Lim v. The United States
Filing
68
MEMORANDUM OPINION (c/m to Plaintiff 7/5/11 sat). Signed by Chief Judge Deborah K. Chasanow on 7/5/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DAVID LIM
:
v.
:
Civil Action No. DKC 10-2574
:
THE UNITED STATES OF AMERICA,
et al.
:
MEMORANDUM OPINION
Presently pending and ready for review is the motion of
Defendants
judgment.
to
dismiss
(ECF No. 56).
or
in
the
alternative
for
summary
The issues have been fully briefed and
the court now rules pursuant to Local Rule 105.6, no hearing
deemed
necessary.
For
the
reasons
that
follow,
Defendants’
motion will be granted.
I.
Background
A.
Factual Background1
Plaintiff, Dr. David Lim, is a former Commissioner’s Fellow
with
the
United
States
Food
and
Drug
position was terminated on June 5, 2009.
Administration
whose
His Second Amended
Complaint, filed pro se, identifies the United States and eleven
individuals, in both their individual and official capacities,
as
defendants
1
and
asserts
twenty-three
counts
arising
from
Unless otherwise indicated, these facts are taken from
Plaintiff’s Second Amended Complaint.
conduct and events relating to Lim’s tenure as a fellow and his
termination
from
defendants are:
that
position.2
The
eleven
individual
(1) Margaret Hamburg, Commissioner of Food and
Drugs; (2) Joshua Sharfstein, FDA Office of the Commissioner,
Principal Deputy Commissioner; (3) Jesse Goodman, FDA Office of
the Commissioner, Deputy Commissioner and Chief Scientist; (4)
Kimberly
Holden,
FDA
Office
of
Commissioner,
Assistant
Commissioner for Operations; (5) L’Tonya Davis, FDA Office of
the Commissioner, Executive Director; (6) Dr. Jonathan SacknerBernstein,
FDA
Operation;
Associate
(7)
Kelly
Center,
Wilkicki,
Director
FDA
for
Post-Market
Coordinator
of
the
Commissioner’s Fellowship Program; (8) Mary Long, FDA Office of
the Commissioner, Public Affairs Specialist; (9) Nicole Troen,
Department
Resources
Services
of
Health
Specialist;
Section
and
(10)
DHHS;
and
Human
William
(11)
Services
M.
(“DHHS”),
Darracott,
Nathan
Dickey,
Chief
DHHS
Human
Debt
Human
Resources Specialist.
The
FDA
Commissioner’s
Fellowship
Program
is
a
two-year
program whereby health professionals and scientists get training
and experience at the FDA facility in Silver Spring, Maryland.
The Fellowship Program combines coursework in subjects such as
2
Although the United States is listed as a defendant, none
of the twenty three specific counts alleged that the United
States as a single entity is liable.
2
public policy, FDA law, epidemiology, and clinical trials and
design with the development of a regulatory science research
project.
Each fellow is paired with an FDA senior scientist as
a preceptor to mentor the fellow in the development of his or
her project.
Lim applied for a fellowship position in July 2008.
made
it
review
through
a
choices.
list
Lim
the
of
first
screening
potential
ranked
Dr.
round
preceptors
Jonathan
and
and
was
rank
asked
his
Sackner-Bernstein
He
to
first
highly
because of his interest in working on Dr. Sackner-Bernstein’s
advertised
Initiative.”
project,
“the
CDRH
Post-Market
Transformation
Dr. Sackner-Berstein conducted a phone interview
of Lim during which Lim was given an oral offer to work with Dr.
Sackner-Bernstein.
On
October
15,
2008,
Lim
received
a
tentative offer via email indicating that he had been selected
for the program, followed by an official offer letter.
The
official letter indicated that Lim’s offer of employment as a
Staff Fellow was “an Excepted Appointment Not-To-Exceed 2 years
and it will become effective October 26th, 2008,” pursuant to 42
U.S.C. § 209(g).
Lim accepted the offer and began his fellowship on October
28,
2008.
In
November,
Lim
received
an
email
from
Kelly
Wilkicki describing the requirements for the submission of the
research project description required by all fellows and due on
3
December 31, 2008.
