Klaskala v. US Dept. of Health and Human Services

• Citation: 889 F. Supp. 480
• Decision Date: 12 June 1995
• Docket Number: No. 94-0545-CIV.,94-0545-CIV.
• Parties: Wieslaw KLASKALA, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Southern District of Florida

889 F. Supp. 480

Wieslaw KLASKALA, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

No. 94-0545-CIV.

United States District Court, S.D. Florida.

June 12, 1995.

COPYRIGHT MATERIAL OMITTED

William Murphy, Miami, FL, for plaintiff.

Carole M. Fernandez, Asst. U.S. Atty., Miami, FL, for defendant.

ORDER

GRAHAM, District Judge.

THIS CAUSE came before the Court upon Defendant's Motion to Dismiss (DE 9).

THE COURT has considered the Motion, response and the pertinent portions of the record, and being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED that the Motion is DENIED IN PART AND GRANTED IN PART.

STATEMENT OF FACTS

Plaintiff Wieslaw Klaskala ("Klaskala") is a citizen residing in Florida.

Defendant U.S. Department of Health and Human Services ("HHS") is an Executive Department of the United States government. Within the HHS is the Public Health Service ("PHS") which operates the Center for Disease Control ("CDC") which in turn operates the Epidemic Intelligence Service ("EIS").

As stated in the complaint, this dispute arises from Klaskala's application and subsequent appointment to the EIS in Georgia.

Klaskala brought this action against the HHS for the following counts: (1) Denial of Due Process pursuant to the Fifth Amendment of the United States Constitution; (2) Violations of the Civil Service Reform Act; (3) Estoppel; (4) Breach of Contract; and (5) Violations of the Freedom of Information Act ("FOIA").

In connection with his application for a position with EIS, Klaskala completed an SF-171 Form and attended interviews at his own expense in Atlanta, Georgia.

By a letter dated December 9, 1991, the EIS Selection Committee offered Klaskala a position in Atlanta. The letter¹ states in pertinent part:

We are delighted to confirm that you have been selected for a position in the Epidemic Intelligence Service (EIS) program, beginning July 1992. The EIS Selection Committee joins us in congratulating you.

* * * * * *

We will be looking forward to welcoming you personally next April. In the meantime, we look forward to receiving written confirmation of your acceptance of an EIS position within 10 days of receipt of this letter.

* * * * * *

This letter was signed by Polly A. March-banks, Ph.D., the Chief of the EIS Program and Willard Cates, Jr., M.D., M.P.H., Director of the Division of Training for the Epidemiology Program Office.

Klaskala duly accepted this appointment in a letter also dated December 9, 1991.

From December 9, 1991 to May 19, 1992, EIS contacted Klaskala on several occasions to begin integrating him into its activities. These contacts included the following:

1. An invitation from CDC to attend the Atlanta, Georgia orientation program in April 1992.

2. A letter from Melissa Adams, M.P.H., Ph. D., Assistant Director for the Science Division of Reproductive Health to Klaskala, congratulating him on his appointment to EIS.

3. A memorandum dated April 2, 1992 from Assistant Director for Science, the EPO Chief, the EIS Program, the DT and the EPO to Klaskala regarding the process for incoming EIS officers to obtain EIS assignments.

4. Klaskala's assignment on April 12, 1992, to the National Center for Preventative Services, Division of STD/HIV Prevention, Behavioral Studies Section ("STD/HIV Prevention Division") by the EIS Director.

5. Klaskala's introduction on April 13, 1992, to his Supervisor, Dr. Cole, and the staff at the STD/HIV Prevention Division.

6. Written instructions dated April 13, 1992, by an HHS shipping officer to Klaskala to inform him how to arrange for HHS to ship his possessions to Atlanta.

In addition, Klaskala put his possessions in storage and made arrangements to move from Florida to Atlanta, Georgia to begin his appointment in July.

In or about April 1992, Klaskala also informed Dr. Cole that he had made arrangements to move to Georgia and to leave his then current position with the State of Florida Health Office.

Klaskala also informed Dr. Cole that he would be travelling in Eastern Europe before commencing his appointment in July and would do some investigative work related to the HHS program while he was there.

By a letter dated May 19, 1992, CDC withdrew Klaskala's appointment to EIS. CDC's letter stated in pertinent part:

We are withdrawing our offer of a 2-year appointment in the Epidemic Intelligence Service (EIS) Program at the Centers for Disease Control (CDC) beginning in July 1992.

