LECHNER, District Judge
This is an action brought by pro se plaintiff Nicola Biase ("Biase") against the Office of Thrift Supervision (the "OTS") and Lawrence O. Kaplan ("Kaplan"), Angelo A. Vigna ("Vigna"), V. Gerard Comizio ("Comizio"), Eugene M. Schwartz ("Schwartz"), John C. Griffin ("Griffin"), Ellen B. Kulka ("Kulka") and Tara L. French ("French") (collectively, the "Individual Defendants"), all current or former employees of OTS. Biase alleges OTS and the Individual Defendants violated 42 U.S.C. § 1985 and his rights under the First and Fifth Amendments. Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331 and 1367(a).
Currently before the court are the motions of OTS and the Individual Defendants to dismiss the action. OTS moves for dismissal of the action under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (the "OTS Motion"). The Individual Defendants move for dismissal under Fed.R.Civ.P. 12(b)(1), 12(b)(5) and 12(b)(6) (the "Individual Defendants' Motion").
For the reasons stated below, both the OTS Motion and the Individual Defendants' Motion are granted and the action is dismissed.
On 5 November 1993, Biase filed a complaint (the "Complaint") against the OTS, Kaplan, Vigna and Comizio, seeking $ 500,000,000.00 in damages, "together with the interest thereon [and] the costs and disbursements of the action." Complaint ad damnum clause, PP 1-6. On 11 January 1994, Biase filed an amended complaint (the "Amended Complaint"), adding Schwartz, Griffin, Kulka and French as defendants.
According to the Amended Complaint, Biase is a resident of the state of New Jersey. See Amended Complaint, P 3. The Amended Complaint alleges the Individual Defendants were, "at all relevant times," employees of the OTS located in Washington, D.C. and the state of New Jersey.
Id., PP 4-9. The Amended Complaint alleges the Individual Defendants "did engage in a conspiracy with [each other] in order to deprive [Biase] of constitutional and civil rights." Id.
According to the Amended Complaint, in 1990, Biase purchased 9.4% of the shares in Polifly Financial Corporation ("PFC"). Id., P 11. Biase identifies PFC as "a New Jersey savings and loan corporation." Id. According to the Amended Complaint, the "chief asset" of PFC at that time was Polifly Savings and Loan ("PSL"). Id. PSL was a "troubled savings and loan association operating under Consent Agreement."
Id. At the time Biase purchased shares of PFC stock, he requested and received two seats on PFC's board of directors (the "Board"). Id.
Upon being appointed to the Board, Biase "recommended that [PFC's] management focus [its] attention upon drastically reducing operating expenses, including but not limited to reducing excessive executive compensation." Id., P 12. Biase "also questioned OTS's own actions regarding PSL by suggesting that its hand picked directors and officers were incompetent and/or indifferent to [the] survival of [PSL]." Id., P 13. Biase alleges his actions alienated OTS, which "refused to address . . . Biase's concerns about its actions regarding PSL." Id., PP 14-15.
According to the Amended Complaint, Biase, "frustrated in his attempts to get the Board . . . and OTS to take the necessary steps to save PSL," resigned from the Board on 28 January 1992. Id., P 16. Upon his resignation, Biase "announced that he would exercise his rights as a shareholder and appeal to his fellow shareholders." Id.
The Amended Complaint alleges that, on or about 29 February 1992, Biase "made a request for a special shareholders meeting [(the "Shareholders Meeting")] in a letter to the secretary of PFC." Id., P 17. Biase alleges the purpose of the Shareholders Meeting "was to discuss and vote on the following proposals:"
(i) remove the president and chief executive officer of [PFC]; (ii) decrease the operating expense of [PFC]; (iii) limit compensation paid to the executives of [PFC]; (iv) change the location of [PFC's] headquarters; (v) commence legal action on behalf of [PSL] against the United States and certain United States Government agencies for breach of contract and restitution damages in an amount not less than $ 11,730[,]583.
