UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Robert J. Camm, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 85-3844
)
Ralph E. Kennickell, Jr., et al., )
)
Defendants. )
____________________________________)
OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
INTRODUCTION
Plaintiffs' complaint, filed pursuant to 28 U.S.C. �� 1331 and
1332, alleges that defendants have committed several common law
torts and tortuously violated plaintiffs' constitutional rights.
Specifically, plaintiffs allege that defendants have committed
common law libel, slander, defamation, and placed plaintiffs in a
false light. First Amended Complaint � 1.1 They also claim that
defendants have violated plaintiffs' first amendment rights of
privacy, fifth amendment interest in reputation, and fifth
amendment due process interests. These claims arise out of
defendants' suspension and debarment of plaintiff Camm and of a
contract between plaintiff Quadra Graphics, Inc., and the
Government Printing Office, of which defendants are officers or
employees.
In 1979, the Inspector General of the Government Printing Office
(hereafter GPO) began a five-year investigation of improprieties
in the award of contracts by the Philadelphia Regional Printing
Procurement Office (hereafter PRPPO), an arm of the GPO.
Plaintiffs were among the targets of that investigation.
At some point, plaintiffs' conduct became the concern of a grand
jury investigation. The parties before this Court do not state
when this occurred. In 1983, GPO investigators obtained
information that plaintiffs had given food, drink, money to
various PRPPO officials and employees. The parties dispute
whether this information was obtained in violation of grand jury
secrecy requirements or through an independent investigation.
Plaintiffs claim that, at some point prior to June 18, 1984, the
Department of Justice decided not to prosecute them and informed
the GPO of that decision. On June 18, 1984, plaintiff Camm was
suspended and disqualified from doing business with the GPO
because suspected of bribery. Plaintiffs also claim that
defendants subsequently informed a member of Congress, the Hon.
James J. Florio, that plaintiff Camm might be subject to
prosecution.
On October 9, 1984, plaintiff Camm was sent a "Notice of Proposed
Debarment." After a series of negotiations between plaintiff
Camm and defendants, plaintiff Camm was debarred from doing
business with GPO for one year. That debarment was announced,
along with the alleged reasons for it, in a press release to the
general public and various news organizations. Shortly
thereafter, plaintiffs filed this suit.
Before this Court are defendants' motion to dismiss this action,
pursuant to Fed. R. Civ. P. 12 (b) (1), (b) (2), (b) (4), (b)
(5), and (b) (6), or, in the alternative, for Summary Judgment.
Also before the Court are plaintiffs' opposition to these motions
and plaintiffs' motions for discovery pursuant to Fed. R. Civ. P.
56(f). This Court will grant defendants' motion to dismiss
plaintiff's common law claims and all but two of the
constitutional tort claims. The Court will deny plaintiffs'
motion for Rule 56(f) discovery. Finally, the Court will grant
defendants' motion for summary judgment as to one of the
remaining constitutional tort claims and will deny summary
judgment as to the other.
THIS COURT HAS SUBJECT MATTER JURISDICTION OVER THIS ACTION.
Defendant question this Court's subject matter jurisdiction over
this action and move to dismiss plaintiffs' complaint under Fed.
R. Civ. P. 12 (b) (1). The Court finds that it has subject
matter jurisdiction and will deny defendants' motion.
Defendants do not elaborate where plaintiffs' jurisdictional
allegations fail. Nor do they supply affidavits attacking the
Court's jurisdiction over this action. As such, this Court must
assume that defendant's motion is directed solely at the language
of the pleadings. 5 C.A. Wright and A. Miller, Federal Practice
and Procedure: Civil � 1350 (1969 and Supp. 1986).
Plaintiffs brought this action under 28 U.S.C. �� 1331 and 1332.
First Amended Complaint � 1. Plaintiffs allege that defendants,
all federal officials, deprived them of their constitutional
rights while action under color of their authority. Id. at �� 1,
48. Such a claim constitutes a federal question whose validity
this Court may decide. See, Bivens v. Six Unknown named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388, 395; Davis v.
