Jacqueline P. Taylor v. Federal Deposit Insurance Corporation and Ricki Helfer, Chairman, Fdic

753 whether a munity tion that is in the Court of Federal may bring a they sue in contract.5 or-be-sued to amount in either have Receiver is understanding of the nature historical Focusing make Tucker Act suit able, consequence discloses a functional rationale dr court So apply a district purposes of we however, no more fairly available, law find 28 U.S.C. on the waiver origins specific limitations clause. The perhaps a suit court; wide choice of the different waivers Tucker Act persuasive than ^[*] § because equity for more than argument 2401(a). plaintiffs suing the FDIC against § more Court the Tucker 2401(a) ^[*] under the FDIC sue- Claims, They may they may of question satisfying than its permits immunity the FDIC suit for a lesser forum, ^[*] §of period Federal comes for its United $10,000; they if Act. As a 2401(a) of whether sue bring one did. at least if is some down to applica is valu did Claims deeper have a States of im suit with this regard the United States. See tations remanded it and not at might doing; REA’s sue-or-be-sued clause did does other federal statutes. See congressional cari, statutes congressional district court is reversed and the case is duty 941. To conclude that Congress’s general qualification More 476, 114 L.Ed.2d find of the 417 U.S. fill the each issue —of its consent to suit the FIRREA sue-or-be-sued clause thereby liberty are opinion. usually operate specifically, for further S.Ct. at 1000-01. “The courts are courts, capable as gap. intention to the the waiver contained in 535, enactments, (1974). to effective.” Morton v. Man install whatever state law absent a This pick 551, proceedings § coexistence, we have Saffron, 94 it applies, and choose 2401(a) to clearly expressed Meyer, and when two —on contrary, no exclusion 561 F.2d at 2474, represents consistent difficulty we need 510 U.S. it is the displace against among 2483, FIR- limi to tied the choice of forum. how So ordered. FDIC, be: A

According to the it should clause, naming under the sue-or-be-sued

suit Receiver, subject should be FDIC appropriate statute of limitations. state naming the

A Tucker Act suit United States 2401(a). subject § do should What TAYLOR, al., Appellants, Jacqueline P. et Act not name a Tucker suit does v. (a small but the United States as defendant Cisneros, class, see, nonempty e.g., Kline v. FEDERAL DEPOSIT INSURANCE (D.C.Cir.1996); Optiperu cf. v. 76 F.3d 1236 Heifer, and Ricki CORPORATION Corporation, Private Investment Overseas FDIC, Chairman, Appellees. 420, (D.D.C.1986)), is un- F.Supp. No. 96-5267. might approach sort of make clear. This Appeals, United States Court of Act sense if the Tucker and the sue-or- some District of Columbia Circuit. provided' distinct causes be-sued clause however, provides, each action. What 17, Argued Oct. 1997. sovereign immunity; simply a waiver Dec. 1997. Decided on the causes of action will be based con- Accordingly, can see no tracts at issue. we tying period the limitations

basis jurisdiction.

source (1988); Virginia Bank jurisdiction L.Ed.2d 749 mere existence barred tion (D.C.Cir.1997). Randolph, granted by another It does not. If a statute. grant sovereign immunity separate waiver of exist, may different; jurisdiction district courts hear Tort claims the Federal Tort are alone, which, Act provides cases over under the Tucker Act the exclusive avenue Claims 2679(a); applies. have exclu- the Court of Federal Claims would where it 28 U.S.C. relief Massachusetts, jurisdiction. Meyer, 114 S.Ct. sive See Bowen v. FDIC v. 108 S.Ct. 2740 n. L.Ed.2d 487 U.S. n. Seldon, DC, argued Washington,

Robert C. appellants. him the the cause for With Royce. brief was Joanne Braswell, Utgoff At- Marina Assistant U.S. DC, torney, Washington, argued the cause appellees. the brief was for With her on Leary, Attorney, R. Mary Lou and U.S. Lawrence, Attorney. Craig Assistant U.S. Bates, Attorney, D. Assistant en- John appearance. tered an WILLIAMS, and Before: SENTELLE ROGERS, Judges. Circuit Opinion by for the Court Circuit filed F. Judge STEPHEN WILLIAMS. Judge

Concurring opinion by Circuit filed ROGERS. WILLIAMS, Judge: F.

