Harper v. U.S. Dep't of the Interior
| Decision Date | 12 November 2021 |
| Docket Number | Case No.: 1:21-cv-00197-CRK |
| Citation | 571 F.Supp.3d 1147 |
| Parties | David HARPER, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR et al., Defendants. |
| Court | U.S. District Court — District of Idaho |
Randolph Brian Neal, Law Office Randolph B. Neal, Idaho Falls, ID, for Plaintiff.
Peter L. Wucetich, United States Attorney's office, Boise, ID, for Defendants.
Before the Court is defendants United States Department of the Interior's ("Department"), Debra Haaland's, Michael Nedd's and Kevin Graham's (collectively, "Defendants") motion to dismiss plaintiff David Harper's complaint. Mot. to Dismiss Pl.’s Compl., July 30, 2021, ECF No. 7 ("Mot. to Dismiss"). Harper, a Department employee in the Bureau of Land Management ("BLM") and a former BLM law enforcement officer ("LEO"), asserts four claims: (1) violation of his Fifth Amendment right to due process under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ;1 (2) defamation per se; (3) negligent supervision; and (4) negligent training. Compl. ¶¶ 119–49. In support of the four causes of action, Harper alleges that various high-level Department employees conspired to wrongfully suspend and permanently reassign him to a non-LEO position and to deny him due process by taking unauthorized and ultra vires actions to interfere with the initial disciplinary process and Harper's administrative grievance. Id. ¶¶ 120, 127, and 136. Defendants move to dismiss all claims on the grounds that (1) Harper's Bivens claim is preempted by the Civil Service Reform Act of 1978, Pub. L. 95–454, 92 Stat. 1111 (1978), codified in Title 5 of the U.S. Code ("CSRA"); (2) Harper failed to exhaust his administrative remedies, a prerequisite for bringing claims under the Federal Tort Claims Act, Pub. L. 79–601, 60 Stat. 812, 28 U.S.C. § 2671, et seq. ("FTCA"), which permits private parties to bring certain tort claims against the United States and its agencies; (3) the FTCA excludes Harper's tort claims; (4) Harper failed to allege sufficient facts to state any of the tort claims; and (5) the individual defendants are entitled to qualified immunity against Harper's Bivens claim. Memo. in Supp. of Mot. to Dismiss Pl.’s Compl., 1–2, July 30, 2021, ECF No. 7-1 ("Def. Br."). For the reasons that follow, the Court grants in part and denies in part Defendants’ motion to dismiss.
On June 12, 2018, Special Agent ("SA") Shillingford of the Department's Office of the Inspector General ("OIG") interviewed Harper as part of OIG's investigation of sexual harassment allegations against the then Associate District Manager for BLM's Southern Nevada District. Compl. ¶¶ 13, 32. At the time of the interview, Plaintiff worked as a Law Enforcement Ranger in BLM's Twin Falls District. Id. ¶ 13. Neither SA Shillingford nor anyone else at OIG indicated that Harper lacked candor during the interview, and OIG did not investigate Harper in connection with his answers during the interview. Id. ¶¶ 31, 98. Nonetheless, on February 13, 2019, defendant Graham, a BLM Employee Relations National Policy Specialist at the time, sent Tammy Bergbauer, the "proposing official," a draft proposal to suspend Harper for 14 days. Id. ¶ 15. Graham further instructed Bergbauer to adopt the proposal as her own and review the evidence supporting the draft proposal. Id. Several weeks later, Graham emailed Robert Casias, who had replaced Bergbauer as the proposing official, an updated proposal to remove Harper. Id. ¶ 16. Graham emailed Casias on March 25, 2019, asking Casias to "adopt this proposal as your own." Id. ¶ 17.
Graham further stated in an email to Mary Huber-Thompson, a BLM Human Relations Specialist and Labor Relations/Assistant Ethics Counselor for the BLM Idaho State Office, that the proposed removal had been "taken over by the BLM front office." Id. ¶¶ 18–19; see also Admin. Inquiry David Harper Grievance Prelim. Report, Attach. 2, Aug. 30, 2019, ECF Nos. 19-3 and 19-4 ("Hedrick Report"). Two days later, Casias issued a document entitled "Advanced Written Notice of Proposed Removal" (the "Proposal"), which proposed that Harper be removed based on his purported lack of candor during the OIG interview with SA Shillingford. Compl. ¶¶ 22, 30. None of Harper's direct managers or supervisors were involved in drafting the Proposal. Id. ¶ 23. Harper alleges that defendant Nedd directed the Proposal because Graham stated that William Woody, the director of BLM's Office of Law Enforcement and Security at the time, was not involved in drafting the Proposal, and the only two officials superior to Woody were Nedd and William Pendley, the Deputy Director of Policy and Programs. Id. ¶¶ 18–19, 25–27.
