DAVID HARPER v. UNITED STATES DEPARTMENT OF THE INTERIOR ET AL.
Case No.: 1:21-cv-00197-CRK
UNITED STATES DISTRICT
November 12, 2021
OPINION AND ORDER RE: MOTION TO DISMISS
I. INTRODUCTION
Before the Court is defendants United States Department of the Interior‘s (“Department“), Debra Haaland‘s, Michael Nedd‘s and Kevin Graham‘s (collectively, “Defendants“) motion to dismiss plaintiff David Harper‘s complaint. Mot. to Dismiss Pl.‘s Compl., July 30, 2021, ECF No. 7 (“Mot. to Dismiss“). Harper, a Department employee in the Bureau of Land Management (“BLM“) and a former BLM law enforcement officer (“LEO“), asserts four claims: (1) violation of his Fifth Amendment
OPINION AND ORDER - 1 causes of action, Harper alleges that various high-level Department employees conspired to wrongfully suspend and permanently reassign him to a non-LEO position and to deny him due process by taking unauthorized and ultra vires actions to interfere with the initial disciplinary process and Harper‘s administrative grievance. Id. ¶¶ 120, 127, and 136. Defendants move to dismiss all claims on the grounds that (1) Harper‘s Bivens claim is preempted by the
II. BACKGROUND2
On June 12, 2018, Special Agent (“SA“) Shillingford of the Department‘s Office of the Inspector General (“OIG“) interviewed Harper as part of OIG‘s investigation of sexual harassment allegations against the then Associate District Manager for BLM‘s
OPINION AND ORDER - 2 Southern Nevada District. Compl. ¶¶ 13, 32. At the time of the interview, Plaintiff worked as a Law Enforcement Ranger in BLM‘s Twin Falls District. Id. ¶ 13. Neither SA Shillingford nor anyone else at OIG indicated that Harper lacked candor during the interview, and OIG did not investigate Harper in connection with his answers during the interview. Id. ¶¶ 31, 98. Nonetheless, on February 13, 2019, defendant Graham, a BLM Employee Relations National Policy Specialist at the time, sent Tammy Bergbauer, the “proposing official,” a draft proposal to suspend Harper for 14 days. Id. ¶ 15. Graham further instructed Bergbauer to adopt the proposal as her own and review the evidence supporting the draft proposal. Id. Several weеks later, Graham emailed Robert Casias, who had replaced Bergbauer as the proposing official, an updated proposal to remove Harper. Id. ¶ 16. Graham emailed Casias on March 25, 2019, asking Casias to “adopt this proposal as your own.” Id. ¶ 17.
Graham further stated in an email to Mary Huber-Thompson, a BLM Human Relations Specialist and Labor Relations/Assistant Ethics Counselor for the BLM Idaho State Office, that the proposed removal had been “taken over by the BLM
OPINION AND ORDER - 3 Enforcement and Security at the time, was not involved in drafting the Proposal, and the only two officials superior to Woody werе Nedd and William Pendley, the Deputy Director of Policy and Programs. Id. ¶¶ 18–19, 25–27.
Harper, through his attorney, submitted a written response to the Proposal (“Response to Proposal“), id. ¶¶ 32–33, 43–50, and, on May 2, 2019, Harper and his attorney participated in a telephonic hearing with Graham and Barbara Eggers, the deciding official. Id. ¶¶ 34–40. Harper alleges that he was told he would have one hour to present his defense; however, Harper‘s attorney and Graham argued for approximately 20 minutes after Graham stated that Harper‘s attorney would not be permitted to speak during the hearing. Id. ¶¶ 35, 37–38. Thus, Harper‘s oral response to the Proposal was limited to approximately 30 minutes. Id. ¶ 39. On May 21, 2019, Eggers issued her decision (the “Eggers Decision“), in which she found Harper lacked candor during his interview with SA Shillingford, suspended Harper for 14 days without pay, and permanently reassigned him to a non-law-enforcement position. Id. ¶¶ 41–42.
The next day, Harper received a letter stating that he was being reassigned to a non-law-enforcement position and his annual salary would decrease by approximately $2,000 (the “First Reassignment Letter“). Id. ¶¶ 51–52. The First Reassignment Letter also stated that Harper could appeal the Eggers Decision to the Merit Systems Protection Board (“MSPB“). Id. ¶ 51. However, on June 5, 2019, Harper received a second letter indicating that he was receiving a raise, not a pay cut, and did not mention any right to appeal the Eggers Decision to the MSPB
OPINION AND ORDER - 4 (“Second Reassignment Letter“). Id. ¶¶ 53–54. Defendant Graham issued the two reassignment letters. Id. ¶ 57.
