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Drone v. Duff

United States District Court, E.D. Virginia, Richmond Division

December 14, 2017

PERTEACHER DRONE, Plaintiff,
v.
JAMES DUFF, et al., Defendants.

          OPINION

          John A Gibney Jr., United States District Judge.

         The 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.

         I. BACKGROUND

         Drone 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 disciplinary action.

         On 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.[1] 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.

         Drone also raised retaliation and harassment in the meeting, claiming that Supervisory Probation Officer Daniel Guertler harassed her.[2] Following the meeting, Farashahi issued a written decision, finding that the 2013 adverse action did not result from Guertler retaliating against or harassing Drone.[3] 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.[4]) After the hearing, Chief Judge Smith issued a confidential written decision upholding Farashahi's decision.

         Drone 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 associated benefits.

         II. DISCUSSION[5]

         Drone claims violations of due process, 18 U.S.C. § 3602(a),[6] 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.

         A. Subject Matter Jurisdiction

         1. Civil Service Reform Act

         The 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. Id.

         Congress 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.[7] 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).

         Congress 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. ...


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