UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
STACEY A. KITTNER, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1245 (GK)
)
ROBERT M. GATES, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff Stacey A. Kittner brings this action under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq., against Defendant Robert M. Gates in his official capacity as
Secretary of Defense. Kittner also alleges violations of her Fifth
Amendment rights 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 several Department of Defense employees sued in
their individual capacities. The individually sued Defendants
include Deborah Monroe, Deputy Chief, Directorate for Analysis,
Office of Counter-Proliferation Technology (“CPT”), Defense
Intelligence Agency (“DIA”); Col. William Russel Strosnider, Chief,
Operating Base National Capitol Region (“OBNCR”), DIA; Capt.
William S. Gieckel, Acting Chief, OBNCR; Scott Darren LaCoss, Chief
of Controlled Operations, OBNCR; Brad Ahlskog, Division Chief, CPT;
and Claudia Caslow, Korean Team Chief, CPT.
This matter is presently before the Court on Defendants’
Motion to Dismiss in Part [Dkt. No. 8] pursuant to Federal Rules of
Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6)1 and Defendants’
Motion to Stay Discovery [Dkt. No. 21]. Upon consideration of the
Motion, Opposition, Reply, and the entire record herein, and for
the reasons set forth below, the Motion to Dismiss in Part is
granted, and the Motion to Stay Discovery is denied as moot.
I. BACKGROUND2
A. Facts
1. Plaintiff’s Allegations of Harassment,
Discrimination, and Retaliation
Kittner was hired by the DIA in 2004 as an Intelligence
Officer specializing in counter-proliferation issues.3 Pl.’s Opp’n
1
The Motion to Dismiss also alleges that Kittner violated
Fed. R. Civ. P. 12(b)(5) by failing to serve the Amended Complaint
upon Defendants Monroe, Strosnider, LaCoss, and Gieckel. However,
Defendants acknowledge that “the time in which service can be made
on these defendants [had] not yet expired” when the Motion was
filed. Defs.’ Mot. at 21 n.2. Because Plaintiff has since timely
served the Amended Complaint on all named Defendants, see Docket
Number 12, this argument is no longer viable.
2
For purposes of ruling on a motion to dismiss, the
factual allegations of the Complaint must be presumed to be true
and liberally construed in favor of the Plaintiff. Aktieselskabet
AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
2008). Therefore, the facts set forth herein are taken from
Plaintiff’s Amended Complaint unless otherwise noted.
3
Plaintiff had a substantial educational and professional
background before joining DIA. She earned a Bachelor of Science
from Rensselaer Polytechnic Institute and a Master of International
Affairs from Australian National University. In addition, she
participated in a Ph.D.-candidate program in geophysics at
California Institute of Technology and attended multiple nuclear
training, biological, and microbiology courses at the Department of
Energy and Defense Threat Reduction Agency. Kittner also worked for
at 2 n.3 [Dkt. No. 13]. In 2005, she was assigned to a three-year
rotation in the DIA’s OBNCR, which is located in Maryland. There,
Kittner served as a nuclear Subject Matter Expert, providing
scientific and technical expertise and support, primarily to OBNCR
Detachment 420. Am. Compl. ¶ 14 [Dkt. No. 2].
In November 2006, Kittner traveled to the Asia-Pacific region
on a five-day, two-person temporary assignment. The supervisor for
the operation was Major “Erich J.K.” (“Maj. K”), a Controlled
Operations Officer from the DIA Human Intelligence Office
(“DIA/HUMINT”) working in Detachment 420. Id. ¶ 17. Kittner and
Maj. K stayed in the same hotel, on Maj. K’s instructions, and she
was given a key to Maj. K’s suite. Id. ¶ 18.
Operational meetings were held in Maj. K’s suite on November
8, 9, and 10, 2006. Kittner was required to remain in the suite
with Maj. K after the meetings to finish work, as she needed to use
a computer with encryption software located there.
On the first night of the trip, while alone with Maj. K in his
hotel suite after finishing work, Kittner alleges that Maj. K made
sexual advances toward her, which she responded to by repeatedly
telling him “no”. Id. at 23. Kittner further alleges that Maj. K
drugged the wine that he poured for her that night, which caused
her to lose consciousness, and then raped her. Id. at ¶ 27. On each
BAE Systems, the Center for Defense Information, and Schlumberger
Wireline and Testing before joining DIA. Am. Compl. ¶ 5.
