News from the Courts: On June 16, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a precedential decision in Lee v. U.S. Agency for International Development et al., No. 16-5276. The D.C. Circuit addressed the issue of whether a federal employee has a civil remedy for alleged false statements by managers under 18 U.S.C. § 1001.
Mr. Lee was a federal government contractor, but was terminated in 2013 after losing his security clearance. Mr. Lee claimed his termination was national origin discrimination. In court, Mr. Lee also raised a separate claim that he had a private civil remedy against the managers who terminated him because the managers had made false statements during the EEO investigation as to who made the decision to fire him. Mr. Lee cited 18 U.S.C. § 1001, which imposes criminal penalties against persons making false statements to the federal government.
Mr. Lee raised this question: if the responsible management officials make false statements in the investigation, can a complainant sue the manager or get the manager punished? Agencies can impose adverse actions against those who make knowingly false statements in EEO complaints, which also cannot be initiated by a complainant. As previously discussed in this blog, legal difficulties bar many defamation claims against federal managers acting within the scope of their employment. The Office of Special Counsel by regulation generally declines to prosecute prohibited personnel practices for EEO reprisal matters, deferring to the EEO complaints process, despite the EEOC-OSC memorandum of understanding meant to facilitate such discipline. While EEO reprisal claims are potentially available, the remedy is against the agency and not the manager personally, and EEOC administrative judges cannot directly order discipline of managers. But, does 18 U.S.C. § 1001 provide a private remedy for the subject of the false statement? The D.C. Curcuit says "no."
18 U.S.C. § 1001 explicitly creates a criminal penalty if the U.S. Attorney learns of the alleged false statements and decides to prosecute (which rarely occurs in practice). Mr. Lee's theory was that the statute also carries an implied civil right of action as well. Unfortunately for Mr. Lee, the D.C. Circuit disagreed. After examining the legislative history, the Court found no private right of action for Mr. Lee in 18 U.S.C. § 1001.
Lee demonstrates the continuing difficulties in ensuring appropriate negative consequences for managers engaging in discrimination--and for managers making false statements to cover their misdeeds.