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Judicial Watch • Packer v US Comm On Security Cooperation in Europe and Hastings and Turner No 11 485 Court Ruling February 14 2012

Packer v US Comm On Security Cooperation in Europe and Hastings and Turner No 11 485 Court Ruling February 14 2012

Packer v US Comm On Security Cooperation in Europe and Hastings and Turner No 11 485 Court Ruling February 14 2012

Page 1: Packer v US Comm On Security Cooperation in Europe and Hastings and Turner No 11 485 Court Ruling Fe...

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Number of Pages:9

Date Created:February 14, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Cooperation, Comm, Packer, Hastings, Europe, Turner, Ruling, security, 2012, court


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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

WINSOME PACKER, 
Plaintiff, Civil Action No. 11-cv-00485 (RMC) 
THE UNITED ATES COMMISSION SECURITY AND COOPERATION EUROPE, 
ALCEE HASTINGS, and FRED TURNER, 
Defendants. 
This matter before the court Defendant Fred Turner's Motion Dismiss 
Plaintiff's Complaint [Docket No. 18; filed July 2011) and Motion Defendant 
Alcee Hastings Dismiss Counts III and Plaintiffs Complaint [Docket No. 
19; Filed July 2011] (collectively, the "Motions").1 After receiving extension 
time, Plaintiff filed single response opposition both Motions August 12, 2011 
[Docket No. 21]. Defendants filed separate replies September 2011 [Docket Nos. 23]. The Motions have been fully briefed and are ripe for resolution. Having 
considered the relevant pleadings and applicable law, HEREBY ORDERED that the Motions are GRANTED and Defendants 
Alcee Hastings and Fred Turner are DISMISSED parties this action. agreement between District Judge Rosemary Collyer and District Judge Barbara Rothstein, W.D. Wash., sitting designation, the Motions have been transferred this court for resolution. Unless otherwise notified, the matter remains assigned Judge Collyer. Background 
Plaintiff employee the United States Commission Security and Cooperation Europe (the "Commission"). March 2011, she filed the present lawsuit alleging that during her employment with the Commission, she was subjected sexual harassment and later retaliated against because she complained about her treatment. Specifically, Plaintiff contends that '"from January 2008 through February 19, 2010, [she] was forced endure unwelcome sexual advances, crude sexual comments, and unwelcome touching (Defendant] Hastings." Complaint [#1] Defendant Hastings member the United States House Representatives from the state Florida who, that capacity, served the Chairman the Commission from January 2007 through least January 2011. Id. Plaintiff alleges that when she complained about Defendant Hastings' conduct her immediate supervisor and the Commission Staff Director, Defendant Tumer, Defendants Hastings and Turner "began retaliate against [her,] including making threats termination .... Id. 
Although there are several claims asserted exclusively against the Commission, the present Motions seek dismissal only Claim Ill (Defendant Hastings) and Claim (Defendants Hastings and Turner). Claim III alleges that Defendant Hastings engaged sexual harassment the workplace violation Plaintiffs Fifth Amendment equal protection rights. Id. 30-31. Claim alleges that Defendants Hastings and Turner retaliated against Plaintiff violation her First and Fifth Amendment rights. Id.
32. While the claims against the Commission are derived from the Congressional 
Accountability Act ("CAA"), U.S.C.  1301 seq.,2 Claims III and are brought pursuant Bivens Six Unknown Agents Fed'[ Bureau Narcotics, 403 U.S. 388 (1971) and are asserted constitutional grounds against the individually-named Defendants their individual capacities. 
Defendants Hastings and Turner separately move dismiss these claims. Both Defendants argue that the CAA precludes Bivens liability the context this action. Turner's Motion [#18] 8-13, 16-21; Hastings' Motion [#19] 19-38.3 Plaintiffs combined opposition the Motions largely unresponsive question whether Bivens remedy exists, except raise concern that the CAA not applicable here and, therefore, Bivens remedy should not foreclosed. See Opposition [#21) 3-5. 
II. Standard Review 
The purpose motion dismiss pursuant Fed. Civ. 12(b)(6) test "the sufficiency the allegations within the four corners the complaint after taking those allegations true. Interbank Fund Corp. Sec. Litig., 668 Supp. 44, 47-48 
(D.D.C. 2009) (citing Scheuer Rhodes, 416 U.S. 232, 236 (1974)). Moreover, ambiguities must resolved favor the plaintiffs, giving them the benefit every reasonable inference drawn from the well-pleaded facts and allegations his complaint. 
See id. The CAA was enacted Congress address, among other things, employment discrimination and retaliation allegations brought congressional employees. See U.S.C.  1311, 1317. Employees the Commission are treated congressional employees for purposes application the Act. See U.S.C.  1301(3)(A), (B); U.S.C.  3008(d). addition, Defendants argue that even Bivens remedy available, Plaintiff's claims against them lack sufficient specificity survive dismissal. The court need not reach this issue. survive Rule 12(b)(6) motion, the complaint must plead sufficient facts, taken true, provide "plausible grounds'' that discovery will reveal evidence support the plaintiffs allegations. Bell Atl. Corp. Twombly, 550 U.S. 544, 570 (2007). claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant liable for the alleged misconducC' Aschroft Iqbal, 556 U.S. 662, 129 Ct. 1940, 1949 (2009). Moreover, "[a] pleading that offers 'labels and conclusions' fonnulaic recitation the elements cause action will not do. Nor does the complaint suffice tenders 'naked assertion[ devoid 'further factual enhancement."' Id. (citation omitted). 
