                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA

SCOTT HENSLEY,                                  )
                                                )
                    Plaintiff,                  )
                                                )
             v.                                 )   Civil Case No. 10-636 (RJL)
                                                )
OFFICE OF THE ARCHITECT OF                      )
THE CAPITOL,                                    )
                                                )
STEPHEN AYERS, the Architect of the             )
Capitol, in his personal capacity,              )
                                                )
REBECCA TISCIONE, a retired                     )
employee of the Architect of the                )
Capitol, in her personal capacity,              )
                                                )
EVELYN GOODWIN, an employee of                  )
the Architect of the Capitol, in her            )
personal capacity,                              )
                                                )
TONDA CAVE, an employee of the                  )
Architect of the Capitol, in her personal       )
capacity,                                       )
                                                )
EDGARD MARTINEZ, an employee of )
the Architect of the Capitol, in his )
personal capacity,                   )
                                                )
WILLIAM WElD MEYER, an                          )
employee of the Architect of the                )
Capitol, in his personal capacity,              )
                                                )
and                                             )
                                                )
WILLIAM MILLER, an employee of                  )
the Architect of the Capitol, in his            )
personal capacity,                              )
                                                )
                    Defundant~                  )


                                            1
                                                    Vef
                              MEMORANDUM OPINION
                               (August 'Z.~, 2011) [#9]

       Plaintiff Scott Hensley ("plaintiff') brought an action against defendant Office of

the Architect of the Capitol ("AOC") alleging the following violations of the

Congressional Accountability Act ("CAA"): (1) the AOC subjected plaintiff to unlawful

retaliation when it refused to interview or promote plaintiff to an assistant supervisor

position, in violation of the CAA; and (2) the AOC subjected plaintiff to a hostile work

environment, in violation of the CAA. Additionally, plaintiff alleges that Stephen Ayers,

Rebecca Tiscione, Evelyn Goodwin, Tonda Cave, Edgard Martinez, William Weidmeyer,

and William Miller ("the defendants"), sued in their personal capacities, violated

plaintiffs substantive and procedural rights under the Fifth Amendment. The defendants

have moved to dismiss those defendants being sued in their personal capacities. After

careful consideration of the law and pleadings, defendants' Motion to Dismiss each

individual defendant is GRANTED.

                                      BACKGROUND

       Plaintiff was an employee of the High Voltage Division of the AOC at the time the

events giving rise to the instant action occurred. CompI.    ~~   4, 8-10. Corey Howell,

another employee of the High Voltage Division, filed an administrative complaint under

the CAA with the AOC. Id.    ~~   21-22. Mr. Howell deposed plaintiff during the course of

Mr. Howell's administrative case. Id.   ~   25. Plaintiffs deposition was a protected activity

under the CAA and thus subject to the confidentiality guarantee of the CAA and certain

Procedural Rules of the AOC's Office of Compliance. Id.       ~~   25-26.


                                                2
       Subsequent to plaintiffs deposition in the Howell matter, he learned that

defendant AOC had brought disciplinary charges against his second-level supervisor,

Rick Crupi ("Supervisor Crupi" or "Crupi"). Id.                    ~~   27-29. The charges against

Supervisor Crupi were based in part on plaintiffs confidential and sworn testimony in the

Howell matter. Id.          ~   27. Plaintiff was advised that he was to testify at the disciplinary

hearing. Id.      ~   31.

       In preparation for his disciplinary hearing, Supervisor Crupi met with plaintiff and

questioned him about the damaging testimony that he expected the plaintiff to provide at

the disciplinary hearing. Id.           ~   33. Plaintiff alleges that Supervisor Crupi attempted to get

him to testify that he had never heard Supervisor Crupi use discriminatory language

based on race in the workplace-a statement that would have been contrary to plaintiff s

testimony in the Howell matter. Id.              ~   34. Unbeknownst to plaintiff, Supervisor Crupi

had already been provided the confidential testimony given by plaintiff in the Howell

matter. Id.   ~   36. Subsequent to his meeting with Supervisor Crupi, plaintiff learned that

Edgard Martinez, Assistant General Counsel of the AOC, had provided Crupi access to

plaintiffs confidential testimony. Id.               ~   37.

       Subsequent to plaintiffs meeting with Supervisor Crupi, AOC issued a vacancy

announcement for the position of Assistant Supervisor of the High Voltage Division, to

which plaintiff applied. Id.           ~~   38-39. Supervisor Crupi was in charge of hiring for the

open position. Id.          ~   40. Although plaintiff was rated as "highly qualified" for the

position, he was denied an interview. Id. ~~ 41,42. Later, AOC withdrew the vacancy

announcement. Id.           ~    43.

