BEA's standards af

a Wacr baka ain «4

\7a

conduct, which prohibit “engaging in any criminal, infamous,

dishonest, oF Reteriously disgraceful conduct ar ather conduct

predicld! te B~A, te the Department af Justice, ar te the

government of the United States." Appendix (App.") at 284-285.

Between the date of the prapased removal letter and

February 4, 1997, Doe's lawyers negotiated a Settlement

Agreement

With the lawyers in the DEA's Office of Chief Counsel that would

allew Boe to resign from his position and require the DEA ta keep

the circumstances of his exit entirely a Under the

msiperabiopraN DEA ag a maintain the fictias

nie On Nae 4 1957, Bee's attorney ian 3 Bayless

and Charles Walden, the BEA's Assaciate Chief Counsel for

Administrative Law, executed the Settlement Agreement.

However, on February 23, 1997, BEA Special Agent Peter Gruden

wrote Doe ta natify him that the BEA was rescinding the

Settlement Agreement, and that BEA would maintain

confidentiality only te the extent ta which it was required under

the Privacy Act. Gruden stated that the BEA would not

acknowledge Doe's tender of resignation pursuant te the

Settlement Agreement, and would instead terminate under the

ordinary procedures.

During the period that the attorneys negotiated the

Settlement Agreement, Doe contacted the Deparment af Justice's

ita

Office af the Special Counsel and members of Congress charged

with aversight af the DEA ta ratify them af cancerns he had about

conduct affecting the security af the X Group facility. In his

Complaint, Dee charges--among other things--that the DEA's

attempt ta rescind the Settlement Agreement was in retaliation for

these whistleblawing activities.

On March 9, 1998, Doe filed his Complaint and Motion for

Temporary Restraining Order ta prevent the DEA fram

\erminating him and ta specifically enfarce the terms of the

Settlement Agreement. In Count |, Doe seeks actual and punitive

damages far breach af contract, “equitable relief which is

incidental and callateral ta Plaintiff's claim far money damages",

and a declaratory judgment that the Settlement Agreement is

enforceable. In Count Il, Dae asks the Court ta enjain the DEA

fram rescinding the Settlement Agreement due to its failure ta

comply with § U.S.C, § 28€2(b)(10) (1994). In Count FV, *

Plaintiff asks the Court ta enjain the DEA on the theary that

‘Plaintiff's Fifth Amendment and Due Process Rights have been

and will be vielated” if the DEA is permitted ta reseind the

Settlement Agreement. Finally, in Count V, Doe

asserts that the DEA's canduct vielates the Whistleblawer

Pratection Act, 5 U.S.C. §§ 2302(b) 8) and (9) V).

Il. DISQUSSION

| Plainw's Complaint contains no cont HI

19a

In their Omnibus Response, the Federal

Defendants argue that this Court has no subject matter jurisdiction

to entertain this employment dispute between a federal agency and

its former employee. The i

In United States vy. Fausto, 484 U.S. 439, 453

(1988), the Supreme Court held that the Civil Service Reform Act,

Pub. L. 95-454, 92 Stat 1111 et seq. (codified, as amended, in

various in various sections of 5 U.S.C.) (the “CSRA"), provides

the exelusive avenue of relief for a federal employee with a

personnel dispute against the government. See LeBlano y. United

Slates, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (upholding Court of

Federal Claims’ dismissal of whistleblower claim for lack of

subjeet matter jurisdiction). Under the CSRA all these claims are

property before the Merit System Protection Board (the "MSPB")

in Washington DC, the administrative body charged with handling

federal personnel disputes. See 5 U.S.C. 7701 (establishing

emplayee's right to review by the MSPB). The Federal Circuit,

whieh eharged with reviewing appeals from the MSPB, has stated

that “[the CSRA exclusively governs federal personnel matters."

Roath vy. United States, 990 F.2d 617, 619 (Fed. Cir. 1993). 1993).

Fausto held that the CSRA preempted the

preexisting

“haphazard arrangements for administrative and judicial review of

20a

personnel action," which included applications for mandamus,

injunctive and declaratory relief. See Fausto, 484 U.S. at 444, The

CSRA established the “primacy” of the MSPB for administrative

resolution of personnel disputes, and the "primacy" of the Federal

Circuit for judicial review of MSPB proceedings. See id, at 449.

As Fausto noted, this procedural structure “enables the

development, through the MSPB, of a unitary and consistent

Executive Branch position on matters involving personnel action,

avoids an “unnecessary layer of judicial review" in lower federal

courts, and ‘[e}ncourages more consistent judicial decisions." Id, at

449 (quoting S.Rep. No. 95-969 at 52). Therefore, in general, all

adverse employment decisions covered by the CSRA must be

appealed to the MSPB, rather than to the federal district

courts, ”

In Mitchum v. Hurt, 73 F.3d 30, 34-35 (3d Cir, 1995), he

Third Circuit acknowledged Fausto and Bush v. Lucas, 462 U.S.

367 (1983), but found that the CCRA left untouched the power of

a federal court to grant injunctive relief in constitutional claims.

See Hubbard v. EPA, 809 F.2d 1, 11 (D.C. Cir, 1986). The

Mitchum Court carved this exception to the general rule that such

disputes are otherwise within the exclusive jurisdiction of the

MSPB.

2. An exception exists for the so-called “mixed case," in which a federal

employee has charged the government with employment discrimination. See ¢.g.,

Blaney v. United States, 34 F.4d 509, 511 (7th Cir. 1994).

ian ek Desks Neblett lela aad siedable cis: Cis agaynt bet ee Pat Pech pegctags

ie ksh bos na

eS aber Vine on eatin *.

2la

Returning to Doe's Complaint, it is immediately

evident that Counts I, II and V are of the kind Congress committed

exclusively to the MSPB, and must: be dismissed for lack of

subject matter jurisdiction. Count I is breach of contract claim for

damages, and only incidental equitable relief. Cour Vis a

non-constitutional claim under tile CSRA itself, and is properly

before the MSPB. Finally, Count V is a non-constitutional claim

under the WPA, a portion of the CSRA, and is also properly

before the MSPB,

Doe relies on Mitchum o keep Count IV of his

Complaint alive. Count [V is nominally a constitutional claim

under the Fifth Amendment and Due Process clause seeking

equitable relief. However, considering all of the materials before

it, the Court finds that Count IV is Doe's attempt to

constitutionalize what is in essence a breach of contract claim. By

holding that federal district courts retained 3urisdiction to consider

a federal employee's constitutional claim for equitable relief, the

Third Circuit created the risk that plaintiffs would perform exactly

this exercise of legal gymnastics. See New vy, Brown, 1997 WL

666173, * 6 (E.D.Pa, October 21,1997).

On a motion to dismiss for lack of subject matter

- Jurisdiction’ however, the Count need not accept Doe's

characterization of his claim as a constitutional one merely

because he says so. See Mortensen v. First Federal Savings and

22a

Loan Association, 549 F.2d 884 (-id Cir. 1977). The Court finds

that Count IV is essentially a breach of contract claim, and like the

others is properly before the MSPB. See Leistiko v. Stone,

134 F.3d 817, 820 (6th Cir. 1998".

For the foregoing reasons, the Court dismisses

Doe's Complaint for lack of subject matter jurisdiction. An

appropriate Order follows.

23a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DOE

CIVIL ACTION

v. UNDER SEAL

APR 16 1998 FILED

THOMAS CONSTANTINE, et al. NO. 98-1238

FINAL JUDGMENT

AND NOW, this 16th day of April, 1998, upon

consideration of the Plaintiff's Motion for a Temporary

Restraining Order and the Federal Defendants' Omnibus

Response,

IT IS HEREBY ORDERED that:

(1) the Plaintiff's Motion for a Temporary Restraining Order is

DENIED; and

(2) the Federal Defendants' Motion to Dismiss for Lack of Subject

Matter Jurisdiction is; GRANTED.

IT IS FURTHER ORDERED that this case is DISMISSED

WITH PREJUDICE.

{COURT’S EMPHASIS]

BY THE COURT: ’

/s/ HERBERT J. HUTTON, J. dctop

24a

U.S. Constitution: Article Il

Section |. The judicial Power of the United States, shall be vested

in one Supreme Court, and in such inferior Courts as the Congress

may from time to time ordain and establish. The Judges, both of

the supreme and inferior Courts, shall hold their Offices during

good Behaviour, and shall, at stated Times, receive for their

Services, a Compensation, which shall not be diminished during

their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the Laws of the United

States, *** to Controversies to which the United States shall be a

Party?"

Amendment I

Congress shall make no law *** abridging the freedom of

speech, *** and to petition the government for a redress of

grievances.

Amendment V

No person shall be *** be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for

public use, without just compensation.

25a

5 U. S. C. 702. Right of Review

A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning

of a relevant statute, is entitled to judicial review thereof. An

action in a court of the United States seeking relief other than

money damages and stating a claim that an agency or an officer or

employee thereof acted or failed to act in an official Capacity or

under color of legal authority shall not be dismissed nor relief

therein be denied on the sie that it is against the United

States or that the United States is an indispensable party. The

United States may be named as a defendant in any such action, and a

judgment or decree may be entered against the United States:

Provided, That any mandatory or injunctive decree shall specify the

Federal officer or officers (by name or by title), and their

successors in office, personally responsible for compliance.

