COLLEEN KOLLAR-KOTELLY, District Judge.
This matter is before the Court on Defendants' Motion to Dismiss Amended Complaint.
Plaintiff, who describes herself as "a Compensated Disabled Veteran of the United States Air Force, an Air Traffic Controller, an Aerospace Engineer, a Federal Government Contract Specialist, and a former University Professor," Am. Compl. ¶ 14, served approximately 10 years in the Air Force prior to accepting a position "on September 9, 2002 to work as a Contract Specialist with the Air Force's 89 Contracting Squadron at Andrews Air Force Base" in Maryland, id. ¶ 26. The Air Force had awarded plaintiff a recruitment bonus of $9,400 in light of her engineering experience. Id. ¶ 27. She soon learned that a manager, Ellen Siozon, "was responsible for her receiving the recruitment bonus," and within months Ms. Siozon "was demanding funds from the recruitment bonus and making threats of firing [plaintiff]" if she did not pay a kickback. Id. "Reluctantly [plaintiff] gave ... Siozon $2,000 in cash as ... requested," only to have Ms. Siozon demand additional funds. Id. Plaintiff apprised the Air Force Office of Special Investigation ("AFOSI") of the situation, and AFOSI in conjunction with the Federal Bureau of Investigation ("FBI") "launched an investigation" during which plaintiff was asked "to work with them []undercover" by wearing a recording device. Id. AFOSI and FBI agents arrested Ms. Siozon in September 2003, id., and "[t]he government tried the extortion case to the Baltimore Federal Court... in 2004," id. ¶ 3. Plaintiff testified at the trial. See Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss Am. Compl. ("Defs.' Mem.") at 2 n. 4. The government "lost the case," and the individual who informed plaintiff of the outcome of the trial "was noticeably disappointed, seem[ed] very unsatisfied and bitter based on the tone of voice," in plaintiff's estimation. Am. Compl. ¶ 3.
Plaintiff's participation in the Siozon matter apparently was the origin of her subsequent woes, all of which she attributes to the United States Attorney General and his subordinates who, "[t]o achieve their political and public relation goals and public image," have "trampled on [plaintiff's] constitutional rights and their own rules." Id. ¶ 4.
According to plaintiff, the United States Department of Justice ("DOJ") and the
To further this effort, the FBI allegedly is "monitoring her telephone and computer," and in some cases, the agency has intercepted email messages between plaintiff and prospective employers. Id. ¶ 47. Plaintiff alleges that, even though she "changed her telephone number six ... times between July 2011 and September 2011, changed her e-mail address twice, and created 3 other free e-mail accounts, the FBI found the changes and continued to monitor them all." Id. ¶ 48. In addition, since April 2004 "electronic eavesdropping equipment" has been installed "on her private residence phone line and on her personal computers" for the "sole purpose" of "harass[ing her] by invading the most personal and private sphere of her life." Id. ¶ 9.b. Surveillance is not always hidden. According to plaintiff the "so-called []surveillance [is] so overt, extensive, and intrusive as to constitute deliberate harassment," and defendants have gone so far as enlisting the assistance of Harris County, Texas officers "who are constantly parking in front of [plaintiff's] home," resulting in her "mental home arrest." Id. ¶ 9.c.
When plaintiff sought "to clear her name publicly and to bring light to the government's abuses ... [t]hey sought to chill any future efforts by [plaintiff] to speak out, defend herself, or complaint [sic]." Id. ¶ 44. These actions allegedly violated her "First Amendment right to free speech and to petition her government for redress of grievances."
For these alleged violations of rights protected by the First and Fifth Amendments to the United States Constitution, and for alleged violations of the Privacy Act and 28 C.F.R. § 50.2, plaintiff demands
In addition to the FBI and the DOJ, see Am. Compl. ¶¶ 24-25, plaintiff brings this action against United States Attorney General Eric Holder, Jr., FBI Director Robert Mueller, FBI Special Agents Gregorio Miceli, Patrick Kelley, Stephen Kelly, and Monique Bookstein, the DOJ's Inspector General, unknown FBI Special Agents and DOJ employees, and Gregory Giaccio, in both their official and individual capacities, id. ¶¶ 15, 17-23. Defendants move to dismiss the amended complaint on several grounds, arguing primarily that the pleading fails to state claims upon which relief can be granted.
