Baillargeon v. Drug Enforcement Admin.
| Decision Date | 23 July 2009 |
| Docket Number | C.A. No. 07-271 S. |
| Citation | 638 F.Supp.2d 235 |
| Parties | Brenda BAILLARGEON, Plaintiff, v. DRUG ENFORCEMENT ADMINISTRATION, Susan D. Ashcraft, in her individual capacity, The United States of America, John Doe II, in his individual capacity, and John Doe III, in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
Jeffrey D. Sowa, Esq., LaPlante Sowa Goldman, Providence, RI, for Plaintiff.
Richard B. Myrus, Esq., Assistant U.S. Attorney, United States Attorney's Office, Providence, RI, for Defendants.
This matter is before the Court on Plaintiff's Objection to the Report and Recommendation of Magistrate Judge Almond to dismiss her First Amended Complaint in its entirety. Plaintiff has brought a seven-count Complaint alleging that the United States Drug Enforcement Administration ("DEA") and its employees and agents violated her constitutional rights, as well as federal and state laws when their revocation of her security clearance resulted in the termination of her employment. For the reasons explained below, the Court accepts the Report and Recommendation ("R & R") as to Counts II, IV, V and VI, but rejects it as to Counts I and III. Count VII is also dismissed for the reasons stated herein.
In October 2004, Plaintiff was hired to work as an Asset Forfeiture Specialist for Forfeiture Support Associates ("FSA"), a private Virginia-based company contracted to perform services for the DEA. Plaintiff was assigned to the company's Warwick, Rhode Island field office. A condition for her employment was a government security clearance, which she received from the DEA. This clearance authorized her access to sensitive but unclassified materials. In February 2005, Plaintiff's security clearance was revoked at the request of the DEA, and she was then terminated by her employer.1 Plaintiff states that she "was provided no notice as to the basis of the decision nor offered an opportunity to be heard regarding the merits of the revocation of her Security Clearance." (First Am. Compl. ¶ 20.) FSA did not offer her any alternative employment, and she was unable to find other work in her field. According to Plaintiff, she was forced to leave the asset forfeiture profession and now works as a paralegal.
Defendants' motion to dismiss is a dispositive one, and, consequently, Magistrate Judge Almond's R & R will be reviewed de novo by this Court, as provided by Fed. R.Civ.P. 72(b)(3). In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court must accept as true the allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). The United States Supreme Court, in abrogating the frequently-cited formulation in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), restated the proper pleading standard as follows: "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
More recently, in Ashcroft v. Iqbal, ___ U.S. ____ 129 S.Ct. 1937 (2009), the Court further refined the standard, explaining that, while a court must accept the plaintiff's version of the facts as long as those facts are plausible, it need not accept as true formulaic legal conclusions set forth in the complaint. Id. at 1949.
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Magistrate Judge Almond recommends the dismissal of Counts II, IV, V and VI. This Court adopts the R & R as to the dismissal of these Counts, and concurs with the rationale for their dismissal as set forth therein.
In Count II, Plaintiff alleges that Defendant DEA deprived her of her right to due process under the Fifth Amendment of the United States Constitution by violating its own rules and regulations when it revoked her security clearance without: 1) providing her with the details and circumstances of any complaints about her performance; 2) affording her an opportunity to rebut any allegations; and 3) affording her any opportunity to be heard before or after the revocation.
Plaintiff has failed to cite any regulation, rule, statute or procedure which she alleges the DEA has violated. As Judge Almond notes, "Even under the liberal standards of notice pleading, such conjecture is not sufficient to survive a properly supported Rule 12(b)(6) motion." (R & R 8.) The Court agrees with this conclusion. It is not the responsibility of the Court to fill in the blanks for Plaintiff. As the First Circuit has held: United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988)).
In this Count, Plaintiff again claims that unspecified DEA regulations were violated by Defendant Susan Ashcraft, Chief of the Asset Forfeiture Section of the DEA, and by the two John Doe Defendants, who are employees or agents of the DEA. Judge Almond recommends the dismissal of this Count based on the same reasoning as applied to Count II, and the Court agrees.
This Count asserts a Rhode Island common law claim for the intentional infliction of emotional distress, against all Defendants: the DEA, the United States, and the three DEA employees/agents in their individual capacities. Plaintiff alleges that their extreme and outrageous conduct caused her mental anguish accompanied by physical manifestations.
Judge Almond recommends dismissal of this Count on its merits because it fails to meet the test established by the Rhode Island Supreme Court that "the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Hoffman v. Davenport-Metcalf, 851 A.2d 1083, 1090 (R.I.2004) (internal quotation and citation omitted). This recommendation is proper.
Moreover, in her Objection to the Report and Recommendation, Plaintiff does not address this Count, which provides an additional basis for its dismissal. See Fed. R.Civ.P. 72(b)(3); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
Count VI is another Rhode Island common law claim, against all Defendants, for negligent infliction of emotional distress. Plaintiff alleges that all Defendants negligently failed to investigate the complaints against her at work and negligently revoked her security clearance, with resulting mental anguish and physical manifestations. Judge Almond properly recommends dismissal of this Count because it fails to state a prima facie cause of action under Rhode Island law, as set forth in Marchetti v. Parsons, 638 A.2d 1047, 1052 (R.I.1994), which requires, inter alia, that the claimant be a close relative of an accident victim and be present at the accident.
As with Count V, Plaintiff made no objection to Judge Almond's recommended dismissal, providing an additional basis for the dismissal of Count VI.
In her final state law claim for tortious interference with contractual relations, Plaintiff alleges that she had an employment contract with FSA, and that Ashcraft and the two John Doe Defendants caused FSA to terminate the contract when they revoked her security clearance. This Count appears to have been abandoned by Plaintiff who failed to address it in her Opposition to Defendants' Motion to Dismiss. Count VII is not specifically addressed in the R & R, which recommends the dismissal of Plaintiff's Complaint in its entirety. As with Counts V and VI, Plaintiff neglected to mention it in her objection to the R & R. Consequently, this Count is dismissed. Fed.R.Civ.P. 72(b)(3); Park Motor Mart, 616 F.2d at 605.
The Court parts company with the recommendations contained in the R & R as to Counts I and III. The Court believes, for the reasons explained below, that these Counts set forth allegations sufficient to support a colorable constitutional claim, at least sufficient to survive a 12(b)(6) motion, that Plaintiff was deprived of her Fifth Amendment right to due process when the DEA summarily revoked her security clearance.
In this Count, Plaintiff alleges the DEA violated her constitutional right to procedural due process in revoking her security clearance. Plaintiff identifies two constitutionally-protected interests: 1) her right to follow her chosen profession, and 2) her right to her good name and reputation; both of which she claims were taken with no procedural protections afforded either before or after. Plaintiff seeks punitive damages, compensatory damages and equitable relief, including a hearing.
Plaintiff argues that the DEA's revocation of her security clearance, without notice or hearing, effectively deprived her of her right to earn a living in her chosen profession. Established case law clearly identifies the right to follow one's chosen profession as a constitutionally-protected liberty interest. Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). However, a substantial body of case...
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