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of the following two nights, Maj. K again made advances, which
Plaintiff successfully rejected. Id. at ¶¶ 28-29. After returning
to the United States, Maj. K telephoned Kittner numerous times from
November 11 to 20, 2006, inviting her to dinner and suggesting they
meet to talk outside the office. She declined to meet him. Id. at
¶ 30.
The following week of November 13, 2006, Plaintiff reported
the incident to three female CPT managers at DIA headquarters,
including Defendant Deborah Monroe, Kittner’s reviewing officer at
OBNCR and her second-level supervisor. She also reported the
incident to Defendant William Russell Strosnider, her first-level
supervisor, on Friday, November 17, 2006. Strosnider discouraged
Kittner from going to the DIA’s Equal Opportunity (“EO”) office,
and suggested that he could conduct a “Commander’s Inquiry”
instead, which would “keep the matter within DIA/HUMINT.” Id. at ¶
33. He also instructed Kittner to continue working with Maj. K to
finish the project. Despite what he told Kittner, Strosnider never
conducted such an Inquiry, and in fact lacked the authority to do
so. Id. at n.4.
Later that month, Kittner also contacted the DIA’s EO office
to report Maj. K’s conduct during the trip. On December 12, 2006,
she submitted a memorandum to the EO office describing Maj. K’s
behavior, and gave a copy to Defendant Strosnider.
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After she reported Maj. K’s misconduct, Kittner alleges that
Defendants engaged in a number of retaliatory and discriminatory
acts. From November 2006 onward, a documented history of positive
comments and praise for her work ended, and was replaced with
continual criticism. Id. at ¶¶ 16, 45. She began to be treated in
an unprofessional manner, including being yelled at by Defendant
LaCoss and other supervisors and spoken to in “a demeaning tone”
that made co-workers uncomfortable. See Id. at ¶¶ 65, 79-80. She
also found herself no longer invited to meetings she had been
invited to before, and reprimanded for attending a panel to which
she had been invited. Id. at ¶ 59.
Kittner also received negative comments from her supervisors
relating to the incident with Maj. K. For instance, on November 20,
2006, and again later that same month, Defendant Strosnider told
her that she was unsuitable for working in operations because she
should have been able to prevent Maj. K from making advances. In
January 2007, Strosnider excused Maj. K’s behavior by telling
Kittner that Maj. K “was just being a guy,” and warned her “against
trying to advance an agenda by tying it to her complaint against
Maj. K.” Id. at ¶ 35. On January 7, 2007, Defendant Monroe told
Kittner that management had checked up on her, that she was
immature for her age, and that she should not be allowed to work in
operations.
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In March 2007, Defendant Scott Darren LaCoss, OBNCR Chief of
Controlled Operations and Plaintiff’s first-level supervisor,
prohibited Kittner from going on any temporary operational
assignments related to Detachment 420 or to continue supporting any
Controlled Operation. When Kittner said that she was supporting six
Controlled Operations, LaCoss, along with Defendant Strosnider,
ordered that two managers be present at all her meetings. Plaintiff
alleges that this directive singled out and humiliated her, as no
male officer was required to be escorted by his supervisors to
meetings.
Plaintiff contends that after Maj. K was removed from DIA in
April 2007, the retaliation “increased dramatically.” Id. at ¶ 52.
On April 27, 2007, Kittner received a counseling letter which
stated that she had given inappropriate guidance on an issue
outside her area of responsibility, and that she had been counseled
multiple times about providing inappropriate guidance. On June 15,
2007, she received a reprimand in person, and, on June 24, 2007,
she was given a list of wrongdoings. In these, and in later
reprimands, supervisors criticized Plaintiff for deterioration in
her job performance and a tendency to exceed the scope of her job
duties. She denies that the reprimands were consistent with the
facts, and alleges they were actually given in retaliation for
reporting Maj. K’s misconduct. Id. at ¶ 56.
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Between mid-April and late August 2007, Kittner was told by
supervising officers that she must obtain written permission for
any work in support of Controlled Operations. This requirement also
singled her out and humiliated her, as no other Subject Matter
Expert was required to obtain such written permission. Id. at ¶ 61.
Additionally, she received a written reprimand on August 2, 2007
for asking Maj. K’s successor for such written permission, which
she alleges unfairly penalized her for merely following the orders
she had received. Id. at ¶ 62.