The Second Reassignment Letter notwithstanding, Harper appealed the Eggers Decision to the MSPB, but the MSPB dismissed his appeal on the grounds that it lacked jurisdiction over his claim. Id. ¶ 56. After the MSPB denied his appeal, Harper filed an administrative grievance with the BLM Idaho State Office in a further attempt to appeal the Eggers Decision (the “Grievance“). Id. ¶ 58. On July 17, 2019, BLM Idaho State Director John Ruhs, the deciding official for the Grievance, see id. ¶¶ 59, 65, and 105, appointed Howard Hedrick to investigate the Grievance. Id. ¶ 60. Hedrick investigated the Grievance and, on August 30, 2019, issued a preliminary report finding that there was no credible evidence to sustain the charge of lack of candor against Harper and that the actions of the BLM officials who initiated and conducted the investigation into Harper resulting in the Proposal and the Decision were “completely lacking in ethical behavior and morally wrong.” Id. ¶¶ 61–63; see also Hedrick Report. However, approximately two weeks later, Ruhs met with Nedd in Washington, D.C. Compl. ¶ 64. On September 17, 2019, Nedd issued a memorandum to Ruhs directing Ruhs and Hedrick to stop all action related to the Grievance and appointed himself as the new deciding official in place of Ruhs. Id. ¶¶ 65–67. Harper alleges that Ruhs stated
After Nedd replaced Ruhs as the deciding official for the Grievance, Harper requested a copy of the Hedrick Report, but alleges that he was told he had to request
OPINION AND ORDER - 5 it pursuant to the
After receiving the Grievance investigation documents in April 2020, Harper attempted to file an appeal of the Grievance Decision addressed to the Deputy Secretary of the Interior and other Department human resources officials (the “DOI Appeal“). Id. ¶ 107. The DOI Appeal was denied on September 14, 2020. Id. ¶ 108. The Department‘s Director of the Office of Human Capital and Chief Human Capital Officer, Jennifer Ackerman, stated that the BLM‘s administrative grievance procedures “do[] not permit further appeal of or complaint on Step 2 administrative grievance decisions.” See Decl. in Supp. of Opp‘n to Defs.’ Mot. to Dismiss, Sept. 17, 2021, ECF No. 19-1 (“Harper Decl.“), Ex. 6, 124–25, ECF No. 19-5 (“DOI Response to
OPINION AND ORDER - 6 Appeal“). The DOI Response to Appeal also stated, without further explanation, that Ackerman found that BLM had followed the appropriate procedures in deciding the Grievance. Compl. ¶ 108.
In May 2020, while the DOI Appeal was pending, Harper applied for a law enforcement position in Twin Falls, Idaho. Id. ¶ 109. Despite allegedly being notified that he was referred to the hiring official as the best qualified applicant in June 2020, being offered a tentative job offer in July 2020, accepting a final job offer on August 11, 2020, and passing a BLM National Operations Center (“NOC“) background check in August 2020, Harper alleges he was told that he was being subjected to a second background check and that defendant Nedd had “gotten involved” in the hiring process. Id. ¶¶ 110–114. Both Nedd and Graham called the NOC and the Idaho State Director‘s Office in connection with Harper‘s application. Id. ¶ 114. On August 21, 2020, BLM rescinded the job offer as a result of an “OPR report” that caused Harper to fail the second background check. Id. ¶ 115. Harper unsuccessfully applied to other law enforcement positions since August 2020. Id. ¶ 117.
Harper filed the Complaint on May 4, 2021. See id. Defendants filed their motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
OPINION AND ORDER - 7 Objection and Memo. in Resp. to Defs.’ Mot. to Dismiss Pl.‘s Compl., Oct. 1, 2021, ECF No. 20 (“Def. Reply“).