Nothing herein (1) affects other limitations on judicial review or

the power or duty of the court to dismiss any action or deny relief

on any other appropriate legal or equitable ground; or (2) confers

authority to grant relief if any other statute that grants consent

to suit expressly or impliedly forbids the relief which is sought

26a

5 U.S.C 1201 Appointment of Members of the

Merit Systems Protection Board

The Merit Systems Board is composed of 3 Protection members

appointed by the President, by and with the advice and consent of

the Senate, not more than 2 of whom may be adherents of the

same political party. The members of the Board shall be

individuals who, by demonstrated ability, background, training, or

experience are especially qualified to carry out the functions of

the Board. No member of the Board may hold another office or

position in the Government of the United States, except as

otherwise provided by law or at the direction of the President. The

Board shall have an official seal which shall be judicially noticed.

The Board shall have its principal office in the District of

Columbia and may have field offices in other appropriate

locations.

5 U.S.C. 2302. Prohibited personnel practices

(b) Any employee who has authority to take, direct others to take,

recommend, or approve any personnel action, shall not, with

respect to such authority -

(8) take or fail to take, or threaten to take or fail to take,

a personnel action with respect to any employee or applicant for

employment because of -

(A) any disclosure of information by an employee or

applicant which the employee or applicant reasonably believes

evidences -

( i) a violation of any law, rule, or regulation, or

AS SY

27a

(111) gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to

public health or safety, if such disclosure is not

specifically prohibited by aw and if such information is

not specifically required by Executive order to be kept

secret in the interest of national defense or the conduct of

foreign affairs; or

B) any disclosure to the Special Counsel, or to the

Designated by the head of the agency to receive such

disclosures, of information which the employee or applicant

reasonably believes evidences -

(i) a violation of any law, rule, or regulation, or

(11) gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger

to public health or safety;

(9) take or fail to take, or threaten to take or fail to take,

any personnel action against any employee or applicant for

employment because of -

(A) the exercise of any appeal, complaint, or grievance

right granted by any law, rule, or regulation;

(B) testifying for or otherwise lawfully assisting any

individual in the exercise of any right referred to in

subparagraph (A);

Inspector General of an agency, or the Special Counsel, in

accordance with applicable provisions of law; or

(D) for refusing to obey an order that would require the

28a

individual to violate a law;

(10) discriminate for or against any employee or applicant for

employment on the basis of conduct which does not adversely

affect the performance of the employee or applicant or the

performance of others; except that nothing in this paragraph

shall prohibit an agency from taking into account in determining

suitability or fitness any conviction of the employee or

applicant for any crime under the laws of any State, of the

District of Columbia, or of the United States;

12) take or fail to take any other personnel action if the

taking of or failure to take such action violates any law, rule,

or regulation implementing, or directly concerning, the merit

system principles contained in section 2301 of this title. This

subsection shall not be construed to authorize the withholding of

information from the Congress or the taking of any personnel

action against an employee who discloses information to the

Congress.

prevention of prohibited personnel practices, for the compliance

with and enforcement of applicable civil service laws, rules, and

regulations, and other aspects of personnel management, and for

ensuring (in consultation with the Office of Special Counsel) that

agency employees are informed of the rights and remedies

available to them under this chapter and chapter 12 of this title.

Any individual to whom the head of an agency delegates

authority for personnel management, or for any aspect thereof,

shall be similarly responsible within the limits of the delegation.

29a

5 U.S.C. 7703.

Judicial review of decisions of the Merit Systems Protection Board

(a) (1) Any employee or applicant for employment adversely

affected or aggrieved by a final order or decision of the Merit

Systems Protection Board may obtain judicial review of the order

or decision. (2) The Board shall be named respondent in any

proceeding brought pursuant to this subsection, unless the

employee or applicant for employment seeks review of a final

order or decision on the merits on the underlying personnel action

or on a request for attorney fees, in which case the agency

responsible for taking the personnel action shall be the respondent.

(b) (1) Except as provided in paragraph (2) of this subsection, a

petition to review a final order or final decision of the Board

shall be filed in the United States Court of Appeals for the

Federal Circuit. Notwithstanding any other provision of law, any

petition for review must be filed within 60 days after the date

the Board. (2) Cases of discrimination [OMITTED]

Federal Circuit, the court shall re the petitioner received notice of

the final order or decision of view the record and hold unlawful

and set aside any agency action, findings, or conclusions found to

be (1) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence; except that in the case of

discrimination brought under any section referred to in

subsection (b)(2) of this section, the employee or applicant shall

40a

have the right t@ have the facts subject te, tal de neve by the

reviewing cour-(@) The Directo: (OMITTED)

28 U.S. €. (33h. Federal Question

The. district courts shall have orginal junsdichoen ef all caval

activas arising wader the Constitution, laws, or treaties of the

United States.

im etwas

aha

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DOE

CIVIL ACTION NO. 98 CY 1238

Plaintiff

V. FILED UNDER SEAL

: | CONFIDENTIAL

Thomas Constantine

D le Adramistration

and

JURY TRIAL DEMANDED,

Drag Eafecanen erent Administration

Washington, DC 20537

Defendants

COMPLAINT

SUMMARY AND NATURE OF THE ACTION

ha, this action, Plauwff, a Special Agent of the

United States Drug Enforcement Administration (DEA),

Wh, had seven years of exemplary service watih his

resignation from DEA op 2/28/98 pursuant te the

Settlement Agreement with DEA signed 2/4/98 (Copy,

attached as Exhibit A), seeks, inter aha, the following

rehes:

324

A. A temporary and permanent iInjuACTIOR

preventing Defendants from firing Plamuff on the basis of

a “Firing Propesal® DEA made on October 15, 1997

which asserts defamatory off-duty conduct by Plauntuff

(which conduct, even if true as alleged by DEA, has never

had any effect upon Plaintiff's ability to perform his job

for DEA).

B. A temporary and permanent ACTOR

preventing Defendant Gruden, a low-rankiag DEA Special

Agent, from rescuding the Settlement Agreement of

2/4/98, which he purports he can do vm his fax letter of

2/23/98 attached as Exhibit B. on the ground Defendant

Gruden lacks authority to do so and his authorty has.

never been validated by Defendant Constantine oF any

ether authorized DEA Official. Defendant Gruden's

purported “recission” contradicts the Settlement

Agreement, Exhibit A. as approved by DEA's Deciding

Official and signed by a senior DEA Lawyer after bemmg

negotiated by Lynn Goldsteim, a “Senior Attorney” of

DEA's "Office Of Chief Counsel”, as shown i Exhibit E

and by Charles A. Walden, Esq. Mr. Walden seat several

betters confirming successful negotiation of the Settlement

Agreement (which Mr. Walden signed for DEA),

including that of 1/27/98 (Exhibit F) and after the

Settlement Agreement was executed

by Phamuff and DEA, see attached letter of 2/6/98

(Exhibit G),

33a

C. A temporary and permanent injunction

preventing Defendant Gruden from firing Plaintiff on the

grounds he is unauthorized to do so. Defendant Gruden

states he will “vender a decision" on DEA's “Ficing

Proposal” on Wednesday March 11, 1998 in his letter of

March 5, 1998 (copy attached as Exhibit D).

(1) Plaintiff has every reason to expect

Defendant Gruden will uphold the “Firing Proposal” and

issue a decision firing Plaintiffon March 11, 1998 which

wall place the indelible stigma ofan illegal termination of

employment on his record. This stigma will destroy his

ability to gain any meaningful employment for the rest of

his life even if he can somehow find the enormous

amounts of money required to retain Counsel to appeal

such firing. Plawtiff will, thus, unless this Court enjoins

Defendants, be immediately and irreparably harmed in his

reputation and will become essentially unemployable for

years and thus permanently harmed in his ability to make a

living and find eraployment unless this Court enjoins

Defendants as requested.

D. A temporary and permanent injunction

enjomimg Defendants from depriving him of his Property

wader the Fifth Amendment. in purporting to be able to

fke Plaitiffon March 11, 1998, Defendant Gruden and

DEA assert that the Settlement Agreement of 2/4/98

negotiated with DEA at the highest levels between

34a

10/15/97 and 2/4/98 was “unauthorized” by DEA and that

he has “rescinded” the same and intends to “decide” the

“Firing Proposal on March 11, 1998 (Exhibit D), which

‘Firing Proposal” was the key issue resolved and put to

bed by the Settlement Agreement, Exhibit A.

(i) The Settlement Agreement, Exhibit A,

is a valid contract binding DEA and Plaintiff and is a

Property Right of Plainuff. Defendant Gruden's bizarre

attempt to subsequently “rescind” such a binding contract

with Plaintiff is in violation his nghts under the

Constitution of the United States, including his Fifth

Amendment Right that the Federal Government cannot

arbitrarily deprive him of his Property without due process

of law.

E. To enjoin Defendants from firing him in

retahation for being a “Whistleblower”, 1. ¢., disclosing

gross mismanagement by DEA to the proper Federal

Authorities and Member(s) of Congress pursuant to the

“Whistleblower” Statute, 5 U.S. C. 2302 et seq.

F. Plaintiff also seeks Declaratory Judgment that

the Settlement Agreement attached as Exhibit A between

Drug Enforcement Administration (“DEA"“) of the United

States Department of Justice (“DOJ”) entered into between

Plamuff and DEA as of February 4, 1998 is a valid and

enforceable contract and that Defendant Gruden's

3Sa

assertion faxed to Plaintiff's counsel on February 23, 1998

(Exhibit B) that the Settlement Agreement is an

“unauthorized agreement, and is hereby rescinded" is of

no legal effect; and further, that Defendant Gruden, in

clear violation of law, has appointed himself as “the

Deciding Official” in this matter to render a decision on

the notice of proposed removal, notwithstanding such

issues were fully resolved by the Settlement Agreement.

