1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MEMORANDUM OPINION Nearly one year after this Cour t dismissed the majority of the counts in his First Amended Complaint, Plaintiff Raymond Jefferson is back for anot her round. In his Motion for Leave to File a Second Amended Complaint, Jefferson renews his effort to clear his name of the accusations leveled against him in a 2011 investigation and rep ort by the Department of Labor’s Office of Inspector General. Def endants – the U.S. Department of Labor, the Department’s Office of Inspector General, th e Council of the Inspector Gener al on Integrity and Efficiency, and five individuals – oppose this third bite at the apple. Af ter toiling through J efferson’s prolix pleading, the Court ultimately c oncludes that one additional cl aim may proceed. Counts II and III, Plaintiff’s Admi nistrative Procedure Act and Bivens claims, were already dismissed in this Court’ s prior Opinion and are re-pled here largely to preserve them for appeal. Count IV, Jefferson’s new cause of action under the Ap pointments Clause, cannot survive, both because he lacks standing and because it is facia lly deficient. It is only Count I, which alleges procedural and subs tantive due-pro cess violations , that the Court concludes states a plausible basis for relief . The lack of prejudice to Defenda nts and the liberal standard for RAYMOND M. JEFFERSON, Plaintiff, v. Civil Action No. 14-1247 (JEB) SETH D. HARRIS, et al. , Defendants.2 amending complaints counsel i n favor of allowing Jefferson to m ove forward with this augmented count. The Court will t herefore grant leave to amend in this limited respect.
I. Background The lengthy factual history of thi s case is set forth in full i n this Court’s prior Opinion and need not be repeated here . See Jefferson v. Harris, 170 F. Supp. 3d 194 (D.D.C. 2016). Suffice it to say that Jefferson, a former high-level appointee in the Department of Labor, believes himself the victim of a n Inspector General’s defamatory campaign relating to his procurement efforts. Appointed in 2009 to serve as the Assista nt Secretary of Labor for Veterans’ Employment and Trainin g Services (VETS), Jefferson’s central grievance revolves around a 2011 investigation and resulting Report by DOL’s Offic e of Inspector General (DOLOIG). Id. at 198. This Report and an accompanying Cover Memor andum described an alleged “pattern of conduct” by Jefferson tha t “reflect[ed] a consisten t disregard of federal procurement rules and regulations, federal e thics principles, and the prope r stewardship of appropriated dollars.” ECF No. 19, Exh. B (Cover Memorandum) at 1. In his First Amended Complaint, P laintiff alleged that these cr iticisms were false, and that the investigation and Re port were motivated by personal an imus and riddled with factual and legal errors. See ECF No. 16 (Fi rst Amended Complaint), ¶¶ 29- 50. According to Jefferson, the day after the Report was issue d to his boss, De puty Secretary S eth Harris, he was placed on administrative leave. Four days later, Harris informed him tha t he had “four hours in which to resign or be fired,” id., ¶ 58, and Jefferson submitted his res ignation to the S ecretary of Labor that afternoon. Id., ¶ 61. Yet Pla intiff’s alleged mistreatme nt did not end with his departure. Instead, the next day DOL and DOL -OIG held a joint press confer ence at which they publicly discussed the Report and Memora ndum and thereby repeated the “f alse charges, errors of fact,3 and mistakes of law.” Id., ¶ 62. The accusations against Jeff erson were subsequently reported in The Washington Post and other pub lications, and were the subjec t of a press conference held by Senator Claire McCaskill, then- Chair of the Homeland Security S ubcommittee on Contracting Oversight. Id., ¶¶ 63-65. Following his resignation, Jeffe rson embarked upon what is now a six-year journey to find redemption. In 2014, he filed acomplaint with the Counci l of the Inspectors General on Integrity and Efficiency (CIGIE) against DOL-OIG and the releva nt investigators, alleging violations of “OIG regulations, the [Inspector General Act], th e APA, and [his] due process rights.” Id., ¶ 78. Three months l ater, CIGIE’s Integrity Com mittee informed Plaintiff that it would not be taking acti on on the matter. Id., ¶ 80. The same month that Jefferson file d his CIGIE complaint, he als o filed suit in this Court. See ECF No. 1 (Complaint). After amending his Complaint in Mar ch 2015, Plaintiff set forth four discrete counts against Defendants. See Jefferson, 170 F. Supp. 3d at 202 Count I accused DOL-OIG and the individual officer s involved in the investigati on of violating the APA. Id. Count II asserted that DOL, D OL-OIG, Harris, and four individua ls involved in the investigation – Daniel Petrole, Asa Cunningham, David Russ, and James Powell – violated Plaintiff’s dueprocess rights by injuring hi s reputation. Id. Count III soug ht damages against all individual Defendants under Bivens v. Six Unknow n Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and Count IV consiste d of claims against CIGIE under the Inspector General Act, the APA, and the Due Pro cess Clause. Id. at 203. Defenda nts moved to dismiss Jefferson’s Complaint in its entirety, s ee ECF No. 19 (Motion to Dismiss), and on March 21, 2016, this Court issued a Memorandum Opin ion and Order granting that reque st as to the majority of Plaintiff’s counts. See Jefferson, 170 F. Supp. 3d at 222. Sp ecifically, the Court dismissed4 Counts I, III, and IV, and allowe d only Count II, which alleged a procedural due-process violation, to proceed. Id. After receiving a series of extensions, Jefferson now moves for leave to file a 94-page Second Amended Complaint allegin g four counts (ordered in a dif ferent fashion from the First Amended Complaint). The first count has two subparts, offering both procedural and substantive due-process claims. The second re iterates the earlier Bivens c laims, and the third again invokes the APA. The last sets out a ne w claim under the Appointments Clause. See ECF No. 44-1 (Second Amended Complaint). As Defendants have opposed Plainti ff’s Motion, see ECF No. 52, the Court must now determine whether to grant him the reque sted leave to amend and, if so, on which counts.
