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.
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, ...