Opinion
No. 06 C 5432.
November 15, 2007
Charles T Whalen, represented by Charles T Whalen Orland Park, IL, PRO SE, Attorney for Plaintiff .
Donald R. Legan represented by William R. Dunn, Attorney at Law, Oak Lawn, IL, Jonathan C. Haile, United States Attorney's Office (NDIL), Chicago, IL, Attorney for Defendant United States of America, represented by Jonathan C. Haile, Attorney for Defendant
MEMORANDUM OPINION AND ORDER
Plaintiff, Charles Whalen, filed suit against Defendants, United States of America ("United States") and Donald Legan, alleging claims of eavesdropping and illegal use and dissemination of information obtained through the use of an eavesdropping device. Originally filed in the Circuit Court of the First Judicial Circuit of Illinois, Cook County, this matter was subsequently removed to this Court by the United States based on Plaintiffs claims falling within the Federal Tort Claims Act. Presently pending before the Court is the Defendant United States of America's motion to dismiss. No response has been filed.
BACKGROUND
A reading of Plaintiff's Complaint supports the following summary of the alleged conduct of the parties.
On or about August 2, 2002 and March 6, 2003, Charles Whalen was employed with the United States Internal Revenue Service ("IRS") as an Appeals Officer. During the course of his employment, Whalen received telephone calls from Donald Legan, a taxpayer. Legan recorded several of their telephone conversations, using an illegal eavesdropping device. Legan recorded two conversations on or about August 2, 2002, and a third conversation on or about March 6, 2003. These conversations were recorded without Whalen's knowledge or consent.
On or about October 2003, Legan divulged the recordings to Mark J. Miller, an attorney employed by the IRS. On or about December 21, 2003, Legan divulged the recordings to Special Agent Sandra A. Opyd and Kevin H. Cliff, agents of the U.S. Treasury Inspector General for Tax Administration.
Based, in part, on information contained in the recordings made by Legan, Whalen's employment was terminated on June 17, 2005, at which time Whalen's annual salary exceeded $100,000. Whalen's employment was terminated eleven days before he was entitled to receive a full pension based on 30 years of government service under the Federal Employees Retirement System. As a result of his termination, Whalen's pension benefits were substantially reduced, he was deprived of his health insurance, he was subjected to a criminal investigation for bribery, and his professional reputation as an attorney was damaged. In light of these losses, Whalen commenced this civil lawsuit, seeking monetary damages.
ANALYSIS
In ruling on a motion to dismiss the court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Sprint Spectrum L.P. v. City of Carmel, Ind., 361 F.3d 998, 1001 (7th Cir. 2004) ( Sprint). Federal Rule of Civil Procedure 8(a)(2) requires that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To meet Rule 8(a)(2)'s requirements, "the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S. Ct. 1955, 1964 (2007), quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (alteration in Bell Atlantic). "Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Serv., Inc. 496 F.3d 773, 776 (7th Cir. 2007).
As to the United States, this suit falls under the Federal Tort Claims Act ("FTCA"). Under the FTCA, Whalen is required to present his claim to the appropriate federal agency prior to seeking redress in court. 28 U.S.C. § 2675(a). When a plaintiff fails to exhaust his administrative remedies, he is barred from bringing suit in federal court. See McNeil v. United States, 508 U.S. 106, 113 (1993). At this time, Whalen has not made any claim to the Internal Revenue Service, the appropriate federal agency. Thus, Whalen has not exhausted his administrative remedies under the FTCA; and his claim against the United States is barred.
Additionally, Whalen's suit is preempted by the Civil Service Reform Act ("CSRA"), which precludes recovery under the FTCA. The CSRA provides a scheme of review for addressing non-discriminatory, adverse personnel actions taken against federal employees. United States v. Fausto, 484 U.S. 439, 448 (1988). Under the CSRA, a federal employee may appeal adverse personnel actions to the Merit Systems Protection Board, and then to the Court of Appeals for review of the Board's decision. 5 U.S.C.A. §§ 7513(d), 7703. Whalen's termination is a "personnel action"; therefore, the CSRA applies and preempts all other remedies, including remedies available under the FTCA. Because the CSRA preempts this action, this Court does not have jurisdiction.