The Amended Complaint alleges that, in response to his request for the Shareholders Meeting, OTS and the Individual Defendants "conspired to enter a campaign of retaliation and harassment against . . . Biase with a view of depriving him of his rights as a shareholder of PFC as well as guarantees of freedom of association and expression, due process and equal protection of the laws." Id., P 18.
Biase alleges that, "subsequent to his request [for the Shareholders Meeting] Biase was . . . the target of two separate investigations by OTS [(the "OTS Investigations")]." Id., P 19. Biase alleges the OTS Investigations were "groundless, retaliating in bad faith and were conducted with the sole purpose of preventing Biase [from] informing his fellow shareholders of misconduct on the part of officials of OTS and officers and directors of PFC and PSL." Id.
Biase alleges that, in connection with the OTS Investigations, the OTS issued "certain subpoenas" (the "OTS Subpoenas") "for the sole purpose of harassing . . . Blase and not as part of any justifiable investigation."
Id., P 21. Biase alleges that, "as a result of this campaign of harassment, . . . [he] was unable to appeal to his fellow shareholders." Id., P 22. Biase further alleges that, as a "direct consequence" of the OTS Investigations, PSL "failed and was taken over by the Resolution Trust Corporation" ("RTC") on or about 20 November 1992. Id., P 23.
The first count of the Amended Complaint ("Count I") alleges the actions of OTS and the Individual Defendants deprived Biase of his rights to freedom of expression and association, in violation of the First Amendment. Id., P 25. The Amended Complaint seeks $ 100,000,000.00 for the deprivation alleged in Count I. Id., ad damnum clause, P 1.
The second count of the Amended Complaint ("Count II") alleges the actions of OTS and the Individual Defendants deprived Biase of his right to due process of law, in violation of the Fifth Amendment. Amended Complaint, P 26. The Amended Complaint seeks $ 100,000,000.00 in damages for the deprivation alleged in Count II. Id., ad damnum clause, P 2.
The third count of the Amended Complaint ("Count III") alleges the actions of OTS and the Individual Defendants deprived Biase of his right to equal protection of the law, in violation of the Fourteenth Amendment. Amended Complaint, P 27. The Amended Complaint seeks $ 100,000,000.00 in damages for the deprivation alleged in Count III. Id., ad damnum clause, P 3.
The fourth count of the Amended Complaint ("Count IV") alleges the actions of OTS and the Individual Defendants violated 42 U.S.C. § 1985. Amended Complaint, P 29. The Amended Complaint seeks $ 100,000,000.00 in damages for this violation. Id., ad damnum clause, P 4.
The fifth count of the Amended Complaint ("Count V") alleges the actions of OTS and the Individual Defendants constituted "abuse of process." Amended Complaint, P 30. Count V, like the other counts in the Amended Complaint, seeks $ 100,000,000.00 in damages.
Id., ad damnum clause, P 5.
The OTS Motion was filed 7 March 1994. The Individual Defendants' Motion followed on 9 March 1994.
A. Standard of Review for Pro Se Submissions and Pleadings
Pro se submissions "must be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), reh'g denied, 429 U.S. 1066, 50 L. Ed. 2d 785, 97 S. Ct. 798 (1977) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 reh'g denied, 405 U.S. 948, 30 L. Ed. 2d 819, 92 S. Ct. 963 (1972)); United States v. Day, 969 F.2d 39, 42 (3rd. Cir. 1992); Lewis v. Attorney Gen. of United States, 878 F.2d 714, 722 (3d Cir. 1989). When reviewing a pro se complaint in this context, a court must assume a plaintiff's factual allegations are true and construe his claims liberally. Neitzke v. Williams, 490 U.S. 319, 330 n.9, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989); Haines, 404 U.S. at 520; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir. 1990).
B. The OTS Motion
As indicated, OTS moves to dismiss the Amended Complaint for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6).