Next, Defendant Geickel told Kittner in November 2007 that she
was to cease communication with Detachment 420, and that she was
not allowed to accompany Maj. K’s replacement on a temporary
operations assignment on which he had asked her to accompany him.
Id. at ¶ 67. On December 13, 2007, she received a Letter of
Reprimand signed by Defendant Gieckel, was removed from her
position, and was transferred to a less desirable job in CPT. Id.
at ¶ 75. Defendants Claudia Caslow and Brad Ahlskog, respectively,
became her new reviewing officer and second-level supervisor.
Defendant Monroe also remained in Kittner’s chain of command in her
new position.
In her new position, Kittner has continued to experience
harassment, retaliation, and discrimination. Id. at ¶ 78. She was
prohibited from interacting with colleagues in the intelligence
community without prior permission, excluded from meetings, and
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denied training. Id. Additionally, Ahlskog announced that employees
must gain authorization before interacting with Kittner, and that
it should be reported to him if Kittner approached anyone in the
office. Id. at ¶ 80.
Finally, Kittner began to receive monthly reprimands from her
supervisors, including two Memoranda of Counseling dated August 18
and September 11, 2008, a Letter of Reprimand on October 9, 2008,
and two emails on November 9 and December 23, 2008. These
reprimands cited her for various instances of professional
misconduct including circumventing her superiors, ignoring and
failing to follow directions, and complaining about being
underutilized. Id. at ¶¶ 84-85, 88-91 & 93-95.
2. Equal Opportunity Office Action
Throughout the course of these events, Kittner met with EO
office counselors several times to report her treatment. In
addition to her initial 2006 contact, she met with a counselor in
early February 2007 to discuss Maj. K’s behavior and Defendants
Strosnider and Monroe’s comments regarding her unsuitability for
work in operations. She met again with EO officers at least four
times between March and September of 2007 to report retaliation and
harassment.
On October 18, 2007, Kittner acknowledged and signed a Notice
of Rights and Responsibilities from the EO counselor. In the
following months, she continued to make frequent reports to the EO
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office regarding her supervisors’ behavior: on November 15, 2007,
she reported further retaliation and, in December 2007, she
reported her removal and transfer from her job and the December 13,
2007 Letter of Reprimand. Id. ¶ 38.
On February 13, 2009, Kittner filed a formal complaint with
the EO office. Kittner attributes the delay in filing to her belief
that Defendant Strosnider was pursuing her claim through a
Commander’s Inquiry. She also continued to report to the EO Office
the harassment/retaliation she encountered in her new position.
On April 10, 2009, the EO office issued a Final Agency
Decision (“FAD”) on Plaintiff’s claims arising from her treatment
in the period up to and including her transfer. The FAD rejected
Kittner’s claims of sexual assault and reprisal. Kittner claims
that testimony from her witnesses was ignored and key information
was omitted, while hearsay and false statements from her
supervisors were considered. Id. at ¶¶ 98-100. The EO office also
created a second case file number for the complaints arising from
Kittner’s treatment in her new position, but failed to take any
final action on it within 180 days.
B. Procedural History
On July 7, 2009, Kittner filed a Complaint in this Court
alleging the same claims addressed in the FAD under Title VII and
the First and Fifth Amendments. On August 17, 2009, she filed an
Amended Complaint to incorporate the claims raised in the second EO
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case [Dkt. No. 2]. In the Amended Complaint, Kittner alleges that
Defendants violated Title VII by subjecting her to disparate
treatment and disparate impact (Count I), sexual harassment related
to Maj. K’s actions (Count II), sex-based harassment at her
workplace resulting from reporting Maj. K’s actions (Count III), a
hostile work environment (Count IV), and reprisal (Count V). She
also alleges Bivens claims for deprivations of her Fifth Amendment
liberty and procedural due process rights (Count VI) and
deprivations of her First and Fifth Amendment rights in violation
of 42 U.S.C. §§ 1985 and 1986 (Count VII).