(A copy of Defendant Gruden's fax transmitted 2/23/98 is

attached as Exhibit B. Portions of all Exhibits which

identify Doe's actual name have been redacted herein for

privacy and security purposes.)

JURISDICTION

1. In this action Plaintiff seeks a temporary and

permanent injunction as set forth above. Thus, Plaintiff

seeks Declaratory and Equitable rehef for violations of his

rights under Federal Statutory Law and his Rights secured

to him by the Fifth Amendment to the United States

Constitution.

tA. This court has Onginal Jurisdiction over the

subject matter of under 28 USC, Sections 1331 and

1343(a). This Court also has Original Jurisdiction under

28 U. S.C. 1346(a)2) with respect to that portion of the

Complaint which asserts nghts founded upon an express

contract with the

36a

United States, as well as original jurisdiction under 28 U.

s. C 1361 because this Count seeks to compel Defendants

and United States Government employees and an agency

of the United States to perform duties under the contract

owed to Plaintiff. In addition, this Court has Jurisdiction

pursuant to the Declaratory Judgment Act, 28 U.S.C.

2201 et seq.

1B. Venue is proper in this district pursuant to 28

USC 1391(e)(3), as no real estate is involved in this action

and Plaintiff resides in the Eastern District of

Pennsylvania.

THE PARTIES

THE PLAINTIFF-GENERAL BACKGROUND

2. “John Doe" is a code name for Plaintiff, an

adult employee of the Drug Enforcement Administration

(DEA). Plaintiff resides in this District at a location which

will be provided by his undersigned Counsel to the Court

and Counsel for Defendants under seal upon Order of this

Court. Plainnff has, upon advice of Counsel, employed the

code name and undisclosed residence address for his

protection and for the protection and safety of his co-

workers at DEA and for the secret and secure preservation

of classified and sensitive information. Plaintiff's signature

on the Verification of this Complaint has been redacted

for the same reasons.

37a

3. Plaintiff has been employed by the DEA for

more than seven years as a Special Agent. During the

period since 1993, for example, Plaintiff has received

yearly evaluations of his performance which have been

either the highest attainable rank or the next to highest

attainable rank.

4. During his DEA career and since 1993, Plaintiff

has been engaged in highly dangerous and stressful law

enforcement activities involving individuals and groups

dealing in narcotics and other illegal drugs, both in the

United States and in foreign countries, all at tremendous

personal risk.

5. During the 1990s, Plaintiff was selected on the

basis of merit, for the highly prestigious but extremely

dangerous "Snowcap" Organization within DEA. In

preparing for this position, Plaintiff was put through an in-

depth foreign language course to make him fluent in that

language, which is the primary language spoken by the

major drug cartel members in foreign countries and their

associates and employees in the United States. As part of

his Snowcap training, Plaintiff successfully completed the

extraordinary rigorous United States Navy "SEAL" and

United States Army "Ranger" training courses for DEA

personnel.

6. After successfully completing the above

courses, Plaintiff was, from time to time, on short notice

during the 1990s, sent to Foreign Countries with other

Snowcap DEA agents where he and they performed

38a

tremendously dangerous operations to destroy with

explosives drug labs and to assist foreign law enforcement

personnel to apprehend foreign drug "King Pins". During

these trips to such countries, no fewer than five (5)

Snowcap members lost their lives.

7. After 1993, Plaintiff was selected to be a

member of a Top Secret DEA function aimed at

interdicting the flow of drugs into the United States,

herein referred to as "X" Group. Plaintiff has refused to

divulge the location of this facility or what it does to his

Counsel on the grounds of National Security and has

advised them that, when he was assigned by DEA to this

facility, DEA required him to sign a Secrecy Agreement

which prevents him from ever disclosing information

about the functions and/or objectives of this facility,

which Secrecy Agreement is still in force and binding

upon Plaintiff. The "X" Group facility is where Plaintiff

was working when he was placed on administrative leave

in October 1997.

THE DEFENDANTS

8. Defendant Thomas Constantine is

Administrator of the DEA and, subject to the commands

of the Attorney General of the United States and the

President, if any, is ultimately responsible for the

operations and policies of the DEA and its employees.

9. Defendant Gruden is, upon information and

belief, a DEA Special Agent. As set forth in his fax

39a

Exhibit B, he is "Special Agent in Charge of DEA's

Washington Field Division".

10. Defendant Gruden is, upon information and

belief, a career DEA employee who is not independent of

the wishes of DEA's senior management, but is, to the

contrary, entirely subject to the commands of Defendant

Administrator. Notwithstanding his complete lack of

independence, it appears to Plaintiff that Defendant

Gruden is either acting on his own or that Defendant

Gruden has been specially assigned by Defendant

Constantine to rescind the Settlement Agreement and then,

as a self-appointed Deciding Officer, to decide whether to

fire Plaintiff as proposed by DEA in October 15, 1997.

Plaintiff has reason to believe he has every intention of

making such decision at any time on March 11, 1998 as

Defendant Gruden indicates in his fax of 3/5/98, Exhibit

11. As Defendant Gruden states in his fax, Exhibit

B, even though he will "shortly" be returning to his

Special Agent position, "Nevertheless, because I have

made this decision in my capacity as Acting Deputy

Administrator, I will retain jurisdiction over this matter".

Apparently, this Defendant means that he will occupy his

Special Agent position, an active daily duty role as well as

acting as a Deciding Officer regarding Plaintiff.

40a

COUNT |

FOR MONETARY DAMAGES AND FOR EQUITABLE

RELIEF WHICH IS INCIDENT AND COLLATERAL

TO PLAINTIFF'S CLAIM FOR MONEY DAMAGES

12. DEA notified Plaintiff on 10/15/97 that it

proposed to fire him for off duty non-job related conduct

in 1993 (hereinafter the "Firing Proposal") The

notification was made after Plaintiff was interviewed

regarding the 1993 matter in April of 1997 and,

notwithstanding DEA's subsequent stance that the alleged

off-duty conduct was so serious as to justify termination

of Plaintiff, a loyal, brave and experienced Special Agent,

it permitted Plaintiff to remain in his top secret position at

the most sensitive facility which DEA has ("X" Group)

from April to October of 1997 when he was placed on

administrative leave.

13. From October 1997 until February 4, 1998, by

his Counsel, Plaintiff negotiated with Senior lawyers for

DEA, including Charles Walden, Esq., the Associate

Chief Counsel For Administrative Law for DEA. After

lengthy negotiations, the parties agreed to settle the issues

between them, including the Firing Proposal and a draft

decision thereon by the then Deciding Officer, Mark

Greenlee (which decision was withdrawn by DEA and

destroyed by it in accordance with the Settlement

Agreement.). The settlement was effected by the

Settlement Agreement of February 4, 1998 attached hereto

as Exhibit A, with portions redacted to protect Plaintiff's

4la

privacy and DEA security. After the signing of the

Settlement Agreement, the DEA and Plaintiff both acted

in reliance on it. The DEA rescinded the Greenlee draft,

restored Plaintiff to full duty status, placed Plaintiff on

vacation pay and DEA's Chief Of Operations, Marshall,

sent Plaintiff a notice regarding Plaintiff's request for

transfer to DEA's Air Wing, all as set forth and

contemplated by the Settlement Agreement.

14. Nineteen days after the settlement, namely, on

/23/98, Defendant Gruden sent Exhibit B via fax to

Plaintiff's Counsel, Herman T. Bayless, Esq.. which fax

purports to rescind the Settlement Agreement February 4,

1998 and to re-open the entire matter. (Exhibit B is the fax

of Defendant Gruden transmitted February 23, 1998.)

Upon information and belief, Defendant Gruden is not a

lawyer and wrote Exhibit A without advice of Legal

counsel.

15. The Settlement Agreement, Exhibit A,

however, is a binding contract which cannot be

unilaterally rescinded by an Acting Administrator of DEA,

especially when that individual in reality is a full-time

Field Agent of DEA, not a Lawyer and who wrote Exhibit

B without the advice of Counsel. Plaintiff asserts that the

Settlement Agreement must be specifically enforced and

the provisions thereof performed by DEA and seeks an

Order from this Court compelling such performance by

Defendants.

42a

16. Under the Settlement Agreement, Plaintiff

announced he would resign no later than February 28,

1998 to pursue a career in commercial aviation in the

event his request for transfer to DEA's Air Wing was

denied. That request was denied on February 9, 1998.

17. Accordingly, after said denial of transfer,

relying upon the terms of the Settlement Agreement,

Plaintiff paid thousands of dollars for tuition for

specialized training in aeronautics at a school in Florida

for training after his resignation from DEA, which

resignation Plaintiff planned to transmit to DEA on or

prior to February 28, 1998; Plaintiff now has been sternly

warned NOT to resign by Defendant Gruden in his fax

received 2/23/98, Exhibit B, even though Plaintiff was

obligated to resign under the Settlement Agreement no

later than the end of February 1998. Plaintiff submitted his

resignation to DEA pursuant to the Settlement Agreement

by fax on 2/28/98 in strict reliance upon, and in express

compliance with, the Settlement Agreement.

17A. The arbitrary and illegal attempt to rescind

the Settlement Agreement by Defendant Gruden per

Exhibit B will prevent or delay Plaintiff's training and

will, in addition to costing Plaintiff thousands of dollars,

cause Plaintiff irreparable harm, including tremendous

damage to his reputation which can never be erased.

Plaintiff will also suffer irreparable emotional harm, and

already has been badly damaged emotionally by the

purported "recission”, as he believed that the Settlement

43a

Agreement had finally put the nightmare of the phony

DEA firing charges behind him and that he had acted

honorably and sensibly in relying on the Settlement

Agreement to begin training for a new career in

commercial aviation.

