United States District Court, D. Columbia
November 3, 2005.
JILL THOMPSON, Plaintiff,
BARBARA POPE, et al, Defendants.
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
A. Factual 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.
B. Procedural Background
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 case
because the Foreign Service Act ("FSA") provides a remedial
scheme for the plaintiff's grievances. Id. at 28. The court now
turns to the defendants' motion.
A. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency
of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002). The complaint need only set forth a short and plain
statement of the claim, giving the defendant fair notice of the
claim and the grounds upon which it rests. Kingman Park Civic
Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing
FED R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47
(1957)). "Such simplified notice pleading is made possible by the
liberal opportunity for discovery and the other pre-trial
procedures established by the Rules to disclose more precisely
the basis of both claim and defense to define more narrowly the
disputed facts and issues." Conley, 355 U.S. at 47-48 (internal
quotation marks omitted). It is not necessary for the plaintiff
to plead all elements of his prima facie case in the complaint,
Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or
"plead law or match facts to every element of a legal theory."
Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal
quotation marks and citation omitted).
Accordingly, "the accepted rule in every type of case" is that
a court should not dismiss a complaint for failure to state a
claim unless the defendant can show beyond doubt that the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. Warren v. Dist. of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004);
Kingman Park, 348 F.3d at 1040. Thus, in resolving a Rule
12(b)(6) motion, the court must treat the complaint's factual
allegations including mixed questions of law and fact as true
and draw all reasonable inferences therefrom in the plaintiff's
favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.
Cir. 2003); Holy Land Found. for Relief & Development v.
Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning,
292 F.3d at 242. While many well-pleaded complaints are conclusory,
the court need not accept as true inferences unsupported by facts
set out in the complaint or legal conclusions cast as factual
allegations. Warren, 353 F.3d at 39; Browning,
292 F.3d at 242.
B. The Plaintiff is not Entitled to a Bivens Damages Remedy
The plaintiff asserts that under Bivens, she is entitled to
an implied cause of action for the defendants' alleged
constitutional violations. According to the defendants, however,
an implied cause of action under Bivens is inappropriate in
this context because the FSA, applicable in the given case,
provides the plaintiff with a grievance procedure. Def.'s Mot. at
30. In addressing the plaintiff's claim, the court must first
survey Bivens and its progeny.
1. Bivens Implied Causes of Action
A plaintiff may bring a civil action for money damages against
a federal official in his or her individual capacity, acting
under color of their authority, for a violation of the
plaintiff's constitutional rights. Bivens, 403 U.S. at 389
(recognizing the judicial authority to create an implied cause of
action against federal officials alleged to have violated the
constitutional rights of a citizen). The plaintiff's right to
bring a civil action is grounded in 28 U.S.C. § 1331, which
provides that the federal courts have jurisdiction over cases
"aris[ing] under the Constitution, laws, or treaties of the
United States." 28 U.S.C. § 1331.
Under Bivens, the federal courts are free to create Bivens
remedies absent two distinct circumstances. First, no Bivens remedies are appropriate where
Congress has expressly precluded judicially created remedies
either by itself creating a remedy, Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 62 (2001) (stating that "[s]o long as the
plaintiff had an avenue for some redress, bedrock principles of
separation of powers foreclosed judicial imposition of a new
substantive liability") (citing Schweiker v. Chilicky,
487 U.S. 412, 425-427 (1988)), or by "expressly preclud[ing] the creation
of such a remedy by declaring that existing statutes provide the
exclusive mode of redress,"*fn3 Bush v. Lucas,
462 U.S. at 373. Second, the court will not create a Bivens remedy when
"special factors counsel hesitation in the absence of
affirmative action by Congress."*fn4 Bivens,
403 U.S. at 395-396.
In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court
"recognized an implied damages remedy under the Due Process
Clause of the Fifth Amendment" in an instance where the plaintiff
"lacked any other remedy for the alleged constitutional
depravation." Malesko, 534 U.S. at 67. Also, in Carlson v.
Green, 446 U.S. 228 (1980), the Court "inferred a right of
action against individual prison officials where the plaintiff's
only alternative was a Federal Tort Claims Act (FTCA) claim
against the United States." Malesko, 534 U.S. at 68.
Following the decisions in Passman and Carlson, however,
the Supreme Court has "consistently refused to extend Bivens liability to any new
context or new category of defendants." Id., 534 U.S. at 68.
Chief among these instances, for the purpose of the current
discussion, is Bush v. Lucas, 462 U.S. 367 (1983).
