McDonald v. Kempthorne

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

DAVID MCDONALD, )

)

Plaintiff, )

)

v. ) Civil Action No. 08-1696 (RWR)

)

KEN SALAZAR et al., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION

Plaintiff David McDonald, an employee of the United States

Park Police (“USPP”), brings claims against the Secretary of the

Interior and USPP employees Diana Smith, Philip Beck, and Warren

Boyer,1 alleging violations of McDonald’s Fourth and Fifth

Amendment rights, a hostile work environment, and retaliation.

Defendants have filed a motion to dismiss the amended complaint,

arguing that McDonald’s claims are untimely, that special factors

counsel hesitation in creating a remedy for McDonald’s alleged

constitutional violations, and that the defendants are entitled

to qualified immunity. Although McDonald’s claims are timely, he

has failed to state a Fifth Amendment due process claim, the

defendants are entitled to qualified immunity on his Fourth

Amendment claim, and the existence of a comprehensive remedial

1

Another defendant, John B. Farrell, has been dismissed

from the case.

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scheme for allegations by federal employees of employment

discrimination precludes his hostile work environment and

retaliation claims. Therefore, the defendants’ motion to dismiss

will be granted.

BACKGROUND

The amended complaint and materials it refers to set forth

the following background and allegations. McDonald, a black

male, has served as an officer with the USPP, an entity within

the Department of the Interior, for fifteen years. (Am. Compl.

¶¶ 4-5.) McDonald filed equal employment opportunity (“EEO”)

complaints alleging that Beck, a white male and the commanding

officer in McDonald’s district, discriminated and retaliated

against him. (Id. ¶ 6.) On May 26, 2006,2 Beck held a meeting

in his office with McDonald. McDonald believed that Beck planned

to discipline him at the meeting, and he brought with him a tape

recorder, which he placed in his shirt pocket. (Id. ¶ 7.) At

the conclusion of the meeting, McDonald began to leave the room,

but Beck ordered McDonald not to leave and to provide to Beck the

object in McDonald’s shirt pocket. Beck “physically blocked his

office door[.]” (Id.) McDonald repeatedly refused to furnish

the object and, in response to Beck’s question asking whether the

object was a tape recorder, denied that it was one. (Id.; Defs.’

2

USPP’s Notice of Proposed Removal (Defs.’ Mot. to Dismiss

Compl., Ex. 1 (“Notice”)) lists the date of the incident as May

24, 2006.

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Mot. to Dismiss Compl., Ex. 1, Notice of Proposed Removal

(“Notice”) at 1-2.)3 Beck summoned other officers to the room,

one of whom threatened to strip search McDonald. (Am. Compl.

¶ 7.) McDonald then requested union representation, and once a

representative arrived, Beck ordered McDonald to remove his

jacket, gun belt, and boots. (Id. ¶¶ 8-9.) Boyer physically

searched McDonald’s person. When ordered to empty his pockets

and socks, McDonald removed the tape recorder, concealed in a

brown case.4 Beck ordered McDonald to surrender his badge, gun,

credentials, and the keys to his home-to-work vehicle. (Id.

¶ 9.)

After the incident in Beck’s office, the USPP placed

McDonald on administrative leave. McDonald later returned to

work on restricted duty, assigned to the USPP’s Brentwood Auto

Shop, cleaning and stripping decals from police vehicles instead

of engaging in his former policing duties. (Id. ¶ 10.) On

April 8, 2008,5 Smith, Commander of the Office of Professional

3

According to the Notice, Beck saw a red light activate from

inside McDonald’s shirt pocket whenever there was conversation.

(Notice at 1.)

4

According to the Notice, a sergeant had seen McDonald move

a case from an upper pocket to his pants. Boyer asked McDonald

what had been in his shirt pocket. McDonald replied it may have

been a cell phone. However, McDonald did not have a cell phone.

(Notice at 2-3.)

5

The Notice appears to have been issued on April 3, 2008

rather than April 8, 2008 as the amended complaint avers.

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Responsibility, proposed removing McDonald from employment for

his lack of candor and failure to follow a direct order. (Id.

¶ 11; Notice at 1.) The Notice alleges that McDonald’s conduct

was “in violation of G.O. 32.03, II, 22, which states, in part,

‘An officer shall promptly obey all lawful orders issued by a

superior officer.’” (Notice at 5.) The Notice also alleges that

McDonald violated “General Order (G.O.) 32.03, II, section 26,

which states, ‘It is the duty of a subordinate officer to respond

truthfully to questions asked by a supervisor in connection with

matters relating to the official business of the Force.’” (Id.

at 5.)

On October 2, 2008, McDonald filed this suit alleging

violations of his Fourth and Fifth Amendment rights under Bivens

v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Pl.’s

Opp’n to Defs.’ Mot. to Dismiss Am. Compl. (“Pl.’s Opp’n”) at 4),

and seeking legal and equitable relief and attorney’s fees.6 He

claims that the defendants unreasonably searched and seized him,

removed him from his duties without procedural or substantive due

6

Although McDonald’s amended complaint does not make clear

whether he is asserting claims against the defendants in their

official capacities, it will be construed as asserting claims for

damages against the defendants in only their individual

capacities, since Bivens actions are brought against federal

officials in their individual, not their official, capacities,

and sovereign immunity bars suits for money damages against

officials acting in their official capacities absent a specific

waiver by the government. See Clark v. Library of Congress, 750

F.2d 89, 102-03 (D.C. Cir. 1984).

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process, deprived him of a liberty interest without a hearing,

and violated his due process rights by creating a hostile work

environment and retaliating against him for filing prior EEO

complaints. (Am. Compl. ¶¶ 13, 17, 20, 23.) The defendants move

to dismiss, arguing that McDonald’s claims are untimely, that

special factors counsel hesitation in creating a remedy for

McDonald’s alleged constitutional violations, and that the

defendants are entitled to qualified immunity.7 (Mem. of P. & A.

in Supp. of Defs.’ Mot. to Dismiss Am. Compl. (“Defs.’ Mem.”) at

7-8.)

DISCUSSION

In considering a motion to dismiss for failure to state a

claim under Rule 12(b)(6), a court must construe the complaint in

the light most favorable to the plaintiff, Browning v. Clinton,

292 F.3d 235, 242 (D.C. Cir. 2002), and “assume the truth of all

well-pleaded allegations.” Warren v. District of Columbia, 353

7

The defendants also argue that there is no personal

jurisdiction over the individual defendants because McDonald

failed to effect proper service of process. However, McDonald

has now properly served all remaining individual defendants.

In addition, the defendants challenge McDonald’s claim under

42 U.S.C. § 1988 for attorney’s fees. McDonald’s amended

complaint does not allege a violation of 42 U.S.C. § 1983, or any

other statutory violation that would entitle a plaintiff to

attorney’s fees under § 1988. Therefore, his claim for

attorney’s fees under § 1988 will be dismissed. See Ranger v.