STEPHEN Circuit employees Resolution Three former (“RTC”) Corporation sued the Trust have “Special Projects they assigned were to a claiming retaliated corporation, occupied which of- Unit” .different Denver protected disclo- making them against and, Taylor, according to Pederson and fice sures, in of the RTC Whistleblower violation purgatory they professional, constituted Act, § and 1441a(q), 12 U.S.C. — staff, work, meaningful support were denied statutory life the RTC’s When Amendment. supplies, computer they and were links successor, statutory Federal expired, colleagues former afraid to be (“FDIC”), ostracized Corporation Deposit Insurance them. 754^55. seen with J.A. as defendant. On substituted was or, alternatively, for dismissal FDIC’s motion Having little his internal achieved summary judgment, the district court memo, changed forum and theme: com- counts dismissed During fall the summer into the 12(b)(6) under Rule and entered sum- plaint Taylor with the he and communicated Gener- mary judgment defendant on (“GAO”) and Accounting al Office testified appeal counts. This followed. constitutional Committee, Banking alleg- before Senate vacate for want Except to the extent that we reorganization ing now that the was concoct- jurisdiction, we affirm. protect ed to well-connected’ malefactors loan ery, and Enforcement Act The RTC to cases. 12 U.S.C. Financial Institutions manage ^{[*] [*]} § resolve 1441a(b). of 1989 created ^[*] Reform, Recov- savings With reports issued reorganization no hamstringing and RTC’s illicit cronyism, Inspector had been handled in PLS but concluded that summer of General pursuers. investigated; poorly. The GAO found CEO, put-back program em- was canceled of its the RTC had no exception own; July them instead but Pederson and remained of its drew ployees 1441a(b)(8). There, they Special Projects in their exile. from FDIC. contend, subject they retal- to continual appellants Bruce Pederson and Jac- In attorneys May in the and discrimination until queline were senior iation (which Denver, resignations characterize as con- Regional Western Office RTC’s Liability discharges). structive to the Professional Section attached (“PLS”), bring assigned whose task was employed litiga- as a Appellant Burgos was disloyal of failed sav- against fiduciaries suits Dallas His troubles tor RTC’s office.. appellant, The third Juan ings and loans. started, supe- alleges, he notified his he when Burgos-Gandia, occupied a different of- Luis overbilling by In of outside counsel. riors (Dallas) capaci- in a different and served fice as-, management allegedly response, RTC ex-employee plaintiff, A Richard ty. fourth cases, including him signed to undesirable Dunn, appeal be party is not a to this but will already in which RTC had default- some the conspicuous by his absence. cases, of Burgos that in one these ed. claims Mortgage Loan v. Federal Home conflict with the Crabb litigate continued to de- they Corp., superiors his began in when took issue RTC settlement, against the a the wishes of spite of office initiated reorganization with RTC) (another statutory branch anticipation of the RTC’s client 1441a(m)(l). Bur- earlier default. In to conceal their 12 U.S.C. order sunset. the urged supervisors to abandon gos circulated a memo his March him, he not heed detailing litigation; his when did management concerns RTC pend- outside counsel to withdraw hinder the directed reorganization the that him (“J.A.”) ordered ing Burgos’s superiors motion. 786. To no Appendix Joint PLS. refused, instruction; he when avail; as rescind that reorganization planned the on went Burgos they countermanded themselves. May 11 of he the filed an “Informative Motion” with part FDIC for return to the as then selected court, superi- disclosing the role of his “put-back” program.1 anticipation, In Crabb the May "put-backs.” In the Appellants' have directed ns to the briefs 1. any protest judgment analysis we in her favor that associating ac- assume evidence hers, Pederson, evidence exists. tivity before such with without 54(b). The district Procedure litigation, as Rule of Civil to continue decision ors in the “dispatcher,” determin functions as a to that decision. court opposition well as his ing in discretion when claim its sound Burgos that he would be notified RTC resolution, appellate proceed on to should in, insubordination; fact it sim- fired for this fellows.2 Cur it should await its and when leave. paid administrative him on ply placed at 1464- at tiss-Wright, 446 U.S he would be demot- informed that Eventually 65. January resigned on he pay grades, ed two Pederson, Burgos Taylor and Like Here, clearly court’s order the district resignation a construc- characterizes his “express that the rule gave the direction” discharge. tive necessary “ex requires, did it make the but plaintiffs’ invo press determination”? Given said, the district court dis- have As we 54(b)’s just reason for “no cation of Rule Pederson, claims missed entry delay” formula in their motion granted FDIC Burgos and Taylor and rule, court’s judgment and the under summary judgment on the constitutional position, it is as of their obvious embrace ex-employee, there was another ones. But things get that the court was clear as these (A original Dunn, joined the claim. had who satis that the rule’s criteria were convinced Accountability plaintiff, fifth Government precisely fied. Our circuit has never decided court Project, party to the district was also 54(b) “express determination” what a Rule action.) has withdrawn from litigation but requires. Kelly In v. Lee’s Old Fashioned Although district court dismissed (5th Inc., Hamburgers, F.2d 1218 Cir. initially plaintiffs, all statutory claims of 1990), deeply split Fifth Circuit considered on Dunn’s constitutional judgment withheld banc, majority finding it the issue en appeal, delay claims. To avoid parts related sufficient that the order and filed a Motion now before us plaintiffs three an “unmistakable intent the record revealed Judgment Entry Final without Direct partial judgment final under Rule to enter a claims, Dunn’s waiting disposition 54(b).” need, There was no said Id. at 1220. 54(b) that there Rule arguing in the words of judge to “me majority, for the district delay.” The court just was “no reason just chanically ‘no reason for recite the words order, observing grant then issued an ” however, delay.’ majority, never Id. The “just plaintiffs’ motion would point really answered the dissenters’ clerk ordering that “be proper,” and “express,” Rule’s modifier of “determina dismissing enter final directed” to tion,” normally “implied.” Id. does not mean their claims. 1222; Ca accord Granack Continental 54(b) mediates between the Rule (7th Co., sualty Cir. avoiding antagonistic goals of sometimes 1992). parties timely giving piecemeal appeals and convincing to the some answer Without Corp. justice. Curtiss-Wright v. Gener See challenge, we do Fifth Circuit dissenters’ 1460, Co., 100 S.Ct. Elec. 446 U.S. al reject analy- our circuit could know how 1464-65, In a case L.Ed.2d 1 64 emerged Certainly at no such answer sis. parties, or it allows involving multiple claims apply the dis- argument. we to oral Were entry of a to “direct the the district court view, compelled to dis- senters’ we would be or more but fewer judgment as to one final clearly appeal. Here that would be miss the parties only upon an or than all of the claims in short run: the case would wasteful just there is no express determination panel of a that has vanish from the docket upon express delay and di reason much time on the merits. Our dis- entry judgment.” Federal invested of rection for not, course, summary judg- and may Rule It is clear that the dismissals court use The district of 54(b) certify finality; possess requisite that is final here ments at issue Curtiss-Wright, ordinary 446 See standards. appellants they dispose claims of the of all the 1464-65; 7-8, v. 100 Tolson U.S. at S.Ct. here. 998, States, (D.C.Cir.1984). United 999

