McDonald v. Kempthorne , 831 F. Supp. 2d 313 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
DAVID MCDONALD, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1696 (RWR)
)
KEN SALAZAR et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff David McDonald, an employee of the United States
Park Police (“USPP”), brings claims against the Secretary of the
Interior and USPP employees Diana Smith, Philip Beck, and Warren
Boyer,1 alleging violations of McDonald’s Fourth and Fifth
Amendment rights, a hostile work environment, and retaliation.
Defendants have filed a motion to dismiss the amended complaint,
arguing that McDonald’s claims are untimely, that special factors
counsel hesitation in creating a remedy for McDonald’s alleged
constitutional violations, and that the defendants are entitled
to qualified immunity. Although McDonald’s claims are timely, he
has failed to state a Fifth Amendment due process claim, the
defendants are entitled to qualified immunity on his Fourth
Amendment claim, and the existence of a comprehensive remedial
1
Another defendant, John B. Farrell, has been dismissed
from the case.
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scheme for allegations by federal employees of employment
discrimination precludes his hostile work environment and
retaliation claims. Therefore, the defendants’ motion to dismiss
will be granted.
BACKGROUND
The amended complaint and materials it refers to set forth
the following background and allegations. McDonald, a black
male, has served as an officer with the USPP, an entity within
the Department of the Interior, for fifteen years. (Am. Compl.
¶¶ 4-5.) McDonald filed equal employment opportunity (“EEO”)
complaints alleging that Beck, a white male and the commanding
officer in McDonald’s district, discriminated and retaliated
against him. (Id. ¶ 6.) On May 26, 2006,2 Beck held a meeting
in his office with McDonald. McDonald believed that Beck planned
to discipline him at the meeting, and he brought with him a tape
recorder, which he placed in his shirt pocket. (Id. ¶ 7.) At
the conclusion of the meeting, McDonald began to leave the room,
but Beck ordered McDonald not to leave and to provide to Beck the
object in McDonald’s shirt pocket. Beck “physically blocked his
office door[.]” (Id.) McDonald repeatedly refused to furnish
the object and, in response to Beck’s question asking whether the
object was a tape recorder, denied that it was one. (Id.; Defs.’
2
USPP’s Notice of Proposed Removal (Defs.’ Mot. to Dismiss
Compl., Ex. 1 (“Notice”)) lists the date of the incident as May
24, 2006.
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Mot. to Dismiss Compl., Ex. 1, Notice of Proposed Removal
(“Notice”) at 1-2.)3 Beck summoned other officers to the room,
one of whom threatened to strip search McDonald. (Am. Compl.
¶ 7.) McDonald then requested union representation, and once a
representative arrived, Beck ordered McDonald to remove his
jacket, gun belt, and boots. (Id. ¶¶ 8-9.) Boyer physically
searched McDonald’s person. When ordered to empty his pockets
and socks, McDonald removed the tape recorder, concealed in a
brown case.4 Beck ordered McDonald to surrender his badge, gun,
credentials, and the keys to his home-to-work vehicle. (Id.
¶ 9.)
After the incident in Beck’s office, the USPP placed
McDonald on administrative leave. McDonald later returned to
work on restricted duty, assigned to the USPP’s Brentwood Auto
Shop, cleaning and stripping decals from police vehicles instead
of engaging in his former policing duties. (Id. ¶ 10.) On
April 8, 2008,5 Smith, Commander of the Office of Professional
3
According to the Notice, Beck saw a red light activate from
inside McDonald’s shirt pocket whenever there was conversation.
(Notice at 1.)
4
According to the Notice, a sergeant had seen McDonald move
a case from an upper pocket to his pants. Boyer asked McDonald
what had been in his shirt pocket. McDonald replied it may have
been a cell phone. However, McDonald did not have a cell phone.
(Notice at 2-3.)
5
The Notice appears to have been issued on April 3, 2008
rather than April 8, 2008 as the amended complaint avers.
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Responsibility, proposed removing McDonald from employment for
his lack of candor and failure to follow a direct order. (Id.
¶ 11; Notice at 1.) The Notice alleges that McDonald’s conduct
was “in violation of G.O. 32.03, II, 22, which states, in part,
‘An officer shall promptly obey all lawful orders issued by a
superior officer.’” (Notice at 5.) The Notice also alleges that
McDonald violated “General Order (G.O.) 32.03, II, section 26,
which states, ‘It is the duty of a subordinate officer to respond
truthfully to questions asked by a supervisor in connection with
matters relating to the official business of the Force.’” (Id.
at 5.)
On October 2, 2008, McDonald filed this suit alleging
violations of his Fourth and Fifth Amendment rights under Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Pl.’s
Opp’n to Defs.’ Mot. to Dismiss Am. Compl. (“Pl.’s Opp’n”) at 4),
and seeking legal and equitable relief and attorney’s fees.6 He
claims that the defendants unreasonably searched and seized him,
removed him from his duties without procedural or substantive due
6
Although McDonald’s amended complaint does not make clear
whether he is asserting claims against the defendants in their
official capacities, it will be construed as asserting claims for
damages against the defendants in only their individual
capacities, since Bivens actions are brought against federal
officials in their individual, not their official, capacities,
and sovereign immunity bars suits for money damages against
officials acting in their official capacities absent a specific
waiver by the government. See Clark v. Library of Congress, 750
F.2d 89, 102-03 (D.C. Cir. 1984).
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process, deprived him of a liberty interest without a hearing,
and violated his due process rights by creating a hostile work
environment and retaliating against him for filing prior EEO
complaints. (Am. Compl. ¶¶ 13, 17, 20, 23.) The defendants move
to dismiss, arguing that McDonald’s claims are untimely, that
special factors counsel hesitation in creating a remedy for
McDonald’s alleged constitutional violations, and that the
defendants are entitled to qualified immunity.7 (Mem. of P. & A.
in Supp. of Defs.’ Mot. to Dismiss Am. Compl. (“Defs.’ Mem.”) at
7-8.)
DISCUSSION
In considering a motion to dismiss for failure to state a
claim under Rule 12(b)(6), a court must construe the complaint in
the light most favorable to the plaintiff, Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002), and “assume the truth of all
well-pleaded allegations.” Warren v. District of Columbia, 353
7
The defendants also argue that there is no personal
jurisdiction over the individual defendants because McDonald
failed to effect proper service of process. However, McDonald
has now properly served all remaining individual defendants.
In addition, the defendants challenge McDonald’s claim under
42 U.S.C. § 1988 for attorney’s fees. McDonald’s amended
complaint does not allege a violation of 42 U.S.C. § 1983, or any
other statutory violation that would entitle a plaintiff to
attorney’s fees under § 1988. Therefore, his claim for
attorney’s fees under § 1988 will be dismissed. See Ranger v.
