UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) MI CHAEL

TAB MAN, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-2203 ( PL F) ) FED ERAL

BU REAU OF ) I NVESTI GATI ON, et al. , ) ) Def endants. ) __________________________________________)

OPI NI ON This matter is befor e the Court on def endants’ motion to dismiss and on plaintiff’ s motion to amend his complaint. After c are ful consider ation of the pa rties’ pa pers, the attached exhibi ts, and the re levant statutes and c ase la w, the Court will gr ant def endants’ motion and will deny plaintiff’s motion as futile. 1

I . BA CKGROUND

Plaintiff Michael Ta

bman is a for

mer Spec ial Ag ent In Charg e of the Minneapolis Field Of fice of the F eder al B urea

u of Investig ation. See Complaint (“Compl.”) ¶ 2. In August 2006, Special Ag ent Har

ry Samit, whose work plaintiff ove rsaw, inf ormed the F BI

Offic e of Professional Responsibility (“O PR”) that plaintiff had r etaliated a g ainst Mr. Samit in response to

cer tain protec ted disclosures that Mr. Samit had made . See Compl. ¶ 12; Mot., S tatement of

The Court consider ed the f ollowing pa

pers in conne ction with this m otion: 1 Def endants’ Motion to Dismiss (“Mot.”), Plaintiff’s Opposition to Defe ndants’ Motion to Dismiss (“Opp.”) , Def

endants’ Re ply

(“Rep.” ), Plaintiff’s Motion for L eave of Court to File a n Amended Complaint and De fenda nts Response to Plainti ff’ s Motion for L eave of Court to File an Amende d Complaint.Fa cts (“D ef. F acts” ) ¶ 4. I n response to this allegation, FB IOPR opened an inve stigation. See Compl. ¶ 12; Def. F acts ¶ 4. O n J anuar y 2, 2007, the investig ation conclude d with a

rec ommendation that plaintiff be dismissed from F BI service . See Compl. ¶ 19; Def. F acts ¶ 5. Plaintiff retired f

rom the F BI

in March 2007. See Def . Fa cts ¶ 7. Plaintiff filed suit on Dece mber 19, 2008, naming a s defe ndants the F BI and F BI Deputy Direc tor J ohn Pist ole in his indivi dual ca pacity

. In this lawsuit he asserts thre e ca uses of 2 action. The first is for intentional infliction of emotional distress ag ainst the FB I , which plaintiff

asser ts under the F eder al Tort Claims Act (“ FTCA” ), 28 U.S.C. §§ 1346(b), 2671-2680. The second c ause of

action is ag ainst Mr. Pistol e and se eks money damag es for

alleg ed violations of plaintiff’s constitutional rig hts under B ivens v. Six Unknown Na med Ag ents, 403 U.S. 388 (1971). The third cause of ac tion is aga inst the FB Iand asse rts that the FB Ideprive d plaintiff of proce dural due proce ss in violation of the Fifth Amendment to the United States Constitution. Def endants have moved to dismiss all three cla ims on mul tiple gr ounds, including f or fa ilure to state a c laim and for la ck of subjec t matter jurisdiction.

I I . STANDARD OF REVI EW A. Motion to Dismiss Pursuant t o Rule 12( b) ( 1) Fe dera l courts ar e cour

ts of limit ed jurisdiction, with the ability to hear only case s entrusted to them by

a g rant of pow er c ontained in either the Constitut ion or in an ac t of Congr ess. See, e .g ., Be ethoven.c om L L C v. L ibraria n of Cong ress, 394 F .3d 939, 945 (D.C. Cir.

Plaintiff has since f

iled a re lated lawsuit involving the same ba sic fac ts which 2 names a s the defe ndant the United States De partment of Justice Offic e of the Inspector G ener al. See Ta bman v. Dep’ t of J ustice, Civil Action No. 09-0880. That lawsuit also is pendingbefor e this Court. 22005); Hunter v. D istrict of Columbia, 384 F. Supp. 2d 257, 259 (D.D.C. 2005). On a motion to dismiss for lac k of subject matter jurisdiction, the plaintiff bear s the burden of establishing that the Court has jurisdiction. See B rady Campaig n to Prevent Gun Violenc e v. Ashc roft, 339 F

