Jones v. National Council on Disability , 66 F. Supp. 3d 94 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
CHARLES JONES, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1691 (RMC)
)
NATIONAL COUNCIL ON )
DISABILITY, et al., )
)
Defendants. )
_________________________________ )
OPINION
Charles Jones is retired, and his wife, Sylvia Jones, is employed as a Director of
Administration for the National Council on Disability (NCD), a federal agency. Mr. Jones, an
African American, alleges that when he visited NCD to take his wife to brunch he was
questioned by the Federal Protective Service based on illegal “racial profiling.” As a result of
this incident, Mr. Jones sues NCD and certain of its employees for violations of his constitutional
rights, discrimination, and various torts. Defendants move to dismiss. As explained below, their
motion will be granted.
I. FACTS
On September 30, 2013, Mr. Jones visited the NCD office in Washington, D.C.,
to take his wife to brunch. He arrived around 9:00 a.m. and waited in his wife’s office while she
worked. 1 In the meantime, NCD employee Anne Sommers telephoned NCD Executive Director
Rebecca Cokley to report that an unknown man was in Mrs. Jones’ office. Ms. Cokley was at
1
The facts set forth here are those alleged in the Amended Complaint, see Am. Compl. [Dkt. 6],
with the single addition of the time of Mr. Jones’ arrival at NCD, which is supplied in his
Response brief, see Pl. Resp. [Dkt. 10] at 6.
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home on maternity leave. She phoned Mrs. Jones and inquired about the identity of the man in
her office. Mrs. Jones, who took the call by speaker phone, indicated that it was her husband.
Ms. Cokley seemed angry and she asked what Mrs. Jones was working on. After recounting her
current projects, Mrs. Jones asked whether Ms. Cokley was questioning all NCD directors or just
her. Ms. Cokley “abruptly slammed the phone” down. Am. Compl. at 4.
Mr. and Mrs. Jones left for brunch at 12:20. When they returned, Mr. Jones again
sat in Mrs. Jones’ office. Mrs. Jones has a disability that causes bleeding and migraines and that
is exacerbated by stress; Mr. Jones wanted to observe her medical condition for a time because
the phone call from Ms. Cokley had been stressful. At 2:30 p.m. when Mr. Jones was about to
leave, NCD Chair Jeffrey Rosen and two Federal Protective Service (FPS) officers arrived to
investigate Ms. Cokley’s complaint that Mr. Jones was in Mrs. Jones’ office and he was
engaging in “suspicious activity.” Id. at 5-6. Mr. Jones alleges that he was “placed . . . in a
custodial situation” while being questioned by the officers. Id. at 5. Mr. Jones was permitted to
remain, and the officers and Mr. Rosen left; Mr. Jones left soon thereafter.
Mr. Jones wrote to NCD on September 30 and October 21, 2013 to complain that
he was discriminated against, intimidated, and publicly humiliated. Id. at 6-8. NCD “through
Rebecca Cokley denied the plaintiff’s assertions on October 25, 2013.” Id. at 8.
Mr. Jones, proceeding pro se, filed his initial complaint here on October 29, 2013.
The Court dismissed the complaint without prejudice as too vague under Federal Rule of Civil
Procedure 8. See Order (Dec. 19, 2013) [Dkt. 5]. Mr. Jones then filed a more detailed Amended
Complaint against NCD, Ms. Sommers, Ms. Cokley, and Mr. Rosen (collectively, Defendants),
asserting that “[i]t goes against the civil rights and liberties given to citizens under the
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Constitutional amendments to use racial profiling as a tool for investigation.” Am. Compl. at 5.
Mr. Jones further alleges:
The false reports, statements and race-based assumptions made
against the plaintiff led to public humiliation violating the
plaintiff’s rights to privacy which is a natural human right. The
defendants[] also defamed the plaintiff’s reputation by making
false statements in written and oral communications [and by]
making fabricated assertions that the plaintiff’s mere presence was
a threat to the safety of staff, threatened the theft of government
property, [and caused] a disruption to NCD business and that
plaintiff was moving government furniture, which essentially
resulted in law enforcement depriving the plaintiff of his right to
freedom of movement.