Tenet, 274 F. Supp. 2d 1, 6-7 (D.D.C. 2003) (“Because [the

plaintiff] has failed to state a cognizable claim under § 1983,

his claim under § 1988 must fail as well.” (footnote omitted)).

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F.3d 36, 39 (D.C. Cir. 2004). “[T]he court need not accept

inferences drawn by [a] 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); see also Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009). A plaintiff does not need to plead detailed factual

allegations. Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc.,

525 F.3d 8, 16 (D.C. Cir. 2008) (stating that “[i]n general, a

complaint should simply identify the ‘circumstances, occurrences,

and events’ giving rise to the claim” (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 n.3 (2007))). But, enough facts must

be pled to “state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570. Documents “appended to [a]

motion to dismiss . . . whose authenticity is not disputed . . .

may be considered . . . [when] they are referred to in the

complaint and are integral to [plaintiff’s] claim.” Kaempe v.

Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).8

8

The USPP Notice of Proposed Removal sent to McDonald, which

was appended to the defendants’ motion to dismiss the original

complaint and incorporated into defendant’s motion to dismiss the

amended complaint, will be considered. The amended complaint

refers to the proposed removal (Am. Compl. ¶¶ 11, 14), and

McDonald has neither made any arguments against considering the

material nor disputed the authenticity of the material. The

other materials appended by the defendants, namely, McDonald’s

outline of his oral response to the assertions made to the notice

of proposed removal and the apparently incomplete transcript of

McDonald’s interview with the USPP internal affairs unit will not

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I. TIMELINESS

The defendants argue that McDonald’s constitutional claims

are untimely because they stem from events that occurred more

than one year before he filed suit. (Def.’s Mem. at 11-12.)

“When a federal action contains no statute of limitations, courts

will ordinarily look to analogous provisions in state law as a

source of a federal limitations period.” Doe v. U.S. Dep’t of

Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985). District of

Columbia law therefore provides the appropriate limitations

periods for McDonald’s Bivens claims. See Lederman v. United

States, 131 F. Supp. 2d 46, 60 (D.D.C. 2001). Section 12-301 of

the D.C. Code provides in relevant part:

Except as otherwise specifically provided by law,

actions for the following purposes may not be brought

after the expiration of the period specified below from

the time the right to maintain the action accrues . . .

(4) for libel, slander, assault, battery, mayhem,

wounding, malicious prosecution, false arrest or false

imprisonment –– 1 year; . . .

(8) for which a limitation is not otherwise specially

prescribed –– 3 years[.]

D.C. Code §§ 12-301(4), (8).

A proper limitations provision must account for the

characteristics of litigation under the analogous federal

be considered because they are neither referred to in the

complaint nor central to plaintiff’s claims. Moreover, they are

not relevant to the inquiry into the objective reasonableness of

the defendants’ actions for purposes of qualified immunity,

discussed below.

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statute, including the policies underlying and the practicalities

involved in litigating the federal cause of action. See Burnett

v. Grattan, 468 U.S. 42, 50 (1984) (holding that the appropriate

state limitations period for civil rights claims must account for

the goals underlying the Civil Rights Act). The defendants,

citing Wormley v. United States, 601 F. Supp. 2d 27, 35 (D.D.C.

2009), argue that McDonald’s unreasonable search and seizure

claims are analogous to false arrest and false imprisonment.

(Defs’ Mem. at 11.) “This Circuit has recognized, however, that

‘interests respectively protected by federal constitutional law

and local assault law are not congruent, and that injuries

inflicted by officers acting under color of (legal authority) are

significantly different in kind from those resulting from acts of

private persons.’” Lederman, 131 F. Supp. 2d at 61 (alteration

in original) (quoting Payne v. Gov’t of D.C., 559 F.2d 809, 817

n.32 (D.C. Cir. 1977)). In the context of § 1983 claims, the

Supreme Court has held that courts should borrow limitations

periods from general or residual personal injury actions and not

from intentional tort actions because constitutional claims “bear

little if any resemblance to the common-law intentional tort.”

Owens v. Okure, 488 U.S. 235, 249 (1989). Applying the general

or residual limitations period for § 1983 claims best promotes

the federal interests in uniformity, certainty, and minimization

of unnecessary litigation. See id. at 240. These same concerns

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underlie Bivens actions. See Williams v. Hill, 74 F.3d 1339,

1340-41 (D.C. Cir. 1996) (noting that the bodies of law for

§ 1983 and Bivens actions overlap in most respects); Lederman,

131 F. Supp. 2d at 61.

Because “the general limitations provision better accounts

for the goals of a Bivens action, namely, to promote uniformity

and finality for potential litigants bringing federal

constitutional claims,” Lederman, 131 F. Supp. 2d at 62, the

appropriate limitations period is the three-year period. See

also Hobson v. Brennan, 625 F. Supp. 459, 467-68 (D.D.C. 1985)

(reasoning that the three-year limitations period is more

appropriate for the complex claims alleged in § 1983, § 1985, and

Bivens actions); Logiurato v. ACTION, 490 F. Supp. 84, 90-91

(D.D.C. 1980) (rejecting contention that plaintiff’s allegations

that defendants acting under color of law drugged, repatriated,

and hospitalized the plaintiff against his will are analogous to

the common law torts of assault, false arrest, and false

imprisonment for the purposes of determining the appropriate

limitations period and holding that § 12-301(8) applies to

constitutional torts).9 McDonald filed his complaint on

October 2, 2008, alleging Bivens claims based on events that took

place on May 26, 2006. The three-year period had not expired

9

But see Wormley, 601 F. Supp. 2d at 35 (finding

plaintiff’s Bivens claims analogous to false imprisonment and

false arrest and applying one-year limitations period).

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when he filed his complaint, and, therefore, his Bivens claims

are timely.

II. DUE PROCESS CLAIMS

McDonald claims that the defendants violated his due process

rights by removing him from his duties as a police officer

without procedural due process and denying him a name-clearing

hearing after they defamed him. (Am. Compl. ¶¶ 17, 20.)

“Whether any procedural protections are due [under the Fifth

Amendment] depends on the extent to which an individual will be

‘condemned to suffer a grievous loss.’” Morrissey v. Brewer, 408

U.S. 471, 481 (1972) (quoting Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)).

Only after a plaintiff demonstrates a deprivation of a liberty or

property interest does a court determine what procedural

protections are necessary to comport with due process. See Reeve

Aleutian Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C.

Cir. 1993).

