Opinion
Civil Action No. 03-01127 (HHK).
March 24, 2005
MEMORANDUM OPINION AND ORDER
Renate Benham ("Benham") is a Caucasian female employee of the United States Department of State ("State Department"). She brings this action, proceeding pro se, against the United States Secretary of State, the State Department, employees of the State Department, the United States Attorney General, the Department of Justice ("Justice Department"), the United States Attorney for the District of Columbia, and Assistant United States Attorney ("AUSA") Edith Shine, (collectively "Government" or "Defendants"). In a prolix 92 page complaint containing 810 paragraphs, Benham asserts various causes of action arising from her effort, which to this point has been unsuccessful, to obtain a lateral employment transfer. Benham alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626 et seq. ("ADEA"), the Civil Service Reform Act of 1978, Pub.L. No. 95-454 Stat. 1111 ("CSRA") (codified as amended in various sections of 5 U.S.C.), the D.C. Human Rights Act, D.C. Code § 2-1402.01 et seq., Executive Order No. 13152, 65 Fed. Reg. 26115 (May 2, 2000), the Presidential and Executive Office Accountability Act, 3 U.S.C. § 401 et seq., and the Privacy Act of 1974, 5 U.S.C. § 552 et seq. She also alleges that Defendants committed extortion pursuant to 18 U.S.C. § 872, conspiracy to interfere with her civil rights pursuant to 42 U.S.C. § 1985, and a number of common law torts. Defendants have filed a motion to dismiss all of Benham's claims. Upon consideration of the motion, the opposition thereto, and the record of this case, the court finds that the motion must be granted in part and denied in part.
Benham's complaint was filed on May 27, 2003, and she named Colin Powell, then Secretary of State, and John Ashcroft, then Attorney General, as defendants. In light of the recent turnover of officials in various positions in the executive branch and pursuant to Federal Rule 25(d)(1), the court has substituted Condoleezza Rice, current Secretary of State, and Alberto Gonzalez, current Attorney General, as defendants in this lawsuit.
Benham is suing all individual defendants in their official capacities. Compl. ¶ 6.
I. BACKGROUND
Benham has been employed at the State Department since 1991. She is a resident of Princeton, New Jersey, and currently works in Washington, D.C. Compl. ¶ 3. On October 16, 2000, Benham filed a lawsuit in this court alleging that the State Department discriminated against her in violation of Title VII and the Rehabilitation Act. Benham v. Powell, Civil Action No. 00-02466 (D.D.C. April 13, 2004). AUSA Edith Shine represents the defendants in that case. On March 6, 2002, while that lawsuit was still pending, Benham requested to be transferred to a location within commuting distance of her home in New Jersey in order to "allow her to be reunited with her family and to care for her four year old daughter in New Jersey." Compl. ¶¶ 8, 24. The State Department seemed receptive to this request, and three individuals in the Human Resources department contacted Benham within the next week to discuss possibilities for a transfer. Id. ¶¶ 25, 26, 28, 30. Benham met with one of these individuals on March 15, 2002, but she never heard anything further regarding a transfer, despite the fact that she "followed up" on the meeting by telephone and email on four occasions. Id. ¶¶ 29, 31, 33-35.
On March 25, 2002, Benham informed Shine that Benham was disconnecting her home telefax line and gave Shine a new telefax number. Id. ¶ 32. Benham also "reiterated . . . [that] her previous instruction that telefaxes should not be sent to her place of employment still applied." Id. On April 9, 2002, Shine telefaxed a letter to Benham's place of employment. Id. ¶ 36. The letter stated, "accommodating you with a suitable position in [the New York metropolitan] area would require the Department of State to establish a position that does not presently exist." Def's. Reply Ex. A. It stated further that the State Department would be willing to explore the creation of a new position as part of an offer to settle the claims in Benham's pending civil case. Id. Benham was not at work the day the letter reached her office, and when she came in to the office the next day, on April 10, 2002, the letter had been removed from the telefax machine and placed in an envelope at her desk. Compl. ¶¶ 38-41. Benham alleges the letter "was read by individuals in plaintiff's office causing harm, embarrassment, and humiliation." Id. ¶¶ 44, 45.
