UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________) ) Robert J. Camm, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 85-3844 ) Ralph E. Kennickell, Jr., et al., ) ) Defendants. ) ____________________________________) OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE INTRODUCTION On June 19, 1984, plaintiff Camm was suspended and disqualified from doing business with the Government Printing Office ("GPO") because he was suspected of bribing a GPO official. See Plaintiff's Opposition to Protective Order, Exhibit 3. After receiving a "Notice of Proposed Debarment," plaintiff Camm and defendants entered into negotiations that resulted in an agreement to debar plaintiffs from doing business with the GPO for one year. See Affidavit of Anthony McMahon, attached to Defendants' Motion for Summary Judgment. Shortly thereafter, plaintiffs filed this suit, charging defendants with several common law torts and violation of plaintiffs' rights under the First and Fifth Amendments. On November 3, 1986, this Court dismissed plaintiffs' common law claims as well as their claims that defendants had violated plaintiffs' first amendment rights and fifth amendment interests in reputation. The Court also granted defendants' motion for summary judgment of plaintiffs' due process claims arising out of the debarment process. Thus, at this time, the only remaining claim in this lawsuit is that defendants violated plaintiffs' due process rights by failing to supply plaintiffs with adequate notice before suspending their government contracts.1 On November 19, 1986, defendants moved for reconsideration of this Court's denial of summary judgment on the remaining Bivens claim. Although defendants' arguments were largely unconvincing, their legal memorandum prompted the Court to question whether plaintiffs might have lost their right to assert a due process claim when they agreed to the period and language of the debarment. Accordingly, the Court ordered the parties to address that specific question. See Order, April 23, 1987. The Court has carefully read the responses to that Order, examined the entire record in this case, and has undertaken extensive research of its own. As a result, the Court has determined that it must reconsider its earlier decision. The Court will now grant defendant's motion for summary judgment on plaintiff's only remaining claim, and plaintiffs' complaint will be dismissed from the docket of this Court. There is an additional task before the Court. Defendant Anthony McMahon has filed a counterclaim, pursuant Fed. R. Civ. P. 13(a), charging plaintiffs with abuse of process, intentional infliction of emotional distress, and malicious prosecution. Plaintiff have moved, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss this counterclaim. The Court will deny plaintiffs' motion with respect to the abuse of process and intentional infliction of emotional distress claims and will grant it with respect to the claim for malicious prosecution. THE COURT MUST GRANT DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT. A careful consideration of the events underlying this lawsuit demonstrates why plaintiffs cannot maintain a claim for denial of due process with respect to the suspension of their GPO contract. Plaintiffs received notice of their suspension on June 18, 1984. Notice of Suspension, attached to Plaintiffs Memorandum of Law in Response to Defendants Motion for a Protective Order and In Limine (sic) as Exhibit 3. In response to that notice, plaintiffs wrote to William J. Barrett, Acting Public Printer, contesting the suspension and asking for information about the factual predicate for the suspension. See Letter from Robert Camm to William J. Barrett (July 9, 1984), attached to Plaintiffs' Statement of Material Facts in Dispute as Exhibit 16. Plaintiff received notice of their proposed debarment on October 9, 1984, see id. at Exhibit 8. After receiving that notice, plaintiffs submitted a formal response to the proposed debarment and entered into several months of negotiations with defendants over the terms, conditions, and language of the debarment. See McMahon affidavit. Thus the debarment, which was the product of detailed negotiations, was in effect a "settlement" of the dispute between plaintiffs and the government. See e.g., Glass v. Rock Island Refining Corp., 788 F.2d 450, 454 (7th Cir. 1986) (settlement need not take form of document labeled "settlement agreement"). Most important, as the suspension is treated, by regulation, as the prelude to the debarment, 48 C.F.R. § 9.406-4(a), issues arising out of the suspension must be considered subsumed in the debarment settlement. This leaves but one conclusion. A negotiated settlement extinguishes both the substantive causes of action and any related causes of action based on alleged procedural shortcomings. See, e.g., United States v. Gluklick, 801 F.2d 834, 837 (6th Cir. 1986), cert denied, 107 S. Ct. 1376 (1987). As such, plaintiffs cannot now recover the defendants' failure to provide adequate notice prior to the suspension of plaintiffs' contract with the Government Printing Office. The debarment negotiations and settlement demand summary judgment for defendants for another reason as well. A suspended government contractor is entitled to notice of the alleged malfeasance so that the contractor can clear his or her name. Old Dominion Dairy Products v. Secretary of Defense, 631 F.2d 953, 963 (D.C. Cir. 1980). As a full participant in the debarment negotiations, plaintiff Camm was given ample opportunity to present his version of events and to