(Unsuccessfully) Suing the Prosecutor

By on August 30, 2006 in Current Events with 0 Comments

A magistrate for the U.S. District Court (D.C.) has recommended dismissal of a lawsuit filed by a SEC financial analyst against the Special Counsel, Scott Bloch. (Koch v. Bloch, D.D.C. Civil Action No. 00-2428 (PLF/JMF), 8/24/06)

Mr. Koch’s complaint stems from the fact that the Office of Special Counsel (OSC) refused to prosecute his prohibited personnel practices and whistleblowing retaliation complaints that he filed with the OSC against his agency. The OSC had notified Koch that there was insufficient evidence to pursue the complaints, gave him an opportunity to furnish any additional evidence that he had, and, when he submitted nothing further, OSC closed its file on the complaints. Koch was notified of his right to file an Individual Right of Action with the Merit Systems Protection Board. He did this and the Board denied his IRA. (Opinion pp. 2-3)

Koch then filed an EEO complaint against the Special Counsel contending that the OSC handling of his complaints were discriminatory. The agency dismissed his complaint on the basis that he was neither an employee nor an applicant for employment of OSC. Koch appealed the denial of his EEO complaints to the Equal Employment Opportunity Commission. The EEOC affirmed OSC’s decision.

A few days before the EEOC upheld the OSC, Koch filed a second prohibited personnel practice complaint with the OSC, stating that SEC had retaliated against him for whistleblowing. Following the same process, OSC found insufficient evidence to pursue the complaint. Koch ended up withdrawing this second complaint. (p. 3)

Koch then sued Special Counsel Bloch in district court for violations of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Age Discrimination in Employment Act of 1973, and due process rights under the Fifth Amendment of the Constitution. (p. 2)

The agency moved to dismiss the suit for lack of subject matter jurisdiction. The magistrate assigned the task of sorting all of this out has now recommended that agency’s motion be granted.

The basic problem is that before the United States can be sued, it must have consented to be sued by waiving its sovereign immunity.  None of the laws relied upon by Koch made such a waiver where “plaintiff is suing an agency of the federal government other than the one that employs him….” (p. 6)

Acknowledging that what Koch is really trying to do is to challenge the OSC action on his claims against the SEC, the magistrate considered the Civil Service Reform Act, which set up the OSC procedures. Under that statute, the district court has no jurisdiction to “pass on the merits of OSC’s decision to terminate an investigation….Thus, regardless of the bases of plaintiff’s claims, be they statutory or constitutional, this court has no jurisdiction over the merits of the OSC’s decision not to investigate.” (p. 11) 

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.