Jefferson v. Harris

• Decision Date: 21 March 2016
• Docket Number: Civil Action No. 14-1247 (JEB)
• Citation: 170 F.Supp.3d 194
• Parties: Raymond M. Jefferson, Plaintiff, v. Seth D. Harris, et al., Defendants.
• Court: U.S. District Court — District of Columbia

170 F.Supp.3d 194

Raymond M. Jefferson, Plaintiff,

v.Seth D. Harris, et al., Defendants.

Civil Action No. 14-1247 (JEB)

United States District Court, District of Columbia.

Signed March 21, 2016

Peter C. Choharis, Choharis Law Group, PLLC, Washington, DC, for Plaintiff.

Peter C. Pfaffenroth, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG United States District Judge

“[F]or the citizen-critic of government[, i]t is as much his duty to criticize as it is the official's duty to administer.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 282, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). But what obtains when the roles are mixed and it is the official's duty to play critic? For Plaintiff Raymond Jefferson, a former high-level appointee in the Department of Labor who believes himself the victim of an Inspector General's defamatory campaign, the governmental critic must be held to account. This is particularly so when, as alleged here, the critic's accusations were false and misleading, and were widely repeated in the national press.

Because Plaintiff knows he cannot sue the government directly in tort for libel—as such a claim would be statutorily barred—he has concocted a number of other causes of action grounded in the Constitution, the Administrative Procedure Act, and the Inspector General Act, all of which he now brings against the government and several officials. While he may have reason to feel knocked down and mistreated, he has, for the most part, failed to identify a colorable legal theory to support his suit. The Court will thus grant the bulk of Defendants' Motion to Dismiss, leaving only Plaintiff's due-process claim against the government to proceed.

I. Background

All facts are taken from Plaintiff's Amended Complaint—which the Court must presume to be true at this stage of the litigation—as well as documents referenced therein, such as official government reports and matters of public record. The facts of this case chiefly cover a period of time in which Plaintiff served as Assistant Secretary of Labor for Veterans' Employment and Training Services (VETS), a “senior political” position he was appointed to fill by President Obama in 2009. See Am. Compl., ¶¶ 6, 17, 25; Pres. Nomination No. 527, 111th Congress (2009-2010) (confirming Jefferson by voice vote on Aug. 7, 2009).

His central grievance concerns an investigation and resulting Report by the Department of Labor's Office of Inspector General (DOL-OIG), which “accused Jefferson ... of legal and ethical violations” for allegedly pressuring a subordinate to steer contracts to three individuals “in violation of federal procurement rules,” such as competitive-bidding requirements. See Am. Compl., ¶¶ 24, 51. Diving immediately into the details of that investigation and the Report, however, would be to start in medias res ; a few background facts are important to give context to the dispute. The Court has arranged them in chronological order as best it can—no small feat given the Amended Complaint's Faulknerian sense of time and consistent failure to assign even approximate dates to critical facts.

A. Jefferson's Work as Assistant Secretary

As Jefferson sees it, when he joined DOL in mid-2009, he inherited an office rife with “operational and management problems,” which extended throughout VETS' organizational chart, including its nerve center for contract and procurement actions—the Office of Agency Management and Budget (OAMB). Id., ¶ 17. At the time, VETS' OAMB was led by Director Paul Briggs and Deputy Director Angela Freeman. Id.“In order to improve performance at VETS,” Plaintiff believed it would be prudent to hire a handful of “renowned management consultants and experts in leadership” from outside the government—namely, Stewart Liff, Ron Kaufman, and Mark Tribus. Id., ¶ 18. His objective was to have them carry out “organizational and program assessments, management reviews, and comprehensive training for all staff in order to increase performance, efficiency, and effectiveness.” Id.

To accomplish this, he directed two of his subordinates—Deputy Assistant Secretary for VETS John McWilliam and Chief of Staff Amit Magdieli—to arrange for their hiring. Id. He told them to “act ‘legally, ethically, but also quickly.’ ” Id., ¶ 19. Those two then turned to Freeman and Briggs in OAMB for help with “all contracting methods and decisions regarding hiring Liff and Kaufman.” Id. According to Plaintiff, his involvement in the hiring process for the most part ended there; the bulk of the critical hiring actions were executed by others. See id., ¶ 25. In particular, he alleges that McWilliam and Magdieli oversaw the implementation of Jefferson's simple directive, and that Freeman and Briggs—in consultation with procurement officials in Labor's centralized procurement office, the Office of the Assistant Secretary for Administration and Management (OASAM)—took responsibility for the nuts and bolts of getting the consultants hired. See id., ¶¶ 20-21, 25-27.