II. Legal Standard A plaintiff may amend his compla int once as a matter of course within 21 days of serving it or within 21 days of the f iling of a responsive pleading. S ee Fed. R. Civ. P. 15(a)(1). Otherwise, he must seek consent from the defendant or leave fro m the court. The latter “should [be] freely give[n] . . . when jus tice so requires.” Fed. R. C iv. P. 15(a)(2). In deciding whether to grant leave to file an amende d complaint, courts may conside r “undue delay, bad faith or dilatory motive on the part of t he movant, repeated failure to cure deficiencies by amendments previously allowed, undue prej udice to the opposing party by vi rtue of allowance of the amendment, futility of amend ment, etc.” Foman v. Davis, 371 U. S. 178, 182 (1962). In this Circuit, “it is an abuse of discretion to deny leave to amend u nless there is sufficient reason.” Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996). F urthermore, under Rule 15, “the non-movant generally carries the burden in persuading the court to deny leave to amend.” Nwachukwu v. Karl, 222 F .R.D. 208, 211 (D.D.C. 2004).5 It is clear, however, that amendment should not be permitted if it would be futile. In other words, if the new causes of action would still be deficie nt notwithstanding the proposed amendment, courts need not grant leave. See In re Interbank Fu nding Corp. Securities Litigation, 629 F.3d 213, 218 (D.C . Cir. 2010) (“[A] district c ourt may properly deny a motion to amend if the amended pleading would not survive a motion to dis miss.”) (citing Foman, 371 U.S. at 182, for proposition that“‘futility of amendment’ is p ermissible justification for denying Rule 15(a) motion”); James Madison Ltd. v. Ludwig, 82 F.3d 1085 , 1099 (D.C. Cir. 1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss.”) (citations omitted).
III. Analysis In conducting its analysis, the Court first briefly considers t he reasserted APA and Bivens counts, which are re-pled essent ially for appellate purposes. It next looks at both the procedural and substantive due-process clai ms, before concluding with the new Appointments Clause count.
A. APA and Bivens (Counts II & III) The Court begins by clearing away Jefferson’s APA and Bivens cl aims, both of which were dismissed in the prior Opinion. Plaintiff maintains that he “re-pleads claims that this Court has already dismissed in order t o preserve them for appeal.” E CF No. 41 (Motion for Leave to File) at 2-3. Yet, as Defendant s point out, see Opp. at 8-9 an d Jefferson acknowledges in his Reply, “he need not have re-alleged . . . his dismissed claims in order to preserve them for appeal under D.C. Circuit precedent.” Reply at 9 n.6. The Court agre es and therefore will not grant leave to amend with respect to the previously dismissed counts. See BEG Investments, LLC v. Alberti, 85 F. Supp. 3d 13, 50 (D.D.C. 2015) (noting the “absen ce of any authority to support6 Plaintiff's belief that reasser tion of its dismissed claims was necessary” to preserve such claims for appellate review). To the extent that Jefferson rei terates his Bivens and APA clai ms in order to add “more detailed factual allegations” a nd “greater contex t,” Mot. at 3, the Court notes that these claims were dismissed on legal, not factua l, bases. Such efforts ther efore do not provide grounds for leave to amend. Robinson v. Detroit News, Inc., 211 F. Supp. 2 d 101, 114 (D.D.C. 2002) (amendment futile if it “reasse rts a claim on which the court p reviously ruled”). With respect to the Bivens count, the Court hel d that it was untimely, as Jeffe rson was limited by the one-year statute of limitations for de famation under D.C. law. See Jeff erson, 170 F. Supp. 3d at 213-14. The Court additionally concluded that, regardless of timeliness , a Bivens remedy would not be cognizable because, by “specifically exempting positions like J efferson’s from the [Civil Service Reform Act],” Congress had delib erately chosen to omit damages remedies for claimants in Plaintiff’s position. Id. at 216. A s to the APA counts, the C ourt found that the Report and Cover Memorandum were “interlocutory recommendations – and not final agency action,” and therefore could not be challeng ed under the APA. Id. at 218. It held, moreover, that even without such a lack of finalit y, Jefferson would nonetheless no t prevail because DOL-OIG’s publication of the two documents did not constitute “agency act ion under the bind ing precedent of this circuit.” Id. at 21 9 (citing Hearst Radio, Inc. v. FCC , 167 F.2d 225 (D.C. Cir. 1948)). The Court similarly rejects Pla intiff’s argument that by “ident ifying specific