Thomas v. Veterans Administration

• Citation: 467 F. Supp. 458
• Decision Date: 19 March 1979
• Docket Number: Civ. No. H-79-80.
• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Parties: Stephen L. THOMAS, Jr. v. The VETERANS ADMINISTRATION and the Federal Bureau of Investigation.

467 F. Supp. 458

Stephen L. THOMAS, Jr. v. The VETERANS ADMINISTRATION and the Federal Bureau of Investigation.

Civ. No. H-79-80.

United States District Court, D. Connecticut.

March 19, 1979.

Kate W. Haakonsen, Law Offices of M. Allan Peck, Hartford, Conn., for plaintiff.

George J. Kelly, Jr., Asst. U. S. Atty., Hartford, Conn., Richard Blumenthal, U. S. Atty., New Haven, Conn., for defendants.

RULING ON MOTION FOR A PRELIMINARY INJUNCTION

CLARIE, Chief Judge.

The plaintiff, an employee of the Veterans Administration, seeks a preliminary injunction to restrain said agency from further pursuing the pending administrative proceedings seeking his dismissal, until the propriety of said investigation has been adjudicated. The plaintiff alleges inter alia that the charges against him were founded on information, which was improperly and illegally obtained and was in fact motivated by racial prejudice.

The Court finds that the plaintiff has failed to demonstrate irreparable injury, which is a prerequisite to the issuance of a preliminary injunction. Furthermore, at this stage of the administrative proceedings, the proposed injunctive relief would be an unwarranted judicial intrusion into the administrative review authority of the Veterans Administration.

Jurisdiction

Jurisdiction over this matter is found pursuant to the grant of authority in 28 U.S.C. § 1343(4) and 5 U.S.C. § 552a(g)(1).

Facts

The plaintiff, a black employee, occupies the classified position of Chief of Administrative Services in the Hartford Regional Office of the Veterans Administration (hereinafter "V.A."). He has been an employee of the agency for 11 years. It is generally recognized that he has compiled a creditable record within that agency, during his period of employment.

Prior to assuming his present position at the Hartford office, he had been employed as Chief of Administrative Services in the V.A.'s Sioux Falls, South Dakota office. While employed there, he was arrested on or about June 11, 1975 for the sale of amphetamines. This arrest ultimately resulted in his pleading guilty to an information charging him with violating 21 U.S.C. § 844(a) (Simple Possession). Since this was the plaintiff's first drug offense, he was considered eligible for the statute's special deferred sentencing provisions.¹ Pursuant to those procedures, the court placed the plaintiff on probation with the expressed understanding that upon the successful completion of his probationary period, the Court would dismiss the proceedings without imposing a finding of guilt. It appears that the plaintiff's immediate supervisors, though aware of the arrest, never reported the incident to the V.A.'s central office in Washington.

In September of 1977, the plaintiff was transferred to the V.A.'s office in Hartford where his tenure was apparently marred by friction between him and the then Office Director, Joseph Card. The plaintiff attributes this hostility to two sources: (1) the plaintiff's refusal to conceal claimed shortages of money and supplies within the office, and (2) Card's racial prejudice.

In early March of 1978, Card learned of the plaintiff's Sioux Falls arrest and immediately notified V.A. officials in Washington. The following week, Walter Burleson, a special investigator within the V.A. was ordered to initiate an inquiry into the matter. Included in the investigation authorization was a copy of an F.B.I. Criminal Identification Record commonly referred to as "a rap sheet." It is undisputed that the V.A. should have sought the plaintiff's consent before requesting this arrest record from the F.B.I.² Furthermore, the information contained in the rap sheet was technically erroneous in that it indicated that the plaintiff had been convicted of possession of amphetamines, when in fact except for the plea no permanent finding of guilt was ever imposed by the trial court.

On April 15, 1978 Burleson conducted a formal interview with the plaintiff concerning the factual circumstances of the Sioux Falls arrest.³ He revealed his possession of the rap sheet and informed the plaintiff that the information was sought by the V.A.'s central office in Washington. The plaintiff was given an opportunity to review the transcript of this interview and to make any relevant changes before signing the document under oath.

