1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RAYMOND M. JEFFERSON , Plaintiff,

v. Civil Action No. 14
- 12 4 7 (JEB) SETH D. HARRIS, et al. , Defendant s .

MEMORANDUM OPINION “[F] or t he citizen

- critic of government[, i] t is as much his duty to criticize as it is the official ’ s duty to administer. ” N.Y. Times Co. v. Sullivan , 376 U.S. 254, 282 (1964) . But what obtains when the roles are mixed and it is the official’s duty to play critic? For Plaintiff
Ra ymond Jefferson, a former high

- level appointee in the Department of Labor who believes himself the victim of an Inspector General’s defamatory campaign , the governmental critic must be held to account

. This is particularly so when, as alleged here, the c ritic’s accusations were false and misleading , and were widely repeated in the national press

. Because Plaintiff knows he cannot sue the government directly in tort for libel

– as such a claim would be statutorily barred

– he has concocted a number of ot her causes of action grounded in the Constitution, the Administrative Procedure Act , and the Inspector General Act , all of which he now brings against the government and several officials

. While he may have reason to feel knocked down and mistreated , he has , for the most part, failed to identify a colorable l egal theory to support his suit. The Court will thus grant the bulk of Defendants’ Motion to Dismiss , leaving only Plaintiff’s due

- process claim against the government to proceed.2 I. Background All facts are taken from Plaintiff’s Am ended Complaint

– which the Court must presume to be true at this stage of the litigation

– as well as documents referenced therein , such as official government reports and matters of public record

. The facts of this case chiefly cover a period of time in which Plaintiff served as Assistant Secretary of Labor for Veterans’ Employment and Training Services (VETS) , a “senior political” position he was appointed to fill by President Obama in 2009

. See Am. Compl., ¶¶ 6, 17, 25; Pres. Nomination No. 527, 111th Congress (2009

- 2010) (confirming Jefferson by voice vote on Aug. 7, 2009). His central grievance concerns an investigation and resulting R eport by the Department of Labor’s Office of Inspector General (DOL

- OIG), which “accused Jefferson

. . . of legal and ethical violations ” for allegedly pressuring a subordinate to steer contracts to three individuals

“ in violation of federal procurement rules , ” such as competitive

- bidding requirements. See Am

. Compl., ¶ ¶ 24 , 51

. D iving immediately into the details of that inv estigation and the R eport , however, would be to start in medias res ; a few background facts are important to give context to the dispute

. The Court has arranged them in chronological order as best it can

– no small feat given the Amended Complaint’s Faulknerian sense of time and consistent failure to assign even approximate dates to critical facts.
A. Jefferson’s Work as Assistant Secretary As Jefferson sees it, when he joined D OL in mid

- 2009 , he inherited an office rife with

“ operational and management problems , ” which extended throughout VETS’ organizational chart, including its nerve center for contract and procurement actions

– the Office of Agency Management and Budg et (OAMB). Id. , ¶ 17. At the time, VETS’ OAMB was led by Director Paul Briggs and Deputy Director Angela Freeman. Id. “In order to improve performance at VETS,” Plaintiff believed it would be prudent to hire a handful of “renowned management3 consultant s and experts in leadership” from outside the government

– namely, Stewart Liff, Ron Kaufman, and Mark Tribus. Id. , ¶ 18. His objective was to have them carry out “organizational and program assessments, management reviews, and comprehensive training for all staff in order to increase performance, efficiency, and effectiveness.” Id.
To accomplish this, he d irected two of his subordinates

– Deputy Assistant Secretary for VETS John McWilliam and Chief of Staff Amit Magdieli

– to arrange for their hiring. Id. He told them to “act ‘legally, ethically, but also quickly.’” Id. , ¶ 19. Those two then turned to Freeman and Briggs in OAMB for help with “all contracting methods and decisions regarding hiring Liff and Kaufman.” Id. According to Plaintiff , his inv olvement in the hiring process for the most part ended there ; the bulk of the critical hiring actions were executed by others

. See id. , ¶ 25. In particular , he alleges that McWilliam and Magdieli oversaw the implementation of Jefferson’s simple direc tive , and that Freeman and Briggs

– in consultation with procurement officials in Labor’s centralized procurement office, the Office of the Assistant Secretary for Administration and Management (OASAM)

– took responsibility for the nuts and bolts of gettin g the consultants hired. See id. , ¶¶ 20

- 21, 25

- 27. Having thus set the stage, one would expect Plaintiff to turn next to the actual contracts that were the focus of the OIG’s investigation. Unfortunately , he never clearly articulates how these three indi viduals came to be hired, despite titling a section of his Amended Complaint “The Three Contracts At Issue.” Am. Compl. at 8. Notwithstanding the stream

- of

- consciousness narrative that ensues , the Court has attempted to piece together what happened by lo oking at the Complaint alongside the DOL

- OIG R eport and its Cover M emorandum. As far as the Court can tell, the three consultants were “hired” in several different ways . Liff appears to have principally been hired via subcontracts with companies that had existing4 contracts with either DOL or the Office of Personnel Management. See Mot., Exh. A (DOL

OIG Report No. 14

- 1301

- 0002 I A) (“DOL

- OIG Report”) at 25

- 26; id. at 5

- 10 ; Am. Compl., ¶ 25

. Tribus appears to have been hired directly by DOL, although it does not seem that he was ever given a “contract” as that term is normally understood. See Am. Compl, ¶ 27 (“Jefferson obtained written, pre

- approval from DOL’s legal counsel

. . . for hiring and paying Tribus

. . . .”). Instead , DOL arranged for him to be paid via credit card. See DOL

- OIG Rep. at 40

- 50 (describing paying Tribus by credit card on two occasions). Finally, Kauffman was not ever “hired” at all. On the contrary , according to the Report , the problem with Kaufman was that DOL received his services for free , even though DOL’s prime contractor ended up having to improperly foot the bill. See DOL

- OIG Rep. at 38 (arguing that DOL “improper[ly] accept[ed ]” services from Kaufman for free ). Whatever form they ultimately took , these personnel actions formed the basis of what
came next

– viz. , DOL

- OIG ’s investigation and R eport

. See Am. Compl., ¶¶ 24, 29

- 51 (complaining of the “Report’s False Legal And Factual Conclusions”).
B. The DOL

- OIG Investigation According to Jefferson, the investigation was poisoned from the get go , since he believes it originated with two of his disgruntled charges in VETS’ procurement and budget office (OAMB) : Freeman and Brigg s. See id. , ¶ 29. The bad blood started, apparently, “after Jefferson and McWilliam disciplined Briggs and Freeman for poor performance and for making false
statements

. ” Id. , ¶ 28. Thereafter, Freeman resigned from the agency, “[b]ut she did not go qui etly.” Id. She “filed three bogus Equal Employment Opportunity

. . . claims against them that were quickly dismissed,” and then proceeded to file “ the OIG complaint at issue here .” Id. , ¶ 29; see DOL

- OIG Rep. at 4

- 5 (“Freeman said that she sent the anon ymous complaint dated August 3, 2010, to the OIG hotline and added that she no longer wished to remain anonymous.”).5 Briggs also “alleged contractual improprieties” after being disciplined by Jefferson

. See Am. Compl., ¶ 29; see DOL

- OIG Rep. at 1 (“A sep arate complaint submitted by Fergus Paul Brig g s . . . , which referenced the same allegations [as Freeman’s complaint] was received by the OIG on September 21, 2010.”). The investigation began shortly thereafter under the auspices of Acting Inspector Gener al Daniel Petrole

. See DOL

- OIG Rep. at 4. About a year later, and after having interviewed 22 individuals, Petrole issued the final investigative R eport, which addressed five distinct allegations of misconduct

. Id. at 1

- 4 . (The R eport indicates that there are only four allegations, despite rendering five different conclusions. Id. ) The investigation substantiated three of the allegations, partially substantiated one, and concluded that one was unsubstantiated:

Number Allegation Conclusion

1 A/S [Assistant Secretary] Jefferson and DAS [Deputy Assistant Secretary] McWilliam abused their authority by giving Stewar t Liff an advisory and assistance contract and coercing VETS employees into manipulating existing federal contracts in order to hire contractor Liff without the benefit of competition. Substantiated

2 A/S Jefferson and DAS McWilliam accepted a gift from Ron Kaufman that exceeded $25 in value, in violation of 5 C.F.R. § 2635.202. Unsubstantiated [number omitted] A/S Jefferson and DAS McWilliam improperly directed VETS employees to have DOL contractors hire Ron Kaufman without competition , and endorsed his products on the VETS intranet website. Substantiated

3 A/S Jefferson’s actions to obtain training services fr om an associate, Mark Tribus, led to the circumvention of procurement rules. Substantiated

4 A/S Jefferson allowed

. . . Liff to become involved in decisions affecting federal personnel including promotions, hiring, and terminations. Partially Substantiat ed

Id. at 1

- 2. Petrole attached to the Report a Cover M emorandum directed to Seth Harris, then

- Deputy Secretary of Labor, that summarized the findings. See Mot., Exh. B ( Cover Memorandum). The memo stated that “[t]he report describes a pattern of condu ct by Assistant Secretary Jefferson, and consequently by other senior VETS officials, which reflects a consistent disregard of federal6 procurement rules and regulations, federal ethics principles, and the proper stewardship of appropriated dollars.” Id. a t 1. The M emorandum clarified that although Jefferson himself did not necessarily violate procurement rules directly , it was his “insistence upon retaining the services of these [three] individuals [that] resulted in procurement violations by officials in both OASAM and VETS.” Id. at 2. Plaintiff maintains that the entire investig ation

– and thus the resulting R eport

– was riddled with flaws

. See Am. Compl., ¶ ¶ 29

- 50 . Among his grievances are that:

• OIG investigators failed to acknowledge that DOL procurement personnel were the ones responsible for “suggest[ing] and execut[ing]” many of the problematic contract ing decisions, id. , ¶ 30 ;
• T he R eport cites no “objective evidence” that he or his subordinate appointees (McWilliam and Magdieli) “pressur[ed] Freema n or anyone else to do anything ” improper vis

