United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2010 Decided January 4, 2011
No. 10-5221
GERALD WALPIN,
APPELLANT
v.
CORPORATION FOR NATIONAL AND COMMUNITY SERVICES ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01343)
Sanford M. Saunders Jr. argued the cause for the appellant.
Helen L. Gilbert, Attorney, United States Department of
Justice, argued the cause for the appellees. Ronald C. Machen
Jr., United States Attorney, and Mark B. Stern, Attorney, were
on brief.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Gerald
Walpin, former Inspector General of the Corporation for
National and Community Services (CNCS), appeals the district
2
court’s dismissal of his mandamus action against the CNCS and
three of its officers. Walpin v. Corp. for Nat’l & Cmty. Serv.,
718 F. Supp. 2d 18 (D.D.C. 2010). Walpin asks that CNCS be
directed to restore him as the CNCS Inspector General on the
ground that the President did not comply with the requirement
of the Inspector General Act (IGA), as amended by the Inspector
General Reform Act of 2008 (IGRA), that the President give the
Congress thirty days’ notice of his intent to remove an Inspector
General and of the reasons therefor. 5 U.S.C. app. 3 § 3(b). We
conclude the district court correctly dismissed the action because
Walpin does not have a “clear and indisputable right to relief”
as required for mandamus.
I.
Walpin assumed the post of CNCS Inspector General on
January 6, 2007 after Senate confirmation. On June 10, 2009,
Walpin received a telephone call from Norman Eisen, the
President’s special counsel, who issued Walpin an “ultimatum
that he either tender his resignation as Inspector General, or be
terminated from his post,” giving him one hour to decide.
Compl. ¶ 29. When asked why, Eisen told Walpin it was “time
to move on.” Id. Walpin “declined to make a decision,”
whereupon “Eisen informed him that he was being removed
from his post as Inspector General.” Id. The same day, “the
White House ordered that [Walpin] be immediately denied all
attributes of his post, including access to his office, continued
access to his staff, and access to email communications,” and
“be transferred . . . to the status of administrative leave.” Id.
¶ 41.
The following day, June 11, 2009, the President sent
virtually identical letters to the Vice President (as Senate
President) and to the House Speaker, stating in relevant part:
“This is to advise that I am exercising my power as President to
remove from office the Inspector General of [CNCS], effective
30 days from today. . . . [I]t is vital that I have the fullest
3
confidence in the appointees serving as Inspectors General.
That is no longer the case with regard to this Inspector General.”
Mot. to Dismiss, Exs. A, B, Walpin v. Corp. for Nat’l & Cmty.
Serv., No. 09-1343 (D.D.C. Oct. 26, 2009) (Mot. to Dismiss);
see Compl. ¶ 31. The same day, Senator Charles Grassley
advised the President he was “deeply troubled to learn of the
ultimatum given [Walpin] absent Congressional notification.”
Mot. to Dismiss, Ex. C at 2. In response, the White House
Counsel wrote a letter to Grassley stating that the President
“intend[ed] to remove [Walpin] because the President d[id] not
have full confidence in him” and that this action was “fully
supported by the Chair of [CNCS] (a Democrat) and the Vice-
Chair (a Republican).” Id., Ex. D at 1. The letter further
asserted Walpin had “been suspended, with pay,” which was
“fully consistent with the Inspector General Act,” and advised
that the Acting United States Attorney for the Eastern District of
California had “referred [Walpin’s] conduct for review by the
Integrity Committee of the Council of Inspectors General on
Integrity and Efficiency” and that the administration was “aware
of the circumstances leading to that referral and of [Walpin’s]
conduct throughout his tenure.” Id. On June 16, 2009, Senator
Claire McCaskill called on the White House to provide a “more
substantive rationale” and Senators Joseph Lieberman and Susan
Collins inquired about Walpin’s removal. Compl. ¶¶ 34-35. In
response, Eisen sent a letter to the three senators stating that
Walpin “was removed after a review was unanimously requested
by the bi-partisan Board of [CNCS]” and that the Board’s action
“was precipitated by a May 20, 2009 Board meeting at which
Mr. Walpin was confused, disoriented, unable to answer
questions and exhibited other behavior that led the Board to
question his capacity to serve.” Mot. to Dismiss, Ex. E., at 1.
As additional justification for Walpin’s removal, Eisen recited
other examples of inappropriate activity and concluded that
Walpin “had become unduly disruptive to agency operations,
4
impairing his effectiveness and . . . losing the confidence of the
Board and the agency.” Id.1
Walpin filed this action against the CNCS, its Acting Chief
Executive Officer, Chief Human Capital Officer and General
Counsel. The amended complaint alleges Walpin was
“effectively removed from his post as Inspector General on June
10, 2009, prior to any colorable claim of a start of the required
thirty (30) day notice-to-Congress period, rather than following
a thirty (30) day notice period, as required by statute.” Compl.
¶ 41. It seeks (1) declarations that the June 11, 2009 and June
16, 2009 letters failed to comply with the statutory notice
requirements and that Walpin was “unlawfully transferred, and
or constructively terminated in violation of the notice
requirements of the [IGRA]” and (2) a “Writ of Mandamus
directing Defendants to restore Mr. Walpin to his duly appointed
position as Inspector General.” Compl. at 19-20.
On June 17, the district court granted the defendants’
motion to dismiss for failure to state a claim under Fed. R. Civ.
P. 12(b)(6), concluding that Walpin failed to establish a clear
right to relief as required for mandamus. Walpin filed a timely
notice of appeal.