. Supp. 2d 68, 72 (D.D.C. 2004). In deter mining whe ther to g rant a motion to di smiss for lack of subject matter jur isdiction, the Court must construe the complaint in the plaintiff’s fa vor and tre at all well-pled a lleg ations of fa ct as true . See Jerome Stevens Pharms., Inc. v. F DA, 402 F .3d 1249, 1253-54 (D.C. Cir. 2005). The Court need not ac cept unsupporte d infere nces or leg al conclusions ca st as fac tual alleg ations. See Primax R ecove ries, Inc. v. L ee, 260 F . Supp. 2d 43, 47 (D.D.C. 2003). U nder Rule 12( b)(1) , the Court may dispose of the motion on the basis of the complaint alone or

it may consider materials beyond the pleading s, “as it dee ms appropriate to resolve the question whether it has jurisdiction to hear the c ase.” Scolaro v. D.C. B oard of Elections and Ethics, 104 F . Supp. 2d 18, 22 (D.D.C. 2000).

B. Motion for Summary Judgm ent Pursuant to Rule 56 3 Summary judgme nt “should be re ndere d if the plea dings, the discovery and disclosure mate rials on file, a nd any aff idavits [ or dec larations] show that there is no ge nuine issue as to any

materia l fac t and that the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(c). See also Ander son v. L iberty L obby , Inc., 477 U.S. 242, 247-48 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 ( D.C. Cir. 2006). “A f act is ‘mate rial’ if a

dispute over it

The Court has c onverte d defe ndants’ motion to dism iss plaintiff’s claim under the 3 Due Proc ess Clause of the Fifth Ame ndment for f ailure to state a

claim into a motion for summary judgme nt pursuant to Rule 12(d) of the Fe dera l Rules of Civil Procedur e bec ause the defe ndants rely

on materia ls outside the pleading s in support of their motion and the Court has relied on some of

these mate rials in rea chingits decision. 3might af

fec t the outcome of a

suit under the g overninglaw; fa ctual disputes that ar e ‘irr eleva nt or

unnece ssary ’ do not aff

ect the summar

y judgme nt determination.” H olcomb v. Powell, 433 F.3d at 895 (quoting Ander son v. L iberty L obby , Inc., 477 U.S. at 248). A n issue is “g enuine” if the evidenc e is such that a r easona ble jury could re turn a ve rdict for the nonmoving pa

rty . See Ander son v. L iberty

L obby , I nc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. “[T] he evidenc e of the non-movant is to be believe d, and all justifiable infe renc es ar e to be dr awn in his favor .” Ande rson v. L iberty L obby , I nc., 477 U.S. at 255. See a lso Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849- 50 (D.C. Cir. 2006); Aka v. Washing ton Hospital Center, 156 F.3d 1284 ( D.C. Cir. 1998) (en ba nc); Washing ton Post Co. v. Dep’t of H ealth and H uman Service s, 865 F.2d 320, 325 (D .C. Cir. 1989). On a motion for summary judgme nt, the Court must “esche w makingcre dibilit y deter minations or weig hing the evidenc e.” Czekalski v. Peters, 475 F.3d 360, 363 ( D.C. Cir. 2007).

The nonmoving party ’s opposition, however, must consist of more than mere unsupported alleg ations or denials a nd must be supported by

aff idavits, declar ations or other competent e vidence , setting f orth specif

ic fa cts showing that there is a g enuine issue f or trial. F E D . R. C I V . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is re quired to provide e vidence that would permit a re asonable jury to find in her fa

vor. See L aning ham v. United States Navy , 813 F.2d 1236, 1242 ( D.C. Cir. 1987). I f the nonmovant’s e vidence is “mer ely colora ble” or “not sig nificantly

probative,” summary

judgme nt may

be g rante d. Ander son v. L iberty

L obby , I nc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. 372, 380 (2007) ( “Where the re cord taken as a whole could not lea d a rational trier of f act to find for

the non-moving party , there is ‘no g enuine issue f or trial.’” ) (quotingMatsushita Electric Industrial

4Co. v. Ze nith Radio Corp., 475 U.S. 574, 587 (1986)). To def eat a motion for summary judgme nt, a plaintiff must have more than “a scintilla of evidenc e to support his claims.” Fr eedma n v. MCITelec ommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).