III. STANDARD OF REVIEW
A. Subject Matter Jurisdiction
On a motion to dismiss for lack of subject matter jurisdiction pursuant to
OPINION AND ORDER - 8 F.3d 1117, 1121 (9th Cir. 2014). A defendant making a factual challenge to subject matter jurisdiction “disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. When considering a factual challenge, the Court “need not presume the truthfulness of the plaintiff‘s allegations.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
Whether a challenge to subject matter jurisdiction is facial or factual depends on the defendant‘s arguments and whether it relies on affidavits or other evidence in support of its motion. Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Here, Defendants argue that the facts in Harper‘s complaint are insufficient to confer subject matter jurisdiction on this Court because (1) Harper did not exhaust his administrative remedies so the Court does not have jurisdiction over the FTCA claims; (2) the FTCA excludes Harper‘s tort claims; and (3) the Bivens claim is preempted by the CSRA. Def. Br. at 6–8, 9–11. Defendants do not rely on any affidavits or other evidence in support of their motion. See Mot. to Dismiss. Therefore, Defendants’
B. Failure to State a Claim
Defendants also move to dismiss the Complaint under
OPINION AND ORDER - 9 the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011); see also City of Oakland v. BP PLC, 969 F.3d 895, 910 (9th Cir. 2020). “To survive a 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.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although a complaint does not need detailed factual allegations, the plaintiff must provide more than “labels and conclusions” and cannot rely solely on a recitation of the elements of the cause of action. Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Nonetheless, the facts alleged in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff‘s favor. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court will dismiss a complaint without leave to amend only when the deficiencies in the complaint could not be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).
C. Documents Outside the Complaint
If a defendant attempts to rely on facts not in the complaint in support of a motion to dismiss, the court may treat the motion as one for summary judgment.
OPINION AND ORDER - 10 (as opposed to a motion for summary judgment), it is improper for a plaintiff to submit an affidavit or declaration in order to assert new facts not included in the complaint. U.S. v. Ritchie, 342 F.3d 903, 908–09 (9th Cir. 2003). The proper vehicle for asserting new facts is via an amended complaint. Reno v. Nielson, 424 F. Supp. 3d 1045, 1053 (D. Haw. Dec. 17, 2019). An exception to this rule is that the court can consider documents that were attached to the complaint, incorporated by reference into the complaint or were discussed in the complaint to the extent that it is reasonable to treat them as though they were made part of the complaint, form the basis of the complaint, or of which the Court can take judicial notice. Ritchie, 342 F.3d at 907–08; Ceperich v. Countrywide Home Loans, Inc., 2013 WL 654362, at *2 (D. Idaho Jan. 15, 2013) (unreported); see also Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002).
Here, Defendants did not rely on affidavits or materials outside of the complaint in support of their motion to dismiss; Defendants solely challenged the legal sufficiency of the Complaint. See Mot. to Dismiss. Nonetheless, Harper submitted a lengthy Declaration with over 100 pages of documents attached as part of his opposition to the Motion to Dismiss. See Harper Decl. and Exhibits. Although Defendants
OPINION AND ORDER - 11 In light of the factual issues specifically alleged in the Complaint and raised by the filings in this proceeding thus far, the Court declines to treat this as a motion for summary judgment pursuant to
The Court concludes that the following documents were sufficiently described in the Complaint that it is reasonable to treat them as part of the Complaint:
- Hedrick Report, see Compl. ¶¶ 61–63, 70–73, 76, 80–82, 84–99, 106, and 120 (p)–(q).
- Proposal, see id. ¶¶ 15–31, 91–93, and 120(b), (k)–(n);
- Response to Proposal, see id. ¶¶ 32–33, 43–50
- Eggers Decision, see id. ¶¶ 41–42, 49, and 120(l)–(n);
OPINION AND ORDER - 12
- First and Second Reassignment Letters, see id. ¶¶ 51–57;
- Grievance Decision, see id. ¶¶ 70, 75–79, and 120(q);
- Emails between Kevin Graham, Tammy Bergbauer, Robert Casias, and Mary Huber-Thompson, see id. ¶¶ 15–22, 24–25, 93, and 120(a)–(d), (k); and
- DOI Response to Appeal, see id. ¶ 108.