Defendants move to dismiss Counts VI and VII of the Amended
Complaint and, in a separate motion, to stay discovery from the
individually sued Defendants pending resolution of the Motion to
Dismiss in Part. In her Opposition to the Motion to Dismiss in
Part, Kittner agreed to “voluntarily dismiss, without prejudice,
her claims under 42 U.S.C. §§ 1985 and 1986 (Count VII of the
Amended Complaint).” Opp’n at 2 n.1. Thus, the only remaining
question before the Court is whether Count VI of the Amended
Complaint should be dismissed under Rules 12(b)(1), 12(b)(2), or
12(b)(6).
II. Standard of Review
Under Rule 12(b)(1), the plaintiff bears the burden of proving
by a preponderance of the evidence that the Court has subject
matter jurisdiction to hear her case. See Jones v. Exec. Office of
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President, 167 F. Supp. 2d 10, 13 (D.D.C. 2001). In reviewing a
motion to dismiss for lack of subject matter jurisdiction, the
Court must accept as true all of the factual allegations set forth
in the Complaint; however, such allegations “will bear closer
scrutiny in resolving a 12(b)(1) motion than in resolving a
12(b)(6) motion for failure to state a claim.” Wilbur v. CIA, 273
F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and quotations
omitted). The Court may consider matters outside the pleadings. See
Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir.
1992). The Court may also rest its decision on the Court's own
resolution of disputed facts. Id.
On a motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2), the plaintiff bears the burden of establishing
personal jurisdiction over each defendant. Crane v. New York
Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990). In order to
satisfy this burden, a plaintiff must establish the Court's
jurisdiction over each defendant through specific allegations in
her complaint. Kopff v. Battaglia, 425 F.Supp.2d 76, 80-81 (D.D.C.
2006). Additionally, the plaintiff cannot rely on conclusory
allegations; rather, she must allege the specific facts on which
personal jurisdiction is based. First Chicago Int’l v. United
Exchange Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988).
Under Rule 12(b)(6), a plaintiff need only plead “enough facts
to state a claim to relief that is plausible on its face” and to
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“nudge[] [his or her] claims across the line from conceivable to
plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“[A] complaint [does not] suffice if it tenders naked assertions
devoid of further factual enhancement.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (internal quotations omitted) (citing
Twombly, 550 U.S. at 557). Instead, the complaint must plead facts
that are more than “merely consistent with” a defendant’s
liability; “the pleaded factual content [must] allow[] the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1940.
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563. Under the
standard set forth in Twombly, a “court deciding a motion to
dismiss must . . . assume all the allegations in the complaint are
true (even if doubtful in fact) . . . [and] must give the plaintiff
the benefit of all reasonable inferences derived from the facts
alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,
525 F.3d 8, 18 (D.C. Cir. 2008) (internal quotations marks and
citations omitted); see also Tooley v. Napolitano, 586 F.3d 1006,
1007 (D.C. Cir. 2009) (declining to reject or address the
government’s argument that Iqbal invalidated Aktieselskabet).
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III. Analysis
Defendants first argue that Count VI must be dismissed because
Title VII provides the exclusive remedy for allegations of
discrimination and retaliation in federal employment. Second,
Defendants argue that special factors counsel hesitation in the
creation of a Bivens remedy for Kittner’s constitutional claims.
Finally, Defendants argue that, even if Kittner can bring her
Bivens claims, the Defendants sued in their individual capacities
are entitled to qualified immunity.
A. Title VII and the CSRA Counsel Hesitation in Creating a
Bivens Remedy for Plaintiff’s Constitutional Claims.
Defendants rely on Brown v. Gen. Serv. Admin., 425 U.S. 820,
96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), to argue that Title VII
preempts Kittner’s constitutional claim. Brown held that Title VII
“provides the exclusive judicial remedy for claims of
discrimination in federal employment.” Id. at 834. As a general
rule, then, “when a plaintiff alleges facts that are actionable
under Title VII and for which Title VII provides a remedy, Title
VII preempts virtually all other federal causes of action.” Rochon
v. FBI, 691 F.Supp. 1548, 1555 (D.D.C. 1988).
Plaintiff responds by citing Neely v. Blumenthal, 458 F.Supp.
945, 957 (D.D.C. 1978), where the District Court held that Brown’s
preemption rule is inapplicable to Bivens claims for damages
brought against individual officers accused of discrimination.
Neely held that “Brown’s preemption rule stands circumscribed to
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the extent of cutting off only official remedies for federal
employment discrimination,” and not judicially created remedies.