761 following appeal, and the district decisionmaker. See Arlin besides missal this (2d Ritenour, 461, ghaus 543 v. F.2d 464 Fifth dis- as understood Circuit rules Cir.1976). With a clear statement of rea senters, in pay-off have its future sons, carefully is “discretion exercised rarely cases, by inspiring closer district court focus Wood, upset.” Ettrick 916 F.2d at 1218. 54(b) by removing and of Rule criteria actually require. ambiguities toas what 54(b) As removes the Rule law the.case

problem our purview, proceed from we to the (cid:127) merits. case, happily, In need not this we The government this bullet.

bite distasteful 54(b) in motion raised Rule issue and employed Pederson in the summary affirmance before a dismissal or allege largely pat- same and office the same panel this motions court. The motion was tern of disclosure retaliation. We exam- denied, 31, Order, Taylor v. see March 1997 unit, ine as a then those :claims (No. —5267),and that FDIC decision law 9 6 Burgos. ease, preclusive for all matters decided of the The district court dismissed Pederson by necessary implication. expressly or See Taylor’s statutory under Rule claims Aviation, 735, v. F.3d Piedmont 49 Crocker 12(b)(6). novo, disposition this review de We (D.C.Cir.1995). panel’s The decision is 739 Corp., Alicke v. MCI Communications though binding, adequacy of the even 909, (D.C.Cir.1997), F.3d find jurisdictional prerequisite. is a determination agree. we cannot Barry, A. v. F.3d LaShawn See (D.C.Cir.1996) (en banc). 12(b)(6) prop Dismissal Rule under when, taking allegations er the material admitted, complaint Jenkins ease, yes; law of the Law McKeithen, 411, 421, 89 circuit, panel no. The order of motions (1969), 23 L.Ed.2d and constru unpublished panel and will bind no went favor, ing plaintiffs’ them Scheuer v. ease. D.C.Cir. this court other Rhodes, 416 U.S. 94 S.Ct. 28(c). Rule Thus the issue that so divided (1974), 40 L.Ed.2d 90 the court finds here. the Fifth remains unresolved Circuit allege plaintiffs have that the failed to all the General, Joliet¡ City Inc. v. Cf. U.S. elements of their cause of action. material (7th Cir.1979) (“Future n. 1 F.2d See, e.g., v. MCI Kowal Communications 54(b) with similar deficien Rule certifications (D.C.Cir.1994). 1271, 1276 Corp., F.3d expected may to survive this cies not be count court.”). the RTC claims that RTC violated Whis- Act, 1441a(q), which tleblower subject 54(b), Rule on the we note While discharge of or prohibits, discrimination appellate demand that some courts against employees,because of their disclosure literally “express that the determination” be RTC, Deposi- the Thrift information expect the court to express but also district General, Board, Attorney Oversight tor The lack of supply statement of reasons. banking agency. any appropriate Federal may appellate a statement leave the such qualify protection. But not all disclosures judge court uncertain whether the district was amended effective December statute soundly, or indeed exercised its discretion 17, “gross disclosures of mis- 1993 to include at its discretion all. whether it exercised funds, gross a management, waste See, e.g., v. Wood United States Ettrick authority, spe- a abuse of or substantial and (7th Products, Inc., 1211, 916 1218 Cir. F.2d public safety.” danger to The cific health 1990); Philadelphia Corp. v. Allis-Chalmers enactment, contrast, by protected 1991 Cir.1975). (3d Co., 360, 521 F.2d 364 possible Electric relating to “a violation disclosures 102-242, regulation.” any Pub.L. No. presence reviewer law or Its aids both circuit 762 (1991); however, they 251, they merely allege

