The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff has filed this action against the Attorney General of the United States under Title VII, 42 U.S.C. § 2000 (e), and against five individual defendants under 42 U.S.C. § 1985, claiming that he was discriminated against, and his constitutional rights were violated, as a result of a conspiratorial vendetta to harass plaintiff and prevent the performance of his responsibilities as an agent of the Drug Enforcement Administration ("DEA"). Presently before the Court is defendants' partial motion to dismiss, which seeks dismissal of the claims against the five individual defendants.
On November 15, 2000, an order was entered dismissing three of the individual defendants. The case was transferred to the undersigned judge in January 2002. This Court now grants the motion to dismiss the remaining two individual defendants.
Plaintiff has been a special agent with the DEA since 1989, achieving the level of GS-12 in January 1997. Compl. ¶¶ 10-11. He alleges that beginning in early 1994 defendants William O'Malley and Daniel Bernstein, both Assistant United States Attorneys in the District of Columbia, initiated an effort to investigate and, thereafter, harass plaintiff because he had allegedly provided perjured or false testimony in a Superior Court criminal prosecution. Id. ¶ 14. O'Malley, with Bernstein's assistance, allegedly forwarded information within the DEA and the Department of Justice ("DOJ") Public Integrity Section that resulted in investigations of plaintiff by the DOJ Office of Professional Responsibility and a grand jury. See id. ¶¶ 14-18. Plaintiff was never indicted, and an effort to have him held in contempt of court was dismissed. Id. ¶¶ 18-22. A subsequent review by DEA's Board of Professional Conduct and proposed removal of plaintiff from federal service resulted, according to plaintiff's allegations, in his exoneration on all charges and specifications except for one specification of dereliction of duty, for which he received a one week suspension. Id. ¶¶ 23-24. Plaintiff's primary complaint is that notwithstanding this exoneration, a continuing effort was made to harass him, prevent his performance of duties as a DEA agent, and limit his future job prospects, primarily through continuing efforts by defendants O'Malley and Bernstein in communicating accusations against plaintiff to responsible officials in the United States Attorneys' Offices in Baltimore, Maryland, and the Eastern District of Virginia.
On the basis of these allegations, plaintiff asserts several employment discrimination claims against the Attorney General, in an official capacity only, as head of the Department of Justice, of which DEA is a component. Plaintiff contends that he has been prevented from performing his duties as a DEA special agent (Count I), denied a promotion to GS-13 (Count II), and barred from testifying in court cases, with an adverse impact on his career (Count III), all based on his race and retaliation against him. These claims are not the subject of the current motion.
Plaintiff also asserts in Count IV of his complaint, however, a claim under 42 U.S.C. § 1985 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the five original individual defendants. He claims that notwithstanding DEA's exoneration of him, those defendants "engaged in a conspiracy, driven by racial animus, to deprive plaintiff of federally protected rights under the U.S. Constitution." Compl. ¶ 48. Following briefing on the motion to dismiss the five individual defendants, and the dismissal of three of those defendants, the claim against defendants O'Malley and Bernstein in their individual capacities is now essentially that, after plaintiff's transfer to the Eastern District of Virginia in 1997, they communicated plaintiff's alleged misconduct (of which he was exonerated) to the United States Attorney's Office in that district in an attempt to get plaintiff barred from testifying in court cases there. Id. ¶ 55. Plaintiff concedes that only these activities relating to an alleged effort to undermine his career at DEA following his transfer to Virginia are actionable. See Plaintiff's Response in Opposition to Defendant's Supplemental Brief ("Pl. Response") at 2. As now focused, plaintiff claims that through the alleged actions of the two remaining individual defendants in seeking to prevent plaintiff from fulfilling an important part of his responsibilities as a DEA special agent (even after he had been exonerated of perjury or contempt charges), the plaintiff's constitutional rights have been violated by a denial of his liberty interest in his good name, professional reputation, and right to pursue a DEA career free of defendants' unlawful harassing conduct. See Pl. Response at 4-6.
Several asserted bases for dismissal of the claims against defendants O'Malley and Bernstein remain relevant. Defendant O'Malley asserts that he has not been served properly. Both defendants assert that plaintiff has failed to state a claim against them individually because "special factors" counsel hesitation in implying a constitutional damages claim and plaintiff has not satisfied the requirements for a cause of action under 42 U.S.C. § 1985. Finally, defendants claim that they are entitled to either absolute or qualified immunity from plaintiff's claims.
Although on first blush these two defendants might seem to fall within the protection of absolute immunity by virtue of their role as prosecutors, see Kalina v. Fletcher, 522 U.S. 118, 129 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Burns v. Reed, 500 U.S. 478, 486 (1991); Imbler v. Pachtman, 424 U.S. 409, 420 (1976), it is not clear that they are in fact entitled to absolute immunity because they were not performing an advocacy function in connection with specific criminal prosecutions. As alleged by plaintiff, defendants O'Malley and Bernstein were communicating with Eastern District of Virginia prosecutors in an attempt generally to prevent plaintiff from testifying in any court case. Although efforts to control the presentation of witness testimony, and even to prevent a witness from testifying in a case, would seem to be within the prosecutor's function as an advocate, that is not necessarily true where the prosecutor has no specific function as an advocate in the relevant criminal prosecutions. That is the case here, where two District of Columbia Assistant United States Attorneys allegedly sought to affect witness decisions in cases outside their jurisdiction and in which they had no apparent official role.
For this reason, the Court will assess this case under the standard for qualified immunity. In that assessment, the Court will consider the "special factors" and section 1985 arguments raised on behalf of defendants O'Malley and Bernstein. The Court has some doubt whether plaintiff has stated a claim upon which relief can be granted in light of the special factors counseling hesitation in implying a constitutional cause of action in the face of Title VII and, arguably, Civil Service Reform Act remedies available to plaintiff, and given apparent deficiencies in plaintiff's allegations under section 1985. However, those issues are also relevant to the qualified immunity analysis, and can best be assessed in that context.
1. Personal Service on Defendant O'Malley
In a Bivens action against a federal official in his or her individual capacity, the defendant must be served pursuant to rules that apply to individual defendants. See Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir 1997); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978); Delgado v. Bureau of Prisons, 727 F.Supp. 24 (D.D.C. 1989). Defendant O'Malley has not been served in accordance with Fed.R.Civ.P. 4, as plaintiff effectively concedes by not contending to the contrary. Plaintiff instead argues that O'Malley has waived his objection to service by submitting a motion to dismiss raising other grounds; alternatively, plaintiff asks permission to attempt service on defendant O'Malley now (with the assistance of a discovery request to obtain a residence address).
It is plaintiff's responsibility to establish personal jurisdiction, and plaintiff must ensure that service is properly effectuated by remedying any known defect in service. See Reuber v. United States, 750 F.2d 1039, 1049, 1052 (D.C. Cir. 1984); Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987); Romandette v. Weetabix Co., 807 F.2d 309, 312 (2nd Cir. 1986). Plaintiff has not done so with reasonable diligence. Moreover, unlike the sole case on which plaintiff relies, here defendant O'Malley has actively contested personal jurisdiction based on defective service, and therefore there has been no waiver of that defense. *fn1 The Court finds that service on defendant ...