The Federal Rules of Civil Procedure require that a complaint contain "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Rule 12(b)(6) tests the legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). In considering such a motion, the "complaint is construed liberally in the plaintiff['s] favor, and [the Court] grant[s] plaintiff[] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (citation omitted). However, "the [C]ourt need not accept inferences drawn by plaintiff[] if such inferences are unsupported by the facts set out in the complaint." Id. The Court need not accept "a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or "naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks, brackets and citation omitted); see Mendez Internet Mgmt. Servs., Inc. v. Banco Santander de Puerto Rico, 621 F.3d 10, 14 (1st Cir.2010) (stating that Twombly and Iqbal standards require the court to "screen[] out rhetoric masquerading as litigation").
The complaint must do more than set forth than "`labels and conclusions' or `a formulaic recitation of the elements of a cause of action....'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible when the pleaded factual content "allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly,
Plaintiff brings her claims for injunctive and declaratory relief against the individual defendants in their both their individual and official capacities. See Am. Compl. ¶¶ 64, 68, and 76. To the extent that she also may intend to bring any claim for damages against either these defendants in their official capacities or against a federal government agency, the claims are barred under the doctrine of sovereign immunity. A suit against a federal official in his official capacity is treated as a suit against the government itself. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Such consent may not be implied, but must be "unequivocally expressed." United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The United States has not waived its sovereign immunity for constitutional tort claims. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (stating that sovereign immunity precludes damage claims against the United States government for constitutional violations brought under the Federal Tort Claims Act). In addition, sovereign immunity extends to governmental agencies such as the DOJ and to their employees where such employees are sued in their official capacities. See id. at 483-86, 114 S.Ct. 996. "Sovereign immunity is jurisdictional in nature," id. at 475, 114 S.Ct. 996, and absent a waiver of sovereign immunity, the court lacks subject matter jurisdiction to entertain plaintiff's claims for money damages against the FBI, the DOJ, or against the federal government officials sued in their official capacities. See id.; Clark v. Library of Congress, 750 F.2d 89, 101-02 (D.C.Cir.1984); Meyer v. Reno, 911 F.Supp. 11, 18 (D.D.C.1996).
Plaintiff brings this action in part under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against the individual defendants in their individual capacities, see Am. Compl. ¶¶ 64, 68 and 76. "A Bivens action is the federal analog to suits brought against state officials under ... 42 U.S.C. § 1983."
However weak, vague and unsupported the allegations may be, plaintiff manages to allege the Attorney General's personal involvement in coordinated efforts to "intentionally trample[] on[plaintiff's] constitutional rights" by effecting her termination from six jobs, Am. Compl. ¶ 4; see id. ¶¶ 63, 67, and by "fail[ing] to eliminate, condemn, or seriously investigate the violations," id. ¶ 6. Her assertion that the remaining defendants participated in this activity, id. ¶ 7; see id. ¶¶ 59, 63, 67, is weaker still. These meager accomplishments are meaningless, however, in light of the critical deficiency of plaintiff's complaint: its utter failure to support its broad assertions of constitutional violations with factual allegations.