The plaintiff in Bush was an aerospace engineer employed at
the George C. Marshall Space Flight Center, a government facility
operated by the National Aeronautics and Space Administration
("NASA"). The plaintiff claimed to have been demoted after making
statements to the media about NASA. Bush, 462 U.S. at 369-370.
According to an agency finding, the plaintiff's statements had
"no basis in fact" and "evidenc[ed] a malicious attitude towards
Management and generat[ed] an environment of sensationalism
demeaning to the Government, [NASA] and the personnel of the
George C. Marshall Space Flight Center, thereby impeding
Government efficiency and economy[.]" Bush,
462 U.S. at 369-370. While an appeal of this agency decision was pending with
the Federal Employee Appeals Authority, the plaintiff filed suit
against the director of the Space Flight Center for damages for
defamation and violation of his first amendment rights. Id.,
462 U.S. at 371.
The Supreme Court recognized that "Congress has not resolved
the question presented by this case by expressly denying
petitioner the judicial remedy he seeks or by providing him with
an equally effective substitute." Id., 462 U.S. at 379. Thus,
under Bivens, the Court was left to determine whether a
"special factor" exists which "counsel[s] hesitation" in creating
a new damages remedy. Id. (quoting Bivens, 403 U.S. at 396).
The Supreme Court held that under the detailed regulations
promulgated by the Civil Service Commission, "Federal civil
servants are now protected by an elaborate, comprehensive scheme
that encompasses substantive provisions forbidding arbitrary
action by supervisors and procedures administrative and
judicial by which improper action may be redressed."*fn5 Id. at 385.
Applying Bush, the D.C. Circuit ruled that federal employees
are not entitled to Bivens remedies for constitutional
challenges to minor personnel actions governed by the Civil
Service Reform Act ("CSRA"). Spagnola v. Mathis, 859 F.2d 223
(D.C. Cir. 1988). The court stated that
courts must withhold their power to fashion damages
remedies when Congress has put in place a
comprehensive system to administer public rights, has
`not inadvertently' omitted damages remedies for
certain claimants, and has not plainly expressed an
intention that the courts preserve Bivens remedies.
In these circumstances, it is not for the judiciary
to question whether Congress' response [was] the best
response, [for] Congress is the body charged with
making the inevitable compromises required in the
design of a massive and complex . . . program.
Id. at 228. Additionally, in determining whether a particular
plaintiff is entitled to a Bivens damages remedy, the D.C.
Circuit stated that a court need not conduct a "case-by-case
examination of the particular administrative remedies available
to a given plaintiff." Id. (holding that "the preclusive effect
of Bush extends even to those claimants within the system for
whom the CSRA provides `no remedy whatsoever'") (quoting Bush,
462 U.S. at 385, n. 28). Illuminated by the development of
Bivens remedies by the Supreme Court and the D.C. Circuit, the
court turns to the plaintiff's claims.
2. The FSA Constitutes an Elaborate, Comprehensive Scheme
The plaintiff in this case brings suit alleging constitutional
violations by various officials at the Department of State.
Unlike Bush and Spagnola, the plaintiff's employment does not
fall under the rubric of the CSRA, but rather, the FSA. Consequently,
the question for this court is whether the FSA provides an
"elaborate, comprehensive scheme that encompasses substantive
provisions forbidding arbitrary action by supervisors and
procedures administrative and judicial by which improper
action may be redressed." Bush, 462 U.S. at 385.
Like the CSRA, the FSA provides fundamental grievance
procedures. The CSRA "require[s] that an employee be given 30
days written notice of a proposed discharge, suspension, or
demotion, accompanied by the agency's reasons and a copy of the
charges." See Bush, 462 U.S. at 386. Likewise, the FSA provides
that a member of the foreign service "may not be separated from
the Service until the member receives a hearing before the
Foreign Service Grievance Board and the Board decides that cause
for separation has been established, unless the member waives, in
writing, the right to such a hearing, or the member's appointment
has expired, whichever is sooner." 22 U.S.C. § 4410(2)(A). Like a
civil servant's ability to "examine all disclosable material that
formed the basis of the proposed action," under the CSRA, Bush,
462 U.S. at 386, the FSA provides:
Each party . . . shall be entitled to examine and
cross-examine witnesses at the hearing or by
deposition and to serve interrogatories upon another
party and have such interrogatories answered by the
other party unless the Board finds such interrogatory
irrelevant, immaterial, or unduly repetitive. Upon
. . . a request of the grievant deemed relevant and
material by the Board, an agency shall promptly make
available at the hearing or by deposition any witness
under its control, supervision, or responsibility,
except that if the Board determines that the presence
of such witness at the hearing is required for just
resolution of the grievance, then the witness shall
be made available at the hearing, with necessary
costs and travel expenses paid by the Department.