Id. at 7. The Amended Complaint asserts the following causes of action:
(1) race discrimination in violation of the Civil Rights Act of 1964;
(2) violation of due process under the Fifth Amendment;
(3) violation of equal protection under the Fifth Amendment;
(4) defamation;
(4) intentional infliction of emotional distress;
(5) negligent infliction of emotional distress; and
(6) false statements under 18 U.S.C. § 1001.
See id. at 2, 6, 7.
Defendants move to dismiss, and Mr. Jones opposes. The Federal Government
filed a certification, pursuant to 28 U.S.C. § 2679(d), certifying that Ms. Sommers, Ms. Cokley,
and Mr. Rosen were acting within the scope of their employment as employees of NCD at the
time of the incident and substituting the United States as the defendant in this case. 2
2
See Defs. Mot. to Dismiss [Dkt. 8], Ex. A (Certification) [Dkt. 8-4].
3
II. STANDARD OF REVIEW
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Although pro se complaints are construed liberally, see Haines v. Kerner, 404
U.S. 519, 520 (1972); United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004), this Court
must have jurisdiction over a claim in order to rule on it. NCD moves to dismiss for lack of
jurisdiction, claiming sovereign immunity.
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to
dismiss a complaint for lack of subject matter jurisdiction. No action of the parties can confer
subject matter jurisdiction on a federal court because subject matter jurisdiction is both a
statutory requirement and an Article III requirement. Akinseye v. District of Columbia, 339 F.3d
970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of
demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.
Cir. 2008). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a
court reviews the complaint liberally, granting the plaintiff the benefit of all inferences that can
be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004).
Nevertheless, “the Court need not accept factual inferences drawn by plaintiffs if those
inferences are not supported by facts alleged in the complaint, nor must the Court accept
plaintiffs’ legal conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).
A court may consider materials outside the pleadings to determine its jurisdiction. Settles v. U.S.
Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005).
B. Motion to Dismiss Under Rule 12(b)(6)
Defendants collectively seek dismissal for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). A complaint must be sufficient “to give a defendant fair notice
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of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. The facts alleged “must be enough to raise a right to relief above the
speculative level.” Id. “[A] complaint needs some information about the circumstances giving
rise to the claims.” Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C.
Cir. 2008) (emphasis in original). A complaint must contain sufficient factual matter to state a
claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570. When a plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A court must
treat the complaint’s factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at
555. But a court need not accept as true legal conclusions set forth in a complaint. Iqbal, 556
U.S. at 678.
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). Generally,
when a court relies upon matters outside the pleadings, a motion to dismiss must be treated as
one for summary judgment and disposed of pursuant to Rule 56. See Fed. R. Civ. P. 12(d).
“However, where a document is referred to in the complaint and is central to the plaintiff’s
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claim, such a document attached to the motion papers may be considered without converting the
motion to one for summary judgment.” Nat’l Shopmen Pension Fund v. Disa, 583 F. Supp. 2d
95, 99 (D.D.C. 2008) (citation omitted).
III. ANALYSIS
A. Discrimination in violation of the Civil Rights Act of 1964
Mr. Jones claims that Defendants discriminated against him on the basis of his
race in violation of the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964). That Act
includes nine titles, which prohibit race and status-based discrimination in various contexts.
Title I bars the unequal application of voter registration requirements; Title II bans
discrimination in hotels, restaurants and other public accommodations; Title III prohibits
discriminatory access to public facilities; Title IV relates to school desegregation; Title V
expands the Civil Rights Commission; Title VI prohibits discrimination in federally assisted
programs; Title VII prohibits discrimination in employment; Title VIII requires compilation of
voter data; Title IX makes civil rights cases reviewable in federal courts and authorizes the
Attorney General to intervene; 3 Title X establishes the Community Relations Service for the
purpose of assisting local claims of discrimination; and Title XI provides the right to a jury trial
for persons accused of contempt of the Act. See generally Major Features of the Civil Rights
Act of 1964, www.congresslink.org/print_basics_histmats_civilrights64text.htm (last visited
Sept. 3, 2014).