Tenet, 274 F. Supp. 2d 1, 6-7 (D.D.C. 2003) (“Because [the
plaintiff] has failed to state a cognizable claim under § 1983,
his claim under § 1988 must fail as well.” (footnote omitted)).
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F.3d 36, 39 (D.C. Cir. 2004). “[T]he court need not accept
inferences drawn by [a] plaintiff[] if such inferences are
unsupported by the facts set out in the complaint. Nor must the
court accept legal conclusions cast in the form of factual
allegations.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994); see also Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). A plaintiff does not need to plead detailed factual
allegations. Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc.,
525 F.3d 8, 16 (D.C. Cir. 2008) (stating that “[i]n general, a
complaint should simply identify the ‘circumstances, occurrences,
and events’ giving rise to the claim” (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007))). But, enough facts must
be pled to “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. Documents “appended to [a]
motion to dismiss . . . whose authenticity is not disputed . . .
may be considered . . . [when] they are referred to in the
complaint and are integral to [plaintiff’s] claim.” Kaempe v.
Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).8
8
The USPP Notice of Proposed Removal sent to McDonald, which
was appended to the defendants’ motion to dismiss the original
complaint and incorporated into defendant’s motion to dismiss the
amended complaint, will be considered. The amended complaint
refers to the proposed removal (Am. Compl. ¶¶ 11, 14), and
McDonald has neither made any arguments against considering the
material nor disputed the authenticity of the material. The
other materials appended by the defendants, namely, McDonald’s
outline of his oral response to the assertions made to the notice
of proposed removal and the apparently incomplete transcript of
McDonald’s interview with the USPP internal affairs unit will not
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I. TIMELINESS
The defendants argue that McDonald’s constitutional claims
are untimely because they stem from events that occurred more
than one year before he filed suit. (Def.’s Mem. at 11-12.)
“When a federal action contains no statute of limitations, courts
will ordinarily look to analogous provisions in state law as a
source of a federal limitations period.” Doe v. U.S. Dep’t of
Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985). District of
Columbia law therefore provides the appropriate limitations
periods for McDonald’s Bivens claims. See Lederman v. United
States, 131 F. Supp. 2d 46, 60 (D.D.C. 2001). Section 12-301 of
the D.C. Code provides in relevant part:
Except as otherwise specifically provided by law,
actions for the following purposes may not be brought
after the expiration of the period specified below from
the time the right to maintain the action accrues . . .
(4) for libel, slander, assault, battery, mayhem,
wounding, malicious prosecution, false arrest or false
imprisonment –– 1 year; . . .
(8) for which a limitation is not otherwise specially
prescribed –– 3 years[.]
D.C. Code §§ 12-301(4), (8).
A proper limitations provision must account for the
characteristics of litigation under the analogous federal
be considered because they are neither referred to in the
complaint nor central to plaintiff’s claims. Moreover, they are
not relevant to the inquiry into the objective reasonableness of
the defendants’ actions for purposes of qualified immunity,
discussed below.
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statute, including the policies underlying and the practicalities
involved in litigating the federal cause of action. See Burnett
v. Grattan, 468 U.S. 42, 50 (1984) (holding that the appropriate
state limitations period for civil rights claims must account for
the goals underlying the Civil Rights Act). The defendants,
citing Wormley v. United States, 601 F. Supp. 2d 27, 35 (D.D.C.
2009), argue that McDonald’s unreasonable search and seizure
claims are analogous to false arrest and false imprisonment.
(Defs’ Mem. at 11.) “This Circuit has recognized, however, that
‘interests respectively protected by federal constitutional law
and local assault law are not congruent, and that injuries
inflicted by officers acting under color of (legal authority) are
significantly different in kind from those resulting from acts of
private persons.’” Lederman, 131 F. Supp. 2d at 61 (alteration
in original) (quoting Payne v. Gov’t of D.C., 559 F.2d 809, 817
n.32 (D.C. Cir. 1977)). In the context of § 1983 claims, the
Supreme Court has held that courts should borrow limitations
periods from general or residual personal injury actions and not
from intentional tort actions because constitutional claims “bear
little if any resemblance to the common-law intentional tort.”
Owens v. Okure, 488 U.S. 235, 249 (1989). Applying the general
or residual limitations period for § 1983 claims best promotes
the federal interests in uniformity, certainty, and minimization
of unnecessary litigation. See id. at 240. These same concerns
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underlie Bivens actions. See Williams v. Hill, 74 F.3d 1339,
1340-41 (D.C. Cir. 1996) (noting that the bodies of law for
§ 1983 and Bivens actions overlap in most respects); Lederman,
131 F. Supp. 2d at 61.
Because “the general limitations provision better accounts
for the goals of a Bivens action, namely, to promote uniformity
and finality for potential litigants bringing federal
constitutional claims,” Lederman, 131 F. Supp. 2d at 62, the
appropriate limitations period is the three-year period. See
also Hobson v. Brennan, 625 F. Supp. 459, 467-68 (D.D.C. 1985)
(reasoning that the three-year limitations period is more
appropriate for the complex claims alleged in § 1983, § 1985, and
Bivens actions); Logiurato v. ACTION, 490 F. Supp. 84, 90-91
(D.D.C. 1980) (rejecting contention that plaintiff’s allegations
that defendants acting under color of law drugged, repatriated,
and hospitalized the plaintiff against his will are analogous to
the common law torts of assault, false arrest, and false
imprisonment for the purposes of determining the appropriate
limitations period and holding that § 12-301(8) applies to
constitutional torts).9 McDonald filed his complaint on
October 2, 2008, alleging Bivens claims based on events that took
place on May 26, 2006. The three-year period had not expired
9
But see Wormley, 601 F. Supp. 2d at 35 (finding
plaintiff’s Bivens claims analogous to false imprisonment and
false arrest and applying one-year limitations period).
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when he filed his complaint, and, therefore, his Bivens claims
are timely.
II. DUE PROCESS CLAIMS
McDonald claims that the defendants violated his due process
rights by removing him from his duties as a police officer
without procedural due process and denying him a name-clearing
hearing after they defamed him. (Am. Compl. ¶¶ 17, 20.)
“Whether any procedural protections are due [under the Fifth
Amendment] depends on the extent to which an individual will be
‘condemned to suffer a grievous loss.’” Morrissey v. Brewer, 408
U.S. 471, 481 (1972) (quoting Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)).
Only after a plaintiff demonstrates a deprivation of a liberty or
property interest does a court determine what procedural
protections are necessary to comport with due process. See Reeve
Aleutian Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C.
Cir. 1993).
