RICHARDS v. CENTRAL INTELLIGENCE AGENCY et al

Filing 52

MEMORANDUM OPINION re: Motion to Dismiss. (see Order for complete details) Signed by District Judge Anthony J Trenga on 11/16/11. (tfitz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Franklin RICHARDS,

Plaintiff,

No. l:ll-cv-784(AJT/JFA)
CENTRAL INTELLIGENCE AGENCY

et al.,
Defendants.

MEMORANDUM OPINION

The Plaintiff, a federal employee, was exposed to toxic levels of lead in connection with

his employment and as a result suffered permanently disabling lead poisoning. Presently before
the Court is defendants' motion to dismiss for failure to state a claim and for lack of subject

matter jurisdiction. For the reasons stated herein, the Court will grant that motion in this
troubling and tragic case.

For the purposes of the pending motion, and based on the allegations of the Complaint,
the Courts accepts as true the following facts, together with all reasonable inferences therefrom:
Plaintiff Franklin Richards ("Richards") was an employee of the Central Intelligence
Agency ("CIA") from 1990 until 2006. While serving as Deputy Chief in the Special Activities

Division in 2003, he was instructed to conduct weapons training in a Middle Eastern country.
The firing range facility where he was assigned was unsafe and unsuitable for firearms training
because millions of rounds of ammunition had been discharged there with little to no clean up or

maintenance of the facility. The entire range was covered in a layer of lead dust that was highly
toxic.

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Richards's supervisor, Defendant Gordon P., instructed Richards to clean the facility and
use it as the training location despite Richards's protestations that it was unsafe. Gordon P.

rejected suitable alternative locations and rejected suggestions on how to make the selected
location safer. Facing direct orders to use the unsafe facility, Richards trained individuals there
instead of at a safer location. The consequences for Richards were devastating. Due to his

exposure to dangerous levels of lead, Richards contracted lead poisoning. CIA doctor Brian H.
compounded the consequences of Richards's exposure by misdiagnosing the disease and
delaying proper treatment. Due to the delay, the window for properly treating the lead poisoning
closed and Richards now suffers from severe, debilitating medical problems. The neurological

damage that resulted is so extensive that Richards is not capable of maintaining a job that

involves anything but menial tasks. While Richards was on medical leave, the CIA disclosed
confidential and embarrassing medical and other information about Richards and his condition to
other employees. Many employees and former employees of the CIA still discuss this
confidential information; and as a result of the disclosures, Richards "has suffered adverse and

harmful effects, including ... mental distress, emotional trauma, embarrassment, humiliation, a
worsening of his depression, and a lost or jeopardized present or future financial opportunities."
Based on the above allegations, Richards filed this action against defendants CIA, CIA
Director Leon Panetta in his capacity as director, Gordon P., and Dr. Brian H. His claims
include {\)Bivens claims against Gordon P. and Dr. Brian H. for violations of the Fifth

Amendment Due Process Clause and (2) a claim against the CIA under the Privacy Act, 5 U.S.C.
§§ 552a(b) and (g)(1)(D) for the allegedly unlawful disclosures of personal information. The

defendants have moved to dismiss on the grounds, among others, that the Federal Employees
Compensation Act ("FECA") precludes Richards's claims because FECA provides the exclusive

remedy for injuries that occur in the federal workplace. For the reasons stated below, the Court
concludes that both the Bivens claims and the Privacy Act claim are precluded by the exclusivity

provision of FECA.

(1) The Bivens claims.1
In order for a party to proceed with a Bivens action, a court must determine "that (1)
Congress has not already provided an exclusive statutory remedy; (2) there are no 'special
factors counseling hesitation in the absence of the affirmative action by Congress'; and (3) there

is no 'explicit congressional declaration' that money damages not be awarded." Hall v. Clinton,
235 F.3d 202,204 (4th Cir. 2000) (quoting Bivens, 403 U.S. at 396-97). The defendants argue

that these considerations preclude a Bivens action, particularly because FECA, by its express
terms, created an alternative exclusive remedial scheme for relief. In response, Richards argues
that his constitutionally-based Bivens claims cannot be precluded by statute and also that FECA

is not an adequate alternative remedy to his Bivens claims. Applying the relevant considerations
to the facts of this case, the Court concludes that the Bivens claims are precluded by the
plaintiffs remedy under FECA.

