United States District Court, E.D. Virginia, Richmond Division
Gibney Jr., United States District Judge.
plaintiff, Perteacher Drone, worked as a United States
probation officer for the Eastern District of Virginia
("EDVA") until September 30, 2013. Drone alleges
that the district terminated her without cause and without a
hearing in violation of her Fifth and Fourteenth Amendment
rights, 18 U.S.C. § 3602, and the EDVA Employment
Dispute Resolution ("EDR") Plan. The defendants
have moved to dismiss. Because the Court lacks subject matter
jurisdiction over Drone's claims and she fails to state a
claim upon which relief can be granted, the Court grants the
defendants' motion to dismiss.
formerly worked as a probation officer in the EDVA, where she
supervised a releasee named C.T. In December 2012, the United
States Probation Office for the EDVA began to investigate the
way Drone handled C.T.'s case, to determine whether she
followed proper protocol and utilized sound professional
judgment. Drone read the initial draft investigation report
in this matter and provided a written response. After
reviewing the report and Drone's response, the chief
probation officer at the time, Mary Anne Vogel, issued a
notice of adverse action, finding Drone grossly negligent and
insubordinate in C.T.'s supervision. Drone timely
appealed the notice of adverse action to EDVA Chief Judge
Smith, and, through counsel, submitted a response to
Vogel's notice. Chief Judge Smith reviewed these
submissions, found a hearing unnecessary to resolve the
matter, and issued a decision upholding Vogel's
August 7, 2013, Acting Chief Probation Officer Mary R.
Farashahi informed Drone that the EDVA planned to abolish her
position. After her termination, Drone submitted an EDR
complaint, citing discrimination based on age and disability,
as well as retaliation and harassment. Deborah Cramer, the
appointed EDR Coordinator on this matter, Farashahi, and
Drone met pursuant to the second step of the EDR
Plan. In the meeting, Farashahi explained to
Drone that the EDVA used adverse actions followed by
seniority as criteria to eliminate positions; thus, the EDVA
abolished Drone's position because of her poor
performance and adverse action, not her age or disability.
also raised retaliation and harassment in the meeting,
claiming that Supervisory Probation Officer Daniel Guertler
harassed her. Following the meeting, Farashahi issued a
written decision, finding that the 2013 adverse action did
not result from Guertler retaliating against or harassing
Drone. Drone appealed the decision to Chief Judge
Smith, who set a hearing on the matter. Drone appeared and
counsel represented her at the June 9, 2014 hearing, and
Chief Judge Smith gave Drone the opportunity to present
evidence and witnesses. (Mot. to Dismiss Ex. 10, at 2, filed
under seal.) After the hearing, Chief Judge Smith
issued a confidential written decision upholding
appealed to the Fourth Circuit Judicial Council, which
affirmed Chief Judge Smith's decision. Drone then brought
this suit against judicial branch employees involved in her
employment proceedings in their official capacities, as well
as Guertler and Deputy Chief Probation Officer Benns in their
individual capacities. Drone seeks reinstatement and
expungement of the adverse action, as well as back pay and
claims violations of due process, 18 U.S.C. §
3602(a), and the district EDR Plan. The defendants
argue that the Court lacks subject matter jurisdiction over
Drone's claims because the Civil Service Reform Act
("CSRA") governs this matter. They also state that
sovereign immunity bars her claims against the defendants in
their official capacities. Finally, the defendants move to
dismiss because Drone fails to state a claim against the
defendants in their individual capacities.
Subject Matter Jurisdiction
Civil Service Reform Act
CSRA "established a comprehensive system for reviewing
personnel action taken against federal employees."
United States v. Fausto, 484 U.S. 439, 455 (1988).
The CSRA divides civil service employees into Senior
Executive Service, competitive service, and excepted service
employees. Id. at 441 n. 1. Senior Executive Service
employees hold high-level executive branch positions.
Id. The competitive service includes all other
executive branch employees that a statute or regulation does
not specifically exclude. Id. Excepted service
employees do not fall within the other two categories.
deliberately excluded certain federal employees from the
CSRA's provision of administrative and judicial review.
Fausto, 484 U.S. at 555. Only "employees"
may use these review procedures. Elgin v. Dep't of
Treas., 567 U.S. 1, 5 (2012). The term
"employees" encompasses those in the competitive
service and members of the excepted service who meet certain
requirements. Id. Judicial branch employees fall
within the excepted service category and cannot utilize the
CSRA review procedures unless they qualify for preferential
treatment or meet particular eligibility requirements not
applicable in this case. Semper v. Gomez, 747 F.3d 229,
235-36 (3d Cir. 2014) ("Semper II"). Probation
officers, as judicial employees, cannot use the CSRA review
procedures. Dotson v. Griesa, 398 F.3d 156, 169-70
(2d. Cir. 2005).
repeatedly expressed its clear intent to exclude judicial
employees from the CSRA review procedures. In the CSRA,
Congress specifically included certain excepted service
employees, while excluding all others. Fausto, 484
U.S. at 448. After Fausto, Congress amended the CSRA
to expand review rights for some excepted service executive
branch employees, but did not do the same for judicial
employees. Dotson, 398 at 170-71. Congress also
enacted a statute in 1990 to close a statutory loophole
because it had granted CSRA review rights to certain U.S.
Courts Administrative Office employees. Semper II,
747 F.3d at 240. ...