- à

- vis the contracts at issue , id. ;
• I t was not Jefferson’s l egal responsibility, but rather OASAM’s, to “ensur[e] that procurement rules [were] followed,” id. , ¶ 31 ;
• Freeman is responsible for any procureme nt misconduct regarding Kaufman because she “unlawfully approved the work on her own initiative and without a uthority,” id. , ¶ 32;
• A ny procurement violation resulting from the payment of Tribus is not Plaintiff’s fault because he received advance approval to pay Tribus from the Department’s Deputy Solicitor, who also “twice informed [DOL

- OIG] investigators

. . . that Jefferson’s actions were ‘both legal and ethical,’” id. , ¶ 33;
• T he R eport falsely states that “Liff and Kaufman were former colleagues of Jefferson at a consulting firm , ” thus suggesting Jefferson had nepotistic motives, when “Jefferson had ne ve r been a colleague of” either , id. , ¶ ¶ 34

- 35 ;
• T he investigators never notified Jefferson that he was the subject of the investigation or what the allegations were, id. , ¶ ¶ 36 , 39 ;
• T he authors of the Report failed to disclose any impeachment evidence regarding Freeman’s and Briggs’s initial complaints, in violation of “the Giglio Policy,” id. , ¶ ¶ 40 , 43, 46 ; 1

• T he authors offered no “objective basis for finding[] ” that Jeffers on violated various policies but “relied almost exclusively on Freeman’s statements of feeling pressured by Jefferson to violate procurement rules without any corroborating testimonial or

1 The Court presumes the “Giglio Policy” refers to the Department of Justice’s policy regarding compliance with the Supreme Court’s decision in Giglio v. United States , 405 U.S. 150 (1972), which concluded that the Due Process Clause requires prosecutors in a criminal case to disclose certain impeaching information about cooperating witnesses. See Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information (Dec. 9, 1996), available at : http://www.justice.gov/ag/policy

- regarding

- disclosure

- prosecutors

- potential

- impeachment

information

- concerning

- law

.7 documentary evidence,” id. , ¶ 41;
• The authors distorted witness testimony to make it seem like Plaintiff “ignored Magdieli’s advice not to proceed” with certain contracts , id

. , ¶ 42;
• The authors committed legal errors by claiming various procurement actions were unlawful when, according to Jefferson, they were not, id

. , ¶ ¶ 44

- 45, 47;
• The R eport provided no citations to legal authority to support its claims of unlawfulness and unethical behavior , id. , ¶ ¶ 48

- 49, 51; and
• T he authors invented a “knew or should have known” standard of fault to blame Jefferson for the cont racting mishaps because they lacked direct evidence that he had pressured anyone to violate procurement rules or ethical policy restrictions

. I d. , ¶ 50.
C. Jefferson’s Resignation and Publication of the Accusations As the Court already noted, the DOL

- OIG Report and C over M emorandum were issued directly to Jefferson’s boss, Deputy Secretary Harris , on July 21, 2011

. Id. , ¶ 52. The next day , Harris called Jefferson into his office and placed him on administrative leave without giving him a chance to read either document. Id. , ¶ ¶ 53

- 54 . Harris also prevented Jefferson from “ accessing information and evidence with which he could refute the M emorandum’s f alse charges”

– for instance, by denying Jefferson access to his personnel records and banning him from contacting VETS staff. Id. , ¶¶ 53, 55 (“ You . . . are not to use or access DOL

- issued equipment; you are not to have any contact with VETS staff; and you are not to contact any of the parties who were involved in this matter .”) . About a week later, however, Harris “gave Jeff erson a redacted version of the R eport,” albeit without any of the exhibits. Id. , ¶ 56. On July 26, 2011, Jefferson ’s attorney reached out to Harris to request the full, unredacted R eport, informing him that “Jefferson had a right to review the entire record and be heard in order to refute the allegations.” Id. , ¶ 57. Harr is responded that same day , “ telling Jefferso n that he had four hours in which to resign or be fired.” Id. , ¶ 58. He stated that if Plaintiff resig ned, he would receive one month ’ s severance, but that if he refused or failed to resign by close of business, he would be fired “immediately and without any severance pay.” Id. Although Jefferson’s counsel asked for an additional day to review the redacted R eport, Harris8 declined

. Id. , ¶ 59 (“Harris told Jefferson: ‘You have no due process right!’”). Jefferson submitted his resignation to the Secretar y of Labor that afternoon. Id. , ¶ 61. According to the Complaint, his ill treatment did not end there. The very next day, DOL and DOL

- OIG held a joint press conference at which they “publicly disseminat[ed ] the Report’s and Memorandum’s false charges, errors of fact, and mistakes of law.” Id. , ¶ 62. The story was picked up and reported by The Washington Post and other publications. Id. , ¶ 63. The government also sent the R eport to Senator Cla i re McCaski ll, then

- Chair of the Homeland Security Subcom mittee on Contracting Oversight, who also held a press conference about the investigation. Id. , ¶¶ 64

- 65. Adding more salt to the wound, t he media again picked up that story and published the purportedly fals e charges. Id. , ¶ 65.
D. Post

- Resignation Name

- Clearing Efforts Right around the same time as the joint press conference , Jefferson and his lawyer contacted DOL’s lawyers in an effort to challenge the R eport’s conclusions

. Id. , ¶ 66. In a meeting with the Solicitor of Labor , Plaintiff identified various deficiencies in the Report and sought access to all materials necessary to exonerate himself, including an unredacted version of the R eport and its exhibits. Id. He was told by m emorandum that he was still prohibited from contacting VETS staff and accessing his files until September 1, 2011, and that the government would treat his request for the full R eport under the Freedom of Information Act. See id. , ¶¶ 67, 53. H e ultimately received the full R eport, although not a full set of unredacted exhibits. Id. , ¶ 67. On August 31, 2011

– “the day before Jefferson could begin contacting his former DOL colleagues and start the process of clearing his name”

– Harris pos t ed on DOL ’s website anoth er memorandum that “ratified many of the Report’s and [Cover] Memorandum’s legal and factual
errors.” Id. , ¶¶ 68

- 69. Jefferson claims he was given no notice that such a document was going9 to be published and no opportunity to rebut it. Id. Several yea rs later, Jefferson sought to clear his name by another avenue. On July 20, 2014, he filed a complaint with the Council of the Inspectors General on Integrity and Efficiency (CIGIE) against DOL

- OIG and the relevant investigators for “violating OIG regulat ions, the [Inspector General Act], the APA, and Jefferson’s due process rights by failing to conduct a full and fair investigation” and issuing a “legally and factually false” R eport. Id. , ¶ 78. Three months later, CIGIE’s Integrity Committee issued a le tter to Plaintiff indicating that it would take no action on the matter. Id. , ¶ 80. After his resignation , Jefferson “found it very difficult to obtain a job.” Id. , ¶ 72. In one instance, a company “terminated negotiations” with him for a senior leade rship role when it learned of “the Report’s findings of ethical and legal violations.” Id. In another case, a large executive search and training firm rescinded an offer for him to serve in a senior position after a member of the firm’ s board read about the R eport on the internet. Id. He also “lost opportunities for lucrative public speaking engagements” and had a “lucrative contract” rescinded for the same

reason, id. , ¶¶ 72, 77, and alleges he has suffered “humiliation, anger, and shame from having hi s name and reputation ruined.” Id. , ¶ 73.
E. Procedural History Plaintiff filed suit in July 2014 and amended his Complaint in March 2015, setting forth four distinct counts . Count I accuses DOL

- OIG and the individual officers involved in the investigation

– i.e

. , acting Inspector General Petrole and three subordinates, Asa Cunningham, David Russ, and James Powell

– of violating the APA by disregarding various rules and regulations go verning how OIG investigations are to be conducted. Count II asserts that DOL,
DOL

- OIG, Harris, and the four individuals named in Count I violated his due

- process rights by injuring his reputation, which could have been prevented had he been given a chanc e to fairly10 rebu t the R eport’s allegedly false conclusions. Count III , which he brings against all individual defendants (Harris, Petrole, Cunningham, Russ, and Powell), is a claim for damages flowing from a Fifth Amendment tort violation under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971) . Last , Count IV consists of three different legal claims

– under the Inspector General Act, the APA, and the Fifth Amendment’s Due Process Clause

– against CIGIE for various alle ged shortcomings. In the early stages of this suit, Plaintiff also filed notice of a related case in this Court brought by Stewart Liff against many of the same D efendants. See ECF No. 3; Lif f v. Office of the Inspector Gen., U.S. Dep’t of Labor , No. 1 4

- 1162 (filed July 10, 2014 )

. In January 2016, the Court granted in part and denied in part the government’s motion to dismiss in that case , permitting Liff’s due

- process claims to proceed and declining to decide whether a Bivens remedy was appropriate un der the circumstances presented there. See Liff , 2016 WL 107914, at

* 9, 12 (D.D.C. Jan. 8, 2016)

. Some of the same issues raised there also appear in this Opinion. One final note: the Court’s Local Rules impose page limits for a reason, and the parties’ footnote

- heavy briefs (particularly Plaintiff’s Opposition ) appear plainly calculated to circumvent such limits. Future pleadings in this format will be stricken.
II. Legal Standard In evaluating Defendants’ Motion to Dismiss, the Court must “treat the compl aint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States , 617 F .2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005). This standard governs the Court’s considerations of Defendants’ contentions under both11 Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes , 416 U.S. 232, 236 (1974) (“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”); Walker v. Jones , 733 F.2d 923, 925

– 26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, “ ‘ a legal conclusion couched as a factual allegation, ’ ” nor an inference unsupported by the facts set fort h in the Complaint. Trudeau v. Fed. Trade Comm ’ n , 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain , 478 U.S. 265, 286 (1986) ). To survive a motion to dismiss under Rule 12(b)(1), a p laintiff bears the burden of proving that the Court has subj ect

- matter jurisdiction to hear his claims. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342 & n.3 (2006); Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13

- 14 (quoting 5A Charles A. Wright & Arthur R. Mil ler, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to d ismis s for lack of jurisdiction

. ” Jerome Stevens Pharm. , 402 F .3d
at 1253.
III. Analysis Defendants move to dismiss Jefferson’s Complaint in its entirety. Finding it more logical to address the counts somewhat out of order, the Court will first tackle Plaintiff’s primary due