II. ANALYSIS
Defendants argue that this court is without subject matter jurisdiction to consider Benham's claims of conspiracy (Counts IV and V), discrimination based on marital and parental status, family responsibilities, and separation from family (Counts VII, VII, IX and X), intimidation (Count XX), and extortion (Count XVII) because the Government has not waived its sovereign immunity for any of these claims. With regard to Benham's claims of tortious interference with her ability to maintain and secure employment (Count XIV), slander (Count XXI), and defamation of character (Count XXII), the Government argues that only the United States is a proper defendant to any suit brought under the Federal Tort Claims Act ("FTCA"), and Benham has not named the United States as a party in this lawsuit. Similarly, the Government argues that her Privacy Act claims for unauthorized disclosure of personal information (Counts XV and XVI) can only be brought against the agency involved, not against any federal employee in an individual or official capacity, and that Benham fails to state a claim against any agency. Finally, the Government maintains that Benham has not adequately alleged facts to assert an adverse action in any of her Title VII discrimination or retaliation claims (Counts I, II, III, VI, XI, XII, and XIII).
Defendants move to dismiss or, in the alternative, for summary judgment. Local Civil Rule 7(h) requires that "[e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue. . . ." Defendants' motion is not accompanied by such a statement. Consequently, Defendants' alternative motion for summary judgment is denied without prejudice to renewal in accordance with the applicable rules.
Defendants move to dismiss pursuant to FED. R. CIV. P. 12(b)(6). In addition, Defendants argue that the court lacks subject matter jurisdiction, an assertion that is properly grounded on Rule 12(b)(1). Insofar as Defendants' motion is premised on Rule 12(b)(6), it may not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 42, 45-46 (1957). The court must accept all of Benham's well-pled factual allegations as true and draw all reasonable inferences in her favor. Insofar as Defendants' motion is premised on Rule 12(b)(1), the court may be required to look to matters outside the pleadings. Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442 (D.C. Cir. 1989). Of course, in evaluating the merits of either asserted ground for dismissal the court need not accept Benham's legal conclusions. Boyd v. O'Neill, 273 F.Supp. 2d 92, 95 (D.D.C 2003).
A. Sovereign Immunity
A claim against a defendant in her official capacity is deemed to be a claim against the United States. Brown v. General Serv. Administration, 425 U.S. 820, 826 (1976); Land v. Dollar, 330 U.S. 731, 738 (1947); Saunders v. Reno, 1993 WL 771009, at *1 (D.D.C. Dec. 20, 1993). Absent a waiver of sovereign immunity, the United States and its agencies are shielded from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Testan, 424 U.S. 392, 399 (1976). A waiver of sovereign immunity cannot be implied, it must be "unequivocally expressed" in the text of a statute. Lane v. Pena, 518 U.S. 187, 192 (1996), citing United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37 (1992). Benham is suing all individual defendants in their official capacities. Compl. ¶¶ 6, 7. Therefore, all of her claims are deemed to be against the United States and she must demonstrate a statutory waiver of sovereign immunity for each claim in order to proceed.
The federal government has waived sovereign immunity for claims arising under the FTCA, the Privacy Act, and Title VII. FDIC v. Meyer, 510 U.S. at 475-76 (stating that the FTCA "waived the sovereign immunity of the United States for certain torts committed by federal employees"); Cummings v. Dep't of Navy, 279 F.3d 1051, 1055 (D.C. Cir. 2002) (recognizing the "unequivocally expressed waiver" of sovereign immunity in the Privacy Act); Parker v. Califano, 561 F.2d 320, 325 (D.C. Cir. 1977) (noting that it is well established that Title VII "specifically waives sovereign immunity"). To the extent that Benham brings her claims under these statutes, therefore, the federal government has consented to suit. However, to the extent that Benham asserts other causes of action, she has not identified any express statutory waivers of sovereign immunity. Because Benham has not met her burden of establishing subject matter jurisdiction for these claims, the court must dismiss Counts IV and V, charging conspiracy pursuant to 42 U.S.C. § 1985, Counts VII, VIII, IX, and X, charging discrimination pursuant to the District of Columbia Human Rights Act, D.C. Code 2-1402.11 and Executive Order 13152, Count XVII, charging extortion pursuant to 18 U.S.C. § 872, and Count XX, charging intimidation pursuant to the Presidential and Executive Office Accountability Act, 3 U.S.C. § 401 et seq.