§ 12 that 2236 “dis 105 Stat. law,” that possible violation of is a j. closed 1831 must be statement of material fact that ac legal import is not that The of this 12(b)(6) cepted as true a Rule motion. gov the amendment are disclosures before may upon not draw facts from We outside those after old statute and erned Dep’t pleadings. See Henthorn v. allowing That would be akin to the new. (D.C.Cir.1994). 682, Navy, 29 F.3d 688 In if against employees it female discrimination vague conelusory consequence, a and com they the fact that had been were based on 12(b)(6) may plaint survive a motion where The passage of Title VII. women before weaknesses; detail would fatal more disclose alleged retaliations. acts are the relevant remedy “is not to move [for] defendants’ are actionable if after the amendment Those interrogato but to contention dismissal serve (when response in disclosures they came to proceed summary judg ... or to ries made) class;3 in the broader retaliation ever Apple Camp River ment.” Orthmann v. only if the amendment is actionable before (7th Inc., 909, ground, 757 915 F.2d Cir. possible instigating disclosure revealed 1985). regulation.4 violation of law or in fact the motion to Here FDIC’s dismiss Thus, pur to state a claim for the requested judgment in the alterna 12(b)(6), poses Rule Pederson and tive, summary judgment if and is correct 2) 1) that allege qualifying disclosure must may disposition, we convert and affirm on 3) retaliation, where what is contributed to Gowran, grounds. Helvering v. those Cf. qualify depends required for a disclosure to 245, 238, 154, 58 302 U.S. S.Ct. 82 alleged This retaliation. the date .on (1937). Summary judgment ap is L.Ed. ¶ achieve; alleges Complaint they their propriate pleadings if the and record “show they “reported concerns to the that their genuine is no as to there issue Inspector regarding General RTC Office moving party fact and material entitled staffing potentially ... violat decisions that as a of law.” matter Federal regulations.” and Para personnel ed laws 56(c); Rule of Civil Anderson Procedure v. (Pederson) (Taylor) 47-52 graphs 29-42 248, Inc., 242, Liberty Lobby, 477 U.S. ¶¶ (Pederson) retaliation, and allege 2510, 2505, L.Ed.2d 202 We (Taylor) allege recapitúláte and and 153-56 facts examine the in the record reason links. causal light in able inferences most favorable to Pickett, nonmoving argues party, The FDIC that the alle v. Wardlaw ¶ 1297, (D.C.Cir.1993), legal, factu but do gations 20 are essence F.3d al, accepted accept conelusory allegations as true for the and need not be bare fact. 12(b)(6) Harding Gray, The v. purposes of a Rule motion. (D.C.Cir.1993). accept underlying notion is sound: Courts What this standard comes fact, allegations of their conclu plaintiffs’ down must Kowal, show, respect If F.3d at 1276. essential issue on sions of law. See to each plaintiffs proof include the text of a disclosure which will bear the burden trial, claim that it re either that the is conceded pleadings, then issue law, disputed possible genuinely violation of we are not favor or that on a vealed a turns Catrett, If, Corp. accept legal question conclusion. of fact. v. bound to See Celotex ed. This greater pre-December approach legal new "attach[] the interval between decisions, and later adverse consequences completed 1993 disclosures before events [the course, plaintiff for the enactment,” the harder will be Landgraf amendments'] v. USI Film just practical show the causal link. But that is Products, 511 U.S. 114 S.Ct. proof. issue of (1994). Landgraf says 128 L.Ed.2d 229 produce should read to such that statutes not be Taylor argue 4. Pederson that the amend- retroactivity Congression- in the clear absence of effect, given so that ments should be retroactive id., intent, completely al see which is absent (if any) pre-amendment retaliations there here. See Walleri Federal Home Loan Bank of then-unprotected would become disclosures Seattle, (D.Or.1997). F.Supp. protect- when the disclosures became actionable reaching any statutorily J.A. covered 106 S.Ct. 7 U.S. 47 2552-53, argue recipients only indirectly. Plaintiffs 91 L.Ed.2d that it make no But the should difference. Taylor’s brief From Pederson and special Act affords RTC Whistleblower its regula laws and personnel that learn the wé protection (beyond provided by the First that alleged been violated are 5 to have tions Amendment) only “provid[ing] act of the 3502(a) Ap § § 351.201. and CFR U.S.C. designated to” information entities. Br. at The former instructs the pellants’ 26. 1441a(q)(l). § It seems reasonable Management prescribe Personnel Office of special Congress protection would afford that preferences in a regulations retention specified directed the communications force; obliges agencies the latter reduction entities, remedy capacity with a all ones during a reduction follow 5 CFR Part attention, wrongs brought would to their and reorganization possibly in force. How protection from communications withhold the apparent, requirements these is not violated happen- only by that drift into such hands given uncontroverted especially the FDIC’s reading complete- Appellants’ stance. not reorganization that did con assertion ly channeling function. thwart this was not in force and hence stitute a reduction Still, Taylor's Pederson and March 1992 governed by these sections.5 arguably gross mismanage- memo discloses argument, and Pederson At oral might qualify ment and hence under the they respond explained that did counsel Thus, they pro- amended statute. would be because it was so FDIC’s assertion to the tected, after December from retalia- dangerous is a Dignified silence ludicrous. problem tion for that memo. Their is that best; proves fatal. Pederson here tactic identify retaliation-or, fail to such in- any that evidence fail to offer deed, any post-1993 They retaliation at all. possi- apply, much less were cited laws even primarily put- focus on their selection for the genuine is- bly violated. Their statement program Special back and exile in the Pro- fact, pursuant filed to Local of material sues jects reassigument May Unit. The occurred 108(h), cryptic claim makes Rule early proscribed 1992-too to be retalia- by law reorganization violated the that the given tion that the March 1992 memo was efficiency promote “the ser- failing to protected time, also, at that even if vice,” phrase appears no- J.A. proscribed, early too to be actionable when conclude that in 5 CFR Part 351. We where September 1994,given this suit was filed in genuine here: The no issue of fact there is two-year period limitations of the RTC management RTC concern- memorandum to WhistleblowerAct. reorganization did relate to ing the this, points Beyond to a Pederson regulation. potential law or violation of computer Taylor to an his search of d alleged imposed in “gag order” violation ha also as-' rights in March 1994. her Amendment reorganization was undertak serted computer claim fails because the loan Pederson’s protect disloyal savings and fidu en to affidavit, according place, to his ciaries; may search took these assertions well relate “[ojn 1993,” They March J.A. were or about possible violations of some law. instance, however, early proscribed, given that again to be in the not to too made first no made disclosures Attorney he had at time superiors General but RTC or Committee, by pre-December 1993 law.6 Banking protected to GAO and the Senate "be to a coverage entitled to returned § to occa- statute CFR 351.201 limits 5. 5 1441a(q)(8)(B)(i). position." 12 U.S.C. similar competing agency "releases sions on which an competitive employee or her level from his attempts computer inci- to make furlough days, separation, de- for more than duty, offering the search itself dent do double motion, requiring displace- reassignment retaliation, arguing also that example reorgani- ..." It not at all clear that ment. of a was disclosure his disclosure of search "competitive any releases from zation entailed “directly to senior violation Fourth Amendment management.” level,” employees on loan to RTC since FDIC Reply Appellants' 13. Be- Br. at order,” “gag contributing a factor in the fails disclosure was Taylor’s claim because affidavit, complained little more 12 U.S.C. to her does adverse action of. See attached attorneys § 1441a(q)(5) (prescribing “that do use of 5 U.S.C. principle set out the than proof system); § the media 5 U.S.C. client matters with 1221’s burden not discuss 1221(e)(1). § J.A. 685. This not absolve express permission.” client does absent au- that clearly plaintiff asserted the of the need evidence Although the memo to offer Taylor’s prima at least facie “media contacts” amount to a show thor’s view that loyalty ing McDonnell principle of client of discrimination under violated the Green, 792, 802, confidentiality, justify Douglas Corp. at least a v. and would 1817, 1824, explicitly re- reprimand,” the author “formal L.Ed.2d To the limited ex- from that. frained even failed to Pederson and have both directing beyond goes the memo tent that modest McDonnell cross threshold. evidently policy, Taylor’s attention to the Douglas requires plaintiff to show application the RTC and general within items) (among “applied and was other that he her, qualify either as unique to does vacancy, that the qualified” for the as well as discrimination,' and is on retaliation or though contin- employer, rejecting plaintiff, a response perhaps than face no more a — applicants qualifica- plaintiffs ued to seek media testy (unprotected) one—to Taylor offer no tions. Id. Pederson and communications, inter- not to March 1992 acting sec- respect such evidence with to the nal memo. position. tion chief Taylor suggest Both Tay- Equally damaging for Pederson hindered their career advancement has been lor, desig- temporary we do not believe that May present.” J.A. “since 1992 until the acting nation as section chief is one of Ascertaining the relevant 758-59. conditions, “terms, privileges employ- or easy, allegations is not dates for their various by compassed ment” the Act. U.S.C. incidents occur- can find a few but we “terms, § condi- 1441a(q)(l). phrase 17, of the ring December 1993. None after tions, privileges employment” or is identi- promote fell after that date. actual failures VII, language cal to the of Title applied for section chief Pederson various 2000e-2(a). applying Title VII Courts 758- positions, all before J.A. the fall consistently “ultimate em- have focused on reveals, Taylor, far so as her affidavit ployment hiring, granting decisions such as nothing August 1993. J.A. applied for after leave, discharging, compen- promoting, and 679-82. interlocutory ... sating not] or mediate [and allegations having upon stretch across decisions no immediate effect Two do ” employment Page Bolger, conditions.... the December threshold. (4th Cir.1981) (en banc); Pederson repeated designate failure to either 645 F.2d Rubin, acting Taylor the chief when accord Dollis v. 77 F.3d section Cir.1995). (5th office. J.A. This decid- superiors temporarily left the circuit has never Mungin make facie case of ed the issue. See v. Katten Muchin prima 759. To out a Zavis, (D.C.Cir.1997) under & retaliation RTC Whistleblower Act, protected (noting plaintiff deciding). must that a issue without But see show place against using corporate personal may taken cause this disclosure have facilities arguen- early pre-dates purposes. the amend- J.A. 1444. We assume as March would, illegality perpe- qualifying if to the for Whistleblower do that disclosure an ments (as protection qualify protection, Pederson's trator herself could some instances Act extend person the search to that date. We where the whistleblower tells a covered back assume that, Nothing illegality qualify possible illegality. whistle- as a unbeknownst to the did affidavits, however, blower, per- supports had been the covered PedersoFs ordered son). management, protesting But we do not about claim that he disclosed it to senior think that entity. legality superior evidence that of a search who ordered or to listed There is it, meeting Barbara in the context of called discussed the matter with search, fruits, superior fairly Shangraw, to discuss its can who herself had ordered charac- request except employee's for the but the conversation at her terized as was disclosure— driving policy