-12 process claim ( Count II ) , move next to the Bivens question ( Count III ) , proceed to the APA claim brought against DOL, DOL

- OIG , and the individual D efendants ( Count I ) , and conclude with the claims brought against CIGIE ( Count IV ) . The Court ultimately concludes t hat al l but Count II must be dismissed.
A. Due

- Process Violation ( Count II ) Although all of Plaintiff’s Amended Complaint is saturated with language redolent of a due

- process claim , it is in Count II where he most plausibly alleges that his constitutional rights were violated. In brief : he complains that the government falsely accused him of legal and ethical lapses, dragged his name through the mud, and failed to give him the chance to contest the charges against him or adequately pres ent a defense. Those wrongs , in concert with the added stigma brought on by his forced resignation, deprived him of a liberty interest in his reputation, which he asserts is protected by the Fifth Amendment. Before proceeding to the analysis , the Court notes that to the extent this count names individuals, it presumes they are being sued in their official capacity, particularly since Plaintiff’s Bivens action in Count III is asserted against the same individuals and relies on the same legal t heory

. I t will , accordingly, treat Count II as if it were brought only against the agencies and entities themselves

. See Kentucky v. Graham , 473 U.S. 159, 166 (1985) (“[A] n official

- capacity suit is, in all respects other than name, to be treated as a suit against the entity .”). In addition, although Plaintiff in his Opposition insists that Count II alleges both substantive and procedural due

- process violations, see Opp. at 26, the Amended Complaint contains not a single suggestion that Jefferson inte nded to advance the former

. See Am. Compl., ¶¶ 85

- 95. Because he failed to plead such a theory there , the Court will not address it here. See Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv. , 297 F. Supp. 2d 165, 170 (D.D.C.13 2003) (“It is axi omatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (citation and internal quotation marks omitted). Reputation Plus vs. Stigma Plus

“ To state a claim for the denial of procedural due process, a plaintiff must allege that (1) the government deprived [him] of a ‘ “liberty or property interest” to which [ he ] had a “ l egitimate claim of entitlement,” and (2) that “ the procedures attendant upon that deprivation were

c onstitutionally [in]sufficient. ”’ ” New Vision P hotography Program, Inc. v. Dist. of Columbia , 54 F. Supp. 3d 12, 28 (D.D.C. 2014) (quoting Roberts v. United States , 741 F.3d 152, 161 (D.C. Cir. 2014) )

. Plaintiff argues that under longstanding Supreme Court precedent, he has a constitutionally protect ed liberty interest in his reputation , which was damaged when the government falsely accused him of procurement misconduct and forced him to resign

. See Bd. of Regents of State Colleges v. Roth , 408 U.S. 564, 573 (1972) (“[W ]here a person’s good name,
rep utation, honor, or integrity is at stake because of what the government is doing to him,” that person’s liberty interest is on the line, meaning that “notice and an opportu nity to be heard are essential. ” ) (quotations and citation omitted). In this circu it, a plaintiff may avail himself of two different legal theories to e stablish a reputation

- based due

- process violation. See Hutchinson v. CIA , 393 F.3d 226, 231 (D.C. Cir. 2005). The first, commonly called a “reputation plus” claim, requires “the conjunction of official defamation and [an] adverse employment action.” O’Donnell v. Barry , 148 F.3d 1126, 1140 (D.C. Cir. 1998). To plead such a claim, the plaintiff must meet three requirements. First, he must allege “that the government ’ s defamation resulted in a harm to some interest beyond reputation,” such as a “l oss of present

. . . government employment ,” Doe v. U.S. Dep’ t of14 Justice , 753 F.2d 1092, 1111 (D.C. Cir. 1985), or a demotion in rank and pay. See O’Donnell , 148 F.3d at 11 40. Second, he must “allege that the government has actually stigmatized his or her reputation by, for example, charging [him] with dishonesty ” or “unprofessional conduct.”
Doe , 753 F.2d at 1111. Third, he must plead facts indicating “that the stigma ha s hampered future employment prospects.” Id. His second option is to pursue what is known as a “stigma plus” theory

. This theory “differs from the [reputation

- plus theory] in that it does not depend on official speech , but on a continuing stigma or dis ability arising from official action .” O’ Donnell , 148 F.3d at 1140 (emphases added) . In other words, w here a “reputation plus” theory requires some form of defamatory or stigmatizing speech by the government, the latter depends only on government al imposition of “a continuing stigma or other disability arising from official action ” that

“ foreclosed the plaintiff’s freedom to take advantage of other employment opportunities.” Id. (internal quotation marks and brackets omitted). Although Plaintiff advances both theories, he has adequately pled only the former

– that is, (1) an adverse employment action, such as involuntary loss of government employment, (2) a stigmatizing or defamatory act by the government closely connected with that adverse action , and (3) a “hamper[ing]” of his subsequent employment prospects

. See Doe , 753 F.2d at 1111

- 12 (denying government’s motion to dismiss where plaintiff alleged she “was discharged on the basis of allegations of unprofessional conduct and dishonesty, and th e charges were allegedly disseminated to prospective employers, public and private”)

. Jefferson has not, conversely, made out a claim under a stigma

- plus theory. “Under this line of cases, a government action that potentially constrains future employmen t opportunities must involve a tangible change in status.” Kartseva v. Dep’ t of State , 37 F.3d 1524, 1527 (D.C.15 Cir. 1994). Such a change may be shown in one of two ways. The f irst is if the government’s actions “ fo rmally or automatically exclude[d]” Pl aintiff from future government employment opportunities

– e.g. , by making “ a binding determination to disqualify ” him from further employment

. Id. at 1528

- 29

. Plaintiff’s Complaint contains no such claim , so he must rely on the second path: alleging that even if the government did not make a formal disqualification, its actions nevertheless had the “ broad effect of largely precluding [him] from pursuing [his] chosen

career , ” id. at 1528

– meaning that “his ability to pursue his chosen profession has been ‘seriously affected, if not destroyed.’” O’Donnell , 148 F.3d at 1141

- 42 (quoting Kartseva , 37 F.3d at 1529 ). Here, too, Jefferson’s Complaint falls short. H e proclaims that he has “found it very difficult to obtain a job,” Am. Compl., ¶ 72, but he does not allege that he has been broadly precluded from working in his field

. E ven though his allegations suffice to show some “hampering” of his employment prospects, h is episodic anecdotes of having had one job offer revoked , having final negotiations t erminated in another, and losing a handful of public

- speaking opportunities are insufficient to show broad preclusion from continuing his career. See Kartseva , 37 F.3d at 1529 (“[I]f [the plaintiff] has merely lost one position in her profession but is no t foreclosed from reentering the field, she has not carried her burden

. . . .”) ; Taylor v. Resolution Trust Corp. , 56 F.3d 1497, 1506 (D.C. Cir. 1995) (“[P]laintiff may demonstrate that the government’ s action precludes him

. . . from such a broad range of opportunities that it interferes with [his] constitutionally protected right to follow a chosen trade or profession. ”) (internal quotations and citation omitted). Although the reputation

- plus claim, unlike the stigma

- plus one, may be facially sufficient , the government nonetheless offers a series of arguments challenging its validity. The16 Court now takes those up. FTCA Defense
Just as it argued in Liff , 2016 WL 107914, at *5, the government first insists that Count II must be dismissed because it i s rea lly just a defamation claim masquerading as a constitutional

one . See Mot. at 10. The argument goes like this: because Count II involves allegations of defamation , it must in fact be a defamation claim, and therefore it may only properly be pled under the Federal Tort Claims Act , the statute governing all tort claim s lodged against the federal government. See 28 U.S.C. § 2671 et seq
. But because the FTCA specifically precludes the bringing of defamation claims against the government, see id. § 2680(h ), Plaintiff’s count cannot survive

. Tidy as it is, this syllogism is built on a shaky foundation , for it presumes that just because Plaintiff’s claim possesses some of the same characteristics of a defamation claim , it must by necessity be a defamation c laim. As the Court observed in Liff , this argument might hold water if Jefferson had “ limited [his] Complaint to seeking damages resulting from

‘ defamati on by the government

. . . alone,’

. . . . But the allegations in the Complaint a llege more than just defamation

. . . . [a] nd [ Plaintiff ] seek [s] more than just monetary relief for past harms

– namely, a wide range of injunctive remedies. ” Liff , 2016 WL 107914, at *5 (quoting Paul v. Davis , 424 U.S. 693, 701 (1976) ). In attacking not only the defamatory statements themselves, but also his loss of employment and the inadequacy of the procedural protections available for challenging the accusations levied against him, Plaintiff makes clear that he is not simply relying on artful pleading to constitutionalize a simple tort claim. Just as the Court concluded in Liff , this defense falls flat.17 Failure to State a Claim The government next argues that because Jefferson was not fired, but rather resigned , it owed him no procedural protections. Specifically, it insists that any resignation, even an involuntary one, does not count as an “adverse action” for the first element of a reputation

- plus due

- process claim. In the alternative, it argues that even if an involuntary termination (or
“construc tive discharge”) satisfies the adverse

- action requirements, Jefferson’s resignation was voluntary. The Court considers both contentions below.

a. Constructive Discharge as Adverse Action
T he government’s f irst argument is that a resignation

– even if involun tary

– is not an “adverse action” under the Roth line of due

- process cases. See Mot. at 14. In support of this position, the government relies almost exclusively on Evans v. Dist. of Columbia , 391 F. Supp. 2d 160 (D.D.C. 2005) , a reputation

- plus case in which a n employee’s resignation, obtained under threat of termination, was deemed to have vitiated any liberty interest he may have had in his reputation

. Id. at 168. T he court there reasoned that “ a forced resignation is not enough to make out a liberty interest claim ” because , as a matter of law, the stigma stemming from “resignation from one’s position, even under the threat of termination

. . . does not have so negative an effect on future employment opportunities as to raise due process concerns.” Id. at 167

