The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Currently before this Court is the Individual Defendants' Motion to Dismiss the Plaintiff's First Amended Complaint ("Defs.' Mot.") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and for failure to state a claim on which relief may be granted.*fn2 Additionally, defendant Tracy Henke also moves to dismiss the claims against her pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure on the ground of insufficiency of service of process. For the reasons set forth below, the defendants' motion will be granted.*fn3
The background facts that form the basis for this case are set forth in detail in this Court's prior Memorandum Opinion that resolved the Individual Defendants' Motion to Dismiss the initial complaint, and will only be repeated here to the extent necessary to resolve the pending motion. See Hatfill v. Ashcroft, 404 F. Supp. 2d 104, 106-109 (D.D.C. 2005).
This action was filed by Dr. Steven J. Hatfill ("Dr. Hatfill") against the United States Department of Justice ("DOJ"), the Federal Bureau of Investigation ("FBI") and several named and unnamed federal officials. Dr. Hatfill's initial four count complaint alleged violations of the First and Fifth Amendments of the United States Constitution, the Privacy Act, 5 U.S.C. § 552a, et. seq., (1999) and a DOJ regulation, 28 C.F.R. § 50.2. The individual defendants, former Attorney General John Ashcroft, Van A. Harp, Timothy Beres and Daryl Darnell earlier moved to dismiss Counts I, II, and IV of the complaint on the ground that Dr. Hatfill had failed to state claims against them upon which relief could be granted. This Court issued a Memorandum Opinion and Order on September 16, 2005, granting in part and denying in part the individual defendants' motion to dismiss. See Hatfill, 404 F. Supp. 2d at 121. Specifically, the Court granted in part the individual defendants' motion with respect to Counts I, and granted the motion entirely with respect to Counts II and IV. The consequence of the Court's ruling as to Count I was that having adequately pled a Fifth Amendment violation against the individual defendants, the plaintiff's demand for declaratory and injunctive relief survived their motion to dismiss but that his Bivens*fn4 component of this claim was dismissed because those allegations had to be pursued under the Privacy Act, 5 U.S.C. § 552. Id. at 116. Dr. Hatfill has now filed his First Amended Complaint, again alleging in Counts I and II identical violations of his Fifth and First Amendment rights of the United States Constitution against the individual defendants in both their personal and official capacities. Amended Complaint ("Amd. Compl.") at 55-57.*fn5 Dr. Hatfill has also added Tracy Henke to Count I and II as a defendant in both her personal and official capacities. Amd. Compl. at 5. And, in Count III of the First Amended Complaint Dr. Hatfill alleges violations of the Privacy Act by both the DOJ and the FBI. Id. at 57-58. Although this Court in its prior opinion dismissed the components Dr. Hatfill's two claims brought against the individual defendants for the alleged violations of his Fifth and First Amendment rights pursuant to Bivens, he has nonetheless included those components of the claims again in his First Amended Complaint "for the purpose of preserving the claims for appeal if any of his damages remain uncompensated after the trial of this matter." Amd. Compl. at 56-57.
As noted above, all of the individual defendants have moved to dismiss Dr. Hatfill's First Amended Complaint in its entirety pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Defs.' Mot. at 1, and defendant Henke has also moved for dismissal pursuant to Rule 12(b)(5). Id. The Bivens component of the claims alleging violations of Dr. Hatfill's First and Fifth Amendment rights that ware previously dismissed are again dismissed for the same reasons stated in the Court's September 16, 2005, Memorandum Opinion. See Hatfill, 404 F. Supp. 2d at 116-117, 119. And the same result befalls the Bivens component of these claims asserted against defendant Henke.*fn6 Thus, the remainder of this opinion will focus on the sustainability of Dr. Hatfill's claims for declaratory and injunctive relief sought against the individual defendants in their personal capacities.
To survive a motion to dismiss, made pursuant to Rule 12(b)(6), 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)). And, when reviewing such a motion, 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.
The individual defendants move to dismiss Hatfill's First Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim on which relief may be granted "to the extent that the plaintiff seeks relief from them in their individual capacities." Defs.' Mot. at 1.
They contend that "[a]s a matter of law, equitable relief for violations of federal rights is not available from government officials, current or former, in their individual capacit[ies]." Memorandum of Points and Authorities in Support of the Individual Defendants' Motion to Dismiss the Plaintiff's First Amended Complaint ("Defs.' Mem.") at 3. The individual defendants opine that the real party in interest is the government and contend that "Dr Hatfill's attempt to sue the individual defendants in their individual capacity for equitable relief fails as a matter of law because Dr. Hatfill seeks relief from improper parties." Id. at 5.
The defendants rely on Cmty. Mental Health Servs. of Belmont v. Mental Health and Recovery Bd. Serving Belmont, Harrison & Monroe Counties, No. 04-3587, 2005 WL 2233603, slip op. at 11 (6th Cir. Sept. 14, 2005); Ameritech Corp. v. McCann, 297 F.3d 582, 587 (7th Cir. 2002); Frank v. Relin, 1 F.3d 1317, 1327 (2nd Cir. 1993); Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989); and Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir. 1987), as support for their motion. Defs.' Mem. at 6. They contend that these cases "recognize that the government is the real party in interest in a suit for non-monetary relief and that a government employee's personal interest in the litigation does not extend beyond whether he is required to pay damages out of his own pocket." Defs.' Mem. at 6. Moreover, they posit "[a]n injunction or declaratory judgment may affect how [an individual] performs his official duties in the future, but a public servant has no legally cognizable personal interest in performing official duties in one fashion versus another." Id. Although the District of Columbia Circuit has not directly addressed the issue, other Circuits have concluded that there is no basis for suing a government official for declaratory and injunctive relief in his or her individual or personal capacity.
For example, in Feit v. Ward, the plaintiff brought suit against his two supervisors in their individual capacities alleging that his termination of employment for participating in an anti-spearfishing rally violated his First Amendment rights. Feit, 886 F.2d at 850. The plaintiff sought declaratory and injunctive relief, and also filed a Bivens claim for monetary damages. Id. Specifically he sought equitable relief in the form of a judgment declaring the defendants' policy prohibiting Forest Service employees form participating in spearfishing protests as violative of the First Amendment, as well as a permanent injunction prohibiting the defendants "from disciplining or discharging employees for exercising their First Amendment rights." Id. Although ...