regulations at issue and final agency acti on,” the Second Amended Complaint “sets forth Administrative Procedure Act claims that are c onsistent with” the prior Opinio n. See Mot. at 2. As with the other APA allegations in the prev ious Complaint, the Court deni ed Plaintiff’s notice-andcomment claim not solely because it was supported by insufficie nt facts, but a lso because the7 Act’s notice-and-comment requirements “do[] not apply to interp retive rules, general statements of policy, or rules of agency orga nization, procedure, or pract ice.” Jefferson, 170 F. Supp. 3d at 220 (internal quotation marks and citation omitted). The only “specific regulati ons” identified in Plaintiff’s Second Amended Complai nt fall well within the ambit of such internal agency practices, see SAC, ¶ 226, and his re newed claim is thus preclu ded by the Court’s prior legal conclusion. Contrary to Jefferson’ s assertion that the Court “ invit[ed]” him to expand upon his APA claims, the prior Opinion left no such door ajar. Plaintiff’s attempt to distingui sh his previously asserted Bive ns count from those alleged in the Second Amended Complain t meets a similar fate. Although he acknowledges that the Court dismissed his Bivens claim s regarding actions taken while he was employed at DOL, Jefferson contends that the Sec ond Amended Complaint includes a new Bivens theory – namely, an action against Harris for a memorandum he issued after Jeffe rson left DOL, which Plaintiff contends “repeated and ratified anumber of the” agency’s “fals e legal and factua l conclusions.” Mot. at 2; see SAC, ¶¶ 149, 196-206. Y et this distinction make s no difference when it comes to the scope of the Court’s prior le gal conclusions. As it already determined, the existence of a comprehensive remedial scheme under the CSRA counsels against the creation of a Bivens remedy for those claims arising outof Plaintiff’s employment a t VETS. See Jefferson, 170 F. Supp. at 212. This rationale applies even if the alleged uncon stitutional defamation occurred after Plaintiff’s resignation, as Harris’s memorandum was nonetheless part of the broader removal proceedings. As Jefferson himself states, the memorand um was “DOL’s response to the Report,” and he asserts that its publication was a “final agenc y action” regarding the investigation. See SAC, ¶ 148. Har ris’s alleged defamation subsequent to Plaintiff’s resignation is entwined with Jefferson’s employment at DOL, and any Bivens action thus remains precluded8 by the CSRA’s remedial scheme. See Peter B. v. CIA, 620 F. Sup p. 2d 58, 72 (D.D.C. 2009) (holding that defamation occurri ng after status change in emplo yment is deemed to accompany the change when offered as o fficial reason for action).
B. Due Process (Count I) Although inexplicably grouped in a single count, Jefferson arti culates both a substantive and a procedural due-process cha llenge. The Court thus examine s them separately.
1. Procedural The sole count left intact in the Court’s prior Opinion was Jefferson’s procedural dueprocess claim. He now seeks to expand its scope. As discussed in the prior Opinion, a plaintiff may avail himself of two legal theories to establish a reputati on-based due-process violation – “reputation plus” and “stigma plus.” Jefferson, 170 F. Supp. 3 d at 205. The former requires the “conjunction of official defamati on and [an] adverse employment action.” O’Donnell v. Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998). To plead such a claim, a plaintiff must show “that the government’s defamation resulted in a harm to some interest bey ond reputation,” such as a “loss of present . . . government employment,” that the “government h as actually stigmatized his . . . reputation,” and that “the stigma has hampered future employmen t prospects.” Jefferson, 170 F. Supp. 3d at 205 (emphasis added) (citation omitted). Finding t hat Jefferson had “adequately pled” these elements, the Court denied Defendants’ Motion to Dismiss with respect to the reputationplus due-process claim. Id. The Court concluded, conversel y, that Plaintiff could not proce ed with his stigma-plus theory. Id. at 206. Unlike a reputa tion-plus claim, the stigm a-plus theory “does not depend on official speech, but on a continui ng stigma or disability arisi ng from official a ction.” O'Donnell, 148 F.3d at 1140 (emphases added). To allege a violation under this approach, moreover, a9 plaintiff must show that the o fficial action not only “hampered ” his future employment, but in fact “had the ‘broad effect of lar gely precluding [him] from pu rsuing [his] chosen career.’” Jefferson, 170 F. Supp. 3d at 