Lim’s complaint chronicles his difficulties
obtaining assistance from Dr. Sackner-Bernstein in selecting a
project and developping his project description and alleges that
Dr.
Sackner-Bernstein
had
no
projects
for
Lim,
despite
advertising the availability of a number of projects for an
incoming fellow.
Because of these difficulties, Lim sought an extension of
the
deadline.
Bernstein’s
In
approval
early
to
2009,
pursue
Lim
a
obtained
project
to
Dr.
Sackner-
establish
a
collaboration with the United States Patent and Trademark Office
(“USPTO”).
Lim held an initial meeting with individuals at the
USPTO,
alleges
but
that
subsequently
he
was
prohibited
contacting anyone at the USPTO about his research.
from
Lim contends
this instruction was at least in part motivated by Dr. SacknerBernstein’s desire to conceal patient safety information from
the public.
Lim contends that by March of 2009 Dr. Sackner-
Bernstein had forced him to change the scope and focus of his
research project drastically.
Despite making these changes, on
March 25, 2009, Lim received an email from Dr. Sackner-Bernstein
expressing disapproval with Lim’s progress to date.
On March 5, 2009, prompted by reports from other fellows in
the program that Lim had sent several discourteous emails, the
FDA issued a “memorandum of expectations” to Lim clarifying its
4
professional expectations.
Lim contends that the allegations
within the memorandum are false.
On April 6 and 7, 2009, Lim emailed Defendant Sharfstein to
identify his difficulties establishing a collaboration with the
USPTO and to ask for an opportunity to brief Dr. Sharfstein in
person.
On April 7, 2009, Lim also received an email from Ms.
Wilkicki noting that Lim still had failed to submit the project
proposal, originally due the prior December, and indicating that
“failure to submit your approved project description by 5:00
p.m. on April 15, 2009, may result in adverse action, up to and
including your removal from the Federal Service.”
¶ 68).
his
(ECF No. 42
On April 15, 2009, Lim petitioned to continue working on
initial
research
project
On
5,
signature.
June
without
2009,
Lim
Dr.
was
Sackner-Bernstein’s
given
a
Notice
of
Termination.
B.
On
Procedural Background
or
about
July
1,
2009,
Lim
filed
an
administrative
complaint asserting a number of allegations against the present
Defendants under the Federal Tort Claims Act and other laws.
Lim filed Amendments/Additions to his complaint on October 7,
2009, and the Department of Health and Human Services denied all
the administrative tort claims on November 16, 2009.
Lim
also
filed
a
complaint
with
the
Office
of
Special
Counsel in October 2009, alleging that he was terminated for
5
whistle-blowing
investigation
activities.
and
Lim
The
filed
an
OSC
terminated
individual
right
of
its
action
(“IRA”) appeal with the Merit Systems Protection Board (“MSPB”)
regarding his removal.
An administrative law judge dismissed
the appeal because he determined that Lim had failed to make a
non-frivolous
allegation
whistle-blowing
that
activity
jurisdiction.
A
he
and
petition
had
engaged
therefore
for
review
in
the
of
protected
MSPB
this
lacked
decision
is
pending.
In
United
October
States
2009
Court
Lim
had
also
of
Federal
filed
Claims
a
complaint
alleging
in
breach
the
of
contract, breach of the covenant of good faith and fair dealing,
promissory
estoppel,
and
a
Fifth
property and liberty interests.
Amendment
taking
of
his
(ECF No. 56-9, First Amended
Complaint, Lim v. United States, No. 09-cv-00732-RHH, (Fed. Cl.
Jan. 22, 2010)).
This complaint was dismissed on July 9, 2010,
for lack of subject matter jurisdiction.
The Court of Federal
Claims held that Lim could not state a claim for breach of
contract because “absent special legislation to the contrary,
federal employees serve by appointment rather than by contract.”
(ECF No. 56-10, at 1-2).
