UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE, : : Plaintiff, : Civil Action No.: 18-00004 (RC) : v. : Re Document No.: 18 : JEFFERSON B. SESSIONS, et al., : : Defendants. : MEMORANDUM OPINION

GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS COUNT V OF THE COMPLAINT

I. INTRODUCTION

The 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,

(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,

(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 prejudice.

II. BACKGROUND 1

Plaintiff 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.

According 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

1 When reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court accepts as true the factual allegations in the complaint and draws all reasonable inferences in the plaintiff’s favor. See, e.g., Ellis v. Holy Comforter Saint Cyprian Cmty.,

(D.D.C. 2016).

2 and commanded to “justify his salary and position with the federal government,” or face

termination.

¶¶ 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.

Plaintiff’s 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.

3 Plaintiff 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 Bivens claim.

III. ANALYSIS

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,

. 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,

(D.D.C. 2012) (quoting

Morton v. Bolyard,

(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,

(1994).

Of course, Bivens suits, by definition, seek money damages. See, e.g., Simpkins v. D.C.

Gov’t,

(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.,

(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

4 for constitutional torts in the form of Bivens claims. See, e.g., Cornish,

(citing Meyer,

); Burke v. Lappin,

(D.D.C. 2011).

Here, 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,

(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.

This 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.

“Dismissal 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,

(D.C. Cir. 2012) (alteration in

original) (quoting Belizan v. Hershon,

(D.C. Cir. 2006)). The standard for

dismissal with prejudice is therefore an “exacting” one.

It is met “only when a trial court

determines that the allegation of other facts consistent with the challenged pleading could not

possibly cure the deficiency.” Rollins v. Wackenhut Servs., Inc.,

(D.C. Cir.

2012) (quoting Firestone v. Firestone,

(D.C. Cir. 1996)).

This “exacting” standard is not satisfied here. The deficiency in Plaintiff’s complaint

arises entirely out of one sentence: “Each of Defendants . . . is sued in their official capacities

and were acting within the scope of their official duties.” Compl. ¶ 121. This error can be

5 corrected easily by asserting the claim against the Special Agents in their individual capacities;

no additional factual allegations are even necessary. Defendants, for their part, appear to

acknowledge this; they identify no reason why an amended complaint asserting the Bivens claim

against them in their individual capacities would be jurisdictionally problematic. Accordingly,

the Court only goes as far as dismissing Plaintiff’s claim without prejudice. Cf. Rudder,

(dismissing complaint without prejudice when plaintiffs had made a legally

erroneous concession in their opposition to the motion to dismiss, a deficiency that could be

cured by “simply filing the complaint anew”).

At this juncture, the Court does not, however, grant Plaintiff leave to file an amended

complaint, because the Court agrees with Defendants that doing so would be “premature.” Reply

to Pl.’s Opp’n to Mot. to Dismiss at 3, ECF No. 21. Under Local Civil Rules 7(i) and 15.1, a

motion for leave to file an amended pleading in this district must “be accompanied by an original

of the proposed pleading as amended.” Plaintiff has not yet done that here. The necessary

amendment to the complaint may be straightforward in this case, but the Court sees no reason to

excuse compliance with these rules. If and when Plaintiff files a motion to amend that complies

with the rules, the Court will weigh the merits of the motion and hear any arguments Defendants

have for denying it. For the time being, though, it is sufficient to dispose of Defendants’ motion

by dismissing Count V without prejudice. 2

2 Plaintiff should note that, if he does choose to amend his complaint to assert a claim against the Special Agent Defendants in their individual capacities, he will have to serve them individually by (1) delivering a copy of the summons and complaint to each of them personally; (2) leaving copies of these documents at their dwellings or usual places of abode; or (3) delivering the documents to agents authorized by law to receive service on the Defendants’ behalf. Cornish, 885 F. Supp. 2d. at 204; Fed. R. Civ. P. 4(e)(2). If Plaintiff seeks to sue the two Special Agents whose identities remain unknown, he will also likely need to pursue jurisdictional discovery. Strike 3 Holdings, LLC v. Doe,

, 37 (D.D.C. 2018). Furthermore, any renewed Bivens claim is likely to prompt a motion for summary judgment asserting a defense of

6 IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED IN PART.

Count V of the complaint is dismissed without prejudice. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: December 12, 2018 RUDOLPH CONTRERAS United States District Judge

qualified immunity, see, e.g., Williamson v. Cox,

(D.D.C. 2013), which, if denied, can be immediately appealed, Plumhoff v. Rickard,

, 771–72 (2014). All of this will further delay this case, which, despite having been filed a year ago, has not progressed beyond the pleading stage. Given that Plaintiff has not reported for work in over three years and was terminated over two years ago, further delay may not be in his best interest.

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