Passman, 442 U.S. 228 (1980); Doe v. United States Department of
Justice, 753 F.2d 1902, 1104 (D.C. Cir. 1985).
Plaintiffs also claim diversity jurisdiction. They allege that
they are citizens of New Jersey and Pennsylvania, that all
defendants are citizens of other states, and that the amount in
controversy exceeds $10,000. First Amended Complaint �� 1, 2, 4.
Defendants have not controverted these claims, and, having no
reason to doubt them, the Court must accept these allegations as
true. As the jurisdictional allegations of the complaint are
complete, sufficient, and uncontradicted, the Court must deny
defendants' motion to dismiss for want of subject matter
jurisdiction. 5 Federal Practice and Procedure at � 1350.
THIS COURT HAS IN PERSONAM JURISDICTION OVER ALL DEFENDANTS.
Defendants have also moved to dismiss this action under Fed. R.
Civ. P. 12 (b) (2). They challenge this Court's in personam
jurisdiction over all defendants under the District of Columbia
long-arm statute. This Court rejects this argument and finds
that it has jurisdiction over all defendants.
The District of Columbia "long-arm" statute establishes the
conditions under which service of process may be made outside the
District of Columbia. That statute applies to actions filed in
this Court. Fed. R. Civ. P. 4(e); Akbar v. New York Magazine,
490 F. Supp. 60, 63 (D.D.C. 1980). It provides that, in
pertinent part, this court "may exercise personal jurisdiction
over a person, who acts directly or by an agent, as to a claim
for relief arising from the person's...causing tortious injury in
the District of Columbia by an act or omission in the District of
Columbia." D.C. Code Ann. � 13-423(a) (3) (1981).
Thus, to meet the statute, plaintiffs must allege an injury in
the District of Columbia that was caused by defendants' acts or
omissions in the District of Columbia. This injury, however,
need not have caused pecuniary damage here. Aiken v. Lustine
Chevrolet, Inc., 392 F. Supp. 883 (D.D.C. 1975). Most important
for this case, a tort committed in the District of Columbia that
affects a business interest or reputation in the District
constitutes an "injury in the District of Columbia" under the
terms of the long-arm statute. Akbar v. New York Magazine, 490
F. Supp. at 64.
Defendants admit that the allegedly defamatory press release was
issued in the District of Columbia. Defendants' Memorandum of
Law in Support of Their Motion to Dismiss or for Summary Judgment
7 n. 3. Plaintiffs allege, and defendants do not dispute, that
they solicit printing contracts from "various executive
agencies," among them the Government Printing Office. First
Amended Complaint � 2. The contract suspension and the allegedly
defamatory press release could credibly, as plaintiffs assert,
have injured their trade or business. Moreover, plaintiff's
government contracts are approved or executed at least in part in
the District of Columbia, see First Amended Complaint � 43.
Taken together, these facts and allegations show that the alleged
torts affected plaintiffs' business interests in, among other
places, the District of Columbia and therefore injured plaintiffs
in the District of Columbia. Thus, plaintiffs have met the
requirements of D.C. Code Ann. � 13-423(a). Akbar v. New York
Magazine, 490 F. Supp. at 64.
SERVICE OF PROCESS WAS PROPERLY EFFECTED.
Defendants also ask to dismiss three defendants for insufficiency
of process and service of process, pursuant to Fed. R. Civ. P. 12
(b) (4) and (b) (5). The Court must reject these motions.
Fed. R. Civ. P. 12 (b) (4) contemplates a challenge to the
content or form of a summons. 5 Federal Practice and Procedure
at � 1353. Defendants do not specify where defects in the
content or form of the summons allegedly lie. Without such
allegations, the Court may not grant a 12 (b) (4) motion. Id.
The 12 (b) (5) motion is properly stated. Defendants claim that
an unauthorized agent accepted service by certified mail on
defendants Kennickell, McMahon, and Peel. Were this the only
service effectuated, these defendants would have to be dismissed
from this action. Under Fed. R. Civ. P. 4(d), service accepted
by an unauthorized agent is ineffective. 4 Federal Practice and
Procedure: Civil � 1097 (1969 and Supp. 1985).