The Court of Federal Claims further
held that Lim’s takings argument did not state a claim for which
it had jurisdiction because the Tucker Act requires claimants of
Fifth Amendment takings claims in the Court of Federal Claims to
6
concede that the government action giving rise to the alleged
taking was lawful, a concession Lim would not make.
(Id. at 2).
Finally, that court noted that it did not have jurisdiction over
tort claims.
(Id. at 3).
This case began in December 2009 when Lim filed his first
complaint in the United States District Court for the Western
District of Virginia.
complaint
ECF Nos.
after
13,
transferred
Defendants
42).
to
(ECF No. 45).
(ECF No. 1).
the
Upon
filed
Lim twice amended his
motions
Defendants’
District
of
to
dismiss.
motion,
Maryland
in
the
(See
case
September
was
2010.
Defendants subsequently moved to dismiss or in
the alternative for summary judgment on all claims of Lim’s
second amended complaint.
II.
(ECF No. 56).
Standard of Review
The Defendants have moved to dismiss for lack of subject
matter
jurisdiction
pursuant
to
Fed.R.Civ.P.
12(b)(1)
or
for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), or
alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56.
As the court has an obligation to satisfy itself of its own
subject
matter
jurisdiction,
Defendants’
motion
pursuant
to
Fed.R.Civ.P. 12(b)(1) will be considered first.
The
plaintiff
bears
the
burden
of
proving
that
subject
matter jurisdiction properly exists in the federal court.
See
Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166
7
F.3d 642, 647 (4th Cir. 1999).
In a 12(b)(1) motion, the court
“may consider evidence outside the pleadings” to help determine
whether it has jurisdiction over the case before it.
Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d
765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647.
The
court should grant the 12(b)(1) motion “only if the material
jurisdictional facts are not in dispute and the moving party is
entitled to prevail as a matter of law.”
Richmond, 945 F.2d at
768.
III. Analysis
A.
Civil Service Reform Act
Defendants
argue
that
the
entirety
of
Lim’s
complaint
should be dismissed because it is preempted by the Civil Service
Reform Act.
Defendants contend that the CSRA sets forth an
elaborate scheme to provide administrative remedies for claims
arising
from
personnel
exclusive and preemptive.
actions
and
that
these
remedies
(ECF No. 56-1, at 11-12).
not respond to this argument in his opposition.
are
Lim does
He instead
argues that is premature to challenge the factual bases for his
allegations because he has not yet had an opportunity to conduct
discovery.
The Civil Service Reform Act, Pub.L.No. 95-454, 92 Stat.
1111 (codified as amended in scattered sections of 5 U.S.C.)
“comprehensively overhauled the civil service system,” creating
8
a “framework for evaluating adverse personnel actions against
[federal
employees].”
Hall
v.
Clinton,
235
F.3d
202,
204
(4th Cir. 2000) (quoting Lindahl v. Office of Personnel Mgmt.,
470 U.S. 768, 773-74)).
“It prescribes in great detail the
protections and remedies applicable to such action, including
the availability of administrative and judicial review.”
Id.
(quoting United States v. Fausto, 484 U.S. 439, 443 (1988)).
It
was enacted in part to address the “haphazard arrangements for
administrative
and
judicial
Fausto, 484 U.S. at 444.
review
of
personnel
action.”
Further, the Act addresses the wide
variation in decisions regarding personnel actions relating to
federal employees that resulted from concurrent jurisdiction of
multiple jurisdictions over the cases.
See id. at 445.
Courts
have held that in order to effectuate these goals the remedial
scheme
established
claims
arising
exercise
by
from
jurisdiction
the
CSRA
federal
over
is
the
employment
such
claims
exclusive
and
have
brought
remedy
for
declined
to
in
federal
district court, whether alleging tort claims pursuant to the
Federal
Tort
Claims
Act,
constitutional violations.
or
Bivens
actions
for
alleged
Rivera v. United States, 924 F.2d
948, 951 (9th Cir. 1991) (holding that CSRA precludes suits under
the Federal Tort Claims Act); Premachandra v. United States, 739
F.2d 392, 394 (8th Cir. 1984) (same); Grisham v. United States,
103 F.3d 24, 27 (5th Cir. 1997) (same); Bush v. Lucas, 462 U.S.
9
367 (1983) (holding that Court will not fashion new judicial
remedy for violation of First Amendment where Congress created
comprehensive remedial scheme to protect civil servants); Hall,
235 F.3d at 206 (holding that CSRA precludes both Bivens action
and
statutory
claims
arising
out
of
federal
employment
relationship and affirming dismissal for lack of subject matter
jurisdiction).
