                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA


WINSOME PACKER,

                        Plaintiff,

                v.                                     Civil Action No. 11-cv-00485 (RMC)

THE UNITED STATES COMMISSION ON
SECURITY AND COOPERATION IN
EUROPE,
ALCEE L. HASTINGS, and
FRED TURNER,

                        Defendants.




        This matter is before the court on Defendant Fred Turner’s Motion to Dismiss

Plaintiff’s Complaint [Docket No. 18; Filed July 8, 2011] and Motion of Defendant

Alcee L. Hastings to Dismiss Counts III and IV of Plaintiff’s Complaint [Docket No.

19; Filed July 9, 2011] (collectively, the “Motions”).1 After receiving an extension of

time, Plaintiff filed a single response in opposition to both Motions on August 12, 2011

[Docket No. 21]. Defendants filed separate replies on September 2, 2011 [Docket Nos.

22 & 23]. The Motions have been fully briefed and are ripe for resolution. Having

considered the relevant pleadings and applicable law,

        IT IS HEREBY ORDERED that the Motions are GRANTED and Defendants

Alcee L. Hastings and Fred Turner are DISMISSED as parties to this action.




1
 By agreement between District Judge Rosemary M. Collyer and District Judge Barbara J.
Rothstein, W.D. Wash., sitting by designation, the Motions have been transferred to this court for
resolution. Unless otherwise notified, the matter remains assigned to Judge Collyer.
                                       I. Background

       Plaintiff is an employee of the United States Commission on Security and

Cooperation in Europe (the “Commission”). On March 7, 2011, she filed the present

lawsuit alleging that during her employment with the Commission, she was subjected to

sexual harassment and later retaliated against because she complained about her

treatment. Specifically, Plaintiff contends that “from January 2008 through February 19,

2010, [she] was forced to endure unwelcome sexual advances, crude sexual comments,

and unwelcome touching by [Defendant] Hastings.” Complaint [#1] at 2. Defendant

Hastings is a member of the United States House of Representatives from the state of

Florida who, in that capacity, served as the Chairman of the Commission from January

2007 through at least January 2011. Id. at 3. Plaintiff alleges that when she complained

about Defendant Hastings’ conduct to her immediate supervisor and the Commission

Staff Director, Defendant Turner, Defendants Hastings and Turner “began to retaliate

against [her,] including making threats of termination . . . .” Id. at 2.

       Although there are several claims asserted exclusively against the Commission,

the present Motions seek dismissal only of Claim III (Defendant Hastings) and Claim IV

(Defendants Hastings and Turner). Claim III alleges that Defendant Hastings engaged in

sexual harassment in the workplace in violation of Plaintiff’s Fifth Amendment equal

protection rights. Id. at 30-31. Claim IV alleges that Defendants Hastings and Turner

retaliated against Plaintiff in violation of her First and Fifth Amendment rights. Id. at 31-

32.   While the claims against the Commission are derived from the Congressional




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Accountability Act (“CAA”), 2 U.S.C. § 1301 et seq.,2 Claims III and IV are brought

pursuant to Bivens v. Six Unknown Agents of Fed’l Bureau of Narcotics, 403 U.S. 388

(1971) and are asserted on constitutional grounds against the individually-named

Defendants in their individual capacities.

          Defendants Hastings and Turner separately move to dismiss these claims. Both

Defendants argue that the CAA precludes Bivens liability in the context of this action.

Turner’s Motion [#18] at 8-13, 16-21; Hastings’ Motion [#19] at 19-38.3 Plaintiff’s

combined opposition to the Motions is largely unresponsive to question of whether a

Bivens remedy exists, except to raise a concern that the CAA is not applicable here and,

therefore, a Bivens remedy should not be foreclosed. See Opposition [#21] at 3-5.

                                    II. Standard of Review

          The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test

“the sufficiency of the allegations within the four corners of the complaint after taking

those allegations as true. In re Interbank Fund Corp. Sec. Litig., 668 F. Supp. 44, 47-48

(D.D.C. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).                     Moreover,

ambiguities must be resolved in favor of the plaintiffs, giving them the benefit of every

reasonable inference drawn from the well-pleaded facts and allegations in his complaint.

See id.



