MEMORANDUM AND ORDER
In this action plaintiff seeks an award of compensatory and punitive damages, as well as mandatory injunctive relief, against a federal agency and seven federal officials who are, or have been, employed by that agency, for alleged violations of 42 U.S.C. § 1981 and the Thirteenth Amendment.
Defendant, United States International Development-Cooperation Agency, the parent organization of the Agency for International Development (hereinafter "AID"),
and the individual defendants Hugh L. Dwelley, Gordon Evans, James S. Hastings, Robert C. Payette, Robert S. Perkins, Walter Sherwin, and Michael H. Snyder, have moved, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss the complaint, or, in the alternative, for summary judgment pursuant to Rule 56. As grounds for their motion, the defendants allege (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person of certain of the defendants; (3) improper venue as to certain of the defendants; (4) insufficiency of service of process as to the individual defendants; and (5) failure to state a claim upon which relief can be granted. Plaintiff has opposed.
Plaintiff, Navy, Marshall & Gordon, P.C. ("NMG") is an architectural and engineering consulting firm. This dispute arises out of a contract entered into by NMG and AID, on behalf of the United States, to perform architectural and engineering services in connection with an agricultural facility, financed by AID in Guinea, West Africa, known as the Guinea Agricultural Production Capacity and Training Project. See Contract AID/afr-C-1406, attached as Exhibit A to Defendants' motion.
NMG, is a minority business, completely black-owned and operated. It secured the government contract through the minority set-aside program administered by the Small Business Administration pursuant to Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a)(2). Plaintiff's duties under the contract included designing the project's facilities, furnishing advisory services during construction, and supervising the construction itself. The contract was ultimately terminated "for the convenience of the government."
The complaint is styled in three counts. In Count I, plaintiff seeks compensatory damages, alleging that the federal defendants violated its rights guaranteed in 42 U.S.C. § 1981 by: (1) ordering plaintiff's representatives to the job site before completing construction of housing which defendants were allegedly required to furnish under the contract; (2) failing to supply plaintiff's representatives with adequate food while they were at the job site; (3) disallowing plaintiff's claimed costs under the contract; (4) "overly wide dissemination" of an audit report prepared by AID auditors; (5) refusing to pay plaintiff's invoices under the contract; (6) improperly terminating the contract for the convenience of the government; (7) referring charges that plaintiff violated 18 U.S.C. §§ 371 (conspiracy) and 1001 (false statements) to the Criminal and Civil Divisions of the Department of Justice; (8) sending an allegedly "libelous" cable to plaintiff concerning its contract performance; (9) imposing "severe financial hardship" on plaintiff; (10) breaching an alleged setoff agreement; (11) "blacklisting" plaintiff from participation in a State Department program to enhance security for American embassies; and (12) refusing to pay monies allegedly due plaintiff under the contract. Plaintiff charges that all such actions were undertaken as a result of racial animus toward its owners and employees.
In Count II of the complaint, plaintiff alleges that the conduct described above imposed conditions "tantamount to involuntary servitude" and "peonage" upon plaintiff in violation of the Thirteenth Amendment. NMG contends that damages should, therefore, be awarded to it under the theory of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), which established that a cause of action for damages could be asserted directly under the Fourth Amendment.
Count III of the complaint merely repeats and realleges all of the items included in the previous two counts, declaring that the actions of the defendants were committed willfully, maliciously and with "utter disregard for the consequences to NMG." Thus, plaintiff asserts, it is entitled to an award of punitive damages against both AID and the individual defendants.
The complaint does not include in specific language any claim for equitable relief. Plaintiff first raised such a claim in its opposition to defendants' motion to dismiss. The relief requested is an order, "(1) reinstating the Plaintiff to the position (monetary or otherwise) it would have been in if there had been no discrimination; and (2) compelling the Agency and Individual Defendants to pay money they have improperly withheld on the Plaintiff's Guinea Project invoices."
Defendants have moved to dismiss the complaint asserting, inter alia, that: (1) sovereign immunity bars an award of money damages against AID as an agency of the U.S.; (2) none of the individual defendants maintains contacts or ties to the District of Columbia sufficient to enable this Court to exercise personal jurisdiction over him; (3) the individual defendants have never been personally served with process as required by Rule 4(d)(1); and (4) plaintiff has failed to allege facts sufficient to state a cause of action under either 42 U.S.C. § 1981 or the Thirteenth Amendment, against any of the federal defendants.
We find merit in defendants' arguments, and accordingly grant their motion to dismiss as to both AID and the individual defendants.
A. Sovereign Immunity and Subject Matter Jurisdiction as to AID
AID contends that this Court lacks subject matter jurisdiction over plaintiff's claims for money damages due to the doctrine of sovereign immunity. Plaintiff counters that sovereign immunity has been waived by the United States for damage claims arising under 42 U.S.C. § 1981 and the Constitution, and that jurisdiction is grounded in 28 U.S.C. §§ 1343(4)
respectively. Plaintiff is mistaken.
There can be no question that, "the United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941); Lombard v. U.S., 223 U.S. App. D.C. 102, 690 F.2d 215, 218 (D.C. Cir. 1982). Suits for money damages against the U.S., its agencies and instrumentalities, cannot be maintained unless there is an "unequivocally expressed" waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 399-401, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976); United States v. King, 395 U.S. 1, 4, 23 L. Ed. 2d 52, 89 S. Ct. 1501 (1969). Moreover, the "'limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.'" Lehman v. Nakshian, 453 U.S. 156, 161, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981), quoting Soriano v. United States, 352 U.S. 270, 276, 1 L. Ed. 2d 306, 77 S. Ct. 269 (1957). None of the statutes and constitutional provisions relied upon by plaintiff contains the required waiver of sovereign immunity.