A. Removal from duties

“To have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it. He must

have more than a unilateral expectation of it. He must, instead,

have a legitimate claim of entitlement to it.” Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972). “Property interests are not

created by the Constitution, they are created and their

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dimensions are defined by existing rules or understandings that

stem from an independent source[,]” Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985) (internal quotation and

citation omitted), such as a statute or regulation. Doe v.

Gates, 981 F.2d 1316, 1320 (D.C. Cir. 1993). Members of the USPP

are covered by the Civil Service Reform Act (“CSRA”), Pub. L. 95-

454, 92 Stat. 1111 et seq. (codified, as amended, in various

sections of 5 U.S.C.). Humberson v. U.S. Attorney’s Office for

D.C., 236 F. Supp. 2d 28, 31 (D.D.C. 2003). The CSRA prohibits

employers from, among other things, reducing the grade or pay,

removing without cause, or suspending for more than fourteen days

covered employees. Id. (citing 5 U.S.C. § 7513(a)). While the

prohibition on removing an employee without cause means that

“Competitive Service employees possess a legitimate expectancy

of, and therefore a property interest in, continued federal

employment[,] . . . it does not follow that [they have] such an

interest in every aspect of [their] job[s], or that the Fifth

Amendment protects [them] from employment actions short of those

described” in § 7513(a). Id.

Here, McDonald has not pled that the defendants reduced his

grade or pay, nor has he pled that the defendants removed him, or

that he resigned and that the circumstances constituted a

constructive discharge. Moreover, although McDonald pled that

the defendants placed him on administrative leave, he has not

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pled that the administrative leave lasted for a period longer

than fourteen days. (See Am. Compl. ¶ 17.) Because a mere

change in duties does not violate the CSRA, McDonald has not

established that the defendants deprived him of a property

interest by reassigning him to the Brentwood Auto Shop. See

Humberson, 236 F. Supp. 2d at 31 (refusing to recognize as a

deprivation of a property interest a reassignment that precluded

plaintiff from performing certain tasks that he previously

performed). Cf. Thompson v. District of Columbia, 530 F.3d 914,

919 (D.C. Cir. 2008) (holding that transferring an employee to a

position scheduled for imminent elimination constituted a

constructive removal that deprived the plaintiff of a property

interest). As such, McDonald has not sufficiently pled that the

defendants deprived him of a procedural due process right.10

10

McDonald also claims that his reassignment deprived him

of substantive due process. (Am. Compl. ¶ 17.) Two situations

implicate substantive due process. First, “[s]ubstantive due

process rights attach . . . when a fundamental right is

involved[.]” Am. Fed’n of Gov’t Employees (AFL-CIO) v. United

States, 195 F. Supp. 2d 4, 12-13 (D.D.C. 2002); see also,

Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that

the Due Process Clause “provides heightened protection against

government interference with certain fundamental rights and

liberty interests”). Second, an abuse of executive power that

“shocks the conscience” violates substantive due process. County

of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). McDonald does

not allege that the defendants violated a fundamental right, and

he offers no authority to support a finding that the facts that

he alleges shock the conscience. Cf. Rochin v. California, 342

U.S. 165, 172 (1952) (finding that police officers who illegally

broke into the plaintiff’s home, struggled to force open his

mouth to remove its contents, and later arranged for his stomach

to be pumped constituted “conduct that shocks the conscience”);

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B. Name-clearing hearing

An individual has a constitutionally protected liberty

interest to follow a chosen profession without unreasonable

interference by the government. Trifax Corp. v. District of

Columbia, 314 F.3d 641, 643 (D.C. Cir. 2003). However, “[b]y

themselves, charges of government defamation are insufficient to

create a liberty interest.” Orange v. District of Columbia, 59

F.3d 1267, 1274 (D.C. Cir. 1995). Instead, for a plaintiff to

demonstrate a liberty interest, he must show that the

government’s attack on his personal reputation has “achieved in

substance an alteration of status that, if accomplished through

formal means, would constitute a deprivation of liberty[.]”

Trifax Corp., 314 F.3d at 644. This rationale gives rise to the

“reputation plus” requirement: a plaintiff must show that the

resulting stigma from any harm to his reputation altered his

employment status in a tangible way. Id. However, a plaintiff

cannot demonstrate harm to his reputation in the absence of a

public attack on his reputation. Orange, 59 F.3d at 1274

(“Injury to reputation cannot occur in the absence of public

disclosure of the allegedly damaging statements.”)

Garcia ex rel. Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.

1987) (holding that grossly excessive corporal punishment could

be “shocking to the conscience” and “violate substantive due

process rights”). Thus, he has not sufficiently pled that the

defendants deprived him of substantive due process.

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Here, McDonald has not pled facts alleging that the

defendants deprived him of a liberty interest that would entitle

him to a name-clearing hearing because he has not pled that the

defendants made public defamatory statements about him. McDonald

alleges that “[o]n April 8, 2008, Defendant Smith proposed the

removal [of] Officer McDonald from employment based on charges of

lack of candor and failure to follow instructions.” (Am. Compl.

¶ 11.) McDonald did not plead to whom Smith made those

statements, yet alone that she made those statements publicly.

In the absence of such facts, McDonald’s allegation that the

defendants defamed him is no more than a legal conclusion couched

as a factual assertion and fails to state an actionable claim.

See Iqbal, 129 S. Ct. at 1949. As such, McDonald has not

sufficiently pled that the defendants deprived him of a liberty

interest, such that he is entitled to a name-clearing hearing.11

11

Moreover, the Federal Tort Claims Act provides federal

officials with absolute immunity for all common law torts

committed within the scope of their employment. 28 U.S.C.

§ 2679(b)(1). The Chief of the Civil Division of the United

States Attorney’s Office for the District of Columbia filed a

certification, in accordance with § 2679(d), that the defendants

were acting within the scope of their employment as employees of

the United States at the time of the alleged incident. McDonald

seeks limited discovery to contest the certification (Pl.’s Mem.

at 8.), which implies that McDonald’s complaint alleges, in

addition to a constitutional Bivens claim, a claim of common law

defamation committed beyond the scope of federal employment. To

the extent that McDonald’s complaint could be construed as

alleging a defamation tort under D.C. law, that claim will be

dismissed as untimely, since McDonald filed his complaint more

than one year after the defendants allegedly made the defamatory

statements. See D.C. Code 12-301(4).

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III. FOURTH AMENDMENT CLAIMS

A. Comprehensive remedial scheme

The defendants argue that the CSRA and the Federal Employees

Compensation Act (“FECA”) are comprehensive remedial schemes that

provide remedies for McDonald’s Fourth Amendment claims and

foreclose the creation of a Bivens remedy for his alleged illegal

search and seizure. (Defs.’ Mem. at 15-17.) Courts have the

discretion, in some circumstances, to create a remedy when

federal officials violate constitutional rights, but not when

“‘special factors counsel[] hesitation’ in doing so.” Wilson v.