Mr. Jones’ Civil Rights Act claim is vague. He does not allege a violation of any
particular Title of the Act. Further, Titles I through XI do not apply to the facts that Mr. Jones
3
Title IX of the Civil Rights Act of 1964 should not be confused with Title IX of the Education
Amendments Act of 1972, Pub. L. No. 92-318, 86 Stat. 235 (June 23, 1972), codified at 20
U.S.C. §§ 1681 et seq., which prohibits gender discrimination in federally funded education
programs and activities such as school sports.
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alleges. Thus, the allegation that Defendants violated the Civil Rights Act of 1964 will be
dismissed for failure to state a claim under Rule 12(b)(6).
B. Sovereign Immunity
Mr. Jones cannot maintain the constitutional or tort claims against NCD and its
employees, in their official capacities, under the doctrine of sovereign immunity. Pursuant to
that doctrine, the United States cannot be sued without the federal government’s express consent.
FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Mitchell, 463 U.S. 206, 212 (1983).
“The basic rule of federal sovereign immunity is that the United States cannot be sued at all
without the consent of Congress.” Block v. North Dakota, 461 U.S. 273, 287 (1983). Sovereign
immunity also applies to federal agencies and employees acting in their official capacities. See
Albrecht v. Comm. on Employee Benefits of Fed. Reserve Employee Benefits Sys., 357 F.3d 62,
67 (D.C. Cir. 2004) (federal agencies and instrumentalities possess sovereign immunity); Clark
v. Library of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984) (federal employees, acting in their
official capacity, are protected from suit by sovereign immunity). Claims brought against the
United States, its agencies, or employees, when the United States has not waived sovereign
immunity for that claim, must be dismissed for lack of subject matter jurisdiction. Sloan v. Dep’t
of Hous. and Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001); see also Jackson v. Bush, 448 F.
Supp. 2d 198, 200 (D.D.C. 2006).
There is no waiver of sovereign immunity for constitutional claims. However, the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., provides a limited, express
waiver of sovereign immunity for certain tort claims by providing a remedy against the United
States for the negligent or wrongful act or omission of any federal employee while acting within
the scope of his office or employment. See 28 U.S.C. § 1346(b); see also id. § 2674 (the United
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States shall be liable in the same manner and to the same extent as a private individual under like
circumstances). A waiver of sovereign immunity, such as the FTCA, is strictly construed and
any doubt or ambiguity is resolved in favor of immunity. See Lane v. Pena, 518 U.S. 187, 192
(1996).
Unfortunately for Mr. Jones, the FTCA does not provide a waiver of sovereign
immunity for the torts he alleges––defamation and intentional and negligent infliction of
emotional distress caused by defamation. The FTCA does not cover claims “arising out of” libel
or slander, see 28 U.S.C. § 2680(h), 4 and the D.C. Circuit has held that claims “arising out of”
libel or slander include defamation claims, see Kugel v. United States, 947 F.2d 1504, 1506-07
(D.C. Cir. 1991). Thus, defamation claims against the United States are barred by sovereign
immunity because the FTCA does not waive immunity for claims “arising out of” libel or
slander. Id. Further, claims of intentional and negligent infliction of emotional distress that
“arise out of” a claim for slander also are not included in the FTCA’s waiver of immunity. See
Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988).
With regard to Mr. Jones’ claims of defamation and related emotional distress,
there is no specific waiver of sovereign immunity that applies. With regard to Mr. Jones’
constitutional claims against NCD and its employees in their official capacities, there is no
waiver of sovereign immunity. These claims must be dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1).
4
The FTCA does not apply to “[a]ny claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights . . . .” 28 U.S.C. § 2680(h).