                                                               3
       On or about August 5, 2009, the AOC re-posted the Assistant Supervisor position

vacancy announcement, to which plaintiff applied and was provided an interview. rd.         ~~


45-48. Supervisor Crupi was no longer in charge of hiring for the open position. Id.    ~


49. Plaintiff, nonetheless, was not selected for the position. Id.   ~   53.

       As a result, plaintiff filed this lawsuit on April 23, 2010, seeking damages against

his employer, AOC, for retaliatory employment practices and actions in violation of the

CAA, and against certain defendants, in their personal capacities, for violating his rights

under the Fifth Amendment of the Constitution. See Docket Entry 1; Compi. ~~ 57, 62,

68. On September 29,2010, defendants filed a Motion to Dismiss those defendants being

sued in their personal capacities. See Docket Entry 9.

                               STANDARD OF REVIEW

       A court may dismiss a complaint, or any portion of it, for failure to state a claim

upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A court considering a

motion to dismiss, however, may only consider "the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint and matters of which [the

court] may take judicial notice."   E.E.o.c. v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997). To survive a motion to dismiss, a complaint must "plead [ ]

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949

(2009). In evaluating a Rule 12(b)(6) motion, the court construes the complaint "in favor

of the plaintiff, who must be granted the benefit of all inferences that can be derived from

the facts alleged." Schuler v. United States, 617 F.2d 605,608 (D.C. Cir. 1979) (internal

                                              4
quotation marks omitted). However, factual allegations, even though assumed to be true,

must still "be enough to raise a right to relief above the speculative level." Bell At!. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the court "need not accept inferences

drawn by plaintifflJ if such inferences are unsupported by the facts set out in the

complaint. Nor must the court accept legal conclusions cast in the form of factual

allegations." Kowalv. MCICommc'nsCorp., 16F.3d 1271, 1276(D.C.Cir.1994).

                                     LEGAL ANALYSIS

   1.      Failure to SatisfY Federal Rule o/Civil Procedure 8

        Plaintiff has failed to plead enough facts to state a facially plausible claim against

defendants-with the exception of Assistant General Counsel Martinez. To sufficiently

state a claim upon which relief can be granted, a "complaint must contain sufficient

factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"

Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 127 S. Ct. at 1974). A complaint is plausible

on its face "when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129

S. Ct. at 1949. Rule 8 of the Federal Rules of Civil Procedure "demands more than an

unadorned, the defendant-unlawfully-harmed me accusation. A pleading that offers

'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action

will not do.' Nor does a complaint suffice ifit tenders 'naked assertion[s]' devoid of

'further factual enhancement. '" Id. (internal citations omitted).

        Here, plaintiff sufficiently alleges that Assistant General Counsel Martinez

released his deposition testimony to Supervisor Crupi's attorney in violation of the

                                                5
confidentiality provision of the CAA, J which in tum, violated plaintiffs Fifth

Amendment right. However, with respect to the other defendants sued in their personal

capacities, plaintiff merely alleges in a conclusory manner that they violated his

constitutional rights. Compl.   ~~   68-70. Indeed, plaintiff fails to allege any improper

action on their parts or, for that matter, any knowledge of Assistant General Counsel

Martinez's alleged improper actions. He simply alleges that the other defendants were

part of the process that led to Supervisor Crupi's suspension, without claiming that any of

their actions specifically were improper. 2 Thus, the allegations against Assistant General

Counsel Martinez are the only allegations from which the Court may draw a reasonable

inference that defendant is liable for the alleged violation of plaintiff s Fifth Amendment


J The confidentiality provision of the CAA states that, absent certain exceptions that do
not apply in this case, all proceedings and deliberations of hearing officers and the Board,
including any related records, shall be confidential. See 2 U.S.C. § 1416(c).
2 Specifically, as to Stephen Ayers (Acting Architect of the AOC), Rebecca Tiscione
(former Director of the former Human Resources Management Division of the AOC),
and Evelyn Goodwin (Chief of the Employee Relations Branch of the former Human
Resources Management Division of the AOC), the complaint alleges that they "engaged
in, reviewed, and approved" Supervisor Crupi's suspension proposal and the suspension
that were part of an internal disciplinary process "based in whole or in part on the
unconstitutional and unlawful use" of Plaintiffs confidential deposition testimony.
Compl. ~~ 11, 13, 14. As to Tonda Cave (a Human Resources Specialist), the complaint
alleges she "prepared, was engaged in, reviewed, and approved" the suspension proposal
that was part of an internal disciplinary process "based in whole or in part on the
unconstitutional and unlawful use" of Plaintiffs confidential deposition testimony. Id. ~
15. As to William Weidmeyer, the complaint alleges he "engaged in, reviewed,
approved, and concurred in Supervisor Crupi's suspension proposal that was part of an
internal disciplinary process "based in whole or in part on the unconstitutional and
unlawful use" of Plaintiffs confidential deposition testimony. Id. ~ 17. Finally, as to
William Miller (a Supervisory Electrical Engineer), the complaint alleges he was
"engaged in, reviewed, approved and proposed the suspension" that was part of an
internal disciplinary process "based in whole or in part on the unconstitutional and
unlawful use" of Plaintiffs confidential deposition testimony. Id. ~ 19.
                                                6
right. Therefore, the Motion to Dismiss Stephen Ayers, Rebecca Tiscione, Evelyn

