UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Derrick Storms,
Plaintiff,
v. Case No. 1:17-cv-00357 (TNM)
Eric K. Shinseki, et al.,
Defendants.
MEMORANDUM OPINION The Plaintiff, Derrick Storms, seeks damages from several former high-level officials at
the U.S. Department of Veterans Affairs. He claims that these officials violated his First
Amendment rights by persuading a private group—the Veterans of Foreign Wars—to terminate
his volunteer relationship in response to Mr. Storms writing an article full of damning
accusations against the Department. But the Supreme Court has not authorized a suit for
damages based on the First Amendment and warns that extending such remedies to new contexts
is “a disfavored judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1848 (2017) (internal
quotation marks and citation omitted). The Court declines to create the remedy that the Plaintiff
seeks, because authorizing damages for this conduct raises complicated policy questions that
Congress—not the Judiciary—is equipped to answer. The Defendants’ Motion to Dismiss will
therefore be granted.
I. BACKGROUND
On March 6, 2014, Mr. Storms published an article entitled “How veterans can fight back
against VA abuse,” on the Daily Caller website. Compl. ¶ 11, Ex. 1. 1 The article alleged that to
1 At this stage of the proceedings, I accept the Complaint’s well-pled allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). meet performance goals tied to bonuses, VA officials had been systematically destroying
veterans’ disability claims, thereby artificially reducing the backlogs. Id. Ex. 1. It called for
veterans to sue agency officials for damages, including then-current Secretary Eric Shinseki,
whom Mr. Storms blamed for helping to create a corrupt agency culture. Id. The piece quickly
went viral. Compl. ¶ 12. Mr. Storms—a former U.S. Marine—was then serving as the Vice-
Legislative Chairman for the Veterans of Foreign Wars, New York Department (VFW-NY), and
the article identified him as such. Id. ¶¶ 5, 14, Ex. 5.
That night, Defendant Kevin Secor—the VA’s Veterans Service Organizations Liaison
officer, Compl. ¶ 8—exchanged emails with the Executive Director of the national Veterans of
Foreign Wars organization, Bob Wallace. Id. ¶ 15, Ex. 5. Mr. Secor asked Mr. Wallace if he
knew that the article was going to be published, id. Ex. 5, and when Mr. Wallace assured him
that “[t]his is not the VFW position,” id. Ex. 6, Mr. Secor told him that “any help would be
appreciated, I know this will be a topic at tomorrow’s stand-up.” Id. Ex. 7.
The next day, both the VA and the VFW moved quickly. Mr. Secor sent an email asking
Raymond Kelley—another VFW official— “did you see what your Legislative Vice Chairman
wrote in the Daily Caller?” Id. Ex. 10. Mr. Storms alleges that Mr. Secor met with Secretary
Shinseki, Defendant Jose Riojas (then the VA’s Assistant Secretary for Operations, Security, and
Preparedness), and “John/Jane Does 1-100.” Id. ¶ 21. These individuals jointly resolved to
“discredit and defame” Mr. Storms and terminate him from his VFW-NY position, to undermine
the op-ed, deter similar articles from Mr. Storms or others, and protect Secretary Shinseki. Id.
Mr. Secor also allegedly called Mr. Wallace and demanded that the VFW publish a rebuttal
article and end Mr. Storms’ status as a Vice Legislative Chairman. Id. ¶ 25. The VFW’s
Commander-in-Chief emailed the Daily Caller that same day with a proposed rebuttal piece, id. Ex. 12, and Mr. Wallace forwarded the email to Assistant Secretary Riojas and Mr. Secor. Id.
Ex. 13.
Three days later, VFW-NY removed Mr. Storms from his position as Legislative Vice
Chairman, id. Ex. 15 and asked him to write a letter of apology for his article. Id. Ex. 16.
Although Mr. Storms does not allege that he was salaried, the termination meant that he would
not be reimbursed for future VFW travel. Id. Ex. 17. Because of his termination, Mr. Storms
allegedly suffered various injuries, including chilled speech, emotional damages, lost
employment opportunities within the VFW, and reputational harm.