Plaintiff's complaint is replete with her own opinions and beliefs, labels and legal conclusions; it offers few, if any, facts which might even remotely support her claims. For example, plaintiff alleges that defendants took steps "to chill any future efforts by [plaintiff] to speak out, defend herself, or complaint [sic]," in violation of her "First Amendment right to free speech and to petition her government for the redress of grievances," Am. Compl. ¶ 44, yet she fails to indicate the matter about which she was speaking, who among the defendants committed the alleged violation, or the activities from which she refrained as a result of defendants' conduct. Similarly, plaintiff broadly alleges the existence of "illegal defamation of character campaign waged by the FBI," id. ¶ 47, without alleging any facts tending to link particular defendants' conduct to plaintiff's unsuccessful search for employment or to any other harm allegedly resulting therefrom. And her allegations of conspiracy, surveillance, and belief "that the DOJ and the FBI encouraged her mortgage company ... to wrongfully foreclose[] on her house [in] Cypress, Texas," Id. ¶ 50, qualify as "patently insubstantial." Tooley v. Napolitano, 586 F.3d 1006, 1010 (D.C.Cir.2009). In short, plaintiff's complaint is exactly the type of pleading that Twombly and Iqbal are intended to address. See Anders v. Dolgencorp, LLC, No. 5:11 CV 2098, 2011 WL 6338837, at *3 (N.D.Ohio Dec. 19, 2011) (finding that complaint which "provides no additional facts" to support a claim for intentional infliction of emotional distress under Ohio law "is precisely the type of pleading that Twombly and Iqbal addressed as insufficient"); Watson v. V.A. Hosp., No. 3:09-1140, 2010 WL 3907336, at *1 (M.D.Tenn. Aug. 27, 2010) (recommending dismissal of complaint where "Plaintiff has provided absolutely no facts," and instead "simply sued Defendant for `violation' of a federal statute and `violations' of a number of state statutes," while "provid[ing] no facts whatsoever to support these legal allegations and conclusions"), adopted, 2010 WL 3878916 (M.D.Tenn. Sept. 29, 2010). This complaint is subject to dismissal because it simply "has not nudged [plaintiff's] claims... across the line from conceivable to plausible," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (brackets, internal quotation marks and citation omitted); see Gary v. Pa. Human Relations Comm'n, No. 10-1844, 2012 WL 931082, at *5 (E.D.Pa. Mar. 20, 2012) (dismissing Bivens claim against federal employee where complaint's "allegations are ..., at best, boilerplate allegations
Even if plaintiff had successfully alleged Bivens claims against the individual defendants, qualified immunity would bar the claims. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court set forth a two-step analysis for resolving government officials' qualified immunity claims. First, the Court decides "whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right." Id. at 201, 121 S.Ct. 2151. If the plaintiff satisfies this first step, the Court then decides whether the right at issue was clearly established at the time of the defendant's alleged misconduct. Id. The sequence of this analysis no longer is mandatory, and the Court may "exercise [its] sound discretion in deciding which of the two prongs ... should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236, 129 S.Ct. 808.
According to plaintiff, defendants "violated [her] Fifth Amendment rights to liberty and property without due process of law." Am. Compl. ¶ 59. Defendants allegedly accomplished this task by "leak[ing] false and defamatory" information to then-current and prospective employers, thus "intentionally and maliciously interfere[ing] with [plaintiff's] jobs ... which resulted in her firing." Id. ¶ 60. In addition, defendants allegedly "implicat[ed] her without evidence," thus preventing her from "obtaining future employment in her field of contracting, air traffic control, and aerospace engineering." Id. ¶ 61.
The deficiencies of the complaint are again apparent in this context. The complaint simply fails to articulate a violation of a right protected by the Fifth Amendment. There are no factual allegations to identify the particular individuals responsible, to indicate what information these defendants allegedly disclosed, to state whether the information was false, and to link the injuries plaintiff allegedly sustained to the "leaks." Furthermore, there simply is no cognizable "constitutional claim on the theory that ... actions, undertaken with malice, deprived [plaintiff] of a `liberty interest' secured by the Fifth Amendment to the United States Constitution" in the circumstances of this case. Siegert v. Gilley, 500 U.S. 226, 233-34, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). At most, the individual defendants made statements which defamed plaintiff and harmed her reputation in the eyes of then-current or prospective employers. "Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation." Id.
Plaintiff alleges that defendants "sought to punish and retaliate against [her] for exercise of her First Amendment rights." Am. Compl. ¶ 67. A plaintiff states a First Amendment retaliation claim when "(1) [she] has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by [her]exercise of that right; and (3) defendants' actions effectively chilled the exercise of [her] First Amendment right." Hatfill v. Ashcroft, 404 F.Supp.2d 104, 117-18 (D.D.C.2005) (citation omitted). Even if the Court were to assume that plaintiff has a protected First Amendment interest and exercised it, her complaint includes no factual allegations to identify which of the defendants violated that interest, to specify the manner in which the alleged retaliatory acts occurred, or to describe how the alleged acts of retaliation chilled further exercise of that right. It cannot be said, for example, that defendants' actions so chilled her exercise of First Amendment rights that she refrained from contacting DOJ and FBI officials in person, see Am. Compl. ¶¶ 42, 49, or refrained from sending letters, see id. ¶ 49, or so impacted her that she could not pursue her claims in court. "Where a party can show no change in [her] behavior, [she] has quite plainly shown no chilling of [her] First Amendment right to free speech." Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.2001) (citation omitted).
