Virginia Lawyers Weekly//November 20, 2023
Virginia Lawyers Weekly//November 20, 2023//
Where a former member of an agency inspector general’s office, along with current employees, s sought to enjoin investigations, but they failed to allege any injury that could support standing and their claims were not ripe, their suit was dismissed.
Plaintiffs are the Department of Homeland Security, or DHS, Inspector General and two of his staff members, as well as Joseph E. Gangloff, former Chief Counsel to the Inspector General for the Social Security Administration, or SSA. The DHS plaintiffs allege that they have been subjected to a relentless stream of Integrity Committee, or IC, complaints.
They further claim that the IC’s decision to investigate even the most obviously meritless complaints brought against them was in retaliation for their own attempts to have the IC address the dysfunction and dishonesty among senior DHS Office of Inspection General, or OIG, leadership. Meanwhile, Mr. Gangloff asserts that, two years after he retired from SSA OIG, he received a letter from the IC informing him that it had opened an investigation involving him and others.
Plaintiffs now bring suit against the Council of the Inspectors General on Integrity and Efficiency, the IC and members of those entities, asking this court to enjoin all IC inquiries and investigations against them, to declare the IC’s policies and procedures, or ICPPs, unlawful, to declare that the congressionally created structure and funding of the IC is unlawful and to declare that plaintiffs are entitled to use agency counsel to respond to misconduct complaints against them. Defendants argue that the plaintiffs lack standing and that the claims are unripe.
Mr. Gangloff points to a request to participate in a “voluntary” interview that he received from the IC after plaintiffs filed the complaint in the instant case. In Mr. Gangloff’s view, although the IC couched this interview invitation in the language of “voluntariness,” the IC is threatening him with an automatic finding of wrongdoing if he chooses not to take part in the interview. This court is unconvinced. Even if the risk of an automatic finding of wrongdoing were sufficient to constitute an injury in fact, Mr. Gangloff has not adequately alleged that he currently faces any such risk.
Mr. Gangloff also argues that he is being injured by the IC unlawfully continuing to assert jurisdiction over him after he retired from the federal government. But Congress did not include any language in the statute limiting the term “staff members” to current employees, and plaintiffs offer no basis for reading such a qualifier into the statute.
Moreover, restricting the IC’s jurisdiction to current employees would create perverse incentives by allowing employees accused of misconduct to shield their actions from scrutiny by resigning. For these reasons, the court finds that Mr. Gangloff has not alleged any injury that could support standing.
The DHS plaintiffs first argue that they are being forced to spend an inordinate amount of time and resources responding to meritless IC complaints brought against them. While plaintiffs repeatedly claim in a conclusory fashion that the IC inquiries at issue here are interfering with the DHS OIG’s exercise of its legal duties, they simultaneously concede that the office “has largely” been able to fulfill its mission of holding individuals accountable for misconduct. Because plaintiffs have not plausibly alleged any harm stemming from the IC complaints filed against them over and above the inconvenience of having to obtain counsel and respond to government inquiries, the court finds that their allegations fall short of establishing an injury in fact.
The DHS plaintiffs also assert that they were forced to respond to the IC’s requests or else face an automatic finding of wrongdoing. Like Mr. Gangloff, however, the DHS plaintiffs misread the ICPPs. The DHS plaintiffs also aver that they were injured by having to pay private attorneys to assist them with responding to IC inquiries. However they cannot rely on the denial of agency counsel and their decision to engage private attorneys as a cognizable injury. The DHS plaintiffs’ final argument that they will be injured by a public report “that does not have to include anything they have said in their defense” fares no better.
Defendants argue that neither Mr. Gangloff’s nor the DHS plaintiffs’ claims are ripe because plaintiffs ask the court to entangle itself prematurely “in abstract disagreements” and to interfere with the IC’s investigation before “an administrative decision has been formalized and its effects felt in a concrete way.” The court agrees.
Defendants’ motion to dismiss granted.
Fredericks v. Council of the Inspectors General of Integrity and Efficiency, Case No. 1:23-cv-442, Nov. 2, 2023. EDVA at Alexandria (Alston). VLW 023-3-705. 21 pp.