purpose view of the event. home to Pederson

765 Shalala, Dasgupta v. that occurred earlier.” Univer- F.Supp. 902 Hayes v. (D.D.C.1995) sity Regents, 121 F.3d (rejecting Wisconsin Board Page). of of (7th Cir.1997); see Palmer v. 1140 precise not decide that is We need (D.C.Cir.1990). Barry, (be either; defeats these claims what sue superiors appellants’ as to Just the failure case) prima facie want of a sides Special Projects, in relieve them from life complained of mediate the denials were but though occurring peri- within the limitations they minor. The federal courts were od, revive their claim or toll the stat- cannot every into for be action cannot wheeled limitations, ute of neither can that inaction possibly slight, even that was workplace one post-December constitute retalia- Yates v. protected on conduct. Cf. based tion. (6th Cir.1987) Corp., F.2d Avco concept does Nor “continu employer (finding no adverse action where ing Taylor assist in violation” sign to required employee form acknowl showing grim that the continuation of their and failed edging circumstances transfer working post-1993 to a conditions amounted leave). to sick properly document pur For statute of limitations retaliation. allegation he that was re Pederson’s continuing poses, a violation is “one that permission to attend an internal RTC fused reasonably expected could not have been to resolution, dispute J.A. course alternative subject of a lawsuit when it first made the claim, qualifying also the second its as a occurred because character violation prima case. for want of a facie Assum fails repeated did clear until it was become from one seminar ing that exclusion this during period,” Dasgupta, the limitations training oppor a denial amounted to such 1139, typically it is F.3d because its action, represent tunities as to an adverse (as impact in the case of cumulative a hostile Page, F.2d at Pederson has environment) see illegality, work that reveals his how treatment differed failed show id. But the banishment of Pederson and similarly-situated employees. from that it, Taylor Projects, they allege Special amply possible manifested itself as a retalia Finally, both and Peder continuing tion from the start. Just as continuing indeed, allege “unrelent son — by pay cannot toll low entailed a demotion extending up retaliation un ing” pattern of — covering the demo the statute of limitations In this fails for resignations. part til tion, continuing hardship Special so Pro specificity, serious flaw lack of but the more jects qualify post-1993 as a retalia cannot litany- of the specific that the elements tion. isolation, mail, telephone poor misdirected The dis service, final issue remains. simply constitute One unsuitable work — plaintiffs’ motion for a reassignment. trict court denied consequences of the initial discovery, a to take decision reassignment retaliatory, it continuance if that was Even that we have no point assign as error and wrongful, since at that Peder was not affirming under the difficulty in abuse Taylor had no disclosures made son 56(f). to Rule appropriate RTC Act discretion standard qualifying them Whistleblower discovery respect to wrongful, any if it That takes care even protection; and by dis grants summary resulting claim would have been time-barred 12(b)(6) court, what of a converted filed trict but point at the when a district court converts that officials dismissal? When some evidence suit. Absent 12(b)(6) Rule motion to one appellants’ occupa aggravated conditions judgment, parties all both Siberia, it must allow new could not ren statute tional opportunity present all mate an continuing consequences of inno “reasonable der motion Rule pertinent to rial made such wrongful the amendment cent action —unless pursue “to reasonable dis 56” and chance affirmatively called remediation covery.” Int’l v. Ex case, untimely Chicago United In act. past innocent Co., Ltd., 1375, 1380 change F.2d pointing revived effects “cannot be suit (D.C.Cir.1988) (quoting Rule of Civil Federal period unlawful acts the limitations within 12(b)). rejected charges.” The district court allowed We that characterization Procedure former, preliminary injunction, in the form of affidavits. As our of a see denial discovery, converting are the Taylor Corp., since we v. Resolution Trust F.3d 12(b)(6) review, (D.C.Cir.1995) I”), appellate motion on we do (“Taylor court’s have the benefit of district although that decision lacks authoritative necessity discovery of of the determination University weight appeal, this for see summary judgment on the Camenisch, before 390, 395, Texas v. court, possible the It is that district (1981), count. 68 L.Ed.2d 175 re continuance, implicitly denying the found in changed opinion. not consideration has our discovery summary judg- need for before no discharge “[A] constructive occurs where the count, equally possible it is on this but ment discriminatory employer creates or tolerates the already flagged count as that it had working a conditions that would drive rea claim, failing a in which case the to state person resign.” v. sonable Katradis Dav- question discovery would not arise. (D.C.Cir. Wash., El 846 F.2d 1988) omitted). (internal quotation marks It course, soundest in We believe the employee does occur when an leaves not case, discovery question the this is decide job unpleasant objectively tolerable be but Taylor, in Pederson their mo de novo. and have more cause alternatives become attrac continuance, much of make the fact tion for a tive, employer’s if the misbehavior even cre retaliatory may proved by animus be that or, unpleasantness ates the as we in observed evidence. J.A. Discov circumstantial the appeal, largesse affirmatively earlier its claim, necessary is to allow them to ery, they appeal employee’s the the alter increases proof. But the ferret out such weakness may vary The standard natives. with the is and case not that Pederson job for employee character of the the which though evidence it does— lacks animus — thus, indirectly, was and with the hired em showing of it lacks a unlawful retali but that skills; ployee’s that are conven conditions front, help Discovery on ation. will this may tional a stevedore intolerable be suggest Taylor and do not that and Pederson lawyer, perhaps But and vice versa. genuine issue There no of fact will. standard cannot ebb and flow with the tide of proscribed retaliation. to the existence of particular employee’s job specific alterna Accordingly, we rule as did the district would Here, Taylor tives. Pederson and endured discovery, and, having converted the court on May until whatever the RTC inflicted 12(b)(6) to motion for motion advantage when took of the severance court’s judgment, affirm the district dismiss Voluntary Separation package offered Taylor’s statutory claim al of Pederson and suggest Program. They Incentive do summary judgment grant would because in that simultaneous increase the wat have correct. been tage of out. Thus harassment drove them no question triable fact issue of exists on the judg- granted summary The district court discharge.7 constructive FDIC ment for the on the Amendment Taylor, reasoning Pederson and claims of finding A constructive no dis voluntary departure of their that the nature charge occurred will different have conse sought. precluded