The Court's records show that plaintiffs personally re-served
defendant McMahon on May 7, 1986, and defendants Kennickell and
Peel on May 8, 1986. This cures any defect in the earlier-
attempted service. Maggette v. Dalsheim, 709 F.2d 800, 803 (2d
Cir. 1983); Myers v. John Deere Ltd., 683 F.2d 270 (7th Cir.
1982); Cahill v. St. Mary's Hospital of Brooklyn, 20 F.R.D. 103,
103 (E.D.N.Y. 1956). Consequently, the Court finds that service
of process has been properly effected denies the 12 (b) (4) and
(b) (5) motions.
THIS COURT MUST DISMISS ALL BUT TWO COUNTS OF PLAINTIFFS'
COMPLAINT
Defendants have moved, under Fed. R. Civ. P. 12 (b) (6), to
dismiss plaintiffs' complaint for failure to state a claim. The
only issue in such motions is whether the complaint, which must
be construed most favorably towards the plaintiff and whose
allegations must be regarded as true, states a claim for which
this Court may grant relief. 5 Federal Practice and Procedure at
� 1357. The court is obliged to determine only if the
allegations provide for relief under any possible legal theory.
Adams v. Bell, 711 F.2d 161, 187 n. 89 (D.C. Cir. 1983), cert.
denied, 465 U.S. 1021 (1984).
Given this liberal standard, the Court cannot say that all of
plaintiffs' claims must be dismissed. The Court will, however,
grant defendants' motions with respect to the common law claims
and to the constitutional tort purported to arise out of alleged
violations of grand jury secrecy requirements. The court will
deny the motion with respect to plaintiffs' claims that their
fifth amendment interests in due process and reputation were
violated.
1. The common law claims.
Plaintiffs have alleged common law libel, slander, defamation and
false light as a result of the press release issued by
defendants. First Amended Complaint � 1. Intentional and
malicious injury to business reputation is hornbook defamation.
See, 2 F.V. Harper, F. James, Jr. & O.S. Gray, The Law of Torts
� 5.12 (2d ed. 1986); Restatement (Second) of Torts � 573, 192-95
(1977); see also, Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., U.S. , 105 S. Ct. 2939 (1985). Defendants do not deny that
plaintiffs' business reputation may have been harmed by their
actions. Nor do they address whether their acts placed
plaintiffs in a false light. Instead, defendants assert that
absolute or good faith immunity insulates them from liability for
any common law torts that may have occurred.
Federal officials are absolutely immune for common law torts
arising from allegedly libelous and malicious statements made
within the "outer perimeter" of their duties. Barr v. Mateo, 360
U.S. 564, 575 (1959); Semi v. United States, 617 F.2d 755, 770
(D.C. Cir. 1979). Barr, like the instant case, involved an
allegedly defamatory press release. There, the Supreme Court
found that, despite allegations of malice, issuance of the press
release was within the "outer perimeter" of an official's duties
and therefore within the ambit of absolute immunity. 360 U.S. at
575. That rule equally applies here to deny plaintiffs recovery
on the common law claims, and, as a result, defendants' motion to
dismiss those claims must be granted.
2. The constitutional tort claims.
Remaining for the Court to consider are plaintiffs'
constitutional tort claims. Plaintiffs allege that defendants
committed three violations of plaintiffs' constitutional rights:
violation of their first amendment rights by misuse of secret
grand jury information; violation of their fifth amendment
interests in reputation; and violation of their fifth amendment
interests in proper procedure before the suspension of their
government contract.
The threshold requirements of a constitutional tort claim are
clear. Under the doctrine enunciated in Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics and refined by its
progeny, a plaintiff must allege deprivation of a constitutional
right as a result of unconstitutional conduct by a federal
official acting under color of his authority. See Bivens, 403
U.S. 388 (1971); see also, e.g., Davis v. Passman, 442 U.S. 228
(1979); Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), cert.
denied 438 U.S. 916 (1978). To meet this standard, plaintiff
must isolate the precise constitutional violation with which each
defendant is charged and must allege facts that constitute that
specific deprivation. Baker v. McCollum, 443 U.S. 137, 140
(1979); Paul v. Davis, 424 U.S. 693, 697 (1976);2 Doe v. District
of Columbia, 697 F.2d 1115, 1123 (D.C. Cir. 1983).