1. Standard of Review under Fed.R.Civ.P. 12(b)(1)
A challenge to the court's subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) differs from an attack on the merits pursuant to Fed. R. Civ. P. 12(b)(6) or 56. Rule 12(b)(1) does not afford a plaintiff all the procedural safeguards provided by Rules 12(b)(6) and 56. Instead, Rule 12(b)(1) challenges a plaintiff's right to be heard in Federal court. Limited procedural safeguards exist depending on the type of Rule 12(b)(1) motion.
There are two types of Rule 12(b)(1) motions, those which "attack the complaint on its face" and those which "attack the existence of subject matter jurisdiction in fact, quite apart from any pleading." Mortensen v. First Federal Sav. & Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977); Frankford Hosp. v. Davis, 647 F. Supp. 1443, 1445 (E.D.Pa. 1986). The facial attack offers a safeguard to the plaintiff similar to a 12(b)(6) motion; the allegations of the complaint are considered to be true for the purposes of such a motion. Mortensen, 549 F.2d at 891.
For a Rule 12(b)(1) motion addressing the existence of subject matter jurisdiction, no presumptive truthfulness attaches to a plaintiff's allegations. Id. Accordingly, unlike a Rule 12(b)(6) motion, consideration of a Rule 12(b)(1) jurisdiction-type motion need not be limited; conflicting written and oral evidence may be considered and a court may "decide for itself the factual issues which determine jurisdiction." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 70 L. Ed. 2d 212, 102 S. Ct. 396 (1981). This type of a Rule 12(b)(1) motion need not be converted into a Rule 56 motion when extra-pleading materials are considered. Williamson, 645 F.2d at 416; Frankford Hosp., 647 F. Supp. at 1445; see also 5 C. Wright & A. Miller, Federal Practice and Procedure § 1366 at 676.
Although motions pursuant to Rules 12(b)(1) and 12(b)(6) are distinct, often jurisdictional issues are intertwined with the merits of a case. "Where an attack on jurisdiction implicates the merits of a plaintiff's Federal cause of action, the district court's role in judging the facts may be more limited. . . ." Williamson, 645 F.2d at 413 n.6.
In other words, when the basis of jurisdiction is also an element in the plaintiff's Federal cause of action, a conservative approach to a 12(b)(1) motion to dismiss is warranted. Where the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a Federal cause of action, the proper course of action for the district court (assuming that the plaintiff's Federal claim is not immaterial and made solely for the purpose of obtaining Federal jurisdiction and is not insubstantial and frivolous) is to find that jurisdiction exists and to deal with the objection as a direct attack on the merits of the plaintiff's case.
Id. at 415 (citing Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). However, as further explained by Williamson, "a jurisdictional attack which does not implicate the merits of any Federal cause of action is not bound by [this] . . . standard." 645 F.2d at 415 n.9 (emphasis in original).
A Federal court has broad power to decide whether it has jurisdiction to hear a case and may make factual findings which are decisive to the issue of jurisdiction. Id. at 413. The burden of demonstrating the existence of Federal jurisdiction is on the party seeking to invoke it. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839, 1111 S. Ct. 2839, 115 L. Ed. 2d 1007 (1991); Mortensen, 549 F.2d at 891. In the instant case, the OTS Motion seeks dismissal of the Amended Complaint on the basis of OTS's asserted sovereign immunity. The OTS Motion neither attacks the Amended Complaint on its face nor addresses the merits of the Amended Complaint; it is an attack on subject matter jurisdiction per se.
2. Sovereign Immunity
"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983); see Federal Deposit Insurance Corporation v. Meyer, U.S. , No. 92-741, slip op. at 3 (23 Feb. 1994); Loeffler v. Frank, 486 U.S. 549, 554, 100 L. Ed. 2d 549, 108 S. Ct. 1965 (1988). Moreover, "the terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Dalm, 494 U.S. 596, 608, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (quoting United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941)), reh'g denied, 495 U.S. 941 (1990); see Meyer, slip op. at 3; Lehman v. Nakshian, 453 U.S. 156, 160, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981). The conditional sovereign immunity of the United States extends to its branches and agencies, including the OTS.