I I I . DI SCUS SI ON A. Plaintiff ’s Due Process Claim Plaintiff alleg es that the F BI violated a liber

ty interest prote cted by

the Fif th Amendment guara

ntee of proce dural due proce ss in the way that it investigate d him and decide d to remove him fr om the FB I . See Compl. ¶¶ 41-46. He asser ts that he “wa s deprived of a liberty interest without a fa ir opportunity to affe ct the judg ment or re sult affe cting his employ ment and benef its at the FB I .” See id. ¶

42. Plaintiff asserts that the F BI ’s ac tions have “de prived a nd will continue to depr ive Plaintiff of opportunities of continued a ctivity in his chosen profe ssion of fede ral e mploy

ment.” Plaintiff continues, “ the FB Ihas stigmatiz ed Plaintiff and will continue to eff ectively publicly stigmatize his reputation and impar t a ‘status cha

ng e’ upon him that implicates and will continue to implicate his liberty interests.” See id. ¶ 45. Throug h these a lleg ations, plaintiff seeks to a ssert what is known as a due pr ocess “stig ma” c laim. See Holman v. Willi ams, 436 F. Supp. 2d 68, 79 (D.D .C. 2006). The Supreme Court, in Boar d of Reg ents v. Roth, sugg ested that a protec ted liberty

interest may

be violated wher e ther e is an a dverse employ ment action by

the g overnme nt and “a

stigma or other disability [] fore closed [the plaintiff’s] free dom to take adva ntag e of othe r employ

ment opportunities.” B d. of Reg ents v. Roth, 408 U.S. 564, 573 (1972). See also O’ Donnell v. B arr y , 148 F.3d 1126, 1140-41 (D.C. Cir. 1998). As the court of a ppeals ha s expl ained, “ [t ]he Const itution protects an

5individual’s ‘rig ht to follow a chosen tr ade or profe ssion’ without gove rnmental interf ere nce . . . . Gover nment action that has the eff ect of ‘ser iously

aff ecting , if not destroying’ a plaintiff’ s ability to pursue his chosen pr ofession . . . or ‘ substantially reduc ing the value of

his human capital,’ thus infring es a liber ty interest.” O ’Donne ll v. Bar ry , 148 F.3d at 1141 (internal citations omitt ed). B ased on pla intiff’s alleg ations, the Court will assume, without deciding , that defe ndants’ ac tions deprived plaintiff of a prote cted liber

ty interest. When the g overnme nt has infring ed upon a pe rson’s prote cted liber ty interest, the person ha s a due pr ocess r ight to notice a nd an opportunity

to refute the cha

rg es ag ainst him or her a nd to clear

his or her na

me. See Peter

B. v. CIA, 620 F. Supp. 2d 58, 71 (D .D.C. 2009) (citing Doe v. U.S. De p’t of Just ice, 753 F .2d 1092, 1102 (D.C. Cir. 1985)). In this case, the g overnme nt has proff

ere d evidenc e that plaintiff wa s aff orded just such a

n opportunity . When OPR completed its investigation of plaintiff, it provide d him with a letter deta iling the c harg es ag ainst him, the evidence supporting the m, and the re commendation that he be dismiss ed. See Mot., Ex A (letter

from OPR to plaintiff dated Jan. 2, 2007). At the conc lusion of the letter ther e

are six para g raphs e ntitled “Procedur al Protections.” See Ex . A. at 6-7. A s stated in the letter, plaintiff was pe rmitted to request a revie w of the material re lied upon by OPR; he and/or his attorney wer e per mitted to provide a written r esponse to the pr oposed ac tion, including re fer ence to documentar

y or other e x culpatory

evidenc e; and he was pe rmitted to request a n oral prese ntation of his positi on. See id. at 6-7. A ccor ding to de fenda nts, plaintiff did not avail himself of any

of these pr otections, choosinginstead to retire . See Mem. at 31. Plainti ff’ s opposition brief does not dispute defe ndants’ asse rtions that he did not pursue the pr ocess of fer ed

6to him, and the Court will treat this assertion as undisputed for the purpose of

this mot ion. 4 The proc ess offe red by

the FB I in its J anuar

y 2, 2007 letter to plaintiff wa s constitutionally

adequate. I t stated what the pr oposed ac tion was — to remove pla intiff — and provided the r easons f

or that proposa l in some detail. Plainti ff wa s offe red the opportunity to respond in a me aning ful way , either in wr iting or or ally , with evidence , and with the assistanc e of an attorne y . As the “e ssential require ments of due pr ocess . . . a re notice and an oppor

tunity to respond,” plaintiff has not bee n deprive d of his rig hts under the due proce ss clause. See Cleveland B oard of

Education v. L oudermill, 470 U.S. 532, 546 (1985). See a lso Tabb v. District of Columbia, 605 F. Supp. 2d 89, 97 (D.D.C. 2009). The Court will gra nt judgment f

or defe ndants on Count Three of plaintiff’s complaint, the pr ocedur al due pr ocess c laim.