On April 6, 1978 the plaintiff signed a waiver authorizing Burleson to obtain copies of all Drug Enforcement Agency reports concerning the Sioux Falls arrest.⁴ The following day he signed a similar waiver authorizing the release of all court records on the incident. The plaintiff maintains that he signed these waivers solely for the sake of maintaining good will, since he was under the impression that all records of the incident were sealed. However, valuable investigatory leads were in fact derived from the Drug Enforcement files.⁵

A second formal interview with the plaintiff was then conducted by Burleson on August 14, 1978. This interview was similarly transcribed and ultimately reviewed and signed by the plaintiff under oath.

On February 5, 1979 the plaintiff received a four page memorandum from the V.A. notifying him of the proposed dismissal action and informing him of his administrative rights. The dismissal was to be based upon allegations that the plaintiff violated V.A. regulations by:

(1) engaging in infamous and immoral conduct;

(2) engaging in criminal conduct (citing the Sioux Falls arrest);

(3) lying during the internal investigation of his affairs; and

(4) selling and/or soliciting the sale of drugs while on the V.A. premises in Sioux Falls.

The plaintiff has moved to enjoin his removal proceeding, because it allegedly violates inter alia his constitutional rights to due process and equal protection, as well as specific provisions of the Federal Privacy Act of 1974, 5 U.S.C. § 552a et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981 et seq. The essence of the plaintiff's claim is that this dismissal action is in fact an administrative vendetta improperly instigated by former Director Card. The plaintiff alleges that the main catalyst behind these charges is the F.B.I. rap sheet which not only is inaccurate but also was obtained illegally. The plaintiff maintains that unless the dismissal proceeding is enjoined, he will suffer irreparable injury to both his name and career.

Discussion of Law

1. Standards for a Preliminary Injunction

The ability to grant preliminary injunctive relief is an extraordinary power which the Court should exercise only with great restraint and caution. Heldman v. United States Lawn Tennis Assoc., 354 F.Supp. 1241, 1252 (S.D.N.Y.1973). Restraint in such matters is especially appropriate in a case concerning dismissal from federal employment since courts traditionally allow the government wide latitude in the "dispatch of its own internal affairs." Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1971); Sampson v. Murray, 415 U.S. 61, 83, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).

A preliminary injunction may issue only upon a

". . . showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973).

Subsequent cases have made it clear that implicit in the second prong of the Sonesta standard, requiring a balancing of hardships, is the necessity of demonstrating irreparable injury. Triebwasser and Katz v. American Tel. and Tel. Co., 535 F.2d 1356, 1359 (2d Cir. 1976); United States v. Culbro Corp., 436 F.Supp. 746, 749 (S.D.N.Y.1977).

2. Irreparable Injury

The plaintiff claims that a preliminary injunction is required to protect both his reputation and career from irreparable injury. However it was precisely this type of damage which the Supreme Court held did not constitute irreparable injury in Sampson v. Murray, supra.

The latter case concerned a claim by a probationary federal employee that her planned administrative discharge was not in accordance with proper civil service procedure. Prior to dismissal she sought a temporary injunction enjoining any further action until the Civil Service Commission acted upon her administrative appeal. Id. 415 U.S. at 66, 94 S.Ct. 937. The injunction was issued based upon perceived irreparable injury to both income and reputation. Id. at 66, 94 S.Ct. 937.

In holding that the injunction had improvidently issued, the Supreme Court found that the alleged damage fell "... far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case." Id. at 91-92, 94 S.Ct. at 953. The Court suggested in that case that the proper remedy was for the employee to seek vindication through administrative channels. If successful, the provisions of the Back Pay Act (5 U.S.C. § 5596) would allow full recovery of all lost salary and benefits. In discussing the legislative history of the Back Pay Act, the Court noted that it was contemplated that the Act's provisions "... would be the usual, if not the exclusive remedy for wrongful discharge." Id. at 91, 94 S.Ct. at 953.

Sampson recognized that a case might arise where the injuries were so severe as to warrant the granting of injunctive relief. That opinion went on to explain,

"Such extraordinary cases are hard to define in advance of their occurrence. We have held that an insufficiency of savings or difficulties in immediately obtaining other employment — external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself — will not support a finding of irreparable injury, however, severely they may affect a particular individual." Id. at 92 n. 68, 94

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