United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART DEFENDANTS'
MOTION TO DISMISS COUNT V OF THE COMPLAINT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
pseudonymous Plaintiff in this case was an employee of the
Federal Bureau of Investigation (“FBI” or
“Bureau”) for twenty-five years until he was
fired in 2016. Alleging that his dismissal was the
culmination of a prolonged episode of disability
discrimination, Plaintiff has asserted a number of claims
against three FBI Special Agents and the Attorney General of
the United States. Among those claims is one brought against
the Special Agent Defendants seeking money damages for an
alleged Fourth Amendment violation pursuant to Bivens v.
Six Unknown Agents of Federal Bureau of Nacrcotics, 403
U.S. 388 (1971). Presently before the Court is the Special
Agents' motion under Federal Rule of Civil Procedure
12(b)(1) to dismiss this Bivens claim with prejudice
for lack of subject matter jurisdiction. According to the
Special Agents, Plaintiff asserts his Bivens claim
against them in their official capacities, which entitles
them to sovereign immunity. This contention is correct;
Plaintiff has in fact sued the Special Agents in their
official capacities, and it “[i]t is well established
that Bivens remedies do not exist against officials
sued in their official capacities, ” Kim v. United
States, 632 F.3d 713, 715 (D.C. Cir. 2011). For the
reasons stated below, however, the Court concludes it is not
appropriate to dismiss Plaintiff's claim with
prejudice at this juncture, as the deficiency with
Plaintiff's complaint can possibly be cured by asserting
the claim against the Special Agents in their individual
capacities. The Court therefore grants the Special
Agents' motion in part and dismisses the claim without
suffers from Asperger's Syndrome, Acute Stress Disorder,
Panic Disorder, post-traumatic stress disorder
(“PTSD”), and anxiety. Compl. ¶ 5, ECF No.
1. Until he was fired in 2016, he worked for the FBI as a
Personnel Security Specialist responsible for processing
requests for visitor access to FBI facilities. Id.
¶¶ 12, 83. He alleges that beginning in early 2015,
he attended meetings and other Bureau functions where FBI
employees ridiculed, threatened, and falsely accused him of
violating Bureau procedures. Id. ¶¶ 14-19.
As a result of this harassment, Plaintiff started
experiencing panic attacks, which required him to take
multiple sick leaves during the summer and fall of 2015.
See Id. ¶¶ 20, 25.
to Plaintiff, he submitted the necessary medical records to
demonstrate the need for these absences. Id. ¶
30. Yet he alleges that when he would return from his periods
of leave, FBI employees would “treat [him]
differently, unfairly, and single him out because of the
time he took off.” Id. ¶ 21. This all
apparently came to a head in November 2015, when Plaintiff
came back from a period of leave to find that he had been
constructively demoted and would be denied access to
mandatory training. Id. ¶¶ 26-30. At two
separate meetings that month, Plaintiff also alleges that he
was confronted about the legitimacy of his medical absences
and commanded to “justify his salary and position with
the federal government, ” or face termination.
Id. ¶¶ 30-31. These confrontations caused
Plaintiff to have another panic attack, which required
paramedics to take him to the hospital and led to the
diagnoses of additional health issues that kept him out of
work indefinitely while he received treatment. Id.
¶ 41. This prolonged absence continued until November
2016, when the FBI officially terminated his employment.
Id. ¶¶ 70, 83.
complaint asserts various discrimination-related claims
arising out of this extended period of alleged mistreatment.
His Bivens claim, however-which is asserted as Count
V in the complaint-pertains specifically to the second of the
November 2015 meetings with FBI employees. As alluded to
above, during that meeting, Plaintiff suffered a panic attack
that ultimately required medical attention. Plaintiff alleges
that, before paramedics took him to the hospital, he sought
access to his personal cell phone, on which he had a
“calming app” designed to soothe the panic
attack. Id. ¶ 36. Because Plaintiff worked in a
Secure Classified Information Facility (“SCIF”),
he did not have his personal phone with him during the
meeting, so he tried to exit the conference room.