B.
Lim’s Tort and Constitutional Claims
The operative questions then are whether the CSRA applies
to
Lim’s
position
and
personnel actions.
whether
his
alleged
claims
relate
to
Beginning with the scope of the CSRA, 5
U.S.C. § 2101(1) specifies that for the purposes of the title
“the ‘civil service’ consists of all appointive positions in the
executive, judicial, and legislative branches of the Government
of
the
United
services.”
“employee”
service
by
States,
Title
as
.
corporation.”3
“an
.
5
except
U.S.C.
the
in
§ 2105(a)(1)(E)
individual
.
positions
who
head
is
of
the
further
appointed
a
uniformed
in
Government
defines
the
civil
controlled
Lim was appointed to his position pursuant to 42
U.S.C. § 209(g) which specifies:
3
5 U.S.C. §§ 2105(a)(2)-(3)
employee be an individual who is :
10
further
requires
than
an
In accordance with regulations, individual
scientists, other than commissioned officers
of the Service, may be designated by the
Surgeon General to receive fellowships,
appointed for duty with the Service without
regard to the civil-service laws, may hold
their
fellowships
under
conditions
prescribed therein, and may be assigned for
studies or investigations either in this
country or abroad during the terms of their
fellowships.
Defendants contend that pursuant to this provision, Lim was a
member
of
the
civil
service
remedial scheme of the CSRA.
and
subject
to
the
exclusive
(ECF No. 56-1, at 13).
Lim does
not directly address this contention in his opposition, but one
potential obstacle to Defendants’ argument is the language in
§ 209(g) stating that fellows “are appointed for duty with the
Service without regard to the civil-service laws.”
Defendants
note that despite this language, at least one district court has
determined that FDA fellows are civil service employees subject
to the CSRA remedial scheme.
(See ECF No. 56-1, at 14) (citing
Afshari v. Leavitt, No. 1:05-CV-127, 2006 WL 3030323 (N.D.W.Va.
Oct. 23, 2006)).
(2) engaged in the performance of a Federal
function under authority of law or an
Executive act; and
(3) subject to the supervision of an
individual named by paragraph (1) of this
subsection while engaged in the performance
of the duties of his position.
11
The
Afshari
decision
is
in
accordance
with
several
decisions by the Merit Systems Protection Board holding that the
“without regard to the civil service laws” language in 42 U.S.C.
§ 209(g) is meant only to provide agencies with some flexibility
in their appointment of fellows and to indicate that fellowship
appointments
are
not
subject
to
the
standard
appointment
requirements for civil service employees such as the veteran’s
preference
or
conditioning
competitive examinations.
employment
on
the
passage
of
See Fishbein v. Dep’t of Health &
Human Servs., 102 M.S.P.R. 4, ¶¶ 13-14 (2006);
Usharauli v.
Dep’t of Health & Human Servs., 2011 M.S.P.B. 54, ¶ 12 (2011).
This interpretation is further supported by the decision of the
United States Court of Appeals for the Federal Circuit in Dodd
v. Tennessee Valley Authority, 770 F.2d 1038, 1040 (Fed.Cir.
1985), holding that identical language regarding appointment to
the
Tennessee
conditioning
examinations
Valley
its
but
Authority
appointments
did
not
render
exempted
on
that
passage
appointed
outside the scope of the civil service laws.
of
agency
from
competitive
employees
entirely
Lim’s fellowship
position, therefore, made him a member of the civil service
subject to the CSRA remedial scheme for applicable offenses.4
4
Lim’s position is also a covered position as defined by 5
U.S.C. § 2302(B) such that the merit systems principles apply to
his employers.
