United States District Court, D. Minnesota
Clayton D. Halunen, Esq., and Susan M. Coler, Esq., Halunen & Associates; and David K. Colapinto, Esq., and Stephen M. Kohn, Esq., Kohn Kohn & Colapinto, counsel for Plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, United States Attorney's Office; and Steven Y. Bressler, Esq., United States Department of Justice, counsel for Defendants.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK, District Judge.
This matter is before the Court on a Motion to Dismiss for lack of subject matter jurisdiction brought by the United States Department of Justice ("DOJ"); Eric Holder, Attorney General; and James M. Cole, Deputy Attorney General (collectively, "Defendants"). (Doc. No. 31.) The Court grants the motion for the reasons set forth below.
Plaintiff Jane Turner ("Turner") worked as a Special Agent with the Federal Bureau of Investigation ("FBI") between 1978 and 2003, when she alleges that she was forced to resign as a result of her actions as a whistleblower. (Doc. No. 12, First Amended Compl. ("FAC") ¶¶ 8-9, 50-52.) Turner's whistleblowing actions related to an incident in 2002 when Turner reported to her supervisor and others that another FBI agent had removed a Tiffany crystal globe paperweight (the "Globe") from the 9/11-crime scene and had gifted it to a FBI secretary. ( Id. ¶¶ 19-20.) Turner alleges that she was particularly concerned with the Globe incident because it affected an ongoing criminal case against a defendant who was being prosecuted for similarly removing a New York City Fire Department truck door from the 9/11-crime scene. ( Id. ¶¶ 18, 21-22.)
Turner reported the Globe incident to the DOJ Office of Inspector General ("OIG") on September 11-12, 2002. ( Id. ¶¶ 23-24.) OIG then conducted a major investigation involving the interview of fifty-five people and review of the conduct of several FBI offices. ( Id. ¶ 25.) The investigation resulted in a number of findings of theft relating to the 9/11-crime scene, including theft by supervisors and at least one Assistant Director. ( Id. ¶¶ 34-36.) Turner alleges that two Senators sent a letter to the FBI Director seeking his "personal and explicit assurance that no retaliation take place against Special Agent Jane Turner." ( Id. ¶ 26.)
Turner alleges that she was then subjected to retaliation in a number of forms. For example, Turner alleges that on September 27, 2002, the Minneapolis Division of the FBI decided to "pull the trigger" and fire her because she "doesn't play well with others." ( Id. ¶ 27.) Turner asserts that in October 2002, her supervisor called FBI headquarters and informed them that he would be recommending that Turner be fired. ( Id. ¶ 28.) Turner further alleges that she subsequently received a negative performance evaluation; was informed that she would be fired; was subjected to a "toxic" work environment; was called derogatory names; was avoided by her colleagues; was removed from all substantive assignments; and was subjected to other forms of a hostile work environment. ( Id. ¶¶ 29, 31, 37, 39, 40-43.) Ultimately, Turner was given a Notice of Proposed Removal. ( Id. ¶ 44.) Turner alleges that because she understood she was going to be fired, would not be able to return to her career, and had vested in her retirement annuity, she "retired" on October 21, 2003 as a result of constructive discharge. ( Id. ¶¶ 50-52.)
Turner alleges the following with respect to the process associated with her whistleblowing action: (1) she filed her complaint with OIG in 2002 in accordance with the requirement that she request an investigation of alleged reprisal with either OIG or the DOJ Office of Professional Responsibility ("OPR") ( id. ¶ 60); (2) after 120 days, she requested a hearing before the DOJ Office of Attorney Recruitment and Management ("OARM") in accordance with the requirement that OIG has 120 days to investigate, and, if it does not complete its investigation, a party can seek a hearing ( id. ¶¶ 56-57, 61-62); (3) she participated in OARM's administrative process over the course of seven years ( id. ¶ 63); (4) upon receipt of OARM's ruling finding Turner had been subjected to illegal reprisal and ordering relief, the FBI appealed OARM's ruling to the Deputy Attorney General ("DAG") and Turner then cross-appealed ( id. ¶¶ 58, 68-70); and (5) in January 2013, DAG issued a final order ("DAG Final Order") affirming in part and reversing in part OARM's ruling ( id. ¶¶ 75-77). DAG's determination affirmed OARM's findings on liability and retaliation, but reversed the findings relating to entitlement to back pay. ( Id. ¶¶ 76-77.) Turner asserts that the DAG Final Order constitutes a "final agency action" under relevant statutes and regulations. ( Id. ¶ 75.)
Turner's complaint seeks injunctive relief and judicial review of DAG's final determination denying her back pay and corresponding benefits on the following grounds: (1) DAG's Final Order Was Arbitrary, Capricious, an Abuse of Discretion, Not Supported by Substantial Evidence and Otherwise not Issued in Accordance with the Law; and (2) OARM's Final Corrective Action Order Was Supported by Substantial Evidence and Should be Affirmed. ( Id. ¶¶ 80-93.) Turner's claims are brought "under the FBI Whistleblower Protection Act ("WPA"), 5 U.S.C. § 2303, ... DOJ regulations implementing the WPA, 28 C.F.R. Part 27, and the Administrative Procedure Act, 5 U.S.C. 701 et seq. ["APA."]" ( Id. ¶ 8.)
Defendants now move to dismiss the action on the grounds that the APA does not vest the Court with jurisdiction over federal personnel actions and that the action is barred by collateral estoppel. (Doc. Nos. 31, 32.)
I. Rule ...