Id. But he claims he was not permitted to leave.
Id. According to Plaintiff, Daniel Powers, who was
at the time the Section Chief of the FBI's Personnel
Security Division, instructed two unknown, armed FBI Special
Agents to “intimidate Plaintiff and to prevent him from
leaving the room of his own free will.” Id.
¶ 122. Plaintiff further alleges that Powers and the two
other Special Agents “prevented third parties,
including horrified co-workers” from “render[ing]
him aid, or bring[ing] him his cell phone.”
Id. These actions, Plaintiff claims, violated his
Fourth Amendment rights, as they amounted to “detaining
him without probable cause, and without [a] warrant.”
Id. ¶ 123.
asserts this Fourth Amendment Bivens claim against
Powers and the two unknown Special Agents. But the complaint
makes clear that these three Special Agent Defendants are
“sued in their official capacities.” Id.
¶ 121. Defendants therefore argue in this motion to
dismiss that they are entitled to sovereign immunity and that
the Court has no subject matter jurisdiction over the
Court has little trouble concluding that Defendants'
motion must be granted, at least in part. As noted above, the
law is clear that “Bivens remedies do not
exist against officials sued in their official
capacities.” Kim, 632 F.3d at 715. This is
because “[c]laims brought against federal officials in
their official capacities ‘are treated as if they were
brought against the federal government itself.'”
Cornish v. United States, 885 F.Supp.2d 198, 205
(D.D.C. 2012) (quoting Morton v. Bolyard, 810
F.Supp.2d 112, 115 (D.D.C. 2011)). And “[a]bsent a
waiver, sovereign immunity shields the federal government and
its agencies from suit[s]” for money damages. FDIC
v. Meyer, 510 U.S. 471, 475 (1994).
course, Bivens suits, by definition, seek money
damages. See, e.g., Simpkins v. D.C.
Gov't, 108 F.3d 366, 368 (D.C. Cir. 1997) (“A
Bivens suit is an action against a federal officer
seeking damages for violations of the plaintiff's
constitutional rights.”). Generally, they are brought
against federal officers in their individual capacities,
which does not implicate the government's sovereign
immunity. See Clark v. Library of Cong., 750 F.2d
89, 103 (D.C. Cir. 1984). But, in light of the principles
laid out above, if a Bivens claim is asserted
against federal officers in their official capacities, it
must be treated as a claim for money damages against the
federal government itself, barred by the government's
immunity, unless the government has waived immunity. And as
numerous courts have held, the government has made no such
waiver for constitutional torts in the form of
Bivens claims. See, e.g., Cornish,
885 F.Supp.2d at 205 (citing Meyer, 510 U.S. at
484); Burke v. Lappin, 821 F.Supp.2d 244, 248
Plaintiff's complaint explicitly states that the three
Special Agent Defendants are sued in their official
capacities. See Compl. ¶ 121. Thus, the
Bivens claim is barred by sovereign immunity, and
the Court lacks jurisdiction over the claim. See Jackson
v. Bush, 448 F.Supp.2d 198, 200 (D.D.C. 2006)
(“[A] plaintiff must overcome the defense of sovereign
immunity in order to establish the jurisdiction necessary to
survive a Rule 12(b)(1) motion to dismiss.”). The claim
must be dismissed.
conclusion does not end the Court's inquiry, though. In
their motion, the Special Agent Defendants ask the Court to
dismiss the Bivens claim with prejudice.
Plaintiff, on the other hand, has requested that the claim be
dismissed without prejudice and with leave to amend the
complaint to assert a claim against the Special Agents in
their individual capacities.
with prejudice is the exception, not the rule, in federal
practice because it ‘operates as a rejection of the
plaintiff's claim on the merits and [ultimately]
precludes further litigation of them.'” Rudder
v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012)
(alteration in original) (quoting Belizan v.
Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006)). The
standard for dismissal with prejudice is therefore an
“exacting” one. Id. It is met
“only when a trial court determines that the allegation
of other facts consistent with the challenged pleading could
not possibly ...