Mr. Storms then sued Secretary Shinseki, Assistant Secretary Riojas, Mr. Secor, and 100
unidentified “John/Jane Does,” all in their individual capacities. Compl. 1-2. His Complaint’s
only count seeks damages for retaliation against First Amendment-protected speech, invoking
the Supreme Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91
(1971). Id. at 7-8. The named Defendants moved to dismiss, noting that their legal arguments
would also apply to the unidentified Defendants as well. Mot. Dismiss 1, n.1.
II. LEGAL STANDARDS
To avoid dismissal under Fed. R. Civ. P. 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
crosses from conceivable to plausible when it contains factual allegations that, if proved, would
‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration
omitted) (quoting Iqbal, 556 U.S. at 678). A court must “draw all reasonable inferences from
those allegations in the plaintiff’s favor,” but not “assume the truth of legal conclusions.” Id. “In determining whether a complaint fails to state a claim, [a court] may consider only the facts
alleged in the complaint, any documents either attached to or incorporated in the complaint and
matters of which [a court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 (D.C. Cir. 1997).
III. ANALYSIS
A. This Claim Presents a New Bivens Context
Because the Complaint’s only count relies on Bivens, a brief account of that case is in
order.
In Bivens, the Supreme Court held that federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures could be held accountable for monetary damages without explicit statutory authorization for such damages. Before Bivens, only state officials who violated individuals’ constitutional rights could be liable for money damages, see 42 U.S.C. § 1983; Congress has not enacted a similar statutory provision for federal officials. Since Bivens, the so-called implied cause of action for a constitutional violation has only been recognized by the Supreme Court in two other contexts: the Fifth Amendment’s due process clause for an allegation of gender discrimination, and the Eighth Amendment’s cruel and unusual punishments clause for the alleged failure to provide adequate medical treatment to an inmate.
Jangjoo v. Sieg, ___ F. Supp. 3d ___, 2018 WL 3418784, at *4 (D.D.C. July 13, 2018) (citations
omitted). In Ziglar v. Abbasi, the Supreme Court explained that Bivens arose when courts made
different assumptions about their authority to imply causes of action, suggesting that “it is
possible that the analysis in the Court’s three Bivens cases might have been different if they were
decided today.” 137 S. Ct. at 1856. In any event, “expanding the Bivens remedy is now a
‘disfavored’ judicial activity.” Id. at 1857 (quoting Iqbal, 556 U.S. at 675).
For future Bivens cases, Abbasi clarified the correct analytical approach. First, courts
must ask whether the alleged cause of action arises in a new or previously recognized Bivens context. Id. at 1859. Any “meaningful” difference between a prior Bivens context and the case
at issue makes the context new, including:
the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Id. at 1859-60. If the context is not new, then existing Bivens precedent controls. But if the
context is new, then courts must ask whether “special factors” counsel against implying a
damages action based on a violation of a constitutional right. Id. at 1857. This inquiry “must
concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1857-
58. “[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a
damages remedy,” then the Judiciary should defer and allow Congress to play its proper role. Id.
at 1858.
This case presents a new context. To start with, the Supreme Court has never authorized
a damages remedy for a First Amendment violation, and it seems unlikely to do so in the wake of
Abbasi. Id. at 1854-55, 1857 (explaining that the Court has refused to extend Bivens for 30
years, including in the First Amendment context); Jangjoo, 2018 WL 3418784, at *6 (“In the
First Amendment context, the Court has addressed but never affirmatively extended Bivens.”)
(citations omitted).