2
 The CAA was enacted by Congress to address, among other things, employment discrimination
and retaliation allegations brought by congressional employees. See 2 U.S.C. §§ 1311, 1317.
Employees of the Commission are treated as congressional employees for purposes of application
of the Act. See 2 U.S.C. § 1301(3)(A), (B); 22 U.S.C. § 3008(d).
3
 In addition, Defendants argue that even if a Bivens remedy is available, Plaintiff’s claims against
them lack sufficient specificity to survive dismissal. The court need not reach this issue.

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       To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts,

taken as true, to provide “plausible grounds” that discovery will reveal evidence to

support the plaintiff’s allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the alleged

misconduct.” Aschroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1940, 1949 (2009).

Moreover, “[a] pleading that offers ‘labels and conclusions’ or a formulaic recitation of

the elements of a cause of action will not do. Nor does the complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted).

                                      III. Analysis

       Although Defendants advance several compelling arguments in support of their

Motions, the dispositive question is whether Plaintiff has stated any compensable

constitutional claims.   A Bivens cause of action is a judicially created avenue for

individuals to seek damages from federal officials for constitutional violations of civil

rights. Recognized in 1971 as a way to redress alleged Fourth Amendment violations,

Bivens has been extended to encompass other constitutional violations in only a discrete

handful of instances since that time. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70

(2001) (noting that “[i]n 30 years of Bivens jurisprudence we have extended its holding

only twice”).

       In determining whether a Bivens remedy exists, the court considers (1) whether

Congress has precluded the remedy “by statutory language, by clear legislative history,

or perhaps even by the statutory remedy itself”; or (2) “[i]n the absence of such a


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congressional directive,” whether there are “any special factors counseling hesitation

before authorizing a new kind of federal litigation.” Bush v. Lucas, 462 U.S. 367, 378

(1983); see also Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (describing the first factor

as “the question whether any alternative, existing process for protecting the interest

amounts to a convincing reason for the Judicial Branch to refrain from providing a new

and freestanding remedy in damages”). Defendant Hastings contends that the CAA is the

exclusive remedy to redress discrimination claims brought by Commission employees.

In addition, both Defendants argue that special factors exist to prevent extension of

Bivens to the present claims.

       As a preliminary matter, the court addresses Plaintiff’s contention that the

availability of the CAA to challenge the sexual harassment/retaliation in question is

disputed in this litigation. Opposition [#21] at 3. Apparently, this contention is based on

a position taken by the Commission during the pre-litigation stage utilized to address

Plaintiff’s grievances. See id. at 4-5. Notably absent, however, is any assertion that the

applicability of the CAA is actually at issue here. First, Plaintiff pleads her claims

against the Commission pursuant to the CAA. It is disingenuous for her to question now

whether the CAA applies. Second, and more importantly, the Commission concedes the

application of the CAA in its Answer. Commission’s Answer [#17] at 2 (“Defendant

does not contest jurisdiction”; “Defendant does not contest Plaintiff’s status as a covered

employee”; “Defendant does not contest its status as an employing office”). Plaintiff’s

alleged concern that dismissal of her Bivens claims may eventually deprive her of any

remedy is simply baseless.


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       Considering the relevant factors articulated in Bush, the court finds that the

applicability of the CAA to the conduct at issue forecloses Plaintiff’s Bivens claims under

either consideration.

       A.      Exclusive Nature of the CAA

        First, at least one court in this District has recognized that the CAA “provides the

exclusive remedy by which legislative branch employees can bring a suit challenging

employment discrimination.” Adams v. U.S. Capitol Police Bd., 564 F. Supp. 2d 37, 40

(D.D.C. 2008). Although arguably dicta, this statement is clearly supported by the

language of the statute and the legislative history behind it. See, e.g., 2 U.S.C. §

1361(d)(1) (prescribing that “no person may commence an administrative or judicial

proceeding to seek a remedy for the rights and protections afforded by this [Act] except

as provided in this [Act]”); H.R. Rep. No. 103-650, pt. 1 (1994) (“Congressional

employees are prohibited from commencing judicial proceedings except as provided by

this Act.”); see also Hastings’ Motion [#19] at 13-15 (compiling similar preclusive

statements contained in legislative history of Act). The exclusive nature of the CAA is

arguably dispositive.