This action is necessary since we have been unable to verify your credentials to our satisfaction. Also, we have received information which indicates a history of previous arrests for misdemeanor and felony charges that were not shown on your SF-171 Form.

This letter was signed by Robert G. Pajer, Acting Director for the Personnel Management Office.

The withdrawal appears to be the result of a background check which revealed eight arrests for misdemeanors and felonies in Dade County from 1986-1991 and one arrest in Alachua County in 1980.

Klaskala asserted that he completed the SF-171 Form accurately because he was never convicted for any crime, felony or misdemeanor. Thus, although not entirely clear from the record, it appears that Klaskala's position with regard to the background check and the SF-171 Form is that Klaskala was never convicted, but may have been arrested as indicated in the background reports.

Klaskala asserts that the withdrawal was wrongful because his credentials were legitimate and his SF-171 Form was completed accurately. Therefore, Klaskala commenced this action.

The government has moved to dismiss Klaskala's complaint.

DISCUSSION

I. Standards for Motions to Dismiss

Motions to dismiss for failure to state a claim are generally viewed with disfavor and rarely granted. Eaton v. Coal Par of West Virginia, Inc., 580 F.Supp. 572, 576 (S.D.Fla.1984). It is well-settled that a "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In ruling on a motion to dismiss, a federal court must view the complaint in the light most favorable to the plaintiff and take its allegations as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).

II. Count II: Violations of Civil Service Reform Act

Although listed as Count II in his complaint, the Court will first address Klaskala's allegations that he is entitled to relief under the Civil Service Reform Act of 1978 ("CSRA") (codified in various sections throughout 5 U.S.C.). The CSRA was enacted to govern federal civil service employment disputes. Broughton v. Courtney, 861 F.2d 639, 641-42 (11th Cir.1988).

However, in order to qualify for the protections of the CSRA, the individual seeking relief must be a federal employee. National Treasury Employees Union v. Reagan, 663 F.2d 239, 246 (D.D.C.1981).

The Act defines federal employees as follows:

§ 2105. Employee

(a) For the purpose of this title, "employee," except as otherwise provided by this section or when specifically modified², means an officer and an individual who is —

(1) appointed in the civil service by one of the following acting in an official capacity —

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive Act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

5 U.S.C. § 2105.

Under this definition, Klaskala does not meet the definition of employee for the purposes of CSRA. For the purposes of this motion, the parties agree that Klaskala was appointed and that his appointment was to begin in July 1992. Both parties also agree that the appointment was withdrawn on or about May 19, 1991, which was approximately 1½ months before Klaskala was to enter onto duty. Since he had not commenced service under his appointment, Klaskala does not meet the definition of employee because he has not fulfilled the requirements of § 2105(a)(2) and (3). Therefore, Klaskala is not entitled to relief under the CSRA.³See, National Treasury, 663 F.2d at 246. Therefore, Count II of Klaskala's complaint is dismissed.⁴

III. Count IV: Breach of Contract

The Court now turns to Count IV of Klaskala's complaint which is for breach of contract. This claim must fail because government employees serve by appointment, rather than by contract. United States v. Hopkins, 427 U.S. 123, 126, 96 S.Ct. 2508, 2511, 49 L.Ed.2d 361, 364-65 (1976); Kizas v. Webster, 707 F.2d 524, 535 (D.D.C.1983), cert. den., 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984); Shaw v. United States, 226 Ct.Cl. 240, 640 F.2d 1254, 1260 (1981); House v. United States, 14 Cl.Ct. 32, 36 (1987) ("Barring some explicit agreement to the contrary entered into by a federal officer having authority to contract, federal personnel do not have contractual relationships with the Government."). Klaskala has not alleged any facts that take his position out of the general rule. In fact, throughout his complaint, Klaskala has requested relief "compelling the Defendant to reinstate Plaintiff to his two-year appointment." The majority of the letters attached to the complaint also refer to Klaskala's position as an appointment. As a result, contract principles are not applicable in determining Klaskala's rights as a federal appointee. See Kizas, 707 F.2d at 535; Shaw, 640 F.2d at 1260; House, 14 Cl.Ct. at 36. Rather, the rule governing federal appointees applies. As stated above,...