“Rule 56 conta ins ‘no express or implied require ment’ that the movant ‘suppor t 4 its mot ion with affidavits or other simil ar materials neg ating the opponent’s c laim.’” Monca da v. Peters, 579 F . Supp. 2d 46, 50 (D.D.C. 2008) (quotingCelotex Corp. v. Catrett, 477 U.S. at 323). See also F E D . R. C I V . P. 56(a) , (b). As a result, when the nonmoving pa rty bear s the ultimate burden of proof at trial on a dispositive issue or issues, the moving pa rty may car ry its ini tial burden on summar

y judgme nt by

doing no mor e than “ pointing out to the district court . . . that there is an absenc e of e vidence to support the nonmoving pa rty ’s ca se” a

nd that it is entit led to judgme nt as a matter

of law. Celotex Corp. v. Catrett, 477 U.S. at 325; see 10A W R I G H T , M I L L E R & K

A N E , F E D E R A L P R A C T I C E A N D P R O C E D U R E : C I V I L 3D, § 2727 at 474 (1998) ; 11 M O O R E ’ S F E D E R A L P R A C T I C E § 56.13[1] at 56-138 (3d e d. 2002). Onc e the movingparty has done so, it has ca

rried its initial burden, and “ the burde n shifts to the nonmovant to demonstrate that there are g enuine issues of material fa ct in dispute requiringa trial.” Moncada v. Peters, 579 F. Supp. 2d at 51 (e mphasis in origina l). Unless the nonmovant then of fer s some competent evidenc e showingthat there is a g enuine issue a s to a materia l fac t, the Court will gra nt summary judgme nt for the movingparty . See W R I G H T , M I L L E R & K A N E , § 2727 at 486. 7B. Plaintiff ’s Claim for Intentional Infli ction of Emotional Distr ess Pursuant to the FTC

A The United States is immune from suit unless it waives its sovereig n immunit y throug h an ac t of Congr ess. See F .D.I .C. v. Mey er, 510 U .S. 471, 475 (1994). The F eder al Tort Claims Act provides such a waiver in civil damag es ac tions based on “injury or loss of prope rty , or per sonal injury

or death cause d by

the neg lige nt or wrong ful ac t or omission of any employ ee of the Gove rnment while a cting within the scope of his off ice or employ ment[.] ” 28 U.S.C. § 1346(b); see F.D.I .C. v. Mey er, 510 U .S. at 475 (FTCA w aived sove reig n immunit y of the United States for “ cer

tain torts committed by

fede ral e mploy ees” ). A wa iver of sove reign immunit y , howeve r, must be “strictly construed, in ter

ms of its scope, in favor

of the sover eig n.” Tri-State Hosp. Supply

Corp. v. United States, 341 F.3d 571, 575 ( D.C. Cir. 2003) (quoting Dep’ t of Army

v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)) . A par ty bring ing suit ag ainst the United States bea

rs the burde n of provingthat the g overnme nt has unequivoca lly waived its immunit y for the ty pe of c laim involved. See Tri-State H osp. Supply Corp. v. United States, 341 F.3d at 575. The burde n is on a party asser ting jurisdiction under

the FT CA to demonstrate that the claim asse rted is the kind per mitted by statute and that the c onduct g iving r ise to the ac tion

occur red w ithin the scope of the g overnme nt employ ee’ s employ ment. See 28 U.S.C. §§ 1346(b), 2680.