12
The CSRA remedial scheme applies to all actions alleging
that
employers
Personnel
engaged
action
disciplinary
is
or
in
prohibited
defined
as
corrective
reassignment,
any
appointment,
action,
reinstatement,
personnel
detail,
actions.
promotion,
transfer,
restoration,
or
reemployment,
performance evaluation, decision concerning pay or benefits and
the like, decision to order psychiatric examination, and any
other significant change in duties, responsibilities, or working
conditions.
See 5 U.S.C. § 2302(a)(2)(A)(i)-(xi).
Prohibited
personnel actions include taking personnel actions violative of
the “merit system principles contained in section 2301 of [the]
title.”
5 U.S.C. § 2302(b)(12).
include,
among
equitably
other
“with
constitutional
things,
proper
rights,”
The merit systems principles
treating
regard
(5
U.S.C.
for
employees
their
fairly
privacy
§ 2301(b)(2)),
that
and
and
“all
employees should maintain high standards of integrity, conduct,
and concern for the public interest,” id. § 2301(b)(4), that
“employees should be provided effective education and training,”
id. § 2301(b)(7), and that employees should be protected against
arbitrary action and personal favoritism.
Id. § 2301(b)(8)(A).
Although Lim’s complaint alleges the torts of negligence,
negligent
hiring,
negligent
retention,
negligent
supervision,
intentional infliction of emotional distress, and invasion of
privacy and violations of his constitutional rights under the
13
First and Fifth Amendment, the underlying acts that form the
basis of Lim’s claims all fall under the umbrella of prohibited
personnel
actions
and
are
preempted
by
the
CSRA’s
remedial
scheme.
Beginning with the tort-based claims, count I is a claim
for
negligence
against
all
Defendant
employees,
in
essence
alleging that they are liable for failing to prevent the harm
caused when Dr. Sackner-Bernstein did not properly advise and
guide Lim.
Counts II-IV, for gross negligence and the negligent
hiring and retention of Dr. Sackner-Bernstein and Ms. Wilkicki,
similarly target the harm caused by these individuals’ alleged
lack of experience and guidance when supervising Lim.
Counts V-
XIII
emotional
are
all
claims
for
intentional
infliction
of
distress against various employees of the FDA or Department of
Health and Human Services.
In some cases it is difficult to
discern from Lim’s claims what specific actions he is alleging
constituted intentional infliction of emotional distress, but he
does
clearly
allege
that
Defendants
fabricated
a
notice
of
termination (count VI), made “fictional and false statements to
the DLLR and public” (count VII), disregarded Lim’s request to
meet
to
discuss
his
work
discriminatory
and
“unlawful
corrupt
conceal
and
serious
conditions
retaliatory
acts
activities
patient
safety
14
(count
VIII),
(count
IX),
with
issues
deceptive
intending
committed
engaged
in
intent
to
to
cause
systemic breakdown at the Agency” (count X), disposed of Lim’s
administrative complaint too quickly and with deceptive intent
(count XI), falsely advised Lim of his rights and the reason for
his termination (count XII); and withdrew a request to ask Lim
to discuss his fellowship experience (count XIII).
alleges
that
false
statements
by
Dr.
Count XIV
Sackner-Bernstein
concerning Plaintiff’s work performance constitute an invasion
of Lim’s privacy.
The final tort-based claim in count XXII
alleges that Defendants L’Tonya Davis, Kimberly Holden, Jesse
Goodman,
and
Joshua
Sharfstein
are
liable
for
negligent
supervision of Dr. Sackner-Bernstein and Ms. Wilkicki because
they lacked the experience and training necessary to coordinate
the fellowship program and provide guidance to Plaintiff.
All
of these claims relate to personnel actions as defined in the
CSRA because they are ultimately claims that Lim was not treated
equitably or fairly while employed as a fellow or that he was
not properly trained or supervised.
These claims are preempted
and cannot be brought in federal district court pursuant to the
Federal Tort Claims Act.
The CSRA remedial scheme also precludes Lim from bringing
Bivens
claims
for
personnel
constitutional violations.