The Court will also take judicial notice of the Department‘s Department Manual, which sets forth the Department‘s administrative grievance procedures, and to which Harper‘s Complaint refers repeatedly. See, e.g., id. ¶¶ 68–69, 120. The Department Manual is a public document, the authenticity of which cannot be reasonably questioned. See
D. Defendants’ Objections to the Hedrick Report
Defendants raise several objections to the Hedrick Report, none of which is availing. Objections to Harper Decl. ¶¶ 2–4. First, Defendants assert that the Hedrick Report is “inadmissible hearsay” pursuant to
The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
OPINION AND ORDER - 13
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject; [or]
(D) was made by the party‘s agent or employee on a matter within the scope of that relationship while it existed.
The Hedrick Report arguably meets any one of those exceptions but is indisputably encompassed by (C) and (D). The Hedrick Report contains a document on Department letterhead from and signed by John F. Ruhs, BLM‘s Idaho State Director, appointing Hedrick to investigate Harper‘s Grievance. Hedrick Report, Attach. 4. Thus, Hedrick was an employee acting within the scope of his employment and was authorized to make the statements in the Hedrick Report. The Hedrick Report is therefore not hearsay and Defendants’ first objection is overruled.
Next, Defendants assert that the Hedrick Report “has not been properly authenticated as Plaintiff has not provided sufficient evidence to show that the report is what he claims it is.” Objections to Harper Decl. ¶ 3 (citing
OPINION AND ORDER - 14
Moreover, Harper‘s allegations authenticate the Hedrick Report under
Finally,
OPINION AND ORDER - 15 Report is inauthentic (only that Harper hаs allegedly not properly authenticated it), Defendants’ second objection to the Hedrick Report is overruled.
Lastly, Defendants object to the Hedrick Report because it is “preliminary” and thus it is purportedly unreliable and irrelevant and should not be admitted under
Harper asserts that after reading the Hedrick Report, Nedd, the Deputy Director of Operations at BLM, prevented Hedrick from continuing his investigation or issuing a final report by improperly and without proper authorization assuming jurisdiction over Harper‘s grievance as the deciding official. Compl. ¶¶ 62–69. Harper claims that Nedd‘s actions in connection with the Hedrick Report were taken with the objective of covering up the improper adverse action initially taken against Harper in connection with Harper‘s responses during his interview with SA Shillingford. Id. ¶¶ 70–78.
Given these allegations, which must be accepted as true at this stage of the proсeeding, the Hedrick Report appears to be extremely relevant. The fact that it is “preliminary” is only because Hedrick was allegedly improperly forced to end his investigation. There is nothing in any of the papers before the Court that would lead to the conclusion that a “final” report would be substantially different than the preliminary one. The Defendants’ third objection is overruled.
OPINION AND ORDER - 16
IV. DISCUSSION
Harper‘s Complaint alleges he is entitled to relief on four claims: (1) violation of his Fifth Amendment right to due process under Bivens (Count I); (2) defamation per se (Count II); (3) negligent supervision (Count III); and (4) negligent training (Count IV). Compl. ¶¶ 119–49. Defendants assert various legal theories pursuant to which they argue that the Complaint should be dismissed in its entirety. Defendants contend that Count I should be dismissed pursuant to
OPINION AND ORDER - 17
A. Bivens Claim
Harper‘s Bivens claim is that Defendants took a series of unauthorized and ultra vires actions that corrupted the remedial processes set forth in the CSRA in violation of his Fifth Amendment right to due process. Compl. ¶¶ 120–26; Pl. Br. at 8. Harper seeks both monetary damages under Bivens and equitable relief. Compl. ¶¶ 123–26, Prayer for Relief. Defendants argue that Harper complains of “personnel actions,” for which the CSRA provides the exclusive remedy and therefore preempts Harper‘s Bivens claim for damages. Def. Br. at 10–11. The Court concludes that Harper does not complain of personnel actions, but rather that Defendants’ alleged ultra vires actions deprived Harper of the exact process that the CSRA provides. Further, Harper‘s claims for equitable relief present a federal question that is not precluded by the CSRA and can be addressed by this Court pursuant to
In Bivens, the Supreme Court held that Bivens was entitled to prosecute an action for damages against federal officers who had allegedly violated Bivens’ Fourth Amendment rights by conducting an illegal search and arrest without probable cause. Bivens, 403 U.S. at 389. The Supreme Court subsequently elucidated that “the decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478, 504 (1978). Thus, Bivens and its early progeny recognized an implied right of action to collect damages for violations of constitutional rights by federal officers acting under color of law.