The Plaintiff contends that the Supreme Court recognized a Bivens remedy for First
Amendment retaliation in Hartman v. Moore, 547 U.S. 250, 256 (2006). Pl.’s Mem. In Opp. To
Defs.’ Mot. Dismiss (Pl.’s Opp) 8-9. He makes an understandable mistake, since Hartman was a Bivens case in which the Supreme Court declared that “[o]fficial reprisal for protected speech”
violates the First Amendment, and that “[w]hen the vengeful officer is federal, he is subject to an
action for damages on the authority of Bivens.” 547 U.S. at 256. But the plaintiff lost in
Hartman, because the Court’s core holding was that a plaintiff claiming retaliatory prosecution
must allege and prove the lack of probable cause. Id. at 252, 265-66. Decisions since Hartman
have consistently said that the Supreme Court has not approved a First Amendment Bivens
claim. Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (explaining, just before a long
discussion of Hartman’s impact on qualified immunity, that “[w]e have never held that Bivens
extends to First Amendment claims”); Iqbal, 556 U.S. at 675 (assuming without deciding that a
First Amendment free exercise claim lies under Bivens); Abbasi, 137 S. Ct. at 1854-55 (listing
only “three cases,” none under the First Amendment, as “the only instances in which the Court
has approved of an implied damages remedy under the Constitution itself.”). Even accounting
for Hartman, Supreme Court precedent does not support the Plaintiff’s claim that Bivens extends
to the First Amendment.
In any event, the “new context” inquiry does not end even if courts have extended Bivens
to the relevant constitutional right. Abbasi, 137 S. Ct. at 1859-60. The D.C. Circuit has
recognized First Amendment Bivens claims for retaliatory arrest, Dellums v. Powell, 566 F.2d
167, 196 (D.C. Cir. 1977), and retaliatory prosecution, Haynesworth v. Miller, 820 F.2d 1245,
1255–57 (D.C. Cir. 1987), abrogated in part by Hartman, 547 U.S. 250. The Circuit has also
assumed that Bivens was available for a prisoner who asserted retaliatory restrictions in violation
of the First Amendment, dismissing those claims on qualified immunity grounds. Aref v. Lynch,
833 F.3d 242, 269 (D.C. Cir. 2016). But even assuming these cases are still good law, see
Abbasi, 137 S.Ct. at 1859 (finding that the lower court erred in its “new context” analysis because the context is new if “the case is different in a meaningful way from previous Bivens
cases decided by this Court) (emphasis added), they are all strikingly different from Mr. Storms’
allegations. This case is not brought by a prisoner, and the Plaintiff does not suggest that the
Defendants arrested or prosecuted him. Instead, Mr. Storms claims that the Defendants
persuaded a non-governmental organization to remove him from a volunteer position. Under
Abbasi’s meaningful difference test, see id. at 1859-60, Mr. Storms’ allegations present a new
context for a proposed Bivens claim in this Circuit.
B. Special Factors Counsel Against Creating a Damages Remedy
Since this is a new Bivens context, I must now ask whether “special factors counsel[]
hesitation” in allowing this suit to go forward, and “[i]n a related way, if there is an alternative
remedial structure present . . . that alone may limit the power of the Judiciary to infer a new
Bivens cause of action.” Abbasi, 137 S.Ct. at 1858. I conclude that while the allegations here
are deeply troubling for First Amendment values, special factors counsel hesitation in judicially
creating a damages remedy against federal officials who persuade private entities to terminate
volunteers. Those factors include the speech interests of the federal officials themselves, this
country’s reluctance to extend free speech protections to private sector employment, and the
existing patchwork of federal statutes that provide accountability for federal officials.
Ultimately, in the complex, fraught arena of free speech, Congress is better suited than the
Judiciary to determine whether a damages action should arise.
At the outset, I assume without deciding that the Defendants’ alleged actions violated the
First Amendment rights of Mr. Storms. See Bush v. Lucas, 462 U.S. 367, 372 (1983) (taking the
same approach in deciding not to extend Bivens to First Amendment claims made by public
employees). Thus, I take no issue with Mr. Storms’ argument that he has First Amendment interests at stake. See Pl.’s Opp. to Defs.’ Mot. Dismiss (Pl.’s Opp) 14; Hartman, 547 U.S. at
256 (“Official reprisal for protected speech offends the Constitution because it threatens to
inhibit exercise of the protected right.”) (internal quotation marks, alteration, and citation
omitted).
The first special factor counseling hesitation is the fact that the government has speech
interests of its own, as do federal employees speaking as citizens. The government has broad
authority to speak for itself, without facing unique court-imposed liability regimes.
With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.
