682 F.2d 981 (D.C. Cir. 1982), 81-1919, Borrell v. United States Intern. Communications Agency

Docket Nº:81-1919.
Citation:682 F.2d 981
Party Name:Phyllis F. BORRELL, Appellant, v. UNITED STATES INTERNATIONAL COMMUNICATIONS AGENCY, et al.
Case Date:June 22, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 981

682 F.2d 981 (D.C. Cir. 1982)

Phyllis F. BORRELL, Appellant,

v.

UNITED STATES INTERNATIONAL COMMUNICATIONS AGENCY, et al.

No. 81-1919.

United States Court of Appeals, District of Columbia Circuit

June 22, 1982

Argued April 6, 1982.

Page 982

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 79-03492).

Courts Oulahan, Washington, D. C., with whom Phyllis Diamond, Washington, D. C., was on the brief, for appellant.

Diane M. Sullivan, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed. Royce O. Lamberth, Kenneth M. Raisler and Whitney Adams, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Mark D. Roth, Washington, D. C., with whom Beth S. Slavet, Washington, D. C., were on the brief, for amicus curiae urging reversal.

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Before ROBINSON, Chief Judge, WALD, Circuit Judge, and LARSON, [*] United States Senior District Judge for the District of Minnesota.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This is an appeal from a decision of the district court, dismissing a complaint brought by a former probationary employee of the United States International Communications Agency ("ICA"). Dr. Phyllis F. Borrell, plaintiff-appellant, charged that she was discharged in reprisal for her whistleblowing on official violations of law, waste and abuse of authority. Her claim was based upon Title I, section 101(a) of the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 2302(b)(8)(A), which prohibits an official from taking an adverse personnel action against an employee as a reprisal for:

(A) a 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

(ii) 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 law 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

....

In addition, Borrell alleged that her discharge violated the first and fifth amendments to the Constitution in that it abridged her free speech rights and deprived her of liberty without due process of law. Borrell also asserted claims under the Privacy Act and the Freedom of Information Act ("FOIA"). Her claim under the Privacy Act was that an "accurate, timely, and complete" record of her job performance was not maintained, as required by 5 U.S.C. § 552a(g)(1)(C); her claim under FOIA requested the production of certain documents by the ICA. The district court dismissed all of the claims: the CSRA claim was dismissed for want of jurisdiction; the constitutional claims were denied because the court found that Borrell's discharge was "not tainted by constitutional improprieties" and that Borrell was not deprived of liberty or property; 1 the Privacy Act claim was rejected because the information challenged was neither "disseminated to outside persons nor ... concern(ed) matters outside the scope of her employment"; and the FOIA claim was dismissed because "all of the requested items under FOIA were responsibly and legally responded to" with one exception, which the court found was de minimis. Appellant's Appendix ("A.A.") A-46-50 (memorandum opinion). We uphold the district court's ruling on the CSRA and FOIA claims, but remand because of the inadequacy of the district court's findings on the constitutional and Privacy Act claims.

I. BACKGROUND

Dr. Phyllis F. Borrell was hired by ICA as a probationary employee, GS-12 on April 23, 1979. A.A. C-Plaintiff's Exhibit ("PX") 1. She was assigned to the Projects Branch of the Exhibits Development and Production Division in the Exhibits Service ("Service") of the agency, where she worked for several senior officials. She was, apparently, one of the first outside professionals to work in that Service for some time.

By the summer of 1979, appellant became aware of and started to complain to fellow employees about certain practices in the agency which she believed constituted violations of law and regulations, mismanagement, gross waste of funds and abuse of authority. A.A. A-25. Specifically, she

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complained about allegedly improper use of repeatedly extended purchase order contracts for two vendors working on the premises of ICA, unnecessary and wasteful travel, use of government time by one official for private real estate transactions, and the improper hiring of the spouse of a senior ICA employee. 2 Until she began to complain, there had been no complaints from her superiors about her work performance-indeed, in June she was told that she had an "excellent" probability of continued employment.

