Freeman v. Fallin

Decision Date24 March 2003
Docket NumberCivil Action No. 02-0386 (RMU).
Citation254 F.Supp.2d 52
PartiesStephen D. FREEMAN, Lorraine A. Fairchild, Plaintiffs, Allen P. FALLIN et al., Defendants.
CourtU.S. District Court — District of Columbia

Stephen Freeman, Lorraine A. Fairchild, Norco, CA, for pro se, plaintiff.

Rolando N. Valdez, Gail A. Perry, Rolando N. Valdez, Washington, DC, for defendants.

MEMORANDUM OPINION

URBINA, District Judge.

DENYING THE DEFENDANTS' MOTION TO DISMISS
I. INTRODUCTION

This Bivens1 action comes before the court on the defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), (3), (4) and (6). The pro se plaintiffs, Stephen Freeman and Lorraine Fairchild ("the plaintiffs"), are former criminal investigators with the Office of the Inspector General ("OIG") of the United States Environmental Protection Agency ("EPA"). The defendants, who are sued in their individual capacities, are former OIG Assistant Inspector General for Investigations Allan Fallin, OIG Deputy Assistant Inspector General for Investigations Emmett Dashiell Jr., OIG Assistant Inspector General for Management John Jones, OIG Counsel to the Inspector General Mark Bialek, and Department of Defense Criminal Investigator Arthur Hymons. The plaintiffs' complaint alleges that these officials (collectively, "the defendants") manipulated EPA's random drugtesting procedures to target the plaintiffs for testing, thereby violating their Fourth Amendment right to freedom from unreasonable search and seizure. In response, the defendants filed a motion to dismiss for lack of subject-matter jurisdiction, improper venue, insufficient service of process, and failure to state a claim on which relief may be granted. For the following reasons, the court denies the defendants' motion to dismiss.

II. BACKGROUND
A. Factual Background

From 1999 to 2000, both plaintiffs worked as criminal investigators for OIG, with plaintiff Freeman assigned to the San Francisco office and plaintiff Fairchild working in the District of Columbia office. Compl. 11113-4, 10-11. As criminal investigators engaged in law enforcement and authorized to carry firearms, both plaintiffs were subject to random drug urinalysis testing by OIG, their employer. Defs.' Mot. to Dismiss ("Defs.' Mot.") at 9-10.

According to the plaintiffs, at some time during fall 1999 and winter 2000, then-Assistant Inspector General ("AIG") for Investigations Fallin and Deputy Assistant Inspector General for Investigations Dashiell received what the plaintiffs describe as frivolous and unsubstantiated allegations concerning the plaintiffs' off-duty drug use. Compl. ¶¶ 12-13. The plaintiffs assert that AIG Fallin and Deputy AIG Dashiell then conferred with AIG for Management Jones, the coordinator for agency drug testing, to design a "random" drug test that would include the plaintiffs. Id. 1115. Instead of following EPA policy by drawing a random sampling based on a neutral criterion (such as social security numbers), AIG Fallin allegedly chose last names beginning with the letter F, thereby ensuring that the plaintiffs would be among those tested. Id. 11115-17.

On February 28, 2000, Ms. Fairchild received notice that in accordance with EPA's drug testing policy, she had been selected for random drug urinalysis testing. Id. 1118. The plaintiffs state that although Ms. Fairchild reported to the testing facility, she attempted to evade the test due to concerns about her privacy regarding her prescribed medications. Id. According to the plaintiffs, her efforts were successful: the lab technician did not witness her provision of the sample, and thus had to destroy her sample. Id. The plaintiffs contend that unbeknownst to Ms. Fairchild, her efforts to evade the test were reported to AIG Fallin, Deputy AIG Dashiell, and AIG Jones. Id.

According to the plaintiffs, AIG Dashiell subsequently took the unusual step of asking Investigator Hymons, a personal friend, to conduct the investigation. Id. 1119. On March 8, 2000, Investigator Hymons interviewed Ms. Fairchild's former boyfriend, who provided a "complicated and implausible story" regarding wiretaps implicating Ms. Fairchild in drug use. Id. 121. The following day, at a meeting between Investigator Hymons, AIG Jones, and OIG Counsel Bialek, AIG Jones indicated that both plaintiffs were scheduled to undergo testing in the next few days, and OIG Counsel Bialek asked Investigator Hymons to "present this matter" to the U.S. Attorney. Id. ¶¶ 22-23. On March 10, 2000, Investigator Hymons allegedly briefed an assistant U.S. attorney ("AUSA") for the Southern District of Maryland on the allegations against the plaintiffs, and the AUSA indicated that he would make a decision regarding prosecution once the test results were available. Id. f 25