A. Removal from duties
“To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.” Bd. of Regents v.
Roth, 408 U.S. 564, 577 (1972). “Property interests are not
created by the Constitution, they are created and their
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dimensions are defined by existing rules or understandings that
stem from an independent source[,]” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 (1985) (internal quotation and
citation omitted), such as a statute or regulation. Doe v.
Gates, 981 F.2d 1316, 1320 (D.C. Cir. 1993). Members of the USPP
are covered by the Civil Service Reform Act (“CSRA”), Pub. L. 95-
454, 92 Stat. 1111 et seq. (codified, as amended, in various
sections of 5 U.S.C.). Humberson v. U.S. Attorney’s Office for
D.C., 236 F. Supp. 2d 28, 31 (D.D.C. 2003). The CSRA prohibits
employers from, among other things, reducing the grade or pay,
removing without cause, or suspending for more than fourteen days
covered employees. Id. (citing 5 U.S.C. § 7513(a)). While the
prohibition on removing an employee without cause means that
“Competitive Service employees possess a legitimate expectancy
of, and therefore a property interest in, continued federal
employment[,] . . . it does not follow that [they have] such an
interest in every aspect of [their] job[s], or that the Fifth
Amendment protects [them] from employment actions short of those
described” in § 7513(a). Id.
Here, McDonald has not pled that the defendants reduced his
grade or pay, nor has he pled that the defendants removed him, or
that he resigned and that the circumstances constituted a
constructive discharge. Moreover, although McDonald pled that
the defendants placed him on administrative leave, he has not
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pled that the administrative leave lasted for a period longer
than fourteen days. (See Am. Compl. ¶ 17.) Because a mere
change in duties does not violate the CSRA, McDonald has not
established that the defendants deprived him of a property
interest by reassigning him to the Brentwood Auto Shop. See
Humberson, 236 F. Supp. 2d at 31 (refusing to recognize as a
deprivation of a property interest a reassignment that precluded
plaintiff from performing certain tasks that he previously
performed). Cf. Thompson v. District of Columbia, 530 F.3d 914,
919 (D.C. Cir. 2008) (holding that transferring an employee to a
position scheduled for imminent elimination constituted a
constructive removal that deprived the plaintiff of a property
interest). As such, McDonald has not sufficiently pled that the
defendants deprived him of a procedural due process right.10
10
McDonald also claims that his reassignment deprived him
of substantive due process. (Am. Compl. ¶ 17.) Two situations
implicate substantive due process. First, “[s]ubstantive due
process rights attach . . . when a fundamental right is
involved[.]” Am. Fed’n of Gov’t Employees (AFL-CIO) v. United
States, 195 F. Supp. 2d 4, 12-13 (D.D.C. 2002); see also,
Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that
the Due Process Clause “provides heightened protection against
government interference with certain fundamental rights and
liberty interests”). Second, an abuse of executive power that
“shocks the conscience” violates substantive due process. County
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). McDonald does
not allege that the defendants violated a fundamental right, and
he offers no authority to support a finding that the facts that
he alleges shock the conscience. Cf. Rochin v. California, 342
U.S. 165, 172 (1952) (finding that police officers who illegally
broke into the plaintiff’s home, struggled to force open his
mouth to remove its contents, and later arranged for his stomach
to be pumped constituted “conduct that shocks the conscience”);
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B. Name-clearing hearing
An individual has a constitutionally protected liberty
interest to follow a chosen profession without unreasonable
interference by the government. Trifax Corp. v. District of
Columbia, 314 F.3d 641, 643 (D.C. Cir. 2003). However, “[b]y
themselves, charges of government defamation are insufficient to
create a liberty interest.” Orange v. District of Columbia, 59
F.3d 1267, 1274 (D.C. Cir. 1995). Instead, for a plaintiff to
demonstrate a liberty interest, he must show that the
government’s attack on his personal reputation has “achieved in
substance an alteration of status that, if accomplished through
formal means, would constitute a deprivation of liberty[.]”
Trifax Corp., 314 F.3d at 644. This rationale gives rise to the
“reputation plus” requirement: a plaintiff must show that the
resulting stigma from any harm to his reputation altered his
employment status in a tangible way. Id. However, a plaintiff
cannot demonstrate harm to his reputation in the absence of a
public attack on his reputation. Orange, 59 F.3d at 1274(“Injury to reputation cannot occur in the absence of public
disclosure of the allegedly damaging statements.”)
Garcia ex rel. Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.
1987) (holding that grossly excessive corporal punishment could
be “shocking to the conscience” and “violate substantive due
process rights”). Thus, he has not sufficiently pled that the
defendants deprived him of substantive due process.
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Here, McDonald has not pled facts alleging that the
defendants deprived him of a liberty interest that would entitle
him to a name-clearing hearing because he has not pled that the
defendants made public defamatory statements about him. McDonald
alleges that “[o]n April 8, 2008, Defendant Smith proposed the
removal [of] Officer McDonald from employment based on charges of
lack of candor and failure to follow instructions.” (Am. Compl.
¶ 11.) McDonald did not plead to whom Smith made those
statements, yet alone that she made those statements publicly.
In the absence of such facts, McDonald’s allegation that the
defendants defamed him is no more than a legal conclusion couched
as a factual assertion and fails to state an actionable claim.
See Iqbal, 129 S. Ct. at 1949. As such, McDonald has not
sufficiently pled that the defendants deprived him of a liberty
interest, such that he is entitled to a name-clearing hearing.11
11
Moreover, the Federal Tort Claims Act provides federal
officials with absolute immunity for all common law torts
committed within the scope of their employment. 28 U.S.C.
§ 2679(b)(1). The Chief of the Civil Division of the United
States Attorney’s Office for the District of Columbia filed a
certification, in accordance with § 2679(d), that the defendants
were acting within the scope of their employment as employees of
the United States at the time of the alleged incident. McDonald
seeks limited discovery to contest the certification (Pl.’s Mem.
at 8.), which implies that McDonald’s complaint alleges, in
addition to a constitutional Bivens claim, a claim of common law
defamation committed beyond the scope of federal employment. To
the extent that McDonald’s complaint could be construed as
alleging a defamation tort under D.C. law, that claim will be
dismissed as untimely, since McDonald filed his complaint more
than one year after the defendants allegedly made the defamatory
statements. See D.C. Code 12-301(4).
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III. FOURTH AMENDMENT CLAIMS
A. Comprehensive remedial scheme
The defendants argue that the CSRA and the Federal Employees
Compensation Act (“FECA”) are comprehensive remedial schemes that
provide remedies for McDonald’s Fourth Amendment claims and
foreclose the creation of a Bivens remedy for his alleged illegal
search and seizure. (Defs.’ Mem. at 15-17.) Courts have the
discretion, in some circumstances, to create a remedy when
federal officials violate constitutional rights, but not when
“‘special factors counsel[] hesitation’ in doing so.” Wilson v.
