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September 16, 2005.

STEVEN J. HATFILL, M.D., Plaintiff,
JOHN ASHCROFT, et al., Defendants.

The opinion of the court was delivered by: REGGIE B. WALTON, District Judge


This action was filed by Steven J. Hatfill, a medical doctor who resides in the District of Columbia, against the United States Department of Justice ("DOJ"), the Federal Bureau of Investigation ("FBI") and several named and unnamed federal officials.*fn1 Dr. Hatfill alleges that the defendants have engaged in a campaign of harassment against him and have, as a result of their actions, violated his "constitutional rights, the Privacy Act, 5 U.S.C. § 552a, et. seq., (1999) and DOJ, FBI, and U.S. Attorney regulations, policies, practices and standards." Compl. ¶ 11.*fn2 Currently before the Court is the Individual Defendants' Motion to Dismiss [D.E. # 21] for failure to state claims upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), the plaintiff's opposition to the motion and the Reply Memorandum in Support of the Individual Defendants' Motion to Dismiss. ("Defs.' Reply"). For the reasons set forth below, the defendants' motion will be granted in part and denied in part. I. Factual Background

The events that precipitated the filing of this lawsuit have received widespread media coverage. The events occurred in the fall of 2001, when letters containing the pathogen anthrax were mailed to several members of the press and two United States Senators, Senator Thomas A. Daschle and Patrick J. Leahy. The letters that were sent to the members of the press were mailed on or about September 18, 2001, while the Daschle and Leahy letters were mailed on or about October 9, 2001. Compl. ¶ 24. It appears that all of the letters were mailed at a postal mail box located in Princeton, New Jersey. Id. As a result of the mailings, five people who had contact with the letters died, many others became ill, and the American public was in a state of panic. Id. Subsequent to the mailings, the FBI launched a massive investigation, code-named "Amerithrax." Compl. ¶ 26. Investigators from the FBI interviewed "hundreds of scientists working in fields related to biological weapons[,]" which led them to Dr. Hatfill who "willingly cooperated with the FBI[,]" although he had never personally worked with anthrax. Id. ¶ 25. Dr. Hatfill was interviewed by the FBI "several times[,]" and he volunteered to take a polygraph examination to substantiate his representations that he had no involvement with the mailings, which he was later informed he passed. Id. The investigation has not definitively identified the person who mailed the letters, even though federal agencies have offered a reward and asked members of the microbiology field for leads that would potentially identify the culprit. Id. ¶ 26.

  One such member of the microbiology field was Barbara Hatch Rosenberg, a Professor of Environmental Science at the State University of New York at Purchase, New York. Id. ¶ 27. According to Dr. Hatfill, professor Rosenberg determined that the sender of the anthrax mailings had to be someone who opposed her campaign to gain United States support for monitoring under the Biological Weapons and Toxin Convention, to which the United States was a party. Id. Dr. Hatfill fit professor Rosenberg's profile. Id. After unsuccessfully appealing to the FBI to continue its investigation of Dr. Hatfill, on June 18, 2002, Ms. Rosenberg attended a meeting with Senators Leahy and Daschle and FBI supervisory agent Van Harp, who was in charge of the anthrax investigation, during which she informed those present that she believed Dr. Hatfill was probably responsible for sending the anthrax laden letters. Id. ¶ 29.

  According to Dr. Hatfill, as a result of the FBI's unsuccessful investigative efforts to identify a suspect, professor Rosenberg's suspicion caused the FBI's investigation to focus primarily on him. Id. ¶ 30. On June 25, 2002, Dr. Hatfill met with FBI agents from the Washington Field Office facility located in Frederick, Maryland, at which time he agreed to allow agents to conduct a search of his apartment in Frederick, Maryland. Id. ¶ 31. After giving his consent, Dr. Hatfill and several FBI agents drove to his apartment, and "Dr. Hatfill was astonished to see that his apartment complex was surrounded by news helicopters and television vans filming the search." Id. ¶ 32. Dr. Hatfill opines that the FBI had tipped off the media in advance of the search to demonstrate to the nation that it was making progress in its anthrax investigation. Id. Dr. Hatfill contends that such consensual searches are not typically conducted with such fanfare and that the government agents "deliberatively departed from standard procedure and deliberately violated [his] constitutional rights." Id. ¶ 33. Thereafter, in late July 2002, FBI Special Agent Bob Roth contacted Dr. Hatfill to request an interview. Id. ¶ 38. Dr. Hatfill referred this call to his civil attorney, Victor M. Glasberg. Id. Mr. Glasberg left a message for Agent Roth, stating that Dr. Hatfill would willingly cooperate, however, Agent Roth never responded to Mr. Glasberg's message. Id. ¶ 39. Instead, a search warrant was obtained, and on August 1, 2002, Dr. Hatfill's Frederick, Maryland apartment was again searched. Id. As was the situation when the first search was conducted, the media was again present, having been allegedly informed about the search in advance by government agents. Id.