Defendants first argue that plaintiffs' claims are insufficiently
specific to sound in constitutional tort. The Court disagrees.
The complaint specifies that '"each and every defendant." First
Amended Complaint � 20. Thus, contrary to defendants'
assertions, the complaint does not make "generalized assertions"
but avers that all defendants participated in the alleged acts,
which themselves are as detailed as the rules of pleading
require. See, e.g., Conley v. Gibsom, 355 U.S. 41, 45-46 (1957);
Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983).
Plaintiffs may face grave difficulties proving that all
defendants were so involved, but that does not render their
complaint deficient.
Defendants also maintain that, even if the complaint is
sufficiently specific, the Court may not grant relief because
plaintiffs' allegations fail to articulate a claim for a
constitutional tort. The court agrees that it must dismiss
plaintiff's attempt to base a Bivens action on alleged misuse of
grand jury information. The Court will not, however, grant
defendants' motion with respect to the fifth amendment claims.
Plaintiffs argue that defendants' alleged misuse of grand jury
information violates plaintiffs' first amendment interests in
privacy. The Supreme Court has recently implied that
constitutional tort actions may be grounded on first amendment
violations for which the injured party would be entitled to
compensatory damages. Memphis Community School District v.
Stachura, U.S. , 106 S. Ct. 2537 (1986). This circuit has
long recognized that the principles set forth in Bivens
extended to violations of a person's First Amendment rights.
Dellums v. Powell, 566 F.2d 167, 194-96 (D.C. Cir. 1977),
cert. denied, 438 U.S. 916 (1978). But no cognizable claim
undergirds plaintiffs' efforts to predicate a Bivens action
on alleged misuse of grand jury information.
The secrecy with which Fed. R. Crim. P. 6(e) argues grand jury
proceedings is integral to our criminal justice system. It helps
ensure that only those against whom there is substantial,
trustworthy, and untainted evidence will be indicted. United
States v. Sells Engineering, 463 U.S. at 424; Douglas Oil Co. of
California v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979).
That secrecy, however, is not a constitutional demand but a
creature of the Federal Rules of Criminal Procedure. See, e.g.
United States v. Sells Engineering U.S. at 425; Murphy Federal
Bureau of Investigation, 490 F. Supp. 1138, 1140 (D.D.C. 1980);
Pakistan International Airlines Corp. v. McDonnell Douglas Corp.,
94 F.R.D. 566, 567 (D.D.C. 1982). As such, its breach is not a
constitutional violation, and it therefore is not a proper
predicate for a constitutional tort claim.
This Court is not untroubled by the possibility that a misguided
government official could escape penalty for intentional
malicious breach of the secrecy requirement. While such breaches
are, in the experience of this and apparently other Courts,
exceptionally rare, they ought not to go unpunished.3 But a
constitutional tort action is not the proper (or even
permissible) form of redress. This Court must grant defendants'
motion to dismiss plaintiffs' claim that a constitutional tort
arose from defendants' alleged misuse of grand jury information.
Plaintiffs are more successful with respect to their claims for
tortious violation of their fifth amendment interests.
Plaintiffs allege that the contract suspension process deprived
them of their constitutional liberty interests. They also allege
that defendants infringed their liberty interest by stigmatizing
plaintiffs in a manner that affects their profession. First
Amended Complaint at � 49(h).
Violation of due process rights can give rise to a constitutional
tort. Davis v. Passman, 442 U.S. 228 (1970); Doe v. Department
of Justice, 753 F.2d at 1104. The due process guarantees
required in suspension proceedings against government contractors
are clear. Due process demands that a party to a suspension
proceeding receive prior notice detailing the charges against him
and be provided an opportunity to respond. Old Dominion Dairy v.