- 68.
T his Court is not inclined to follow Evans

. As an initial matter, Evans correctly acknowledged that “[the D.C.] [C]ircuit appears never to have held squarely that a constructive discharge or forced resignation is an insufficient basis” for such a claim. Id. at 168. Indeed, the three D.C. Circuit cases Evans cited as supporting its conclusion all dealt with direct terminations or demotions, and thus none had occasion to decide whether there might be circumstances under which a constructive discharge might also suffice. See O’ Donnell , 148 F.3d18 at 1140 (demotion); Orange v. Dist. of Columbia , 59 F.3d 1267, 1274 (D.C. Cir. 1995) ( termination ); U.S. Info. Ag ency v. Krc , 905 F.2d 389, 397 (D.C. Cir. 1990) ( termination ). More important , however, is that the facts alleged here illustrate that a constructive discharge may, in some circumstances, be as stigmatizing as an actual, “official” termination. As

a rem inder, DOL

- OIG issued the Report to Harris on July 21, 2011. See Am. Compl., ¶ 52. Harris placed Jefferson on administrative the next day and then asked for his resignation on July
26

. Id. , ¶ ¶ 53 , 57

- 58 . On July 27 , DOL and DOL

- OIG held their joint press conference at which they “publicly disseminat[ed] the Report’s and Memorandum’s false charges, errors of fact, and mistakes of law.” Id. , ¶ 62. Senator McCaskill held another press conference on the matter the fol lowing day. Id. , ¶ 65. About a month later, Harris publicly posted a memorandum “ratif[ying]” the Report’s conclusions and confirming that Jefferson had violated government ethics standards and procurement rules. Id. , ¶¶ 68

- 69. In sum, the government’s sharp accusations , issued both shortly before and after Jefferson’s swift exit , leave the distinct impression that he was pushed out because of the alleged misconduct

. While there may be circumstances in which a resigning official may plausibly imply , “‘ I wasn’t fired; I quit to return to my career in private life,’” Graehling v. Vill. of Lombard, Ill. , 58 F.3d 295, 297 (7th Cir. 1995), this does not appear to be one of them. The Court thus cannot conclude , as a matter of law, that the stain of governmen tal opprobrium is always lifted where a plaintiff has a hand in his own removal. The notion that involuntary resignation cannot constitute an adverse action for due

process purposes also stands in tension with this circuit’s doctrine of constructive disc harge, which permits an employee who “cannot show that she was actually terminated”

– for purposes of constitutional or federal statutory violations

– to demonstrate that because her “resignation

. . .19 was involuntary, [it] was effectively a termination.” Keyes v. Dist. of Columbia , 372 F.3d 434, 438 (D.C. Cir. 2004) ; accord Aliotta v. Bair , 614 F.3d 556, 566 (D.C. Cir. 2010) (“[T]he doctrine of constructive discharge enables an employee to overcome the presumption of voluntariness [of a resignation] and demonstrate she suffered an adverse employment action by showing the resignation or retirement was, in fact, not voluntary. ”) (emphasis added). Particularly important is that , in Keyes , establishing an “adverse action” was essential to plaintiff’s statuto ry and constitutional claims, including a deprivation of a liberty interest under the Due Process Clause.
See 372 F.3d at 437. A lthough the c ourt ultimately agreed with the district court that, on the
summary - judgment record before it, Keyes had failed t o adduce evidence of involuntary separation, it nevertheless pointed out that , as a general matter, proof of involuntariness would permit the liability question to be put to a jury. See i d. at 438. Finally, the Court notes that the only circuit court to h ave squarely addressed the issue held that an involuntary termination would count as an adverse action , provided the plaintiff could prove the requisite elements of a constructive discharge. See Hill v. Borough of Kutztown , 455 F.3d 225, 233 n.10 (3d Cir. 2006) (“[A] resignation will be deemed involuntary ( i.e. , deemed a constructive discharge) and will thus trigger the protections of the due process clause

. . . under only two circumstances: (1) when the employer forces the employee’s resignation or retirement by coercion or duress, or (2) when the employer obtains the resignation or retirement by deceiving or misrepresenting a material fact to the employee.”). This Court thus concludes that the mere fact that Jefferson resigned does not preclude his bringing a due

- process claim. B ecause “resignations

. . . are presumed to be voluntary,” however, Aliotta , 614 F.3d at 566, he must also allege facts sufficient to establish that his resignation was, in fact, involuntary, and thus “effectively a termi nation.” Keyes , 372 F.3d at20 438. It is this question that the Court now addresses. b. Involuntary Resignation The government next argues that notwithstanding the four

- hour timeframe that Jefferson was given to make his decision, he still had a choice: resig n or be f ired. He chose the former, and given that he admits he conferred with counsel, Defendants maintain that his choice to resign was knowing and voluntary. See Mot. at 14.
A federal plaintiff generally has two options for establishing an involuntary resignation : “(1) that the resignation

. . . was the product of misinformation or deception by the agency; [or] (2) that the resignation

. . . was the product of coercion by the agency.” Staats v. U.S. Postal
Serv. , 99 F.3d 1120, 1124 (Fed. Cir. 1996) ; see Aliotta , 614 F.3d at 567 (stating in less clear language that a plaintiff may prove involuntariness by both avenues). Only the latter is plausibly alleged by Jefferson, and so the Court will limit its focus accordingly.
A plaintiff seeking to establis h an involuntary resignation on the basis of coercion must allege that : “[1] [the] agency i mpose[d] the terms of an employee’s resignation, [2] the employee’ s circumstances permit [ted] no alternative but to accept, and [3] those circumstances were the resu lt of improper acts of the agency. ” Keyes , 372 F.3d at 439; see also Stone v. Univ. of Maryland Med. Sys. Corp. , 855 F.2d 167, 174 (4th Cir. 1988) (adding as relevant factor

“ whether [the employee] was permitted to select th e effective date of resignation ”). It is true that

“ ‘[w ]here an employee is faced merely with the unpleasant alternatives of resigning or being subject to removal for cause , such limited choices do not make the resulting resignation an involuntary act. ’ ” Keyes , 372 F.3d at 439 (quotin g Schultz v. U.S. Navy , 810 F.2d 1133, 1136 (Fed. Cir. 1987)). “ On the other hand, inherent in that proposition is that the agency has reasonable grounds for threatening to take an adverse action. If an employee can show that the21 agency knew that the reason for the threatened removal could not be substantiated, the threatened action by the agency is purely coercive .” Schultz , 810 F.2d at 1136

. The Court concludes that Jefferson’s allegations suff ice at this stage to state a claim for coercive, involuntary termination. Several essential facts from the Complaint illustrate that the circumstances surrounding his departure permit ted only one reasonable option , and that Jefferson maintains that the Ag ency had no legitimate basis for demanding his resignation

. First is that, in contrast with the vast majority of other scenarios involving a claimed involuntary discharge, Jefferson’s “choice” between resignation and discharge was effectively no choice at all. Specifically, his status as a political appointee meant that he was not entitled to any of the pre

- or post

- termination procedural protections enjoyed by the bulk of civil servants under Chapter 75 of the Civil Service Reform Act. See United States v. Fausto , 484 U.S. 439, 447 (1988). For example , CSRA

- covered employees faced with a proposed for

- cause termination receive notice and may challenge such an action before an impartial tribunal. See 5 U.S.C. § 7513(b) (before being terminated, cover ed e mployee entitled to 30

- days notice, a minimum of 7 days in which to provide evidence and argument contesting the termination, and a written decision, among other protections). With those individuals, the choice between resignation and the prospect of for

- cause removal is undeniably an unpleasant one, but there is a meaningful choice nonetheless

. Jefferson , conversely, had no recourse to such statutory protections. As the government itself vehemently argues, “ Because the plaintiff was a member of the excepted service under the [CSRA] , ” and thus not entitled to Chapter 75 ’s procedural guarantees , “ he could be dismissed without cause, without prior notice, without a termination hearing, and without an opportunity to appeal the decision. ” Mot. at 18

. As a result, he could not simply “ stand pat and fight ” the22 agency’ s proposed termination , Christie v. United States , 518 F.2d 584 , 588 (Ct. Cl. 1975) , for he was not entitled to contest it at all. In other words, there was no upside to his choosing
ter mination over resignation. Furthermore, even if he had had the ability to complain, post

termination, to the Merit Systems Protection Board’s Office of Special Counsel

– a remedy that will be discussed in greater detail infra at Section III.B.2

– he would have had that option whether he resigned or was fired. To make matters worse, Jefferson was only given four hours to pick his poison

. See Perlman v. United States , 490 F.2d 928, 932

- 33 ( Ct. Cl. 1974) ( pre - CSRA case finding retirement involuntary when plaintiff given several hours to choose between retirement and being subject to reduction in force )

. He also lacked a complete picture of the allegations against him. Upon his suspension, h e was denied all access to the R eport and then , shortly before hi s resignation , he was given a redacted version without a complete set of its accompanying exhibits.
See Am. Compl., ¶ 67. He was also denied the ability to develop and present any evidence to the
agency , both during his pre

- resignation suspension and in the short window he was given to decide whether to resign. See id. , ¶ 54. Harris even prohibited him from speaking to employees who might corroborate his account of events until the day after his resignation

. See id. , ¶¶ 53 , 67

. Finally, Jefferson has alleged that the government knew or should have known that the reasons underlying his termination were unsubstantiated. See Schultz , 810 F.2d at 1136 (“If an employee can show that the agency knew that the reason for the threatened removal could not be substantiated, the threatened action by t he agency is purely coercive”)

. He alleges, for instance, that the investigators deliberately withheld impeachment evidence about biased witnesses who
sp oke out against him and that they “distorted” ce rtain witness testimony in the R eport t o make it23 appear more damning

. See Am. Compl. , ¶¶ 40, 42. In addition, his allegations that Harris deliberately prevented him from accessing exculpatory information, i ncluding access to government witnesses, also suggests that the Agency was willing to proceed in its chosen course regardless of whether Jefferson might be able to clear his name. Plaintiff has thus set forth sufficient facts that, if proven, could plausi bly establish that he stepped down against his will

. Political Question Defendants next argue that even if Jefferson’s resignation does not doom his claim, the
count must be dismissed as a non

- justiciable political question. See Mot. at 15

- 18

. T his obje ction requires only slight attention. W ere Jefferson simply complaining of his separation in the form of a wrongful