Libby, 535 F.3d 697, 704 (D.C. Cir. 2008) (quoting Bivens, 403
U.S. at 396)). “One ‘special factor’ that precludes creation of
a Bivens remedy is the existence of a comprehensive remedial
scheme.” Id. at 705. “[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.” Spagnola v. Mathis, 859 F.2d 223, 228
(D.C. Cir. 1988) (per curiam) (en banc) (citing Schweiker v.
Chilicky, 487 U.S. 412 (1988) and Bush v. Lucas, 462 U.S. 367(1983)). Because “it is the comprehensiveness of the statutory
scheme involved, not the ‘adequacy’ of specific remedies extended
thereunder, that counsels judicial abstention[,]” the inability
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for a plaintiff to obtain complete relief under a particular
statute is not a sufficient basis for awarding that plaintiff
damages under Bivens. Id. at 227.
1. CSRA
The CSRA identifies “prohibited personnel practices” as
“tak[ing] or fail[ing] to take any . . . personnel action if the
taking of or failure to take such action violates any law, rule,
or regulation implementing, or directly concerning, the merit
system principles contained in” the CSRA. 5 U.S.C.
§ 2302(b)(12). A “personnel action” is any “significant change
in duties, responsibilities, or working conditions[,]” such as a
promotion, transfer, or decision concerning pay or benefits. 5
U.S.C. § 2302(a)(2). The CSRA is a comprehensive remedial scheme
for federal employees seeking damages from the United States for
prohibited personnel practices that precludes extending a Bivens
remedy to federal employees alleging that personnel actions
violated their constitutional rights. Bush, 462 U.S. at 368; see
also Spagnola, 859 F.2d at 229-30 (declining to extend Bivens
remedy for damages to federal employees alleging that they were
denied employment opportunities after exercising their First
Amendment rights). However, Bush stated explicitly that
warrantless searches do not qualify as personnel actions under
§ 2302(a)(2)(A) of the CSRA. 462 U.S. at 385 n.28; see also
Stewart v. Evans, 275 F.3d 1126, 1130 (D.C. Cir. 2002) (“By
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noting that a warrantless search is not a ‘personnel action[]
. . . covered by this system,’ and stating that such a search
does not fall ‘within the statutory scheme,’ Bush virtually
compels the conclusion that the Act does not preclude a Bivens
action for a warrantless search” at the plaintiff’s office of her
notes about an incident of alleged sex discrimination). Thus,
the CSRA is not a comprehensive remedial scheme for Boyer’s
warrantless search of McDonald.
Neither the Supreme Court nor the D.C. Circuit appears to
have determined explicitly whether warrantless seizures qualify
as personnel actions under the CSRA. Other courts have
characterized seizures on work premises of employees’ property as
personnel actions. See, e.g., Saul v. United States, 928 F.2d
829, 840 (9th Cir. 1991) (concluding that the CSRA precluded a
Bivens remedy where defendants seized personal mail addressed to
the plaintiff at his office because the defendants’ actions were
“work-related”); Plasai v. Mineta, No. 3-03-CV-2996-BD, 3-04-CV-
1477-BD, 2005 WL 1017806, at *3 (N.D. Tex. Apr. 26, 2005)
(reasoning that “the seizure and examination of plaintiff’s
computers were clearly related to her status as an . . .
employee” because the defendants “seized the computers from
plaintiff’s office as part of an investigation into her alleged
misconduct”); Black v. Reno, No. 99 CIV. 2704 RWS, 2000 WL 37991,
at *12 (S.D.N.Y. Jan. 18, 2000) (concluding that the CSRA barred
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plaintiff’s “damage claim[] arising from the alleged illegal
. . . seizure at her office” because it arose “from workplace
activities”). However, unlike Saul, Plasai, or Black, neither
Stewart nor Bush drew a distinction between conduct that occurred
on work premises and conduct that occurred off of work premises
for the purpose of determining whether a warrantless search
constituted a personnel action. Moreover, a warrantless seizure
of an employee’s person does not fit cleanly within any of the
categories of personnel actions listed in 5 U.S.C. § 2302(a)(2).
A warrantless seizure is hardly akin to a promotion, transfer, or
decision concerning pay or benefits. While a pattern of
warrantless seizures might arguably constitute a significant
change in working conditions, a single incident is too ephemeral
to constitute such a change. Therefore, just as with Boyer’s
warrantless search, the warrantless seizure here did not
constitute a personnel action. In sum, the CSRA is not a
comprehensive remedial scheme for the constitutional violations
McDonald alleges, and it does not preclude his claims. See
Spagnola, 859 F.2d at 229 (noting that the CSRA does not preclude
“the exercise of federal jurisdiction over the constitutional
claims of federal employees . . . altogether”).
2. FECA
The FECA is a comprehensive remedial scheme for “employees’
injuries in federal workplaces.” Briscoe v. Potter, 171 Fed.
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Appx. 850, 850 (D.C. Cir. 2005). However, the FECA covers only
mental and physical injuries. See Lockheed Aircraft Corp. v.
United States, 460 U.S. 190, 193-94 (1983) (drawing analogy
between FECA and workers’ compensation legislation). The FECA
defines an injury to include “in addition to injury by accident,
a disease proximately caused by the employment,” 5 U.S.C.
§ 8101(5), and these injuries must result in either disability or
death for a federal employee to qualify for compensation. 5
U.S.C. § 8102(a).
The defendants argue that if McDonald is to claim that his
injuries fall outside of FECA’s remedial scheme, he must seek a
determination in the first instance from the Secretary of Labor.
(Defs.’ Mem. at 17.) However, a determination from the Secretary
of Labor is necessary only where the FECA’s coverage of an
employee’s injuries is ambiguous. See Zellars v. United States,
578 F. Supp. 2d 1, 5 (D.D.C. 2008) (“When there is ambiguity
regarding whatever claims are covered by FECA, the Secretary of
Labor must determine if it applies.”); Daniels-Lumley v. United
States, 306 F.2d 769, 771 (D.C. Cir. 1962) (noting that the
Secretary of Labor need not determine the applicability of FECA
if a plaintiff’s injuries are “clearly not compensable under the
[FECA]”). The underlying injury McDonald alleges is an
unreasonable search and seizure. Unlawful detention constitutes
an injury “irrespective of any physical or mental harm,” and is
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not covered by the FECA. Tredway v. District of Columbia, 403
A.2d 732, 735 (D.C. 1979) (internal quotation omitted). Courts
disagree whether some non-physical injuries such as a claim of
intentional infliction of emotion distress are covered under the
FECA. See Zellars, 578 F. Supp. 2d at 4 (describing split in
case law). However, McDonald’s allegations that he suffered
damages including “emotional distress, embarrassment, anxiety,
fatigue, mental distress, humiliation, illness and damage to his
employment and personal reputation,” in addition to economic harm
(“lost wages and benefits”), as a result of his search and
seizure, and subsequent removal (Am. Compl. ¶ 15), do not reduce
his claim to one for emotional or mental distress. McDonald’s
allegations of search and seizure in violation of the Fourth
Amendment are not amenable to characterization as an “injury by
accident” or a “disease proximately caused by employment” that
could result in either “disability or death.” 5 U.S.C.