OPINION AND ORDER - 18 Bivens, 403 U.S. at 389; see also Davis v. Passman, 442 U.S. 228, 234 (1979). The Supreme Court recognized Bivens claims for violations of the Fourth, Fifth, and Eighth Amendments. See Bivens, 403 U.S. 388 (Fourth Amendment); Davis, 442 U.S. 228 (Fifth Amendment); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment).
However, the Supreme Court has since limited the availаbility of Bivens claims. First, in Bush v. Lucas, the Supreme Court denied the plaintiff the right to bring a Bivens claim for alleged violations of his First Amendment rights by his supervisors at NASA. 462 U.S. 367, 368–73 (1983). The Bush court held that the plaintiff‘s claims were precluded by the CSRA, which provided a complete remedy. Id. at 368. Then, in Schweiker v. Chilicky, the Supreme Court held that a Bivens action was unavailable to a plaintiff who alleged that his Fifth Amendment due process rights were violated when his social security disability rights were wrongfully terminated. 487 U.S. 412, 417–19, 425 (1988). The Chilicky court held that Bivens claims are unavailable where the design of a government program suggests that Congress
OPINION AND ORDER - 19 The Supreme Court directed that extending Bivens beyond the three situations in which the Supreme Court аlready recognizes Bivens claims is “disfavored.” Iqbal, 556 U.S. at 675. A new context arises if “[the claim] implicates a different constitutional right; if judicial precedents provide a less meaningful guide for official conduct; or if there are potential special factors that were not considered in previous Bivens cases.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1864 (2017). In Hernandez v. Mesa, Justice Alito noted that “for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens.” 140 S. Ct. 735, 743 (2020). Nonetheless, the Supreme Court has not stated that Bivens may not be extended under any circumstances. See United States v. Fausto, 484 U.S. 439, 455 (1988) (Blackmun, J., concurring) (the CSRA does not impliedly repeal “the courts’ common-law power to vindicate constitutional rights“); see also Am. Fed‘n of Gov‘t Emps. Loc. 1 v. Stone, 502 F.3d 1027, 1036–39 (9th Cir. 2007) (holding that the CSRA does not preclude actions seeking equitable relief for constitutional violations). Instead, there is a two-part test for courts to employ when deciding whether a Bivens claim may proceed in a new context.7 See Wilkie v. Robbins, 551 U.S. 537 (2007). The first question the court must answer is “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from
OPINION AND ORDER - 20
providing a new and freestanding remedy in damages. Id. at 550. The second prong requires that a court analyze any special factors counselling hesitation bеfore authorizing a new kind of federal litigation, even in the absence of an alternative remedy. Id.
In the context of the CSRA, which has been held to be a special factor counseling against recognizing a new Bivens claim, see Saul v. United States, 928 F.2d 829, 840 (9th Cir. 1991), the Ninth Circuit has stated,
[T]he CSRA precludes even those Bivens claims for which the act prescribes no alternative remedy. The CSRA‘s comprehensive remedial provisions convince us that there was no inadvertence by Congress in omitting a damages remedy against supervisors whose work-related
actions allegedly violate a subordinate‘s constitutional rights.
Id. The relevant inquiry is whether the actions of which a plaintiff complains are personnel actions as defined in the CSRA. Collins v. Bender, 195 F.3d 1076, 1078 (9th Cir. 1999). Although [w]hen allegedly unconstitutional conduct falls within the broad confines of the CSRA, courts lack jurisdiction to hear a Bivens action based on the conduct, the CSRA does not preclude non-personnel actions taken by federal employees against their subordinates. Id. at 1078, 1080 (holding that illegal search of employee‘s home was not a personnel action so Bivens claim was not precluded).
Harper alleges that Department employees, including Graham and Nedd, conspired to remove him frоm his position as a BLM LEO on charges that a subsequent investigation found to be supported by no credible evidence. Compl. ¶¶ 15-23, 31-40, 49, and 63. Harper further alleges that Defendants violated multiple BLM policies and federal regulations in initiating and prosecuting the Proposal and the Eggers Decision.
Specifically, Harper alleges that he filed an appeal with MSPB based on the Eggers Decision and the First Reassignment Letter, but that Defendants issued the Second Reassignment Letter to deliberately deprive him of the ability to appeal the Eggers Decision to the MSPB.
grievance file, depriving Harper of the ability to fully present his case.