First, FECA, on its face, appears to provide an exclusive remedy with respect to the
conduct alleged as the basis for the Bivens claims. In this regard, 5 U.S.C. § 8116(c) provides in
pertinent part:

1In Bivens, the Supreme Court recognized an implied damages remedy for injuries arising out of
a violation of a person's Fourth Amendment rights. Bivens v. Six Unknown Fed Narcotics
Agents, 403 U.S. 388 (1971). The Supreme Court later expanded Bivens to include a damage
remedy for Fifth Amendment Due Process Clause violations, Davis v. Passman, 442 U.S. 228
(1979), and Eighth Amendment Cruel and Unusual Punishment Clause violations, Carlson v.
Green, 446 U.S. 14 (1980). However, the Court has resisted further extensions of Bivens. See
Holly v. Scott, 434 F.3d 287,290 (4th Cir. 2006) (Courts have resisted extending the Bivens
remedy because Congress "is in a better position to decide whether or not the public interest
would be served by the creation of new substantive legal liability." (quoting Schweiker v.
Chilicky, 487 U.S. 412,426-27 (1988) (internal quotation marks omitted)).

The liability of the United States or an instrumentality thereof under this subchapter or
any extension thereof with respect to the injury or death of an employee is exclusive and
instead of all other liability of the United States ...

Second, there are two "special factors counseling hesitation" to the extension of a Bivens

claim to the conduct alleged here: (1) the significant role that federal employment plays in this
case; and (2) the substantial remedy available under FECA for the harm sustained. See Hall, 235
F.3d at 205 (citing Bush v. Lucas, 462 U.S. 367, 378-80 (1983)); Holly, 434 F.3d at 290,295-96.

Here, Richards's injuries were directly related to his employment and as a result he was entitled

to receive the benefits Congress deemed appropriate for those injuries. See Bush, 462 U.S. at
378-80. In Bush, the Supreme Court refused to permit an implied Bivens remedy for a federal

employee alleging a First Amendment violation, concluding that federal employment was a

"special factor" which counseled against permitting a Bivens remedy because the plaintiff had
alternative remedies under the Civil Service Commission ("CSC"). Id. In that regard, the

Supreme Court found it important that Congress had specifically addressed the relationship
between the Government and its employees within the context of granting remedies for those
employees who felt they were wrongfully fired or held back. Id. at 381-88; see also id. at 368
("Because such claims arise out of an employment relationship that is governed by
comprehensive procedural and substantive provisions giving meaningful remedies against the
United States, we conclude that it would be inappropriate for us to supplement that regulatory
scheme with a new judicial remedy."). As the Court remarked in Bush, "Congress is in a far
better position than a court to evaluate the impact of a new species of litigation between federal
employees on the efficiency of the civil service. Not only has Congress developed considerable

familiarity with balancing governmental efficiency and the rights of employees, but it also may

inform itself through fact finding procedures such as hearings that are not available to the
courts." Id at 389.

Here, the alternative remedy to a Bivens claim is under FECA, not the CSC, but Bush's

logic applies equally to the available FECA remedy. Congress created FECA to provide

compensation for workplace injuries and it is specifically designed to strike a balance between
the federal employee's welfare and the government's sovereign immunity. See Lockheed
Aircraft, Corp. v. UnitedStates, 460 U.S. 190, 193-94 (1983). In that regard, Congress made the

judgment and determination that an employee should have immediate and fixed benefits,
regardless of fault for the injury, in exchange for a limited right to sue the government. Id.

FECA also represents a "substantial remedy" available to Richards.2 Nevertheless,
Richards argues that FECA should not displace his Bivens claim because FECA cannot

adequately compensate him for all of his injuries as a result of the lead poisoning. But complete
compensation for all injuries is not a requirement in order to preclude a Bivens claim In
CorrectionalServs. Corp. v. Malesko, 534 U.S. 61,69 (2001), the Supreme Court explained that
preclusion is appropriate "[s]o long as the plaintiff ha[s] an avenue for some redress ..."