§§ 8101(5), 8102(a). FECA is therefore not a comprehensive
remedial scheme for the constitutional violations McDonald
alleges, and it does not preclude his claims.
B. Qualified immunity
The defendants also argue that they are entitled to
qualified immunity with respect to McDonald’s Fourth Amendment
claim. “The doctrine of qualified immunity protects government
officials ‘from [personal] liability for civil damages insofar as
- 21 -
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine if
an official is protected by qualified immunity and therefore
entitled to dismissal of the claims against him, a court must ask
“whether the plaintiff has alleged the deprivation of an actual
constitutional right,” and “whether that right was clearly
established at the time of the alleged violations.” Int’l Action
Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004)
(quotations and citations omitted). Courts may “exercise their
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.
The second inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposition.
. . . ‘The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right.’” Saucier v. Katz, 533 U.S. 194, 201-02
(2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
A court must determine whether “it would be clear to a reasonable
[official] that his conduct was unlawful in the situation he
confronted.” Id. at 202. Officials are presumed to have
knowledge of all developments in constitutional law at the time
- 22 -
the alleged violation occurred. Harris v. District of Columbia,
932 F.2d 10, 13 (D.C. Cir. 1991). Ignorance of the law is not a
defense, since a “‘reasonably competent public official should
know the law governing his conduct.’” Barham v. Ramsey, 338 F.
Supp. 2d 48, 55 (D.D.C. 2004) (quoting Harlow, 457 U.S. at 818-
19)). “[O]fficials can still be on notice that their conduct
violates established law even in novel factual circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002). Accordingly, an
official may have fair warning that his conduct deprived the
victim of a constitutional right even if there existed at the
time no case with materially similar facts. Id. at 739.
However, if an officer makes a reasonable mistake as to the
conduct required by the law under the circumstances, the officer
may be entitled to qualified immunity. Saucier, 533 U.S. at 205.
Qualified immunity is not merely a defense to liability; it
immunizes the defendant from being sued at all. Pearson, 555
U.S. at 231; see also Harris, 932 F.2d at 13 (“Qualified immunity
shields government officials performing discretionary functions
from damages stemming from certain allegedly unconstitutional
conduct in order that they not be unduly inhibited in or diverted
from the exercise of their duties by fears of personal monetary
liability and harassing litigation.”). Although qualified
immunity is typically pled by an official as an affirmative
defense, see Harlow, 457 U.S. at 815, whether a defendant is
- 23 -
protected by qualified immunity should be resolved at the
earliest stage possible so that the “costs and expenses of trial
are avoided where the defense is dispositive.” Saucier, 533 U.S.
at 200-01. Thus, a defendant may raise the defense in a motion
to dismiss. See Behrens v. Pelletier, 516 U.S. 299, 306 (1996)
(noting that a defendant who successfully pleads “‘qualified
immunity is entitled to dismissal before the commencement of
discovery.’” (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985))); Ennis v. Lott, 589 F. Supp. 2d 33, 36-37 (D.D.C. 2008)
(stating that “the plaintiff must overcome the qualified immunity
defense in order to survive a Rule 12(b)(6) motion to dismiss”).
The qualified immunity determination is a question of law,
Mitchell, 472 U.S. at 528, and the trial court has an independent
obligation to survey the relevant law to determine whether a
constitutional right was violated and whether that right was
clearly established. Thus, although McDonald cites no case law
in opposition to the defendant’s assertion of qualified immunity
(see Pl.’s Opp’n at 6 (stating only that “Mr. McDonald alleged
that armed police officers held him in a room against his will
and searched his person without probable cause. This is a
violation of a clearly established right.”)), inadequate briefing
by the plaintiff is not a proper basis for concluding that the
defendant is entitled to immunity. See generally Elder v.
Holloway, 510 U.S. 510 (1994) (holding that qualified immunity
- 24 -
determination should be conducted in light of all relevant
precedents). Because the plaintiff casts the right allegedly
violated in general terms, it is “difficult to decide whether
[the] right is clearly established without deciding precisely
what the existing constitutional right happens to be.” Pearson,
555 U.S. at 236 (quoting Lyons v. Xenia, 417 F.3d 565, 581 (6th
Cir. 2005) (Sutton, J., concurring)). Both prongs therefore will
be discussed in making the qualified immunity determination.
1. Violation of a constitutional right
The standard for evaluating the constitutionality of the
defendants’ seizure and search of McDonald depends on the purpose
of defendants’ conduct. Where a police department searches or
seizes one of its officers for the purpose of criminal
investigation, the Constitution requires the intrusion to have a
basis in probable cause. “Policemen, like teachers and lawyers,
are not relegated to a watered-down version of constitutional
rights.” Garrity v. New Jersey, 385 U.S. 493, 500 (1967). The
probable cause requirement protects the heightened liberty
interest that criminal investigations implicate, and that liberty
interest is not diminished by an employment relationship between
the government and the subject of a search or seizure. See
Driebel v. City of Milwaukee, 298 F.3d 622, 640 (7th Cir. 2002)
(holding that “a law enforcement agency needs probable cause to
seize its employees as part of a criminal investigation”);
- 25 -
Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001) (holding that
police officer’s “seizure and custodial interrogation for the
purpose of a criminal investigation required probable cause”);
United States v. Taketa, 923 F.2d 665, 675 (9th Cir. 1991)
(holding that law enforcement agency “cannot cloak itself in its
public employer robes in order to avoid the probable cause
requirement when it is acquiring evidence for a criminal
prosecution.”).
The lower standard of reasonable suspicion applies when the
government seizes or searches an employee as part of an internal,
administrative investigation. See O’Connor v. Ortega, 480 U.S.