- termination suit and seeking reinstatement as a remedy , Defendants’ position would merit greater analysis , as it would be plain that he des ired judicial review of DOL’s political decision to remove a Presidential appointee. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. , 561 U.S. 477, 509 (2010) (“Under the traditional default rule, removal is incident to the power of appointment. ”). T hat is not the case here, where Plaintiff instead demands an opportunity to clear his name. See Codd v. Velger , 429 U.S. 624, 627 (1977) (“Assuming all of the other elements necessary to make out a claim of stigmatization

. . . , the remedy mandated by the Due Process Clause

. . . is ‘an opportunity to refute the charge.’”) (quoting Roth , 408 U.S. at 573 )

. More problematic for Defendants is that the D.C. Circuit addressed this issue in Doe v. U.S. Dep’ t of Justice , 753 F.2d 1092 (D.C. Cir. 1985), and declined to find the question nonjusticiable over the objections of a dissent. The plaintiff in Doe was an excepted

- service attorney for the Justice Department who claimed the government had harmed her reputation by accusing her of dishonesty and unprofe ssional conduct and then discharging her. See 753 F.2d at24 1097

- 98. In concluding that the plaintiff had adequately pled a “reputation plus” due

- process claim, the court decouple d the question of the plai ntiff’s liberty interest in her reputation from whe ther s he enjoyed (or lacked) any protected property right in her appointment. “ The liberty clause, ” it explained , in contrast to the property clause, “ protects reputation, not job tenure, in the government employment context. ” Id. at 11 08 n.15. On account of those distinctions, even though the plaintiff “ enjoyed no statutory entitlement to her position with the Department ,” and the government was under no obligation to give her procedural protections “ in i ts actual decision to terminate ” her, id. at 1100 (emphasis added) , she was still entitled to “an opportunity

. . . to refute the charges [against her] and clear her name .” Id. at 1112; see id. at 1106 (“[T] he combination of governme nt defamation plus

. . . the discharge of a government employee states a liberty interest claim even if the discharge itself deprives the employee of no property interest protected by the fifth or fourteenth amendments. ” ). To argue, as the Government does here, that “ Plaintiff had no due process rights vis

- à

- vis his pr esidentially

- appointed position,” Mot. at 27, is to answer only the pr operty

interest question. B ecause Plaintiff does not to undo his discharge, this objection carries no weight here. Relevant, too, is that the dissent in Doe expressly argued that forcing the government to undertake a name

- clearing hearing in such circumstances would require courts to interfere with sensitive political questions better addressed by Congress and the E xecutive. See id. at 1127 ( MacKinnon , J. , d issenting in part ) (“ [T ]he court should defer here to Congress’ judgment that liberty interests

— which do require some statutory support

— should not be deemed to vest in certain jobs in the Executive .”). T he majority nevertheless rejected this line of argument, concluding that ev en though some government employees may be dismissed for no reason at all,25 there is “nothing paradoxical in the [parallel] conclusion that the government should afford discharged employees a bare opportunity to be hea rd when it slanders their professional reputation and effectively forecloses future employment opportunities.” Doe , 753 F.2d at 1112
n.2 1 ; see also id. at 1114 (“[T]he administrative burdens involved in a post

- termination [name

clearing] hearing do not in any wa y interfere with the Department’ s employment decisions.”). Adequate Process Defendants also maintain that even if Plaintiff’s liberty interest were at stake, he received all the process he was owed under the Constitution because he was given the opportunity to

ex plain himself during the DOL

- OIG investigation. See Mot. at 15; Reply at 5

- 6. The fact that some process was afforded him during the initial stages of the investigation does not obviate the need for additional process further down the line

. If, as Jefferson insists, the R eport ’ s legal conclusions were incorrect , see Am. Compl., ¶ 4 5 (insisting that behavior described in R eport was “ not unlawful ”), it would seem obvious that additional protections were required

– viz. , an opportunity to clear his name

– if the government did, in fact, constructively discharge him and impose a stigma on his reputation

. See McCormick v. Dist. of Columbia , 899 F. Supp. 2d 59, 68 (D.D.C. 2012) (adequate process in context of plaintiff’s liberty interest requires determining “only whether [the plaintiff] received adequate process before the [defamatory] allegations became indelibly attached to his record”). Jefferson alleges , moreover, that the investigators did not inform him that he was in any way the subject of the investigation, which he contends affected his motivation and ability “to provide a full and accurate account of how all of the contracts took place, who was responsible for various actions and decisions, and what their precise role was in the three contracts.” Am. Compl. , ¶ 37. He also asserts that in certain instances, DOL

- OIG relied on a single witness for26 conclusions

– such as Freeman ’s “f eeling pressured by Jefferson to violate procurement rules”

– but without providing “any corroborating testimonial or documentary evidence,” and without disclosing information that might have undermined the credibility of that witness. See id. , ¶ 41.
In essence, the Complaint makes clear that it was only when Jefferson was able to review the Report itself that he could understand and respond to what he believes are its significant flaws and misleading presentations of evidence. The Court thus cannot say at this early stage of litigation that because he was given the chance to tell his own story during the DOL

- OIG interview , he was, as a matter of law, given all the process that was due

. S ee , e.g. , Old Dominion Dairy Products, Inc. v. Sec’y of Def. , 631 F.2d 953, 968 (D.C. Cir. 1980) (adequate process for protecting liberty interest “includes the right to be notified of the specific charges concerning the [plaintiff] contractor’s alleged lack of integrity, so as to afford the contractor the opportunity to respond to and attempt to persuade the contracting officer, in whatever time is available, that the allegations are without merit”). No Money Damages
Last , Defendants argue that because Plaintiff seeks money damages in his prayer for relief, and because s overeign immunity bars such relief against the federal government, Count II must be dismissed. See Mot. at 19. But this position ignores that Plaintiff also seeks prospective relief to ameliorate the harm done to his reputation. See Am. Compl. at 44

- 46. That he improperly seeks money damages in addition to injunctive relief does not bar his claim.
B. Bivens A ction A gainst Individuals ( Count III ) Incorporating the same theory underlying his due

- p rocess claim against the government, Jefferson also seeks damages from the individual officers who caused him harm

. Count III is tethered to the Supreme Court’s 1971 Bivens case, in which the “ Court recognized an implied private action, directly under the Constitution, for damages against federal officials all eg ed to27 have violated a citizen’ s Fourth Amendment rights. ” Meshal v. Higgenbotham , 804 F.3d 417, 420 (D.C. Cir. 2015)

. Defendants raise three challenges to such a cause of action

. First, they c ontend that because Bivens claims “borrow” the statute of limitations from the most closely related state

- tort law

– here, a one - year limitations period for defamation under D.C. law

– Jefferson’s action is untimely

. Second, they maintain that a Bivens remedy should not be recognized when a comprehensive remedial scheme

– namely, the CSRA

– exists as the exclusive remedy for disputes arising from employee

- employer relationships. Third , they argue that the individual
D efendants are entitled to qualified immunity. Because the Court agrees with Defendants’ first two arguments , it need not reach the last

. Statute of Limitations In supporting their limitations position , Defendants reason as follows: Th e claim accrued at the latest on August 31, 2011 (when H arris issued his follow

- up memorandum) , but Plaintiff did not file suit until July 21, 2014; because the District of Columbia’s one

- year bar on defamation actions governs this claim, see Doe 753 F.2d at 1114 (applying District’s one

- year limitations period for defamation to plaintiff’s Bivens claim), it is time barred

. See Mot. at 20

- 21 (citing D.C. Code § 12

- 301(4)). Plaintiff does n ot dispute that if the one

- year limitations period applies , Count III is untimely

. See Opp. at 35 n.21. Instead, he counters that Doe relied on the wrong limitations period

– it should have used the generic (or “residual”) three

- year limitations period for tort actions

– and , in any event, a more recent Supreme Court case implicitly overruled the holding in Doe

. See id

. at 35

- 36. Although this Court was presented with this question in Liff , it found no need to grapple with Doe ’s precise holding; this was because Doe ’s limitations ruling was specific to “reputation plus” claims, whereas Liff presented28 only “stigma plus” claims, which do not require proof of governmental defamation. See Liff , 2016 WL 107914, at * 7

- 9; O’ Donnell , 148 F.3d at 1140 (stigma

- plus theory “differs from the [reputation

- plus theory] in that it does not depend on official speech”). As a result, wh ere the
Court found no need to resolve the question in Liff , it cannot elude it here. Where “ there is no federal statute of limitations expressly applicable to ” a given federal claim, courts generally “‘borrow’ the most suitable statute or other rule of ti meliness from some other source,” which typically is “ the most closely analogous ” state

- law timeliness rule. DelCostello v. Int’ l Bhd. of Teamsters , 462 U.S. 151, 158 (1983). Such “borrowing” is appropriate whether the civil remedy was crafted by the leg islature or, as in a Bivens action , implied directly from the Constitution. See Doe , 753 F.2d at 1114.
In Doe

– a “reputation plus” case like this one

– the D.C. Circuit “borrowed” the District of Columbia’s one

- year limitations period for def amation acti ons, reasoning that where defamatory statements were central to that plaintiff’s constitutional damage s claim, there was little difference between it and a regular defamation claim under state tort law. See id. (“We can discern no difference in the practi calities of [litigating] or the [substantive] policies behind a Bivens action for the deprivation of a liberty interest in reputation and an ordinary defamation claim.”). Four years later , the Supreme Court in Owens v. Okure , 488 U.S. 235 (1989), addressed an inconsistency problem that had arisen in lower courts’ application of the “borrowing” rule in a nearly identical context: actions under 42 U.S.C. § 1983 for deprivations of constitutional rights by state actors. In Owen s , the Court noted: Some courts found analogies in common

- law tort, others in contract law, and still others in statutory law. Often the result had less to do with the general nature of § 1983 relief than with counsel’ s artful pleading

. . . . Consequent ly, plaintiffs and defendants often had no29 idea whether a federal civil rights claim was barred until a court ruled on their case. Predictability, a primary goal of statutes of limitations, was thereby frustrated. Id. at 240 (footnote omitted). Part of the confusion, the Court noted, was that constitutional tort claims “ h ave no precise state

