Lawrence v. Acree

• Decision Date: 28 September 1981
• Docket Number: No. 79-2532,79-2532
• Citation: 665 F.2d 1319,215 U.S.App.D.C. 16
• Parties: Paul LAWRENCE, Appellant, v. Vernon D. ACREE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1319

665 F.2d 1319

215 U.S.App.D.C. 16

Paul LAWRENCE, Appellant, v. Vernon D. ACREE, et al.

No. 79-2532.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 2, 1981.

Decided Sept. 28, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 78-1794).

Keith Poole, Atlanta, Ga., for appellant, Robert M. Tobias, Gen. Counsel, and William E. Persina, Associate Gen. Counsel, National Treasury Employees Union, Washington, D. C., were on the brief, for appellant.

John Aisenbrey, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, John R. Fisher and R. Craig Lawrence, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.

Before MacKINNON and WALD, Circuit Judges, and GREENE, ^* United States District Judge for the District of Columbia.

Opinion PER CURIAM.

Opinion concurring in the result filed by Circuit Judge WALD.

PER CURIAM:

Paul Lawrence, a former Regional Commissioner of the United States Customs Service, appeals the dismissal of his 42 cause Plaintiff to retire from, resign, or otherwise relinquish his position as Regional Commissioner, so that Defendants, in particular Defendant (Commissioner) Acree, could fill said position with an individual of their own choosing. (Joint Appendix (App.) at 7)

U.S.C. § 1985(1) complaint, which was brought against four defendants-the Commissioner of the Customs Service, the Deputy Commissioner, an assistant commissioner for internal affairs, and a former regional director for internal affairs, naming these persons in their individual and official capacities. The complaint sought damages resulting from the defendants' alleged unlawful conspiracy to

The alleged conspiracy did not succeed in its object of forcing Lawrence to resign, but he alleges it did cause him "humiliation, contempt, mental anguish, and emotional and physical distress." App. at 10. The district court dismissed the complaint on the ground that the only overt act occurring within the statutory limitation period, an allegedly adverse performance evaluation, was cognizable only under the performance Rating Act. We affirm the dismissal of the complaint, but on the basis of the defendants' official immunity.

I. BACKGROUND

The complaint alleges that a conspiracy to oust Lawrence from his position as Regional Commissioner began with the appointment of Commissioner Acree in 1973 and lasted until Lawrence's voluntary retirement in December 1976. According to the complaint and supplemental exhibits, the defendants committed a number of overt acts in furtherance of the alleged conspiracy. These allegations are set forth in the margin. ¹

Lawrence resigned in December 1976 but the present complaint was not filed until September 22, 1978. The district court held that the overt acts Lawrence alleged could state a claim upon which relief could be granted under 42 U.S.C. § 1985(1), ² and that the controlling limitation period was three Even if defendants' actions could otherwise give rise to a claim under Section 1985(1), the Court declines to supplement the express remedy supplied by the Performance Rating Act, 5 U.S.C. §§ 4301 et seq. for correction of allegedly inaccurate or unfair personnel evaluations. Accordingly, this action must be dismissed for failure to state a claim upon which relief can be granted.

years. ³ The court held, however, that only damage resulting from specific actions is compensable under 42 U.S.C. § 1985(1); "the conspiracy itself is not actionable." App. at 74. The court then noted that the only overt act falling within three years of suit was the performance evaluation. The court concluded:

App. at 75. The court found it unnecessary to consider defendants' defense of official immunity, although both sides had briefed the issue. Id.

II. ANALYSIS

Although we conclude, with the district court, that Lawrence's action should be dismissed, we are reluctant to affirm the dismissal on the basis of the "exclusive remedy" rationale stated by the court, or to adopt some of defendants' alternative rationales. We are persuaded, however, by defendants' argument that the only act for which they may be responsible in damages is their preparation and distribution of the performance evaluation, and that as to this act the defendants are absolutely immune from liability.

A. Applicability of § 1985

The district court relied on Stern v. United States Gypsum, 547 F.2d 1329 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977), to reason that section 1985(1) may be extended to actions by a federal employee against his supervisors. Accord, Stith v. Barnwell, 447 F.Supp. 970 (M.D.N.C.1978) (dictum). Defendants question that proposition, appellees' brief at 12 n.8, and we find it unnecessary either to affirm or reject in light of our disposition of the case. We shall assume arguendo, however, that under the fact alleged a section 1985(1) action would ordinarily lie.