equitable relief Re- quences according type to the of relief novo,, viewing this determination de we find requested. Taylor seek voluntary merely resignation bars reassignment positions, to their in jurisdiction. relief but also federal junctive harassment, against relief future sure, Taylor damages. in To be Pederson and We examine each turn. resignations request reassignment appears dis- The term their “constructive given filing pro- sought leave amend both the lateness 7. Pederson and failure, togeth- posed complaint complaint new to offer evidence amended order (included discharge. bearing district er with the additional affidavits on constructive motion, uphold firmly gaps Appendix) Joint in their denied their and we close court standard, case. decision under the abuse of discretion (either wrongful discharge Similarly, original complaint, and was J.A. constructive) necessary element actual made when of a claim for reinstatement —discrimination They RTC. left employed still voluntary resignation enough. are not during pendency of this liti- RTC See, e.g., Maney Brinkley Mun. Water reassignment and what used to gation, 1073, 1075-76 Dep’t, & Sewer works require accordingly would reinstate- now (8th Cir.1986); Corp., Derr v. Oil Gulf original complaint simply ment. Since (10th Cir.1986). rejec F.2d Our restoring” them for “an order asks allegation tion of of constructive dis it as positions, we could read charge thus also serve to resolve this would This requesting reinstatement. in fact against plaintiffs claim the merits. ex- be consistent with desires complaint proposed in amended pressed a appropriate The treatment of eases court. To save rejected by the district standing inquiry overlaps in which the with entirely of the First Amendment precisely this element merits is not clear. the so count, however, require standing more than of on disposed have cases We grounds to after the merits-laden determination turning reassignment into reinstatement in plaintiffs that a claim no foundation “ha[d] changed circumstances. account for Slater, 904, law,” Claybrook v. 111 F.3d 907 creates plaintiffs’ voluntary departure The (D.C.Cir.1997) something we think could In in their of action: large hole cause — fairly be said of a reinstatement claim made reinstatement, they requesting seek voluntary resignation. in the face of See also injury large part remedy for that is Bush, 894, Arjay Assocs. v. 891 F.2d 898 This is true whether we self-inflicted. (Fed.Cir.1989) (affirming dismissal lack of standing a matter of the defect as treat standing concluding plaintiff after lacked en merits. Knutson, right). cf. But Lewis v. forceable standing requires plaintiff Article III (5th Cir.1983) (suggesting 237 699 F.2d injury “fairly causation —that his is to show standing element to that essential both allegedly defendant’s unlaw- traceable to the only for facial merits .should be reviewed Wright, v. 468 sufficiency standing ful conduct.” Allen pleadings analysis); of (9th FCC, 82 L.Ed.2d v. ACLU F.2d Cir.1975) rejection Tay- of on after (disposing Our of Pederson and case merits determining standing inqui discharge that merits is con- lor’s claim of constructive ease, In the conse overlapped). ries voluntary comitantly their a decision that this disposition of quences of a based lack of independent are causes acts sufficient greatly of standing do not differ from those separation from RTC. their approach, oh the merits. On either one (theoret- quite their This is consistent with plaintiffs’ request for reinstatement fails as its ically) having against claim the RTC for voluntary resignation. The of result Suppose employer an earlier mistreatment. finding after no distinction is that chief wages, wrongly employee $25 denied standing, may not affirm the district we huff. employee which the left in a upon summary grant judgment must but court’s of Plainly he claim to reinstate- would have no dis instructions to vacate remand ment, his however valid demand dam- $25 Reno, v. See Ramallo F.3d miss. Taylor-remained, ages. Had Pederson and (vacatur (D.C.Cir.1997) 1213-14 remand might they have been entitled some sort appropriate is with instructions dismiss status; having left restoration to their earlier juris appellate court loses disposition when circumstances for which RTC diction). under employed re disposition is This however, legally culpable, they cannot missing gardless of element whether deprived the RTC has them standing claim required substantive jobs, if prior Clajon even treatment of action. See Production cause (10th them, Petera, falling though Corp. short constructive Cir.1995) jurisdiction Failing (dismissing for discharge, to show lack was actionable. issues). causation, identity Consequently, we despite standing. lack al; grant we dispose of the reinstatement claim on also affirm will standing grounds. on his constitutional claim. is, Burgos points The retaliation complaint original also resig- primarily, the demotion that to his led sought permanent injunction against future complaint may Although nation. read before, retaliation. we held As suggest assignment “problem his resignation request moots this cases” constituted for disclo- also retaliation eliminating possibility of future harm and firms, overbilling by sures law about outside I, utility injunction. Taylor appeared aspect counsel to abandon this jurisdiction no F.3d at 1502-05. We have argument, describing merely stage- oral it as Finally, they over a moot ask for claim. setting; Burgos in his nor does mention it compensatory damages, clearly a demand 27, 32-34; Appel- Appellants’ briefs. Br. at employment. mooted termination of Reply lants’ Br. at 17-20. Marsh, F.2d Bois v. (D.C.Cir.1986). the extent that this re To response to The demotion came in Act, quest rests on the RTC Whistleblower Burgos’s filing his “Informative Motion” with explicitly damages remedy which offers a as litigation. court in the As district Crabb reinstatement, well far as the RTC Act is con Whistleblower § 1441a(q)(3), it falls with their cerned, Burgos encounters the immediate claim, as above. discussed protects difficulty that the Act disclosures RTC, specified: could also to the the entities Board, conceivably seeking damages Depositor Oversight under the Thrift Protection General, Attorney The defendant in this or appropriate First Amendment. an suit, however, FDIC, banking and agency. 1441a(q). no cause of 12 It is'the damages for constitutional protect action viola does not to courts. communications Although tions —whether called a Bivens action or* “Informative Motion” states against government implied copy being Inspec not —is to be that a sent to is the RTC 471, General, agencies. Meyer, 510 U.S. Burgos 484- tor himself not claim FDIC does 86, 996, 1004-06, 127 copy played any 114 S.Ct. L.Ed.2d 308 that that role in his demo (1994). tion; superiors and also amply Pederson name his infuriated (succeeded by the filing CEO Chairman of his RTC court. FDIC) defendant, as but name capacity allege him in his official no Burgos argues also that demotion vio- his part.8 unlawful acts on his invoking lated rights, his First Amendment jurisdiction over As we have no principle giving government employees equita- claims constitutional to protection discipline some from for their relief, grant