See Franchise Tax Board v. United States Postal Service, 467 U.S. 512, 517-18, 81 L. Ed. 2d 446, 104 S. Ct. 2549 (1984); Security Savings Bank v. Director, Office of Thrift Supervision, 798 F. Supp. 1067, 1073-74 (D.N.J. 1992) (suit against OTS requires waiver of sovereign immunity); Carteret Savings Bank v. Office of Thrift Supervision, 762 F. Supp. 1159, 1167 (D.N.J. 1991) (same).
The United States' consent to be sued must be express in order to constitute a waiver of sovereign immunity. See Library of Congress v. Shaw, 478 U.S. 310, 318, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986); Block v. North Dakota, 461 U.S. 273, 280, 75 L. Ed. 2d 840, 103 S. Ct. 1811 (1983); United States v. New York Rayon Importing Co., 329 U.S. 654, 659, 91 L. Ed. 577, 67 S. Ct. 601 (1947). "There can be no consent by implication or by use of ambiguous language." Shaw, 478 U.S. at 318 (quoting New York Rayon Importing Co., 329 U.S. at 659); see United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980) (waiver of sovereign immunity may not be found in the absence of "unequivocally expressed" Congressional intent). "In analyzing whether Congress has waived the immunity of the United States [or its agency], [a court] must construe waivers strictly in favor of the sovereign, and not enlarge the waiver 'beyond what the language requires.'" Shaw, 478 U.S. at 318 (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983)).
Congress has effected a narrow waiver of sovereign immunity with respect to suits against the OTS. Pursuant to 12 U.S.C. § 1464(d), which defines the regulatory authority of the OTS:
Except as otherwise provided, the Director [of the OTS] shall be subject to suit (other than suits on claims for money damages) by any Federal savings association or director or officer thereof with respect to any matter under this section or any other applicable law, or regulation thereunder, in the United States district court for the judicial district in which the savings association's home office is located, or in the United States District Court for the District of Columbia . . . .
12 U.S.C. § 1464(d)(1)(A) (emphasis added).
As indicated by the language of the statute, the OTS's 'subject-to-suit clause' does not authorize suits against the OTS for money damages.
Id. The Amended Complaint seeks no relief other than money damages for the alleged actions of the OTS. See Amended Complaint ad damnum clause, PP 1-5. The OTS' subject-to-suit clause, therefore, does not constitute a waiver of the OTS's sovereign immunity with respect to the claims in the Amended Complaint. See 12 U.S.C. § 1464(d)(1)(A). It must be determined, therefore, whether any of the provisions under which Biase seeks relief independently waives the OTS's sovereign immunity.
a. Counts I-III: Constitutional Torts
As stated, Counts I, II and III of the Amended Complaint seek relief directly under the Constitution. See Amended Complaint, PP 25-27. Such claims are of the type authorized by the Supreme Court in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). In Bivens, the Supreme Court permitted constitutional tort actions against individual Government officials, in part on the rationale that such suits were the only remedy for the aggrieved. See id. at 410 (Harlan, J., concurring). In so reasoning, the Supreme Court reaffirmed that "however desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit." Id. Therefore, the Supreme Court recognized in Bivens that the doctrine of sovereign immunity bars a direct constitutional action against the Federal agency itself. Id.
The Supreme Court recently reaffirmed that a Bivens-type constitutional tort action may not lie directly against a Federal agency. In Meyer, the plaintiff filed a complaint against the FSLIC. See slip op. at 1. The plaintiff's claim against the FSLIC alleged the agency had deprived him of a property right without due process of law, in violation of the Fifth Amendment. Id. at 2. The plaintiff relied upon Bivens in making his claim against the FSLIC. Id. A jury found in favor of the plaintiff and the FSLIC appealed. After the Ninth Circuit affirmed the judgment of the district court, the FSLIC appealed to the Supreme Court. Id.
