# Petition for Writ of Certiorari — Doe v. Marshall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0266%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 528 U.S. 1038 ## Text - Petitioner V. 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 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 v 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 vi 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 28 4, 15, 26 28 15 17, 21, 30 18 17 | : l IN THE SUPREME COURT OF THE UNITED STATES October Term 1999 JOHN DOE, Petitioner v. 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 4 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 aa 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.” A PRE aie ral ta om He vad fn Sn PERS I i EEE PIE LL 0 0 WEG OR eS tl RADA BO GP PA Re Binns SEA 10 08ST 5,6 (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. 10 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 12 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 patitaar, N Ee be eee. tas atk aa ph cae Sp Melee Ra SORE Ke {pb cielo aie!) CHO Pela IR EDN TL Sadie eis aN ated natant en Siri: 13 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) 14 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 15 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. 16 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) 17 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, 18 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 19 * 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 21 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". 22 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 23 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 24 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 25 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 26 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 27 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. 28 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. 29 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 30 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 la 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 2a 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: I. 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 (' i '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. 4a 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 Sa 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 6a 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, a 7a 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). 8a 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 9a 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 wo 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); (C) cooperating with or disclosing information to the 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. (c) The head of each agency shall be responsible for the 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] (c) In any case filed in the United States Court of Appeals for the 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 D. 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: tu 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 Aa 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 4% 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 a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0266%3A1. Public record. Not legal advice.