Under these facts, which at this stage of the proceeding the Court accepts as true, Defendants’ violations of Harper‘s constitutional right to due process were not related to a personnel action of the type contemplated by the CSRA, but rather were taken to deprive Harper of the exact remedial procedures Congress authorized for federal employees complaining of constitutional violations related to personnel actions. The CSRA does not include any alternative remedies for Harper to challenge the alleged violations of his due process rights.9 And although the CSRA is generally
a special factor counseling against recognizing a new Bivens claim, Harper‘s allegations are distinguishable from other attempts to extend Bivens in the context of the CSRA because the constitutional violations of which Harper complains deprived him of the carefully considered comprehensive remedial procedures Congress intended to apply to disputes between federal employees and their superiors. Defendants’ actions cannot be said to be personnel actions if their sоle purpose and effect was to obstruct the legitimate procedures for appealing personnel actions set forth in the CSRA; ultra vires interference with the CSRA‘s remedial procedures is not included in the definition of personnel action. See
Defendants essentially posit that Congress considered the possibility that agency officials would take unauthorized and ultra vires actions to corrupt the remedial procedures of the CSRA in a way that violates employees’ constitutional
grievance proceedings and removing any discretion to assume jurisdiction. Id.; 370 DM 771 1.10(A)(2)(g). At this stage of the proceedings, and in light of Defendants’ failure to address this issue, the Defendаnts have not demonstrated that Congress considered the type of harm Harper alleges and chose to leave employees with no remedy.
rights and that Congress intentionally decided that there should be no remedy for such violations, except perhaps filing an endless series of administrative grievances to be decided by the same officials whose ultra vires constitutional violations necessitated the grievances in the first place. The Court does not agree that Congress intended such a result. The motion to dismiss Harper‘s Bivens claim is denied.
Moreover, Harper also seeks equitable relief in addition to monetary damages, which at least partially shields Harper‘s claim from the judicial unwillingness
where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear . . . . We require this heightened showing in part to avoid the serious constitutional question that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.
Id. at 1035 (quoting Webster v. Doe, 486 U.S. 592, 603 (1977) (internal quotation marks omitted); see also Whitman v. Dep‘t of Transрortation, 547 U.S. 512, 513-14 (2006) (per curiam) (in vacating and remanding to the Ninth Circuit, the Supreme Court held The Court of Appeals was correct to say that
Constitution, laws, or treaties of the United States.
Interpreting Webster, the Ninth Circuit explained, The power of the federal courts to grant equitable relief for constitutional violations has long been established. Thus, there is a presumed availability of federal equitable relief against threatened invasions of constitutional interests. Stone, 502 F.3d at 1038 (quoting Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995) (Alito, J.)) (internal quotation marks omitted). The Third Circuit and D.C. Circuit have also recognized federal employees’ rights to bring constitutional claims for equitable relief. See Semper v. Gomez, 747 F.3d 229, 242 (3d Cir. 2014) ([A] federal employee who could not pursue meaningful relief through a remedial plan that includes some measure of meaningful judicial review has the right to seek equitable and declaratory relief for alleged constitutional violations in a ‘federal question’ action filed pursuant to
Finally, Graham and Nedd claim that the Bivens claim should be dismissed because they are entitled to qualified immunity. The doctrine of qualified immunity shields government officials from civil liability sо long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted). The Ninth Circuit uses a two-step inquiry to determine if defendants are entitled to raise the defense of qualified immunity. Demaree v. Pederson, 887 F.3d 870, 878 (9th Cir. 2018). Under step one, a court must determine whether the conduct complained of violated a constitutional right. Green v. City and
62 (10th Cir. 1989). But see Elgin, 641 F.3d at 13-18 (Stahl, J., concurring). The Fourth, Seventh, and Eleventh Circuits have left the question open. See Bryant v. Cheney, 924 F.2d 525, 528 (4th Cir. 1991); Paige v. Cisneros, 91 F.3d 40, 44 (7th Cir. 1996); Hardison v. Cohen, 375 F.3d 1262, 1266-67 (11th Cir. 2004).
Cty. of San Francisco, 751 F.3d 1039, 1051 (9th Cir. 2014). If so, step two requires the court to determine whether the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood her conduct to be unlawful in that situation. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).