Dole,
747
plaintiff’s
F.2d
899,
Bivens
that
are
alleged
to
be
See Bush, 462 U.S. at 390; Pinar v.
913
claim
actions
(4th
Cir.
alleging
15
1984)
first
(affirming
amendment
that
violations
could not be brought in federal district court and noting “we
agree with the district court that Congress clearly intended the
CSRA to be the exclusive remedy for federal employees and the
Court of Appeals for the Federal Circuit to be the sole forum
for
judicial
review.”),
cert.
denied,
471
U.S.
1016
(1985).
Thus, counts XIX-XXI asserting Bivens actions for constitutional
violations are precluded to the extent the actions alleged to
violate Lim’s constitutional violations are personnel actions.5
Counts XIX, XX, and XXI are Bivens claims alleging that
Defendants violated Lim’s First and Fifth Amendment rights when
they
demonstrated
“deliberate
indifference
to
his
reports
of
concerns and research findings of serious patient safety issues”
and when they wrongfully discharged him in response.
These
allegations can be classified as personnel actions, not only
because the merit system principles include a requirement that
employers treating employees fairly and equitably “with proper
regard for . . . their constitutional rights” but also because
the actions relate to this conditions of his employment and his
termination.
5
Even federal employees exempted by Congress from the Civil
Service Reform Act and who, thus, lack a CSRA remedy have been
precluded from pursuing Bivens actions for claims arising from a
federal employment relationship.
See, e.g., Zimbelman v.
Savage, 228 F.3d 367, 370-71 (4th Cir. 2000); Mann v. Haigh, 120
F.3d 34, 38 (4th Cir. 1997).
16
There is some disagreement as to whether the CSRA precludes
actions seeking equitable relief for constitutional violations.
The D.C. Circuit, Third Circuit, and Ninth Circuit have held
that Congress did not limit courts’ equitable jurisdiction over
constitutional claims when it enacted the CSRA.
Hubbard v. U.S.
E.P.A. Adm’r, 809 F.2d 1, 11-12 (D.C.Cir. 1986); Spagnola v.
Mathis, 859 F.2d 223; 229-30 (D.C.Cir. 1988), aff’d en banc;
Mitchum v. Hurt, 73 F.3d 30, 34-36 (3d Cir. 1995) (“the court’s
power
to
enjoin
unconstitutional
acts
by
the
government,
however, is inherent in the Constitution itself”); Am. Fed. Of
Gov’t
Employees
Local
1
v.
Stone,
502
F.3d
1027,
1037-39
(9th Cir. 2007) (holding that plaintiffs were entitled to seek
equitable relief for alleged violation of their First Amendment
rights
notwithstanding
the
CSRA).
The
Second
and
Tenth
Circuits, to the contrary, have held that the CSRA does preclude
claims for equitable relief.
Dotson v. Griesa, 398 F.3d 156,
180-81 (2d Cir. 2005); Lombardi v. Small Business Admin, 889 F.2d
959, 961 (10th Cir. 1989).
Four circuits, including the Fourth
Circuit, have declined to decide the issue.
Irizarry v. United
States, 427 F.3d 76, n.2 (1st Cir. 2005) (declining to decide
whether
equitable
relief
from
constitutional
violations
is
precluded by CSRA); Paige v. Cisneros, 91 F.3d 40, 44 (7th Cir.
1996) (recognizing disagreement but finding it was “not . . .
necessary to choose between these lines of authority because
17
[plaintiff] lacks . . . [a] substantial constitutional claim”);
Hardison v. Cohen, 375 F.3d 1262, 1269 (11th Cir. 2004) (holding
that
it
need
equitable
not
relief
established
a
decide
was
whether
barred
property
plaintiff’s
because
interest
request
plaintiff
protected
for
had
by
the
not
Fifth
Amendment); Bryant v. Cheney, 924 F.2d 525, 528 (4th Cir. 1991)
(deciding case on other grounds).
