The opinion of the court was delivered by: TROUTMAN
The above named plaintiff instituted this action claiming he had been wrongfully discharged from his position as United States Marshal for the Middle District of Pennsylvania. He seeks, inter alia, reinstatement to his former position. The plaintiff alleges in his amended complaint that his dismissal constitutes a violation of 28 U.S.C. § 561 (the statute authorizing presidential appointment of United States Marshals upon the advice and consent of the Senate) and the doctrine of separation of powers, an infringement of his liberty and property interests under the Due Process Clause of the Fifth Amendment, and a violation of his right to freedom of speech under the First Amendment.
He also contends that his dismissal and unsatisfactory performance rating violated 5 U.S.C. §§ 2301 and 2302 as prohibited personnel practices, thereby entitling him to the substantive and procedural protections of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq. Pursuant to his claim under the CSRA, the plaintiff originally asked this Court to compel the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) to conduct an investigation of his dismissal and the unsatisfactory annual performance appraisal he received on or about August 26, 1985. However, this aspect of the plaintiff's action has become moot since the initiation of this suit. The MSPB, of which the OSC serves as an investigative arm, has held that a United States Marshal is not an employee covered by the provisions of the CSRA. See Matthew Chabal, Jr. v. Department of Justice, United States Marshals Service, Initial Decisions Nos. PH07528610029 and PH34438510740, slip op., (MSPB 1985). Likewise, the OSC has held that "Presidentially appointed positions are not considered 'covered positions' as defined in the law regarding prohibited personnel practices," and, therefore, it lacks jurisdiction to investigate the plaintiff's complaints. (See Stipulation, Paper #15, Exhibit "B"). If the plaintiff wishes to challenge these decisions, he may pursue his appellate remedies available with the proper Circuit Court of Appeals. This Court, however, lacks authority to grant plaintiff any relief as to this statutory aspect of his claim. Therefore, we must dismiss his statutory claim under the CSRA.
The defendants presently seek to have the remaining elements of the plaintiff's complaint dismissed pursuant to F.R.Civ.P. 12(b)(1) for lack of personal jurisdiction over defendants Tuttle, Morris and Twomey in their individual capacities and F.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. We shall first address the issues raised by the defendants' motion to dismiss the plaintiff's complaint pursuant to Rule 12(b)(6) since they will be dispositive of this matter.
The following principles guide us in our consideration of the defendants' motion: all well-pleaded allegations in the plaintiff's complaint must be accepted as true, the complaint should be construed liberally and in favor of the plaintiff, the complaint should not be dismissed unless it appears beyond doubt that no set of facts may be proven which would entitle the plaintiff to the relief requested, and finally, the issue is not whether the plaintiff will prevail, but rather whether he is entitled to submit evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) and Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
Accepting all allegations in the plaintiff's complaint as true, the facts of this case are as follows: President Reagan, pursuant to the authority vested in him by 28 U.S.C. § 561, appointed the plaintiff United States Marshal for the Middle District of Pennsylvania in 1982 and the Senate confirmed the nomination. Defendant Morris, Director of the Marshal's Service, in April, 1985, requested that the plaintiff resign. (Plaintiff's Complaint, para. 12). The plaintiff, on or about August 26, 1985, received an overall unsatisfactory annual performance rating. (Plaintiff's Complaint, paras. 18 and 19). The President dismissed the plaintiff from service on or about September 26, 1985, when he failed to resign. (Plaintiff's Complaint paras. 27 and 28). The plaintiff was dismissed because he communicated to his superiors his belief that he was bound to follow the instructions and orders of the Federal Judges of the Middle District and that the Justice Department and the United States Bureau of Prisons were interfering with such instructions and orders. (Plaintiff's Complaint, paras. 42-48).
The plaintiff claims that his dismissal was based upon false and misleading information, and that the unsatisfactory performance rating he received was similarly unjustified and false. (Plaintiff's Complaint, para. 40) He further alleges that his firing was based upon political and personal animus unrelated to his job performance. (Plaintiff's Complaint, paras. 30-33).
I. The Due Process Claims.
The first issue we address is whether the President of the United States may remove a United States Marshal at will and without cause prior to the expiration of his statutorily prescribed four-year term. The statute under which the President appointed the plaintiff provides:
(a) The President shall appoint, by and with the advice and consent of the Senate, a United States Marshal for each judicial district.
(b) Each marshal shall be appointed for a term of four years. On expiration of his term, a marshal shall continue to perform the duties of his office until his successor is appointed and qualifies, unless sooner removed by the President.
The statute makes no reference to "cause" in providing for the dismissal of a United States Marshal during his four-year term. However, in appropriate circumstances, such a requirement has been read into other statutes. See e.g., Wiener v. United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958), and Borders v. Reagan, 518 F. Supp. 250 (D.D.C. 1981). The Supreme Court, in the Myers-Humphrey's-Wiener trilogy of cases established the principle that where there is a legitimate need for independence in the functioning of a government agency, commission, etc., the President lacks authority to remove at will those appointed to such bodies. Myers v. United States, 272 U.S. 52, 47 S. Ct. ...