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Storms v. Shinseki

United States District Court, District of Columbia

August 6, 2018

Derrick Storms, Plaintiff,
v.
Eric K. Shinseki, et al., Defendants.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN UNITED STATES DISTRICT JUDGE.

         The Plaintiff, Derrick Storms, seeks damages from several former high-level officials at the U.S. Department of Veterans Affairs. He claims that these officials violated his First Amendment rights by persuading a private group-the Veterans of Foreign Wars-to terminate his volunteer relationship in response to Mr. Storms writing an article full of damning accusations against the Department. But the Supreme Court has not authorized a suit for damages based on the First Amendment and warns that extending such remedies to new contexts is “a disfavored judicial activity.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1848 (2017) (internal quotation marks and citation omitted). The Court declines to create the remedy that the Plaintiff seeks, because authorizing damages for this conduct raises complicated policy questions that Congress-not the Judiciary-is equipped to answer. The Defendants' Motion to Dismiss will therefore be granted.

         I. BACKGROUND

         On March 6, 2014, Mr. Storms published an article entitled “How veterans can fight back against VA abuse, ” on the Daily Caller website. Compl. ¶ 11, Ex. 1.[1] The article alleged that to meet performance goals tied to bonuses, VA officials had been systematically destroying veterans' disability claims, thereby artificially reducing the backlogs. Id. Ex. 1. It called for veterans to sue agency officials for damages, including then-current Secretary Eric Shinseki, whom Mr. Storms blamed for helping to create a corrupt agency culture. Id. The piece quickly went viral. Compl. ¶ 12. Mr. Storms-a former U.S. Marine-was then serving as the Vice-Legislative Chairman for the Veterans of Foreign Wars, New York Department (VFW-NY), and the article identified him as such. Id. ¶¶ 5, 14, Ex. 5.

         That night, Defendant Kevin Secor-the VA's Veterans Service Organizations Liaison officer, Compl. ¶ 8-exchanged emails with the Executive Director of the national Veterans of Foreign Wars organization, Bob Wallace. Id. ¶ 15, Ex. 5. Mr. Secor asked Mr. Wallace if he knew that the article was going to be published, id. Ex. 5, and when Mr. Wallace assured him that “[t]his is not the VFW position, ” id. Ex. 6, Mr. Secor told him that “any help would be appreciated, I know this will be a topic at tomorrow's stand-up.” Id. Ex. 7.

         The next day, both the VA and the VFW moved quickly. Mr. Secor sent an email asking Raymond Kelley-another VFW official- “did you see what your Legislative Vice Chairman wrote in the Daily Caller?” Id. Ex. 10. Mr. Storms alleges that Mr. Secor met with Secretary Shinseki, Defendant Jose Riojas (then the VA's Assistant Secretary for Operations, Security, and Preparedness), and “John/Jane Does 1-100.” Id. ¶ 21. These individuals jointly resolved to “discredit and defame” Mr. Storms and terminate him from his VFW-NY position, to undermine the op-ed, deter similar articles from Mr. Storms or others, and protect Secretary Shinseki. Id. Mr. Secor also allegedly called Mr. Wallace and demanded that the VFW publish a rebuttal article and end Mr. Storms' status as a Vice Legislative Chairman. Id. ¶ 25. The VFW's Commander-in-Chief emailed the Daily Caller that same day with a proposed rebuttal piece, id. Ex. 12, and Mr. Wallace forwarded the email to Assistant Secretary Riojas and Mr. Secor. Id. Ex. 13.

         Three days later, VFW-NY removed Mr. Storms from his position as Legislative Vice Chairman, id. Ex. 15 and asked him to write a letter of apology for his article. Id. Ex. 16. Although Mr. Storms does not allege that he was salaried, the termination meant that he would not be reimbursed for future VFW travel. Id. Ex. 17. Because of his termination, Mr. Storms allegedly suffered various injuries, including chilled speech, emotional damages, lost employment opportunities within the VFW, and reputational harm.

         Mr. Storms then sued Secretary Shinseki, Assistant Secretary Riojas, Mr. Secor, and 100 unidentified “John/Jane Does, ” all in their individual capacities. Compl. 1-2. His Complaint's only count seeks damages for retaliation against First Amendment-protected speech, invoking the Supreme Court's decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 (1971). Id. at 7-8. The named Defendants moved to dismiss, noting that their legal arguments would also apply to the unidentified Defendants as well. Mot. Dismiss 1, n.1.

         II. LEGAL STANDARDS

         To avoid dismissal under Fed.R.Civ.P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would ‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration omitted) (quoting Iqbal, 556 U.S. at 678). A court must “draw all reasonable inferences from those allegations in the plaintiff's favor, ” but not “assume the truth of legal conclusions.” Id. “In determining whether a complaint fails to state a claim, [a court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

         III. ANALYSIS

         A. This Claim Presents a New Bivens Context

         Because the Complaint's only count relies on Bivens, a brief account of that case is in order.

In Bivens, the Supreme Court held that federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures could be held accountable for monetary damages without explicit statutory authorization for such damages. Before Bivens, only state officials who violated individuals' constitutional rights could be liable for money damages, see 42 U.S.C. § 1983; Congress has not enacted a similar statutory provision for federal officials. Since Bivens, the so-called implied cause of action for a constitutional violation has only been recognized by the Supreme Court in two other contexts: the Fifth Amendment's due process clause for an ...

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