8
To the extent that Mr. Jones intends to assert claims of intentional and negligent
infliction of emotional distress that do not arise from his claim for defamation, such inchoate
claims are barred by his failure to exhaust administrative remedies. See McNeil v. United States,
508 U.S. 106, 113 (1993) (holding that an FTCA litigant must exhaust administrative remedies
before filing suit in federal court); see also 28 U.S.C. § 2675(a) (“[a]n action shall not be
instituted upon a claim against the United States . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency”). The administrative filing requirement
“is a jurisdictional prerequisite to the maintenance of a tort suit against the United States.” GAF
Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987). “[A] jurisdictionally adequate
presentment is one which provides to the appropriate agency (1) a written statement sufficiently
describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain
damages claim.” Id. at 905.
This did not happen. Mr. Jones alleges that he sent administrative complaints to
NCD on September 30 and October 21, 2013, but he admits that he did not include a sum-certain
statement of damages: “At that time the plaintiff was not seeking monetary damages, only an
investigation and corrective action.” See Pl. Resp. [Dkt. 10] at 5. Mr. Jones has not exhausted
administrative remedies with the required specificity for his claims of intentional and negligent
infliction of emotional distress, and those claims must be dismissed for lack of jurisdiction.
C. Fifth Amendment Claims
Mr. Jones also seeks to hold Ms. Sommers, Ms. Cokley, and Mr. Rosen liable in
their individual capacities for violating his Fifth Amendment rights to due process and equal
9
protection. 5 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971), allows an individual to sue a federal officer, in his individual capacity, for money
damages for the violation of a clearly established constitutional right. Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001).
1. Due Process
The Fifth Amendment protects individuals from deprivation of “life, liberty, or
property, without due process of law” and is intended to secure individuals from arbitrary
exercises of government power. Daniel v. Williams, 474 U.S. 327, 330 (1986). To state a
substantive due process claim, a plaintiff must assert that a government official was so
“deliberately indifferent” to his constitutional rights that the official’s conduct “shocks the
conscience,” see Estate of Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006),
or that the government conduct was “so egregious [or] so outrageous, that it may fairly be said to
shock the contemporary conscience”), see Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998). 6
5
The Fifth Amendment provides in pertinent part that no person “shall be deprived of life,
liberty, or property without due process of law,” see U.S. Const. amend. V, and the Fourteenth
Amendment similarly provides that “no State shall . . . deprive any person of life, liberty, or
property without due process of law,” see U.S. Const. amend. XIV. Because the District of
Columbia is a federal enclave, it is subject to the Fifth Amendment and not the Fourteenth,
which applies to the States. Propert v. District of Columbia, 948 F.2d 1327, 1330 n.5 (D.C. Cir.
1991) (citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954)). The ultimate legal analysis is the
same, and cases analyzing the States’ liability under the Due Process clause of the Fourteenth
Amendment are regularly cited in the analysis of a federal actor’s liability under the Due Process
clause of the Fifth Amendment. See Piechowicz v. United States, 885 F.2d 1207, 1214 n.9 (4th
Cir. 1989).
6
Mr. Jones asserts a substantive due process claim and not a procedural due process claim, as he
does not allege that he was deprived of life, liberty, or property without notice or opportunity to
be heard.
10
The Amended Complaint does not allege conduct by any individual Defendant
that was so deliberatively indifferent, egregious, or outrageous as to be conscience-shocking.
Mr. Jones alleges that when he visited his wife at her office at 9:00 a.m. on September 30, 2013,
Ms. Sommers called Ms. Cokley to report an “unknown man” in Mrs. Jones’ office. Mr. Jones
further alleges that Ms. Cokley called Mrs. Jones to ask who was there and what she was doing
and, despite Mrs. Jones’ assurance that her husband was visiting while she worked, Ms. Cokley
contacted FPS and reported that Mr. Jones was engaging in suspicious behavior. Mr. Jones also
asserts that when he and his wife returned from brunch in the early afternoon, Mr. Rosen and the
FPS officers came to investigate. They spoke to Mr. Jones and allowed him to remain. The
conduct of Ms. Sommers, Ms. Cokley, and Mr. Rosen, considered both separately and together,
was not so egregious, outrageous, or deliberately indifferent to Mr. Jones’ constitutional rights
that it shocks the conscience. Mr. Jones’ due process claim must be dismissed under Rule
12(b)(6).