Defendants further contend that once they plead the defense of qualified immunity, the burden shifts to Harper to prove that the defense does not apply. Def. Br. at 13. However, the two cases on which Defendants rely for that proposition discuss qualified immunity in the context of summary judgment motions, which generally occur after parties file pleadings and require proof to prevail. See id.; Isayeva v. Sacramento Sheriff‘s Dep‘t, 872 F.3d 938, 946 (9th Cir. 2017); Vos v. City of Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). But Defendants have nоt filed any pleading in this case, and Harper is not required to prove anything to survive a motion to dismiss.
Nedd and Graham argue that they are entitled to qualified immunity because the conduct at issue involved normal workplace personnel actions to which a reasonable person would believe conformed to established law [so] there was no reason to believe that such actions did not conform to established law. Def. Br. at 14. Thus, Defendants effectively concede that Harper‘s allegations satisfy the first prong of the qualified immunity test, and as such that Harper has sufficiently alleged that Defendants’ conduct violated his Fifth Amendment right to due process.12
Therefore, the only questions
The first inquiry is easily dealt with, as the right to due process under the Fifth Amendment has been clearly established since at least the time of the enactment of the Fifth Amendment and is regularly recognized by the Supreme Court. See Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 275-76 (1855) (recognizing the right to due process of law before being deprived of liberty or property, and noting that the concept of due process enshrined in the Fifth Amendment traces its roots and meaning back to the Magna Carta); see also Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976) (discussing historical recognition of Fifth Amendment right to due process).
Defendants contend that a reasonable person would not have understood their conduct to violate Harper‘s rights. Def. Br. at 14. The Court disagrees. Harper alleges a multitude of regulatory and policy violations in addition to numerous actions which bear at least the appearance of impropriety. Compl. passim. Taken together, he was due under the CSRA to injure his constitutionally protected liberty and property interests. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954) (Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective); see also Webster, 486 U.S. at 601-03 (finding colorable liberty and property interests under the Due Process clause of the Fifth Amendment); D‘Angelo, 403 F. App‘x at 181-82 (plaintiff had property interest in continued employment via Navy regulations sufficient to state а claim for violation of his Fifth Amendment due process rights).
Harper‘s allegations amount to a coordinated plot to vitiate Harper‘s protections under the Fifth Amendment and the CSRA for the purpose of permanently depriving him of his ability to be employed in his chosen profession. At this stage in the proceedings, the Court concludes that a reasonable person would not have understood Defendants’ alleged actions to conform with established law. Defendants are not entitled to dismiss Harper‘s Bivens claim on the grounds of qualified immunity.
B. Tort Claims
Harper‘s Complaint contains three causes of action alleging tort claims: defamation per se (Count II), negligent supervision (Count III), and negligent training (Count IV) (collectively, the Tort Claims).13 Compl. ¶¶ 127-49. Defendants move to dismiss the Tort Claims on three grounds. First, Defendants assert that the Court lacks subject matter jurisdiction over the Tort Claims because Harper failed to exhaust his administrative remedies, a prerequisite to jurisdiction under the FTCA. Def. Br. at 7-8. Second, Defendants assert that the Tort Claims are excluded from the claims available under the FTCA. Id. Finally, Defendants argue that even if the Court does have jurisdiction, Harper‘s complaint does not contain sufficient facts to statе a claim for any of the Tort Claims. Id. at 8-9. For the following reasons,
Harper‘s FTCA Claims are dismissed for lack of subject matter jurisdiction, and Defendants’ motion to dismiss Harper‘s defamation per se claim is denied.
The United States and its agencies are immune from suit absent a specific waiver of sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity is a jurisdictional issue. Id. The FTCA functions as a limited waiver of sovereign immunity by the United States and its agencies because, pursuant to the FTCA, the United States and its agencies consent to be sued for certain tort claims. Molzof v. United States, 502 U.S. 301, 305 (1992); see also
Subject to the provisions of chapter 171 of this title, the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on or after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
claim.
Here, Harper contends that the DOI Appeal served as his presentation of his FTCA Claims to the Department beсause it alleged the same facts as Harper alleges in the Complaint.14 Compl. ¶¶ 107, passim.; Pl. Br. at 11. Defendants contend that the DOI Appeal does not satisfy the requirements of
Complaint. White, 227 F.3d at 1242. The DOI Appeal, which Harper submitted as Exhibit 5 to the Harper Decl., see ECF No. 19-2, 34-45, requests, inter alia, [r]estoration of all leave and wages and financial losses after March 27, 2019 due to administrative suspension and reassignment. DOI Appeal at 45.