Libby, 535 F.3d 697, 704 (D.C. Cir. 2008) (quoting Bivens, 403

U.S. at 396)). “One ‘special factor’ that precludes creation of

a Bivens remedy is the existence of a comprehensive remedial

scheme.” Id. at 705. “[C]ourts must withhold their power to

fashion damages remedies when Congress has put in place a

comprehensive system to administer public rights, has ‘not

inadvertently’ omitted damages remedies for certain claimants,

and has not plainly expressed an intention that the courts

preserve Bivens remedies.” Spagnola v. Mathis, 859 F.2d 223, 228

(D.C. Cir. 1988) (per curiam) (en banc) (citing Schweiker v.

Chilicky, 487 U.S. 412 (1988) and Bush v. Lucas, 462 U.S. 367

(1983)). Because “it is the comprehensiveness of the statutory

scheme involved, not the ‘adequacy’ of specific remedies extended

thereunder, that counsels judicial abstention[,]” the inability

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for a plaintiff to obtain complete relief under a particular

statute is not a sufficient basis for awarding that plaintiff

damages under Bivens. Id. at 227.

1. CSRA

The CSRA identifies “prohibited personnel practices” as

“tak[ing] or fail[ing] to take any . . . personnel action if the

taking of or failure to take such action violates any law, rule,

or regulation implementing, or directly concerning, the merit

system principles contained in” the CSRA. 5 U.S.C.

§ 2302(b)(12). A “personnel action” is any “significant change

in duties, responsibilities, or working conditions[,]” such as a

promotion, transfer, or decision concerning pay or benefits. 5

U.S.C. § 2302(a)(2). The CSRA is a comprehensive remedial scheme

for federal employees seeking damages from the United States for

prohibited personnel practices that precludes extending a Bivens

remedy to federal employees alleging that personnel actions

violated their constitutional rights. Bush, 462 U.S. at 368; see

also Spagnola, 859 F.2d at 229-30 (declining to extend Bivens

remedy for damages to federal employees alleging that they were

denied employment opportunities after exercising their First

Amendment rights). However, Bush stated explicitly that

warrantless searches do not qualify as personnel actions under

§ 2302(a)(2)(A) of the CSRA. 462 U.S. at 385 n.28; see also

Stewart v. Evans, 275 F.3d 1126, 1130 (D.C. Cir. 2002) (“By

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noting that a warrantless search is not a ‘personnel action[]

. . . covered by this system,’ and stating that such a search

does not fall ‘within the statutory scheme,’ Bush virtually

compels the conclusion that the Act does not preclude a Bivens

action for a warrantless search” at the plaintiff’s office of her

notes about an incident of alleged sex discrimination). Thus,

the CSRA is not a comprehensive remedial scheme for Boyer’s

warrantless search of McDonald.

Neither the Supreme Court nor the D.C. Circuit appears to

have determined explicitly whether warrantless seizures qualify

as personnel actions under the CSRA. Other courts have

characterized seizures on work premises of employees’ property as

personnel actions. See, e.g., Saul v. United States, 928 F.2d

829, 840 (9th Cir. 1991) (concluding that the CSRA precluded a

Bivens remedy where defendants seized personal mail addressed to

the plaintiff at his office because the defendants’ actions were

“work-related”); Plasai v. Mineta, No. 3-03-CV-2996-BD, 3-04-CV-

1477-BD, 2005 WL 1017806, at *3 (N.D. Tex. Apr. 26, 2005)

(reasoning that “the seizure and examination of plaintiff’s

computers were clearly related to her status as an . . .

employee” because the defendants “seized the computers from

plaintiff’s office as part of an investigation into her alleged

misconduct”); Black v. Reno, No. 99 CIV. 2704 RWS, 2000 WL 37991,

at *12 (S.D.N.Y. Jan. 18, 2000) (concluding that the CSRA barred

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plaintiff’s “damage claim[] arising from the alleged illegal

. . . seizure at her office” because it arose “from workplace

activities”). However, unlike Saul, Plasai, or Black, neither

Stewart nor Bush drew a distinction between conduct that occurred

on work premises and conduct that occurred off of work premises

for the purpose of determining whether a warrantless search

constituted a personnel action. Moreover, a warrantless seizure

of an employee’s person does not fit cleanly within any of the

categories of personnel actions listed in 5 U.S.C. § 2302(a)(2).

A warrantless seizure is hardly akin to a promotion, transfer, or

decision concerning pay or benefits. While a pattern of

warrantless seizures might arguably constitute a significant

change in working conditions, a single incident is too ephemeral

to constitute such a change. Therefore, just as with Boyer’s

warrantless search, the warrantless seizure here did not

constitute a personnel action. In sum, the CSRA is not a

comprehensive remedial scheme for the constitutional violations

McDonald alleges, and it does not preclude his claims. See

Spagnola, 859 F.2d at 229 (noting that the CSRA does not preclude

“the exercise of federal jurisdiction over the constitutional

claims of federal employees . . . altogether”).

2. FECA

The FECA is a comprehensive remedial scheme for “employees’

injuries in federal workplaces.” Briscoe v. Potter, 171 Fed.

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Appx. 850, 850 (D.C. Cir. 2005). However, the FECA covers only

mental and physical injuries. See Lockheed Aircraft Corp. v.

United States, 460 U.S. 190, 193-94 (1983) (drawing analogy

between FECA and workers’ compensation legislation). The FECA

defines an injury to include “in addition to injury by accident,

a disease proximately caused by the employment,” 5 U.S.C.

§ 8101(5), and these injuries must result in either disability or

death for a federal employee to qualify for compensation. 5

U.S.C. § 8102(a).

The defendants argue that if McDonald is to claim that his

injuries fall outside of FECA’s remedial scheme, he must seek a

determination in the first instance from the Secretary of Labor.

(Defs.’ Mem. at 17.) However, a determination from the Secretary

of Labor is necessary only where the FECA’s coverage of an

employee’s injuries is ambiguous. See Zellars v. United States,

578 F. Supp. 2d 1, 5 (D.D.C. 2008) (“When there is ambiguity

regarding whatever claims are covered by FECA, the Secretary of

Labor must determine if it applies.”); Daniels-Lumley v. United

States, 306 F.2d 769, 771 (D.C. Cir. 1962) (noting that the

Secretary of Labor need not determine the applicability of FECA

if a plaintiff’s injuries are “clearly not compensable under the

[FECA]”). The underlying injury McDonald alleges is an

unreasonable search and seizure. Unlawful detention constitutes

an injury “irrespective of any physical or mental harm,” and is

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not covered by the FECA. Tredway v. District of Columbia, 403

A.2d 732, 735 (D.C. 1979) (internal quotation omitted). Courts

disagree whether some non-physical injuries such as a claim of

intentional infliction of emotion distress are covered under the

FECA. See Zellars, 578 F. Supp. 2d at 4 (describing split in

case law). However, McDonald’s allegations that he suffered

damages including “emotional distress, embarrassment, anxiety,

fatigue, mental distress, humiliation, illness and damage to his

employment and personal reputation,” in addition to economic harm

(“lost wages and benefits”), as a result of his search and

seizure, and subsequent removal (Am. Compl. ¶ 15), do not reduce

his claim to one for emotional or mental distress. McDonald’s

allegations of search and seizure in violation of the Fourth

Amendment are not amenable to characterization as an “injury by

accident” or a “disease proximately caused by employment” that

could result in either “disability or death.” 5 U.S.C.