Having thus set the stage, one would expect Plaintiff to turn next to the actual contracts that were the focus of the OIG's investigation. Unfortunately, he never clearly articulates how these three individuals came to be hired, despite titling a section of his Amended Complaint “The Three Contracts At Issue.” Am. Compl. at 8. Notwithstanding the stream-of-consciousness narrative that ensues, the Court has attempted to piece together what happened by looking at the Complaint alongside the DOL-OIG Report and its Cover Memorandum.

As far as the Court can tell, the three consultants were “hired” in several different ways. Liff appears to have principally been hired via subcontracts with companies that had existing contracts with either DOL or the Office of Personnel Management. See Mot., Exh. A (DOL-OIG Report No. 14-1301-0002 IA) (“DOL-OIG Report”) at 25-26; id. at 5-10; Am. Compl., ¶ 25. Tribus appears to have been hired directly by DOL, although it does not seem that he was ever given a “contract” as that term is normally understood. See Am. Compl, ¶ 27 (“Jefferson obtained written, pre-approval from DOL's legal counsel ... for hiring and paying Tribus ....”). Instead, DOL arranged for him to be paid via credit card. See DOL-OIG Rep. at 40-50 (describing paying Tribus by credit card on two occasions). Finally, Kauffman was not ever “hired” at all. On the contrary, according to the Report, the problem with Kaufman was that DOL received his services for free, even though DOL's prime contractor ended up having to improperly foot the bill. See DOL-OIG Rep. at 38 (arguing that DOL “improper[ly] accept[ed]” services from Kaufman for free).

Whatever form they ultimately took, these personnel actions formed the basis of what came next—viz. , DOL-OIG's investigation and Report. See Am. Compl., ¶¶ 24, 29-51 (complaining of the “Report's False Legal And Factual Conclusions”).

B. The DOL-OIG Investigation

According to Jefferson, the investigation was poisoned from the get go, since he believes it originated with two of his disgruntled charges in VETS' procurement and budget office (OAMB): Freeman and Briggs. See id., ¶ 29. The bad blood started, apparently, “after Jefferson and McWilliam disciplined Briggs and Freeman for poor performance and for making false statements.” Id., ¶ 28. Thereafter, Freeman resigned from the agency, “[b]ut she did not go quietly.” Id. She “filed three bogus Equal Employment Opportunity ... claims against them that were quickly dismissed,” and then proceeded to file “the OIG complaint at issue here.” Id., ¶ 29; see DOL-OIG Rep. at 4-5 (“Freeman said that she sent the anonymous complaint dated August 3, 2010, to the OIG hotline and added that she no longer wished to remain anonymous.”). Briggs also “alleged contractual improprieties” after being disciplined by Jefferson. See Am. Compl., ¶ 29; see DOL-OIG Rep. at 1 (“A separate complaint submitted by Fergus Paul Briggs ..., which referenced the same allegations [as Freeman's complaint] was received by the OIG on September 21, 2010.”).

The investigation began shortly thereafter under the auspices of Acting Inspector General Daniel Petrole. See DOL-OIG Rep. at 4. About a year later, and after having interviewed 22 individuals, Petrole issued the final investigative Report, which addressed five distinct allegations of misconduct. Id. at 1-4. (The Report indicates that there are only four allegations, despite rendering five different conclusions. Id.) The investigation substantiated three of the allegations, partially substantiated one, and concluded that one was unsubstantiated:

Id. at 1-2.

Petrole attached to the Report a Cover Memorandum directed to Seth Harris, then-Deputy Secretary of Labor, that summarized the findings. See Mot., Exh. B (Cover Memorandum). The memo stated that “[t]he report describes a pattern of conduct by Assistant Secretary Jefferson, and consequently by other senior VETS officials, which reflects a consistent disregard of federal procurement rules and regulations, federal ethics principles, and the proper stewardship of appropriated dollars.” Id. at 1. The Memorandum clarified that although Jefferson himself did not necessarily violate procurement rules directly, it was his “insistence upon retaining the services of these [three] individuals [that] resulted in procurement violations by officials in both OASAM and VETS.” Id. at 2.

Plaintiff maintains that the entire investigation—and thus the resulting Report—was riddled with flaws. See Am. Compl., ¶¶ 29-50. Among his grievances are that:

• OIG investigators failed to acknowledge that DOL procurement personnel were the ones responsible for “suggest[ing] and execut[ing]” many of the problematic contracting decisions, id., ¶ 30;

• The Report cites no “objective evidence” that he or his subordinate appointees (McWilliam and Magdieli) “pressur[ed] Freeman or anyone else to do anything” improper vis-à -vis the contracts at issue, id.;

• It was not Jefferson's legal

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