Secretary of Defense, 631 F.2d 953 (D.C. Cir. 1980). Plaintiffs
contend that defendants did not afford them adequate notice prior
to suspension of their contract. First Amended Complaint �� 39,
40. As such, the Court may grant relief on this claim and may
not dismiss it.
Plaintiffs' claim of stigmatization could also support a
constitutional tort action. Injury to reputation, when coupled
with some tangible change in status, can trigger a liberty
interest that requires provision of due process. Paul v. Davis,
424 U.S. at 694; Doe v. Department of Justice, 753 F.2d at 1105.
Suspension of plaintiffs' government contract, together with the
alleged foreclosure of other business opportunities, Complaint at
� 43, constitutes a change in status sufficient to give rise to
the liberty interest. Id.
Plaintiffs' assertion that defendants unjustly stigmatized
plaintiff Camm could therefore be read to articulate a claim for
which this Court could grant relief. In consequence, the Court
must deny defendants' motion to dismiss this claim as well.
PLAINTIFFS HAVE NOT SHOWN A NEED FOR DISCOVERY TO OPPOSE
DEFENDANT'S SUMMARY JUDGMENT MOTION.
Defendants filed their Motion to Dismiss or for Summary Judgment
on March 5, 1986. On April 25, 1986, plaintiffs submitted their
"Answer to Defendants (sic) Motion for Summary Judgment or to
Dismiss," along with a lengthy Statement of Material Facts in
Dispute, nineteen evidentiary exhibits, and one affidavit.
Despite this extensive proffer of evidence that plaintiffs
believe demonstrates disputes over material facts, on July 23,
1986, plaintiff moved for discovery pursuant to Fed. R. Civ. P.
56(f).
Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the
motion [for summary judgment] that he cannot for reasons stated
present by affidavit facts essential to justify his opposition,
the court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such other order as
is just.
Rule 56(f) is infused with a spirit of liberality. Wallace v.
Brownell Pontiac-GMC Company, Inc., 703 F.2d 525, 527 (11th Cir.
1983). Consequently, plaintiffs' failure to provide affidavits
detailing the need for and nature of the proposed discovery would
not necessarily bar a 56(f) motion that otherwise seemed
justified. See, e.g., Littlejohn v. Shell Oil Co., 483 F.2d
1140, 1106 (5th Cir.), cert. denied, 414 U.S. 1116 (1973).
Unfortunately for plaintiffs, they have hardly shown a need for
gathering additional information.
Plaintiffs state that "their answer to Defendant (sic) motion for
summary judgment is sufficient......" Plaintiffs' Memorandum of
Law in Support of Plaintiff's (sic) Motion for Discovery Pursuant
(sic) to Rule #56 (f) 1; see also, Plaintiffs' Reply to
Defendants' Opposition to Plaintiffs' Motion for Discovery
Pursuant (sic) to Rule #56 (f) 1. Thus, plaintiffs' belief that
they have documented "facts essential to justify [their]
opposition" is obvious. Nonetheless, they ask for apparently
unlimited discovery to supplement their answer in case this Court
is not convinced that their opposition is justified. Plaintiffs'
Memorandum of Law at 1; Plaintiffs' Reply at 1.
To grant plaintiffs' motion would be to the purpose of Rule
56(f). Under the Federal Rules, a party who has had a reasonable
opportunity to prepare his case may not plead ignorance of the
facts that would support his Opposition. See, 10A Federal
Practice and Procedure at � 2741 (1983). Instead, a respondent
to a summary judgment motion must either present affidavits
opposing a summary judgment motion or explain his inability to do
so. United States v. General Motors Corp. 518 F.2d 420, 442
(D.C. Cir. 1975). He may not submit a bevy of exhibits, bill
them a sufficient answer to a summary judgment motion, and three
months later petition for additional discovery to stave off a
potentially adverse ruling.