205 (quoting Kartseva v. Dep't of State, 37 F.3d 1524, 1528 (D.C. Cir. 1994)). Finding that Jeffe rson had not demonstrated that “his ability to pursue his chosen profession has been ‘seriously a ffected, if not destroyed,’” th e Court concluded that he did not make out a stigma-plus claim. Id. (citing O'Donnell, 148 F.3d at 1141-42) (quoting Kartseva, 37 F.3d at 1529). Now, in his proposed Second Amende d Complaint, Jefferson offers a series of new allegations intended to show tha t he has, in fact, been broadly precluded from working in his chosen field. See SAC, ¶¶ 156-165. Unlike the First Amended C omplaint, in which Plaintiff alleged merely that he has “ found it very difficult to obtain ajob,” FAC, ¶ 72, the Second Amended Complaint adds a signifi cant amount of detail with resp ect to his alleged inability to obtain a position in his “chosen pr ofession.” He claims that “ public service was [his] vocation and his profession of choice,” SAC, ¶ 158, and that the “legall y and factually false allegations contained in the Report and Memor andum have precluded [him] fro m pursuing his vocation.” Id., ¶ 160. In support of his assertio n that Defendants’ acts “cemented the end of [his] public service career,” Jefferson alle ges that a “very high level offi cial at the White House” informed his representative that “no future Administration would hire Je fferson” and that he was “radioactive in the Democrati c Party.” Id., ¶¶ 160-61. In sum, Jefferson contends that Defendants’ acts “precluded hi m from pursuing his vocation in t he public sector in any position.” Id., ¶ 188. Defendants rejoin that Jefferson’s amended stigma-plus claim is futile because he “does not plausibly show that he can no l onger practice” his professi on. See Opp. at 14. They contend10 that it is improper for Plain tiff “to define his ‘profession’ s o narrowly, for a person with plaintiff’s pedigree can sur ely do many jobs, and in fact he is doing so.” Id. This assertion, however, ignores the fact that a plaintiff must show only that the government’s imposition of a stigma has “seriously affected” his “right to . . . follow a c hosen profession,” Greene v. McElroy, 360 U.S. 474, 492 (1959 ) (emphasis added), or “chosen line of business.” Cmty. Fin. Servs. Ass'n of Am., Ltd. v. F ed. Deposit Ins. Corp., 132 F. Supp. 3d 98, 123 (D.D.C. 2015) (emphasis added) . It may well be that the alle ged harm to Jefferson’s reputati on has had no impact on his ability to pursue a range of professional opportu nities, and that the government is correct that he can “surely do m any jobs.” Yet the question wi th respect to a stigma-plus claim is not whether the plaintiff is e ntirely unemployable. The lib erty interest implicated under this theory is, instead, his “constitutionally protected right” to w ork in his field of choice. See Crooks v. Mabus, 845 F.3d 412, 421 (D.C. Cir. 2016). Here, Jefferson’s proposed amendme nt sets forth sufficient fact s to state a plausible stigma-plus claim. Although “[d]i scharge from a particular job is not the same as exclusion from one’s chosen profession,” governme nt action resulting in “broadpreclusion from [a plaintiff’s] chosen field” is sufficient t o implicate a Fifth Amendment libe rty interest. Id. at 421 (quoting Abdelfattah v. U.S. Dep 't of Homeland Sec., 787 F.3d 524, 539 ( D.C. Cir. 2015)) (quotation marks omitted). Taking as true the alleged impact of Defendant s’ investigation and Report on Plaintiff’s career and employmen t prospects, it is plausible th at his preclusion from his chosen profession of public service is “ sufficiently broad” so as to i nfringe upon his protected liberty interest. See Taylor v. Resolution Tr. Corp., 56 F.3d 1497, 15 06 (D.C. Cir.), opinion amended on reh'g, 66 F.3d 1226 (D.C. Cir. 1995); cf. Cafeteria and Rest aurant Workers v. McElroy, 367 U.S. 886, 895–96 (1961) (revocation of short-order cook’s permi ssion to work on military base11 did not implicate liberty interest in part because she “remaine d entirely free to obtain employment as a short-orde r cook”) (emphasis added). The Court notes, moreover, tha t Defendants do not assert that t hey would suffer any prejudice if Plaintiff were permitted, at this pre-discovery st age of litigation, to amend his dueprocess claim. And given that Je fferson’s reputation-plus clai m has already been allowed to proceed, the Court conclude s that no undue burden would result from allowing him to additionally allege a stigma-pl us theory. In light of the libe ral standard under Rule 15, the Court will grant leave to amend with res pect to Jefferson’s stigma-pl us due-process claim.
