Bloch v. Executive Office of the President
164 F. Supp. 3d 841
E.D. Va.2016Background
- Scott J. Bloch, confirmed Special Counsel under 5 U.S.C. § 1211 for a five-year term, was placed on administrative leave and effectively removed after OPM and other investigations into his conduct (including computer wiping) and public disclosures; he later pled guilty to willful depredation of government property.
- Bloch filed a 15‑count Amended Complaint alleging conspiracy (RICO, 42 U.S.C. § 1985), Privacy Act violations, constitutional deprivations (First, Fourth, Fifth), and multiple state torts against Byrne, McFarland, Maroney, EOP, OPM, and OSC; he sought damages, declaratory relief, and injunctions.
- Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6); the court denied a separate venue transfer and addressed dismissal and Bloch’s motion to amend to add three counts.
- The opinion dismisses virtually all counts: Counts I–III (due process, §1211, separation of powers) dismissed for lack of justiciability, mootness, lack of redress, and/or failure to state a claim; Count IV (Privacy Act) dismissed as to individuals and dismissed or stayed as to agencies because of prior D.C. litigation and claim‑splitting; Count V (RICO) dismissed (sovereign immunity, agencies not subject to RICO, failure to plead predicate acts and pattern, CSRA preemption); Count VI (§ 1985) preempted by CSRA.
- Bivens claims (Count VII) dismissed: Bivens does not extend to agencies or official‑capacity suits, federal‑employment “special factors” preclude implying Bivens for personnel disputes, and Fourth Amendment/warrant/limitation and personal involvement defects exist.
- State torts (Counts VIII–XIV) converted to FTCA claims (United States substituted) but dismissed without prejudice for failure to exhaust administrative remedies; many FTCA theories likely barred by 28 U.S.C. § 2680(h). Leave to amend was denied as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural Due Process re: removal (Count I) | Bloch: removal deprived him of property without adequate notice, hearing, impartial decisionmaker, and for insufficient cause under § 1211(b). | Defendants: removal (if any) traceable only to the President; agencies cannot redress removal; process provided was adequate; claim is non‑justiciable/moot. | Dismissed with prejudice: no standing/redressability against agencies; Mathews balancing shows process adequate; claim moot/nonjusticiable. |
| Statutory § 1211(b) claim (Count II) | Bloch: statutory five‑year term with removal only for cause was violated. | Defendants: § 1211(b) creates no private right; CSRA precludes other remedies; lacks justiciability. | Dismissed with prejudice: no implied private cause of action; CSRA and jurisdictional defects. |
| Privacy Act (Count IV) | Bloch: agencies and officials disclosed Privacy Act‑protected records to media and Congress. | Defendants: individuals not liable under Privacy Act; allegations against EOP/OSC are conclusory; OPM suit pending in D.C. (claim splitting). | Individual defendants dismissed with prejudice; agency claims dismissed without prejudice or deferred to D.C. court for claim splitting; leave to amend as to EOP denied. |
| RICO (Count V) | Bloch: defendants formed enterprise and engaged in mail/wire fraud and other racketeering to oust him. | Defendants: sovereign immunity for agencies/officials in official capacity; agencies cannot commit predicate crimes; pleadings fail Rule 9(b); claims preempted by CSRA. | Dismissed with prejudice: lack of jurisdiction re: sovereign immunity, agencies not RICO persons for predicate acts, failure to plead predicate acts/pattern, CSRA preemption. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements)
- Mathews v. Eldridge, 424 U.S. 319 (procedural‑due‑process balancing test)
- FDIC v. Meyer, 510 U.S. 471 (no Bivens or implied constitutional damages remedy against federal agencies)
- Alexander v. Sandoval, 532 U.S. 275 (courts will not imply private causes of action absent congressional intent)
- United States v. Fausto, 484 U.S. 439 (CSRA as exclusive scheme for federal employment disputes)
- Hall v. Clinton, 235 F.3d 202 (4th Cir.) (CSRA precludes alternative statutory remedies for federal personnel actions)
- Zimbelman v. Savage, 228 F.3d 367 (4th Cir.) (federal employment is a special factor counseling against Bivens relief)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (establishing implied damages remedy against federal officers in limited circumstances)
- Riley v. California, 573 U.S. 373 (search incident to warrant presumption of reasonableness)