709, 725-26 (1987) (plurality opinion) (holding that “public
employer intrusions on the constitutionally protected privacy
interests of government employees for noninvestigatory, work-
related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness
under all the circumstances.”). The government’s operation of a
police force is akin to “its supervision of probationers or
regulated industries, or its operation of a government office,
school, or prison” in that it “presents special needs beyond
normal law enforcement that may justify departures from the usual
warrant and probable-cause requirements.” Skinner v. Railway
Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989) (internal
quotations omitted). A basis in individualized suspicion is a
- 26 -
key indicator of the reasonableness of a search or seizure for
internal investigative purposes in the workplace. The D.C.
Circuit has emphasized that “individualized suspicion goes far
toward making a search reasonable where the government [as
employer] has a legitimate interest in confirming the alleged
violation.” Nat’l Treasury Empls. Union v. Yeutter, 918 F.2d
968, 975 (D.C. Cir. 1990); see also Cerrone, 246 F.3d at 201(holding that while probable cause is required for criminal
investigation, “lesser standard of individualized suspicion is
permissible . . . in internal disciplinary investigations of
government employees by their government employers.”).
The determination as to whether McDonald was seized and
searched as part of an administrative or a criminal investigation
must assess the full context of the encounter. Guidance from the
Seventh Circuit proves instructive in this regard:
The determination of whether an officer has been seized
for the purpose of a criminal or an administrative
investigation should focus on the totality of the
circumstances, including: (1) the nature of the
encounter, its setting, and its preparation; (2)
whether the police department followed the applicable
collective bargaining agreement’s provisions for
administrative investigations; and (3) the statements
made by the questioning detectives. Driebel, 298 F.3d
at 640 n.9 (2002) (citing Cerrone, 246 F.3d at 201).
Here, the nature of the encounter was a “meeting,” at which
McDonald “belie[ved] that he would be disciplined.” (Am. Compl.
¶ 7.) In the absence of any additional allegations, the setting
and preparation of the encounter do not support an inference that
- 27 -
McDonald believed he would be subject to a criminal
investigation. Further, defendant Beck honored McDonald’s
request for Union representation and summoned a Union
representative to the location. (Id. ¶ 8.) Finally, after
defendant Beck blocked McDonald from departing at the conclusion
of the meeting, Beck’s alleged questioning and commands related
solely to Beck’s suspicions about the tape recorder in McDonald’s
pocket (id. ¶¶ 7-9), and did not concern criminal charges. To
determine whether the reasonableness or probable cause standard
applies, “the crucial question is . . . whether the
investigation’s objective is to discipline the officer within the
department or to seek criminal prosecution.” Cerrone, 246 F.3d
at 200. The defendants’ alleged conduct here reflects the aim of
disciplining McDonald.
McDonald, however, arguing in opposition to the defendants’
motion to dismiss, characterizes the seizure as an “arrest”
(Pl.’s Opp’n at 8), a term that generally implies a seizure for
the purpose of a criminal charge or investigation. While a court
views the facts alleged in the light most favorable to the
plaintiff, a court is not obliged to accept a conclusory legal
characterization in the course of subsequent briefing as correct.
Moreover, McDonald himself asserted in his opposition that
“[t]here was no criminal investigation because Mr. McDonald was
never suspected of any crime.” (Id.) In addition, the encounter
- 28 -
was not transformed into a criminal investigation just because
there is a question about the legality of one party to an oral
communication recording that communication without the consent of
the other party. See Myers v. Baca, 325 F. Supp. 2d 1095, 1108
n.6 (C.D. Cal. 2004) (reasoning that “whether the conduct at
issue could be criminal is not relevant, but instead, if the
central purpose of the investigation is to collect information
for possible criminal prosecution, then and only then is the
probable cause standard relevant.”) (emphasis in original). For
the same reason, the defendants’ suggestion that probable cause
existed to arrest McDonald for making false statements because he
lied about having a tape recorder (Defs.’ Mem. at 29-30) is of no
moment.
Because the facts support the conclusion that the defendants
seized McDonald as part of an administrative, not a criminal,
investigation, the reasonableness standard applies. To pass
constitutional muster, “both the inception and the scope of the
intrusion must be reasonable.” O’Connor, 480 U.S. at 726 (citing
Terry v. Ohio, 392 U.S. 1, 20 (1968); New Jersey v. T.L.O., 469
U.S. 325, 341 (1985)). The O’Connor plurality reasoned that a
search of an employee’s office would be “‘justified at its
inception’ when there are reasonable grounds for suspecting that
the search will turn up evidence that the employee is guilty of
work-related misconduct,” and “permissible in its scope when ‘the
- 29 -
measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of . . . the nature
of the [misconduct].’” Id. (quoting New Jersey v. T.L.O., 469
U.S. at 342). The analysis therefore proceeds in light of the
established principle that “[t]he manner in which the seizure and
search were conducted is . . . as vital a part of the inquiry as
whether they were warranted at all.” Terry, 392 U.S. at 28.
Here, McDonald was “seized” within the meaning of the Fourth
Amendment when defendant Beck “physically blocked his office
door,” and ordered McDonald to hand over the tape recorder. (Am.
Compl. ¶ 7.) “[A] person has been ‘seized’ within the meaning of
the Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave.” United States v. Mendenhall, 446
U.S. 544, 554 (1980). The “free to leave” inquiry is distinct in
an employment situation because “when people are at work their
freedom to move about has been meaningfully restricted . . . by
the workers’ voluntary obligations to their employers.” INS v.
Delgado, 466 U.S. 210, 218 (1984). To effect a seizure in the
employment context, a government agent must, “by means of
physical force or show of authority,” Florida v. Bostick, 501
U.S. 429, 434 (1991) (quoting Terry, 392 U.S. at 19 n.16 ),
constrain an employee’s liberty in a manner beyond the normal
incidents of the employment relationship. The fact that McDonald
- 30 -
was physically prevented from leaving is a clear step beyond the
ordinary limitation on an employee’s movements that arises due to
a voluntary choice to carry out the duties of a certain job.
Defendant Beck had grounds for reasonable, individualized
suspicion for initiating the seizure of McDonald. McDonald
alleged that he “took a tape recorder with him” to his meeting
with Beck. (Am. Compl. ¶ 7.) When Beck saw the flashing red
light in McDonald’s shirt pocket and suspected that McDonald had
surreptitiously tape recorded their official meeting, McDonald’s
failure to hand over the object in his pocket as ordered and
denial that the object was a tape recorder, reflected
insubordination and suggested a lack of candor that in the
context of the strict hierarchy of a police force can be
characterized as work-related misconduct. “A police department
is a paramilitary organization that must maintain the highest
degree of discipline, confidentiality, efficiency, and espirit de
corps among its officers[.]” Driebel, 298 F.3d at 638. Police
officers occupy positions of public trust, and police departments
have a legitimate interest in closely supervising their employees
and investigating work-related misconduct. See id. at 648 (“Law
enforcement agencies are entitled to deference, within reason, in
the execution of policies and administrative practices that are
designed to preserve and maintain security, confidentiality,
internal order, and esprit de corps among their employees.”).