See Saunders v. Reno, Civil Action No. 93-1829, 1993 WL 771009, at *9 (D.D.C. Dec. 20, 1993) (holding that " 42 U.S.C. § 1985 does not unequivocally express a waiver to sovereign immunity"), citing Unimex, Inc. v. HUD, 594 F.2d 1060, 1061 (5th Cir. 1979) (citations omitted); Hohri v. United States, 586 F.Supp. 769, 794 n. 34 (D.D.C. 1984) (holding that 42 U.S.C. § 1985 does not contain a waiver of sovereign immunity), rev'd on other grounds, 251 U.S. App. D.C. 145, 782 F.2d 227 (D.C. Cir. 1986), vacated by 482 U.S. 64, 96 L. Ed. 2d 51, 107 S.Ct. 2246 (1987), opinion of the district court aff'd on remand by 847 F.2d 779 (Fed. Cir.), cert. denied, 488 U.S. 925 (1988).
Benham is precluded from bringing any discrimination claims against the named defendants pursuant to the D.C. Human Rights Act because "[Title VII] provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. General Serv. Administration, 425 U.S. 820, 835 (1976); see also Boyd v. O'Neill, 273 F.Supp. 2d 92, 95 (D.D.C. 2003).
The text of Executive Order 13512, which amends Executive Order 11478, reads: "This Executive Order does not confer any right or benefit enforceable in law or equity against the United States or its representatives." Exec. Order 13152, § 11, 65 Fed. Reg. 26115 (May 4, 2000).
See Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F.Supp. 2d 17, 23 (D.D.C. 2003) (dismissing plaintiff's claim because there was no private right of action for criminal statutes).
The Presidential and Executive Office Accountability Act applies only to employees of the Executive Office of the President, the Executive Residence at the White House, and the official residence of the Vice President. 3 U.S.C. § 401(a)(4).
B. FTCA
Defendants argue that Benham's claims of tortious interference with her ability to maintain and secure employment (Count XIV), slander (Count XXI), and defamation of character (Count XXII), must be dismissed because only the United States is a proper defendant to any suit brought under the FTCA, and Benham has not named the United States as a party. Def's. Mot. to Dismiss at 6. The FTCA provides that "the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States. . . ." 28 U.S.C. § 1346(b). It further specifies that "the authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency. . . ." Id. § 2679(a). The exclusive remedy for tort claims under the FTCA, therefore, is "an action against the United States rather than against the individuals or particular government agencies." Cox v. Secretary of Labor, 739 F.Supp. 28, 29 (D.D.C. 1990), citing Miller v. United States, 710 F.2d 656, 657 n. 1 (10th Cir. 1983), cert. denied, 464 U.S. 939 (1983); Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982).
Though Benham has failed to name the United States as a party, courts must liberally construe the complaints of pro se litigants. Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). A pro se plaintiff must have an opportunity to amend the complaint to overcome deficiencies, unless it is clear that an amendment would be futile. Rockefeller v. United States Court of Appeals Office, for the Tenth Circuit Judges, 248 F.Supp. 2d 17, 20 n. 2 (D.D.C. 2003). In her opposition to Defendants' motion to dismiss, Benham seeks leave to amend her complaint to remedy her deficiency. Pl's. Opp'n at 7. Defendants point out correctly, however, that adding the United States as a party would be futile because the FTCA explicitly declines to waive sovereign immunity for "[a]ny claim arising out of . . . libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h); Simpkins v. District of Columbia Gov't, 108 F.3d 366, 371 (D.C. Cir. 1997) (dismissing libel and slander claims because they are not covered by the FTCA). The FTCA retains sovereign immunity for claims of defamation as well. Sottile v. United States, 608 F.Supp. 1040, 1042 (D.D.C. 1985) ("the United States still retains its sovereign immunity with respect to defamation and tortious interference with a contract"); Wilcox v. United States, 509 F.Supp. 381, 387 (D.D.C. 1981) (finding that the federal government is immune from defamation actions). Because Benham failed to name the United States as a party, and because allowing her to amend her complaint would serve no purpose, the court must dismiss Counts XIV, XXI, and XXII.
C. Privacy Act
Defendants move to dismiss Benham's Privacy Act claims set forth in Counts XV and XVI for unauthorized disclosure of personal information. The Privacy Act provides that whenever an agency fails to comply with any provision therein, "the individual may bring a civil action against the agency. . . ." 5 U.S.C. § 552a(g)(1). An "agency" includes "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch . . . or any independent regulatory agency." 5 U.S.C. § 552(f)(1). It is clear from the statute that "the Privacy Act provides for civil remedies only against an agency, not against individuals." Mittleman v. United States Treasury, 773 F.Supp. 442, 450 (D.D.C. 1991), citing Brown-Bey v. United States, 720 F.2d 467, 469 (7th Cir. 1983); Bruce v. United States, 621 F.2d 914, 916 n. 2 (8th Cir. 1980). Thus, as a preliminary matter, Benham's Privacy Act claims against all defendants other than the State Department and the Justice Department must be dismissed because the statute provides a remedy only for actions against the agency involved.