On grant of certiorari, the Supreme Court reversed. Analyzing whether a constitutional tort action can be brought against a Federal agency, the Court noted that Bivens authorized a constitutional action for damages only against a Federal agent, and that the Court has "responded cautiously to suggestions that Bivens remedies be extended into new contexts." Id. at 13. The Court further noted that the idea of expanding liability under Bivens to Federal agencies constituted "a significant extension of Bivens." Id.
In light of these considerations, the Supreme Court declined to subject Federal agencies to suit under the Bivens theory. The Court reasoned, first, that it "implied a cause of action against Federal officials in Bivens in part because a direct action against the Government was not available." Id. at 14 (emphasis in original). The Court, therefore, declined "to imply a damages action based on a decision that presumed the absence of that very action." Id. (emphasis in original).
The Court further reasoned:
Bivens clearly contemplated that official immunity would be raised [by the individual agents subjected to suit.] . . . It must be remembered that the purpose of Bivens is to deter the officer. If we were to imply a damages action directly against Federal agencies, thereby permitting claimants to bypass qualified immunity, there would be no reason for aggrieved parties to bring damages actions against individual officers. Under [the plaintiff's] regime, the deterrent effects of the Bivens remedy would be lost.
Id. (citations omitted; emphasis in original). Finally, the Court stated that recognizing a direct action against Federal agencies under the Bivens theory "would be creating a potentially enormous financial burden for the Federal Government." Id. at 15.
The decisions in Bivens and Meyer make clear that a constitutional tort action for damages cannot lie directly against a Federal agency. Accordingly, the authorization of such an action in Bivens does not operate to waive the immunity of a Federal agency from suit.
See Bivens, 403 U.S. at 410; see also Chapoose v. Hodel, 831 F.2d 931, 935 (10th Cir. 1987) (A Bivens action against a Federal agency "is a suit against the sovereign which is protected by sovereign immunity."); United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) ("Defendants' [counter]claims based directly on Fifth Amendment violations are . . . barred by the doctrine of sovereign immunity."); Jaffee v. United States, 592 F.2d 712, 717 (3d Cir. 1979) ("Because [plaintiff] has sued the Government itself, Bivens. . . do[es] not afford him a traversable bridge across the moat of sovereign immunity.").
Biase has cited no authority to suggest, and it does not appear, that Congress has waived OTS's sovereign immunity with respect to claims of the type set forth in Counts I, II and III. OTS is, therefore, insulated from liability on Counts I, II and III by the doctrine of sovereign immunity. Accordingly, these counts, to the extent they are asserted against OTS, must be dismissed for lack of subject matter jurisdiction.
b. Count IV: 42 U.S.C. § 1985
As stated, Count IV of the Amended Complaint seeks relief under 42 U.S.C. § 1985. Section 1985, a provision of the Civil Rights Act of 1871 (the "Civil Rights Act"), 42 U.S.C. §§ 1981 et seq., prohibits several forms of conspiratorial activity in interference with a person's civil rights. See generally 42 U.S.C. § 1985. Section 1985 contains no waiver, explicit or otherwise, of Federal sovereign immunity. See id. As indicated, a waiver of Federal sovereign immunity must be express and may not be implied. See Shaw, 478 U.S. at 318.
It has, in fact, been consistently held that neither section 1985 nor any other provision of the Civil Rights Act may provide the basis for an action against the United States or a Federal agency. See Hohri v. United States, 251 U.S. App. D.C. 145, 782 F.2d 227, 245 (D.C.Cir. 1986) (The provisions of 42 U.S.C. §§ 1981, 1983, 1985 and 1986, "by their terms, do not apply to actions against the United States."), vacated on other grounds, 482 U.S. 64 (1987); Timmons, 672 F.2d at 1380 ("It is well-established . . . that the United States has not waived its immunity to suit under the provisions of the [Civil Rights Act]."); Unimex, Inc. v. Department of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir. 1979) ("The direct claims against [the agency] are barred by sovereign immunity because the United States has not consented to suit under the [Civil Rights Act]."); Proffitt v. United States, 758 F. Supp. 342, 345 (E.D.Va. 1990) ("The United States has not consented to suit under the Civil Rights [Act]. . . . Moreover, the United States is not a [suable] person within the meaning of section 1985."); Baird v. Haith, 724 F. Supp. 367, 382 (D.Md. 1988) ("Plaintiff has also not pointed to, nor can the court find, any authority for the proposition that the sovereign has consented to be sued under any of the civil rights statutes, 42 U.S.C. §§ 1981 et seq.").