- 31 -
Smith’s proposed removal of McDonald was expressly “based on
charges of lack of candor and failure to follow instructions.”
(Am. Compl. ¶ 11.) The Notice of Proposed Removal explained that
“being untruthful is a grave form of misconduct by a Police
Officer.” (Notice at 6.) Defendant Beck had “reasonable grounds
for suspecting” that seizing McDonald would “turn up evidence
that the employee [was] guilty of work-related misconduct.”
O’Connor, 480 U.S. at 726. Blocking the door, at least
temporarily, and ordering McDonald to hand over the object in his
pocket, were limited intrusions on McDonald’s privacy designed to
reveal evidence confirming McDonald’s failure to be forthright.
However, whether the seizure remained reasonable in scope is
a closer question. Following McDonald’s refusal to comply with
Beck’s order, Beck allegedly “summoned other officers to the
room” and “instructed [them] that they were not to allow
Mr. McDonald to leave the room.” (Am. Compl. ¶ 7.) One of the
assembled officers told McDonald that they “would strip search
him if they had to.” (Id.) In the course of the seizure,
McDonald was not strip searched, but subjected to a search of his
person. He was ordered to remove his jacket, his gun belt, and
his boots. One of the officers conducted a physical search of
McDonald. McDonald was then ordered to remove the contents of
his pockets and socks, at which point McDonald produced the tape
recorder. (Id. ¶ 9.)
- 32 -
Despite the initial justification for seizing McDonald,
defendants had a less compelling interest in prolonging the
seizure and conducting a search of McDonald’s person. It is
significant that the elements of misconduct identified in the
Notice of Proposed Removal, that is, lack of candor and failure
to follow a direct order, were established at the early stages of
the seizure, once McDonald denied that the object in his pocket
was a tape recorder but refused to comply with Beck’s repeated
order to turn it over. The defendants’ options in further
dealing with McDonald at that point were limited. The Notice,
for example, explains that “[i]f a subordinate officer does not
comply with [section 26], the superior officer shall submit a
written report of the circumstances.” (Id.)
The defendants’ actions went far beyond submitting a report
of the encounter. The amended complaint does not specifically
allege how long the encounter lasted, but the allegations,
including summoning additional officers and then a Union
representative, permit a reasonable inference that the encounter
was protracted. In addition, summoning additional officers, one
of whom subsequently threatened to strip search McDonald,
amplified the intrusiveness of the encounter. In this case, the
reasonableness of the seizure and search are intertwined. The
precedent concerning the reasonableness of searches in the
context of government employment has generally addressed searches
- 33 -
of an employee’s workspace. While a search of an employee’s
person is subject to the same analytical approach, the weight of
the privacy interests and the extent of the intrusion take on
different dimensions. A government employee possesses “an
expectation of privacy that society is prepared to consider
reasonable” in his person, United States v. Jacobsen, 466 U.S.
109, 113 (1984), whether on the job or off. To outweigh these
privacy interests, a government employer must have particularly
strong interests and, notwithstanding such interests, the search
must be reasonably proportionate to the suspected work-related
infraction. Here, where the suspected misconduct was
surreptitiously taping a meeting, defendants may not have had a
sufficiently weighty interest in prolonging their seizure in
order to conduct a physical search aimed at confirming whether
McDonald actually had a recording device.12
12
This assessment of the relative interests of Officer
McDonald and his employer relies on the fact that the misconduct
at issue involves using and failing to be forthright about a tape
recorder, and not any other object or contraband. The
allegations in the complaint do not give rise to a reasonable
inference that defendants were concerned that the object in
McDonald’s pocket was anything other than a tape recorder, and
defendants concede as much in their motion to dismiss. See
Defs.’ Mem. at 26 (“Analyzed from the view of a reasonable law
enforcement officer, Plaintiff’s Lieutenant would have believed
that Plaintiff possessed a tape recorder, had taped an official
meeting without receiving permission, had refused to tender the
tape recorder when asked for it, and lied about the existence of
the device.”).
- 34 -
Ultimately, however, it is unnecessary to find definitively
whether the defendants’ seizure was “excessively intrusive in
light of . . . the nature of the [misconduct],” O’Connor, 480
U.S. at 726, so as to violate McDonald’s constitutional rights
because the applicable case law does not clearly establish the
rights allegedly violated. See, e.g., Mena v. City of Simi
Valley, 332 F.3d 1255, 1266 (9th Cir. 2003) (the “analysis used
to determine whether a plaintiff alleges a violation of a
constitutional right is instructive in determining whether that
right was clearly established”). McDonald’s constitutional
claims may therefore be resolved on the basis of the second prong
of the qualified immunity inquiry.
2. Whether the right was clearly established
Defendants are charged with knowledge of clearly established
principles governing their conduct toward McDonald. But the fact
that several cases have established clearly that a government
employer may intrude on an employee’s privacy where there is a
basis in reasonable suspicion and the government action is not
excessively intrusive in relation to the suspected misconduct
does not, by itself, suffice in order to find that “no reasonable
officer could have believed in the lawfulness,” Wardlaw v.
Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993), of the defendants’
actions here. “The concern of the immunity inquiry is to
acknowledge that reasonable mistakes can be made as to the legal
- 35 -
constraints on particular police conduct.” Saucier, 533 U.S. at
205.
In determining whether a right is clearly established, this
court “looks to cases from the Supreme Court, the D.C. Circuit,
and other courts for principles ‘exhibiting a consensus view.’”
Dormu v. District of Columbia, 795 F. Supp. 2d 7, 23 (D.D.C.
2011) (quoting Johnson v. District of Columbia, 528 F.3d 969, 976
(D.C. Cir. 2008)). The precedent assessing the reasonableness of
searches and seizures in the context of government employment has
addressed factual situations that do not provide readily
applicable guidance for the defendants’ search and seizure of
McDonald. See, e.g., O’Connor, 480 U.S. at 726 (search of
employee’s office); Stewart v. Evans, 351 F.3d 1239, 1243-44
(D.C. Cir. 2003) (search of safe to which employee had access);
see also Skinner, 489 U.S. at 624-633 (search of employees by
means of mandatory drug testing of employees’ blood, urine, and
breath); Nat’l Treasury Empls. Union, 918 F.2d at 973-75 (random
urinalysis drug testing of employees). One court confronting the
Fourth Amendment rights of police officers in an administrative
context recognized the unique aspects of the law enforcement
context which can make direct application of precedent difficult.