2. Substantive In addition to supplementing his proc edural due-process count, Jefferson’s Second Amended Complaint also sets fort h a substantive due-process all egation. The prior Opinion concluded, “[A]lthough Plaintiff i n his Opposition insists that Count II alleges both substantive and procedural due-process violat ions, the [First] Amended Comp laint contains not a single suggestion that Jefferson inte nded to advance the former.” Jef ferson, 170 F. Supp. 3d at 204. The Court, consequently, did not address the merits of any such claim. Jefferson now brings an explicit su bstantive due-process allega tion. See SAC, ¶¶ 189- 195. He asserts that Defendants “acted arbitrarily and oppress ively by knowingly violating at least a dozen regulations govern ing OIG and conducting a biased and incomplete i nvestigation.” Id., ¶ 191. Such acts, he alleges , were a reflec tion of Defend ants’ “callous indifference to the suffering they inflicted” and wer e taken “knowing that [they] w ould destroy Jefferson’s professional and personal repu tation.” Id., ¶ 192. He contend s that such acts were “unjustifiable by any government interest” and ther efore violated his rights u nder the Due Process Clause. See Reply at 10.12 As Defendants convincingly ret ort, such allegations do not plau sibly state a traditional due-process violation. See Opp. at 22-24. Substantive due pro cess protects against “government power arbitrarily and oppressivel y exercised,” b ut “only the mo st egregious official conduct can be said to be ‘arbitrary in th e constitutional sense.’” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In order to make out a substantive due-proces s violation, a plaintiff must therefore establish that defendants’ conduct “shock[s] the cont emporary conscience.” Harvery v. District of Columbia, 798 F.3d 1042, 1049 (D.C. Cir. 2015). Gi ven this narrow application of the doctrine, courts are genera lly “reluctant to expand the con cept of substantive due process,” as there are few clear “guideposts for responsible decisionmaking. ” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Th is Court is similarly unw illing to conclude that Plaintiff’s alleged mistreatment by Defendant s is so egregious so as to sho ck the modern conscience. Even taking the facts as set forth i n Jefferson’s Second Amended Com plaint as true, the conduct he alleges does not rise to the lev el of “malicious and sadistic” abuses of power by government officials. See Johnson v. Newbur gh Enlarged Sch. Dist., 239 F. 3d 246, 252 (2d Cir. 2001). Yet Jefferson is not entirel y out of luck. In addition to asse rting that Defendants’ conduct was arbitrary and oppressive, Plain tiff contends that they viol ated his due-process rights by failing to follow the relevant age ncy regulations governing int ernal investigations. See Reply at 11-12. The legal basis for this argument is the Accardi doctri ne, which holds that “government agencies are bound to follow their own rules, even self-imposed procedural rules that limit otherwise discretionary decisions.” Wilkinson v. Legal Servs. Corp., 27 F. Supp. 2d 32, 34 n.3 (D.D.C. 1998) (citing United Sta tes ex rel. Accardi v. Shaughne ssy, 347 U.S. 260, 267-68 (1954)). Failure to do so arguably g ives rise to a due-process claim. See Wilkinson, 27 F. Supp. 2d at 58. Here, Jefferson alleges that OIG ’s investigation, the Report an d Memorandum, and the13 letter from the IC violated numer ous OIG policies and IG regula tions and guidelines. See SAC, ¶¶ 80-84, 89-92, 94-96, 123-29, 168-70. Am ong other failings, Plaintiff asserts that OIG violated its internal manual by gi ving him the incorrect form ( which did not include a notice of his relevant rights) when he s igned affidavits, and that the Of fice improperly failed to inform him that he was the target of the i nvestigation or of the charges a gainst him. Id., ¶¶ 89-92, 94-96,
122-25. Taken as true, and assuming wit hout deciding at this point in t he proceedings that the relevant regulations and guideli nes could be the basis for an A ccardi claim, these allegations appear to state a plausible basis for relief. As required unde r the doctrine, Jefferson is additionally able to demonstrate prejudice as a result of Defen dants’ alleged deviations from internal policies. See Vanover v. Hantman, 77 F. Supp. 2d 91, 106 (D.D.C. 1999), aff'd , 38 F. App'x 4 (D.C. Cir. 2002) (noting t hat courts w ill not, under th e Accardi doctrine, “void the result of the [agency] proceeding if the error was harmless”). Plaintiff contends that “[w]ithout fundamental notice regarding the allegations against [him], [he ] . . . could not apprehend what information was relevant, what information to provide to invest igators, what alle gations to rebut, or any other elements of a prope r defense.” SAC, ¶ 91. He all eges, moreover, that by giving him the incorrect form and failing to inform him of the scope o f the investigation, Defendants prevented him from “appreciat[i ng] the advisability of retainin g legal counsel to advise [him] as to the nature of the charges a nd to help [him] craft an effecti ve response and defense.” Id. Such interference with regulations t hat seek to safeguard a plaintif f’s individual rights implicates the Accardi doctrine and its requirement that agencies abide by the ir own procedures. See Morton v. Ruiz , 415 U.S. 199, 235 (1974) (holding that “[ w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This i s so even where the internal14 procedures are possibly more ri gorous than otherwise would be r equired.”); Abdi v. Duke, No. 17-721, 2017 WL 5599521, at *9 (W.D. N.Y. Nov. 17, 2017) (noting that violation of “internal policy” implicates Accardi doctrine if it “pertains to individu al rights”). The Court notes, however, that th e caselaw is far from clear as to whether an Accardi claim is properly raised as a s ubstantive due-process allegatio n. Although certain cases suggest that the doctrine has roots in t he Due Process Clause, others h ave held that Accardi claims are better understood as arising under th e APA or as stand-alone causes of action. Compare Wilkinson, 27 F. Supp. 2d at 58 (concl uding that a “substantive due process explanation” is best foundation for the doctrine), and Montilla v. INS, 926 F.2d 162 , 167 (2d Cir. 1991) (“Accardi doctrine is premised on fundamental notions of fair play underl ying the concept of due process”), with Tapp v. Washington Metr o. Area Transit Auth., 2016 WL 7441 719, at *6 n.8 (D.D.C. Sept. 30, 2016) (stating that Accardi cla im is “distinct cause of act ion that differs from a claim brought under the Fifth Amendment's Due Process Clause”), and Vanover v . Hantman, 77 F. Supp. 2d 91, 109 (D.D.C. 1999), aff'd, 38 F. App'x 4 (D.C. Cir. 2002) (n oting that plaintiff’s claim of dueprocess violation from failure t o follow internal regulations c ould be “considered as either a constitutional” or as separate “Accardi claim”). The Court fortunately need not de lve into the murky waters of t he doctrine and its origins. See Wilkinson, 27 F. Supp. 2d at 47–48 (no ting that “identifying th e legal source for the Supreme Court’s pronouncement that government agencies are boun d to follow their own rules is no simple matter”). Regardless of whether Jefferson’ s Accardi claim fits squarely u nder his due-process heading, the Court conc ludes that it is adequately pled at this stage in the proceedings, and Defendants have alleged no prejudice in allowi ng the addition of this count. Mindful of Rule 15’s liberal standards, the Court will therefor e grant leave to amend with respect15 to the substantive due-process claim. Defendants, who have not had an opportunity to respond to Plaintiff’s Accardi arguments, a re of course free to contest th eir viability in future proceedings.