Goodwin, Tonda Cave, William Weidmeyer, and William Miller as to Count III must be

GRANTED.

    II      Violation   0/Plaintiff's Fifth Amendment Right
         In his complaint, plaintiff alleges that defendants violated his Fifth Amendment

right to property by "unconstitutionally depriv[ing] plaintiff of his unambiguous

entitlement to confidentiality under the Congressional Accountability Act." Compi.     ~   70.

This contention, unfortunately, is a red herring. To date, the only property rights that

have been judicially recognized as protected by the Constitution are welfare benefits and

employment, for example, for tenured professors. See Goldberg v. Kelly, 397 U.S. 254

(1970); Perry v. Sindermann, 408 U.S. 593 (1972); Bd. o/Regents o/State Colis. v. Roth,

408 U.S. 564 (1972). Indeed, plaintiff has failed to cite any binding authority

recognizing "confidentiality" as a property right. 3 Moreover, the Supreme Court has


3
       Plaintiff analogizes his claim to an alleged property interest in employment
addressed by the D.C. District Court in Vanouver v. Hantman, 775 F. Supp. 2d 91
(D.D.C. 1999), which found in dicta that a former AOC employee had a constitutionality
protected property right in his continued employment. The employment interest in
Vanouver is unrelated to the confidentiality interest in the instant action. Plaintiff
provides no caselaw supporting his allegation that the confidentiality guaranteed by the
CAA is a constitutionally protected right.
       Citing to Vanouver, plaintiff contends in his response brief that Defendants
violated his due process interest in employment. See PI. 's Opp'n to Def. 's Mot. to
Dismiss ("PI.'s Opp'n"), p. 2l. However, as to all of the personally-sued defendants,
plaintiff s complaint fails to allege facts that, if true, state a plausible claim that
Defendants violated any property interest in employment. See Iqbal, 129 S. Ct. at 1940-
41. Plaintiff s allegations strictly relate to the breach of confidentiality caused by the
release of his deposition testimony, not to the loss of any employment interest. CompI. ~
70 ("[Defendants] unconstitutionally deprive [d] Plaintiff of his unambiguous entitlement
to confidentiality under the [CAA].")
                                              7
been reluctant to recognize new property interests, particularly when the interest does not

have "some ascertainable monetary value" under the entitlement, such as financial

payments under Medicaid. Town a/Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 766-

67 (2005) (holding that an individual entitlement to enforcement of a restraining order

"does not have some ascertainable monetary value, as even our Roth-type property-as-

entitlement cases have implicitly required" (internal quotation marks and citation

omitted)). Thus, there is no legally viable argument here that plaintiffs statutory right to

confidentiality was protected by the Fifth Amendment as a property interest. However,

construing plaintiffs complaint in the light most favorable to the plaintiff, the Court finds

plaintiff s allegation would more appropriately be styled as an argument that defendants

violated his constitutional right to privacy.4

       Unfortunately for the plaintiff, however, our Circuit Court has not recognized a

general right to privacy. At most, the Circuit Court has addressed the right to privacy in

the context of the disclosure of personal information. But even in that context, our

Circuit Court has expressed "grave doubts as to the existence of a constitutional right of

privacy in the nondisclosure of personal information." Am. Fed'n o/Gov't Emps. v.

Dep 't 0/ Hous. & Urban Dev., 118 F.3d 768, 791 (D.C. Cir. 1997). That skepticism

stems not only from the "apparent hesitance" of the Supreme Court to recognize

explicitly such a right, but also from the fact that those circuits that have recognized this

right did so based in reliance on Supreme Court dicta. Id. at 791-93.

4 Defendants also have construed plaintiffs argument as one contending that Defendants
violated plaintiffs substantive due process rights, specifically, his right to privacy. See
Defendant's Mot. to Dismiss, p. 10-11.
                                                 8
           As such, it is highly unlikely that such a right to privacy would be recognized by

our Circuit Court in this case. Indeed, in American Federation o/Government

Employees, the private infonnation at issue related to the employee's finances, drug use,

mental health, and expunged criminal history-matters quite personal to the employees.

