Packer v. United States Commission on Security and Cooperation in Europe , 843 F. Supp. 2d 44 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WINSOME PACKER,
Plaintiff,
v. Civil Action No. 11-cv-00485 (RMC)
THE UNITED STATES COMMISSION ON
SECURITY AND COOPERATION IN
EUROPE,
ALCEE L. HASTINGS, and
FRED TURNER,
Defendants.
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”).1 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.
1
By agreement between District Judge Rosemary M. Collyer and District Judge Barbara J.
Rothstein, W.D. Wash., sitting by designation, the Motions have been transferred to this court for
resolution. Unless otherwise notified, the matter remains assigned to Judge Collyer.
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
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Accountability Act (“CAA”), 2 U.S.C. § 1301 et seq.,2 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 19-38.3 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.2
The CAA was enacted by Congress to address, among other things, employment discrimination
and retaliation allegations brought by congressional employees. See 2 U.S.C. §§ 1311, 1317.
Employees of the Commission are treated as congressional employees for purposes of application
of the Act. See 2 U.S.C. § 1301(3)(A), (B); 22 U.S.C. § 3008(d).
3
In addition, Defendants argue that even if a Bivens remedy is available, Plaintiff’s claims against
them lack sufficient specificity to survive dismissal. The court need not reach this issue.
3
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
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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.
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Considering the relevant factors articulated in Bush, the court finds that the
applicability of the CAA to the conduct at issue forecloses Plaintiff’s Bivens claims under
either consideration.
A. Exclusive Nature of the CAA
First, at least one court in this District has recognized that the CAA “provides the
exclusive remedy by which legislative branch employees can bring a suit challenging
employment discrimination.” Adams v. U.S. Capitol Police Bd., 564 F. Supp. 2d 37, 40
(D.D.C. 2008). Although arguably dicta, this statement is clearly supported by the
language of the statute and the legislative history behind it. See, e.g., 2 U.S.C. §
1361(d)(1) (prescribing that “no person may commence an administrative or judicial
proceeding to seek a remedy for the rights and protections afforded by this [Act] except
as provided in this [Act]”); H.R. Rep. No. 103-650, pt. 1 (1994) (“Congressional
employees are prohibited from commencing judicial proceedings except as provided by
this Act.”); see also Hastings’ Motion [#19] at 13-15 (compiling similar preclusive
statements contained in legislative history of Act). The exclusive nature of the CAA is
arguably dispositive.
B. Comprehensive Remedial Scheme
Second, as noted above, “courts ‘must decline to exercise . . . discretion [to
recognize a Bivens remedy] where “special factors counsel[] hesitation” in doing so.’”
Gerlich v. DOJ, 659 F. Supp. 2d 1, 9 (D.D.C. 2009) (citations omitted). “One ‘special
factor’ that precludes creation of a Bivens remedy is the existence of a comprehensive
remedial scheme.” Wilson v. Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (citation
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omitted). Even if the CAA did not provide the exclusive judicial basis for relief, it is
clearly a comprehensive scheme which permits congressional employees to redress
discriminatory and retaliatory injuries sustained during employment. See, e.g., Hensley
v. Office of Architect of the Capitol, 806 F. Supp. 2d 86, 92-93 (D.D.C. 2011) (holding
that CAA, like its antecedent Title VII, is “an adequate, comprehensive procedural and
remedial scheme” barring a Bivens remedy); Tull v. Office of Architect of the Capitol,
806 F. Supp. 2d 80, 85-86 (D.D.C. 2011) (same).
Plaintiff’s citation to the Supreme Court’s decision in Davis v. Passman, 442 U.S.
228 (1979) is unavailing. Although the Court in Davis recognized the availability of a
Fifth Amendment Bivens claim to redress discrimination in the federal employment
context, this recognition predated passage of the CAA and, therefore, was founded on the
lack of any explicit statutory remedies addressing discrimination in that context. Id. at
248. Indeed, the Court recognized that its decision would be impacted by a congressional
act. Id.; see also Malesko, 534 U.S. at 70 (noting that holding in Davis was predicated on
the lack of “any alternative remedy for harms caused” (emphasis in original)). The
subsequent passage of the CAA effectively limits the precedential value of Davis in
today’s statutory landscape.4
4
Plaintiff’s citation to the Supreme Court’s decision in Wilkie v. Robbins is likewise
unpersuasive. See Opposition [#21] at 5. Although Plaintiff references the Court’s opinion in
support of the proposition that a Bivens remedy should exist unless a statutory provision
expressly precludes it, the holding in Wilkie does not support that characterization. Rather, the
Court declined to recognize a Bivens remedy although it found that the applicable law did not
“plainly answer no to the question whether [the plaintiff] should have it.” Wilkie, 551 U.S. at
554.
7
Regardless that Bivens and its early progeny subjected federal officials to
individual liability for specific constitutional violations, the Court’s “more recent
decisions have responded cautiously to suggestions that Bivens remedies be extended into
new contexts.” Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see also Iqbal, 129 S.
Ct. at 1948 (noting that “implied causes of actions are disfavored”). For example, in
Bush, the Supreme Court declined to extend Bivens to a First Amendment claim raised by
an Executive Branch employee because the conduct at issue was governed by various
legislation, executive orders, and detailed regulations. Bush, 462 U.S. at 368, 385.
Specifically, because “[f]ederal servants [in this context] are now protected by an
elaborate, comprehensive scheme that encompasses substantive provisions for forbidding
arbitrary action by supervisors and procedures – administrative and judicial – by which
improper action may be redressed,” the Court did not “permit a federal employee to
recover damages from a supervisor who ha[d] improperly disciplined him for exercising
his First Amendment rights.” Id. at 385, 390.
Clearly in this case, the comprehensive administrative and judicial measures
available to Plaintiff pursuant to the CAA preclude a Bivens remedy for the conduct
alleged to have been committed by Defendants Hastings and Turner. Therefore, the court
finds that Plaintiff has failed to state claims upon which relief can be granted against
these Defendants.
IV. Conclusion
For the reasons stated above, IT IS SO ORDERED:
(1) Defendant Turner’s Motion to Dismiss is GRANTED;
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(2) Defendant Hastings’ Motion to Dismiss is GRANTED; and
(3) The claims asserted against these Defendants are DISMISSED with
prejudice and the caption shall be amended accordingly.
Dated: February 14, 2012
__________________________________________________________________
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
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