During the next two weeks, both plaintiffs underwent urinalysis testing. In San Francisco, Mr. Freeman provided a sample without incident on March 13, 2000. Id. H 27. In the District of Columbia, Ms. Fairchild reported twice for testing, failing to provide a sufficient sample on March 9, 2000, but providing a sufficient sample on March 20, 2000. Id. 1124. According to the plaintiffs, at some date between the two tests, Ms. Fairchild was relieved of her badge, weapon, credentials, and OIG access, and ordered to report to EPA headquarters for an indefinite period. Id. 126.

On March 20 and 24, respectively, AIG Jones allegedly informed Investigator Hymons that test results for Mr. Freeman and Ms. Fairchild were negative. Id. ¶ ¶ 29, 32. The plaintiffs assert that Investigator Hymons then reported the results to the AUSA, who indicated that he would not go forward with prosecution. Id. 1133.

B. Procedural History

On February 28, 2002, the plaintiffs filed a complaint alleging that the defendants violated the plaintiffs' Fourth Amendment rights and requesting $5 million in compensatory and punitive damages. On July 1, 2002, the defendants moved to dismiss for lack of subject-matter jurisdiction, improper venue, insufficient service of process, and failure to state a claim on which relief may be granted.

On October 24, 2002, the court issued a memorandum opinion granting the pro se plaintiffs a brief extension of time to perfect service upon defendants Jones, Bialek, and Fallin. Mem. Op. dated Oct. 24, 2002. Since then, the plaintiffs have perfected service on all plaintiffs. Pls.'s Resp. to Mem. Op. The court now considers the remaining issues of lack of subject-matter jurisdiction, improper venue, and failure to state a claim.

III. ANALYSIS
A. The Court Denies the Defendants' Motion to Dismiss For Lack of Subject-Matter Jurisdiction
1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)

On a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Tremel v. Bierman & Geesing, L.L.C., 2003 WL 721911, at *2 (D.D.C. 2003); Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C.2002). In considering a motion to dismiss for lack of subject-matter jurisdiction, the court should accept as true all of the factual allegations contained in the complaint. Scandinavian Satellite Sys., AS v. Prime TV Ltd., 291 F.3d 839, 844 (D.C.Cir.2002) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992,152 L.Ed.2d 1 (2002)).

Because subject-matter jurisdiction focuses on the court's power to hear the plaintiffs claim, however, a court resolving a motion to dismiss under Rule 12(b)(1) must give the complaint's factual allegations closer scrutiny than required for a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (citing 5A FED. PRAC. & PROC, Crv. 2d § 1350). Moreover, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Instead, to determine whether it has jurisdiction over the case, the court may consider materials outside the pleadings. Herbert v. Nat'l Acad, of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992).

2. The Court Has Subject-Matter Jurisdiction Because the Plaintiffs' Claim Arises under the Constitution

In this case, the defendants briefly challenge the subject-matter jurisdiction of this court. Defs.' Mot. at 2, 6. The plaintiffs allege two bases for subject-matter jurisdiction. Compl. ¶ 1. First, the plaintiffs assert that this court has jurisdiction pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Id. It is a wellestablished rule, however, that the Declaratory Judgment Act is not an independent source of federal jurisdiction. C & E Servs., Inc. v. Dist. of Columbia Water & Sewer Autk, 310 F.3d 197, 201 (D.C.Cir. 2002) (citing Skelly Oil Co. v. Phillips Petroleum Co, 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950)). Therefore, the plaintiffs' claim of subject-matter jurisdiction under this statute is invalid.

Second, the plaintiffs allege subject-matter jurisdiction under the federalquestion statute. Compl. ¶1 (citing 28 U.S.C. § 1331). Section 1331 provides that "district courts ... have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Here, the plaintiffs allege a civil cause of action that is based on an alleged violation of the Fourth Amendment. Compl. 111136-72. Because the claim "aris[es] under" the Constitution, this court has subject-matter jurisdiction under the federal question statute. E.g., Cook v. Babbitt, 819 F.Supp. 1, 4 (D.D.C.1993) (finding subject-matter jurisdiction for claim arising under the Fifth Amendment's Due Process Clause).

B. The Court Denies the Defendants' Motion to Dismiss For Improper Venue
1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(3)

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