Def endants maintain that the United States has not waived sove reig n immunit y in this case be cause the ac ts challeng ed by plaintiff fa ll within t he discre tionary function exception to the FTCA, one of seve ral e x ceptions to the F TCA’s waive r of sove reign immunit y . See 28 U.S.C. § 2680(a). The FTCA pr ovides that the jurisdiction g iven to district courts under 28

8U.S.C. § 1346(b)(1) does not apply in case s where a cla im is: based upon a

n act or omission of an employ ee of the Gover

nment, exercising due ca

re, in the e x ecution of a

statute or re g ulation, whether or not such statute or r egulation be valid, or ba sed upon the exercise or

perf ormanc e or the failure to exercise or pe rfor m a discretionar

y function or duty

on the par

t of a fe dera l ag ency

or an employ ee of

the Gover

nment, whether

or not the discre tion involved be abuse d. 28 U.S.C. § 2680(a). See also Hayes v. United States, 539 F . Supp. 2d 393, 399-400 (D.D.C. 2008). As the Supre me Court explained in United States v. Gauber t, 499 U.S. 315, 324 (1991), the rationale behind the discr etionary function exception is that “when e stablished g overnme ntal policy , as expressed or

implied by

statute, regulation, or ag ency g uidelines, allows a Gove rnment ag ent to exercise discr etion, it mustbe pre sumed that the ag ent’s ac ts are grounded in policy when e x erc ising that discr etion.” “I n such ca ses, there is no waiver of sovere ign immunity

and the g overnme nt is protected f rom suit. By

contra st, if there is no discre tionary function involved, the United States has wa ived its sovereig n immunit y and the f eder al district courts have subject matter jurisdiction over the claim.” Ha y es v. United States, 539 F . Supp. at 400. The Supreme Court has established a two-par t test for dete rmining whether the g overnme nt conduct cha lleng ed by a plaintiff f

alls under the disc retionar y function exception. See United States v. Ga

ubert, 499 U.S. at 322-23 ( citing B erkovitz v. United States, 486 U.S. 531, 536-37 (1988) ). F irst, a cour t must l ook to the nature of the a ct and whe ther it involves an “ele ment of judg ment or choic e.” United States v. Gaube rt, 499 U.S. at 322 (quotingBe rkovitz v. United States, 486 U.S. at 536). The Court expl ained that whe n a “f eder al statute, re g ulation, or policy specific ally

presc ribes a c ourse of

action,” the re is no judg ment or choic e involved and the discre tionary

function exception there fore does not apply beca use “the employ ee ha s no 9rig htful option but t o adher e to the dire ctive.” United States v. Gaube rt, 499 U.S. at 322 (quoting

Be rkovitz v. Unit ed States, 486 U.S. at 536). Assumingthe conduc t at issue involves an ele ment of judg ment, the Court then must consider whe ther that judg ment is the kind of judgme nt that the discretionar

y function wa s desig ned to shield. See Ha y es v. United States, 539 F . Supp. at 400. “B eca use the purpose of the e x ception is to “pre vent judicial ‘sec ond-guessing ’ of leg islative and administrative dec isions grounde d in social, ec onomic, and political policy throug h the medium of an a ction in tort,” when pr operly construed, the exception “protec ts only g overnme ntal actions and dec isions based on consider ations of public policy .” United States v. Ga ubert, 499 U.S. at 323 (quoting Be rkovitz v. Unit ed States, 486 U.S. at 537).

The a cts that form the ba sis for this lawsuit are the FB I ’s investig ation of plaintiff and its subsequent propose d remova l of him from the F BI . In g ener al, per sonnel dec isions by a g overnme nt employ er a

re c onsidered disc retionar y under the FTCA a

nd there fore immune from judicial revie w. Gustave -Schmidt v. Chao, 226 F. Supp. 2d 191, 197 (D.D.C. 2002) ( quoting Be ebe v. WMATA, 129 F .3d 1283, 1287 (D.C. Cir. 1997) (“ [d] ecisions conc erning the hiring , training and super

vision [ of a sove reig n entity ’s] employ ees a re discr etionary

in nature, a

nd thus immune from judicial re view” unde r the F TCA). So too are ma ny decisions by

ag ency officia ls to investigate per sonnel — just as the dec ision to i nitiate a cr iminal prosecution has longbeen considere d a discre tionary function, “a g ency

officia ls perfor

ming c erta in functions analog ous to those of a pr osecutor” are not subject to suit under the discre tionary function exception to the FTCA. Sloan v. United States De p’t of Housingand Ur ban De velopment, 236 F.3d 756, 760 (D.C. Cir. 2001) (quotingButz v. Economou, 438 U.S. 478, 515 (1978)) . See also Gr ay v. Be ll 712 F.2d 490, 515- 16 (D.C. Cir. 1983).