There is a second ground for denying plaintiffs' motion. In a
recent case, the Court of Appeals for this Circuit summarized the
burden that a Rule 56(f) movant bears. He must "show...the trial
court what facts he hopes to discover and what reason justifies
his inability to produce them on the motion." Hotel & Restaurant
Employees Union, Local 25, et. al., v. Attorney General of the
United States, No. 84-5859, slip op. at 22-23 (Oct. 31, 1986)
(citing Exxon Corp. v. FTC, 633 F.2d 120, 126-27). Plaintiffs'
motion does not even attempt to meet this burden. As such, the
Court must deny their motion for additional discovery.
DEFENDANTS' SUMMARY JUDGMENT MOTION MUST BE GRANTED IN PART AND
DENIED IN PART.
The Court has dismissed all of plaintiffs' claims save for the
constitutional torts allegedly arising out of defendants'
stigmatization of plaintiffs and out of the suspension process.
Defendants have moved for summary judgment on these claims and
advance two arguments to support that motion. First, they submit
that the material facts in this case are undisputed and the law
commands judgment in defendants' favor on those facts. They also
argue that, even if this Court finds a factual dispute,
defendants' absolute or qualified immunity compels a finding that
defendants are not liable. The Court will grant the motion as to
the stigmatization claim and deny it as to me claim arising out
of the suspension process.
Only if no material facts are disputed is summary judgment
appropriate. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, Inc., et al., v.
National Right to Work Legal Defense and Education Foundation, et
al., 781 F.2d 928, 932 (D.C. Cir. 1986). Regardless of any
factual dispute, immunity may appropriately be determined on
summary judgment. Harlow v. Fitzgerald, 457 U.S. 800, 816
(1982); Gray v. Bell, 712 F.2d 490, 496 (D.C. Cir. 1983), cert.
denied, 465 U.S. 1100 (1984).
The parties agree on the material facts with respect to
plaintiffs' stigmatization claim. Specifically, defendants'
questioning of plaintiffs' business integrity, and the alleged
stigma that resulted from defendants' statements, hampered
plaintiffs' opportunity to compete for and obtain government
contracts.
The Court need not consider whether this stigma was sufficient to
invoke due process guarantees. Even if it were, plaintiffs would
be entitled only to a meaningful opportunity to clear their
names. Id. at 1111-12; Old Dominion Dairy Products, Inc. v.
Secretary of Defense, 631 F.2d at 963-65. Plaintiffs have
already participated in hearings and conferences at which they
presented evidence intended to convince defendants of plaintiffs'
untainted business record. E.g., Plaintiffs' Exhibit 17,
Defendants' Exhibits 4, 9. Due process requires no more. Codd
v. Vegler, 429 U.S. 624, 627 (1977); Doe v. Department of
Justice, 753 F.2d at 1112-14. In consequence, the stigmatization
claim does not amount to a constitutional tort, and defendants
are entitled to summary judgment with respect to that claim.
Defendants' argument fares worse with respect to the suspension
hearing. Due process demands that a party to a suspension
proceeding receive notice detailing the charges against him and
be provided an opportunity to respond. Old Dominion Dairy v.
Secretary of Defense, 631 F.2d 953. Unless the government can
show why it was impossible to do so, that notice must be provided
to a government contractor before a suspension of longer than one
month occurs. Id. at 966-67. If notice is not so provided, the
contractor's fifth amendment interest are violated and, under the
doctrine established by Bivens and Davis v. Passman, a
constitutional tort may have occurred.
Plaintiffs maintain that their contract with the Government
Printing Office was suspended for more than one month without
prior notice. Notice of Suspension, Plaintiffs' Exhibit 3; Camm
Affidavit, Plaintiffs' Exhibit 13, at 6. Defendants do not
controvert this claim. See, Defendants Exhibit 7. Nor do they
aver that it would have been impossible to provide plaintiffs
prior notice or detailed notice and a hearing when it was clear
that the suspension would exceed one month. As such, the
material facts surrounding plaintiffs' suspension hearing are not
undisputed.
Ordinarily, existence of such a factual dispute would by itself
defeat a summary judgment motion. John Curry Skating Co. v. John
Curry Skating Co., 626 F. Supp. 611, 616 (D.D.C. 1985). Here,
however, defendants also argue that summary judgment is
appropriate regardless of any factual controversy because their
acts are entitled to absolute or qualified immunity.
