himself from the thrift industry. During this same time, bank board examiners began visiting officials at other savings and loans and advised them that Gaubert was the subject of an investigation. Id. PP 62-63. In December 1985, Gaubert signed an agreement to voluntarily remove himself permanently from IASA and any other FSLIC insured institution.
Gaubert's removal from the management of IASA had a significant detrimental impact on the S & L's financial condition. Although the Investex merger resulted in a four-fold growth of IASA (from $ 300 million to $ 1.2 billion), the merger itself was not financially sound and the inability of Gaubert to be involved in the organizations management led to instability. Recognizing IASA'a problems, the FHLBB set out to find replacement officers and directors soon after Gaubert voluntarily and permanently removed himself from the picture. A management team was assembled but their efforts proved fruitless and in the summer of 1986 they announced that IASA was insolvent having a negative net worth of over $ 400 million. Id. PP 66-72.
In the spring of 1986, plaintiff Gaubert learned for the first time that an internal FHLB-D analysis concluded that IASA would not be able to absorb the Investex losses. Gaubert made inquiries with the defendants to determine what they knew about this information. In addition, in the summer and fall of 1986, Gaubert brought his concerns about the Investex merger, the neutralization agreement, and change in IASA management to the attention of defendants Gray and Fairbanks. Gray and Fairbanks agreed to review these matters, but in actuality they made little or no attempt to undertake the process of review. Id. PP 73-77.
In late 1986 and 1987, the House Committee on Banking and Urban Affairs was involved in a review of the FHLBB. Gaubert sought to bring his problems with the bank board to the attention of this Congressional Committee. In response, defendants Gray, Fairbanks, Black, Stewart and others released or authorized others to release to congressional staff and reporters confidential examination reports and investigative material relating to Gaubert and IASA. Id. PP 78-82.
In January 1987, defendants Gray and Fairbanks retained an outside law firm to review the actions of regulatory officials regarding IASA and Gaubert. At this time, the bank board had already made the decision to put IASA into receivership. Neither Gaubert or his representatives were advised of this decision. In April 1987, the outside counsel reported its findings to defendant Gray. The report concluded that the defendants had made misstatements to Gaubert, had violated the neutralization agreement, had kept Gaubert removed from IASA management for too long a period, and had acted "unfairly and improperly" in their other dealings with him. Id. PP 85-87. Defendants delayed providing Gaubert with a copy of the outside counsel's report. It was not until May 20, 1987, the day IASA was closed and put into receivership, that Gaubert received a copy of the report. Id. P 88.
II. PLAINTIFF'S LEGAL CLAIMS
Plaintiff's complaint consists of eight counts. Counts I through III allege that defendants actions amounted to constitutional torts. Count I alleges that the actions taken by FHLBB officials amounted to a taking of plaintiff's property in violation of plaintiff's substantive due process rights. In Count II, plaintiff asserts that defendants' efforts to remove him from managing the affairs of IASA violated his rights to procedural due process. Count III alleges that through the release of information to Congress and the media defendants deprived plaintiff of his First Amendment right to petition Congress.
In Counts IV through VIII, plaintiff advances common-law tort claims. Count IV alleges that defendants made false and misleading statements to the plaintiff in an effort to induce him to undertake certain actions regarding IASA. Count V alleges that certain of the named defendants intentionally failed to disclose facts that were pertinent to the business decisions of the plaintiff. Count VI charges that certain of the named defendants intentionally interfered with a contract entered into between plaintiff and the FHLBB. Count VII alleges that the dissemination and release of confidential information about the plaintiff and IASA constituted a tortious invasion of privacy. Count VIII asserts that each defendant acted separately and in concert, in a conspiracy with one or more of the other defendants.
III. STANDARD FOR MOTION TO DISMISS
On a Motion to Dismiss, the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true. Moreover, any ambiguities or uncertainties concerning the sufficiency of the claims must be resolved in favor of the plaintiff. See Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1979); see also 5 Wright & Miller, Federal Practice & Procedure § 1357 (1969). As the Supreme Court has stated:
In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Thus, at this stage, plaintiff's statement of the facts must be accepted as true.
Defendants assert four bases for dismissal of plaintiff's complaint pursuant of Rule 12(b) of the Federal Rules of Civil Procedure: 1) the facts and circumstances of this case do not warrant the recognition of an implied constitutional cause of action; 2) the allegations of constitutional violations fail to state a claim upon which relief can be granted; 3) the defendants are immune from this suit and from liability for money damages; and 4) the Court lacks personal jurisdiction over defendants Roy, Bonchack and Dermody.
Because this Court finds defendants' arguments regarding immunity to be dispositive, the other issues raised by defendants in their Motion to Dismiss are not addressed in this Opinion.
This Court is acutely aware of the fact that a Motion to Dismiss summarily extinguishes litigation and forecloses the opportunity for discovery and factual presentations. Such a motion should be granted "only when it appears beyond doubt that, under any reasonable reading of the complaint, the plaintiff will be unable to prove any set of facts that would justify relief." Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (D.C. Cir. 1987). However, it is settled law that a Rule 12(b)(6) motion to dismiss may properly be granted where immunity, though technically an affirmative defense, is an issue. See 5 Wright & Miller, Federal Practice & Procedure § 1357.
In particular, the D.C. Circuit has recognized that the spectre of a qualified immunity defense places special burdens on the complaint at the pleading stage. Haynesworth, 820 F.2d at 1254 n. 71. Consequently, an inquiry into the existence, nature, and applicability of an immunity defense in this case must be undertaken to ascertain the ability of plaintiff's complaint to withstand defendants' motion to dismiss.
In general, there are two types of immunity that shield the actions of federal government officials -- absolute and qualified. The doctrine of absolute immunity shields officials from being held liable for state law tort claims when the tortious actions they are alleged to have taken occurred within the outer perimeter of their official duties and were discretionary in nature. Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 585, 98 L. Ed. 2d 619 (1988). Qualified immunity insulates officials from personal liability when their alleged tortious conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware or when the alleged improper conduct was not the product of an unconstitutional motive or bad faith. See e.g. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Smith v. Nixon, 257 U.S. App. D.C. 52, 807 F.2d 197, 199-200 (D.C. Cir. 1986). The underlying public policy for immunizing official actions "is not to protect an erring official, but to insulate the decision-making process from the harassment of prospective litigation. The provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective Government will be promoted if officials are freed of the costs of vexatious and often frivolous damages suits." Westfall, at 583 (absolute immunity relating to common law torts); see also Harlow, 457 U.S. at 814 (discussing reasons for qualified immunity).
The entire official immunity doctrine is directed at reconciling two important and conflicting considerations:
On the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.