complaint pursuant to Rule 12(b), Fed.R. Civ.P.
This action was filed against two present officers of the
United States Army, Major George Dooley and Captain Joseph
Genna, and a retired officer, Major Roy Carlton. Plaintiff
seeks damages from the defendants, in their individual
capacities, cf. Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91
L.Ed. 1209 (1947), for their violation of plaintiff's fifth
amendment rights. Davis v. Passman, 442 U.S. 228, 99 S.Ct.
2264, 60 L.Ed.2d 846 (1979). The court has jurisdiction of this
case pursuant to 28 U.S.C. § 1331.
Count I of the amended complaint charges that the three
defendants participated in a plan to force plaintiff to resign
from her civil service position with the Department of the
Army by intentionally making her working conditions so
intolerable that she was forced to resign under her doctor's
orders. According to the complaint, the defendants were forced
to resort to this plan because, as a career civil service
employee, plaintiff could only be discharged for cause.
See 5 U.S.C. § 7501(a) (1970). The defendants knew that
plaintiff's exemplary work record of 33 years would have made
it impossible to procure her discharge under applicable rules
and regulations. No racial, sexual or other class based animus
is relied on by plaintiff to explain defendants' alleged
actions. For all that appears from the complaint, the
defendants were motivated solely by their personal dislike of
Count II of the amended complaint is directed solely to
Major Dooley. It charges that during the course of defendants'
plan to drive plaintiff from her job, Major Dooley slandered
plaintiff by calling her "a liar, a fraud, and a thief."
Amended Complaint ¶ 7(d).
Two grounds for dismissal are presented by defendants'
motion. The defendants first contend that Count I fails to
allege anything more than the common law tort of defamation.
Thus, it is argued Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335,
3 L.Ed.2d 1434 (1959) requires dismissal since federal
executive officials acting within the outer perimeter" of their
official duties are absolutely immune from damage claims for
common law torts. See also Evans v. Wright, 582 F.2d 20 (5th
Cir. 1978) (tortious interference with contractual relations);
Granger v. Marek, 583 F.2d 781 (6th Cir. 1978) (tortious
interference with business and intentional infliction of mental
The plaintiff's position is that Count I adequately alleges
a constitutional violation. The plaintiff alleges that she has
a property interest in her civil service job which she may not
be deprived of without due process. It is now clear that an
individual executive official may be personally liable for
actions that have deprived a person of his fourth, fifth or
eighth amendment rights. Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971); Davis v. Passman, 442 U.S. 228, 99 S.Ct.
2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, ___ U.S. ___,
100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). It is also clear that
plaintiff has adequately alleged the existence of a property
interest in her job. Plaintiff's civil service appointment gave
her a legitimate entitlement to continued employment absent a
showing of good cause for dismissal. This entitlement is
sufficient to establish a fifth amendment property interest.
5 U.S.C. § 7511(a)(1), 7513(a).*fn1 Arnett v. Kennedy,
416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
Furthermore, this court believes that the serious
allegations concerning defendants' plan to force plaintiff to
resign is tantamount to an unlawful discharge. Thus, plaintiff
has adequately alleged acts which constitute a violation of
plaintiff's constitutional rights. Since Butz v. Economou,
438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d
895 (1978) is controlling in a case alleging an executive
official's violation of a person's constitutional rights,
absolute immunity has no applicability to the facts alleged in
The discussion above demonstrates that plaintiff's
constitutional rights are at stake, but this does not mean
that she has stated a claim upon which relief can be granted.
The claim contained in Count I seeks an award of damages. This
court believes that the plaintiff has not pleaded a claim upon
which money relief can be granted. While we have rejected
defendants' argument that the complaint should be read as
stating that plaintiff "voluntarily surrendered" her job,
see Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23
L.Ed.2d 404 (1969) (on a motion to dismiss the complaint must
be construed in the light most favorable to the plaintiff),
this does not mean that a damage remedy is either necessary or
appropriate. We agree with the defendants that under Paige v.
Harris, 584 F.2d 178 (7th Cir. 1978) even if one has a property
interest in employment, that interest may be terminated if a
hearing or other review is available. See also Ashton v.
Civiletti, 613 F.2d 923 (D.C.Cir. 1979).
When a civil service employee has a grievance against her
employer an extensive procedure is provided which permits the
employee to resolve the grievance. 5 C.F.R. § 772 et seq.
Furthermore, it is apparent from the face of the complaint that
plaintiff has filed some grievances against the defendants with
her former employer. Amended Complaint ¶ 9. It is no help to
plaintiff's claim that she alleges that further attempts at
administrative remedies would be futile, since she has not
alleged any fact which even remotely impeaches the fairness or
adequacy of the administrative grievance proceedings available
to her. Thus, either her claims against defendants were found
to be groundless, she failed to pursue them vigorously in the
administrative proceedings, or the administrative decision was
erroneous. In no case can she deny that she was given the
opportunity for a fair hearing in which relief could be
afforded her. Thus, at most, she would be entitled to review of
the final and binding administrative decision only if she has
exhausted her administrative remedies and then only on the
basis of the judicial review procedures available under the
Administrative Procedure Act, 5 U.S.C. § 701 et seq. Cf Mervin
v. FTC, 591 F.2d 821 (D.C.Cir. 1978).
If this were not enough to afford her due process of law,
obviating both the need for a damage remedy and the proximate
cause requirement of her claim that defendants' acts deprived
her of property without an adequate opportunity to contest
those actions, the Court of Claims has held that relief is
available to former employees that are wrongfully forced to
resign. Thus, even if she had failed to institute grievance
procedures prior to her resignation, she has an appropriate
post resignation remedy. Gratehouse v. United States,
512 F.2d 1104 (Ct.Cl. 1975). The civil service discharge procedures
would entitle her to reinstatement and back pay while affording
her an opportunity to clear her name and seek sanctions against
This court is persuaded by the reasoning of the Court of
Appeals of the Eighth Circuit in Bishop v. Tice, 622 F.2d 349
(1980) that the need to infer a money damage remedy for a
denial of procedural due process is unnecessary under the facts
alleged in Count I of the complaint. Since Count I of the
complaint fails to state a claim upon which relief can be
granted, this court has no independent jurisdiction to consider
the state law claim of defamation contained in Count II. The
complaint will therefore be dismissed in its entirety without