To the extent Benham seeks to prosecute her Privacy Act claims against governmental agencies, Defendants first assert that Benham has failed to state a claim because she has not alleged that the information disclosed was a "record" or part of a "system of records" as required by the Privacy Act. 5 U.S.C. § 552a(b) ("No agency shall disclose any record which is contained in a system of records . . . to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains. . . ."). A "record" for purposes of the Privacy Act is "any item, collection, or grouping of information about an individual that is maintained by an agency . . . that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual." Id. § 552a(a)(4). A "system of records" is defined as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." Id. § 552a(a)(5). "Maintain" means "maintain, collect, use, or disseminate." Id. § 552a(a)(3).
Benham submits that there were two instances of information disclosure that violated the Privacy Act. First, she objects to the State Department having passed information about her request for a transfer to AUSA Shine. Compl. ¶¶ 592, 617. Second, she objects to Shine having faxed a letter discussing a settlement to her work. Id. ¶¶ 595, 619. While neither of these two communications appear to be "records" as defined by the Privacy Act, Benham's claim is not defeated because statements that reveal the content of protected records are actionable, even if they were not themselves records. Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000), citing Bartel v. FAA, 725 F.2d 1403, 1408 (D.C. Cir. 1984). Moreover, to survive a motion to dismiss, a plaintiff need only allege in her complaint that protected information was wrongfully disclosed. Krieger, 211 F.3d at 136. It is not necessary for her to "plead law or match facts to every element of a legal theory." Id., citing Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Benham has alleged that "[m]anagement and/or defendants disclosed personal information protected by the Privacy Act of 1974, regarding plaintiff, to the Department of Justice," Compl. ¶ 592, and "[m]anagement and/or defendants disclosed personal information protected by the Privacy Act of 1974, at plaintiff's place of employment." Id. ¶ 616. Though it is true that Benham did not allege that these disclosures involved information in a system of records, her allegations are sufficient to survive a motion to dismiss because she has adequately alleged the disclosure of information which could be contained in a record and/or a system of records.
Defendants' alternate ground for seeking a dismissal of Benham's Privacy Act claims is that the disclosure of information about which Benham complains was authorized. Defendants argue that the communications to which Benham objects fall within the Privacy Act's "routine use" provision, 5 U.S.C. § 552a(b)(3), which provides that "[n]o agency shall disclose any record which is contained in a system of records . . . unless disclosure of that record would be — (3) for the routine use as defined in subsection (a)(7) of this section. . . ." "Routine use" means "the use of such record for a purpose which is compatible with the purpose for which it was collected." Id. § 552a(a)(7).
The State Department and the Justice Department have promulgated guidelines that define what constitutes a routine use. Under the State Department guidelines,
The information in the Human Resources Records may be used:
To disclose information to the Department of Justice or in connection with proceedings before a court . . . when . . . the Agency . . . or [a]ny employee of the agency in his or her official capacity . . . is a party to litigation . . . and the Department of State determines that the use of such records is arguably relevant and necessary to the litigation . . .
To provide an official of another Federal agency information needed in the performance of official duties in support of the functions for which the records were collected and maintained.
Department of State Routine Uses of Records Maintained in the System, 65 Fed. Reg. 69359, 69361 (Nov. 16, 2000). A review of the guidelines leads the court to conclude that the State Department was within its bounds when it disclosed information regarding Benham's request for a transfer to Shine at the Justice Department because it was at least "arguably relevant and necessary" for Shine to be informed of Benham's wishes to transfer offices so that she could attempt to settle the pending litigation with Benham. The first communication therefore did not constitute a violation of the Privacy Act because it was a routine use of information.