As these authorities make clear, the OTS, as a Federal Agency, is not subject to suit under section 1985 or any of the other provisions of the Civil Rights Act. See Timmons, 672 F.2d at 1380. As stated, Count IV of the Complaint seeks relief only under section 1985. See Amended Complaint, P 29. Because Count IV is barred as against OTS by the doctrine of sovereign immunity, that count must be dismissed to the extent it seeks recovery from OTS.
c. Count V: Abuse of Process
Count V of the Amended Complaint, as indicated, seeks recovery for OTS's alleged "abuse of process." Amended Complaint, P 30. Abuse of process is a tort actionable under state common law. See Simone v. Golden Nugget Hotel and Casino, 844 F.2d 1031, 1036 (3d Cir. 1988); SBK Catalogue Partnership v. Orion Pictures Corp., 723 F. Supp. 1053, 1057 (D.N.J. 1989).
By the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq., Congress has effected a limited waiver of Federal sovereign immunity against tort actions. See Livera v. First National State Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir.) (FTCA "constitutes a waiver of sovereign immunity. . . ."), cert. denied sub nom Livera v. United States Small Business Administration, 493 U.S. 937, 107 L. Ed. 2d 322, 110 S. Ct. 332 (1989). "The [FTCA] is the exclusive waiver of sovereign immunity for actions sounding in tort against the United States, its agencies and officers acting within their official capacity." Wilson v. Rackmill, F. Supp. , No. 87-0456, 1990 U.S. Dist. LEXIS 5820,1990 WL 63504 at *7 (E.D.Pa. 11 May 1990); see Meyer, U.S. at , slip op. at 4. As a waiver of sovereign immunity, the FTCA's limitations and procedural requirements must be strictly applied. See Livera, 879 F.2d at 1194.
Pursuant to 28 U.S.C. § 2680(h), the FTCA's waiver of sovereign immunity "shall not apply to:"
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contractual rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the [FTCA] shall apply to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.
28 U.S.C. § 2680(h) (emphasis added).
As indicated by the language of section 2680(h), the United States has retained its sovereign immunity against suits for abuse of process, unless such abuse of process is alleged to have been committed by "investigative or law enforcement officers . . . ." Id.; see Melo v. Hafer, 912 F.2d 628, 640, 642 n.20 (3d Cir. 1990), aff'd, 502 U.S. 21, 116 L. Ed. 2d 301, 112 S. Ct. 358, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991); General Public Utilities Corp. v. United States, 745 F.2d 239, 242 (3d Cir. 1984), cert. denied, 469 U.S. 1228, 84 L. Ed. 2d 365, 105 S. Ct. 1227 (1985); Balmaceda v. United States, 815 F. Supp. 823, 825 (E.D.Pa. 1992); Wilson, 1990 WL 63504 at *7-8; see also Sheridan v. United States, 487 U.S. 392, 398, 101 L. Ed. 2d 352, 108 S. Ct. 2449 (1988) (Federal courts lack jurisdiction over types of actions excepted by section 2680(h)). Accordingly, Biase's abuse of process claim against OTS is barred by OTS's sovereign immunity unless the actions alleged in the Amended Complaint were committed by "investigative or law enforcement officers." 28 U.S.C. § 2680(h); see Wilson v. United States, 959 F.2d 12, 15 (2d Cir. 1992).