2. Equal Protection
The Fifth Amendment Due Process Clause also encompasses equal protection
claims. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954)). To advance an equal protection
claim, a plaintiff must assert facts that support the allegation that the government intentionally
treated him differently from others who were similarly situated and that there is no rational basis
for the difference in treatment. 3883 Conn. LLC v. District of Columbia, 336 F.3d 1068, 1075
(D.C. Cir. 2003) (citing Village of Willowbrook v. Olech, 529 U.S. 562, 564 (2000)). Equal
protection “does not require that all persons everywhere be treated alike. Instead, it imposes the
rather more modest requirement that government not treat similarly situated individuals
differently without a rational basis.” Noble v. U.S. Parole Comm’n, 194 F.3d 152, 154 (D.C. Cir.
11
1999) (citing Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). “The dissimilar
treatment of dissimilarly situated persons does not violate equal protection.” Women Prisoners
of District of Columbia Dep’t of Corrections v. District of Columbia, 93 F.3d 910, 924 (D.C. Cir.
1996).
Mr. Jones claims that he was “singled out and treated less favorably than other
visitors to the NCD office.” Am. Compl. at 7. Specifically, he contends that Gary Blumenthal, a
white male who is an NCD Council Member, visited the NCD office on September 11, 2013 and
screamed obscenities, but no one called law enforcement. Id.; see also Pl. Resp. at 8 (Pl.
Objections to Defs. Statement of Facts). 7
Mr. Jones and Mr. Blumenthal were not similarly situated. Mr. Jones was a
visitor at NCD, not known by Ms. Sommers, Ms. Cokley, or Mr. Rosen. He arrived at NCD at
9:00 in the morning and remained until 2:30 in the afternoon (with the exception of going out to
brunch in the early afternoon). He was not there on business; the purpose of his visit was to take
his wife to brunch. In contrast, Mr. Blumenthal was employed by NCD as a Council Member;
he was known to others in the office; and he had business at the office. Mr. Jones’ assertion that
his equal protection rights have been violated is a legal conclusion, without supporting facts, that
need not be accepted as true. See Iqbal, 556 U.S. at 678-79. Mr. Jones’ equal protection claim
must be dismissed for failure to state a claim.
D. Vicarious Liability
Mr. Jones also alleges that “FPS law enforcement officers . . . deprived the
plaintiff’s freedom of movement[,] which placed the plaintiff in a custodial situation.” Am.
7
Mr. Jones originally asserted that the incident regarding Mr. Blumenthal occurred on August
11, 2013, but when he discovered that August 11, 2013 was a Sunday, he corrected his allegation
and asserted that the incident took place on September 11, 2013. See Pl. Resp. at 4.
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Compl. at 5. He did not name the FPS officers as defendants here, and Bivens does not impose
vicarious liability on the named Defendants. See Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)
(because vicarious liability is inapplicable to Bivens suits, a plaintiff must plead that each
official, through his own actions, violated the Constitution).
E. Claim that Defendants Violated 18 U.S.C. § 1001Mr. Jones claims that Mr. Rosen and Ms. Cokley violated 18 U.S.C. § 1001 by
knowingly and willfully making false statements. Because this is a criminal statute that provides
no private right of action, see Banks v. Kramer, No. 09-5140, 2009 WL 5526780, at *1 (D.C.
Cir. Dec. 30, 2009), this claim will be dismissed.
IV. CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss [Dkt. 8] will be
granted. 8 The Amended Complaint will be dismissed. A memorializing Order accompanies this
Opinion.
Date: September 4, 2014 /s/
ROSEMARY M. COLLYER
United States District Judge
8
Because the Court has decided the issues pursuant to the standards set forth in Rules 12(b)(1)
and (6), it does not address Defendants’ alternative argument that they are entitled to summary
judgment.
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