§§ 8101(5), 8102(a). FECA is therefore not a comprehensive

remedial scheme for the constitutional violations McDonald

alleges, and it does not preclude his claims.

B. Qualified immunity

The defendants also argue that they are entitled to

qualified immunity with respect to McDonald’s Fourth Amendment

claim. “The doctrine of qualified immunity protects government

officials ‘from [personal] liability for civil damages insofar as

- 21 -

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine if

an official is protected by qualified immunity and therefore

entitled to dismissal of the claims against him, a court must ask

“whether the plaintiff has alleged the deprivation of an actual

constitutional right,” and “whether that right was clearly

established at the time of the alleged violations.” Int’l Action

Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004)

(quotations and citations omitted). Courts may “exercise their

sound discretion in deciding which of the two prongs . . . should

be addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236.

The second inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposition.

. . . ‘The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.’” Saucier v. Katz, 533 U.S. 194, 201-02

(2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

A court must determine whether “it would be clear to a reasonable

[official] that his conduct was unlawful in the situation he

confronted.” Id. at 202. Officials are presumed to have

knowledge of all developments in constitutional law at the time

- 22 -

the alleged violation occurred. Harris v. District of Columbia,

932 F.2d 10, 13 (D.C. Cir. 1991). Ignorance of the law is not a

defense, since a “‘reasonably competent public official should

know the law governing his conduct.’” Barham v. Ramsey, 338 F.

Supp. 2d 48, 55 (D.D.C. 2004) (quoting Harlow, 457 U.S. at 818-

19)). “[O]fficials can still be on notice that their conduct

violates established law even in novel factual circumstances.”

Hope v. Pelzer, 536 U.S. 730, 741 (2002). Accordingly, an

official may have fair warning that his conduct deprived the

victim of a constitutional right even if there existed at the

time no case with materially similar facts. Id. at 739.

However, if an officer makes a reasonable mistake as to the

conduct required by the law under the circumstances, the officer

may be entitled to qualified immunity. Saucier, 533 U.S. at 205.

Qualified immunity is not merely a defense to liability; it

immunizes the defendant from being sued at all. Pearson, 555

U.S. at 231; see also Harris, 932 F.2d at 13 (“Qualified immunity

shields government officials performing discretionary functions

from damages stemming from certain allegedly unconstitutional

conduct in order that they not be unduly inhibited in or diverted

from the exercise of their duties by fears of personal monetary

liability and harassing litigation.”). Although qualified

immunity is typically pled by an official as an affirmative

defense, see Harlow, 457 U.S. at 815, whether a defendant is

- 23 -

protected by qualified immunity should be resolved at the

earliest stage possible so that the “costs and expenses of trial

are avoided where the defense is dispositive.” Saucier, 533 U.S.

at 200-01. Thus, a defendant may raise the defense in a motion

to dismiss. See Behrens v. Pelletier, 516 U.S. 299, 306 (1996)

(noting that a defendant who successfully pleads “‘qualified

immunity is entitled to dismissal before the commencement of

discovery.’” (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985))); Ennis v. Lott, 589 F. Supp. 2d 33, 36-37 (D.D.C. 2008)

(stating that “the plaintiff must overcome the qualified immunity

defense in order to survive a Rule 12(b)(6) motion to dismiss”).

The qualified immunity determination is a question of law,

Mitchell, 472 U.S. at 528, and the trial court has an independent

obligation to survey the relevant law to determine whether a

constitutional right was violated and whether that right was

clearly established. Thus, although McDonald cites no case law

in opposition to the defendant’s assertion of qualified immunity

(see Pl.’s Opp’n at 6 (stating only that “Mr. McDonald alleged

that armed police officers held him in a room against his will

and searched his person without probable cause. This is a

violation of a clearly established right.”)), inadequate briefing

by the plaintiff is not a proper basis for concluding that the

defendant is entitled to immunity. See generally Elder v.

Holloway, 510 U.S. 510 (1994) (holding that qualified immunity

- 24 -

determination should be conducted in light of all relevant

precedents). Because the plaintiff casts the right allegedly

violated in general terms, it is “difficult to decide whether

[the] right is clearly established without deciding precisely

what the existing constitutional right happens to be.” Pearson,

555 U.S. at 236 (quoting Lyons v. Xenia, 417 F.3d 565, 581 (6th

Cir. 2005) (Sutton, J., concurring)). Both prongs therefore will

be discussed in making the qualified immunity determination.

1. Violation of a constitutional right

The standard for evaluating the constitutionality of the

defendants’ seizure and search of McDonald depends on the purpose

of defendants’ conduct. Where a police department searches or

seizes one of its officers for the purpose of criminal

investigation, the Constitution requires the intrusion to have a

basis in probable cause. “Policemen, like teachers and lawyers,

are not relegated to a watered-down version of constitutional

rights.” Garrity v. New Jersey, 385 U.S. 493, 500 (1967). The

probable cause requirement protects the heightened liberty

interest that criminal investigations implicate, and that liberty

interest is not diminished by an employment relationship between

the government and the subject of a search or seizure. See

Driebel v. City of Milwaukee, 298 F.3d 622, 640 (7th Cir. 2002)

(holding that “a law enforcement agency needs probable cause to

seize its employees as part of a criminal investigation”);

- 25 -

Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001) (holding that

police officer’s “seizure and custodial interrogation for the

purpose of a criminal investigation required probable cause”);

United States v. Taketa, 923 F.2d 665, 675 (9th Cir. 1991)

(holding that law enforcement agency “cannot cloak itself in its

public employer robes in order to avoid the probable cause

requirement when it is acquiring evidence for a criminal

prosecution.”).

The lower standard of reasonable suspicion applies when the

government seizes or searches an employee as part of an internal,

administrative investigation. See O’Connor v. Ortega, 480 U.S.