10Plaintiff conce des that established c ase la w makes c lear

that decisions whethe r or not to init iate prose cution are discretionar y within the meaningof the F TCA’s discre tionary function exception, see O pp. at 8, but he notes that c erta in categ ories of pr osecutoria l misconduct may be “r emoved suff

iciently from the de cision to prosecute so that the discre tionary function clause would not provide any protec tion.” Gra

y v. Be ll, 712 F.2d at 515. Plaintiff ar gues that his

case is simi lar to the ty

pe of pr osecutoria l misconduct descr ibed in Gra y v. Be ll because in their investigation of him, “defe ndants brea ched a n aff irmative duty

to conduct themselve s in a

manner that is fair, impartial, a

nd aff ords the Plaintiff the prote ctions he is entitled to under the Constit ution.” Opp. at 8. This, he sa y s, amounted to non-discre tionary tortious conduct. See id. at 6. I n order

to succe ed under

Gra y , plaintiff “must alleg e that the de fenda nt ‘brea ched a duty sufficie ntly

separ able f

rom the dec ision-making f unction to be non-discr etionary and outside the exception.’” Gustave-Schmidt v. Chao, 226 F.2d at 199 (quoting Gray v. Be ll, 712 F.2d 515- 16). Plaintiff attempts to do so by arguing tha

t defe ndants violated standar ds for investigation established by three documents: (1) “ Quality Standards for

Investig ations” promulg ated by

the President’s Council on Integ rity and Eff iciency and Executive Council on I nteg rity and Eff iciency , Dec ember

2003; (2) “T he F eder al B urea u of Investig ation’s Compliance with the Attorney

Gene ral’s Investig ative Guidelines” published by the Depa rtment of Just ice’ s Offic e of the Inspector G ener al in September 2005; a nd (3) “ Gover

nment Auditing Standar ds,”

as ame nded in J anuar

y 2002, promulg ated by

the Gover

nment Acc ountability

Offic e. See O pp.

11at 12-13. Even a ssuming that any of these thr ee doc uments set forth binding require ments, the 5 only specific duty

set forth by

these doc uments that plaintiff asser ts defenda

nts violated is that the investig ation must be independe nt and unbiased. See Opp. at 13-14. 6

Where the inve stigator’s conduc t during an investig ation is “inext rica bly tied” to the over all discretionar

y decision to investigate and then pr osecute a plaintiff, suc h actions ar e included within the discre tionary function exception to FTCA jurisdiction. See Gustave -Schmidt v. Chao 226 F. Supp. 2d at 199. This conc lusion is t rue “ even if there was a

n ‘improper , tortious, and constitutionally

defe ctive manne r in which the inve stigation was ca rried [out].’” I d. (quoting Gra

y v. Be ll, 712 F.2d at 515-16) . See also Shuler v. United States, 531 F .3d 930, 935 (D.C. Cir. 2008) (“ the discre tionary function immuniz es eve n g overnme nt abuses of discr etion”). As in Gustave- Schmidt v. C hao, 226 F . Supp. 2d at 199, plaintiff’s alleg ations about the defic iencies of

the investig ation are inext rica bly intertwined with the outcome of the investigation and the discre tionary decision to propose his re moval. Plaintiff’s claim ag ainst the United States for intentional infliction of e motional dist ress ther efor e is barr ed by the discretionar

y function exception to the FTCA. The Court will dis miss C ount One for lack of

Plaintiff also argues that def endants violated nondiscr etionary proce dural rights 5 established by

the Fif th Amendment, but as discussed, supra at 5-7, the Court ha s g rante d judgme nt in defenda

nts’ favor on this claim. Plaintiff makes numerous othe r alleg ations about the def iciencie s of the 6 investigation but, with one ex ception, he doe s not tie them to the directives fr om any of these documents. Plaintiff does ar g ue that def endants’ se arc h of the Minnea polis Field Off

ice violated established dire ctives, see Opp. at 13, but the Court disagree s with plaintiff beca use as the defe ndants explain in t heir re ply brief the supposed direc tives are not mandatory . See Rep. at 11.