C. Appointments Clause (Count IV) The Court last turns to Count I V of the Second Amended Complain t – Jefferson’s new Appointments Clause allegation. See SAC, ¶¶ 229-233. This cla im is based on the alleged injury Plaintiff suffered whe n the Integrity Commission – an en tity within CIGIE composed of four IGs, the FBI official serving on the Council, the Special Counsel of the Office of Special Counsel, and the Director of the Office of Government Ethics, s ee 5 U.S.C. App. 3 § 11(d)(2)(A) – declined to pursue further revi ew of his 2014 Complaint again st DOL employees Petrole, Cunningham, Russ, and Powell. This Complaint asserted that the four individuals had “willfully and wantonly violat[ed] OIG regul ations, the IGA, the APA, and Jefferson’s due process rights by failing to conduct a full and fair investigation, by knowing ly issuing a legal ly and factually false Memorandum and Report, and by failing to notify Jefferson . . . of the allegations against [him] and depriving [him] of a meaningful opportunity to be hea rd.” SAC, ¶ 166. Three months after filing the CIGIE Complain t, the Integrity Commission (IC) of CIGIE sent Plaintiff a letter stating that “the IC determin ed the allegation does not meet th e threshold standard necessary for further review since the alle gation did not concern the actions of a currently covered OIG official who is subject to the IC’s jurisdiction.” Id., ¶ 168. The let ter went on to inform Jefferson that the IC had therefore “closed the complaint and will take no further action on the matter.” Id. According to Jefferson, this dete rmination was fundamentally fl awed. He alleges that the decision to close his Complaint was in fact unconstitutional, a s he asserts that the IGA provisions governing the composition of the IC violate the Appointments Cl ause. Id., ¶¶ 231-232; see U.S. Const., art. II, § 2, cl. 2. Arguing t hat the members of the I C are “officers” within the meaning16 of the Clause, Plaintiff conte nds that their method of appointm ent does not fulfill the constitutional requirements for such positions. Id. Although this claim is certainly creative, the Court concludes that it is als o futile. As discussed below, Pl aintiff does not have standing to bring his Appointments Clause count, and, even if he did, he wo uld not prevail on the merits.
1. Standing The Court considers first the th reshold issue of whether Jeffer son even has standing to advance such a count. He allege s that he was “injured by [the] constitutionally invalid IC holding . . . that it lacked jurisdi ction to consider his merit orious CIGIE Complaint,” and “by jurisdictional rules issued in whole or in part by the IC that purportedly deprived it of jurisdiction in contravention of the IGA.” S AC, ¶ 233. Plaintiff further a lleges that the IC ruling forced him to “pursue an expensive federal lawsuit in order to seek review of [Petrole, Cunningham, Russ, and Powell’s] abuses . . . instea d of CIGIE and the IC.” Id., ¶ 172. Are these alleged injuries sufficient for standing? Defendants argue in the negativ e, citing the same reasons that the Court relied on in finding he lacked standing to bring o ther allegations regarding the IC determination. See Opp. at 29. The Court did previously dism iss Jefferson’s APA and due-p rocess claims against CIGIE because, as a private citizen, he lacked “a judicially cognizab le interest in the prosecution or nonprosecution of another” and cou ld not seek to “compel [a] go vernment investigation of another.” Jefferson, 170 F. S upp. 3d at 221. Because he could not “establish an injury traceable to the challenged action – i.e. , the [IC’s] decision not to inves tigate” – the Court concluded that he lacked standing to pursue hi s CIGIE claims. Id. at 221. Ac cording to Defendants, this conclusion applies with equal for ce to Jefferson’s new count ag ainst the IC under the Appointments Clause. They assert that even under the relativel y broad standing approach for17 such challenges, Plaintiff stil l cannot establish a cognizable injury arising from the IC’s inaction. See Opp. at 30-31. The Court agrees. Although this Ci rcuit has held that Appointm ents Clause claims “will proceed even where any possible injury is radically attenuated, ” Jefferson’s alleged injury is nonetheless insufficient to c onfer standing in this case. See Landry v. FDIC, 204 F.3d 1125, 1131 (D.C. Cir. 2000). The prior de cisions addressing standing in Appointments Clause cases all featured plaintiffs who had, in f act, been subject to an actionby the official whose appointment they challenged as constitu tionally invalid. See id. at 1128-3 0 (plaintiff challenged FDIC process for appointing ALJs af ter having been removed from posi tion as bank officer based on ALJ decision); Freytag v. CIR, 501 U.S. 868, 871-72 (1991) (pla intiffs challenged process for appointing Special Trial Judge w ho assessed federal income-tax deficiencies against them); Tucker v. Comm’r, 676 F.3d 1129 (D.C. Cir. 2012) (taxpayer chal lenged process for appointing IRS Office of Appeals employees after those employees heard pla intiff’s challenge to taxdeficiency determination). Here, by contrast, the Court ha s already concluded that Jeffer son’s alleged harm – a governmental decision not to inves tigate others – involves no “ judicially cognizable interest.” 