Keller v. State Bar of California, 496 U.S. 1, 12 (1990). Creating a Bivens remedy here would
risk turning the First Amendment into a government-silencing mechanism.
“When the government speaks, for instance to promote its own policies or to advance a
particular idea, it is, in the end, accountable to the electorate and the political process for its
advocacy. If the citizenry objects, newly elected officials later could espouse some different or
contrary position.” Bd. of Regents of Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 217, 235
(2000). Thus,
Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights of the officials themselves. The First Amendment is intended to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984)). That marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own. See Bond v. Floyd, 385 U.S. 116, 136 (1966) (“The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen- critics than to legislators.”).
Mulligan v. Nichols, 835 F.3d 983, 989 (9th Cir. 2016). Even to the extent that public officials
speak not for the government, but in their capacity as private citizens, “the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen addressing
matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “So long as
employees are speaking as citizens about matters of public concern, they must face only those
speech restrictions that are necessary for their employers to operate efficiently and effectively.”
Id. at 419. These interests must be considered here.
Of course, the government action that Mr. Storms challenges is arguably destructive of
First Amendment values, contributing little to “an uninhibited marketplace of ideas in which
truth will ultimately prevail.” McCullen, 134 S. Ct. at 2529. Setting aside the surrounding
details, the Defendants’ alleged persuasion of the VFW to terminate Mr. Storms aimed to
undermine and chill his speech, rather than advance a competing idea. This is particularly
troubling since Mr. Storms claims that the article was later verified by government investigations
about the VA’s wait time practices. Compl. ¶ 13. But as Abbasi reminds us:
the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies.
Abbasi, 137 S. Ct. at 1858. Not every case will involve the cover-up of a substantial scandal.
Not every case will involve equities that clearly favor the plaintiff. Even if the government has no First Amendment right to call for private sector firings in retaliation for protected speech, the
risk of chilling legal government speech or the protected free speech of public employees must
be considered. And the political accountability that government speakers face is already one
form of restraint imposed by our democratic system. Southworth, 529 U.S. at 235. 2 Speech is
already a fraught and contested arena. Injecting a damages remedy against federal officials may
not be the best course, even to advance the freedom of speech.
The second special factor counselling caution is the First Amendment’s limitation to
government action. The Constitution says that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend. I (emphasis added). “[A]s a general matter the First
Amendment prohibits government officials from subjecting an individual to retaliatory actions,
including criminal prosecutions, for speaking out.” Hartman, 547 U.S. at 256 (emphasis
added); see also Waters v. Churchill, 511 U.S. 661, 694–95 (1994) (“Absent some contractual or
statutory provision limiting its prerogatives, a private-sector employer may discipline or fire
employees for speaking their minds.”) (Stevens, J., dissenting). Mr. Storms proposes that private
sector firings can be attributed to the government, and thus linked to the First Amendment, using
the test for state action under the Fourteenth Amendment. See Opp. 14; Blum v. Yaretsky, 457
U.S. 991, 1004 (1982) (holding the government “responsible for a private decision only when it
has exercised coercive power or has provided such significant encouragement, either overt or
covert, that the choice must in law be deemed to be that of the State.”). Even if I accepted this or
some other formulation for when the government could be held liable for private sector
2 Here, Mr. Storms claims that Secretary Shinseki ultimately resigned as a casualty of the underlying scandal. Opp. 2 n.3, 21. Although the resignation was not because of the alleged retaliation against Mr. Storms, the price that Secretary Shinseki paid for the truths that Mr. Storms allegedly sought to expose shows that political accountability works. decisions, the resulting shift would still be significant: private sector firings could now trigger
First Amendment claims against federal officials.
This change, even if beneficial in some respects, might create complicated issues for both
private and public-sector decision making, as actors must deal with litigation risk and its
inevitable costs. Such a decision would expand the First Amendment’s scope in ways difficult to
predict. For instance, it could further complicate government contractors’ hiring and firing
decisions, forcing both them and their client agencies to consider what liability their internal
personnel decisions may create for government officials. I hesitate to make such a significant
decision as a member of the Judiciary when Congress—our Nation’s law-making body—is fully
equipped to consider the complicated factors at issue, and act.