From early August until mid-October, appellant worked for Ms. Gail Becker, the only one of four supervisors for whom appellant worked to issue her a less than satisfactory work rating. See A.A. B (Trial Transcript)-Meade 406-07; Starzynski 511-13; Gerran 1015-16. On October 22, 1979, Becker sent a memorandum to Richard Squib, Chief of the Exhibits Development and Project Division, requesting that Borrell be transferred. Government's Appendix ("G.A.") 2-3. Three days later, appellant was informally advised that Squib had decided to recommend her discharge. A.A. B-1405-06. On November 14, 1979, appellant was officially notified of her discharge, effective thirty days thereafter. G.A. 15-16. The reasons provided were:

  1. an inability to adapt to the overall work program in the Exhibits Service, and b) an inability to meet deadlines primarily related to purchase order contracts.

Id. at 15.

On December 19, 1979, Borrell petitioned the Office of Special Counsel ("OSC") of the Merit Systems Protection Board ("MSPB") to investigate her discharge pursuant to 5 U.S.C. § 1206(a), contending that it was in reprisal for whistleblowing-a prohibited personnel practice under 5 U.S.C. § 2302(b) (8). The OSC denied a 5 U.S.C. § 1208 request for a stay of termination; however, the district court, per Parker, J., in response to Borrell's complaint for declaratory and injunctive relief, postponed the effective date of her termination until January 9, 1980. A.A. A-1-10. On January 10, 1980, while Borrell's petition was pending before the OSC, Judge June Green dismissed her complaint. A.A. A-13. Judge Green held that the district court lacked subject matter jurisdiction because appellant had "failed to exhaust the administrative remedies available to her from the MSPB and its Office of Special Counsel." Id. at 15. This court initially dismissed appellant's appeal from that order, but on rehearing vacated its dismissal order and remanded to the district court citing an OSC letter, which stated, in relevant part:

The Civil Service Reform Act of 1978 does not require Federal employees to submit a complaint or allegation to this Office. Whether the Special Counsel

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seeks a stay of a personnel action before the Merit Systems Protection Board is purely discretionary with the Special Counsel, and in any event the employee is not a party to the proceeding. The nature of the inquiry and investigation conducted by the Special Counsel upon receipt of a complaint is also discretionary. Additionally, an employee does not have any appeal rights to the Merit Systems Protection Board, from a decision or determination made by the Office of the Special Counsel. Nor is there any provision for judicial review of a Special Counsel determination.

It should further be noted that if the Special Counsel files a request for an order of corrective action with the Merit Systems Protection Board pursuant to 5 U.S.C. 1206(c)(1)(B), the affected employee is not a party unless the Board permits him to intervene.

Moreover, cases which the Special Counsel has closed are frequently reopened based on new information received from a complainant or a third party. The only statutory time limit imposed on the Special Counsel relates to referral of certain whistleblower allegations to agencies pursuant to 5 U.S.C. 1206(b)(3). Thus, in many instances it would be extremely difficult to determine when the process in this Office is to be regarded as concluded.

Id. at 17-18.

On remand, after a trial before the court, Judge Green dismissed the action. Id. at 45. Meanwhile, the OSC pursued Borrell's allegations and on July 21, 1980 terminated the investigation, finding "nothing to substantiate the allegation ( )" of retaliation for whistleblowing. Id. at 20. After an investigation, the OSC concluded that "Borrell's termination was based on certain aspects of her performance which were determined to be less than satisfactory by her supervisors." 3 The district court's dismissal of Borrell's whistleblowing allegation was based upon its determination that a probationary employee had no implied private right of action under the CSRA to challenge a dismissal in a separately initiated court action. The district court stated that appellant had "no right to judicial review of personnel actions not found by its Special Counsel to involve prohibited personnel actions." Id. at 48. The court also rejected appellant's constitutional claims: on the "substantial factual issue ... as to whether (Borrell's) termination was improperly motivated in retaliation for (her) constitutionally protected exercise of free speech," the court held "that her dismissal was not tainted by unconstitutional improprieties." Id. at 49. The court dismissed the FOIA claim, finding that appellant's requests had been fulfilled. Id. at 50. Finally, the district court rejected the...

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