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Winsome Packer v. the United States Commission On Security and Cooperation In Europe

February 14, 2012


The opinion of the court was delivered by: Barbara J. Rothstein United States District Judge

This matter is before the court on Defendant Fred Turner's Motion to Dismiss Plaintiff's Complaint [Docket No. 18; Filed July 8, 2011] and Motion of Defendant Alcee L. Hastings to Dismiss Counts III and IV of Plaintiff's Complaint [Docket No. 19; Filed July 9, 2011] (collectively, the "Motions").*fn1 After receiving an extension of time, Plaintiff filed a single response in opposition to both Motions on August 12, 2011 [Docket No. 21]. Defendants filed separate replies on September 2, 2011 [Docket Nos. 22 & 23]. The Motions have been fully briefed and are ripe for resolution. Having considered the relevant pleadings and applicable law,

IT IS HEREBY ORDERED that the Motions are GRANTED and Defendants Alcee L. Hastings and Fred Turner are DISMISSED as parties to this action.

I. Background

Plaintiff is an employee of the United States Commission on Security and Cooperation in Europe (the "Commission"). On March 7, 2011, she filed the present lawsuit alleging that during her employment with the Commission, she was subjected to sexual harassment and later retaliated against because she complained about her treatment. Specifically, Plaintiff contends that "from January 2008 through February 19, 2010, [she] was forced to endure unwelcome sexual advances, crude sexual comments, and unwelcome touching by [Defendant] Hastings." Complaint [#1] at 2. Defendant Hastings is a member of the United States House of Representatives from the state of Florida who, in that capacity, served as the Chairman of the Commission from January 2007 through at least January 2011. Id. at 3. Plaintiff alleges that when she complained about Defendant Hastings' conduct to her immediate supervisor and the Commission Staff Director, Defendant Turner, Defendants Hastings and Turner "began to retaliate against [her,] including making threats of termination . . . ." Id. at 2.

Although there are several claims asserted exclusively against the Commission, the present Motions seek dismissal only of Claim III (Defendant Hastings) and Claim IV (Defendants Hastings and Turner). Claim III alleges that Defendant Hastings engaged in sexual harassment in the workplace in violation of Plaintiff's Fifth Amendment equal protection rights. Id. at 30-31. Claim IV alleges that Defendants Hastings and Turner retaliated against Plaintiff in violation of her First and Fifth Amendment rights. Id. at 31-32. While the claims against the Commission are derived from the Congressional Accountability Act ("CAA"), 2 U.S.C. § 1301 et seq.,*fn2 Claims III and IV are brought pursuant to Bivens v. Six Unknown Agents of Fed'l Bureau of Narcotics, 403 U.S. 388 (1971) and are asserted on constitutional grounds against the individually-named Defendants in their individual capacities.

Defendants Hastings and Turner separately move to dismiss these claims. Both Defendants argue that the CAA precludes Bivens liability in the context of this action. Turner's Motion [#18] at 8-13, 16-21; Hastings' Motion [#19] at 19-38.*fn3 Plaintiff's combined opposition to the Motions is largely unresponsive to question of whether a Bivens remedy exists, except to raise a concern that the CAA is not applicable here and, therefore, a Bivens remedy should not be foreclosed. See Opposition [#21] at 3-5.

II. Standard of Review

The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true. In re Interbank Fund Corp. Sec. Litig., 668 F. Supp. 44, 47-48 (D.D.C. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, ambiguities must be resolved in favor of the plaintiffs, giving them the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in his complaint. See id.

To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts, taken as true, to provide "plausible grounds" that discovery will reveal evidence to support the plaintiff's allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct." Aschroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1940, 1949 (2009). Moreover, "[a] pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted).

III. Analysis

Although Defendants advance several compelling arguments in support of their Motions, the dispositive question is whether Plaintiff has stated any compensable constitutional claims. A Bivens cause of action is a judicially created avenue for individuals to seek damages from federal officials for constitutional violations of civil rights. Recognized in 1971 as a way to redress alleged Fourth Amendment violations, Bivens has been extended to encompass other constitutional violations in only a discrete handful of instances since that time. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (noting that "[i]n 30 years of Bivens jurisprudence we have extended its holding only twice").

In determining whether a Bivens remedy exists, the court considers (1) whether Congress has precluded the remedy "by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself"; or (2) "[i]n the absence of such a congressional directive," whether there are "any special factors counseling hesitation before authorizing a new kind of federal litigation." Bush v. Lucas, 462 U.S. 367, 378 (1983); see also Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (describing the first factor as "the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages"). Defendant Hastings contends that the CAA is the exclusive remedy to redress discrimination claims brought by Commission employees. In addition, both Defendants argue that special factors exist to prevent extension of Bivens to the present claims.

As a preliminary matter, the court addresses Plaintiff's contention that the availability of the CAA to challenge the sexual harassment/retaliation in question is disputed in this litigation. Opposition [#21] at 3. Apparently, this contention is based on a position taken by the Commission during the pre-litigation stage utilized to address Plaintiff's grievances. See id. at 4-5. Notably absent, however, is any assertion that the applicability of the CAA is actually at issue here. First, Plaintiff pleads her claims against the Commission pursuant to the CAA. It is disingenuous for her to question now whether the CAA applies. Second, and more importantly, the Commission concedes the application of the CAA in its Answer. Commission's Answer [#17] at 2 ("Defendant does not contest jurisdiction"; "Defendant does not contest Plaintiff's status as a covered employee"; "Defendant does not contest its status as an employing office"). Plaintiff's alleged concern that dismissal of her Bivens claims may eventually deprive her of any remedy is simply baseless.

Considering the relevant factors articulated in Bush, the court finds that the applicability of the CAA to the conduct at issue forecloses Plaintiff's ...

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