       B.      Comprehensive Remedial Scheme

       Second, as noted above, “courts ‘must decline to exercise . . . discretion [to

recognize a Bivens remedy] where “special factors counsel[] hesitation” in doing so.’”

Gerlich v. DOJ, 659 F. Supp. 2d 1, 9 (D.D.C. 2009) (citations omitted). “One ‘special

factor’ that precludes creation of a Bivens remedy is the existence of a comprehensive

remedial scheme.”       Wilson v. Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (citation

                                             6
omitted). Even if the CAA did not provide the exclusive judicial basis for relief, it is

clearly a comprehensive scheme which permits congressional employees to redress

discriminatory and retaliatory injuries sustained during employment. See, e.g., Hensley

v. Office of Architect of the Capitol, 806 F. Supp. 2d 86, 92-93 (D.D.C. 2011) (holding

that CAA, like its antecedent Title VII, is “an adequate, comprehensive procedural and

remedial scheme” barring a Bivens remedy); Tull v. Office of Architect of the Capitol,

806 F. Supp. 2d 80, 85-86 (D.D.C. 2011) (same).

        Plaintiff’s citation to the Supreme Court’s decision in Davis v. Passman, 442 U.S.

228 (1979) is unavailing. Although the Court in Davis recognized the availability of a

Fifth Amendment Bivens claim to redress discrimination in the federal employment

context, this recognition predated passage of the CAA and, therefore, was founded on the

lack of any explicit statutory remedies addressing discrimination in that context. Id. at

248. Indeed, the Court recognized that its decision would be impacted by a congressional

act. Id.; see also Malesko, 534 U.S. at 70 (noting that holding in Davis was predicated on

the lack of “any alternative remedy for harms caused” (emphasis in original)). The

subsequent passage of the CAA effectively limits the precedential value of Davis in

today’s statutory landscape.4




4
 Plaintiff’s citation to the Supreme Court’s decision in Wilkie v. Robbins is likewise
unpersuasive. See Opposition [#21] at 5. Although Plaintiff references the Court’s opinion in
support of the proposition that a Bivens remedy should exist unless a statutory provision
expressly precludes it, the holding in Wilkie does not support that characterization. Rather, the
Court declined to recognize a Bivens remedy although it found that the applicable law did not
“plainly answer no to the question whether [the plaintiff] should have it.” Wilkie, 551 U.S. at
554.

                                                 7
       Regardless that Bivens and its early progeny subjected federal officials to

individual liability for specific constitutional violations, the Court’s “more recent

decisions have responded cautiously to suggestions that Bivens remedies be extended into

new contexts.” Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see also Iqbal, 129 S.

Ct. at 1948 (noting that “implied causes of actions are disfavored”). For example, in

Bush, the Supreme Court declined to extend Bivens to a First Amendment claim raised by

an Executive Branch employee because the conduct at issue was governed by various

legislation, executive orders, and detailed regulations. Bush, 462 U.S. at 368, 385.

Specifically, because “[f]ederal servants [in this context] are now protected by an

elaborate, comprehensive scheme that encompasses substantive provisions for forbidding

arbitrary action by supervisors and procedures – administrative and judicial – by which

improper action may be redressed,” the Court did not “permit a federal employee to

recover damages from a supervisor who ha[d] improperly disciplined him for exercising

his First Amendment rights.” Id. at 385, 390.

       Clearly in this case, the comprehensive administrative and judicial measures

available to Plaintiff pursuant to the CAA preclude a Bivens remedy for the conduct

alleged to have been committed by Defendants Hastings and Turner. Therefore, the court

finds that Plaintiff has failed to state claims upon which relief can be granted against

these Defendants.

                                    IV. Conclusion

       For the reasons stated above, IT IS SO ORDERED:

       (1) Defendant Turner’s Motion to Dismiss is GRANTED;

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       (2) Defendant Hastings’ Motion to Dismiss is GRANTED; and

       (3) The claims asserted against these Defendants are DISMISSED with

prejudice and the caption shall be amended accordingly.


Dated: February 14, 2012




                                    __________________________________________________________________

                                    BARBARA J. ROTHSTEIN
                                    UNITED STATES DISTRICT JUDGE




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