See Myers, 325 F. Supp. 2d at 1114. The court noted that “the
vast majority of cases involving seizures of persons stem from
criminal investigations,” id., and that “[t]he few cases that
- 36 -
discuss non-criminal internal investigations of police officers
often still have significant criminal overtones.” Id. (citing
Biehunik v. Felicetta, 441 F.2d 228, 229 (2d Cir. 1971), in which
the officers suspected of misconduct were informed of the
possibility of resulting criminal prosecution). In addition,
“[t]hose cases relating to workplace searches, see, e.g.,
O'Connor, by non-law enforcement public entities are again
patently distinguishable both because the persons performing the
search are not doing so having authority as peace officers nor
were the persons aggrieved seized for extended periods of time.”
Id. The landscape has not notably improved since the court made
those observations. The D.C. Circuit has provided guidance on
whether a seizure has occurred, see, e.g., Feirson v. District of
Columbia, 506 F.3d 1063, 1067-68 (D.C. Cir. 2007) (holding that
police officer was not seized when physically attacked by police
department personnel as part of training), but little in the way
of whether a seizure for the purpose of investigating work-
related misconduct was reasonable.13
13
The Myers decision itself is not enough to put defendants
on notice that their conduct was more intrusive than necessary.
In Myers, instructors at the Los Angeles County Sheriff’s
Department Academy ordered trainees suspected of cheating to
remain in a room, informed the trainees that they planned to
monitor and videotape them, and prohibited them from
communicating with anyone else. Myers, 325 F. Supp. 2d at 1100.
The court determined that the instructors had seized the
trainees, since a reasonable person under the circumstances would
not have felt free to ignore the police presence and go about his
business, and balanced the nature of the intrusion on the
- 37 -
Here, it does not appear that “[t]he contours” of McDonald’s
right “[were] sufficiently clear that a reasonable official would
[have] underst[ood] that what he [was] doing violate[d] that
right.” Anderson, 483 U.S. at 640. It was not so clearly
unreasonable here for the defendants to believe that their
interest in obtaining further confirmation of McDonald’s lack of
candor and failure to follow orders was sufficiently strong so as
to outweigh McDonald’s privacy interest in being free from a
protracted seizure and physical search of his person. The mere
fact that the reasonableness standard involves a context-specific
balancing test rather than a bright-line rule does not mean that
a government employer can never be expected to accurately
apprehend the weight of the respective interests such that the
employer can be considered on notice of the permissible scope of
a search or seizure. In this case, however, the uniqueness of
trainees against the instructors’ interest in preventing the
trainees from coordinating their stories to avoid discipline.
The court held that the seizure was unreasonable because it was
more intrusive than necessary, yet concluded that the instructors
were entitled to qualified immunity because it would not have
been clear to a reasonable officer that the seizure of the
trainees was unreasonable, given the state of the law in the
Ninth Circuit at the time of the incident. Id. at 1111, 1116.
Even if the Myers decision did provide guidance detailed enough
to have aided defendants in calibrating the intrusiveness of
their seizure and search of McDonald, a district court opinion
from a different circuit is not sufficient evidence of a
“consensus view,” Johnson, 528 F.3d at 976, on the matter from
other circuits.
- 38 -
the law enforcement employment context and the lack of clear case
law preclude such an expectation.
In sum, the case law has not established with clarity
sufficient to direct defendants’ actions either the attributes of
reasonable seizures of a police officer or of reasonable searches
of an officer’s person for investigations of workplace
misconduct. Law enforcement officers, as other government
employers, must abide by the rule that seizures for the purposes
of investigating work-related misconduct must not be unduly
protracted in relation to the severity of the suspected
misconduct. Qualified immunity nonetheless protects the
defendants in this case because at the time McDonald’s seizure
took place, the case law had not sufficiently clearly established
the contours of McDonald’s right to be free from an unduly
protracted and intrusive seizure.
IV. HOSTILE WORK ENVIRONMENT AND RETALIATION CLAIMS
McDonald alleges that the defendants “violated [his] civil
rights” by creating “a hostile work environment[,]” and that they
“retaliated against him[.]” (Am. Compl. ¶ 23.) While plaintiffs
typically seek relief for discrimination claims of hostile work
environment and retaliation under Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e et seq., McDonald does not allege a claim
under Title VII, styling his claim instead as a “Due Process
- 39 -
violation in employment” for which he argues he is entitled to a
Bivens remedy.14 (Pl.’s Opp’n at 6.)
Like the CSRA and FECA, Title VII is a comprehensive
remedial scheme, and it “provides the exclusive judicial remedy
for claims of discrimination in federal employment.” Brown v.
GSA, 425 U.S. 820, 835 (1976). McDonald, citing Davis v.
Passman, 442 U.S. 228, 248 (1979), argues that the Supreme Court
has recognized a Bivens remedy for the violation of a plaintiff’s
Fifth Amendment due process right to be free from official
discrimination. (Pl.’s Opp’n at 5.) However, “Davis involved
employment in the office of a member of Congress in a position
outside of Title VII’s domain.” Kizas v. Webster, 707 F.2d 524,
542 (D.C. Cir. 1983). “[F]ederal employees may not bring suit
under the Constitution for employment discrimination that is
actionable under Title VII.” Ethnic Empls. of Library of Cong.
v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985). McDonald’s
allegations that Beck “treated [him] in a discriminatory and
hostile manner” (Am. Compl. ¶ 6), and that he has been “subjected
to a hostile work environment” (id. ¶ 23) at his workplace since
the day of the search are squarely within the purview of
14
Indeed, McDonald cannot state a claim under Title VII
because he did not plead that he exhausted his administrative
remedies before filing this suit. See Hines v. Bair, 594 F.
Supp. 2d 17, 22 (D.D.C. 2009) (“Before filing a Title VII suit, a
federal employee must timely pursue [his] administrative
remedies, following the requirements set forth in 29 C.F.R.
§ 1614.”).
- 40 -
Title VII. Because an alternative comprehensive scheme exists,
the claims will be dismissed. See Kittner v. Gates, 708 F. Supp.
2d 47, 54 (D.D.C. 2010) (dismissing Bivens count where
“Plaintiff’s constitutional claims . . . clearly do challenge the
same acts of harassment, discrimination, and retaliation . . .
for which Title VII provides the exclusive remedy.”).
CONCLUSION
McDonald has failed to state a Fifth Amendment due process
claim, the defendants are entitled to qualified immunity on his
Fourth Amendment claim, and the existence of a comprehensive
remedial scheme for allegations by federal employees of
employment discrimination precludes his hostile work environment
and retaliation claims. Thus, the defendants’ motion to dismiss
will be granted. A final Order accompanies this memorandum
opinion.
SIGNED this 23rd day of December, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge