United States District Court, D. Columbia
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
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.
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, 193 (D.D.C. 2000). Thus, "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, 355 U.S. at 45-46.
B. The Defendants' Arguments in Support of Dismissal
In support of their requests for dismissal of Counts I and II,
the individual defendants advance several arguments. First, they
allege that "`[s]pecial factors counseling hesitation' in
creating a Bivens remedy for Dr. Hatfill ? [on these] claims
exist." Memorandum of Points and Authorities in Support of
Individual Defendants' Motion to Dismiss ("Defs.' Mem.") at 7.
According to the individual defendants, these special factors
include the remedial schemes created by the Privacy Act and the
Administrative Procedures Act, and the fact that there is an
ongoing criminal investigation of the anthrax mailings. Id. at
9-16.*fn6 Moreover, the individual defendants contend that
Count IV of the complaint should be dismissed because the DOJ's
regulations do not create a "duty in favor of the general public,
and there is no private cause of action for their violation."
Id. at 45. The Court will address each of these arguments in
1. Are there Special Factors Counseling Hesitation by the
Court in Creating a Bivens Remedy for the Plaintiff?
In Bivens, the Supreme Court acknowledged the right of
citizens to file claims for damages against federal law
enforcement officials who violate their constitutional rights.
Bivens, 403 U.S. at 389. There, petitioner Bivens alleged he
had been subjected to an unlawful search and seizure by federal agents in violation of the
Fourth Amendment. Id. In reversing the District Court and the Second
Circuit's affirmance of the dismissal of Biven's complaint on the
ground that he had failed to state a cause of action, the Supreme
Court held "[t]hat damages may be obtained for injuries
consequent upon a violation of the Fourth Amendment by federal
officials. . . ." Id. at 395; see also Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001) ("In Bivens . . ., we
recognized for the first time an implied private action for
damages against federal officers alleged to have violated a
citizen's constitutional rights."). However, the Bivens Court
concluded that the case before it "involve[d] no special factors
counseling hesitation [against providing a monetary remedy] in
the absence of affirmative action by Congress." 403 U.S. at 396.
The Court emphasized that there was
no explicit congressional declaration that persons
injured by a federal officer's violation of the
Fourth Amendment may not recover money damages from
the agents, but must instead be remitted to another
remedy, equally effective in the view of Congress.
The question is merely whether petitioner, if he can
demonstrate an injury consequent upon the violation
by federal agents of his Fourth Amendment rights, is
entitled to redress his injury through a particular
remedial mechanism normally available in the federal
Id. at 397 (citations omitted). In line with this reasoning, in
Schweiker v. Chilicky, 487 U.S. 412
418 (1988), the Supreme
Court refused to permit claimants, whose social security
disability benefits had been terminated during disability reviews
but later reinstated, to assert Bivens claims for alleged
Fifth Amendment due process violations against state and federal
officials "who had policymaking roles in the administration of
the [continuing disability review] program. . . ." Id. The
Court concluded that Congress had created an adequate remedial
scheme which "addressed the problems created by state agencies'
wrongful termination of disability benefits." Id. at 429. The fact that the claimants could not seek monetary
damages for "emotional distress or for other hardships suffered
because of delays in their receipt of Social Security
benefits[,]" was deemed by the Court not to be a sufficient basis
for permitting them to assert Bivens claims. Id. at 425. In
this regard, the Court noted that even though Congress had not
provided "complete relief," it had nonetheless "not failed to
provide meaningful safeguards or remedies for the rights of
persons situated as respondents were." Id. The Court emphasized
that it has "responded cautiously to suggestions that Bivens
remedies be extended into new contexts." Id. at 421. And, the
Court reiterated that "[t]he absence of statutory relief for a
constitutional violation . . . does not by any means necessarily
imply that courts should award money damages against the officers
responsible for the violation." Id. at 421-22 (citations
omitted). Thus, where "the design of a Government program
suggests that Congress has provided what it considers adequate
remedial mechanisms for constitutional violations that may occur
in the course of its administration, [the Supreme Court has] not
created additional Bivens remedies." Id. at 423.
Relying on the Supreme Court's "special factors counseling
hesitation" limitation on the applicability of Bivens, the
individual defendants argue that such factors are implicated in
this case because there are other congressionally created avenues
available to Dr. Hatfill through which he can seek relief.
Specifically, the defendants maintain that Dr. Hatfill can pursue
redress through either the Privacy Act or the Administrative
Procedures Act for the alleged violations of his Fifth and
First Amendment rights. Defs.' Mem. at 9, 13. The defendants also
maintain that the ongoing criminal investigation of the anthrax
mailings merit the Court not affording Dr. Hatfill a Bivens remedy. Id. at 16.*fn7
2. Does the Privacy Act Provide the Plaintiff with a
Sufficient Avenue for Redress?
The Privacy Act, 5 U.S.C. § 552a(g)(1)(C), provides that
whenever any agency . . . (C) fails to maintain any
record concerning any individual with such accuracy,
relevance, timeliness, and completeness as is
necessary to assure fairness in any determination
relating to the qualifications, character, rights, or
opportunities of, or benefits to the individual that
may be made on the basis of such record, and
consequently a determination is made which is adverse
to the individual . . . [,] the individual may bring
a civil action against the agency, and the district
courts of the United States shall have jurisdiction
in the matter?. . . .
The Privacy Act also precludes agencies from "disclos[ing] any
record which is contained in a system of records by any means of
communication to any person . . . except pursuant to a written
request by, or with the prior written consent of, the individual
to whom the record pertains. . . ." 5 U.S.C. § 552(b) (emphasis
added). If it is determined that the agency has willfully or
intentionally violated the Act, the United States will be liable
to a person for "(A) actual damages sustained by the individual
as a result of the refusal or failure, but in no case shall a
person entitled to recovery receive less than the sum of $1,000;
and (B) the costs of the action together with reasonable attorney
fees. . . ." 5 U.S.C. § 552(g)(4).
The individual defendants contend that "[t]he Privacy Act is a
special factor precluding Dr. Hatfill's First and Fifth Amendment
claims based upon the leaks of information he alleges." Defs.'
Mem. at 10. The defendants further contend that "[t]he Privacy
Act . . . regulates the collection, maintenance, use and dissemination of information
concerning individuals." Id. (quoting Downie v. City of
Middleburg Heights, 301 F.3d 688, 696 (6th Cir. 2002) (other
citation omitted). In Downie, upon which the defendants rely,
plaintiff Mickey Downie ("Downie") alleged that he was
"blacklisted" and terminated from his employment in retaliation
for refusing to continue to act as an "undercover operative" for
the United States Customs Service. Id. at 690. In his letter of
resignation, Downie expressly criticized the agency's
investigatory methods, and he alleged that in retaliation for his
resignation, Customs Service agent Siegel and Bureau of Alcohol,
Tobacco and Firearms agent Schneider, along with other state
officials, violated his constitutional and statutory rights.
Id. at 689. Specifically, Downie alleged that agent Siegel and
other government officials engaged in a "campaign to discredit
[him]" by engaging in the following actions: (1) writing a
"blackball" memo to the Officer of Domestic Operations for the
Customs Service in which Siegel stated that Downie should not be
hired "as a source of information for the Customs Service"
because he was "both undesirable and unreliable[,]" id. at 690;
(2) "caus[ing] Downie's federal firearms license to be revoked,
illegally seiz[ing] Downie's firearm, and caus[ing] the entry of
false records into the City of Middleburg Heights police files
regarding an arrest of Downie for carrying a concealed weapon[,]"
Id. at 690-91; and (3) causing Downie and his assistant, David
Wheat, to be fired from positions with a county narcotics task
force by calling the county prosecutor and informing the
prosecutor that unless he fired Downie, "federal officials would
no longer work with [him]." Id. at 691. Downie and Wheat filed
a civil complaint in federal district court alleging (1) "that
the defendants had retaliated against them [for exercising] their
First Amendment rights; (2) that the defendants [had] violated
their rights under Ohio law; and (3) that the defendants
conspired to deprive them of their constitutional and state-law rights." Id. at 691.
On appeal from the dismissal of Downie's claims, the Sixth
Circuit "agree[d] with the district court that because the
Privacy Act is a comprehensive legislative scheme that provides a
meaningful remedy for the kind of wrong Downie allege[d] that he
suffered, [it] should not imply a Bivens remedy for Downie
against Siegel and Schneider directly under the First Amendment
of the United States Constitution." Id. at 696. The Court noted
that although several counts of the plaintiffs' complaint
referred to "`actions' or `acts' by the defendants, all three
parts of Siegel's alleged `campaign to discredit' Downie, as
described in Downie's complaint, involved the creation,
maintenance, or dissemination of false records on Downie." Id.
at 696.*fn8 Furthermore, although recognizing that Congress
had not "explicitly declare[d] the Privacy Act to be either a
substitute for an action directly under the Constitution or an
exclusive remedy[,]" the Court noted that such a requirement
could not be found in Supreme Court precedent, and in the case
before it, "the fact that the Privacy Act is a comprehensive
legislative scheme that provides a meaningful remedy for the
wrong Downie alleges is sufficient as a `special factor?
counselling [sic] hesitation' for us to refuse to imply a
separate damages remedy under Bivens." Id. at 697.
In attempting to defeat the defendants' reliance on Downie,
Dr. Hatfill contends that the defendants' characterization of his
claims as involving only the dissemination of false information
about him construes his complaint too narrowly. Plaintiff's
Memorandum of Points and Authorities in Opposition to the
Individual Defendants' Motion to Dismiss ("Pl.'s Opp'n") at 34.
Rather, read broadly, plaintiff contends that Count I accuses the defendants of engaging in a
coordinated campaign to deprive Dr. Hatfill of his
job and render him unemployable in his field of
chosen profession. Count II accuses the defendants of
retaliation against Dr. Hatfill to intimidate,
discredit, and punish him for exercising his
First Amendment rights. Some of the acts by which these
campaigns were carried out were illegal under the
Privacy Act, while others were not.
Id. Because the plaintiff posits that all of the allegations
cannot be read to state a claim pursuant to the Privacy Act, he
opines that the Act does not preclude a Bivens remedy in this
case. Id. at 36. In support of his argument that he can assert
Bivens claims against the individual defendants, the plaintiff
relies on Bartel v. Federal Aviation Admin., 725 F.2d 1403
(D.C. Cir. 1984), which he contends supports the conclusion that
a Bivens action can be "based on the same defamatory government
statements on which the plaintiff based his Privacy Act claim."
Pl.'s Opp'n at 38 (citing Bartel, 725 F.2d at 1405). In
Bartel, the District of Columbia Circuit indicated that the
pro se plaintiff's due process claim against a Federal
Aviation Administration ("FAA") official pursuant to Bivens was
not necessarily foreclosed by the plaintiff's Privacy Act claim.
725 F.2d at 1414. There, the plaintiff alleged that the FAA
official had "intentionally den[ied] him due process when [the
official] made and disclosed the `determination' of wrongdoing
. . .," id., by revealing that the plaintiff had obtained records
belonging to his co-workers in violation of the Privacy Act.
Id. As a result of the official's actions, the plaintiff
alleged that his reputation had been injured and he had been
denied several employment opportunities. Id. at 1406, 1414. The
Circuit Court remanded the case to "the district court to
ascertain whether conduct of FAA officials denied Bartel a
legally recognized interest, and if so, whether he was given his
procedural due." Id. at 1415. The disposition in Bartel
remand does not unequivocally support the plaintiff's position
that both Privacy Act and Bivens claims may be maintained when based on the same underlying acts. In fact, the Circuit Court
specifically declined to address "Bartel's allegations [that his]
due process allegations survive[d] the holding in Bush [v.
Lucas, 462 U.S. 367, 388-89 (1983) (holding that where a claim
is governed by Congressionally created procedural and substantive
provisions that provide meaningful remedies against federal
officials, it is inappropriate for courts to supplement that
regulatory scheme with a new non-statutory damages remedy
pursuant to Bivens.)]." Id. at 1415 n. 21.
A case analogous to the present one is Chung v. United States
Dep't of Justice, No. Civ.A. 00-1912, 2001 WL 34360430, at *1
(D.D.C. Sept. 20, 2001) (Hogan, J.), aff'd in part, rev'd in
part and remanded, 333 F.3d 273 (D.C. Cir. 2003).*fn9 In
Chung, the plaintiff had pled guilty to violating the Federal
Election Campaign Act ("FECA") "by contributing approximately
$400,000 toward Democratic Party politics from July 1994 through
October 1996." Id. As part of his plea agreement, Chung
cooperated with the government in its investigation of illegal
campaign contributions by agreeing to serve as an undercover,
confidential informant. Id. However, these intentions were
dashed when the New York Times published a story regarding
Chung's cooperation with the government. Id. Thereafter, Chung
and his family had to be placed in protective custody, a fact
that was reported by NBC News. Id. "Chung learned from a Los
Angeles Times reporter that high-ranking DOJ officials in
Washington, D.C. had leaked the information . . . about his
cooperation that was published in the New York Times." Id.
(citation omitted). Chung thereafter filed a civil complaint
asserting (1) that the DOJ violated the Privacy Act; (2) that
five unknown DOJ officials violated his First Amendment rights to
free speech, and (3) that the same unknown DOJ officials violated "his
Fifth Amendment rights to be secure in his person." Id. at *2
(citation omitted). The two latter claims were brought pursuant
to Bivens. Id. at *6. In dismissing Chung's Bivens claims
against the unidentified DOJ officials, the District Court stated
that "it is quite clear that Congress found constitutional
implications and concerns respecting privacy matters as part of
its reason for enacting the Privacy Act of 1974." Id. at *11.
Thus, the Court concluded that Chung's Bivens claims were
foreclosed. Specifically, the Court held that because "all of the
plaintiff's claims stem from the alleged leaks namely, the
allegedly wrongful disclosure of government records, . . . the
Privacy Act comprehensively covers such claims and accordingly
has not inadvertently omitted damages remedies, and . . .
Congress has not plainly expressed an intention to preserve
Bivens remedies." Id. at *12 (citations omitted). Therefore,
the Court concluded that it would not "recognize a Bivens
action for the plaintiff's constitutional claims. . . ." Id.
In the present case, the plaintiff's First and Fifth Amendment
related allegations in his complaint against the individual
defendants are most analogous to the claims raised by the
plaintiffs in Downie and Chung. Nonetheless, the plaintiff
contends that these cases do not support the dismissal of these
claims in their entirety, while conceding that they may "support
a narrowing of those counts to preclude recovery for acts that
are compensable under the Privacy Act." Pl.'s Opp'n at 39.
Moreover, the plaintiff seeks to avoid the application of
Chung, arguing that in that case "the district court found
`that all of plaintiff's claims stem from the alleged
leaks. . . .'" whereas here, the plaintiff contends that "there
is no provision in the Privacy Act that addresses retaliatory use
of private information as a way to punish or chill protected
speech or the use of `defamatory information in conjunction with
adverse employment action to squash the right to work.'" Id. at 37. However, Downie did specifically
address the plaintiffs' claim that they "ha[d] been and
continue[d] to be precluded from [employment in their chosen
profession] as a direct result of the actions of the defendants . . .
[in] violat[ion of the] plaintiffs' constitutionally
protected rights guaranteed under the First and
Fourteenth amendments to the U.S. Constitution," and concluded that this
count of their complaint "allege[d] wrongs that could be
addressed under the Privacy Act." Downie, 301 F.3d at 696.
Here, Dr. Hatfill alleges that the statements made by DOJ
employees violated his Fifth Amendment due process property
rights. Specifically, it is Dr. Hatfill's position that his
Fifth Amendment rights have been infringed as a result of the statement
of former Attorney General Ashcroft labeling him as a person of
interest in the anthrax investigation, and the instructions from
defendants Beres and Darnell that prohibited him from working on
any government funded projects. Compl. ¶¶ 41-42. Dr. Hatfill
contends that these acts have deprived him of his employment and
of the opportunity to gain any meaningful employment in his field
of research and training in biowarfare preparedness and
countermeasures. Id.. ¶ 105. The defendants counter that any
statements made by them were not defamatory, and therefore, the
statements cannot form the basis for his defamation claim. Defs.'
Mem. at 25. In response, Dr. Hatfill contends that "[t]he D.C.
Circuit has recognized at least two distinct actions under the
liberty component of the due process clause of the
Fifth Amendment," one being a "reputation-plus" action, which requires
the making of defamatory governmental statements "`in the course
of the termination of employment.'" Pl.'s Opp'n at 6 (citing
O'Donnell v. Barry, 148 F.3d 1126 (D.C. Cir. 1998)). Dr.
Hatfill notes that the second theory of liability is applicable
"when `adverse employment action and a stigma or disability . . .
[have] foreclosed [a plaintiff's] freedom to take advantage of other employment opportunities.'" Id. In any
event, the plaintiff alleges that he can maintain a cause of
action under both theories. Id.
To prove a reputation-plus claim under the Fifth Amendment, a
plaintiff must establish that the defendants made defamatory
statements and that such statements were accompanied by the loss
of government employment. O'Donnell, 148 F.3d at 1140. In Paul
v. Davis, 424 U.S. 693, 706 (1976), the Supreme Court noted that
it "has never held that the mere defamation of an individual,
whether by branding him disloyal or otherwise, was sufficient to
invoke the guarantees of procedural due process absent an
accompanying loss of government employment." For this reason, the
Court dismissed the claims of a plaintiff who sued several state
officials for defamation arising from the defendants' creation
and circulation of a flyer listing the names of active
shoplifters, which included the plaintiff's name. Id. at 695.
When those events occurred, the plaintiff had been arrested and
charged with a shoplifting offense, "but his guilt or innocence
of that offense had never been resolved." Id. at 696. The
information contained in the flyer about the plaintiff resulted
in his supervisor informing the plaintiff "that although he would
not be fired, he had best not find himself in a similar situation
in the future." Id. Despite what had occurred, because the
plaintiff did not contend he had suffered any loss of government
employment as a result of the alleged defamatory statements, the
Supreme Court held that "petitioners' defamatory publications,
however seriously they may have harmed respondent's reputation
did not deprive him of any `liberty' or `property' interests
protected by the Due Process Clause." Id. at 712. In this case,
although Dr. Hatfill sustained the loss of employment, as
defendants correctly note, the statements concerning Dr. Hatfill
cannot be considered defamatory, as he has not alleged that the
statements were false when they were made. Defs.' Reply at 11. One element a plaintiff must establish to succeed on
a defamation claim is proof that a defendant made a false and
defamatory statement concerning the plaintiff. See Croixland
Properties P'ship v. Corcoran, 174 F.3d 213, 216 (D.C. Cir.
1999). Although Dr. Hatfill maintains that he was not responsible
for the anthrax attacks, he cannot demonstrate that the
defendants did not consider him "a person of interest" in the
anthrax mailings. Thus, Dr. Hatfill cannot pursue a claim based
on the first theory of Fifth Amendment due process liability.
On the other hand, with respect to his second theory of
Fifth Amendment due process liability, Dr. Hatfill has stated a viable
claim. The District of Columbia Circuit has held "that government
stigmatization that broadly precludes individuals or corporations
from a chosen trade or business deprives them of liberty in
violation of the Due Process Clause." Trifax Corp. v. District
of Columbia, 314 F.3d 641, 644 (D.C. Cir. 2003). Thus, Dr.
Hatfill's "stigma or disability" theory, applicable "when
`adverse employment action and a stigma or disability . . .
[have] foreclosed [the plaintiff's] freedom to take advantage of
other employment opportunities,'" Pl.'s Opp'n at 11 (citing
O'Donnell, 148 F.3d at 1141), has been adequately demonstrated.
However, this Fifth Amendment claim is strikingly similar to the
plaintiffs' claim in Downie and likewise can be redressed under
the Privacy Act. And the Privacy Act, being a comprehensive
legislative scheme that provides a meaningful remedy for the
kinds of harm Dr. Hatfill alleges he has suffered, qualifies it a
special factor counselling hesitation against the applicability
of Bivens. Therefore, this Court cannot imply a separate
damages remedy under Bivens for Dr. Hatfill against the
individual defendants based on the alleged Fifth Amendment
With respect to the First Amendment violation alleged by the
plaintiff, the Court need not conduct a Bivens analysis, because as explained hereafter,
see infra Part II.C, the plaintiff has failed to adequately
state a claim upon which relief can be granted for such a
C. Has the Plaintiff Stated a First Amendment Violation?
Dr. Hatfill alleges that the individual defendants violated his
First Amendment right to publicly protest the government's
treatment of him when they
(a) conducted an extra search of [his] apartment . . .
(b) directed LSU to fire him . . . (c) divulged
private facts about him . . . (d) attempted to
manufacture unreliable evidence implicating him . . .
(e) intensified their `surveillance' to the point
that it constituted harassment, . . . (f)
deliberately intimidated a prospective employer . . .
[and] (g) threatened to indict him for unrelated
offenses. . . .
in retaliation for the exercise of his First Amendment rights.
Pl.'s Opp'n at 22-23. The plaintiff argues that "if the
defendants did any of these things with the intention either of
chilling Dr. Hatfill's exercise of First Amendment rights or
punishing him for the occasions on which he exercised them, then
Hatfill's complaint states a constitutional violation." Id. at
It is true that if the defendants took their actions with
intent to retaliate against Dr. Hatfill for exercising his
First Amendment rights, such retaliatory action could be the basis for
a First Amendment claim because it would "offend? the
Constitution [in] that it threatens to inhibit the exercise of
the protected right." Crawford-El v. Britton, 523 U.S. 574, 589
n. 10 (1998) (citation omitted). In Kimberlin v. Quinlan,
199 F.3d 496, 499 (D.C. Cir. 2000), a former member of this Court had
concluded that prison officials had violated the plaintiff's
First Amendment rights to free speech by placing him in
administrative segregation to preclude him from talking to the
press concerning his allegations that he had sold marijuana to
then vice-presidential candidate Dan Quayle. Id. at 498. On
appeal, the Kimberlin Court noted that the District Court had
already "found that no reasonable prison official could believe
that interfering with an inmate's access to the press because of the content of the inmate's speech could be
lawful." Id. at 503. Thus, the District Court had concluded
that the plaintiff's First Amendment rights were clearly
established at the time of the alleged violation. Id. Although,
the District Court had not reached the conclusion that
Kimberlin's First Amendment rights had been violated, after a
series of appeals and remands, this case was ultimately remanded
to the District Court "to determine if plaintiff could
demonstrate that disputed facts exist[ed] as to whether
defendants violated clearly established law, either by
intentionally segregating plaintiff from the general prison
population, or by interfering with plaintiff's ability to contact
the press because of the content of his proposed speech."
Kimberlin v. Quinlan, 251 F. Supp. 2d 47, 48 (D.D.C. 2003)
(citing Kimberlin, 199 F.3d at 498). The District Court then
concluded that it was "convinced that a reasonable jury could
conclude that [prison officials] acted with improper motives in
restricting plaintiff's access to the press and in placing him in
administrative detention." Id. at 57. Thus, summary judgment
was not appropriate. Id.
To prevail on a First Amendment retaliation claim, a plaintiff
must prove that "(1) he has an interest protected by the
First Amendment; (2) defendants' actions were motivated or
substantially caused by his exercise of that right; and (3)
defendants' actions effectively chilled the exercise of his
First Amendment right." Curley v. Village of Suffern, 268 F.3d 65, 73
(2d Cir. 2001) (citation omitted). In this case, no one disputes
the existence of the first element. And with respect to the
second element of a First Amendment retaliation claim that
defendants' actions were motivated or substantially caused by his
exercise of that right the Court need not make this
determination in light of its conclusion that Dr. Hatfill's
speech was not "actually chilled." Id. (citing Davis v. Vill.
Park II Realty Co., 578 F.2d 461, 464 (2d Cir. 1978)). As the Supreme Court has held, "[a]llegations of a subjective `chill'
are not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm." Id.
(alteration in original) (quoting Laird v. Tatum, 408 U.S. 1,
13-14 (1972). Here, many of the actions challenged by Dr.
Hatfill, allegedly committed with the intent to "chill" his
First Amendment rights, were committed prior to his exercise of that
right, namely, Dr. Hatfill's first public statement denying
involvement in the anthrax mailings on August 11, 2002.
Specifically, the second search of Dr. Hatfill's apartment was
conducted on August 1, 2002. See Compl. ¶ 39. Additionally, the
DOJ Personnel Order to LSU precluding Dr. Hatfill from working on
DOJ funded projects occurred on or about August 1, 2002. Id. ¶¶
41-44; and the naming of Dr. Hatfill as a "person of interest,"
id. ¶ 49, and the alleged "leaks to the media regarding the
searches of Dr. Hatfill's apartment, id. ¶ 59, also occurred
prior to August 11, 2002. As all of these events pre-date Dr.
Hatfill's August 11 statement, they bear no relevance to Dr.
Hatfill's First Amendment retaliation claim. All that remains
then are Dr. Hatfill's allegations of a "coordinated campaign of
intimidation and harassment," and the allegations in the
complaint concerning the government's purported attempts to
"chill" Dr. Hatfill's First Amendment rights, which appear later
in the complaint, beginning at paragraph 74 under the heading:
"FBI and DOJ Personnel Retaliate Against Dr. Hatfill for
Exercising His First Amendment Rights to Free Speech and to
Petition His Government for Redress." Id. at 27. In this
section of the complaint, Dr. Hatfill alleges that "the
government stepped up its efforts to marginalize and discredit
him." Id. ¶ 75. He also alleges that "in an effort to obtain
any evidence adverse to [him] . . . federal investigators began
showing a single photo of [him] to residents in Princeton, New
Jersey in the hope that someone would place him at the scene of
the anthrax mailings." Id. ¶ 78. In addition, Dr. Hatfill alleges an increase in intensity of the defendants'
surveillance of him. Id. ¶ 80. Thus, it appears that only the
last section of the complaint, specifically paragraphs 74-81, are
relevant to Dr. Hatfill's First Amendment retaliation claim.
"The widely accepted standard for assessing whether `harassment
for exercising the right of free speech [is] . . . actionable' . . .
depends on whether the harassment is `?likely to deter a
person of ordinary firmness from that exercise.'" Toolasprashad
v. Bureau of Prisons, 286 F.3d 576, 585 (D.C. Cir. 2002)
(citations omitted). In this case, it appears that Dr. Hatfill's
free speech has not been chilled in any manner, as he has
continued to protest the government's actions. Indeed, Dr.
Hatfill has continued to fully exercise his First Amendment right
to comment on the investigation and seek redress for alleged
wrongs that have purportedly been committed in the course of the
investigation. And "[w]here a party can show no change in his
behavior, he has quite plainly shown no chilling of his
First Amendment right to free speech." Curley, 268 F.3d at 73 (citing
Singer v. Fulton County Sheriff, 63 F.3d 105, 120 (2d Cir.