"For the purpose of [section 2680(h)], 'investigative or law enforcement officer' means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." 28 U.S.C. § 2680(h). Applying this standard to the employees of OTS named in the Amended Complaint, it does not appear such employees are investigative or law enforcement officers within the meaning of section 2680(h).
Biase has not cited, and there does not appear to exist, any legal authority vested in the OTS to "execute searches, to seize evidence, or to make arrests for violations of Federal law."
Id. The Individual Defendants, the only OTS employees named in the Amended Complaint, are, as indicated, attorneys, administrators and bank examiners; none are "law enforcement officers" as that term is defined in section 2680(h). See Amended Complaint, PP 4-9. Such persons have, in fact, been held not to constitute "law enforcement officers" under section 2680(h). Saratoga Savings & Loan Association, 724 F. Supp. 683, 689 (FSLIC examiners were not "law enforcement officers" within meaning of section 2680(h)); Dirienzo v. United States, 690 F. Supp. 1149, 1158 & n.8 (D.Conn. 1988) (Federal attorneys are not "law enforcement officers" within meaning of section 2680(h)); see also Bush v. Federal Deposit Insurance Corp., 999 F.2d 547, , No. 93-1075, 1993 WL 262591 at *2 (10th Cir. 8 July 1993) (Federal Deposit Insurance Corporation ("FDIC") is immune against actions excepted in section 2680(h)); Federal Deposit Insurance Corp. v. diStefano, 839 F. Supp. 110, 121 (D.R.I. 1993) (same); Taylor v. Federal Home Loan Bank Board, 661 F. Supp. 1341, 1348 (N.D.Tex. 1986) (FSLIC is immune from suits excepted in section 2680(h)).
Count V, as stated, seeks recovery for a tort excepted by section 2680(h). Amended Complaint, P 30. Because the actions alleged in support of this claim were not committed by "investigative or law enforcement officers," the FTCA does not waive the OTS's sovereign immunity against such a claim. See 28 U.S.C. § 2680(h). Count V, therefore, is barred as against OTS by the doctrine of sovereign immunity and must be dismissed as against OTS for lack of subject matter jurisdiction.
Even if Count V were not barred by section 2680(h), it would nonetheless be barred by Biase's failure to allege he has exhausted his administrative remedies. Pursuant to 28 U.S.C. § 2675(a):
An action shall not be instituted upon a claim against the United states for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a).
Fulfillment of the administrative exhaustion requirement is essential to a court's subject matter jurisdiction over a claim under the FTCA. See Livera, 879 F.2d at 1194 (Exhaustion "is a jurisdictional requirement not subject to waiver by the Government."); Tucker v. United States Postal Service, 676 F.2d 954, 959 (3d Cir. 1982) ("Noncompliance with section 2675 deprives a claimant of Federal court jurisdiction over his or her claim."); Federal Deposit Insurance Corp. v. James T. Barnes of Puerto Rico, Inc, 834 F. Supp. 543, 549 (D.P.R. 1993) (claims against FDIC barred by failure to present claim to FDIC prior to suit); North Arkansas Medical Center v. Barrett, F. Supp. , No. 89-3067, 1990 WL 364778 at *15 (W.D.Ark. 4 June 1990) (claim against OTS barred by failure to present claim to OTS before suit), aff'd, 962 F.2d 780 (8th Cir. 1992).
A complaint's failure to allege exhaustion of administrative remedies, therefore, requires dismissal of the complaint for lack of subject matter jurisdiction. See Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (dismissing pro se complaint for failure to allege exhaustion of administrative remedies); Prybyszewski v. City of Philadelphia, F. Supp. , 1990 U.S. Dist. LEXIS 354, 1990 WL 2800 at *3 (E.D.Pa. 16 Jan. 1990) (same).
In the instant case, the Amended Complaint fails to allege Biase presented a claim, regarding the OTS Subpoenas or otherwise, to OTS or to any other Federal agency. Moreover, the Amended Complaint fails to allege OTS or any other Federal agency denied such a claim submitted by Biase. Because Biase has failed to allege he exhausted his administrative remedies prior to filing the instant action, Count V must be dismissed as against OTS for lack of subject matter jurisdiction.