Id. at 954. In reaching this conclusion, Judge Sirica relied on
the fact that the issue was never raised in Brown. However, it
does not follow logically that the absence of the issue in Brown
compels the conclusion that the Brown holding is not applicable to
the facts in Neely.
It would certainly appear that Neely has not withstood the
test of time nor the thrust of new caselaw, considering that the
opinion, which was issued over thirty years ago, has never been
cited by any federal court and is not consistent with the teachings
of Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460; Bush v.
Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); and
Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988) (en banc).
Our Court of Appeals has subsequently ruled that Brown’s preemption
rule would apply to preempt a plaintiff’s common-law state tort
claims alleging discrimination against individual federal
officials. Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990)
(“[T]o the extent that Ramey attempts to recast his tort claims
against the supervisors as pure discrimination claims, they are in
any event barred by the exclusive character of the Title VII
remedy.”). Moreover, in a far more recent case than Neely, a
District Court Judge in this Circuit has concluded that a pro se
plaintiff’s Bivens claims against her supervisors, alleging
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constitutional violations based on retaliation for her prior EEO
activity, were preempted by Title VII under Brown. Rogler v.
Biglow, 610 F.Supp.2d 103 (D.D.C. 2009). For all these reasons, the
Court does not find Neely persuasive, either on the basis of its
own internal reasoning or the subsequent development of the law in
this Circuit and the Supreme Court.
Thus, Plaintiff’s constitutional claims alleging
discrimination are preempted by Title VII under Brown. Count VI of
the Amended Complaint alleges that the individually named
Defendants violated Kittner’s Fifth Amendment “liberty and
procedural due process rights” by engaging in “improper acts which
negatively altered Plaintiff’s employment status and in doing so
stigmatized Plaintiff and impugned her reputation . . . .” Am.
Compl. ¶¶ 189-91. In support, Kittner points to Defendants’ actions
in:
[R]equiring her to have two managers present
for all her meetings with anyone in Controlled
Operations; . . . prohibiting Plaintiff from
going on [Temporary Duty Assignments] in
support of Controlled Operations, Detachment
420; . . . deciding that Plaintiff was
unsuitable for operations because she was
immature and should have been able to prevent
Maj. K’s advances; . . . giving her a referral
to the Office of Employee Assistance alleging
a recent deterioration in her performance and
interactions with others at work; . . .
prohibiting Plaintiff from supporting or
communicating with Controlled Operations,
Detachment 420 . . . ; . . . yelling at her in
a loud voice with a raised hand and an angered
look; . . . falsely accusing Plaintiff of
frequently contacting Maj. K’s replacement at
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home, saying the replacement wanted to have
sex with her and being paranoid; . . .
removing Plaintiff from her position in OBNCR;
. . . transferring Plaintiff to a less
desirable job in CPT; . . . restricting
Plaintiff from performing her job while
continuing to demean and disparage her; and .
. . forcing Plaintiff to endure more negative
treatment, more Counseling Letters, critical
e-mails and another Letter of Reprimand.
Id. at ¶ 190.
As Defendants point out, “[t]he specific claims set forth in
Count VI are the very same claims that form the basis of
plaintiff’s Title VII claims in Counts I-V.” Defs.’ Mot. at 7.
Plaintiff’s constitutional claims therefore clearly do challenge
the same acts of harassment, discrimination, and retaliation in
Counts I-V for which Title VII provides the exclusive remedy. Thus,
the claims in Count VI alleging the same discrimination,
harassment, and retaliation underlying Counts I-V are dismissed.4
Kittner argues, however, that the factual predicate of her
constitutional claims is separate from the allegations of
discrimination, harassment, and retaliation underlying her Title
VII claims. Even if this argument is credited, there can be no
doubt that the acts and omissions alleged in Count VI relate to the
4
Even if Brown’s preemption rule did not apply to
Kittner’s Bivens claims, under the special factors analysis, the
outcome would be the same. As Neely itself recognized, given the
comprehensiveness of Title VII’s remedial scheme, there is “no
sound reason for treating the claims separately by implying a
damage cause of action not authorized by Congress.” Neely, 458
F.Supp. at 960 (declining to extend Bivens remedy to discrimination
claims brought by federal employee).
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actions Defendants have taken regarding Kittner in the employment
setting. That fact raises a separate issue: whether the remedial
scheme established in the Civil Service Reform Act, 5 U.S.C. §
1101, et seq (“CSRA”), should preclude Kittner from bringing her
Bivens claim.