709, 725-26 (1987) (plurality opinion) (holding that “public

employer intrusions on the constitutionally protected privacy

interests of government employees for noninvestigatory, work-

related purposes, as well as for investigations of work-related

misconduct, should be judged by the standard of reasonableness

under all the circumstances.”). The government’s operation of a

police force is akin to “its supervision of probationers or

regulated industries, or its operation of a government office,

school, or prison” in that it “presents special needs beyond

normal law enforcement that may justify departures from the usual

warrant and probable-cause requirements.” Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989) (internal

quotations omitted). A basis in individualized suspicion is a

- 26 -

key indicator of the reasonableness of a search or seizure for

internal investigative purposes in the workplace. The D.C.

Circuit has emphasized that “individualized suspicion goes far

toward making a search reasonable where the government [as

employer] has a legitimate interest in confirming the alleged

violation.” Nat’l Treasury Empls. Union v. Yeutter, 918 F.2d

968, 975 (D.C. Cir. 1990); see also Cerrone, 246 F.3d at 201

(holding that while probable cause is required for criminal

investigation, “lesser standard of individualized suspicion is

permissible . . . in internal disciplinary investigations of

government employees by their government employers.”).

The determination as to whether McDonald was seized and

searched as part of an administrative or a criminal investigation

must assess the full context of the encounter. Guidance from the

Seventh Circuit proves instructive in this regard:

The determination of whether an officer has been seized

for the purpose of a criminal or an administrative

investigation should focus on the totality of the

circumstances, including: (1) the nature of the

encounter, its setting, and its preparation; (2)

whether the police department followed the applicable

collective bargaining agreement’s provisions for

administrative investigations; and (3) the statements

made by the questioning detectives. Driebel, 298 F.3d

at 640 n.9 (2002) (citing Cerrone, 246 F.3d at 201).

Here, the nature of the encounter was a “meeting,” at which

McDonald “belie[ved] that he would be disciplined.” (Am. Compl.

¶ 7.) In the absence of any additional allegations, the setting

and preparation of the encounter do not support an inference that

- 27 -

McDonald believed he would be subject to a criminal

investigation. Further, defendant Beck honored McDonald’s

request for Union representation and summoned a Union

representative to the location. (Id. ¶ 8.) Finally, after

defendant Beck blocked McDonald from departing at the conclusion

of the meeting, Beck’s alleged questioning and commands related

solely to Beck’s suspicions about the tape recorder in McDonald’s

pocket (id. ¶¶ 7-9), and did not concern criminal charges. To

determine whether the reasonableness or probable cause standard

applies, “the crucial question is . . . whether the

investigation’s objective is to discipline the officer within the

department or to seek criminal prosecution.” Cerrone, 246 F.3d

at 200. The defendants’ alleged conduct here reflects the aim of

disciplining McDonald.

McDonald, however, arguing in opposition to the defendants’

motion to dismiss, characterizes the seizure as an “arrest”

(Pl.’s Opp’n at 8), a term that generally implies a seizure for

the purpose of a criminal charge or investigation. While a court

views the facts alleged in the light most favorable to the

plaintiff, a court is not obliged to accept a conclusory legal

characterization in the course of subsequent briefing as correct.

Moreover, McDonald himself asserted in his opposition that

“[t]here was no criminal investigation because Mr. McDonald was

never suspected of any crime.” (Id.) In addition, the encounter

- 28 -

was not transformed into a criminal investigation just because

there is a question about the legality of one party to an oral

communication recording that communication without the consent of

the other party. See Myers v. Baca, 325 F. Supp. 2d 1095, 1108

n.6 (C.D. Cal. 2004) (reasoning that “whether the conduct at

issue could be criminal is not relevant, but instead, if the

central purpose of the investigation is to collect information

for possible criminal prosecution, then and only then is the

probable cause standard relevant.”) (emphasis in original). For

the same reason, the defendants’ suggestion that probable cause

existed to arrest McDonald for making false statements because he

lied about having a tape recorder (Defs.’ Mem. at 29-30) is of no

moment.

Because the facts support the conclusion that the defendants

seized McDonald as part of an administrative, not a criminal,

investigation, the reasonableness standard applies. To pass

constitutional muster, “both the inception and the scope of the

intrusion must be reasonable.” O’Connor, 480 U.S. at 726 (citing

Terry v. Ohio, 392 U.S. 1, 20 (1968); New Jersey v. T.L.O., 469

U.S. 325, 341 (1985)). The O’Connor plurality reasoned that a

search of an employee’s office would be “‘justified at its

inception’ when there are reasonable grounds for suspecting that

the search will turn up evidence that the employee is guilty of

work-related misconduct,” and “permissible in its scope when ‘the

- 29 -

measures adopted are reasonably related to the objectives of the

search and not excessively intrusive in light of . . . the nature

of the [misconduct].’” Id. (quoting New Jersey v. T.L.O., 469

U.S. at 342). The analysis therefore proceeds in light of the

established principle that “[t]he manner in which the seizure and

search were conducted is . . . as vital a part of the inquiry as

whether they were warranted at all.” Terry, 392 U.S. at 28.

Here, McDonald was “seized” within the meaning of the Fourth

Amendment when defendant Beck “physically blocked his office

door,” and ordered McDonald to hand over the tape recorder. (Am.

Compl. ¶ 7.) “[A] person has been ‘seized’ within the meaning of

the Fourth Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States v. Mendenhall, 446

U.S. 544, 554 (1980). The “free to leave” inquiry is distinct in

an employment situation because “when people are at work their

freedom to move about has been meaningfully restricted . . . by

the workers’ voluntary obligations to their employers.” INS v.

Delgado, 466 U.S. 210, 218 (1984). To effect a seizure in the

employment context, a government agent must, “by means of

physical force or show of authority,” Florida v. Bostick, 501

U.S. 429, 434 (1991) (quoting Terry, 392 U.S. at 19 n.16 ),

constrain an employee’s liberty in a manner beyond the normal

incidents of the employment relationship. The fact that McDonald

- 30 -

was physically prevented from leaving is a clear step beyond the

ordinary limitation on an employee’s movements that arises due to

a voluntary choice to carry out the duties of a certain job.

Defendant Beck had grounds for reasonable, individualized

suspicion for initiating the seizure of McDonald. McDonald

alleged that he “took a tape recorder with him” to his meeting

with Beck. (Am. Compl. ¶ 7.) When Beck saw the flashing red

light in McDonald’s shirt pocket and suspected that McDonald had

surreptitiously tape recorded their official meeting, McDonald’s

failure to hand over the object in his pocket as ordered and

denial that the object was a tape recorder, reflected

insubordination and suggested a lack of candor that in the

context of the strict hierarchy of a police force can be

characterized as work-related misconduct. “A police department

is a paramilitary organization that must maintain the highest

degree of discipline, confidentiality, efficiency, and espirit de

corps among its officers[.]” Driebel, 298 F.3d at 638. Police

officers occupy positions of public trust, and police departments

have a legitimate interest in closely supervising their employees

and investigating work-related misconduct. See id. at 648 (“Law

enforcement agencies are entitled to deference, within reason, in

the execution of policies and administrative practices that are

designed to preserve and maintain security, confidentiality,

internal order, and esprit de corps among their employees.”).