(emphasis added). A statutory remedy does not need to provide "complete relief to replace a
Bivens action; it must only provide "meaningful safeguards or remedies for the rights of persons
situated" in the plaintiffs position. Schweiker v. Chilicky, 487 U.S. 412, 425 (1988); see also
Bush, 462 U.S. at 372,388-90 (holding that a statutory remedy precluded Bivens even though

2For that reason, this case is unlike Davis v. Passman, where the Supreme Court permitted a
Bivens action against a Congressman for violating an employee's Fifth Amendment Due Process
rights in a circumstance where the plaintiff had no alternative remedy. 442 U.S. 228,245-248
(1979); see also id. at 242 ("unless [constitutional] rights are to become merely precatory, the
class of those litigants who allege that their own constitutional rights have been violated, and
who at the same time have no effective means other than the judiciary to enforce these rights,
must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable
constitutional rights.").

Congress provided a less than complete remedy); Holly, 434 F.3d at 290 ("[N]either the absence
nor the incompleteness of [a statutory] scheme represents an invitation for a court to step in to
correct what it may perceive as an injustice toward an individual litigant.") In short, '"Bivens
actions are not allowed 'when the design of a Government program suggests that Congress has

provided what it considers adequate remedial mechanism for constitutional violations ....'"
Zimbleman v. Savage, 228 F.3d 367, 370 (4th Cir. 2000) (quoting Chilicky, 487 U.S. at 423); see
Bush, 462 U.S. at 378. Tragic as this case is, Richards's remedy under FECA meets this
standard; and the Court must conclude that a Bivens remedy in this case is not available, even in

light of the severity of Richards's injuries and the egregiousness of the alleged conduct.
Richards also argues that because of the Supremacy Clause of the U.S. Constitution,
FECA cannot preclude his constitutionally-based Bivens claim. (PL's Br. 3) ("It is well-settled
that FECA does not preempt Constitutional claims."). But this position cannot be squared with
the decisions in Bush or Chilicky. See Bush, 462 U.S. at 385; Chilicky, 487 U.S. at 424-25

(dismissing plaintiffs Fifth Amendment Due Process Bivens claim based on an unconstitutional
denial of Social Security benefits because the plaintiffs had adequate opportunities to appeal the

denial and protect their rights.) As the Court observed in Bush, "[w]hen Congress provides an
alternative remedy, it may, of course, indicate its intent, by statutory language, by clear

legislative history, or perhaps even by the statutory remedy itself, that the Court's power [to

permit a Bivens action] should not be exercised." Bush, 462 U.S at 378.3 Given these

3Also instructive is the Supreme Court's opinion in Chappell v. Wallace, 462 U.S. 296 (1983).
In that case, the Supreme Court unanimously refused to create a Bivens remedy for military
personnel who alleged that their superior officers had violated constitutional rights. Id. at 305.
The Court explained: "The special nature of military life, the need for unhesitating and decisive
action by military officers and equally disciplined responses by enlisted personnel, would be
undermined by a judicially created remedy exposing officers to personal liability at the hands of
those they are charged to command ..." Id. at 304. Richards is a civilian CIA employee and not

pronouncements, the Court cannot justify supplementing FECA's benefits scheme with a courtcreated damages remedy.
(2) The Privacy Act claim

The second issue is whether FECA also precludes Richards's Privacy Act claim.4 The
defendants argue that Richards must pursue his claim under FECA because the disclosure
allegedly caused work-place injuries and FECA is the exclusive remedy for such work-place

injuries. Assuming, without deciding, that Richards has stated a claim under the Privacy Act, the
resolution of the defendants' motion to dismiss depends again on the scope and applicability of
FECA's exclusivity clause.

A FECA claim is the appropriate remedy when a federal employee's "injuries are
sustained while in the performance of his duty as a federal employee." Wallace v. UnitedStates,
669 F.2d 947, 951-52 (4th Cir. 1982); see 5 U.S.C. § 8102(a). An injury is sustained in "in the

performance of duty" if the "injury arose out of and in the course of [] employment" and a
"causal relationship exists between the employment itself, or the conditions under which it is to
be performed, and the resultant injury." Id. at 954-55. Importantly, if an injury qualifies for
FECA benefits, then FECA "is exclusive and instead of all other liability of the United States." 5

a member of the military, but the nature of his work—conducting weapons training in the Middle
East—raises the same considerations that influenced the Court in Chappell.
4The Privacy Act provides that "[n]o agency shall disclose any record which is contained in a
system of records by any means of communication 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." 5 U.S.C. § 552a(b). To allege a successful Privacy Act disclosure claim, four
elements must be present: (1) the disclosed information is a "record" contained within a "system
of records"; (2) the agency disclosed the information; (3) the disclosure adversely affected the
plaintiff; and (4) the disclosure was willful or intentional. Quinn v. Stone, 978 F.2d 126,131 (3d.
Cir. 1992); Doe v. Herman, No. 297CV00043, 1999 WL 1000212, at *8 (W.D. Va October 29,
1999).