The named Defendants also contend that the Privacy Act and the Administrative
Procedure Act (APA) provide alternative remedies for Mr. Storms’ injury and thus counsel
caution in creating a Bivens remedy. Defs.’ Mem. In Support of Mot. Dismiss (Mot. Dismiss)
13-14. The APA does have some limited relevance, since that statute allows citizens to
challenge final agency actions, including agency “sanction[s]” such as the “imposition of a
penalty.” 5 U.S.C. §§ 701, 551(10), (13). It may not be a final agency action for Mr. Secor to
call the VFW and insist that Mr. Storms be terminated, and APA plaintiffs cannot recover
damages after the fact under the statute, making APA relief irrelevant to Mr. Storms. See 5
U.S.C. § 706. But the APA’s existence points to another fact: Congress has created a broad
array of statutory mechanisms that can prevent federal wrongdoing against those in the private
sector. These include statutes that help citizens to hold government accountable, from the APA and the Privacy Act, 3 to the Freedom of Information Act, 5 U.S.C. § 552, and many
whistleblower protection statutes. See 5 U.S.C.A. § 2302(b)(8)-(9) (the Whistleblower
Protection Act); see also Occupational Safety and Health Administration, Worker Protections,
https://www.whistleblowers.gov/worker_protections (listing 22 whistleblower protection statutes
enforced by the Occupational Safety and Health Administration in the U.S. Department of
Labor) (last visited August 6, 2018). There is even a criminal law against influencing private
sector employment decisions—based on “partisan political affiliation”—using government
blackmail or bribery. 18 U.S.C. § 227.
To be fair to Mr. Storms, none of these statutes focus on remedying this particular First
Amendment injury, and so none constitute “an alternative remedial structure present in [this]
case,” Abbasi, 137 S. Ct. at 1858 (2017). Thus, this specific “wrong [may] . . . go unredressed.”
Bush, 462 U.S. at 388. But the fact that Congress has enacted so many measures aimed at
creating federal accountability shows their engagement on this subject. This fact counsels
hesitation in crafting a damages remedy that Congress itself has not approved. See Wilson v.
Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (explaining that “[t]he absence of statutory relief for a
constitutional violation . . . does not by any means necessarily imply that courts should award
money damages,” and a proper special factors analysis includes “an appropriate judicial
deference to indications that congressional inaction has not been inadvertent”) (quoting
Schweiker v. Chilicky, 487 U.S. 412, 421-23 (1988)).
3 Contrary to the named Defendants’ assertions, I see only the slightest relevance in the Privacy Act, since it merely controls agency disclosure of agency records, see 5 U.S.C. § 552a(b)-(f), and authorizes civil remedies for violations. Id. § 552a(g)(1). None of the allegations here involve the improper disclosure of agency records. For all of these reasons, no Bivens cause of action exists for Mr. Storms claim, and under
the analysis required by Abbasi, this Court should not create one. 4 Since the complaint therefore
fails to state a claim upon which relief can be granted, I have no occasion to consider whether the
Defendants would be entitled to qualified immunity.
IV. CONCLUSION
This Court does not condone the Defendants’ alleged actions. But no damages remedy
currently exists for the First Amendment retaliation that Mr. Storms describes, and it is the job of
Congress to decide if such a remedy should be created. This conclusion applies equally to the
named and unnamed Defendants, so the named Defendants’ Motion to Dismiss will be granted
and the Complaint will be dismissed. A separate order will issue.
2018.08.06 17:57:47 -04'00' Dated: August 6, 2018 TREVOR N. MCFADDEN United States District Judge
4 The Complaint contains precious little about the conduct of Secretary Shinseki himself, or of Assistant Secretary Riojas. The only specific allegations are that these officials were among the Defendants who “determined” that retaliation against Mr. Storms should occur, Compl. 21, and that Assistant Secretary Riojas said “Thanks Bob” after receiving a copy of the VFW’s rebuttal article. Compl. 29. But “Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. Because Mr. Storms alleges no act of retaliation from these senior leaders, and he only hints at implied commands, his claims against them would be unlikely to survive even if Bivens applied.