17AA. If DEA fires Plaintiff, it will render him

unemployable in the specific area of commercial aviation

he 1s now training for and thus such decision will cost

Plaintiff the thousands of dollars he has paid for such

training. Therefore, Plaintiff will incur that amount as

damages. In addition, Plaintiff's ability to concentrate on

the extremely difficult courses he is now taking for FAA

certification has been greatly harmed and his test scores

are being driven down by the necessity of spending hours

of time conferring with his Counsel regarding this

litigation, which again has caused Plaintiff severe

monetary damages. In addition, Plaintiff has spent and

incurred more than $50,000 in Attorney's fees in

connection with dealing with DEA and this litigation,

which has damaged him financially.

17B. Pursuant to the Settlement Agreement of

2/4/98 and upon advice of Counsel, Plaintiff has

authorized the submission of applications for employment

which list Ms. Fulmore of DEA as the person to whom the

prospective employers he has written as the only person

who may provide information about his career with DEA.

as Plaintiff is precisely required to do by the Settlement

Agreement, Exhibit A. However, as of March 8, 1998,

4a,

Ms. Fulmore- has net responded te, a, single one. of these.

several employment appicavions, all made: t, PROSPRCUNE:

eMmploNcts Up the PRANALE Sector, EXER, though one such,

PROSPRCUNG CMPIOVEF Sent a, faX 1, Mis. FUIMOKS OP, OF;

abut 374/28 that a, PRSivOR Was OPeD but that hex,

\enificavion, of Rainutt's employment histor was needed,

by retum, fax oF the PRS, WOHIM) be. filled by another:

L7C: Plana tf wah be. finished: with, bis, Gals 1,

Florida, on 4/6/28 and desperately needs. t apply fer JRRS,

new te, commence Hight after his apphcaven, @ Put feed on,

us table. Howexer, Plainnftralieges. that DIEA has. ordered)

Ms. Fulmere NOH te respond t any, PION ARR

INQUITARS. FQ), PEOSPRCUNG PRANAE SECLOF CQ MEES, UMA)

further neve and thus, without ap, ability tQ, Yenitix, his.

employment, Plaintaffi will be unable te obtain any,

emploNmenh of any, COMSeQUERRe Without: her TesPERse- as,

ta bis, DEA caret,

WHEREFORE, Maintuft- seeks. punitaxe and agtual)

damages caused) by Defendanis’s acuans described herean,

ands incidental) thereta, an onder, from, Us, Count

compelling Petendants te fully andi umely penonn, tear,

obligavions te, Mantftrunder, the Setdement Agreement,

kxtiiit A anda, Declaratory Judgement that such,

Agreement is, valid and enforceable and fer altomen’s fees.

45,

th. DEFENDANTS’ PROPOSED, EMPLOYMENT

TERMINATION OF PAINTER VIOLA TES

FEDERAL LAW

L&. Plunutt repeats andi realieges. the allegations

hercinAbONe and incorpErates. the same. herein,

}% 5 USC 2302 gonems the manner. by which,

DIE-A musk PROReEE im, Cases. Of PrOPRSEd teEMInAtiONS,

SRCHOM 23020) 1) PrQhibis adverse DEA actions, for

Teonduct which does nek adversely, affect the penlormmance

Of the employee"

20, The off-duty, conduct of Plaintifif'in, )93 has

BRN adNersely affected Plaintiffs, performance. for DEA,

Indeed, Delendanis haxe admitted, via, preniey;

PeHOnmARRe evaluahions of Plnintifit singe. h9% and) fron,

then, 1 andi including, 1997, as. welll as, stalements, by. "Pete

MeConmink', Plnintitits, "hing 2 Supervisor’ (i. @ bess of

Masntitt!s: bess) thak Maintifif has been. ah EXCEPHORAMIY,

CQHFARROHS and elfecuine agent of DEA.

Ofittduny, 1983 conduct changed in, the "traning Propesall'

Gd neh and has. nek affected lainufils, ability, te, pentonm,

bis DEA iQhs Prigy- te, 1987, Plaintiff receixed cach, Year

YOM SUPPER PRHOTRARRS CXalNAHONS, as set forth in, Ms,

TUMORS, lever: fF: future empowers, attached te and made:

Part Of the Seitlement Agreement, Exhibit A. Nercoxer, in,

129), By IRaNing hin, in, DEA's mest SRHSIKE Top, Secret

JRR ak GrOwP "NX" HO: Six @) MERE after, the DEA had:

CORMPICEEG HS IRV ESEBAROR URKO the 199 Conduct and

conmphied all of the facts” regarding i DEA ob unly

CoRCe ded thak PAWS, 9PM CORMMCE FA RO WAY adiveesely

attected bas OR the-JOR peEtOrmaace for DEA.

WHEREFORE, passant t@ 230240) 10), Phauaeatt

FEQUENIS US COME COIR Deicadiaais from Fescundiag Uae

Netthomeak Agecqmenk and RUrthee ISAue am OFRE Yat the

"Whastheblo wes” Conduct Of Pham is Rok gFOMAGS fx

rencuadiag the Seethomeas Agecomeat OF fOr turag Phat

IV. DEFENDANTS’ PROPOSED EMPLOYMENT

VERMINA TION OF PLAINT HEE VIOLATES

FEDERAL LAW AND PLAINTERE'S RIGHT TO DAE

PROCESS OF LAW

2). Piapiitt repeats and realleges, the allegations

DEECUADONG BR MAC ORPORMES Ue SiMe: ROE UA,

22. Unless eajomped By thas Commit, Deteadanis’

PROPONCE LeFRMAROR Ol Piauaiatt wall be decided By.

Detcaduar Grudea, hhowenes, as alleged Yaak DIEA oitignas

In Ok AdRpeadoak Of IDi-A adh wa lack bas qAkRe CaRESE

depcads upon downy whit Das DIEA SUpemOrs Wank.

2% hheace, Mawaatit bas po realstie ChaRRS Of

FECEAN IR & GROIOR Hom, Detoadivas Carudea wba d is

COREE tO the buna Propesad,

2h NRO FCONGE, Ua UE BROKE Mair DIK ely. ex CAR

Detcadwas Grudiva attinms the bug Proposal, Phauaktt

Will) be temnAked Om Wak KOEN day thom the DA,

wheredy he wall waStaAdy be dkpained ot repudakin aad

47,

employability. Since Defendants have refused to, ACE PL

Pramtull's resignation and have ordered Phaiatiif not to

FeNge and OH t look fox other employment watih such

deeision is made, an adverse decision will place Plauntuff

om the streets: with no job and no income and no medical

WSUEARKE.

25. Phainuif'is now and im the future wilh be

cequited te complete apphication forms HOF JOS, a high,

percentage of which will, ua one way oF the other, WAQRaLEe:

Ww Pauntutif was ever fired. Even ifthe Firing, Proposal is

attiemed by: Defradant Gruden and then reversed by: a

Comat OF Other body of competent power, Plaiatitif will

ahwars be requixed "yes" to answer that "Srastet Letter”

QUesHOR: "Were YOu ever fired OF terminated?” and thus

will be forced t@ discuss the waveritied charges levelled

26. To most employers. the fact that a firing is

reveused by & Court Is Insufficient to, overcome the Shug.

A tang isa "ved flag” suggesting that any person, fied

way Well be & "troublemaker". Attached as, Exhibit C is

the Declaration of ArmIngONL am expert in employment,

whe concudes that a persons fired who, thereafter. haigates,

Whe NUHAR IS, WA ek Viewed WeRy Regatively, by: vurtwally,

wy sigaticant employer in moduim American business,

27. Thus, whereas; the Settlement Ageement, in

FERRE Off PRANaKe sector employers (as welll as amy,

PRORPRCHING lan emfoncement OF intelligence employers)

eeaMees that the Information which willl be released about

Plauatitl's career with DEA ts appropnate and protects hum

trom unsubstantiated outrageous sexual charges, a DEA

tirmag would permit DEA to release any saformation of the

negate type. machading wAsubstantiated raw data which

DEA has used ap ats Purag Proposal, which would

wreparably harm Phaytutl

27A. Moreover, a DEA fhmnag would ensure that

Plamtutl would be forced to disclose the unsubstantiated

allegations about ham to every potential employer for the

Fest Of has tate.

28. Phaynutl has a Due process Raght to have the

merits OF the DEA Frag Proposal heard by a Judicial

Ontticer who is completely yndepeadent ofthe DEA or the -

Detiondants a the event thes Coat does not uphold the

Validity of the Settlement Agreement.

WHEREFORE, Plautatl request this court enjorn

Defoadants trom rescuading the Settlement Agreement and

turther sung & Deckaratory Judgment that the alleged

conduct of Phau hs not groamds for feng Phaanntt and

that Phauntatl'S Fatth Amendment and Due Process Rights

have been and wall be violated by resurrecting the Pyruag

Proposal and perentiuag ut to Be decided by Detondant

Cieehon,

COUNTY

PLAIN THEE IS BEING FIRED BY DEA

BUREAUCRATS RECAUSE THEY ERAR Hb HAS

AND WILL "RLOW THE WHISTLE” ABOUT THE

GROSS MISMANAGEMENT OF GROUP X

29. While assigned a Field Office in the United

States, PlauntfY witnessed a local law enforcement officer

who was assigned to work wath Planuff's DEA team,

arteficually stumulate his drug dog to “alert” (4 e. “hit") a

prece of luggage which the officer Suspected contained

drug related proceeds (such as cash) but had no positive

proof thereof, However, when prompted by its handler,

the dog “hit’ the luggage to Support probable cause that

the luggage contained drug related proceeds. The cash was

seed and the officer's police department recetved about

13% of the approximately $260,000 seized,

30. However, a few months later. Plant? and

DEA agent, Sterling, who had been with Plaunuff, learned

the dog was not certified as a canine detection dog and

realized that the “hit” was due to the handler's illegal

PROMPURG.