III. Analysis 
Although Defendants advance several compelling arguments support their Motions, the dispositive question whether Plaintiff has stated any compensable constitutional claims. Bivens cause action judicially created avenue for in'dividuals seek damages rrom federal officials for constitutional violations civil rights. Recognized 1971 way redress alleged Fourth Amendment violations, Bivens has been extended encompass other constitutional violations only discrete handful instances since that time. See Corr. Servs. Corp. Malesko, 534 U.S. 61, (200 (noting that "[i]n years Bivens jurisprudence have extended its holding only twice"). determining whether Bivens remedy exists, the court considers (I) whether Congress has precluded the remedy "by statutory language, clear legislative history, perhaps even the statutory remedy itself'; (2) "[i]n the absence such 
congressional directive," whether there are "any special factors counseling hesitation before authorizing new kind federal litigation." Bush Lucas, 462 U.S. 367, 378 (1983); see also Wilkie Robbins, U.S. 537, 550 (2007) (describing the first factor "the question whether any altemative, existing process for protecting the interest amounts convincing reason for the Judicial Branch refrain from providing new and freestanding remedy damages"). Defendant Hastings contends that the CAA the exclusive remedy redress discrimination claims brought Commission employees. addition, both Defendants argue that special factors exist prevent extension Bivens the present claims. preliminary matter, the comt addresses Plaintiffs contention that the availability the CAA challenge the sexual harassment/retaliation question disputed this litigation. Opposition [#21] Apparently, this contention based position taken the Commission during the pre-litigation stage utilized address Plaintiffs grievances. See id. 4-5. Notably absent, however, any assertion that the applicability the CAA actually issue here. First, Plaintiff pleads her claims against the Commission pursuant the CAA. disingenuous for her question now whether the CAA applies. Second, and more importantly, the Commission concedes the application the CAA its Answer. Commission's Answer 17] ("Defendant does not contest jurisdiction"; "Defendant does not contest Plaintiffs status covered employee"; "Defendant does not contest its status employing office"). Plaintiffs alleged concern that dismissal her Bivens claims may eventually deprive her any remedy simply baseless. 
Considering the relevant factors articulated Bush, the court finds that the applicability the CAA the conduct issue forecloses Plaintiff's Bivens claims under either consideration. Exclusive Nature the CAA 
First, least one court this District has recognized that the CAA "provides the exclusive remedy which legislative branch employees can bring suit challenging employment discrimination." Adams U.S. Capitol Police Bd, 564 Supp. 37, 
(D.D.C. 2008). Although arguably dicta, this statement clearly supported the language the statute and the legislative history behind it. See, e.g., U.S.C.  1361(d)(l) (prescribing that "no person may commence administrative judicial proceeding seek remedy for the rights and protections afforded this [Act] except provided this [Act]"); H.R. Rep. No. 103-650, pt. (1994) ("Congressional employees are prohibited from commencing judicial proceedings except provided this Act."); see also Hastings' Motion [#19] 13-15 (compiling similar preclusive statements contained legislative history Act). The exclusive nature the CAA arguably dispositive. Comprehensive Remedial Scheme 
Second, noted above, "courts 'must decline exercise discretion [to recognize Bivens remedy] where "special factors counsel[] hesitation" doing so."' Gerlich DOJ, 659 Supp. (D.D.C. 2009) (citations omitted). "One 'special factor' that precludes creation Bivens remedy the existence comprehensive remedial scheme." Wilson Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (citation 
omitted). Even the CAA did not provide the exclusive judicial basis for relief, 
clearly comprehensive scheme which permits congressional employees redress 
discriminatory and retaliatory injuries sustained during employment. See, . Hensley Office Architect the Capitol, 806 Supp. 86, 92-93 (D.D.C. 2011) (holding 
that CAA, like its antecedent Title Yll, "an adequate, comprehensive procedural and 
remedial scheme" barring Bivens remedy); Tull Office Architect the Capitol, 
806 Supp. 80, 85-86 (D.D.C. 2011) (same). 
Plaintiff's citation the Supreme Court's decision Davis Passman, 442 U.S. 
228 (1979) unavailing. Although the Court Davis recognized the availability 
Fifth Amendment Bivens claim redress discrimination the federal employment 
context, this recognition predated passage the CAA and, therefore, was founded the 
lack any explicit statutory remedies addressing discrimination that context. Id. 