B. The Performance Rating as Providing the Exclusive Remedy

Lawrence argues that dismissal of his section 1985(1) complaint cannot be based on the exclusivity of a Performance Rating Act remedy, which permitted agency employees to appeal performance ratings (including ratings of "satisfactory") and authorizes the reviewing board to "make such change as it considers proper." 5 U.S.C. § 4305(c), (d) (1976). ⁴ Lawrence notes that Whether the availability of the remedies under the Performance Rating Act grafts an exhaustion requirement onto any section 1985(1) action based on a performance evaluation is another question. ⁵ Defendants do not rely on any failure to exhaust, however, and Lawrence arguably fulfilled the purpose of an exhaustion requirement when he protested the below average marks he received in Part I of his evaluation, for defendant Dickerson soon thereafter declared Part I of the evaluation invalid. See App. at 78. Lawrence thus achieved through his informal grievance what he might have achieved through a formal appeal under the Performance Rating Act.

section 1985(1) promotes different policies, involves different elements of proof, and provides for judicial trial and a distinct form of relief-damages-than does the remedy under the Performance Act. Defendants do not argue to the contrary. We agree with Lawrence that Congress did not pre-empt a section 1985(1) action (assuming one might lie in these circumstances) with the limited remedy it provides under the Performance Rating Act. A performance evaluation may be one element of an actionable conspiracy, but that does not mean that the Performance Rating Act provides the exclusive remedy for damages resulting from the evaluation, even if the statute of limitation limits the conspiracy action's damage claim to the evaluation itself. See generally Fitzgerald v. Seamans, 553 F.2d 220, 226-27 (D.C.Cir.1977) (discharged federal employee's civil service and tort-civil rights remedies were independent); Churchwell v. United States, 545 F.2d 59, 61 (8th Cir. 1976) (plaintiff not limited to Privacy Act claim when pursuing damages under Fifth Amendment).

C. Defendants' "Actionable Tort" Theory and the Statute of Limitations

While not relying on the district court's exclusive remedy rationale, defendants interpret the court's opinion to mean that Lawrence's action was "time-barred because the sole overt act alleged to have occurred within the limitations period, the satisfactory evaluation, could not support an action for civil conspiracy." Appellee's Brief at 7. Defendants explain that "(t)o include such an evaluation as an operative part of the alleged conspiracy, it is necessary to find that the performance rating was a tortious act which injured appellant." Id. at 10. Because Lawrence's "satisfactory" job performance rating was not libellous, defendants continue, "the evaluation cannot be an operative part of a civil conspiracy because it is not a tortious act." Id. at 13. ⁶

We think that in this respect defendants misapprehend the law of civil conspiracy. Lawrence has alleged that defendants gave him a substandard performance evaluation in furtherance of a conspiracy proscribed by section 1985(1), "and it is well settled that acts that are in themselves legal lose that character when they become constituent elements of an unlawful We agree with defendants' understanding, however, that (absent special circumstances not present here, such as fraudulent concealment of the conspiracy) the statute of limitations in a civil damages action for conspiracy runs separately from each overt act that is alleged to cause damage to the plaintiff. ⁷ The three year statute of limitations applicable here thus confines our focus, for purposes of considering damages, to the August 1976 performance evaluation. ⁸ This determination alone justifies dismissal of the complaint as to defendants Magee and O'Brien, but not as to Dickerson and Acree who are alleged to have participated in the 1976 performance evaluation. There is no allegation that Magee or O'Brien furthered the conspiracy against Lawrence at any time since 1974. See Gual Morales v. Hernandez Vega, 579 F.2d 677, 681 (1st Cir. 1978) ("plaintiff must allege ... that each defendant to be charged committed an action constituting a civil rights violation in furtherance of the conspiracy within the limitation period").

scheme," Continental Co. v. Union Carbide Co., 370 U.S. 690, 707, 82 S.Ct. 1404, 1414, 8 L.Ed.2d 777 (1962). It is sufficient that Lawrence alleged the evaluation caused him injury; Lawrence need not allege the evaluation was tortious in itself. We decline to deprive section 1985 and other civil conspiracy statutes of significant meaning by requiring that each overt act in furtherance of the conspiracy be independently actionable.

D. Official Immunity of Executive Officials Reporting Performance Evaluations of Employees

Since we are not satisfied that the district court can be...