St. Phauntut's DEA trasming thoroughly

undoctramated hum as to the rghts of Amencan Citizens to

be tee trom unreasonable searches and serures and arrest

Without probable cause. Phauntfl therefore beheved that

the use of an uncertitied dog and the artifical stumulation

of that dog to support the sexzure was blatantly ulegal and,

together with Agent Sterhing, promptly complamed to

thew DEA supervisor Mavromatis, at the Field Office wn

Question, Dat DEA did nothing to rectify: thas thlegal aspect

Ot the SeLZute OF tO FetHREVE the 15% cash gtver to the local

S0a

police. The dog handler 1s the son of the chief of that

pohce department.

32. Plaintiff beheves and therefore avers that his

“whistleblowimg" in the Field Office became known to his

superiors at Group X and, pnor to 1997, ‘the X Group

supervisors targeted Plaintiff for termination on any

pretext as a preemptive stnke to prevent Plainuff from

blowing the whistle on their gross mismanagement of “X“

Group.

33. The ummedhate group of DEA agents with

whom Plaintiff worked at “X" Group is small but each

person is engaged mn some of the most sensitive work in

DEA.

34. To the dismay of Plamnnif, “X“ Group includes

a person who ts senously alcohohe who has been

hospitalized for that condition and who has, on several

occasions, been AWOL from his DEA duties at “X"

Group.

35. The aleohohe told Plawnff that he had

avorded severe punishment because, in essence, he was

“nght" wath the supervisors at “X" Group and that they

told him they would “work out" the matter with Mark

Greenlee. (Greenlee ts a “Deciding Officer" at DEA

headquarters whose assignment ts to decide

recommendations for discrphnary actions and terminations

made by DEA's OPR and ts forbidden from having any

contact with any DEA personnel other than his ow legal

counsel who assist hum mn making decisions on proposals.)

Sla

As it turned out, the reprimand administered by Greenlee

was that the alcoholic received a few days suspension for

the very serious AWOL in the Fall of 1997. The alcoholic

has told Plaintiff that his superiors at "X" Group agreed

with Greenlee to mete out only the few days suspension.

36. A fellow DEA agent at X told Plaintiff that the

alcoholic should have been given a very severe

punishment for going AWOL at the Top Secret "X" Group

facility and that this agent had complained to Plaintiff's

Supervisor at "X" Group regarding the wrist slap and also

vigorously complained to that supervisor that having an

alcoholic at "X" Group endangers the security of "X"

Group and its mission.

37. Also at "X" Group there is a female DEA

agent who another DEA agent at “X" Group told Plaintiff

is sexually promiscuous and has been sexually involved

with at least one DEA senior officer who was at "X"

Group but who is now in charge (i. €., is the “SAC") of

one of DEA's largest Field Offices. Any such sexual

haison, if discovered by the drug cartels, obviously

renders the female at "X" Group and the SAC in serious

jeopardy of being blackmailed or otherwise compromised

by agents of the drug cartels.

38. At X there are also non-governmental

personnel who perform tasks which are highly classified.

However, notwithstanding the tremendous importance of

ensuring that these persons have completely clean

personal histones, the background checks performed

S2a

regarding them are, Plaintiff is informed, very sloppy and

inadequate.

39. One such non-governmental person has

engaged in sexual intercourse with her fellow co-workers

in a conference room at "X" Group, according to a

statement made to Plaintutf by a DEA agent at "X" Group

during the Fall of 1997, Plaintiff beheves the DEA

Managers at "X" Group are aware of this conduct, or

should be aware of it, but have done nothing to stop it.

Again, such on-duty sexual conduct is not only dangerous

to morale but subjects all who participate to blackmail and

similar pressures if the same 1s discovered by the cartel

agents.

40. Not long after joining X Group in th- fall of

1996, Plaintiff became aware of the fact that very sensitive

documents were being stored in the open such as in the

hallway. However, when the Inspection Team of DEA

were scheduled to visit, X Group managers directed that

~ such documents be placed in the evidence safe even

though those documents were not properly of the type

which were to be stored in that safe. Such documents were

removed when the Team left. However, documents tn the

hallway were neghgently placed in a burn box, but those

sensitive documents were negligently forgotten by the

Management at X Group and were, therefore, removed

with the other burn boxes during the scheduled burn and

were thus destroyed by fire. Consequently, extremely

53a

sensitive and important documents were destroyed as a

result of the grosss mismanagement at X Group.

41. As described herein, X Group is a highly

classified and very sensitive operation of DEA. As such.

common sense would dictate that all reasonable steps be

taken to obscure the location of X Group and the identities

of the DEA and other persons who work there. ;

42. However, contrary to elementary common

sense, the building foyer reception has "Drug Enforcement

Administration" on the wall and, further, posts in the

parking lot also have the acronym of Group X on them to

designate and reserve such prime parking places for X

Group DEA Management. This makes it easy for anyone,

especially agents working for the drug cartels, to

determine exactly where X Group is and, obviously, to

identify the vehicles driven by DEA management, from

which the names and residence addresses of such

Managers can be easily determined using auto license

searches. Such self-serving conduct, such as prominently

marking “reserved" parking spaces, while appropriate for

corporate settings, provides means for identi fication of

key DEA personnel at "X" Group and is an extreme

example of gross mismanagement by X Group

Management.

43. In addition, unlike secret facilites of other

agencies which employ enclosed parking lots and garages,

the parking lot at X Group is on street level and it is

possible to photograph or note the vehicle license plate

54a

numbers of all vehicles there by anyone, since anyone can

wander around the lot. In fact, Plaintiff noticed several

individuals in the lot one night in the Spring of 1997 in a

van and another vehicle. Plaintiff asked them what they

were doing. These persons replied in Spanish, which

Plaintiff speaks, with a flimsy excuse and Plaintiff

requested them to depart, which they did. It is quite

possible that those persons were drug cartel agents. In any

event, via well known methods, the license numbers can

be used by agents for the drug cartels to determine the

names and addresses of persons who work at X Group.

Again this is a gross violation of elementary security

practices and 1s another example of the gross

mismanagement by X Group Management.

44. While at X, Plaintiff expressed his extreme

concern to another X Group agent that the DEA alcoholic

agent might endanger the operating efficiency of Group X

and even its security. Moreover, Plaintiff believes that the

DEA female agent could well be seduced by drug dealers

and blackmailed into revealing secret information and,

further, since the non-governmental personnel have not

been properly investigated to work at the secret X facility,

the sexual activity among that group could also lead to

blackmail.

45. Plaintiff thus developed the conclusion that

the DEA 1s and has been guilty of gross mis-management

of "X" Group, particularly because such DEA

management have long known and currently know about

5Sa

(a) the alcoholic and, in fact, arranged with Greenlee to fix

the case by reducing the penalty for being AWOL from a

potential dismissal to a few days, (b) condoned the sexual

affair with the DEA senior employee at "X" Group even

though this rendered both the female and her sexual

partner open to blackmail, (c) were and are negligent to

the extreme in failing to insist that all non-governmental

employees assigned to "X" Group be comprehensively

investigated and (d) knew and permitted the sexual

activities of such non-governmental employees during

working hours at "X" Group, which activities also

subjected any of the participants to blackmail and (e) for

the gross mismanagement otherwise described herein.

46. Unlike most agencies of the United States

Government, DEA has no independent Inspector General

(IG) or similar officer and, in fact, has no IG at all. The

DEA "OPR" staff is simply a group of DEA agents at the

bureaucratic level who are part of the "buddy" system at

DEA and are, Plaintiff believes, good pals of the

Management at "X" Group. In any event, as Plaintiff

became more and more concerned about the activities

described herein as 1996 turned into 1997, he knew of no

senior official at DEA who he felt was not part of the

"buddy system" to whom he could report these obvious

examples of dangerous and gross mismanagement at "X"

Group without fear of being the subject of retaliation with

nothing of substance being done to correct the

mismanagement. Plaintiff was not only embarrassed to be

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at such a sloppily managed---and potentially dangerous

facility---he had "no way out", i. e., he felt he had no

official to whom he could report the gross

mismanagement described when he was hit with an

accusatory interrogation on April 15, 1998.

47. After he was notified of the Firing Proposal

and retained counsel, information relating to the gross

mismanagement at "X" Group was given by one of

Plaintiff's Counsels to the proper office of the Executive

Branch of the Government for Investigation (Office of the

Special Counsel) and to Member(s) of the House of

Representatives and/or the United States Senate with

direct Intelligence Committee assignments and who have

the highest security clearances, for analysis by the

Committee(s) charged with oversight of DEA and "X"

Group.

48. The disclosure of gross mismanagement as

aforesaid was pursuant to the "Whistleblowing" Statute, 5

U. S. C. 2302(b) which encourages disclosures by Federal

employees of gross mismanagement and prohibits the

Federal Agency for whom they work from firing or taking

other adverse personnel action against them for reporting

gross mismanagement or for retaliating for making such

reports.

49. The "Whistleblowing" charges were delivered

to Defendant Constantine by a Member of the United

States House of Representativesm January 1998 and thus,

DEA Management had full knowledge that Plaintiff had

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reported the gross mismanagement at "X" Group, as well

as the earlier incident described at the Field Office

reported by Plaintiff and Special Agent Sterling and had

thus engaged in "Whistleblowing”. Defendant Constantine

Promised to “investigate” the charges and in a few weeks

thereafter, the Settlement Agreement was signed by the

Parties.