In Bivens, the Supreme Court emphasized the limited nature of
the judiciary’s power to make policy concerning remedies for
alleged constitutional violations. Thus, when Congress has declared
another remedy equally effective, or when “special factors
counselling hesitation” are present, the judiciary should decline
to exercise its discretion in creating damages remedies against
federal officials in their individual capacity. Bivens, 403 U.S. at
397, 91 S.Ct. at 2005; accord Bush, 462 U.S. 367, 103 S.Ct. 2404;
Spagnola, 859 F.2d at 226.
The Supreme Court expanded upon the Bivens special factors
analysis in Bush v. Lucas, where it held that a federal employee
could not obtain money damages under the First Amendment for an
adverse personnel action taken against him in alleged retaliation
for critical comments he made about his employer to the news media.
The Court concluded that the legislation, executive orders, and
Civil Service Commission regulations governing federal employment
claims constituted an “elaborate, comprehensive scheme” that was a
special factor counseling against recognition of a Bivens remedy.
462 U.S. at 388-90. In addition, the Court made clear that the
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proper question for courts confronted with Bivens claims is not
whether a judicial remedy is needed for a wrong that would
otherwise go unredressed, but whether an existing “elaborate
remedial system . . . constructed step by step, with careful
attention to conflicting policy considerations, should be augmented
by the creation of a new judicial remedy.” Id. at 388.
Subsequent to Bush, the Supreme Court declined to extend a
Bivens remedy to claims covered by the Social Security Act, even
though the Act did not provide the type of relief--money damages--
sought by the plaintiffs. Chilicky, 487 U.S. 412, 108 S.Ct. 2460.
Our Court of Appeals, reading Bush and Chilicky together, explained
this special-factor line of analysis as follows:
[C]ourts must withhold their power to fashion
damages remedies when Congress has put in
place a comprehensive system to administer
public rights, has ‘not inadvertently’ omitted
damages remedies for certain claimants, and
has not plainly expressed an intention that
the courts preserve Bivens remedies. In these
circumstances, it is not for the judiciary to
question whether Congress’ ‘response [was] the
best response, [for] Congress is the body
charged with making the inevitable compromises
required in the design of a massive and
complex . . . program.’
Spagnola, 859 F.2d at 228 (quoting Chilicky, 487 U.S. at 427-29,
108 S.Ct. at 2470-71). Consequently, this Circuit has declined to
extend Bivens remedies to constitutional claims arising from wrongs
covered by Title VII, the Privacy Act, and the Civil Service Reform
Act, among others. See Neely, 458 F.Supp. at 960 (Title VII),
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Wilson v. Libby, 535 F.3d 697, 704-10 (D.C. Cir. 2008) (Privacy
Act); Spagnola, 859 F.2d at 229-30 (Civil Service Reform Act).
Most recently, the Supreme Court’s decision in Wilkie v.
Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), set
forth the framework for analyzing Bivens claims as follows:
In the first place, there is 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. But even in the absence of
an alternative, a Bivens remedy is a subject
of judgment: ‘the federal courts must make the
kind of remedial determination that is
appropriate for a common-law tribunal, paying
particular heed, however, to any special
factors counselling hesitation before
authorizing a new kind of federal litigation.’
Id. at 550 (quoting Bush, 462 U.S. at 378, 103 S.Ct. 2404).
In United States v. Fausto, 484 U.S. 439, 455, 108 S.Ct. 668,
98 L.Ed.2d 830 (1988), the Supreme Court concluded that the CSRA
“established a comprehensive system for reviewing personnel action
taken against federal employees.” 5 U.S.C. § 2302 defines
“prohibited personnel practices” expansively to include the
“tak[ing] or fail[ure] to take any ... personnel action if the
taking or failure to take such action violates any law, rule, or
regulation implementing, or directly concerning, the merit system
principles contained in section 2301 of this title.” 5 U.S.C. §
2302(b)(12) (2009). One specific, very broadly worded merit system
principle provides that “[a]ll employees . . . should receive fair
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and equitable treatment in all aspects of personnel management ...
with proper regard for their ... constitutional rights.” 5 U.S.C.
§ 2301(b)(2) (2009).