"The [Privacy] Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements." Doe v. Chao, 540 U.S. 614, 618, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004). Generally, the Privacy Act prohibits an agency from "disclos[ing] any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." 5 U.S.C. § 552a(b). There are twelve exceptions to this rule, however. See 5 U.S.C. § 552a(b)(1-12). A claim arising from the improper disclosure of information has four elements:
Doe v. U.S. Dep't of Justice, 660 F.Supp.2d 31, 44-45 (D.D.C.2009) (quoting Logan v. Dep't of Veterans Affairs, 357 F.Supp.2d 149, 154 (D.D.C.2004)). An individual may file a lawsuit against an agency for injunctive relief and monetary damages if an improper disclosure was willful or intentional and adversely affected the individual. 5 U.S.C. § 552a(g)(1); see Logan, 357 F.Supp.2d at 154.
Plaintiff "believes that [the] FBI and [the] DOJ both maintain, with respect to the Extortion investigation at Andrews Air Force Base, 2003, a `system of records' ... pertain[ing] to [her]," Am. Compl. ¶ 71, and have disclosed such records without her consent, id. ¶ 72, causing her "an adverse effect," namely the loss of employment opportunities, damage to her "personal and professional reputation," and "extreme mental and emotional distress," id. ¶ 73. The allegations of the complaint are so sparse and so conclusory that the Court cannot determine what information allegedly was disclosed. It is unclear whether this information is a "record," defined under the Privacy Act as "any item ... about an individual that is
It is the policy of the DOJ to refrain from "furnish[ing] any ... information for the purpose of influencing the outcome of a defendant's [criminal] trial, nor shall personnel of the [DOJ] furnish any ... information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial." 28 C.F.R. § 50.2(b)(2). Similarly, DOJ personnel "shall not during ... [civil] litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial and which relates to" evidence, the credibility of witnesses, or opinions on the merits of a claim or defense. 28 C.F.R. § 50.2(c).
Plaintiff alleges that defendants "have knowingly, willfully, and maliciously violated" these provisions, which are designed to "prohibit[ ] public disclosures that have injured" plaintiff. Am. Compl. ¶ 76. This claim must fail, however, because there is no private right of action under this regulation. See Hatfill, 404 F.Supp.2d at 120-21. By its own terms, 28 C.F.R. § 50.2 is an expression of agency policy setting forth "specific guidelines for the release of ... information" by DOJ personnel to news media in criminal and civil cases. Id. § 50.2(a). "Absent a clear indication of congressional intent to create a private right of action for the enforcement of this regulation, the Court can not [sic] impose one." Hatfill, 404 F.Supp.2d at 121.
Plaintiff's Amended Complaint fails to state a claim upon which relief can be granted and, accordingly, defendants' motion to dismiss will be granted. An Order accompanies this Memorandum Opinion.
Plaintiff's last employment, as a Contract Specialist assigned to a United States Army Area Support Group ("ARG") in Kuwait, began in September 2009. Id. ¶ 41. Her "exceptional" performance, however, "was overshallowed [sic] by the false and defamatory information from FBI employee(s)" who caused plaintiff to suffer "inhumane, disrespectful, and unfair treatment and abuse from management." Id. At this point, plaintiff "contacted ... FBI Special Agent ... Miceli on November 23, 2010, after receiving" a memorandum regarding her proposed termination. Id. ¶ 42. According to plaintiff, Special Agent Miceli told her that he "would relocate her," but in making the request he told others "a completely different story and one that defamed her reputation." Id. In addition, during this time period Special Agent Miceli allegedly "asked [plaintiff] to go undercover with the FBI on Army contracts[] corruption[]," a request to which she "reluctantly agreed knowing that her phones (business and private) and computers (business and private) were being monitored." Id. She also "was being followed on a daily basis by the Army investigative staff." Id. Plaintiff ultimately "decided not to participate" in an investigation, id., a decision which allegedly resulted in "stepped up ... efforts to marginalize and discredit her." Id. ¶ 44.
According to plaintiff, she applied for positions with, but was not hired by, the Defense Logistics Agency, USAID, the Departments of State, Education, Homeland Security, Housing and Urban Development, ARAMCO Services, KBR, Inc., Marathon Oil, and other federal agencies and private corporations. See Am. Compl. ¶ 47. In some cases, according to plaintiff, she was unable to communicate with prospective employers because of the FBI intercepted email messages. See id.