- 31 -

Smith’s proposed removal of McDonald was expressly “based on

charges of lack of candor and failure to follow instructions.”

(Am. Compl. ¶ 11.) The Notice of Proposed Removal explained that

“being untruthful is a grave form of misconduct by a Police

Officer.” (Notice at 6.) Defendant Beck had “reasonable grounds

for suspecting” that seizing McDonald would “turn up evidence

that the employee [was] guilty of work-related misconduct.”

O’Connor, 480 U.S. at 726. Blocking the door, at least

temporarily, and ordering McDonald to hand over the object in his

pocket, were limited intrusions on McDonald’s privacy designed to

reveal evidence confirming McDonald’s failure to be forthright.

However, whether the seizure remained reasonable in scope is

a closer question. Following McDonald’s refusal to comply with

Beck’s order, Beck allegedly “summoned other officers to the

room” and “instructed [them] that they were not to allow

Mr. McDonald to leave the room.” (Am. Compl. ¶ 7.) One of the

assembled officers told McDonald that they “would strip search

him if they had to.” (Id.) In the course of the seizure,

McDonald was not strip searched, but subjected to a search of his

person. He was ordered to remove his jacket, his gun belt, and

his boots. One of the officers conducted a physical search of

McDonald. McDonald was then ordered to remove the contents of

his pockets and socks, at which point McDonald produced the tape

recorder. (Id. ¶ 9.)

- 32 -

Despite the initial justification for seizing McDonald,

defendants had a less compelling interest in prolonging the

seizure and conducting a search of McDonald’s person. It is

significant that the elements of misconduct identified in the

Notice of Proposed Removal, that is, lack of candor and failure

to follow a direct order, were established at the early stages of

the seizure, once McDonald denied that the object in his pocket

was a tape recorder but refused to comply with Beck’s repeated

order to turn it over. The defendants’ options in further

dealing with McDonald at that point were limited. The Notice,

for example, explains that “[i]f a subordinate officer does not

comply with [section 26], the superior officer shall submit a

written report of the circumstances.” (Id.)

The defendants’ actions went far beyond submitting a report

of the encounter. The amended complaint does not specifically

allege how long the encounter lasted, but the allegations,

including summoning additional officers and then a Union

representative, permit a reasonable inference that the encounter

was protracted. In addition, summoning additional officers, one

of whom subsequently threatened to strip search McDonald,

amplified the intrusiveness of the encounter. In this case, the

reasonableness of the seizure and search are intertwined. The

precedent concerning the reasonableness of searches in the

context of government employment has generally addressed searches

- 33 -

of an employee’s workspace. While a search of an employee’s

person is subject to the same analytical approach, the weight of

the privacy interests and the extent of the intrusion take on

different dimensions. A government employee possesses “an

expectation of privacy that society is prepared to consider

reasonable” in his person, United States v. Jacobsen, 466 U.S.

109, 113 (1984), whether on the job or off. To outweigh these

privacy interests, a government employer must have particularly

strong interests and, notwithstanding such interests, the search

must be reasonably proportionate to the suspected work-related

infraction. Here, where the suspected misconduct was

surreptitiously taping a meeting, defendants may not have had a

sufficiently weighty interest in prolonging their seizure in

order to conduct a physical search aimed at confirming whether

McDonald actually had a recording device.12

12

This assessment of the relative interests of Officer

McDonald and his employer relies on the fact that the misconduct

at issue involves using and failing to be forthright about a tape

recorder, and not any other object or contraband. The

allegations in the complaint do not give rise to a reasonable

inference that defendants were concerned that the object in

McDonald’s pocket was anything other than a tape recorder, and

defendants concede as much in their motion to dismiss. See

Defs.’ Mem. at 26 (“Analyzed from the view of a reasonable law

enforcement officer, Plaintiff’s Lieutenant would have believed

that Plaintiff possessed a tape recorder, had taped an official

meeting without receiving permission, had refused to tender the

tape recorder when asked for it, and lied about the existence of

the device.”).

- 34 -

Ultimately, however, it is unnecessary to find definitively

whether the defendants’ seizure was “excessively intrusive in

light of . . . the nature of the [misconduct],” O’Connor, 480

U.S. at 726, so as to violate McDonald’s constitutional rights

because the applicable case law does not clearly establish the

rights allegedly violated. See, e.g., Mena v. City of Simi

Valley, 332 F.3d 1255, 1266 (9th Cir. 2003) (the “analysis used

to determine whether a plaintiff alleges a violation of a

constitutional right is instructive in determining whether that

right was clearly established”). McDonald’s constitutional

claims may therefore be resolved on the basis of the second prong

of the qualified immunity inquiry.

2. Whether the right was clearly established

Defendants are charged with knowledge of clearly established

principles governing their conduct toward McDonald. But the fact

that several cases have established clearly that a government

employer may intrude on an employee’s privacy where there is a

basis in reasonable suspicion and the government action is not

excessively intrusive in relation to the suspected misconduct

does not, by itself, suffice in order to find that “no reasonable

officer could have believed in the lawfulness,” Wardlaw v.

Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993), of the defendants’

actions here. “The concern of the immunity inquiry is to

acknowledge that reasonable mistakes can be made as to the legal

- 35 -

constraints on particular police conduct.” Saucier, 533 U.S. at

205.

In determining whether a right is clearly established, this

court “looks to cases from the Supreme Court, the D.C. Circuit,

and other courts for principles ‘exhibiting a consensus view.’”

Dormu v. District of Columbia, 795 F. Supp. 2d 7, 23 (D.D.C.

2011) (quoting Johnson v. District of Columbia, 528 F.3d 969, 976

(D.C. Cir. 2008)). The precedent assessing the reasonableness of

searches and seizures in the context of government employment has

addressed factual situations that do not provide readily

applicable guidance for the defendants’ search and seizure of

McDonald. See, e.g., O’Connor, 480 U.S. at 726 (search of

employee’s office); Stewart v. Evans, 351 F.3d 1239, 1243-44

(D.C. Cir. 2003) (search of safe to which employee had access);

see also Skinner, 489 U.S. at 624-633 (search of employees by

means of mandatory drug testing of employees’ blood, urine, and

breath); Nat’l Treasury Empls. Union, 918 F.2d at 973-75 (random

urinalysis drug testing of employees). One court confronting the

Fourth Amendment rights of police officers in an administrative

context recognized the unique aspects of the law enforcement

context which can make direct application of precedent difficult.