Id. at 788. Here, the confidential testimony that was released was not infonnation

personal to the plaintiff but testimony he gave characterizing his supervisor's conduct.

As such, this Court sees no likelihood whatsoever that our Circuit Court would conclude

that a plaintiff has a constitutional privacy interest in such information. Therefore,

Defendants' Motion to Dismiss Count III is GRANTED as to each individual defendant. 5

    111.      Bivens Claim

           Finally, even if there was a right to privacy for such confidential infonnation-

which this Court finds there is not-plaintiffs complaint as to the defendants named in

their personal capacity should be dismissed. An action for damages brought against

federal officials in their individual capacity pursuant to the U.S. Constitution is

commonly referred to as a Bivens claim. See Bivens v. Six Unknown Named Agents 0/

Fed. Bureau o/Narcotics, 403 U.S. 388, 397 (1971) (holding plaintiff may sue federal

agents for money damages for violation of his constitutional rights). However, the

Supreme Court "in most instances" has found the Bivens remedy to be "unjustified."

5 Plaintiff contends for the first time in his response brief in a conclusory fashion that
"Defendants sued in their personal capacities denied plaintiff procedural due process,
notice and opportunity to be heard respecting the serial disclosure and dissemination of
his ... deposition testimony." PI's Opp'n at 22. Nowhere in the complaint does plaintiff
allege that defendants failed to provide notice and an opportunity to be heard, nor any
facts to support this contention. See Iqbal, 129 S. Ct. at 1940. Therefore, we will not
address this argument.
                                                 9
Wilkie v. Robbins, 551 U.S. 537, 550 (2007). Indeed, in more recent "decisions[, it has]

responded cautiously to suggestions that Bivens be extended into new contexts."

Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). There are two instances, however,

where it is clearly not appropriate to award money damages in a Bivens claim. Bivens,

403 U.S. at 396. First, when there are "special factors" counseling against creating a

Bivens remedy, and second, where there is a congressional declaration prohibiting

recovery of monetary damages or remitting recovery to another equally effective remedy.

Id. In a motion to dismiss, the defendant bears the burden to prove the existence of either

of these two instances. See Carlson v. Green, 446 U.S. 14, 18-19 (1980). Here,

defendants have done so by relying on the "special factor" of a comprehensive procedural

and remedial scheme: the CAA.6

       Plaintiff contends defendants unconstitutionally violated the confidentiality

provision of the CAA, 2 U.S.C. § 1416. CompI.     ~   3. The CAA, however, provides a

specific remedy for injury caused by a breach of the confidentiality provision of the CAA

by its incorporation of the retaliation concept from Title VII of the Civil Rights Act of

1964.7 See 2 U.S.C. § 1317. Indeed, our Circuit Court has held repeatedly that Title VII


6 Our Circuit Court previously has held other comprehensive procedural and remedial
schemes to constitute a "special factor" precluding Bivens remedies. See Wilson v. Libby,
535 F.3d 697 (D.C. Cir. 2008) (holding the Privacy Act to constitute a "special factor"
precluding a Bivens remedy); Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (en
banc) (recognizing the Civil Service Reform Act as a "special factor" precluding a Bivens
remedy).
7 The CAA incorporates several provisions of Title VII, including the remedies provided
by Title VII. See 2 U.S.C. §§ 1311, 1317; Adams v. Us. Capitol Police Bd., 564 F.
Supp. 2d 37, 40 (D.D.C. 2008). Under Title VII, it is unlawful for an employer "to
discriminate against any of [its] employees ... because [an employee] has made a charge
                                             10
is a comprehensive remedial scheme that precludes a Bivens remedy. See Ethnic Emps.

o/the Library o/Congress v. Boorstin, 751 F.2d 1405,1414-16 (D.C. Cir. 1985) ("[T]his

circuit has repeatedly held that federal employees may not bring suit under the

Constitution for employment discrimination that is actionable under Title VII.").

Consequently, plaintiff's claim is barred due to a "special factor"-specifically, the

applicability of the CAA, as an adequate, comprehensive procedural and remedial

scheme. 8

                                     CONCLUSION

       Thus, for all of the foregoing reasons, Defendant's Motion to Dismiss, ECF No.9,

is GRANTED. An appropriate order will accompany this memorandum opinion .




. . . or participated in any manner in an investigation" of discrimination. 42 U.S.C. §
2000e-3(a).
8 Because a Bivens remedy is barred, I will refrain from addressing defendants' qualified
immunity argument. See Def. 's Mot. to Dismiss, p. 11.
                                            11