ble we the district court’s vacate 138, speech. Myers, Connick v. 461 U.S. See in- judgment and remand with 1684, (1983); 103 L.Ed.2d S.Ct. 75 708 Pick- to structions dismiss. Education, ering v. 88 Board 391 U.S. (1968). Nothing S.Ct. 20 L.Ed.2d Burgos, automatically pro- The third also in this appellant who doctrine withholds brings statutory claims. tection to and constitutional for disclosures courts. Nonethe- less, complaint granted summary facially find his inad- district court We defendant, equate and affirm the district court’s dismiss- to the and we affirm. appellants Congress's supposing 8. Even to Here enactment intended of the RTC Whistle- against individually, proceed precludes blower the CEO suit Act Bivens action under Bush, 367-90, damages First Amendment would not First at under the Amendment. 462 U.S. get ground. (refusing imply off the We will not infer Bivens at 2405-17 Bivens S.Ct. remedy “compre- remedy given Congress where has created under the Amendment Civil Act); procedural provisions hensive and substantive Service Reform Walleri v. Federal Home Seattle, (9th giving States_” against meaningful United Loan 83 F.3d remedies Bank of Lucas, Cir.1996) (same respect with Whistle- Bush v. U.S. to FDIC 2404, 2406; Act). S.Ct. L.Ed.2d blower “a There is mention Pickering courts to strike wishes. J.A. 1080-83. no directs bal- mootness, [employee], attempt the interests of the and none of an to cam- ance between citizen, default, commenting upon ouflage prominent matters but reference to aas State, the interest of public sought. concern and being the fact that sanctions were efficiency employer, promoting the as content, form, The and context of the mo through performs public services that, Burgos’s tion to the lead conclusion as 568, 88 at 1734-35. employees.” Id. at S.Ct. admits, First Affidavit it was intended clear that the doctrine covers Connick makes “identify[] responsible who was for the di concern, public only speech on a matter litigation [Burgos] rection of this social, i.e., “political, other concern to had ordered the Motion to Vacate to be Connick, community.” at 461 U.S. Neither of these ele withdrawn.” J.A. 997. 1690; at F.D.R. Fox v. District 103 S.Ct. see ments, more, public matter without is a (D.C.Cir. Columbia, 1491, 1493 of 1996). concern; public, released this motion no “the would reveal more than fact that inquiry is public concern one single employee upset with the status Connick, law, n. 461 U.S. at 150 Connick, quo.” at at U.S. 103 S.Ct. 10; Fox, 1692 n. 83 F.3d at at purpose 1691. The of the communication content, by looking “the at be determined sanctions, personal was to avoid not to ex statement, form, given of a and context pose wrongdoing. the outcome Whatever Connick, revealed the whole record.” (Burgos respect to the former does not 1690. The dis 103 S.Ct. at us), gesture tell there was no real towards Burgos’s “Informa trict court concluded that latter, unex the incidental and a matter of Motion” did not involve tive plained reference “unethical conduct” does novo, public Reviewing de concern. we change speaker this fact. Of course a agree. might an effort to deflect blame combine that he Burgos his briefs claims dis- Connick-qualifying gov awith revelation of supervisors that his closed to court it,” say, But “He did ernment dereliction. to case, Appellants’ continuing litigate to moot a it,” already “He me do “it” made where is up their earlier Br. at order to cover established, just finger garden-variety default, Appellants’ Br. at This sort 19-20. . -pointing And embellishments rhetorical certainly governmental misbehavior obloquy marginally increasing the associated concern, object public al- like an sounds public it to matter of con do elevate a matter, a though preliminary Accordingly, disciplinary cern. actions taken cover-up altogether alleged clear how the response Burgos’s to affidavit could Litigating supposed to function. set- was offend the First Amendment. strategy an case does not seem effective tled default; concealing presumably, for away to from shirkers would want slink Taylor, respect to we With court, neglect by to not call attention their 12(b)(6) on government’s motion convert the vacate. But we need not bringing motions to summary statutory counts to a motion for tangle, glance try to unravel this judgment and affirm. On the constitutional Motion” cuts clean actual “Informative count, jurisdiction equita- over finding no through. summary grant of ble claims we vacate the that motion discloses is follow- What to judgment and remand with instructions opposing party for sanc- ing: The had asked find cause We no constitutional dismiss. He against Burgos. recommended tions damages, grant of affirm the action for superiors litigation discontinued his respect Bur- judgment. summary With unilaterally outside counsel instructed both gos, we affirm the dismissal pending to vacate the motion withdraw grant and the count change refused order