49. Plaintiff believes and therefore alleges that

Defendants knew he had and/or would report the

mismanagement at "X" Group in 1997 and thus concocted

the Firing Proposal based upon off-duty lawful activity

which violated no law to pre-empt Plaintiff from filing the

"Whistleblowing” charges.

50. Further, Defendant Gruden's fax, Exhibit A.

which purports to rescind a legally binding contract

between Plaintiff and DEA negotiated by DEA's second

most senior Lawyer and signed by him on behalf of DEA

is Clearly in retaliation for Plaintiff's “Whistleblowing”

actions, including disclosing the obvious gross

mismanagement by DEA at “X" Group to Congress and

OSC.

51. Thus, even after the Settlement Agreement

was signed on February 4, 1997, less than 19 days later,

DEA has once again attempted to retaliate and ruin

Plaintiff's life and career for "Whistleblowing” and has

specially appointed a Field Agent to “rescind” a

Settlement Agreement who has willingly done so even

without any legal guidance. -

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52. Plaintiff strongly believes that Defendant

Gruden, who is still a DEA Special Agent, is part of the

"buddy" system of the "old boys" DEA Management

network which includes the DEA supervisors at "X"

Group and believes such supervisors have told Defendant

Gruden to get rid of---and discredit---Plaintiff because

they are now aware that Plaintiff has informed proper

Member(s) of Congress and Executive Branch Office(s) of

the United States Government of the DEA gross

mismanagement of "X" Group. Defendant Gruden's real

“assignment” is to fire Plaintiff as soon as possible in

direct retaliation for "Whistleblowing" and to discredit

Plaintiff in any proceedings involving "X" Group

mismanagement, which may soon occur before the proper

committee of Congress.

53. Thus, Plaintiff believes Defendant Gruden

will, unless enjoined, do DEA Management's bidding and

terminate Plaintiff per the Firing Proposal regardless of

the truth or the law in order to discredit Plaintiff's

"Whistleblowing" charges and to divert attention from the

gross mismanagement at "X" Group and make the accuser

the accused.

54. DEA's Firing Proposal and Defendant

Gruden's fax, Exhibit A, are in direct violation of the

Federal Whistleblower Statute, 5 USC 2302(b)(8)

including, those provisions to the effect DEA may not

terminate an employee because of "(A) Any disclosure of

information by an employee..... which the employee . .

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. . reasonably believes evidences--- ... . (il) gress

mismanagement .. . an abuse of authority, or > substantial

and specific danger to public . . . safety".

68. Defendants' actions further expressly violate 5

USC 2303(9)(V) which prohibits DEA from retaliating or

threatening to take an adverse personnel action "for

cooperating with or disclosing information . . . .to the

Special Counsel" and also violates 5 USC 2303(b)(11)

which prohibits "taking of any personnel action against an

employee who discloses information to the Congress."

WHEREFORE, Plaintiff requests that this Court

declare Defendants’ attempt to rescind the Settlement

Agreement void in law and a malicious violation of the

"Whistleblowing" Statute, 5 USC 2302(b) and award

Plaintiff Attorneys’ Fees, costs and punitive damages.

Stuart S. Bowie

206 Knoll Road

Wallingford, PA 19086

TEL: 610-565-2252

FAX: 610-565-2125

PA ATTY # 10237

March 8, 1998

Of Counsel:

Herman T. Bayless, Esq.

118 Main Street

Sturbridge, MA 01566

TEL: 508-347-1266

BY FAX: 508-347-1315

Declaration I hereby declare that all statements made

herein of my own knowledge are true and that all

statements made on information and belief are believed to

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be true and further that these statements were made with

the knowledge that willful false statements and the like are

punishable by fine or imprisonment, or both, under section

1001 of Title 18 of the United States Code.

SIGNATURE REDACTED AS FILED

(NAME REDACTED AS FILED]

March 8, 1998 fedcomS

COMPLAINT, EXHIBIT A

DRUG ENFORCEMENT ADMINISTRATION

WASHINGTON, D.C. 20537

IN THE MATTER OF: [John Doe]

SETTLEMENT AGREEMENT

This Settlement Agreement (hereinafter referred to as

" Agreement") is made and entered into this 4th day of February

1998, by and bg24

etween Special Agent [John Doe] and the United States

Department of Justice, Drug Enforcement Administration

(hereinafter referred to as "DEA" or "Agency").

1. Certain issues have arisen between Special Agent

[DOE] and the Drug Enforcement Administration (DEA) which

the parties, intending to be legally bound, have decided to resolve

as follows:

a. The date above is the effective date of this agreement.

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b. On the next business day after the execution of this

agreement, Agent [DOE] will be returned to full duty status and

will be on annual leave until February 28, 1998.

c. Agent [DOE] has heretofore requested that he be

transferred to DEA's Air Wing. DEA agrees that it shall, during

the pernod of February 9, 1998, to February 28, 1998, advise

Agent [DOE] in writing whether his request is granted. In the

event that this request for transfer is denied, Agent [DOE] will

submit his resignation to be effective within 20 calendar days of

being advised of such declination in order to pursue a career in

commercial aviation.

d. After the submission of the resignation referred to in

paragraph (c) above, Agent [DOE] shall be promptly be paid for

any unused leave (including 80 hours of restored annual

leave/furlough) and shall otherwise be given all benefits and

entitlements that other resigning DEA employees receive.

The parties further agree that, in the event Agent [DOE]

resigns pursuant to the provisions of Paragraph I(c):

A. Agent [DOE] hereby withdraws all current and waives

all future actions, appeals, grievances, and complaints now

pending in any forum and seeks their dismissal with prejudice.

This includes all actions now pending, whether as grievances,

EEO complaints, or Freedom of Information Act (hereinafter

referred to as "FOIA") requests within DEA or the Department of

Justice or before any administrative agency or court, including, but

not limited to, the Mert Systems Protection Board, Equal

Employment Opportunity Commission, Office of Special Counsel,

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and United States Districi Court and United States Courts of

Appeal.

B. Agent [DOE] has reviewed and fully understands the

terms and conditions of this Agreement and voluntarily agrees to

the terms and conditions set forth herein. Agent [DOE] has had

ample time to consider these conditions, to seek the advice of an

attorney or other qualified representative, and is aware that certain

administrative remedies are available.

Agent [DOE] will complete a Standard Form (hereinafter

referred to as "SF") 52 and other appropriate paperwork indicating

that he resigned. Such paperwork shall be sent to his Counsel,

Herman T. Bayless, Esquire, for review. Agent [DOE] may

execute the forms at his counsei's office in which case said counsel

shall forward the completed forms to the Deputy Assistant

Administrator for Personnel, Drug Enforcement Administration.

D. The DEA Office of Personnel shall ensure that Agent

{[DOE]'s SF-50 and associated paperwork will state that Agent

[DOE] left the employ of DEA to pursue a career in commercial

aviation. Copies of these documents will be forwarded to counsel

for Agent [DOE] promptly after they are available.

E. DEA will ensure that the personnel records and

associated paperwork maintained or archived by the agency will

not have any remarks or indication which refer to this Agreement

or to any administrative matter, proposals, adverse actions,

acverse decisions or other information derogatory in nature about

Agent [DOE]'s employment as it relates to this matter.

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F. Except as permitted by Paragraph K below, Agent

[DOE]'s Official Personnel File (OPF) will not have any remarks

or indication therein referring to this agreement, administrative

matter, proposals, adverse actions, adverse decisions, or any other

Statement (including coding) derogatory in nature concerning

Agent [DOE]'s employment as it relates to this matter.

G. DEA agrees that, upon execution hereof, it shall

provide Agent [DOE] with a letter directing him to provide the

title and address of the Deputy Assistant Administrator for

Personnel at DEA Headquarters to any party making an

inquiry of Agent [DOE]'s past employment with DEA. A copy

of this letter is Attachment A. DEA agrees the information on

Attachment A is the only information DEA will release to a

private sector employer or private sector prospective employer

and that it will only make such release upon written

authorization of Mr. [DOE].

H. Mr. [DOE] expressly agrees to provide the title and

address of the DEA Deputy Assistant Administrator for Personnel

in Washington, D.C. to any prospective employer making inquiry

of Mr. [DOE}]'s past employment with this agency and to advise

DEA's Deputy Assistant Administrator for Personnel to which

prospective employer he has made application.

I. DEA agrees that it shall maintain the files and materials

related to this matter and its only copy of this agreement in a

sealed envelope in a locked file in the Office of Personnel and

shall do so in a manner to afford the strictest confidence to this

agreement. This envelope will simply have the name of Agent

64a

DOE] on its exterior plus the | :"TO BE OPENED BY THE

DEPUTY ASSISTANT ADMINISTRATOR FOR PERSONNEL

ONLY PRIVATE MATTERS." The envelope shall be

permanently sealed with the signature of the Deputy Assistant

Administrator for Personnel, DEA, and date of that signature

across the seal. The envelope will be of a type which cannot be

opened without irreparable evidence of such entry. This envelope

shall only be opened in accord with the provisions of paragraph K.

A photocopy of the seal of this envelope shall be made and faxed

to Agent [DOE] and his counsel.

J. DEA will not authorize any individual or entity to

provide information regarding Agent [DOE] s employment to any

prospective employers or other persons or entities, other than such

information as may be disseminated by the DEA Deputy Assistant

Administrator for Personnel. DEA will take action to specifically

instruct the former immediate co-workers and supervisory chain of

Agent [DOE] that the underlying matters covered by this

agreement are strictly confidential and may not be discussed or

divulged to anyone and that any inquines they receive for

information concerning Agent [DOE] shall be promptly directed to

the Deputy Assistant Administrator for Personnel.