1995) (finding no chilling effect where, after an arrest, the
plaintiff continued to publish his newspaper through which he
criticized the village government); Spear v. Town of W.
Hartford, 954 F.2d 63, 67 (2d Cir. 1992) (finding no chilling
effect where, after the filing of a lawsuit claiming retaliation
for its editorial criticizing police handling of anti-abortion
demonstrators, the plaintiff continued to write criticizing
editorials in the same manner as before the lawsuit)). Here, Dr.
Hatfill has continued to exercise his First Amendment rights
subsequent to his first public statement. Accordingly, Dr.
Hatfill, having failed to show that his First Amendment rights
were actually chilled, has not stated a claim for which relief
can be granted with respect to his First Amendment claim. Count
II of the Complaint must therefore be dismissed. D. Count IV
Finally, the individual defendants argue that the Court should
dismiss Count IV of the plaintiff's complaint wherein the
plaintiff charges that the defendants violated DOJ regulations
prohibiting public disclosures concerning pending criminal
investigations. Defs.' Mem. at 45. The plaintiff argues that
"[t]here are good reasons to imply a right of action" under the
regulations in this case, noting that he is unaware "of [any]
authority forbidding such an implication. . . ." Pl.'s Opp'n at
44. On the other hand, the defendants argue that this claim
should be dismissed because "those regulations create no duty in
favor of the general public, and there is no private cause of
action for their violation." Defs.' Mem. at 45. In support of
this argument the defendants cite Kugel v. United States,
947 F.2d 1504, 1507 (D.C. Cir. 1991). In Kugel, the plaintiff
entered into contracts with twenty one North Carolina cities
wherein he agreed to development their respective downtown areas
for a monthly management fee of $5000. Id. at 1506. As a result
of this activity, the FBI launched an investigation into Kugel's
activities. Id. During the course of the investigation, the FBI
interviewed many parties to the various contracts. Id. Several
North Carolina periodicals and a wire service printed
articles about the investigation and the government's suggestion that
Kugel had committed fraud or other fraudulent behavior. Id.
Despite Kugel's clearance in the investigation, the North
Carolina FBI office, upon request, sent a memorandum to the
Baltimore FBI office repeating the allegations but neglected to
mention that Kugel had been cleared. Id.
In response to the FBI's conduct, Kugel filed a civil action
against the United States under the Federal Tort Claim Act,
28 U.S.C. § 1346(b) ("FTCA"), alleging that as a result of the FBI's
negligent conduct during the course of its investigation, several
North Carolina municipalities either cancelled their contacts with him, withheld
their fee or filed lawsuits against him. Kugel
947 F.2d at 1506. Additionally, financial institutions refused to continue to
do business with him and the subsequent losses forced him to file
for bankruptcy. Id. He was also subjected to public ridicule
and humiliation, which caused stress-related seizures that
required medication and his hospitalization. Id. In an effort
to establish the breach of a duty purportedly owed to him by the
government, "Kugel relie[d] on The Attorney General's Guidelines
on Criminal Investigations of Individuals and Organizations
("Guidelines") to establish the duty." Id. at 1507. This
internal DOJ document required "agents [to] exercise minimal
intrusiveness during an investigation to protect an investigative
target from prosecution for improper reasons, from adverse
consequences to privacy interests and from avoidable damage to
reputation." Id. (citation omitted). Kugel argued that the
Guidelines "created a duty owned him by [the FBI] and that [the
FBI] breached that duty in [its] execution of the investigation.
Id. However, the District of Columbia Circuit disagreed,
stating that "[t]he Guidelines do not . . . create a duty in
favor of the general public." Id. (citing Schweiker v.
Hansen, 450 U.S. 785, 789 (1981) (holding that "intra-office
manuals, unlike official regulations, have no legal force."))
Thus, "[b]ecause the internal manual did not create a legal duty,
the court reasoned, its violation was not per se negligent and
could not by itself support an FTCA claim." Id. (citing Jacobo
v. United States, 853 F.2d 640, 641 (9th Cir. 1988); see
also Sloan v. Dep't of Hous. & Urban Dev., 231 F.3d 10, 18
(2000) (holding that Department of Housing and Urban Development
("HUD") employees' contravention of standards incorporated in
HUD's Consolidated Audit Guide for Audits of HUD Programs did not
support a claim for violation of due process).