170 F. Supp. 3d at 221; cf. Futch v. Fine, 2009 WL 565616, at * 1 (D.D.C. Mar. 5, 2009) (“There is . . . no such thing as a due proce ss right to an investigati on by the . . . Inspector General.”). Challenges under the Appointments Clause may require a lesser d egree of causati on between the alleged harm and the constitutional violation, but it does not follow that any asserted injury is cognizable in such contexts. Because Jefferson cannot allege a legally protected interest in the IC’s non-investigation, he is una ble to establish standing even under the permissive standards of18 the Appointments Clause. The Cour t therefore concludes that it would be futile to permit amendment on this count.
2. Merits Although the Court finds that J efferson lacks standing, it will , out of an abundance of caution, briefly address the mer its of this count. The Appoint ments Clause states: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Amb assadors, other public Minister s and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided fo r, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Depar tments.
U.S. Const. art. II, § 2, cl. 2. The Constitution thus “limits congressional dis cretion to vest power to appoint ‘inferior Offi cers’ to three sources” – the Pr esident, the heads of governmental departments, and the courts. See Freytag, 501 U.S. at 878. Ac cording to Plaintiff, the composition of the IC runs a foul of this provision. Specifically, Jefferson asserts th at the four members of the IC who are appointed by the CIGIE Chairperson, see 5 U.S.C . App. 3 § 11(d)(2)(A)(ii), are i nferior officers within the meaning of the Appointments Clause; the Chairperson thus has no authority to appoint them. See Reply at 23-25. In response, Def endants assert that the IC members are not inferior officers, but are instead “lesser functi onaries” (also cal led “employees” ) within the government, who “need not be selected in compliance” with the Appointments Clau se. See Opp. at 31 (citing Freytag, 501 U.S. at 880). Unfortunately, as the Court of Appeals has conceded, “[t]he lin e between ‘mere’ employees and inferior officers is anything but bright.’” Land ry, 204 F.3d at 1132. The Supreme Court has applied a wid e range of definitions to the “i nferior officer” role, inter alia ,19 (1) those charged with “the ad ministration and enforcement of t he public law,” Buckley v. Valeo, 424 U.S. 1, 139 (1976); (2) those granted “significant a uthority,” id. at 126; (3) those with “responsibility for conducting civ il litigation in the courts o f the United States,” id. at 140; and (4) those “who can be said to hol d an office,” United States v. Germaine, 99 U.S. 508, 510 (1879), that has been created e ither by “regulations” or by “st atute.” United States v. Mouat, 124 U.S. 303, 307-08 (1888); see also Free Enter. Fund v. PCAOB, 56 1 U.S. 477, 539 (2010) (Breyer, J., dissenting) (collec ting “inferior officer” definit ions). This Circuit has in turn attemp ted to provide guidance when it comes to distinguishing “lesser functionaries” from suc h officers. “The main criteria for drawing the line between inferior Officers and employees not covered by the clause are ( 1) the significance of the matters resolved by the officials, (2) the discretion the y exercise in reaching their decisions, and (3) the finality of those decisions. ” Tucker, 676 F.3d at 1133. The C ircuit has stated, moreover, that the third prong – finality – can be dispositive when drawing the li ne between officers and subconstitutional employees. Id. a t 1143 (noting that Landry h eld that “the absence of any authority to render final decisi ons [was] fatal to the claim th at the [persons] at issue were Officers rather than employees ”). And, although other circuits disagree with Landry’s emphasis on finality, see, e.g., Bandimere v. SEC, 844 F.3d 1168, 1183 ( 10th Cir. 2016) (holding that “final decision-making authority” is not “the cr ux of inferior officer status”), it for the time being remains binding upon this Court. S ee Order, Raymond J. Lucia C os. v. SEC, No. 15-1245 (D.C. Cir. June 26, 2017) (denying by an equ ally divided court petiti on for en banc review to consider,
inter alia , whether to overrule Landry). Here, the ICs, like the ALJs in L andry, are charged solely with “review[ing] and refer[ring]” allegations of wrongdoing, and the Committee’s inv estigative power includes no20 binding or final authority. S ee 5 U.S.C. App. 3 § 11(d)(1),(7) . As a result, the Court need not look beyond the lack of finality affo rded to the IC’s decisionm aking to determine that the Commission members are not infer ior officers. Under the IGA, t he IC is authorized only to refer allegations to executive-branch a gencies or to make recommendat ions to the Executive Chairperson of CIGIE, the Presi dent or head of a designated Fed eral entity, or the congressional committee of jurisdiction. S ee 5 U.S.C. App. 3 § 11(d)(5), (d) (8)(A-B) (2014). These referrals and recommendations have no bindin g or legal effect, and, as Pl aintiff concedes, the final disposition of any given matter fa lls outside the IC’s jurisdic tion. See