See Myers, 325 F. Supp. 2d at 1114. The court noted that “the

vast majority of cases involving seizures of persons stem from

criminal investigations,” id., and that “[t]he few cases that

- 36 -

discuss non-criminal internal investigations of police officers

often still have significant criminal overtones.” Id. (citing

Biehunik v. Felicetta, 441 F.2d 228, 229 (2d Cir. 1971), in which

the officers suspected of misconduct were informed of the

possibility of resulting criminal prosecution). In addition,

“[t]hose cases relating to workplace searches, see, e.g.,

O'Connor, by non-law enforcement public entities are again

patently distinguishable both because the persons performing the

search are not doing so having authority as peace officers nor

were the persons aggrieved seized for extended periods of time.”

Id. The landscape has not notably improved since the court made

those observations. The D.C. Circuit has provided guidance on

whether a seizure has occurred, see, e.g., Feirson v. District of

Columbia, 506 F.3d 1063, 1067-68 (D.C. Cir. 2007) (holding that

police officer was not seized when physically attacked by police

department personnel as part of training), but little in the way

of whether a seizure for the purpose of investigating work-

related misconduct was reasonable.13

13

The Myers decision itself is not enough to put defendants

on notice that their conduct was more intrusive than necessary.

In Myers, instructors at the Los Angeles County Sheriff’s

Department Academy ordered trainees suspected of cheating to

remain in a room, informed the trainees that they planned to

monitor and videotape them, and prohibited them from

communicating with anyone else. Myers, 325 F. Supp. 2d at 1100.

The court determined that the instructors had seized the

trainees, since a reasonable person under the circumstances would

not have felt free to ignore the police presence and go about his

business, and balanced the nature of the intrusion on the

- 37 -

Here, it does not appear that “[t]he contours” of McDonald’s

right “[were] sufficiently clear that a reasonable official would

[have] underst[ood] that what he [was] doing violate[d] that

right.” Anderson, 483 U.S. at 640. It was not so clearly

unreasonable here for the defendants to believe that their

interest in obtaining further confirmation of McDonald’s lack of

candor and failure to follow orders was sufficiently strong so as

to outweigh McDonald’s privacy interest in being free from a

protracted seizure and physical search of his person. The mere

fact that the reasonableness standard involves a context-specific

balancing test rather than a bright-line rule does not mean that

a government employer can never be expected to accurately

apprehend the weight of the respective interests such that the

employer can be considered on notice of the permissible scope of

a search or seizure. In this case, however, the uniqueness of

trainees against the instructors’ interest in preventing the

trainees from coordinating their stories to avoid discipline.

The court held that the seizure was unreasonable because it was

more intrusive than necessary, yet concluded that the instructors

were entitled to qualified immunity because it would not have

been clear to a reasonable officer that the seizure of the

trainees was unreasonable, given the state of the law in the

Ninth Circuit at the time of the incident. Id. at 1111, 1116.

Even if the Myers decision did provide guidance detailed enough

to have aided defendants in calibrating the intrusiveness of

their seizure and search of McDonald, a district court opinion

from a different circuit is not sufficient evidence of a

“consensus view,” Johnson, 528 F.3d at 976, on the matter from

other circuits.

- 38 -

the law enforcement employment context and the lack of clear case

law preclude such an expectation.

In sum, the case law has not established with clarity

sufficient to direct defendants’ actions either the attributes of

reasonable seizures of a police officer or of reasonable searches

of an officer’s person for investigations of workplace

misconduct. Law enforcement officers, as other government

employers, must abide by the rule that seizures for the purposes

of investigating work-related misconduct must not be unduly

protracted in relation to the severity of the suspected

misconduct. Qualified immunity nonetheless protects the

defendants in this case because at the time McDonald’s seizure

took place, the case law had not sufficiently clearly established

the contours of McDonald’s right to be free from an unduly

protracted and intrusive seizure.

IV. HOSTILE WORK ENVIRONMENT AND RETALIATION CLAIMS

McDonald alleges that the defendants “violated [his] civil

rights” by creating “a hostile work environment[,]” and that they

“retaliated against him[.]” (Am. Compl. ¶ 23.) While plaintiffs

typically seek relief for discrimination claims of hostile work

environment and retaliation under Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e et seq., McDonald does not allege a claim

under Title VII, styling his claim instead as a “Due Process

- 39 -

violation in employment” for which he argues he is entitled to a

Bivens remedy.14 (Pl.’s Opp’n at 6.)

Like the CSRA and FECA, Title VII is a comprehensive

remedial scheme, and it “provides the exclusive judicial remedy

for claims of discrimination in federal employment.” Brown v.

GSA, 425 U.S. 820, 835 (1976). McDonald, citing Davis v.

Passman, 442 U.S. 228, 248 (1979), argues that the Supreme Court

has recognized a Bivens remedy for the violation of a plaintiff’s

Fifth Amendment due process right to be free from official

discrimination. (Pl.’s Opp’n at 5.) However, “Davis involved

employment in the office of a member of Congress in a position

outside of Title VII’s domain.” Kizas v. Webster, 707 F.2d 524,

542 (D.C. Cir. 1983). “[F]ederal employees may not bring suit

under the Constitution for employment discrimination that is

actionable under Title VII.” Ethnic Empls. of Library of Cong.

v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985). McDonald’s

allegations that Beck “treated [him] in a discriminatory and

hostile manner” (Am. Compl. ¶ 6), and that he has been “subjected

to a hostile work environment” (id. ¶ 23) at his workplace since

the day of the search are squarely within the purview of

14

Indeed, McDonald cannot state a claim under Title VII

because he did not plead that he exhausted his administrative

remedies before filing this suit. See Hines v. Bair, 594 F.

Supp. 2d 17, 22 (D.D.C. 2009) (“Before filing a Title VII suit, a

federal employee must timely pursue [his] administrative

remedies, following the requirements set forth in 29 C.F.R.

§ 1614.”).

- 40 -

Title VII. Because an alternative comprehensive scheme exists,

the claims will be dismissed. See Kittner v. Gates, 708 F. Supp.

2d 47, 54 (D.D.C. 2010) (dismissing Bivens count where

“Plaintiff’s constitutional claims . . . clearly do challenge the

same acts of harassment, discrimination, and retaliation . . .

for which Title VII provides the exclusive remedy.”).

CONCLUSION

McDonald has failed to state a Fifth Amendment due process

claim, the defendants are entitled to qualified immunity on his

Fourth Amendment claim, and the existence of a comprehensive

remedial scheme for allegations by federal employees of

employment discrimination precludes his hostile work environment

and retaliation claims. Thus, the defendants’ motion to dismiss

will be granted. A final Order accompanies this memorandum

opinion.

SIGNED this 23rd day of December, 2011.

/s/

RICHARD W. ROBERTS

United States District Judge