U.S.C. § 8116(c). In other words, a "[fjederal employees' injuries that are compensable under
FECA cannot be compensated under other federal remedial statutes ..." Wallace, 669 F.2d. at
951; see also Borneman v. United States, 213 F.3d 819, 829 n.3 (4th Cir. 2000).

Under FECA's remedial scheme, the Secretary of Labor has the exclusive authority to
administer the statute, including the authority to determine whether an individual's injuries are

eligible for FECA benefits in the first place. Wallace, 669 F.2d at951.5 Because ofthat exclusive
authority, the Secretary's determination has the effect of determining whether the plaintiff can
pursue remedies available under other statutes. If the Secretary decides that FECA is not

applicable to the injury alleged, then the statute's exclusivity provision is not triggered and the
plaintiff can pursue alternate remedies. Alternatively, if the Secretary decides that FECA is

applicable, then the plaintiff can only seek redress under FECA's benefits regime.
In this case, as often occurs, the Court does not have the benefit of a definitive

determination by the Secretary as to whether FECA applies to Richards's alleged Privacy Act
injuries. Nevertheless, in the absence of such a determination, a court will first determine
whether there is a "substantial question" that FECA applies; and if so, a court will not permit suit

' The statute reads in pertinent part:
The Secretary of Labor shall administer, and decide all questions arising under, this
subchapter.
5 U.S.C. § 8145 (emphasis added).

The action of the Secretary or his designee in allowing or denying a payment under this
subchapter is—

(1) final and conclusive for all purposes and with respect to all questions of law and fact; and
(2) not subject to review by another official of the United States or by a court by mandamus
or otherwise.

5 U.S.C. § 8128(b).

under any otherstatutory scheme, absent a determination by the Secretary that the plaintiffs
claim is not covered by FECA. See Wallace, 669 F.2d at 951 (citingSomma v. United States, 283
F.2d 149, 151 (3d. Cir. 1960); Daniels-Lumley v. United States, 306 F.2d 769, 771 (D.C. Cir.

1962)). Applying that approach here, if there is a "substantial question" that Richards's injuries
"were sustained while in the performance of his duty as a federal employee," then Richards
cannot pursue his Privacy Act claim. See Wallace, 669 F.2d at 951-52.
In this case, the Court concludes that there is a "substantial question" whether Richards's

injuries were "sustained while in performance of his duty as a federal employee." The
disclosures and the subsequent harm came exclusively in the context of his employment at the
CIA. The CIA possessed the wrongfully-disclosed information because Richards was a CIA
employee. The injuries he alleges, "mental distress, emotional trauma, embarrassment,
humiliation, a worsening of his depression, and lost o.r jeopardized present or future financial

opportunities," arise almost entirely out of the CIA's disclosure of information about conditions
he sustained as an employee to his co-workers, and not to the general public; and the discussion
of his confidential medical condition occurred at his place of work. In short, the injury has a

significant nexus with his status as a "federal employee" and there is a "causal relationship"
between his injuries and his employment. See Wallace, 669 F.2d at 954-55. For these reasons,
absent a determination by the Secretary of Labor that FECA does not cover Richards's Privacy

Act claim, this Court has no jurisdiction to entertain the Privacy Act claim. The Court will
therefore dismiss this claim without prejudice to allow Richards to pursue any administrative
remedy he may have under FECA based on the events that give rise to his Privacy Act claim or
to obtain a determination from the Secretary that such events do not give rise to a FECA claim.

CONCLUSION

For the above reasons, the Court concludes that the exclusivity provisions of the Federal

Employees Compensation Act preclude the Bivens claims, asserted in the First Cause of Action
and the Third Cause of Action, and also Richards's claim under the Privacy Act asserted in the

Second Cause of Action. The Court will therefore grant defendants" Motion to Dismiss.
The Court will enter an appropriate Order.

Anthony .1. Trenga
United States District Judge
Alexandria, Virginia
November 16. 2011

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