K. (1) DEA agrees that Agent [DOE]'s OPF or other

appropriate file shall contain a memorandum with the following

information and that, if any written inquiry concerning Mr. [DOE]

is received, the DEA Deputy Assistant Administrator for

Personnel will provide the folloy, ing information, provided Agent

[DOE] authorizes the release of this information in writing:

65a

If any inquiry concerning Mr. [DOE] is received from a

potential employer, which is not a law enforcement agency or

intelligence entity, DEA shall provide only the following

information:

Mr. [DOE] was employed by the Drug Enforcement

Administration from November 4, 1990, to February 28, 1998,

resigned for personal reasons to pursue a Career in

commercial aviation. During the course of his employment

with DEA, he received six annual evaluations: two ratings

were "Fully Successful, three ratings were "Excellent," and

one rating was "Outstanding."

(2) If any inquiry concerning Agent [DOE] is received from a law

enforcement agency or intelligence entity, DEA will not respond

to the inquiry immediately. Instead, as stated in paragraph L

below, DEA will contact Agent [DOE] and his counsel in writing,

and advise Agent [DOE] or his representative, in accord with the

provisions of that paragraph, that a request for information has

been received. DEA shall not provide any information to a

requesting party unless the validity of the request has been

confirmed by Agent [DOE] and his counsel in writing.

(2a) Agent [DOE] was employed by the Drug Enforcement

Administration from November 4, 1990. to February 28, 1998, at

which time he resigned at the conclusion of an internal

investigation but prior to formalizing any decision or action

thereon. Agent [DOE] vigorously denied any wrongdoing and

chose to leave the employ of DEA to pursue a Career in

commercial aviation. During the course of his employment with

66a

DEA, he received six annual evaluations: two ratings were "Fully

Successful, three ratings were "Excellent," and one rating was

"Outstanding."

(2)(b) If, however, the law enforcement agency or intelligence

entity requests relevant information in support of the internal

investigation, the Deputy Assistant Administrator for Personnel or

his/her designee may provide such relevant information pursuant

to paragraph L.

L. DEA agrees that it will provide any information to a

law enforcement agency or intelligence entity ONLY upon: (i)

presentation of a signed release by Agent DOE authorizing such

release of information AND (11) after advising Agent DOE and his

counsel in writing and by certified mail (or other means to ensure

the receipt of delivery) that a request for such information has

been received. Such notice will be dispatched to Agent DOE's

representatives to the addressees listed in Attachment B hereto.

DEA shall not release any information unless confirmation of the

validity of the original release is confirmed by Agent DOE and his

counsel in wniting.

M. This agreement does not constitute and shall not

constitute or be construed as an admission of liability or violation

of any law, regulation, or rule by DEA, nor shall the Agreement

constitute an admission by Agent DOE that he violated any law,

regulation, order or rule.

N. Each party will waive, abandon, and release the other

party, its officers, employees, assigns, heirs, and agents from any

action, suit, claim, grievance, decision, proposal, decision on a

67a

proposal, or demand from this matter and any decisions are hereby

rescinded and canceled with prejudice.

O. (1) This Agreement represents the full and

complete agreement of the parties hereto.

(2) Each party will be responsible for its own

costs and attorney fees arising from this matter.

(3) The terms and provisions of this agreement

shall be executed in good faith.

P. The terms of this Agreement shall not be disclosed to

any third party, except as provided above.

Q. The parties agree that facsimile signatures shall be

valid to execute this agreement.

Dated this 4th day of

February 1998.

/s/ [DOE]

Special Agent

Drug Enforcement Administration

Dated this 4th day of

February 1998.

/s/ HERMAN T. BAYLESS, ESQ.

Counsel for Mr. [DOE]

Dated this 4th day of

February, 1998.

/s/ CHARLES A. WALDEN

Associate Chief Counsel

for Administrative Law

Drug Enforcement Administration

68a

Attachments:

A - Letter from Deputy Assistant Administrator for Personnel to

Mr. [DOE]

B - List of Mr. [DOE]'s representatives to be contacted when a

request for information has been received

ATTACHMENT A

FEB 02 '98 18:49 FR OFC CHIEF COUNSEL 202 307 7950

TO 8508341315 [FAX HEADER SHOWING DOCUMENT

SENT FROM DEA GENERAL COUNSEL’S OFFICE]

U.S. Department of Justice Office of Personnel

Drug Enforcement Administration 700 Army Navy Drive

Washington, DC 20537 Arlington, VA 22202

February 28, 1998 [Letter to John Doe]

Dear Mr. [DOE]

In the event you apply for position in the private sector, you

may provide a copy of this letter to such prospective employer.

Regarding the law enforcement career of Mr. [DOE] with the

Drug Enforcement Administration (DEA), please be advised that

Mr. DOE served as a Special Agent with DEA from November 4,

1490 until he resigned on _ to pursue a career in commercial

aviation.

During the course of his employment with DEA, Mr. Doe

received the following performance evaluations: in 1992, fully

successful; in 1993, fully successful; in 1994, excellent; in 1996,

outstanding; and in 1997, excellent.

69a

The undersigned is the only authorized point of contact to

provide information concerning the past employment of DEA

employees. To ensure the authenticity of such inquiries, these

requests must be in writing and will be verified through the former

employee.

Sincerely,

Retha M. Fulmore

Deputy Assistant Administrator

Office of Personnel

COMPLAINT, EXHIBIT B

U. S. Department of Justice

Drug Enforcement Administration

Office of the Deputy Administrator

FEB 2 0 1998

Herman T. Bayless, Esq.

118 Main Street

Sturbridge, Massachusetts 01566

SUBJECT: Your client [DOE}

Dear Mr. Bayless:

It has recently come to my attention that subordinate

elements in this agency entered a settlement agreement with

your client in connection with the agency's proposal to remove

him from service for six specifications of conduct unbecoming

a Drug Enforcement Administration (DEA) Special Agent.

While the agency's representatives had authority to accept a

resignation in lieu of removal, he did not have the authority to

70a

bind the agency to the conditions placed on the resignation

contained in the agreement. Because the individuals involved

with the settlement agreement lacked authority, the agreement

is not binding on the agency.

In light of the conduct in which your client is alleged to

have engaged, masturbating on several occasions knowing he was

in open view of minor children, this agency cannot agree to limit

the information provided to prospective employers who seek

information about the cause of Mr. [DOE]'s severance from DEA

employment. As a leader in law enforcement, a profession which

pledges to protect the public, DEA cannot agree to be silent when

information about Mr. [DOE]'s conduct may be significant to a

prospective employer. Accordingly, as Acting Deputy

Administrator, I cannot ratify this unauthorized agreement, and it

is hereby rescinded.

I will review the entire file, including your client's written

response to the notice of proposed removal and the notes of his

oral response, and I will serve as the Deciding Official in this

matter. Upon completion of the review, I will advise your client of

my decision on the notice of proposed removal. He should not

submit his resignation as planned unless he intends that the

resignation be unfettered by limitations on disclosures other than

those imposed by the Privacy Act, 5 U.S.C. § 552a.

I will shortly be returning to my post as Special Agent in

Charge of DEA’s Washington Field Division. Nevertheless,

because I have made this decision in my capacity as Acting

71a

Deputy Administrator, I will retain jurisdiction over this matter. If

you have any questions, I can be reached at (202) 305-8120.

Sincerely,

/s/ Peter F. Gruden

Acting Deputy Administrator

By facsimile: (S08) 347-1315

COMPLAINT, EXHIBIT C

DECLARATION OF EDWARD ARMINTROUT

1. My full name is Edward Armintrout and I reside at

1661 Inca Drive, Laramie, WY 82070. I am 57 years of age, a

college graduate and a United States Citizen.

2. I have approximately 30 years experience in the field of

Human Resource Management for a number of large companies,

including the following: Litton Industries, Wells Fargo, Syntex,

McDonnell-Douglas Corporation (a major Defense Contractor)

and Syva Corporation (developer of an important heroin-detection

drug).

3. At the present time, I teach Human Resources

Management in a private school located in Laramie, Wyoming.

4. I consider myself and am considered by my peers, as an

expert in matters relating to hiring and firing of employees for

both sensitive (e. g., matters including National Security,

Corporate Trade Secrets and similar matters) and non-sensitive

positions, especially with hiring and firing practices which are

followed in actual practice by employers.

72a

5. One question which almost always appears in

employment applications used by firms of all sizes and, as far as I

am aware, all firms engaged in sensitive work involving Trade

Secrets or Governmental projects involving classified information,

is "List each of your prior employers since you were 18 and

indicate, for each, your reasons, for leaving. If you left because

you were fired or if you left because you were threatened with

being fired, please explain the circumstances below, including any

court actions and decisions which may have been involved."

6. While the precise language may vary, the above

question is asked by virtually all companies I am familiar with and

certainly Defense Contractors and major other employers, such as

airlines, to whom employee conduct information is considered

essential in the process of determining whether to hire or not.

Moreover, many companies and government agencies conduct in-

person interviews and employ detectives to check the background

of Applicants.

7. 1 can say that, almost without exception, any applicant

for employment who answers Yes to the question in No. 5 or its

equivalent or when a check detects a firing or resignation under

threat of firing (termed a "constructive discharge"), that

information will be viewed very, very negatively by any potential

employer, whether the position is sensitive or not. There are

several reasons for this reaction, including (a) a general reluctance

to hire anyone who has been fired or threatened with being fired,

even if that decision was overturned by a court (b) the applicant is

viewed by the employer as a potential "trouble maker" (c) concern

73a

that the applicant is dishonest or otherwise prone to acting in a

fashion which can harm the employer's reputation.