Given this statutory language, and given the Supreme Court’s
analysis of the civil service system in Bush v. Lucas, our Court of
Appeals has concluded that “‘special factors’ preclude the creation
of a Bivens remedy for civil service employees . . . who advance
constitutional challenges to federal personnel actions.” Spagnola,
859 F.2d at 225 n.3, 230. This is true even when the CSRA affords
“no remedy whatsoever” to a plaintiff. Id. at 228-29.
The CSRA defines “personnel action” to include “a detail,
transfer, or reassignment” and “any other significant change in
duties, responsibilities, or working conditions.” 5 U.S.C. §
7302(a) (2009). Defendants’ decisions to transfer Kittner to an
allegedly inferior position and to restrict her responsibilities
thus qualify as “personnel actions” covered by the CSRA. The Court
therefore concludes that the CSRA is a “special factor counseling
hesitation” which precludes creation of a Bivens remedy for
Kittner’s constitutional claims.5 See Gerlich v. United States
5
None of the cases relied on by Plaintiff involve federal
employees challenging personnel actions subject to the CSRA, and so
are easily distinguishable. Carlson v. Green, 446 U.S. 14, 100
S.Ct. 1468, 64 L.Ed.2d 15 (1980), was brought by the administratrix
of the estate of a deceased federal prisoner and alleged violations
of the deceased prisoner’s due process, equal protection, and
Eighth Amendment rights. Grichenko v. United States Postal Serv.,
524 F.Supp. 672 (E.D.N.Y. 1981), was brought by a federal postal
worker, but the plaintiff’s claims, which arose from an alleged on-
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Dep’t of Justice, 659 F.Supp.2d 1, 8-12 (D.D.C. 2009) (dismissing
plaintiff’s Bivens claim, which challenged federal personnel
action, as precluded by CSRA); Runkle v. Gonzales, 391 F.Supp.2d
210, 235 (D.D.C. 2005) (same); Kalil v. Johanns, 407 F.Supp.2d 94,
101 (D.D.C. 2005) (same). See also Stewart v. Evans, 275 F.3d 1126,
1130 (D.C. Cir. 2002) (where warrantless search by federal employer
was not a “personnel action” under the CSRA, and so could be
challenged through a Bivens claim); Weaver v. Bratt, 421 F.Supp.2d
45 (D.D.C. 2006) (where warrantless search and agency’s failure to
investigate claim, provide opportunity to be heard, or give notice
of right to appeal, none of which qualified as “personnel actions”
under the CSRA, could be challenged through a Bivens claim).
Given the dismissal of Count VI of the Amended Complaint as
explained, supra, there is obviously no need to consider whether
the individually sued Defendants are entitled to qualified
immunity. Because the only remaining claims in the Amended
Complaint are brought under Title VII, and because the only proper
defendant in a Title VII suit is the head of the federal agency,
the-job injury, were subject to the Federal Employees’ Compensation
Act, not the CSRA. Finally, the plaintiff in Kartseva v. Dep’t of
State, 37 F.2d 1524 (D.C. Cir. 1994), was employed by a private
contractor, not a federal agency.
In general, the cases cited by Plaintiff in her Opposition are
not persuasive. A number were decided by district courts in other
Circuits which, aside from being not binding on this Court, were at
times inconsistent with this Circuit’s precedent. In addition, at
least one case cited by Plaintiff supported Defendant’s position.
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see 42 U.S.C. § 2000e-16(c), Defendants Monroe, Strosnider, LaCoss,
Gieckel, Ahlskog, and Caslow are dismissed as defendants in this
case. Because the individually sued Defendants no longer remain in
the case, Defendants’ Motion to Stay Discovery against Defendants
Monroe, Strosnider, LaCoss, Gieckel, Ahlskog, and Caslow is denied
as moot.
IV. CONCLUSION
For the reasons set forth above, the Defendants’ Motion to
Dismiss in Part under Federal Rule of Civil Procedure 12(b)(1) is
granted. Count VI of the Amended Complaint is therefore dismissed,
and Defendants Monroe, Strosnider, LaCoss, Gieckel, Ahlskog, and
Caslow are dismissed as defendants. Defendants’ Motion to Stay
Discovery against Defendants Monroe, Strosnider, LaCoss, Gieckel,
Ahlskog, and Caslow is denied as moot. An Order will accompany this
Memorandum Opinion.
/s/
April 28, 2010 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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Kittner v. Gates
Combined Opinion