United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
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.
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.
This Claim Presents a New Bivens Context
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 ...