12subject matter jur isdiction. 7

C. Plainti ff’s Bivens Claim Plaintiff seeks money

damag es for

a constitutional tort — deprivation of proce dural due proce ss rig hts — from Mr. Pistole in his individual capac ity . See Compl. ¶ 36. See B ivens v. Six Unknown Na med Ag ents, 403 U.S. at 389. See a lso Correctional Ser vices Corp. v. Malesko, 534 U.S. 61, 66-68 (2001) ; Scinto v. Fed. B urea u of Prisons, 608 F. Supp. 2d 4, 8 (D.D.C. 2009). D efe ndants move to dismiss on t he g rounds that plaintiff neve r prope rly

serve d Mr. Pistol e and f

or fa ilure to state a B ivens claim. Rule 4(i)(3) of the F eder al Rules of Civil P roce dure pr ovides that to sue an of fice r or employ ee of

the United States in his or her individual ca pacity in connec tion with duti es perf ormed on the be half of the United States, a plaintiff must serve both the United States and the office r or e mploy ee as an individual . Fe d. R. Civ. P . 4(i)(3) . Rule 4(e) require s that an individual within a judicial dist rict of the United States may be ser ved by “(A ) deliver ing a

copy of the summons and the c omplaint to the indivi dual per sonally ; (B) leavinga copy of ea ch at the individual’s dwelling or

usual place of abode with someone of suitable a g e and disc retion who resides the re; or ( C) deliveringa copy of ea ch to an a g ent authorized by appointment or by

law to

rec eive se rvice of proc ess.” F E D . R. C I V . P. 4(e) . Plaintiff served Mr . Pist ole by sending a copy of the summons and complaint by cer tified mail to the FB Iheadqua rters in the D istrict of Columbi a whe re someone other than Mr . Pist ole sig ned for it. See Affidavit of Mailing, Dkt.

Be cause the Court has dete rmined that plaintiff’s c onstitut ional and tort 7 alleg ations will not go for war d, it need not re ach de fenda nts’ arguments that these cla ims are prec luded by

various other

fede ral statutes. 13No. 4 (May 15, 2009). Plaintiff does not dispute that this was the method by which he attempted to serve Mr . Pist ole. ServingMr. Pistol e by cer tified mail at his place of

business does not meet the re quirements of Rule 4( e). See J ackson v. Te lford, Civil Action No. 05-0504, 2006 U.S. Dist. L EXI S 62625 at *9 (D.D.C. Sept. 5, 2006) (c iting F E D . R. C I V . P. 4(e) ; L eichtman v. Koons, 527 A.2d 745, 747 (D.C. 1987))

.

Plaintiff reque sts that if the Court finds that service was inade quate, it g rant the plaintiff an e x tension of time to effe ct prope r ser vice. See Opp. at 24. Doingso in this case would be futile, howe ver, be cause the Court has alre ady found that plaintiff’s pr ocedur al due proce ss rig hts were not violated in this case. See supra at 5-7. Plaintiff’s a lleg ations ag ainst Mr. Pist ole ar e base d on the same a lleg ed depr ivation — plaintiff’s asser ted liberty

interest in not beingstigmatized by

the loss of his employ

ment. See Compl. ¶¶ 34-40. Plaintiff does not a ssert any alleg ations reg ardingMr. Pistol e’s c onduct to sug g est that he wa s deprived of any additional liberty or prope rty

interest or that raise a

differ ent theory

of his proce dural due proce ss claim. Havingalre ady

conclude d that judgme nt should be g rante d in favor of the FB Ion plaintiff’s proce dural due proce ss claim beca use plaintiff wa s offe red c onstitut ionally adequate proc ess, the Court would rea ch the same conc lusion with reg ard to plaintiff’ s alleg ations ag ainst Mr. Pistol e. There there fore is no reason to pe rmit plaintiff additional time to serve Mr. Pistole proper ly or to permit him to amend his complaint. The Court will dismi ss Count Two of plaintiff’s complaint. 8

Def endants a lso move to dismi ss Count One of the complaint, plaintiff’ s FTCA 8 claim, on the g round that plaintiff is re quired to sue the United States, not a fede ral a g ency , under the FT CA. See Mot., Memorandum in Support (“Me m.”) at 11. Plainti ff ha s moved to amend the complaint to substitut e the United States a s a def endant. B eca

use the Court finds that judgme nt should be g rante d ag ainst plaintiff on this claim on other g rounds, the Court will deny the motion as futile. See F E D . R. C I V . P. 15(a) (2). 14I V. CONCLUSI ON For the re asons stated a

bove, the Court will dismiss Counts One and Two of plaintiff’s complaint and w ill gra nt summary

judgme nt for the de fenda nts on Count Three of the complaint. An Orde r to ac company this Opinion wil l issue this same day

.

/s/_________________________ PAULL . FRI EDMAN United States District J udg e DATE: June 22, 2010

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