                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

JOSEPH TULL,                                    )
                                                )
                    Plaintiff,                  )
                                                )
             v.                                 )   Civil Case No. 10-629 (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,                              )
                                                )
and                                             )
                                                )
WILLIAM MILLER, an employee of                  )
the Architect of the Capitol, in his            )
personal capacity,                              )
                                                )
                    Defendants.
                                                )~
                            MEMORANDUM OPINION
                                 (August ?tJ>20 11) [#8]



                                            1
       Plaintiff Joseph Tull ("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 promote plaintiff to an assistant supervisor position, in violation of the

CAA; (2) the AOC subjected plaintiff to unlawful retaliation when it refused to

compensate him for his performance as an assistant supervisor, in violation of the CAA;

and (3) 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, and William Miller ("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 ofthe AOC at the time the

events giving rise to the instant action occurred. CompI.   ~~   8-9. Corey Howell, another

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

with the AOC. Id.   ~~   18-19. Mr. Howell deposed plaintiff during the course ofMr.

Howell's administrative case. Id.   ~~   20,25. 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.       ~~   21-22, 25.



                                                2
       Subsequent to plaintiff's 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.                     ~~   23-24,26. The charges against

Supervisor Crupi were based in part on plaintiff's confidential and sworn testimony in the

Howell matter. Id.          ~   23. Plaintiff was advised that he was to testify at the disciplinary

hearing. Id.      ~   27.

       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.            ~   29. 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.               ~   30. Unbeknownst to plaintiff, Supervisor Crupi

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

matter. Id.   ~   32. Subsequent to his meeting with Supervisor Crupi, plaintiff learned that

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

to plaintiff's confidential testimony. Id.              ~   33.

       At the time the events giving rise to the instant action occurred, plaintiff, an

Emergency Power Technician, alleges he was required to act, and did act, on a regular

and recurring basis as an Assistant Supervisor of the Diesel Shop within the High Voltage

Division of AOC. Id.             ~~   39-40. Although the AOC was required to compensate plaintiff

for performing this role, it did not do so. Id.               ~~   41-42. Further, in early January 2009,

plaintiff and Supervisor Crupi both attended a meeting in which it was determined that

                                                              3
plaintiff would be promoted to the Assistant Supervisor position. Id. 11 44-45. However,

that promotion never occurred. Id.   1 46.
       As a result, plaintiff filed this lawsuit on April 22, 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; Compl. 11 50, 55,

60,66. On September 29,2010, defendants filed a Motion to Dismiss those defendants

being sued in their personal capacities. See Docket Entry 8.

                                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

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 Atl. Corp.

                                                4
v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the court "need not accept inferences

drawn by plaintiff[] 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." Kowal v. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

                                     LEGAL ANALYSIS

   1.      Failure to SatisfY Federal Rule a/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 if it 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, I which in tum, violated plaintiff's 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 right. Compl.   ~~   66-68. 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 may be liable for the alleged violation of Plaintiff's Fifth

Amendment right. Therefore, the Motion to Dismiss Stephen Ayers, Rebecca Tiscione,




I 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 Plaintiff's confidential deposition testimony.
Compi. ~~ 10, 12, 13. 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 Plaintiff's confidential deposition testimony. Id. ~
14. 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 Plaintiff's confidential deposition testimony. Id. ~ 16.
                                                6
Evelyn Goodwin, Tonda Cave, and William Miller as to Count IV must be GRANTED

based on the plaintiff's failure to comply with Rule 8 alone.

    II.      Violation   0/Plaintiff's Fifth Amendment Right
          In his complaint, plaintiff also 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. ,-r 68. 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); Ed. a/Regents a/State

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

authority recognizing "confidentiality" as a property right. 3 Morever, the Supreme Court

has been reluctant to recognize new property interests, particularly when the interest does


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. 20. 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-
4l. 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.,-r
68 ("[Defendants] unconstitutionally deprive [d] Plaintiff of his unambiguous entitlement
to confidentiality under the [CAA].")
                                                 7
not have "some ascertainable monetary value" under the entitlement, such as financial

payments under Medicaid. Town of 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 does

find that plaintiffs 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 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 ofGov't Emps. v. Dep't of

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. 9-11.
                                              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 information at issue related to the employee's finances, drug use,

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

Jd. at 788. Here, the confidential testimony that was released was not information

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

defendants' Motion to Dismiss Count IV is GRANTED as to each individual defendant. 5

    111.      Bivens Claim

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

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, in 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 Jqbal, 129 S. Ct. at 1940. Therefore, we will not
address this argument.
                                                 9
Wilkie v. Robbins, 551 U.S. 537, 550 (2007). Indeed, in its 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.     ~   4. 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.

of the Library of 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.8,

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




                                                 United States District Judge




... 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. II.
                                            11