248. Indeed, the Court recognized that its decision would impacted congressional 
act. Id.; see also Malesko, 534 U.S. (noting that holding Davis was predicated 
the lack "any alternative remedy for harms caused" (emphasis original)). The 
subsequent passage the CAA effectively limits the precedential value Davis 
today's statutory landscape.4 Plaintifrs citation the Supreme Cou11's decision Wilkie Robbins likewise unpersuasive. See Opposition #21] Although Plaintiff references the Court's opinion 
support ofthe proposition that Bivens remedy should exist unless statutory provision expressly precludes it, the holding Wilkie does not support that characterization. Rather, the Court declined recognize Bivens remedy although found that the applicable law did not "plainly answer the question whether [the plaintiff] should have it." Wilkie, U.S. 
554. 
Regardless that Bivens and its early progeny subjected federal officials individual liability for specific constitutional violations, the Court's "more recent decisions have responded cautiously suggestions that Bivens remedies extended into new contexts." Schweiker Chi/icky, 487 U.S. 412, 1988); see also Iqbal, 129 Ct. 1948 (noting that "implied causes actions are disfavored"). For example, Bush, the Supreme Comt declined extend Bivens First Amendment claim raised Executive Branch employee because the conduct issue was govemed various legislation, executive orders, and detailed regulations. Bush, 462 U.S. 368, 385. Specifically, because "[f]ederal servants [in this context] are now protected elaborate, comprehensive scheme that encompasses substantive provisions for forbidding arbitrary action supervisors and procedures -administrative and judicial -by which improper action may redressed," the Court did not "pennit federal employee recover damages from supervisor who ha[ improperly disciplined him for exercising his First Amendment rights." Id. 385, 390. 
Clearly this case, the comprehensive administrative and judicial measures available Plaintiff pursuant the CAA preclude Bivens remedy for the conduct alleged have been committed Defendants Hastings and Tumer. Therefore, the court finds that Plaintiff has failed state claims upon which relief can granted against these Defendants. 
IV. Conclusion 
For the reasons stated above, ORDERED: 
(1) Defendant Turner's Motion Dismiss GRANTED; 
(2) Defendant Hastings' Motion Dismiss GRANTED; and 
(3) The claims asserted against these Defendants are DISMISSED with prejudice and the caption shall amended accordingly. 
Dated: February 14, 2012 

BARBARA ROTHSTEIN UNITED STATES DISTRICT JUDGE