Neither 28 U.S.C. § 1331, nor any provision of the Constitution, is a waiver of sovereign immunity such as to enable plaintiff to recover damages against the U.S. or any of its instrumentalities. Garcia v. United States, 666 F.2d 960, 966 (5th Cir.) cert. denied, 459 U.S. 832, 103 S. Ct. 73, 74 L. Ed. 2d 72 (1982); see Jaffee v. United States, 592 F.2d 712, 715-18 (3d Cir.), cert. denied, 441 U.S. 961, 60 L. Ed. 2d 1066, 99 S. Ct. 2406 (1979). Similarly, the jurisdictional adjunct to the civil rights statutes, 28 U.S.C. § 1343, does not embody a waiver of sovereign immunity as against the U.S. Garcia v. U.S., 538 F. Supp. 814, 816 (S.D. Tex. 1982). Finally, the United States has not waived its immunity to suits for damages under 42 U.S.C. § 1981, the basis for plaintiff's statutory cause of action. United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982). Due to the doctrine of sovereign immunity, therefore, this Court lacks subject matter jurisdiction over NMG's claims for damages against AID, as an agency of the U.S., even if those claims arise under 42 U.S.C. § 1981 and the 13th Amendment.
Plaintiff contends, however, that sovereign immunity does not divest this Court of jurisdiction over plaintiff's claims for equitable relief, first raised in its opposition to the instant motion. See NAACP v. Levi, 418 F. Supp. 1109 (D.D.C. 1976); Baker v. F & F Investment Co., 489 F.2d 829 (7th Cir. 1973). The relief requested is a mandatory injunction compelling the defendants to, "(1) reinstate the Plaintiff to the position (monetary or otherwise) it would have been in if there had been no discrimination; and (2) . . . pay money [to NMG] they have improperly withheld on the Plaintiff's Guinea Project invoices." (emphasis added). We do not find plaintiff's argument persuasive.
The dispositive factor in determining the applicability of sovereign immunity is the practical effect of the judgment or decree sought by the plaintiff. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687, 93 L. Ed. 1628, 69 S. Ct. 1457 n.6 (1949); Alabama Rural Fire Insurance Co. v. Naylor, 530 F.2d 1221, 1225 (5th Cir. 1976). Generally, "if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,'" id., quoting Dugan v. Rank, 372 U.S. 609, 620, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963), then the suit is barred. The equitable relief plaintiff seeks would certainly "expend itself on the public treasury," since the requested injunction would compel the U.S. to pay money to NMG. The central thrust of this action is an award of over six million dollars ($6,000,000) in compensatory and punitive damages. "That [NMG's] complaint [has] also been cast in terms of declaratory and equitable relief does not alter the substance of that which [plaintiff] seek[s] -- a money judgment against the United States." Larsen v. Hoffman, 444 F. Supp. 245, 251 (D.D.C. 1977).
We conclude, therefore, that plaintiff's claims against AID for equitable relief are, in purpose and effect, tantamount to damage claims, and, for the reasons set forth above, they are also barred in this Court by the doctrine of sovereign immunity.
B. Personal Jurisdiction Over the Individual Defendants
While sovereign immunity acts as an absolute bar to damage claims against federal governmental entities, the doctrine does not completely shield federal officers who act beyond the scope of their authority, in derogation of established constitutional and statutory principles, i.e. so-called "ultra vires" conduct. See Larson, supra; Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1977); Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Plaintiffs, in appropriate cases, may recover damages against government officials when those officials are sued in their individual capacities for specific "constitutional torts." Id.; Bivens, supra; Davis v. Passman, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979); Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983).
The complaint at issue here charges that seven present and former officers and employees of AID are personally liable for alleged violations of rights secured plaintiff by 42 U.S.C. § 1981 and the 13th Amendment. As noted above, plaintiff seeks a multi-million dollar award of compensatory and punitive damages. The defendants contend, however, that this Court is powerless to entertain any damage claims whatsoever against them because: (1) they each lack "minimum contacts" with the District of Columbia sufficient to establish personal jurisdiction in this forum; and (2) plaintiff has not yet made personal service of process, pursuant to Rule 4(d)(1), of the Federal Rules of Civil Procedure, as to any of the seven individuals.
Because we find that plaintiff has never personally served, nor even attempted to personally serve, any of the individual defendants, we conclude that personal jurisdiction over those defendants is lacking, and consequently, their motion to dismiss must be granted.
When federal officials are sued in their individual capacities for money damages, they must be personally served with process in order for a Court to have personal jurisdiction over them. Micklus v. Carlson, 632 F.2d 227 (3d Cir. 1980); 2 Moore's Federal Practice P 4.29 at 310-11 (2d ed. 1982). The guiding principles for this rule were well-stated by the Court of Appeals for the Third Circuit:
The applicable method of service under Rule 4(d) depends upon the theory under which a party proceeds. Where money damages are sought from a public official in his individual capacity, service by certified mail under Rule 4(d)(5) is insufficient. Griffith v. Nixon, 518 F.2d 1195, 1196 (2d Cir.), cert. denied, 423 U.S. 995, 96 S. Ct. 422, 46 L. Ed. 2d 369 (1975); Relf v. Gasch, 167 U.S. App. D.C. 238, 511 F.2d 804, 808 n.18 (D.C. Cir. 1975). Instead, the plaintiff must proceed under the terms of Rule 4(d)(1) and effect personal service. (footnotes omitted)