The court need not resolve the question here because Lim
has
not
clearly
constitutional
allege
stated
claim
violation.
constitutional
consequential
a
damages
for
Counts
violations
from
the
equitable
XV,
and
XVI,
seek
Defendant
official capacities for those violations.
relief
XVII,
from
and
XVIII
compensatory
employees
in
a
and
their
Although they are not
labeled as Bivens claims they are the functional equivalents of
Bivens claims and do not indicate that Lim is seeking equitable
relief in any form.
“injunctive
and
Lim’s complaint does include a request for
declaratory
relief”
in
the
final
prayer
for
relief, but nowhere in the body of the complaint does he specify
the
counts
for
which
he
seeks
such
relief
or
what
type
of
injunction or other equitable remedy he is seeking.
To the extent counts XV, XVI, XVII, and XVIII seek damages
for constitutional violations committed by Defendant employees
in their official capacities they must also be dismissed for
lack of subject matter jurisdiction.
18
Lim correctly labeled only
the suits seeking damages for constitutional violations from the
defendant
because
in
their
Bivens
individual
does
not
capacities
apply
to
as
suits
officials in their official capacity.
Bivens
against
actions
government
See, e.g., Randall v
United States, 95 F.3d 339, 345 (4th Cir. 1996) (“Bivens did not
abolish the doctrine of sovereign immunity of the United States.
Any
remedy
under
Bivens
is
against
federal
individually, not the federal government.”).
officials
Moreover claims
for constitutional violations cannot be brought against officers
in their official capacity absent express consent by the United
States to be sued for the alleged conduct.
As the Supreme Court
has recognized, “[i]t is axiomatic that the United States may
not
be
sued
without
its
consent
and
that
the
consent is a prerequisite for jurisdiction.”
Mitchell, 463 U.S. 206, 212, (1983).
jurisdiction
general
over
claims
violations
of
against
the
the
existence
of
United States v.
Federal courts have no
United
Constitution
not
States
asserting
authorized
by
a
specific statute.
C.
Lim’s Privacy Act Claim
Finally,
Lim’s
claim
under
the
Privacy
Act,
5
U.S.C.
§§ 552a, in count XXIII suffers from a number of flaws.
First,
the claim is preempted by the CSRA to the extent Lim is invoking
the Privacy Act to challenge the basis for his discharge.
count
XXIII
Lim
alleges
that
“The
19
FDA
had
negligently
In
and
recklessly applied wrongful regulations (5 C.F.R. § 315.804) to
remove
the
plaintiff,
terminating
the
probationers
said
for
regulation
of
unsatisfactory
which
was
for
performance
or
conduct applicable to career and career-conditional employment.”
Thus while labeled as a Privacy Act violation, Lim is ultimately
challenging the basis for his discharge, a personnel decision
which cannot be challenged outside the framework of the CSRA.
In
addition,
Lim’s
Privacy
Act
count
identifies
only
individual employees, but the text of the Privacy Act authorizes
suit
against
the
federal employees.6
to
imply
a
offending
agency,
not
against
individual
Moreover, courts have consistently declined
Bivens-style
right
of
action
against
individual
officers for conduct that would be actionable under the Privacy
Act.
See Patterson v. FBI, 705 F.Supp. 1033, 1045 n.16 (D.N.J.
1989), aff'd 893 F.2d 595 (3d Cir.), cert. denied, 498 U.S. 812
6
Specifically, the relevant provision of the Privacy Act
creating a private cause of action, 5 U.S.C. § 552a(g)(1)(C),
provides that:
whenever an agency fails to maintain any
record concerning any individual with such
accuracy,
relevance,
timeliness,
and
completeness as is necessary to assure
fairness in any determination relating to
the qualifications, character, rights, or
opportunities
of,
or
benefits
to
the
individual that may be made on the basis of
such
record,
and
consequently
a
determination is made which is adverse to
the individual, the individual may bring a
civil action against the agency.
20
(1990); Downie v. City of Middleburg Heights, 301 F.3d 688, 698
(6th
Cir.
2002);
Williams
v.
Dept.
of
Veterans
Affairs,
879
F.Supp. 578, n.5 (E.D.Va. 1995).
IV.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendants will be granted.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
21
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