  Dr. Hatfill argues that the defendants' actions have resulted in his inability to retain or acquire employment. Specifically, prior to the June 25, 2002 search of his home, Dr. Hatfill had secured the position of associate director of the National Center for Biomedical Research and Training at Louisiana State University ("LSU") in Baton Rouge, with his appointment becoming effective on July 1, 2002. Id. ¶ 36. According to plaintiff, on approximately August 1, 2002, DOJ employee Daryl Darnell, contacted LSU personnel and stated that Dr. Hatfill should not be permitted to work on any DOJ funded projects. Id. ¶ 41. In addition, Timothy Beres, Acting Director of DOJ's Office for Domestic Preparedness, reinforced Mr. Darnell's admonition, through an e-mail sent to a person only identified as Mr. Guillot, Dr. Hatfill's supervisor at LSU, to "reiterate" that Dr. Hatfill should not be employed on any DOJ funded projects. Id. ¶ 42. Because Dr. Hatfill had been hired for the precise purpose of working on DOJ funded projects, these communications resulted in him being placed on 30-day administrative leave commencing on August 2, 2002, and eventually his termination at the end of this 30-day period. Id. ¶ 44. Dr. Hatfill contends that the communications from the DOJ's employees were made presumably with former Attorney General Ashcroft's full knowledge and consent. Id. ¶ 41.

  On August 6, 2002, former Attorney General Ashcroft personally weighed in on the matter when he appeared on two television morning shows — CBS's "The Early Show" and NBC's "Today Show" — and proclaimed that Dr. Hatfill was "a person of interest" to the DOJ and FBI in the Amerithrax investigation. Id. ¶ 49. The plaintiff argues that his designation by defendant Ashcroft as a "person of interest" and the other actions of federal officials implicating him in the anthrax mailings were direct violations of the Privacy Act and various government regulations. Id. ¶ 55-67. The plaintiff contends that he was then subjected to acts of retaliation by the defendants after making his first public statement on August 11, 2002, declaring his innocence and filing a formal complaint with the FBI and DOJ Offices of Professional Responsibility. Id. ¶¶ 68, 71. For example, Dr. Hatfill alleges that after he publicly denied his involvement in the anthrax mailings, government agents disclosed the draft of a novel he had written and that had been seized from his computer by the agents, which fictionalized a biomedical terrorist attack. Id. ¶ 75. Furthermore, government officials allegedly disclosed to Newsweek magazine and the New York Times newspaper "erroneous and prejudicial information" about the investigative procedures Dr. Hatfill had been subjected to and their purported results. Id. ¶ 77. Dr. Hatfill also alleges a series of continuing abuses by the defendants, as well as the failure of the DOJ and the FBI to properly investigate or control abuses, and the continued destruction of his personal and professional life. Id. ¶¶ 84-99. As a result of the defendants' actions, Dr. Hatfill alleges that his personal and constitutional freedoms and liberties have been violated.*fn3

  In this lawsuit, the plaintiff has filed a four count complaint against the defendants, wherein he alleges violations of the First and Fifth Amendments, the Privacy Act and DOJ regulations. The individual defendants — former Attorney General John Ashcroft, Van A. Harp, Timothy Beres and Daryl Darnell — have moved to dismiss Counts I, II, and IV of the complaint on the ground that Dr. Hatfill has failed to state claims upon which relief may be granted. In Count I of his complaint, the plaintiff alleges that the defendants' actions in connection with the anthrax mailings investigation have violated his Fifth Amendment right to due process and his property rights. Specifically, Dr. Hatfield alleges that public statements made by the defendants have prohibited him from obtaining employment in his field of expertise — research and training in biowarfare preparedness and countermeasures. Compl. ¶ 105.*fn4 Dr. Hatfill contends that because he had been hired specifically to perform these duties, defendants Beres' and Darnell's statements effectively caused his termination. Id. Furthermore, Dr. Hatfill alleges that "[p]ublic and private statements by DOJ and FBI officials defaming [him] in the anthrax attacks without evidence have prevented [him] from obtaining employment in his field of expertise . . . [, a] field [that] consists almost entirely of government and government-funded jobs." Id. ¶ 105.

  In Count II of his complaint, Dr. Hatfill alleges that the defendants have violated his First Amendment free speech rights and challenges government action which he contends sought to punish and retaliate against him for exercising his right to publicly disclaim any knowledge of the anthrax attacks. He therefore seeks redress for the government's alleged mishandling of the anthrax investigation. Id. ¶ 111.*fn5 In both Counts I and II, Dr. Hatfill seeks monetary damages against each of the individual defendants in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and he also seeks injunctive and declaratory relief against these defendants in both their individual and official capacities. Id. ¶¶ 108, 112.

  Finally, Dr. Hatfill alleges in Count IV that defendants Ashcroft's and Harp's actions violated DOJ regulations and he seeks injunctive and declaratory relief against these two defendants in both their individual and official capacities for these alleged violations. Id. ¶¶ 119-120.

  II. Analysis

  A. Standard of Review

  The individual defendants have filed a motion to dismiss Counts I, II and IV of Dr. Hafill's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. To survive a Rule 12(b)(6) dismissal motion, a complaint need only provide "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (citing Fed.R.Civ.P. 8(a)(2)). And, when reviewing a motion to dismiss, the court "must accept as true all the factual allegations [contained] in the complaint." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). "A motion to dismiss under Rule 12(b)(6) tests not whether a plaintiff will [ultimately] prevail on the merits . . . [,]" but only whether the plaintiff has properly stated a claim for which he is entitled to relief. Woodruff v. DiMario, 197 F.R.D. 191, ...

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