Harper, through his attorney, submitted a written response to the Proposal ("Response to Proposal"), id. ¶¶ 32–33, 43–50, and, on May 2, 2019, Harper and his attorney participated in a telephonic hearing with Graham and Barbara Eggers, the deciding official. Id. ¶¶ 34–40. Harper alleges that he was told he would have one hour to present his defense; however, Harper's attorney and Graham argued for approximately 20 minutes after Graham stated that Harper's attorney would not be permitted to speak during the hearing. Id. ¶¶ 35, 37–38. Thus, Harper's oral response to the Proposal was limited to approximately 30 minutes. Id. ¶ 39. On May 21, 2019, Eggers issued her decision (the "Eggers Decision"), in which she found Harper lacked candor during his interview with SA Shillingford, suspended Harper for 14 days without pay, and permanently reassigned him to a non-law-enforcement position. Id. ¶¶ 41–42.
The next day, Harper received a letter stating that he was being reassigned to a non-law-enforcement position and his annual salary would decrease by approximately $2,000 (the "First Reassignment Letter"). Id. ¶¶ 51–52. The First Reassignment Letter also stated that Harper could appeal the Eggers Decision to the Merit Systems Protection Board ("MSPB"). Id. ¶ 51. However, on June 5, 2019, Harper received a second letter indicating that he was receiving a raise, not a pay cut, and did not mention any right to appeal the Eggers Decision to the MSPB ("Second Reassignment Letter"). Id. ¶¶ 53–54. Defendant Graham issued the two reassignment letters. Id. ¶ 57.
The Second Reassignment Letter notwithstanding, Harper appealed the Eggers Decision to the MSPB, but the MSPB dismissed his appeal on the grounds that it lacked jurisdiction over his claim. Id. ¶ 56. After the MSPB denied his appeal, Harper filed an administrative grievance with the BLM Idaho State Office in a further attempt to appeal the Eggers Decision (the "Grievance"). Id. ¶ 58. On July 17, 2019, BLM Idaho State Director John Ruhs, the deciding official for the Grievance, see id. ¶¶ 59, 65, and 105, appointed Howard Hedrick to investigate the Grievance. Id. ¶60. Hedrick investigated the Grievance and, on August 30, 2019, issued a preliminary report finding that there was no credible evidence to sustain the charge of lack of candor against Harper and that the actions of the BLM officials who initiated and conducted the investigation into Harper resulting in the Proposal and the Decision were "completely lacking in ethical behavior and morally wrong." Id. ¶¶ 61–63; see also Hedrick Report. However, approximately two weeks later, Ruhs met with Nedd in Washington, D.C. Compl. ¶ 64. On September 17, 2019, Nedd issued a memorandum to Ruhs directing Ruhs and Hedrick to stop all action related to the Grievance and appointed himself as the new deciding official in place of Ruhs. Id. ¶¶ 65–67. Harper alleges that Ruhs stated that prior to Nedd's self-appointment as deciding official over the Grievance, Ruhs was going to overturn the Eggers Decision based on the Hedrick Report. Id. ¶¶ 104–05.
After Nedd replaced Ruhs as the deciding official for the Grievance, Harper requested a copy of the Hedrick Report, but alleges that he was told he had to request it pursuant to the Freedom of Information Act ("FOIA"). Id. ¶ 72. Harper made a FOIA request for the Hedrick Report on October 2, 2019 but did not receive any documents related to the investigation of his Grievance until April 2020, after he hired an attorney and filed a FOIA lawsuit to obtain the documents that BLM had admitted to possessing but refused to turn over. Id. ¶¶ 73, 80–84. Nevertheless, Nedd's Grievance investigation proceeded, and, on October 29, 2019, Nedd provided Harper with 30 minutes to make an oral presentation to Nedd. Id. ¶ 74. On November 19, 2019, Nedd issued his decision denying Harper's Grievance (the "Grievance Decision"). Id. ¶¶ 75–79. The Grievance Decision did not mention the Hedrick Report. Id. ¶ 76. The Grievance Decision stated that Harper provided no evidence to contradict the findings of the Eggers Decision and that the Grievance Decision was final and not appealable. Id. ¶¶ 76, 78. However, the Grievance Decision stated that Harper was eligible to apply for future law enforcement job openings. Id. ¶ 79.
After receiving the Grievance investigation documents in April 2020, Harper attempted to file an appeal of the Grievance Decision addressed to the Deputy Secretary of the Interior and other Department human resources officials (the "DOI Appeal"). Id. ¶ 107. The DOI Appeal was denied on September 14, 2020. Id. ¶ 108. The Department's Director of the Office of Human Capital and Chief Human Capital Officer, Jennifer Ackerman, stated that the BLM's administrative grievance procedures "do[ ] not permit further appeal of or complaint on Step 2 administrative grievance decisions." See Decl. in Supp. of Opp'n to Defs.’ Mot. to Dismiss, Sept. 17, 2021, ECF No. 19-1 ("Harper Decl."), Ex. 6, 124–25, ECF No. 19-5 ("DOI Response to Appeal"). The DOI Response to Appeal also stated, without further explanation, that Ackerman found that BLM had followed the appropriate procedures in...
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