judgment. He count. constitutional counsel, calling instructions to the outside his “unethical,” superiors overrode So ordered. his his ROGERS, Judge, concurring: Circuit opinion the court for its join

I save request equitable appellants’

treatment standing. of constitutional

relief as matter Rather, opinion at because there [766].

See appel- to show insufficient evidence

was constructively discharged, given

lants were voluntary opinion departures, see at 16-

their request equitable relief fails for evidentiary foundation. This find-

lack of an one.

ing seems to me to be the fundamental appellants’ injury is pleadings,

On actions; appellees’ the court

traceable standing not a pleadings is

cannot credit the evidentiary

analysis, but determination Slater,

sufficiency. Claybrook v. (D.C.Cir.1997);

F.3d Florida Audu- Bentsen, Soc’y v. 664 n.

bon (en

(D.C.Cir.1996) banc) (citing Flast v. Co-

hen, 88 S.Ct. 392 U.S. (1968)).

L.Ed.2d EVERETT, al., Appellants, et

M.A. GROUP, INC.,

US AIRWAYS al., Appellees.

et

No. 96-7158. Appeals,

United States Court

District of Columbia Circuit.

Argued Nov. 6, 1998.

Decided Jan.

Case Details

Case Name: Jacqueline P. Taylor v. Federal Deposit Insurance Corporation and Ricki Helfer, Chairman, Fdic

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 23, 1997

Citation: 132 F.3d 753

Docket Number: 96-5267

Court Abbreviation: D.C. Cir.