- law analog.” Id. at 249. As a result, certain state

- law causes of action, like intentional torts, were “particularly inapposite” give n the “ wide spectrum of claims which § 1983 has come to span .” Id. To remedy pervasive inconsistencies in the courts’ application of the “borrowing” rule , the Court held that “ where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions .” Id. at 249

- 50. Pointing to Owens , Plaintiff argues that Doe ’s reliance on the one

- year limitations period for a due

- process Bivens claim “has been sub silentio overruled.” Opp. at 35. As this Court observed in Liff , this “argument has some appeal.” 2016 WL 107914, at *11. This is because
Owens offers nothing to suggest that the “[f]ederal interests in uniformity, certainty, and the
min imization of unnecessary litigation” attending § 1983 actions are in any way distinct from the federal interests underpinning Bivens claims. B oth the Supreme Court’s and the D.C. Circuit’s

near - parallel treatment of § 1983 and Bivens actions , furthermore, suggest that Owens will carry over into the Bivens context. See, e.g. , Butz v. Economou , 438 U.S. 478, 498

- 504 (1978) ( “[I]n the absence of congressional direction to the contrary, there is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officia ls when sued for the identical violation under § 1983.”); Doe v. Dist. of Columbia , 697 F.2d 1115, 1123 (D.C. Cir. 1983) (concluding that “the bodies of law relating to the two forms of litigation [ e.g. , § 1983 and Bivens ] have been assimilated in most oth er respects”)

. This is reinforced by other circuits’ decisions to follow
Owens in apply ing states ’ residual limitations period s to r eputation

- based due

- process Bivens30 claims. See, e.g. , Tapia

- Ortiz v. Doe , 171 F.3d 150, 151 (2d Cir. 1999); Kelly v. Serna , 87 F.3d 1235, 1238 (11th Cir. 1996); Van Strum v. Lawn , 940 F.2d 406, 410 (9th Cir. 1991). All the same, while Owens may have cast a pall over the continued validity of Doe ’s
statute

- of

- limitations holding, the D.C. Circuit has nevertheless expressly declined to consider whether it perforce controls the outcome in a n analogous federal Bivens action. See Earle v. Dist. of Columbia , 707 F.3d 299, 303 n.3 & 305 (D.C. Cir. 2012 ) ( holding that under Owens a § 1983 claim is governed by D.C.’s three

- year limitations period, but noting that “[t] he federal defendants are not before us and so we trea t only [the] section 1983 claim ”). With no direct precedent on this point from the D. C. Circuit, and with Plaintiff having failed to factually or legally distinguish this case from Doe , this Court is bound to follow it under the principles of stare decisis

. See, e.g. , Brewster v. Comm’r of Internal Revenue , 607 F.2d 1369, 1373 (D.C. Cir. 1979) (“ Stare decisis compels adherence to a prior factually indistinguishable decision of a controlling court. ”); accord Brooks v. Grundmann , 748 F.3d 1273, 1279 (D.C. Cir. 2014); but

see McDonald v. Salazar , 831 F. Supp. 2d 313, 320 (D.D.C. 2011) (applying District’s three

- year limitations period to “reputation plus” due

- process claim, but ultimately dismissing claim on merits), aff’ d in part, No. 12

- 5023, 2012 WL 3068440 (D.C. Cir. July 20, 2012) (summarily affirming dismissal of due

- process clai m) ; Lederman v. United States , 131 F. Supp. 2d 46, 61

- 62 (D.D.C. 2001) ( relying on Owens to determine appropriate statute of limitations for Bivens claim )

. If Doe remains valid, the District’s one

- year limitations period plainly bars Plaintiff’s claim her e, given that Jefferson filed suit nearly three years after July 26, 2011

– the date he insists the claim accrued

. See Opp. at 35 n.21. Comprehensive Remedial Scheme Even if the D.C. Circuit were to overrule Doe , Jefferson’s Bivens claim still founders31 because Congress’s comprehensive statutory and regulatory regime governing disputes arising from the federal employer

- employee relationship

– e.g. , the CSRA and accompanying regulations

– implicitly precludes recourse to a Bivens remedy here. Although th e Supreme Court in Bivens indicated that courts have the power to fashion damages remedies for constitutional torts under certain circumstances , see 403 U.S. at 396, in later cases it explained that such a remedy “is not an automatic entitlement no matter what other means there may be to vindicate a protected interest

. . . .” Wilkie v. Robbins , 551 U.S. 537, 550 (2007). Courts thus “tread carefully before recognizing Bivens causes of action when plaintiffs have invoked them in new contexts.” Meshal , 804 F.3d at 421. There are two situations in which a damages remedy not previously recognized may be inapt: “The first is when defendants demonstrate special factors counselling hesitation in the absence of affirmative action by Congress[, ] [and t]he second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.” Carlson v. Green , 446 U.S. 14, 18

- 19 (1980) (citation, quotation marks, and emphasis omitted)

. Germane here is that the Supreme Court has already concluded in a similar context that the federal employe r - employee relationship

– governed as it is by a variety of statutes (including the CSRA), regulations, and executive orders

– is precisely the type of “special factor[] counselling hesitation” in creating a Bivens remedy. See Bush v. Lucas , 462 U.S. 367, 372, 385

- 88 (1983) (declining to craft Bivens remedy for federal employee who alleged retaliatory demotion in violation of First Amendment, where “[f] ederal civil servants are

. . . protected by an elaborate, comprehensive scheme ,” even if “ civil service remedies [ might not be] as effective as an individual damages remedy”).32 Suggesting that Bush does not control the outcome here, Plaintiff argues that a “special
f

actors” analysis is superfluous because courts in this district have “already recognized Bivens claims f or adverse employment ac tions and for stigma

- plus cases. ” Opp. at 37. In other words, this Court would not be doing anything “new” by implying a damages remedy under the Fifth Amendment for a deprivation of the liberty interest in one’s reputation. See id. (citing Campbell v. Dist. of Columbia , 972 F. Supp. 2d 38 , 44

- 45 (D.D.C. 2013) , and Salazar , 831 F. Supp. 2d at 320). But even leaving aside the fact that both are district

- court cases

– and thus not binding o n this C ourt, see Johnson v. Dist. of Columbia , 850 F. Supp. 2d 74, 79 (D.D.C. 2012)

– neither conclude d that a Bivens remedy existed for a due

- process violation at all . In fact, Campbell does not even involve a Bivens claim

. See 972 F. Supp. 2d at 44

- 45 (claim brought under § 1983). And in Salazar , the Court found that the plaintiff had failed to state a claim for any predicate due

- process violation, making it unnecessary to even address the related Bivens issue

. See 831 F. Supp. 2d at 320. As an alternative, Jefferson argues that even if the CSRA in some circumstances might counsel against a damages remedy, that is not the case here, where the statute gives no protection
to him , making Bivens his only route to complete relief. T he government does not dispute that the CSRA’s primary remedial provisions were well out of reach for Jefferson; after all, h e was a political appointee who could be fired at will. See Pub L. 99

- 619, 100 Stat. 3491 ( Nov . 6, 1986) (Assistant Secretary of VETS “serve[s]

. . . at the pleasure of the President ”). As a member of the “excepted service,” see 5 U.S.C. § 2103 (defining “excepted service” to consist “of those civil service positions which are not in the compet itive service or the Senior Executive Service”), Jefferson had few, if any, means of seeking recourse for wrongs inflicted by his employer. Most critically, he was barred from accessing the CSRA’s “Chapter 75” remedies made available to33 many other civil s ervants, which include the right to appeal an adverse action, and an accompanying “right to notice, representation by counsel, an opportunity to respond, and a written, reasoned decision from the agency.” Elgin v. Dep’ t of Treasury , 132 S. Ct. 2126, 2130 (2012) (citing 5 U.S.C. § 7513); accord Fausto , 484 U.S. at 448 (exclusion of “excepted service” employees from CSRA’s remedial provisions reflects “a congressional judgment that those employees should not be able to demand judicial review for the t ype of personnel action covered by that chapter ”). B e reft of other protections , he argues, the CSRA cannot preclude access to a Bivens remedy. There is one critical defect in this argument, however

– “ it is the comprehensiveness of the statutory scheme involved, not the ‘adequacy’ of specific remedies extended thereunder, that counsels judicial abstention.” Spagnola v. Mathis , 859 F.2d 223, 227 (D.C. Cir. 1988) ( en banc ) (citing Schweiker v. Chilicky , 487 U. S. 412, 422

- 23 (1988)). It is for this reason that the D.C. Circuit in Spagnola rejected the creation of a Bivens remedy for two federal

- employee plaintiffs whose constitutional rights were violated but who had no recourse to a significant remedy under the CSRA. See Spagnola , 859 F.2d at 225. Undeniably, Spagnola is not dispositive of the Bivens question here, as the plaintiffs in that case still had access to a remedy

– albeit a rather limited one

– v ia a petition with the Merit Systems Protection Board’s Off ice of Special Counsel.
S ee id. & n.3. Jefferson, in contrast, is likely foreclosed from even that limited relief. See 5 U.S.C. § 2302(a)(1)(B) (employees in positions “excepted from the competitive service because of its confidential, policy

- determinin g, policy

- making, or policy

- advocating character” lack recourse to petition the OSC). A case of more recent vintage, however

– Davis v. Billington , 681 F.3d 377 (D.C. Cir. 2012)

– firmly established that a Bivens remedy will not lie even where the CSRA forecloses34 “ any review for [a plaintiff’s] alleged constitutional violations.” Id. at 379, 387 (emphasis added). In that case, an excepted

- service employee of the Library of Congress claiming retaliatory demotion in violation of the First Amendment had no route under the CSRA to seek review of his demotion. Id. at 384. The Court reasoned that where “Congress’ s choice to omit damages remedies for claimants in [plaintiff’s] posture was a deliberate one ,” no Bivens remedy should be implied. Id. So, too, here; by specifically exempting positions like Jefferson’s from the C SRA , Congress has “spoken” to the issue, and a Bivens remedy should not be created. See id. at 387 ( noting that a plaintiff ’ s “ complete lack of available remedies under the CSRA ” does
not “ prevent [the statute] from being a ‘ comprehensive remedial scheme ’ that precludes

