Simpkins v. District of Columbia Government

• Decision Date: 14 March 1997
• Docket Number: No. 94-5243,94-5243
• Citation: 108 F.3d 366
• Parties: , 37 Fed.R.Serv.3d 8 Cuthbert O. SIMPKINS, Appellant, v. DISTRICT OF COLUMBIA GOVERNMENT, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 366

108 F.3d 366

323 U.S.App.D.C. 312, 37 Fed.R.Serv.3d 8

Cuthbert O. SIMPKINS, Appellant, v. DISTRICT OF COLUMBIA GOVERNMENT, et al., Appellees.

No. 94-5243.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 16, 1996.

Decided March 14, 1997.

Appeal from the United States District Court for the District of Columbia (92cv02119).

Barry Coburn, Washington, DC, argued the cause and filed the briefs, for appellant.

Fred E. Haynes, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Eric H. Holder, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. John D. Bates, Assistant U.S. Attorney, and Charles L. Reischel, Deputy Corporation Counsel, District of Columbia, Washington, DC, entered appearances.

Before: EDWARDS, Chief Judge, GINSBURG and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The District of Columbia General Hospital filed a report of "adverse action" with the federally-run National Practitioners Data Bank regarding Cuthbert O. Simpkins, M.D., a doctor who had worked at the hospital. The report said Dr. Simpkins resigned his staff privileges at the hospital during a review of the quality of care he had been providing. Believing the report harmed his reputation, Dr. Simpkins brought a damage action against the Data Bank, the District of Columbia, four hospital officials, and Louis W. Sullivan, M.D., who had been Secretary of the Department of Health and Human Services at the time of the report. Dr. Simpkins' complaint, filed in D.C. Superior Court, alleged breach of contract, deprivation of due process, libel and slander, intentional infliction of emotional distress, constructive discharge, and civil conspiracy. His first amended complaint added a claim that the defendants had violated 45 C.F.R. § 60.14(a), a regulation stating that the "Secretary will routinely mail a copy of any report filed in the [Data Bank] to the subject individual."

Dr. Sullivan removed the case to the district court. Pursuant to 28 U.S.C. § 2679(d)(2), the United States substituted itself for Sullivan on the common law tort claims. Dr. Sullivan remained a defendant to the extent the complaint asserted constitutional tort claims against him. ¹ The district court, granting the joint motion of the United States and Dr. Sullivan under FED.R.CIV.P. 12(b)(6), dismissed all of the claims against these defendants with prejudice. The court dismissed the claims against the Data Bank without prejudice for failure to prosecute. Given the absence of any federal parties, the court refused to exercise supplemental jurisdiction over the rest of the case and dismissed it.

Dr. Simpkins appeals the district court's final judgment only insofar as it dismissed his claims against the United States and Dr. Sullivan with prejudice instead of without prejudice.

I

A

The defendants' joint motion under FED.R.CIV.P. 12(b) raised several defenses, including lack of jurisdiction over the person (Rule 12(b)(2)), insufficiency of service of process (Rule 12(b)(5)), and failure to state a claim upon which relief can be granted (Rule 12(b)(6)). Counsel for Dr. Sullivan and the United States doubtless combined these objections in one motion because a party choosing to file a Rule 12(b) motion "must include all defenses and objections then available to him that Rule 12 permits to be made by motion," CHARLES ALAN WRIGHT, THE LAW OF FEDERAL COURTS 434-35 (4th ed.1983). If the party only raises a Rule 12(b)(6) objection, then the party has waived insufficiency of service of process and lack of personal jurisdiction. FED.R.CIV.P. 12(h)(1).

As to Dr. Sullivan, the district court dealt first with his defense that service was insufficient under FED.R.CIV.P. 4(e) because (as Dr. Simpkins conceded) he had not been personally served. Rule 4(e) governs service of process on individuals. Service on a federal "officer" is governed by Rule 4(i)(2), which requires service by certified mail upon not only the officer but also the United States. Was Dr. Sullivan an individual or an officer for the purposes of Rule 4? The district court held that he was being sued as an individual. The court treated the breach of contract and denial of due process claims (counts 1 and 2) against him as Bivens claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Dr. Simpkins does not contest this view of counts 1 and 2 and we shall assume it to be correct. A Bivens suit is an action against a federal officer seeking damages for violations of the plaintiff's constitutional rights. These suits are, the court said, actions against federal officers in their individual capacity, not their official capacity. Relying on Pollack v. Meese, 737 F.Supp. 663 (D.D.C.1990), the court therefore held that Rule 4(e) controlled and that personal service was necessary. Accord Navy, Marshall & Gordon v. U.S. Int'l Development-Cooperation Agency, 557 F.Supp. 484, 489 (D.D.C.1983); Deutsch v. U.S. Dep't of Justice, 881 F.Supp. 49, 52 (D.D.C.1995).