Moving on to the second communication, the letter that Shine faxed to Benham's office, the Justice Department guidelines on routine uses provide that:
(e) A record relating to a case or matter may be disseminated to an actual or potential party or his attorney for the purpose of negotiation or discussion on such matters as settlement of the case or matter, or informal discovery proceedings;
(f) A record relating to a case or matter that has been referred by an agency for investigation, civil action, or enforcement, or that involves a case or matter within the jurisdiction of an agency, may be disseminated to such agency to notify the agency of the status of the case or matter or of any decision or determination that has been made, or to make such other inquiries and reports as are necessary during the processing of the case or matter
Department of Justice Routine Uses of Records Maintained in the System, 63 Fed. Reg. 8659, 8667 (Feb. 20, 1998). Again, there has been no Privacy Act violation. Shine was required to notify Benham in order to inquire about a possible settlement in the case, hence the fax that she sent, which was sent with a cover letter that specified it was being sent to "Renate M. Benham," Def's. Reply Ex. A, also falls within the routine use category. Therefore, Benham has failed to state a claim under the Privacy Act, and Counts XV and XVI must be dismissed as to all defendants.
D. Title VII
Defendants finally contend that Benham's Title VII claims, Counts I-III, VI, and XI-XIII, must be dismissed because Benham has not adequately alleged any adverse employment action, which is necessary to establish a prima facie case of discrimination or retaliation. Def's. Mot. to Dismiss at 14-16. Defendants are correct that Benham must eventually show that she suffered adverse employment actions in order to make out a prima facie case of discrimination or retaliation under Title VII. See Brown v. Brody, 199 F.3d 446, 455 (D.C. Cir. 1999); McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984). However, the D.C. Circuit has clearly established that a plaintiff "need not set forth the elements of a prima facie case at the initial pleading stage." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000); accord Caribbean Broad Sys., Ltd. v. Cable Wireless P.L.C., 148 F.3d 1080, 1086 (D.C. Cir. 1998) ("[A] plaintiff need not allege all the facts necessary to prove its claim."); Atchinson v. Dist. of Columbia, 73 F.3d 418, 421-22 (D.C. Cir. 1996) ("A complaint . . . need not allege all that a plaintiff must eventually prove."); Johnson-Tanner v. First Cash Fin. Services, 239 F.Supp. 2d 34, 42 (D.D.C. 2003), quoting Glymph v. Dist. of Columbia, 180 F.Supp. 2d 111, 114 (D.D.C. 2001); Woodruff v. DiMario, 197 F.R.D. 191, 193-94 (D.D.C. 2000). The Federal Rules of Civil Procedure require only that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The Supreme Court recently affirmed that, under this rule, a plaintiff need not plead facts beyond those which would "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002), quoting Conley v. Gibson, 355 U.S. 41, 47 (1957); see generally Nat'l Fair Hous. Alliance, Inc. v. Prudential, 208 F.Supp. 2d 46, 51-52 (D.D.C. 2002). Benham has cleared this low threshold.
Benham has alleged that she suffered discrimination based on her race, sex, and age. Compl. ¶ 382. She also states that the Government retaliated against her for engaging in protected EEO activity, id. ¶ 392, and that "[s]imilarly situated individuals . . . were treated differently under similar circumstances. Id. ¶ 398. Under the notice pleading requirements of Rule 8(a)(2), these allegations are sufficient to state cognizable claims. See Sparrow, 216 F.3d at 1115. Accordingly, Defendants' motion to dismiss certain of Benham's claims because she fails to allege that she suffered an adverse employment action with respect to the claims must be denied.
To the extent that the State argues that Benham's Title VII claims must be dismissed because she has not exhausted her administrative remedies under the CSRA, Def's. Mot. to Dismiss at 5, n. 9, Benham explicitly alleges in her complaint that her administrative remedies were exhausted because "[t]he agency rendered a final decision." Compl. ¶ 4. Viewing the facts in a light most favorable to Benham, this statement is sufficient to survive a motion to dismiss.
E. Remaining Claims
Because Benham is proceeding pro se, the court has construed her complaint liberally. However, with respect to her remaining claims, coercion (Count XIX), abuse of authority (Count XXIII), conflict of interest (Count XXIV), and acting in bad faith (Count XXV), Benham has failed to state a recognizable cause of action or allege facts which, even if true, support such a cause of action or both. These claims, therefore, must perish.
III. CONCLUSION
For the aforementioned reasons, it is this 24th day of March, 2005, hereby
ORDERED that Defendants' motion to dismiss is GRANTED as to Counts IV, V, VII-X, XIV-XVII, and XIX-XXV, and it is further
ORDERED that Defendants' motion is DENIED as to Counts I-III, VI, and XI-XIII.