The present case is distinguishable from Kugel because unlike
the promulgation there an "intra-office" manual here we are dealing with a DOJ
regulation. And it is "axiomatic that an agency must adhere to
its own regulations . . ., and that it need not adhere to mere
`general statement[s] of policy.'" Brock v. Cathedral Bluffs
Shale Oil Co., 796 F.2d 533, 536 (D.C. Cir. 1985) (alteration in
original) (citations omitted). "Unfortunately [for Dr. Hatfill],
there is no axiom to distinguish between regulations and general
statements of policy." Id. at 536-37. And, Dr. Hatfill's
position appears to be foreclosed by the Supreme Court's decision
in Alexander v. Sandoval, 532 U.S. 275 (2001). There, the
Supreme Court rejected the government's and the respondents'
arguments "that . . . regulations contain[ing] rights-creating
language . . . must be privately enforceable." Id. at 291. The
Court noted that while
[l]anguage in a regulation may invoke a private right
of action that Congress through statutory text
created, but it may not create a right that Congress
has not. Thus, when a statute has provided a general
authorization for private enforcement of regulations,
it may perhaps be correct that the intent displayed
in each regulation can determine whether or not it is
privately enforceable. But it is most certainly
incorrect to say that language in a regulation can
conjure up a private cause of action that has not
been authorized by Congress. Agencies may play the
sorcerer's apprentice but not the sorcerer himself.
Id. (citation omitted). Here, the regulation at issue,
28 C.F.R. § 50.2 (2003), is one of the DOJ's Statements of Policy
pertaining to the release of information by DOJ personnel
regarding criminal and civil proceedings. The purpose of this
particular policy statement is "to formulate specific guidelines
for the release of information by personnel of the Department of
Justice." 28 C.F.R. § 50.2(a)(1). The Court has found no statute
pursuant to which this regulation has been promulgated, and the
plaintiff has not identified one. Thus, its adoption is not based
upon a statute which provides for its private enforcement.
"Like substantive federal law itself, private rights of action
to enforce federal law must be created by Congress." Sandoval, 532 U.S. at 286 (citation
omitted). This Court's task is "to interpret the statute Congress
has passed to determine whether it displays an intent to create
not just a private right but also a private remedy." Id.
(citation omitted). Here, no such statute exists. Thus, without a
specific intent expressed by Congress for a private right of
action arising from the DOJ regulation, "a cause of action does
not exist and [this] [C]ourt? may not create one. . . ." Id.
at 286-87. As noted, the regulation at issue is a policy
statement promulgated by the DOJ formulating specific guidelines
for the release of information by DOJ personnel about criminal
and civil matters. Absent a clear indication of congressional
intent to create a private right of action for the enforcement of
this regulation, the Court can not impose one. Thus, Dr.
Hatfill's argument that "[he] know[s] of no authority forbidding
such an implication, and the purposes for which the regulation
was promulgated would certainly be furthered by a private right
of action . . .," is not supported by any statutory authority.
Nor has Dr. Hatfill presented any legal authority to support his
position. Accordingly, Count IV of the complaint must be
E. Declaratory and Injunctive Relief
The defendants state that "the claims for injunctive and
declaratory relief should also be dismissed because "declaratory
and injunctive relief are not available to the extent that Dr.
Hatfill has an adequate remedy at law for those claims." Defs.'
Mem. at 44. On the other hand, Dr. Hatfill correctly points out
that a declaratory judgment may be granted whether or not further
relief could be sought. Pl.'s Opp'n at 44 (citing
28 U.S.C. § 2201(a). Moreover, as Dr. Hatfill notes, "district courts enjoy
broad discretion in awarding injunctive relief." Id. (citing
Wagner v. Taylor, 836 F.2d 566, 575 (D.C. Cir. 1987)).
Having concluded that Dr. Hatfill cannot maintain his
First Amendment and DOJ regulation violation claims because in both instances he has
failed to state claims upon which relief can be granted, he is
not entitled to any relief including injunctive and declaratory
on these claims. However, having stated a viable claim as to
the alleged Fifth Amendment violation, Dr. Hatfill's demand for
injunctive and declaratory relief survives the defendants'
dismissal motion even though his demand for monetary relief does
not. Accordingly, the defendants' motion to dismiss these forms
of relief attendant to the alleged Fifth Amendment violation is
In conclusion, Dr. Hatfill has stated a viable claim for
violation of his Fifth Amendment rights. Thus, his request for
declaratory and injunctive relief as to this claim survives the
defendants' motion for dismissal. However, Dr. Hatfill cannot
maintain a Bivens action as to this claim because the
allegations regarding this claim must be pursued solely pursuant
to the Privacy Act. Moreover, the plaintiff has failed to state a
claim against the individual defendants for a violation of the
First Amendment and thus that claim must be dismissed in its
entirety. Finally, the plaintiff's claim in Count IV must be
dismissed, as there is no private right of action arising from
the DOJ regulation upon which this count is predicated.*fn10
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