As this Court has made clear, plaintiffs have successfully
asserted one claim that sounds in constitutional tort.
Defendants, who do not serve the government in the high-ranking
and narrowly defined positions to which absolute immunity may be
accorded, may claim only qualified immunity for any tort that may
have occurred. Butz v. Economou, 478 U.S. 478 (1978); Gray v.
Bell, 712 F.2d at 497; Sami v. United States, 617 F.2d 755, 768
(D.C. Cir. 1979).
The Supreme Court has recently clarified the standard governing
qualified, or "good faith," immunity. Under Harlow v.
Fitzgerald, 457 U.S. 800, mere allegations of malice cannot
defeat an immunity claim. Id. at 817-18. Instead, "government
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which are reasonable person would have
known." Id. at 818 (emphasis added).
Horlow's objective test allows this Court to examine only whether
defendants' alleged conduct violated clearly established law of
which a reasonable person would be aware. See also, Mitchell v.
Forsyth, U.S., 105 S. Ct. 2806, 2816 (1985). A government
contracting agent is expected to be aware of the clear
constitutional standards surrounding the suspension process.
Old Dominion Dairy v. Secretary of Defense, 631 F.2d at
968-69. If defendants suspended plaintiffs' contract without
prior notice, could have provided the required notice, and the
suspension lasted longer than one month, their conduct would
indeed have violated "clearly established law" and thereby lost
its ordinary shield.
Consequently, this Court finds that there is an issue of fact as
to the due process protections surrounding plaintiffs'
suspension. It further finds that, should these facts support
relief for plaintiff, the Court could not accord defendants'
action immunity. As such, the court must deny summary judgment
as to this element of plaintiffs' complaint.
CONCLUSION
The court will deny defendants' motion to dismiss plaintiffs'
complaint under Fed. R. Civ. P. 12 (b) (1), (2), (4), and (50).
It will grant defendants' 12 (b) (6) motion to dismiss
plaintiffs' claim of common law torts and tortious violation of
plaintiffs' purported constitutional rights in grand jury
secrecy. The Court will deny plaintiffs' motion for discovery
under Fed. R. Civ. P. 569(f). The Court will grant defendants'
motion for summary judgment as to plaintiffs' stigmatization
claim but will deny the motion as to plaintiffs' constitutional
tort claim of injury from alleged improprieties surrounding
suspension of plaintiff's contract. That is the only claim
remaining in this case.
November 3, 1986
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
_______________
1 Plaintiffs' complaint also states that it is "brought on the
basis" of conspiracy and a "privacy right" tort. First Amended
Complaint � 1. The Court cannot discern any conspiracy count or
allegations amounting to a conspiracy count in plaintiffs'
complaint. Nor can the Court divine any allegations of common
law tort resulting from alleged intrusions into plaintiffs'
privacy.
2 Baker v. McCollum and Paul v. Davis are not Bivens actions
but arise under � 1983. Their doctrine is nonetheless applicable
to Bivens claims, as the Supreme Court has made clear that Bivens
actions are in most respects identical to � 1983 claims. Carlson
v. Green, 446 U.S. 14, 18-25 (1980). Differences between the two
are not relevant to this action. E.g., Monell v. Department of
Social Services, 436 U.S. 658 (1978) (respondeat superior applies
in � 1983 suits but not in Bivens claims); Robertson v. Wegman,
436 U.S. 584 (1978) (survivorship problems different).
3 There are, of course, sanctions designed to protect against
breaches of grand jury secrecy. For instances, a court may
enjoin unauthorized use of disclosure of grand jury information.
United States v. Sell Engineering, 463 U.S. 418 (1983); Fleet
National Bank v. Export-Import Bank of the United States, 612 F.
Supp. 859, 867-68 (D.D.C. 1985). Moreover, Rule 6 (e) (2) itself
provides that knowing unauthorized disclosure of information
before the grand jury in punishable as contempt of court.