. . . a Bivens rem edy

. ” ).
O ther circuits have reached the same conclusion. In Zimbelman v . Savage , 228 F.3d 367 (4th Cir. 2000), the Fourth Circuit concluded that two employees of a federal entity known as a

“ non - appropriated fund instrumentality ,” or NAFI, were barred from pursuing a Bivens remedy for a reputation

- based due

- process violation. Id. at 370

- 71. This was so even though the CSRA specifically states that an “ employee paid from nonappropriated funds

. . . is deemed not an employee ” under the CSRA (except in a small set of circumstances not relevant here), see 5 U.S.C. § 2105(c), and even though they lacked any recourse under the CSRA. See Zimbelman , 228 F.3d at 371 (“Congress explicitly addressed the status of NAFI employees when it removed them from the CSRA’s coverage.”). Similarly, the Ninth Circuit in Blankenship v. McDonald , 1 76 F.3d 1192 (9th Cir. 1999), denied an excepted

- service federal court reporter recourse to a Bivens remedy even though the CSRA provided her with no remedy at all. See id. at 1194

- 95; accord Lee v. Hughes , 145 F.3d 1272, 1274 (11th Cir. 1998) (declining to create Bivens remedy for excepted

- service employee with no “ right to file a petition with the Office of Special35 Counsel ” for adverse personnel action). Jefferson’s Bivens claim will consequently be dismissed.
C. APA V iolation ( Count I ) Plaintiff also sues DOL

- OIG and four of its officers under the Administrative Procedure Act, which provides “ a limited cause of action for parties adversely affected by agency action. ” Trudeau v. Fed. Trade Comm’ n , 456 F.3d 178, 185 (D.C. Cir. 2006)

. Although the Complain t does not clearly articulate what he believes DOL

- OIG did wrong , Jefferson’s Opposition
enumerates “ five ” actions that he views as unlawful. S ee Opp. at 8 n.5 . On closer inspection, however , one of those pertains to Count IV because it is asserted against CIGIE , a nd the remaining four objections comprise only two discrete “actions

. ” The first “action” he challenges is DOL

- OIG’s investigation and resulting Report and Cover Memorandum. He contends this “action” was unlawful because, among other things, the investig ation failed to follow unnamed
OIG rules and regulations, and the Report and Cover Memorandum were filled with factual and legal errors. See id. The second action he challenges is DOL

- OIG’s “fail[ure] to promulgate” unspecified “rules and regulations gov erning investigations and reporting pursuant to notice and comment” procedures

. Id. As Jefferson sees it, due to this critical omission , everything that
DOL

- OIG did was illegal from the start. See Am. Compl., ¶ 84. In response, the government argues that neither the investigation nor the resulting Report and Cover M emorandum constitute “ final agency action ” within the meaning of the APA, and that Jefferson thus lacks a cause of action under that statute. See Mot. at 6

- 7. As to the notice

and

- comment violation, Defendants believe that Plaintiff’s claim is so vague and ill defined as to warrant summary dismissal. See Reply at 20

- 21. The Court will consider each of Jefferson’s two allegations below, concluding that neither suffi ces to state a claim for relief. It notes that, as with Count I , even though this count36 was brought against individual and agency D efendants, the Court will treat it as brought only
ag ainst the government, since “[t] he APA does not provide for individual

- capacity claims[] or

mone y damages,” Duhring Res. Co. v. U.S. Forest Serv. , No. 0 7

- 314, 2009 WL 586429, at *6 (W.D. Pa. Mar. 6, 2009) , and since “[ a] n official

- capacity suit is, in all respects other than name, to be treated as a suit against the entity .” Kentucky , 473 U.S. at 166

. Investigation, Final Report, and Cover Memorandum
As the Court previously explained , the crux of Plaintiff’s gripe with the government is that the investigation and ensuing R eport were fatally flawed, and that the latter’s f alse and misleading statements ruined his reputation. It is this set of “action s ” that he asks this Cou rt to review under the judicial

- review provisions of the APA. T o survive a motion to dismiss , a
p laintiff invoking the APA must meet two requirements r elevant here : first, the action must be “agency action” as defined by 5 U.S.C. § 551(13); and second, it must be “final,” id. § 704, meaning it “ imposes an obligation, denies a right, or fixes some legal relationship .” Reliable Automatic Sprinkler Co . v. Consumer Prod. Safety Comm’ n , 324 F.3d 726, 731 (D.C. Cir. 2003)

. The Court addresses these requirements in reverse order.

a. Finality To start, there is little question that Jefferson’s challenge to the conduct of the investigation itself attacks an ac tion that lacks finality under the APA. See id. (“merely investigatory” actions of a federal commission fall short of “final agency action” where “[n] o legal consequences flow from the agency’ s conduct ”). That is not to say that all non

- final actions are always insulated from review, as the APA provides that even “[a] preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. ” 5 U.S.C. § 704. But the investigati on alone cannot37 satisfy the APA’s threshold requirement of finality. Whether the Report and Cover Memorandum count as “final agency action” is a slightly more involved question. B ecause the Inspector General Act makes clear that the OIGs’ mandate is to conduct investigations, draft reports, and issue recommendations

– suggesting that final action is left to the agency within which each OIG is housed

– this Court concludes that mere issuance of the Report and Cover Memorandum is not suffici ently final for purposes of the APA.

“ In 1978, Congress, out of concern over governmental inefficiency, created offices of Inspector Gener al in a number of departments and agencies ,” United States v. Aero Mayflower Transit Co. , 831 F.2d 1142, 1144

- 45 (D.C. Cir. 1987) , including in the Department of Labor.
See 5 U.S.C. App. 3 §§ 2(A) & 12 (2). The OIG’s duties inc lude programs carried out by the agency (or “establishment,” which is the generic term used in the IGA), making recommendations, and issuing reports of its findings and conclusions to both the agency and Congress. See id. §§ 4(a) & 5. W hile the IGA grants the OIGs extensive powers to carry out their investigatory functions, see id. § 6, the statute does not authorize them to take any follow

up action against federal employees on behalf of the agency. See NASA v. Fed. Labor Relations Auth. , 527 U.S. 229, 253 (1999) (Thomas, J., dissenting) (“OIG has no authority over persons employed within the agency outside of its Office and

. . . no authority under the Inspector General Act to punish agency employees, to take corrective action with respect to agency programs, or to implement any reforms in agency programs that they might recommend on their

own .”).
T he text of the two documents issued by DOL

- OIG attest s to the fact that their issuance did not mark the “consummation of the agency’s decisionmaking process,” nor served as an action “by which rights or obligati ons [were] determined, or from which legal consequences38 w [ould] flow .” Bennett v. Spear , 520 U.S. 154, 178 (1997) (citation and quotation marks omitted) . The motivating purpose of the DOL

- OIG Report was to determine whether the five allegations of misconduct m ade by various complainants had any merit. See DOL

- OIG Rep. at
1

- 2. The R eport, then, set out to determine whether the allegation could be substantiated or not. Each section describes the conversations that the team of investigators had with various witnesses, Jefferson’s “response” to the allegations, and OIG’s independent c onclusions

– nothing more. The succinct, two

- page Cover M emorandum

– which Jefferson himself describes “ as a kind of executive summary of the Report ,” Am. Compl. ¶ 24

– drives home the conclusion that
DOL

- OIG’s work was preliminary in nature. Its language makes clear that the R eport serves to inform DOL of DOL

- OIG’s investigative findings, leaving to agency management the question of what to do about it

. See Mot

. , Exh. B (DOL

- OIG Memo) at 3 (“[P] lease inform the OIG, wi thin 30 days, as to any actions which the Department plans to take with respect to the investigative findings contained in our report.” ). Q uite tellingly, neither the R eport nor the
Cover M emorandum provide s any concrete suggestions of what corrective act ions, if any, it believes the agency should take, apart f rom

r ecommending that the Department review the three specific procurement actions described in the investigative report to determine what, if any, further actions should be taken. We are also recom mending that the Department’s Designated Agency Ethics Official review the actions of Assistant Secretary Jefferson and other senior VETS officials to determine what actions, if any, should be taken. Id. At bottom, DOL

- OIG’s actions were “more like a ten tative recommendation than a final and binding determination,” rendering them non

- final under the APA. Franklin v. Massachusetts , 505 U.S. 788, 798

- 99 (1992) (publication of census report by Department of Commerce is not39 final agency action , since decisio n making process of congressional reapportionment does not conclude until “ President takes affirmative steps to calculate and transmit the apportionment to Congress ”). Reinforcing the conclusion that these two documents were interlocutory recommendations

– and not final agency action

– i s that, as Plaintiff concedes, “OIG is part of DOL under the IGA.” Opp. at 11 (citing NASA , 527 U.S. at 240, 242 )

. J efferson thus cannot argue that because the R eport was OIG ’s last word on the matter, even if not DOL’s, the R eport must be final for purposes of the APA.
D OL itself , moreover, appeared to understand that it had more work to do in determining how to proceed with Jefferson. In July 2011, shortly after Plaintiff’s superior, Harris, received the R eport, he pl aced Jefferson on administrative leave, “effective immediately and until further notice.” Am. Compl., ¶ 53. About a week later, he then presented Jefferson with the choice of resigning or being fired. See i d. , ¶ 58. While it is plausible that a constru ctive discharge could serve as a final agency action, see Opp. at 11, Jefferson has not challenged that action under the
APA. See Am. Compl., ¶¶ 81

- 84. And , even if he had, the APA would not be the proper vehicle for pursuing that claim. See Grosdidier v. Chairman, Broad. Bd. of Governors , 560 F.3d 495, 497 (D.C. Cir. 2009) ( “Federal employees may not circumvent the [CSRA’s] requirements and limitations by resorting to the catchall APA to challen ge agency employment actions.”). b. Agency Action Although t he lack of finality is dispositive of the outcome here, the Court also notes that under prevailing D.C. Circuit precedent, the Complaint fails to plausibly allege that DOL

- OIG’s publication of documents constitutes “agency action” under the APA. In Hearst Radio , Inc. v. FCC , 167 F.2d 225 (D.C. Cir. 1948) , the court considered whether a defamat ory agency40 publication itself could constitute reviewable “agency action” under the APA. Noting that the statute defined “agency action” as “ the whole or [a] part of every agency rule, order, license, sanction, relief, or the equivalent or den ial thereof, or failure to act,” id. at 227 (quoting Act of June 11, 1946 , Pub. L. 79