SAC, ¶ 231 (stating that “neither the President nor ag ency head are bound to execute the IC’s disciplinary recommendations”). Defendants re present, moreover, that the “t he IC’s declination to conduct an investigation has [no] beari ng on a final determination.” O pp. at 33. Just as this Circuit held in Landry that the ALJs in that case were “employees” rather th an officers because they lacked any “power of final decision,” so t oo are the members of the IC imbued with no such powers. Landry, 204 F.3d at 1134. At bottom, the refore, the authority of the IC is solely advisory. Because the Commission holds “purely recommendatory” authority, id., the Court concludes that its members are not inferior officers for the purposes of the A ppointments Clause. The Court notes, moreover, that even if the IC members did have sufficient powers to be considered inferior officers, P laintiff’s Appointments Clause c laim would nonetheless be futile. This is because each of the mem bers of the IC appointed by the Chairperson has already been properly appointed as a gove rnment officer. Under the 2014 ver sion of the IGA, the IC is made up of three statutorily specifie d appointees and four Inspector s General appointed by the Chairperson of the Council. S ee 5 U.S.C. App. 3 § 11(d)(2). T hese eligible IGs are defined under subsection (b)(1), which gove rns CIGIE membership and sta tes that the Council consists,21 in relevant part, of “all [IGs] whose offices are established u nder” Section 2 or 8G of the Act. Id. Those Sections in turn provide t hat IGs shall either be “appoin ted by the President, by and with the advice and consent of the Sen ate,” or, for certain “Federal entities,” sha ll be “appointed by the head of the designated Federal entity.” Id., §§ 2, 3, 8(G) (c). It follows, therefore, that the IGs selected by the CIGIE chair person to serve on the Commission have already been cons titutionally appointed as gove rnment officers. That is, they have either been appointed by the President or have been select ed as IGs by their respective “Heads of Departments.” U .S. Const. art. II, § 2, cl. 2. Inde ed, Plaintiff admits as much. See Reply at 23 (stating that “a pe rson cannot be appointed to a ma jority of the IC member positions without being an Officer of t he United States”). Jefferson nonetheless asserts that the fact that the selected I Gs are members of the Commission in addition to functionin g as agency IGs requires th em to be appointed anew. The caselaw is clear, however, that officers need not be re-appoint ed simply because they take on additional governmental duties . In Weiss v. United States, 510 U.S. 163 (1994), for instance, the Supreme Court rejected the ar gument that commissioned officers assigned to serve as military judges must be separately appoint ed to such a role pursuant to the Appointments Clause. The Court held that the officers , who had been appointed by the Pre sident, could hold a military judgeship without requiring a “se cond appointment” under the Cl ause “before assuming their judicial duties.” Id. at 1 70. Although the Court recognized t hat “military judges must possess certain qualifications” above a nd beyond those of commissioned officers, it reasoned that the “role of military judge is ‘germane’ to that of military office r.” Id. at 170-71, 176 (noting that “no one could seriously contend tha t the positions of military lawyer or pilot, for example, are distinct offices because officer s performing those duties” are specially selected or possess22 additional credentials). The C ourt therefore concluded that th e Appointments Clause required no additional appointment “before military officers may discharge the duties of [military] judge.” Id. at 176. Here, too, the role of a member of the IC is “germane” to tha t of an Inspector General. As Plaintiff himself asserts, the IG members of the IC “carry o ut functions that at least mirror . . . those that they carry out as Insp ectors General of their own ‘F ederal entities.’” Reply at 24. Contrary to Jefferson’s claim th at the IGs on the IC “were not properly appointed and confirmed to serve in their roles as memb ers of the [Committee],” id. at 23, therefore, the selection of IGs for this related, secondary rol e does not require an additional appointment under the Appointments Clause. The Court, accordingly, conc ludes that on both standing and the merits of his claim, Plaintiff’s Appointments Clause count is futile, and amendment is thus unwarranted.
IV. Conclusion As discussed above, much of Jefferson’s proposed Second Amended Complaint may not proceed; indeed, Counts II and III are pled for appeal-preserva tion purposes only. For the sake of clarity and brevity – and so t hat Defendants require no pers picacity to discern what remains alive – the Court will require t hat Plaintiff file a new versio n of his Second Amended Complaint alleging only his due-process cl aims, and setting forth only th e facts that relate to these claims. This version of the Complaint shall be limited to 35 pages and shall be filed by January 18, 2018. A contemporaneous Order so sta ting shall issue this day.

Date: January 4, 2018
/s/ James E. Boasberg JAMES E. BOASBERG23 United States District Judge