8. There are other reasons in addition to those in #7.

However, the important point is that being fired or resigning under

threat of being fired, even if overturned by a court or similar

entity, is a major "Red Flag" and, in my experience, makes it

almost impossible for the applicant to secure employment with

major companies, defense contractors, airlines, law enforcement

agencies or with agencies of federal, state or local governments in

any area where security or honesty are important.

9. In other words, such an applicant will be doomed to

jobs of the lowest rank and minimum wage pay, such as the

"flipping hamburgers" type.

10. Finally, it should be kept in mind that a person who is

fired or resigns under threat of firing will have this information _

follow him or her during the rest of his or her life because

computers store such information forever. Therefore, the

individual involved in such a matter carries a lifetime stigma, a

kind of brand on the forehead, which cannot be eradicated.

11. Moreover, if a person's firing is overturned by a court

or administrative agency, that is viewed even more negatively by

most employers because they perceive anyone who is fired as

dishonest or a law breaker and certainly as a "trouble maker" and

the court decision is then viewed as proof that the individual is the

kind of person who will sue his or her employer, and employers

definitely do everything possible to avoid being sued by employes.

In short, court decisions favorable to the actually employee

74a

amplify the harm of the original firing or resignation under threat

of firing.

12. In making this Declaration, I understand that it may be

used in litigation, but I do not know the names of the opposing

parties or the facts involved other than I have been advised that a

Federal Law Enforcement Agent is being threatened with

employment termination based on an alleged personnel manual

violation. Assuming that this is correct information, a terminated

Federal Law Enforcement Agent would have essentially no

prospects of ever being hired for any position of responsibility by

any employer of stature.

DECLARATION

I hereby declare that all statements made herein of my

own knowledge are true and that all statements made on

information and belief are believed to be true and further that these

statements were made with the knowledge that willful false

statements and the like are punishable by fine or imprisonment, or

both, under section 1001 of Title 18 of the United States Code.

/S/ Edward Armintrout

Edward Armintrout

December 20, 1997

armdec

75a

TRO HEARING 3/23/98, TR 10-11 [EXCERPT]

MR. PEASE: The Government's reaction, your Honor,

is that we're not -- we're not standing before this Court

saying that this agreement was signed by a junior DEA lawyer

who didn't have authority to sign it. Our position is a

legal one that this Court can decide without Mr. Bayless'

testimony and that is that no one can bind the Government to an

illegal contract, a contract that is void as against public policy.

And so the chain of events, who said what to who and who signed

what when is not disputed here. What is disputed is that that

contract requires the DEA to be a party to certain

illegal conduct and that's spelled out in the brief and we can

discuss that today.

And so our position is we're not -- we're not saying

that Mr. Bayless didn't have reason to think that the people

he was dealing with were authorized, so we're not disputing

that, so I don't believe there's any reason for the testimony

on that subject.

This Court can and should look at that contract and decide as a

matter of law that it cannot be enforced and that there is no

likelihood of success on the merits.

76a

TRO HEARING 3/23/98, TR 16 [EXCERPT]

This case is not about whether he gees to resign or be fired, this

case is about whether or not the terms of an illegal contract are

going to be enforced against the Government. There's no problem

with the plaintiff resigning. He has -- certainly he can resign. The

question is can he force the DEA to comply with en illegal

contract, that's why we’re here. We’re not here about forcing

money into a bank account. It’s got nothing to do with this case.

This case is about whether or not that contract binds the DEA to

an illegal agreement.

TRO HEARING 3/23/98, TR 36 [EXCERPT]

Bayless — Direct

THE WITNESS: We don't have a copy of Ms. Martin's affidavit

which we felt was essential. We were also denied the right to

interview Ms. Martin or any other witnesses in Ohio, we were

expressly prohibited from doing that by Mr. Greenley whom I

contacted to request the right to go to Ohio. Mr. [DOE] had been

told that criminal charges would be brought against him in very

broad terms and I told Mr. Greenley that we were concerned that

that applied to his agents as attorneys and he told me that that was

in fact the truth.

MR. PEASE: Object, objection.

THE COURT: Sustained, sustained. Motion move to

strike?

MR. PEASE: Move to strike.

77a

THE COURT: So ordered. Totally irresponsive, not responsive to

the question, irrelevant, no foundation, hearsay.

LETTER FROM RESPONDENT GRUDEN, MARCH 12,

1998

U.S. Department of Justice

Drug Enforcement Administration

Washington D.C. 20537

1 2 MAR 1998

Stuart S. Bowie, Esq.

206 Knoll Road

Wallingford, PA 19086

Dear Mr. Bowie

Please be advised that I intend to forestall taking any

action with respect to the pending proposed removal action against

Speciel Agent [DOE] until on or after April 1, 1998. As

previously indicated, you will receive 72 hours advance notice of

any such action.

If you have any questions regarding this matter, please

contact me at (202) 305-8120.

Sincerely,

/s/ Peter F. Gruden

Special Agent in Charge

BY FACSIMILE

610/ S65-2125

cc: Herman Bayless, Esq.

BY FACSIMLE: 508/ 347.1315

AUSA John J. Pease

BY FACSIMILE: 215/ 451-5349

78a

COMMITTEE ON NATIONAL SECURITY

RESEARCH AND DEVELOPMENT

CHAIRMAN

CONGRESS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES

WASHINGTON, DC 20515-3807

January 20, 1998

Mr. Thomas A. Constantine

Administrator

Drug Enforcement Administration

600-700 Army Navy Drive

Arlington, Virginia 22202

RE: Special Agent [REDACTED]

Dear Mr. Constantine:

In reply to your telephone inquiry, Mr. [REDACTED] is

aware of the "letter" to which you refer As [REDACTED]

described it to me, it was written in 1996 to a female, over the age

of consent and suggests a liaison.

[Redacted] flatly disputes what you have been told by

your employees, regarding the interviews of the two people, who

gave affidavits. [Redacted] was, I am informed, sternly warned at

the end of his deposition not to contact these two people, but also,

not to contact any of the folks" in the area, who might have

information

Along the same lines, I am advised that the deciding

officer, Mark Greenlee, expressly told Mr.[REDACTED]'s

counsel, Mr. Bayless, that neither Mr.[REDACTED] nor his

attorneys had any right to contact or interview those people.

79a

I await your explanation of why the proposal to fire

Mr.[REDACTED] does not specify which of the nine broad

categories he is being charged with. I am advised that the case file

clearly shows that the DEA concluded it had no sufficient basis to

assert that any state or federal crimes where committed. The DEA

should concede this to Mr.[REDACTED}]'s attorney and specify

the precise regulation, if any, he is charged with having violated.

In addition the DEA should provide Mr. [REDACTED]'s attorney

with whatever facts it has to support these specific charges.

Not only am I concerned that [REDACTED] is not being

accorded due process, but I am also concerned about the

allegations concerning SOD. [REDACTED] has sent me the

enclosed pertaining to alleged activity at"X" {SOD) and I would

ask that these be investigated on an emergency basis and answers

be provided to me your report.

Finally, I would hope that no adverse action will be taken

regarding [REDACTED] during the investigation of these

matters.

Sincerely,

/s/ CURT WELDON

Member of Congress

80a

DECLARATION

1. On March 27, 1998 I, Carmelo J. LoParo, a Licensed Private

Investigator in the State of Ohio and former FBI Agent, and John

R. Billi, also a Licensed Private Investigator in the State of Ohio

and former FBI Agent, were retained by [REDACTED] to

investigate stateménts allegedly made to DEA Investigators in an

affidavit she allegedly signed in 1997 regarding the off-duty

conduct of [REDACTED] in his rented room in 1993 which

Michelle Martin allegedly observed.

2. On March 30, 1998 at approximately 5:30 PM, Mr. Billi and I

went to the last known address of Michelle Martin at 345

Butternut Lane, Berea, OH in order to determine if Michelle

Martin was still living there and, if so, whether she would agree to

be interviewed about her DEA affidavit. Public records indicate

that her mother, Janet Martin, resides at that address at the present

time.

3. We were met at the door of the residence by a woman

approximately 50 years old who answered "yes" when asked if she

was Mrs. Janet Martin. As soon as we identified ourselves to Mrs.

Martin and explained the purpose of our visit, she stated "] was

called by the FBI a couple of weeks ago and warned that you

people might be coming around here." We asked if she could

recall the names of the "FBI" caller, to which Mrs. Martin advised

that it was the same male "FBI" investigator that interviewed her

and her daughter during the investigation. We asked Mrs. Martin if

she knew the difference between the FB1 and the DEA, and she

shook her head negatively indicating that she did not.

8la

4. Mrs. Martin asked that we leave her and her daughter alone. She

became visibly upset and began to cry. Mrs. Martin asked why this

was "all being brought up again", and we informed her that

[REDACTED] was presently facing discharge from his

employment.

5. Mrs. Martin asked us to leave and please not return or attempt

to interview her daughter in the fixture. We adhered immediately

and politely to her request.

6. We do not know if Michelle Martin was at the residence at the

time of our visit, nor do we know of her present whereabouts.

DECLARATION

I hereby declare that all statements made herein of my own

knowledge are true and that all statements made on information

and belief are believed to be true and further that these statements

were made with the knowledge that willful false statements and

the like are punishable by fine or imprisonment, or both, under

section 1001 of Title 18 of the United States Code and by the laws

of the State of Ohio.

March 31, 1998

/s/ Carmelo J. LoParo

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.