Whether this is a correct view of Rule 4 is a question this court has never specifically addressed. Several statements in our opinion in Light v. Wolf, 816 F.2d 746 (D.C.Cir.1987), could suggest that in a Bivens suit, the defendant officer should not be treated as an individual and that service must be on the officer and the United States pursuant to what is now Rule 4(e)(2). We said, for instance, that "there must be some connection between the lawsuit and the federal government before [Rule 4(e)(2) ] service is required," id. at 748, a condition that always will be met in Bivens cases. If there is no such connection, if the officer was not acting under color of law, how could he violate the Constitution? We also mentioned "practical considerations," such as providing government counsel to these defendants early in the lawsuit. Service on the United States facilitates this objective since the summons and complaint must be sent to the United States attorney in the district and to the Attorney General. This "practical consideration" might encompass Bivens defendants, who are often represented by Justice Department attorneys. See 28 C.F.R. § 50.15(a). There is also the textual point that Rule 4(i)(2) is not framed in terms of the defendant's "official capacity." The rule speaks of service upon an "officer" of the United States, and all Bivens defendants fit that description, at least if "officer" includes employee. See the Dictionary Act, 1 U.S.C. § 1.

On the other hand, every court of appeals that has spoken on the question has decided that defendants in Bivens actions must be served as individuals, pursuant to Rule 4(e). See Armstrong v. Sears, 33 F.3d 182, 187 (2d Cir.1994); Micklus v. Carlson, 632 F.2d 227, 240 (3d Cir.1980); The Ecclesiastical Order of the Ism of Am v. Chasin, 845 F.2d 113, 116 (6th Cir.1988); Robinson v. Turner, 15 F.3d 82, 84 (7th Cir.1994); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1988); Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir.1994). Although we find the issue close, we shall follow this line of authority in the interest of uniformity. Bivens actions are for damages. They cannot be viewed as actions against the government. Unlike official-capacity suits, the sovereign's immunity from damages is therefore not a defense. Butz v. Economou, 438 U.S. 478, 504-05, 98 S.Ct. 2894, 2909-10, 57 L.Ed.2d 895 (1978). If the Bivens defendant is found liable, he becomes personally responsible for satisfying the judgment, although in some instances the government may indemnify him. See 28 C.F.R. § 50.15(c) (indemnification for Justice Department employees). We do not retreat from the point in Light v. Wolf that service on the United States--unnecessary if the defendant is treated under Rule 4(e) as an individual--might facilitate the Justice Department's providing defense counsel. But in Bivens cases this advantage is slight. Under current Department of Justice procedures, Bivens defendants still have to shoulder the burden of requesting, in writing, that the government provide representation or, in case of a conflict of interest, pay for private counsel. 28 C.F.R. § 50.15(a). The final consideration is that given the large body of law on this issue in other circuits, and the settled practice resulting from the district court decisions in this circuit, we ought to avoid creating a different requirement for serving Bivens defendants sued in the District of Columbia.

B

While the insufficiency of service of process would have warranted the court's dismissing counts 1 and 2 without prejudice, see FED.R.CIV.P. 4(m), the court proceeded to evaluate the merits of those counts. Bivens claims cannot rest merely on respondeat superior. Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C.Cir.1993). The complaint must at least allege that the defendant federal official was personally involved in the illegal conduct. See also Tarpley v. Greene, 684 F.2d 1, 9-11 (D.C.Cir.1982). Dr. Simpkins' breach of contract and denial of due process claims did not allege any specific involvement on Dr. Sullivan's part. The district court therefore dismissed them with prejudice for failure to state a cause of action.

Dr. Simpkins does not quarrel with the district court's analysis of his complaint. His point is that the court's preliminary ruling on the sufficiency of service should have precluded it from reaching the merits. On his view, once the court decided that Dr. Sullivan had not been properly served, it should have dismissed the claims without prejudice, a disposition that would have allowed Dr. Simpkins to file the same action against Dr. Sullivan again.

The sequence of decision Dr. Simpkins describes--first, determine if service of process has been properly accomplished, and only if it has, proceed to the Rule 12(b)(6)...