22 U.S.C. § 4136(3). The statute continues, stating that "the
Board shall afford to each party the opportunity to review and to
supplement, by written submissions, the record of proceedings
prior to the decision by the Board. Id. The decision of the
Board shall be based exclusively on the record of proceedings." 22 U.S.C. § 4136(6). Although the CSRA
provides a right to appeal, Bush, 462 U.S. at 387, the FSA does
not, 22 U.S.C. § 4137(c) (stating that "decisions of the Board
. . . shall be final"). But, like the CSRA, the final agency
decisions under the FSA are subject to judicial review.
22 U.S.C. § 4140.
Substantively, the FSA provides a party with the ability to
file a broad range of grievances. Under the FSA, a grievance is
defined as "any act, omission, or condition subject to the
control of the Secretary which is alleged to deprive a member of
the Service . . . of a right or benefit authorized by law or
regulation or which is otherwise a source of concern or
dissatisfaction to the member[.]" 22 U.S.C. § 4131(a)(1). This
provision is a great deal broader than the CSRA, which the
Supreme Court characterized as "comprehensive." Bush,
462 U.S. at 388.
Given the extent of the grievance procedures, as well as the
substantive breadth of the grievances permitted under the FSA, it
is no wonder that the D.C. Circuit recognized the FSA as "`a
comprehensive system of reviewing personnel action[s] taken
against federal employees.'" U.S. Info. Agency v. Krc,
989 F.2d 1211, 1217 (D.C. Cir. 1993) (analyzing the FSA in a suit alleging
an Equal Protection violation) (quoting United States v.
Fausto, 484 U.S. 439, 455 (1988) (modification in original).
Thus, the court rules that the FSA provides a "comprehensive
scheme" which precludes the creation of a Bivens remedy.
Polsdorfer v. Gearan, 1996 WL 451051 (D.D.C. August 1, 1996)
(relying on Krc, and holding that the FSA precludes a
judicially created Bivens action) (unpublished decision); See
Bush, 462 U.S. at 385.
The comprehensive nature of the FSA's grievance procedures
provides the plaintiff with "an avenue for some redress [which]
forclose[s] judicial imposition of a new substantive liability."
Malesko, 534 U.S. at 62. What's more, Congress stated that the
"`Foreign Service Act is intended to be a companion measure' to the CSRA." Krc,
989 F.2d at 1217 (citing Senate Report No. 96-913). Thus, Congress
has "expressly precluded the creation of such a remedy by
declaring that existing statutes provide the exclusive mode of
redress." Bush, 462 U.S. at 373.
Though the court need not pay great heed to whether this
plaintiff is covered by the protections of the FSA, Spagnola,
859 F.2d at 228, the plaintiff invoked the grievance procedures
of the FSA, thus demonstrating the availability of this process
to this plaintiff. Compl. ¶ 4(f). Although the Foreign Service
Grievance Board denied the plaintiff's grievance, the plaintiff
was entitled to seek judicial review of that decision pursuant to
22 U.S.C. § 4140. The plaintiff's own decision not to seek
judicial review of the Foreign Service Grievance Board's
decision, where Congress has provided a judicial review process,
does not constitute a sufficient justification for this court to
create a Bivens remedy.
The plaintiff argues that her claims are not covered by the FSA
grievance procedures because the grievance procedures are limited
to "any act, omission, or condition subject to the control of the
Secretary which is alleged to deprive a member of the Service
. . . of a right or benefit authorized by law or regulation."
Pl.'s Opp'n at 37. The court need not engage the plaintiff's
statutory construction argument for a fundamental reason "it
is the comprehensiveness of the statutory scheme involved, not the
`adequacy' of specific remedies extended thereunder, that
counsels judicial abstention." Spagnola, 859 F.2d at 227. In
this instance, having concluded that Congress has set forth a
comprehensive scheme in the FSA, the court need not proceed
For all the foregoing reasons, the court grants the defendants'
motion to dismiss. An order directing the parties in a manner consistent with this
Memorandum Opinion is separately and contemporaneously issued
this ____ day of November, 2005.
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