See Livera, 879 F.2d at 1194.
The OTS is immunized from liability on each of the counts of the Amended Complaint pursuant to the doctrine of sovereign immunity. This court, therefore, lacks jurisdiction over the Amended Complaint to the extent it seeks recovery against the OTS. See Dalm, 494 U.S. at 608. Accordingly, the Amended Complaint is dismissed as against OTS pursuant to Rule 12(b)(1).
C. The Individual Defendants' Motion
As indicated, the Individual Defendants move for dismissal of the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(5) and 12(b)(6).
1. Counts I-IV: Rule 12(b)(6)
Because granting a motion under Federal Rule of Civil Procedure 12(b)(6) can result in a dismissal at an early stage of the plaintiff's case, all allegations of the plaintiff must be taken as true and all reasonable factual inferences drawn in her favor. Gomez v. Toledo, 446 U.S. 635, 636, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Unger v. National Residents Matching Program, 928 F.2d 1392, 1395 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Melikian v. Corradetti, 791 F.2d 274, 277 (3d Cir. 1986). Nevertheless, legal conclusions made in the guise of factual allegations are given no presumption of truthfulness. See Papasan v. Allain, 478 U.S. 265, 286, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Haase v. Webster, 257 U.S. App. D.C. 63, 807 F.2d 208, 215 (D.C.Cir. 1986); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981), aff'd, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983); Western Mining Council v. Watt, 643 F.2d 618, 626 (9th Cir.), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1981).
A court may dismiss a complaint for failure to state a claim where it appears beyond doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Unger, 928 F.2d at 1395; Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). However, "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46; accord Cruz v. Beto, 405 U.S. 319, 321, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972); Unger, 928 F.2d at 1395; Angelastro v. Prudential-Bache Secur., Inc., 764 F.2d 939, 944 (3d Cir. 1985), cert. denied, 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267 (1985).
A Federal court reviewing the sufficiency of the complaint has a limited role. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); see also Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir. 1985). "When making a determination under Rule 12(b)(6), the court cannot consider matters outside the pleadings."
Wiley v. Hughes Capita1 Corp., 746 F. Supp. 1264, 1275 (D.N.J. 1990); see Allison v. General Motors Corp., 604 F. Supp. 1106, 1119 (D.Del.), aff'd, 782 F.2d 1026 (3d Cir. 1985).
a. Qualified Immunity and Biase' Bivens Claims
As indicated, Counts I through III seek recovery against the Individual Defendants directly under the Constitution.
As with respect to all claims against Federal officials in their individual capacities, Biase's constitutional claims raise the issue of the qualified immunity of the Individual Defendants.
The Supreme Court has recognized that "permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Courts have accommodated this concern "by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Id.; see Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986).
"One of the purposes of [qualified] immunity . . . is to spare a defendant not only of unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, , 114 L. Ed. 2d 277, 111 S. Ct. 1789; (1991). Consonant with this purpose qualified immunity "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); see Siegert, 500 U.S. at 226, 111 S. Ct. at 1794. Accordingly, "until this threshold immunity question is resolved, discovery should not be allowed." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); see Siegert, 500 U.S. at 226, 111 S. Ct. at 1793; see also Mitchell, 472 U.S. at 526 ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.").
Qualified immunity affords "protection to all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341; see Mitchell, 472 U.S. at 528. In order to defeat an assertion of qualified immunity, a plaintiff must allege that the defendant official violated a "clearly established" right held by the plaintiff. Anderson, 483 U.S. at 635; see Mitchell, 472 U.S. at 526. A plaintiff does not fulfill this requirement simply by alleging the defendant violated some constitutional provision, and hence violated a clearly established right.
For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation.
Anderson, 483 U.S. at 639. The Supreme Court has recognized that such an approach to official immunity would eviscerate the immunity. Id.
The Court has, therefore, established "that the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense:"
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.