- 404, 60 Stat. 243 , § 2 (g) , now codified as 5 U.S.C. § 551(13)), the court concluded that “[a ]mong these words, the only one approaching applicability to the publication

. . . is the word ‘sanction. ’” Id. But the court concluded that the APA’s definition of that “sanction” “d[id] not cover an act such as” a defamatory publication. Id. (citing 60 Stat. 243, § 2(f) (defining the word “sanction”) , now codified as 5 U.S.C. § 551(10)). As a result, Plaintiff could not bring suit under the APA. Id. In the ensuing decades, the D.C. Circuit has at least “twice questioned ‘ the continued validity o f the Hearst Radio decision. ’ ” Trudeau , 456 F.3d at 189 (quoting Impro Products, Inc. v. Block , 722 F.2d 845, 849 (D.C. Cir. 1983)); see also Indus. Safety Equip. Ass’ n, Inc. v. EPA , 837 F.2d 1115, 1118 (D.C. Cir. 1988). D espite the court’s concern that Hearst Radio ’s “ absolute immunity rule for agency publications ” is misguided, see Indus. Safety Equip. Ass’ n , 837 F.2d at 1118, it has “never had the n eed” to reconsider that holding. See Trudeau , 456 F.3d at 189 . In addition, Plaintiff has offered no argument as to why his facts do not fall within the ambit of Hearst Radio ’s reasoning. E ven were the Court to conclude that DOL

- OIG’s actions were sufficiently final for purposes of the APA, consequently, the allegedly defamatory publications cannot be considered to be “agency action” under the binding precedent of this circuit. Notice and Comment Plaintiff also seeks judicial review of DOL

- OIG’s reliance on an unidentified set of

“ regulations ” that Jefferson believes were issued without following the APA’s notice

- and

comment procedures

. Jefferson , however, offers no more specificity than that. He does not41 identify any part of a rule, regulation, policy, procedure, or guidance document that he believes was unlawfully put in plac e. B ecause of this complete lack of specificity , the Court is unable to determine whether the APA’s notice

- and

- comment requirements are even applicable, since the statute makes clear that those procedures apply only in specific circumstances. See Perez v

. Mortgage Bankers Ass n , 13 5 S. Ct. 1199, 1204 (2015) (“T he notice

- and

- comment requirement ‘does not apply’ to ‘ interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.’”) (quoting 5 U.S.C. § 553(b)(A)). In short, Plaintiff fails to give the government anything even resembling “ ‘ fair notice of what the

. . . claim is and the grounds upon which it rests

. ’ ” Erickson v. Pardus , 551 U.S. 89, 93 (2007) ( per curiam ) (quoting Bell Atlant ic Corp. v. Twombly , 550 U.S. 544, 555 (2007) ) . The Court will thus grant Defendants’ Motion to D ismiss Count I for failure to state a claim.
D. Claims Against CIGIE ( Count IV ) Plaintiff’s last count alleges that the Council of the Inspectors General on Integrity and Efficiency violated his statutory and Fifth Amendment due

- process rights by failing to take action on a complaint that Jefferson submitted to it in July 2014. See Am. Compl., ¶ ¶ 78

- 80,
110

- 124. To the uninitiated , CIGIE is an “independent entity within the executive branch” that was created by Congress in 2008 to “address integrity, economy, and effectiveness issues that transcend individual Government agencies” and “increase the professionalism and effectiveness” within the “offices of the Inspectors General.” 5 U.S.C. App. 3 § 11(a) (2)

. To further this mandate, Congress also provided for the establishment of an Integrity Committee within CIGIE
to “ receive, review, and refer for investigation allegations of wrongdoing that are made against Inspectors General and staff members of the various Offices of Inspector General .” Id. § 11(d). Although Plaintiff ’s Complaint levies a barrage of accusations against CIGIE and its Integrity Committee

– including that the enacting legislation is constitutionally suspect and that42 both CIGIE’s and the Integrity Committee’s policies and procedures were promulgated in violation of the APA

– his Opposition succinctly makes clear that he has one main objection: it declined to take action in response to his 127

- page complaint against DOL

- OIG

. See Opp. at 41

- 42 (citing Integrity Committee’s October 2014 letter decision dismissing his complaint)

. He thus sues CIGIE for violation of his rights under the Inspector General Act, the APA, and the Fifth
A mendment’s Due Process Clause. In addressing this count, the Court must first consider whether Plaintiff has s tandi ng to pursue his claims. B ecause he has not identified an injury that he specifically suffered on account of the Integrity Comm ittee’s no

- investigation decision , he does not

. E ven if Jefferson could satisfy the prerequisites for Article III standing, Count IV would fail for the simple reason that the IGA, the APA, and the Due Process Clause do not pres ent viable cause s of action. Standing Although t he question of Plaintiff’s standing under Count IV was not brief ed by either party, “[i] t is well established that a federal court cannot act in the absence of jurisdiction,

. . . and that jurisdictional issues ” including Article III st anding “ may be raised by the court sua sponte
. ” Am. Library Ass’ n v. FCC , 401 F.3d 489, 492 (D.C. Cir. 2005)

. A party’ s standing “is an essential and unchanging part of the case

- or - controversy requirement of Article III.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 56 0 (1992)

. To establish standing, a party must, at a constitutional minimum, meet the following criteria. First, the plaintiff “must ha ve suffered an ‘injury in fact’

– an invasion of a legally protected interest which is (a) concrete and particularized

. . . and (b) ‘actual or imminent, not “ conjectural” or “hypothetical. ”’ ” Id. (citations omitted). Second, “there must be a causal connection between the injury and the conduct complained of

– the injury has to be ‘fairly

. . . trace[able] to the challenged action of the43 defendant, and not

. . . th[e] result [of] the independent action of some thi rd party not before the
court. ’ ” Id. (alterations in original) (citation omitted). Third, “it must be ‘likely,’ as opposed to merely ‘speculative, ’ that the injury will be ‘redressed by a favorable decision. ’ ” Id. at 561 (citation omitted). A “deficiency on any one of the three prong s suffices to defeat standing.” U.S. Ecology, Inc. v. U.S. Dep’ t of Interior , 231 F.3d 20, 24 (D.C. Cir. 2000). Here, P laintiff cannot establish an injury traceable to the challenged action

– i.e. , the decision not to investigate

– and he thus lacks standing to pursue this claim. The Supreme Court has clearly indicated that “[a] private citizen lacks a judicially

c ognizable interest in the prosecuti on or nonprosecution of another. ” Linda R.S. v. Richard D. , 410 U.S. 614, 619 (1973) . The D.C. Circuit, in turn, has extended this principle to encompass a private citizen’s interest in the investigation of another

– her e, DOL

- OIG

. See , e.g. , In re Kaminski , 960 F.2d 1062, 1065 (D.C. Cir. 1992) (no standing to compel government investigation of judicial misconduct under Ethics in Government Act). The only conceivable exception might be the existence of a statutorily enacted private right of action, but because Congress explicitly stated that no such action would lie, Plaintiff cannot establish standing on that basis. Cf. Petition for Writ of Certi orari, Spokeo, Inc. v. Robins , 2014 WL 1802228 , No. No. 13

- 1339 (presenting question: “ Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federa l court, by authorizing a private right of action based on a bare violation of a federal statute. ” ); 135 S.Ct. 1892 (2015) (granting writ of certiorari ). Failure to State a Claim In the same subsection of the Inspector General Act that established the Inte grity Committee, Congress included an express provision that the statute confers neither substantive44 nor procedural right s on any individual. See 5 U.S.C. App. 3 § 11(d)(11) (“No right or benefit. This subsection is not intended to create any right or ben efit, substantive or procedural, enforceable at law by a person against the United States, its agencies, its officers, or any
person. ”). Plaintiff has not addressed why the broad and all

- encompassing language of this provision does not operate to bar his claim here. In addition , the statutory standards governing when and how the Integrity Committee should investigate a particular matter do not lend themselves to judicial resol ution, particularly with regard to the Committee’s decision not to investigate a particular matter

. See 5 U.S.C. App.
3 §§ 11(d)(4)

- (8); cf. Reply, Attach. 1 ( Heide v. Scovel , No. 08

- 727, slip op. at 13 (D. Minn.
Oct. 1 , 2008) ( “[IGA’s] standards for conducting investigations

. . . are not meaningful standards that the courts can review and do not provide even minimal guidance to limit agency discretion .” ) )

. As a result , Jefferson cannot circumvent the IGA’s clear language by bringing a parallel claim under the APA

. See 5 U.S.C. § 701 (a)(2) (exempting from judicial review agency action that is “committed to agency discretion by law”); see also Heide , slip op. at 12

- 14 (holding that plaintiff cannot compel investigation by OIG of Department of Transportation given lack of clear standard s guiding OIG’s discretion whether to investigate )

. The Due Process C lause similarly offers no basis to sue CIGIE , as Plaintiff has not alleged a protectable interest in liberty or property that was deprived by CIGIE’s failure to take further action on his complaint. Cf. Futch v. Fine , No. 09

- 420, 2009 WL 565616, at *1 (D.D.C. Mar. 5, 2009) (“ There is

. . . no such thing as a due process r ight to an investigation by the

. . . Inspector General

. . . .”). That decision has no bearing on whether he was deprived of a liberty interest in his reputation by DO L and DOL

- OIG. A part from that interest, Jefferson has not presented any oth er constitutionally protected interest that was affected by the Integrity45 Committee’s decision to dismiss his complaint. Count IV will thus be dismissed in its entirety.
IV. Conclusion Although Plaintiff tries mightily to extract a pound of flesh for this sal vo of slights, his remedies will be far more limited. The Due Process Clause may ultimately help him to mend some of his wounds, but it is not a cure

- all for any and all harm inflicted at the hands of the government. T he Court will , consequently, grant i n part and deny in part Defendants’ Motion to Dismiss. A separate Order consistent with this Opinion will be issued this day. **/s/ James E. Boasberg** JAMES E. BOASBERG United States District Judge
Date: March 21, 2016