The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING THE DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY
Jill Thompson, a foreign service officer with the Bureau of
Diplomatic Security ("DS") of the United States Department of
State ("Department of State"), brings suit against seven
individuals and John Does, all employees at the U.S. Department
of State (collectively, "defendants"), alleging that the
defendants violated the plaintiff's rights under the Fourth and
Fifth Amendments to the U.S. Constitution. This matter comes
before the court on the defendants' motion to dismiss or for
summary judgment. Because Congress has established a
comprehensive statutory scheme governing grievance proceedings
under the Foreign Service Act, the court declines to extend a
damages remedy under Bivens v. Six Unknown Named Fed. Narcotics
Agents of Fed. Bureau of Narcotics, 403 U.S. 388
this reason, the court grants the defendants' motion to dismiss. II. BACKGROUND
The plaintiff alleges as follows. Jill Thompson, a foreign
service officer with DS, began a tour of duty in October 2000 in
the Office of Financial Services, Bureau of Financial Management
and Policy, and was staffed on a project to deploy the Department
of State's new accounting system. Compl. ¶ 11. The plaintiff had
numerous reservations regarding this accounting system and voiced
these concerns in November 2000 to Larry Eisenhart, the Deputy
Chief Financial Officer and a defendant in this case. Id. ¶ 12.
In response to the plaintiff's concerns, "Eisenhart severely
berated and humiliated Plaintiff and denounced her concerns
before those in attendance." Id. ¶ 12. Additionally, at
Eisenhart's request, the plaintiff was removed from the
accounting project. Id. ¶ 13. The plaintiff documented her
professional concerns to Eisenhart in a January 2001 memorandum.
Id. The following month, the plaintiff's then-director Ron
Miller reassigned her to the Foreign Service National Global
Retirement Fund. Subsequently, "on various occasions from
March-May 2001[,] Mr. Eisenhart abused Plaintiff publicly and by
telephone for her work on the FSN Global Retirement Fund." Id.
¶ 16. The plaintiff documented and formally complained about this
abusive conduct to Miller, who "concurr[ed] with her complaint"
and forwarded it to Grant Green, the Under Secretary of
Management. Id. ¶ 17.
Later, two female employees in the plaintiff's office
complained to Eisenhart that the plaintiff was engaged in a
romantic relationship with her immediate supervisor, Mike
Rafalko, and that she was reaping professional benefits from this
relationship. Id. ¶ 18. Responding to these complaints,
Eisenhart and William Todd, the Executive Director of the Bureau
of Financial Management Policy, "contacted a number of offices within the
State Department . . . in an attempt to have an investigation
launched of Plaintiff's alleged misconduct." Id. ¶ 19. During
the course of this investigation, Todd and a subordinate of
Eisenhart conducted an initial investigation into Thompson and
Rafalko's alleged relationship. Pl.'s Opp'n to Defs.' Mot. to
Dismiss or for Summ. J. ("Pl.'s Opp'n") at 4. In the course of
this investigation, Todd searched e-mail messages in the
plaintiff's Department of State e-mail account. Id. Todd also
"sought evidence from certain [Office of International Financial
Services] employees, and . . . began searching through Mr.
Rafalko's desk while he was out of the office." Id.
As a result of the investigation, the plaintiff bore
significant stresses, which culminated, ultimately, in the
plaintiff suffering "a subarachnoid brain hemorrhage on September
25, 2001, a life threatening event which is usually fatal."
Compl. ¶ 6. The plaintiff's neurologist believes that "the levels
of stress to which she had been subjected and the hostility of
her working environment" caused her ailment, Pl.'s Opp'n at 5, an
opinion the plaintiff conveyed in a letter to Under Secretary
Green, Compl. ¶ 23.
The plaintiff's husband requested assistance from Eisenhart and
Under Secretary Green in the form of future relief from the
"turmoil" to which the plaintiff was the victim. Id. ¶ 21, 22.
The plaintiff notified the Under Secretary of her belief that
Eisenhart's call for an investigation was in retaliation for her
complaints of Eisenhart's abusive conduct. Id. ¶ 24. Assistant
Secretary Barbara Pope, a defendant in this case, appointed DS to
conduct the investigation into the plaintiff's alleged
misconduct. Id. ¶ 25.
In October 2001, shortly after the plaintiff was released from
the hospital following her hemorrhage, DS commenced its
investigation into the plaintiff's allegations of retaliation.
Id. ¶ 26. In the course of this investigation, in November 2001,
Diplomatic Security agents interrogated the plaintiff. Id. ¶
27. This interrogation "lasted for several hours and ran directly
counter to the instructions and requirements set forth to the
State Department by Plaintiff's neurologist to protect her
health." Id. Also as part of this investigation, investigators
allegedly searched e-mail messages from the plaintiff's
Department of State e-mail account, id. ¶ 30, coerced the
plaintiff into responding to questions not relevant to her
official duties or the subject matter of the investigation, id.
¶ 31, questioned her about personal photographs, and requested
medical documentation of the plaintiff's purported inability to
participate in investigatory interviews, id. ¶ 34. Diplomatic
Security Agent Thomas Scanlon, a defendant in this case, issued a
Report of Investigation ("ROI") in December 2001, which Nancy
Rolph-O'Donnell, another defendant in this case, reviewed and
approved. Id. ¶ 35. According to the plaintiff, this report was
"grossly inaccurate and unfair to Plaintiff in its content and
conclusions." Id. ¶ 35.
From this report, the Bureau of Human Resources ("HR")
recommended that the plaintiff's employer suspend her for a
period of three days. Id. ¶ 36. This recommendation was
withdrawn, however, after the plaintiff refuted its accuracy.
The plaintiff filed an administrative grievance in January
2002, in which the plaintiff complained of the Department of
State's "harsh, injurious treatment" of her.*fn1 Compl. ¶
38. In December 2002, the plaintiff underwent a compulsory
urinalysis drug test. Id. ¶ 40.
According to the plaintiff, as a result of the defendants'
conduct and the plaintiff's consequent pain, she "suffers from a
disability which prevents her from living without assistance and from participating in a full range of normal life
activities." Id. ¶ 42. Further, the plaintiff alleges that as a
result of the defendants' conduct, "her career in the foreign
service has suffered and her prospects for professional
advancements have diminished." Id.
Prior to filing the complaint in this case, the plaintiff filed
suit against the Department of State, alleging that the defendant
violated the Privacy Act through its investigation of the alleged
romantic relationship between the plaintiff and her supervisor.
Thompson v. Dep't of State, No. 03cv2227, slip. op. at 1
(D.D.C. Sept. 26, 2005) (Huvelle, J.). In that case, the
plaintiff made the precise allegations presented in the case now
before this court,*fn2 yet sued the Department of State
directly, rather than the participating bureaucrats, and alleged
that the defendant's actions violated the Privacy Act, rather
than the Constitution. The court granted summary judgment to the
defendant as to each of the plaintiff's claims, ruling that as to
each, the plaintiff failed to demonstrate any Privacy Act
violation. See Id.
Having lost in the lawsuit against the Department of State, the
plaintiff has now filed suit against seven former or current
employees of the Department of State, and has sued an undisclosed
number of "John Does." Comp. ¶ 1. The plaintiff asserts that she
is entitled to sue the defendants directly for alleged
constitutional violations under Bivens. Pl.'s Opp'n. The defendants filed a motion to dismiss, arguing that they are
entitled to qualified immunity. Defs.' Mot. to Dismiss or for
Summ. J. ("Def.'s Mot.") at 8. Alternatively, the defendants
argue that a Bivens remedy is inappropriate in this ...