Harper‘s claim for damages as asserted in the DOI Appeal fails to meet the jurisdictional requirements of
2. Defamation Per Se
a. Subject Matter Jurisdiction
Defendants also move to dismiss Count II (defamation per se) for lack of subject matter jurisdiction on the grounds that defamation is excluded from the FTCA and therefore the United States did not waive sovereign immunity for defamation claims. Def. Br. at 7-8. The FTCA excludes any claim arising out of . . . libel [or] slander.
assert his defamation claim under the FTCA because he likely knew that it would be precluded by
Harper‘s claim for defamation would be excluded from the FTCA‘s waiver of sovereign immunity to the extent it is alleged under the FTCA. Kaiser v. Blue Cross, 347 F.3d 1107, 1117 (9th Cir. 2003) (The [FTCA] does not permit suits against the United States for defamation) (internal citations omitted); see also McLachlan v. Bell, 261 F.3d 908, 912 (9th Cir. 2001) (claims for defamation claim fall within the
Although Defendants claim that the FTCA prohibits claims against federal employees acting within the scope of their employment, employees who are sued in their individual capacities must first comply with the Federal Employees Liability Reform and Tort Compensation Act (the Westfall Act) to garner that protection. See
The remedy against the United States provided by [the FTCA] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim . . . . Any other civil action or proceeding
for money damages arising out of or relating to the same subject matter agаinst the employee . . . is precluded without regard to when the act or omission occurred.
999, 1000 (9th Cir. 1997) (en banc) ([W]hen there is power to hear [a] case under
b. Rule 12(b)(6) Motion to Dismiss
To state a claim for defamation, a plaintiff must allege that the defendant: (1) communicated information concerning the plaintiff to others; (2) that the information was defamatory; and (3) that the plaintiff was damaged because of the communication. Ice Castles, LLC v. LaBelle Lake Ice Palace, LLC, 409 F. Supp. 3d 912, 920 (D. Idaho Aug. 12, 2019) (citing Clark v. The Spokesman-Review, 144 Idaho 427, 163 P.3d 216, 219 (Idaho 2007)). Statements are defamatory per se if they impute to the plaintiff 1) a criminal offense; 2) a loathsome disease; 3) a matter incompatible with his trade, business, profession, or office; or 4) serious sexual misconduct. Sadid v. Vailas, 943 F. Supp. 2d 1125, 1134-35 (D. Idaho May 2, 2013) (citing Yoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 923 P.2d 416, 425 (Idaho 1996)). A plaintiff alleging defamation per se need not plead specific damages, as general damages are assumed. Id. at 1134.
In support of his claim for defamation per se, Harper alleges that Graham and Nedd knowingly communicated false information that impugned his honesty, integrity, virtue, or reputation. Compl. ¶¶ 128-31. Although it is not completely
Therefore, the Court finds that Harper has pleaded facts sufficient to state a claim for defamation per se. Harper may proceed with his defamation per se claim against Graham аnd Nedd; however, to the extent Harper attempts to assert defamation claims against any of the other defendants, those claims are dismissed.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part and denied in part, and it is
ORDERED that Defendants’ motion is GRANTED in part and DENIED in part; and it is further
ORDERED that Defendants’ motion to dismiss Count I of Harper‘s Complaint for violations of Harper‘s Fifth Amendment right to due process under Bivens is DENIED; and it is further
ORDERED that Defendants’ motion to dismiss Count II of Harper‘s Complaint for defamation per se is DENIED; and it is further
ORDERED that Defendants’ motion to dismiss Count III of Harper‘s Complaint for negligent supervision is GRANTED and Count III is dismissed without prejudice; and it is further
ORDERED that Defendants’ motion to dismiss Count IV of Harper‘s Complaint for negligent training is GRANTED and Count IV is dismissed without prejudice; and it is further
ORDERED that Defendants shall file an answer to the Complaint within 20 days of the date of this Opinion and Order; and it is further
ORDERED that the status conference scheduled for Thursday, November 18, 2021, is adjourned until Tuesday, January 11, 2022, at 11:00 a.m. M.S.T.
Dated: November 12, 2021
New York, New York
/s/ Claire R. Kelly
Claire R. Kelly, Judge*
* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by designation.