II.
Section 3(b) of the IGA, as amended by section 3 of the
IGRA, Pub. L. No. 110-409, 122 Stat. 4302, 4302 (2008),
provides:
1
Eisen cited the Acting United States Attorney’s referral of
Walpin’s conduct for review and asserted Walpin had been absent
from the CNCS’s headquarters over the objection of the Board,
“exhibited a lack of candor in providing material information to
decision makers” and “engaged in other troubling and inappropriate
conduct.” Mot. to Dismiss, Ex. E.
5
(b) An Inspector General may be removed from
office by the President. If an Inspector General is
removed from office or is transferred to another
position or location within an establishment, the
President shall communicate in writing the reasons for
any such removal or transfer to both Houses of
Congress, not later than 30 days before the removal or
transfer. Nothing in this subsection shall prohibit a
personnel action otherwise authorized by law, other
than transfer or removal.
5 U.S.C. app. 3 § 3(b). Walpin contends the President violated
this section’s notice requirements in two respects and seeks
relief therefor under the Mandamus Act, which “grants district
courts original jurisdiction over ‘any action in the nature of
mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the
plaintiff.’ ” Baptist Mem’l Hosp. v. Sebelius, 603 F.3d 57, 62
(D.C. Cir. 2010) (quoting 28 U.S.C. § 1361). To secure
mandamus relief, a plaintiff must demonstrate that (1) he has a
“clear right to relief”; (2) the defendant has “a clear duty to
act”; and (3) there is no other adequate remedy available to
plaintiff. Id. Reviewing de novo the district court’s dismissal of
Walpin’s mandamus action, see id., we conclude that Walpin
has not demonstrated a “clear and indisputable right to relief”
based on a “clear and compelling duty” to act, as required to
support mandamus relief. In re Cheney, 406 F.3d 723, 729
(D.C. Cir. 2005) (en banc) (internal quotations omitted).
Walpin first asserts a right to relief based on the
President’s alleged violation of the statutory duty to provide
congressional notice thirty days before removing an inspector
general. Walpin maintains he was prematurely “removed”
without the statutory notice on June 10, 2009, when he was
placed on “administrative leave.” His placement on
administrative leave, however, did not constitute removal from
6
office and therefore did not give rise to a clear right to relief for
violating section 3(b). Walpin remained on administrative
leave, with pay, until July 18, 2009, more than thirty days after
the President’s letters to the Congress, when he was in fact
removed from the payroll. See Aff. of Gerald Walpin ¶ 11 n.1,
Walpin v. Corp. for Nat’l & Cmty. Serv., No. 09-1343 (D.D.C.
Sept. 17, 2009). His status while on leave was much like the
U.S. Postal Service employee’s in Oliver v. U.S. Postal Service,
696 F.2d 1129 (5th Cir. 1983).
The employee in Oliver was given a “Notice of Proposed
Removal” and placed on paid leave for 30 days. He contended
the suspension of his duties violated a provision of the Civil
Service Reform Act of 1978, which requires “at least 30 days’
advance written notice” before taking certain adverse actions,
including “a removal.” 5 U.S.C. §§ 7513(b)(1), 7512(1). The
Fifth Circuit disagreed, declining to “[i]nfer[] a right to remain
on duty during the notice period,” “where none is expressly
provided or need be inferred to effect a protection granted.”
696 F.3d at 1131. So here, IGA section 3(b) provides no right
to continued duty performance but only to deferral of “removal”
until thirty days after notice is given. Accordingly, we cannot
conclude that the statutory language gives rise to the clear duty
or right to relief necessary for mandamus relief. Cf. Swan v.
Clinton, 100 F.3d 973 (D.C. Cir. 1996) (denying mandamus
relief to removed holdover board member not granted statutory
removal protection).
Walpin next contends the President violated his duty under
section 3(b) to communicate “the reasons for . . . removal” in
the thirty-day notice. The President did, however, provide in
the letters to the Congress his reason for removing
Walpin—that the President “no longer” had “the fullest
confidence” in him. This explanation satisfies the minimal
statutory mandate that the President communicate to the
Congress his “reasons” for removal. Section 3(b) imposes no
7
“clear duty” to explain the reasons in any greater detail Cf.
Natural Res. Def. Council v. Hodel, 865 F.2d 288, 317-19 (D.C.
Cir. 1988) (declining to review adequacy of detail in agency’s
report to Congress pursuant to statutory reporting requirement
that “by its nature seems singularly committed to congressional
discretion in measuring the fidelity of the Executive Branch
actor to legislatively mandated requirements”). In fact, the
Congress intended that the thirty-day notice requirement
provide an opportunity for a more expansive discussion of the
President’s reasons for removing an inspector general. See
S. Rep. No. 110-262, at 4 (2008) (notice provision added to
“allow for an appropriate dialogue with Congress in the event
that the planned transfer or removal is viewed as an
inappropriate or politically motivated attempt to terminate an
effective Inspector General”). And this is precisely what
occurred here.
For the foregoing reasons, we conclude that Walpin lacks
the clear right to relief based on a clear duty to act that is
necessary to obtain mandamus relief.2 Accordingly, the
judgment of the district court is affirmed.
So ordered.
2
Walpin did not argue below that he is entitled to a declaratory
judgment in the absence of a right to mandamus relief, see 718 F.
Supp. 2d at 24, and has therefore waived the argument. See Murthy
v. Vilsack, 609 F.3d 460, 465 (D.C. Cir. 2010).