clear his name and that of the corporation of which he is President. The law does not allow for more. Id.; see also, Codd v. Vegler, 429 U.S. 624, 627 (1977). Consequently, the court must grant defendants' motion for summary judgment. THE COURT WILL GRANT PLAINTIFFS' MOTION TO DISMISS DEFENDANT MCMAHON'S COUNTERCLAIM FOR MALICIOUS PROSECUTION BUT WILL DENY THAT MOTION IN ALL OTHER RESPECTS. Defendant Anthony McMahon has filed a counterclaim, pursuant to Fed. R. Civ. P. 13(a), charging plaintiffs with abuse of process, intentional infliction of emotional distress, and malicious prosecution. Plaintiffs have moved, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss this counterclaim for failure to state a claim on which this Court may grant relief. The Court will deny that motion as to the claims for abuse of process and intentional infliction of emotional distress but will grant it as to the malicious prosecution claim. Plaintiff first argue that public policy demands dismissal of the counterclaim, as defendant McMahon claims immunity from the underlying suit and the counterclaim destroys the purpose of official immunity, which, plaintiffs allege, is designed to reduce the outside distractions public officers may face. Plaintiffs' Motion to dismiss Defendant McMahon's Counterclaim, at 4. Although one basis for the doctrine of official immunity is to limit "the diversion of official energy from pressing public issues," this is not the sole, or perhaps even the main, rationale for that doctrine:' [Immunity limits] social costs includ[ing] the expenses of litigation...and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will 'dampen' the ardor of all but the most resolute, or the most irresponsible (public officials), in the unflinching discharging of their duties. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). Taken together, these factors do not support plaintiffs' claim that defendant McMahon's assertion of immunity prevents him from bringing these counterclaims. The counterclaims are brought through private counsel, so the cost to the government, in dollars and in defendant McMahon's time, is minimal. Moreover, the pressing public need for vigorous officials who carry out their duties according to their best judgment would, if anything, suggest that defendant, who has been sued because of actions undertaken within the scope of his official duties, is well within his rights to inform the Court that both he and the judicial system allegedly have been injured as a result of the lawsuit. Consequently, the court must reject as baseless plaintiffs' argument that defendant's counterclaim is barred by public policy. Plaintiffs raise other challenges to the counterclaim as well. Specifically, they allege that each count of the counterclaim fails to state a claim under District of Columbia law. The Court will address each cause of action listed in the counterclaim in turn. In the first count of the counterclaim, defendant McMahon alleges that plaintiffs have committed the common law tort of abuse of process. Plaintiffs seem to claim that a necessary element of this tort is a claim that the alleged tortfeasor seeks to induce the claimant to take some action that he or she could not otherwise be required to do; they argue that defendant McMahon, who is no longer a Government Printing Office employee, cannot bring an abuse of process action because he no longer can be induced to take unlawful action with respect to a printing contract. Plaintiffs mistake the nature of the abuse of process tort. Under District of Columbia law, the test for determining when a cause of action for abuse of process will lie is: 'Whether the press has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do.' Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980) quoting Jacobson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C. 1967) (emphasis added). Thus, it is enough that the counterclaim alleges that plaintiffs' suit seeks to misuse the judicial process; contrary to plaintiffs' assertion, defendant does not need to prove that plaintiffs' suit attempts to force him to take any action at all. Instead, to state a claim for abuse of process, a claimant must allege ulterior motive and "a perversion of the judicial process and achievement of some end not contemplated in the regular prosecution of the charge." Morowitz, 423 A.2d at 198; see also, McCarthy v. Kliendienst, 741 F.2d 1406, 1411 (D.C. Cir. 984); Doe v. DiGenova, 642 F. Supp. 624, 631 (D.D.C. 1986). As defendant McMahon has done so, see Counterclaim at ¶¶ 2-19, his counterclaim states a cause of action on which this Court may grant relief. Count Two of the Counterclaim alleges that plaintiffs have intentionally inflicted emotional distress upon defendant McMahon. To state a cause of action for this tort under District of Columbia law, the counterclaim must allege that plaintiffs engaged in "extreme and outrageous" conduct that "intentionally or recklessly" caused defendant McMahon "severe emotional distress." Sere v. Group Hospitalization, 443 A.2d 33, 37 (D.C.), cert. denied, 459 U.S. 912 (1982); see also Howard University v. Best, 484 A.2d 958, 985 (D.C. 1984). The claim for intentional infliction of emotional distress survives a challenge under Fed. R. Civ. P. 12(b)(6), which requires a Court to take the allegations of the claim as true and to construe the allegations and the claim liberally. See Hishon v. King & Spaulding, 467 U.S. 69 (1984); Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984). Although the counterclaim does not elaborate upon the nature of emotional harm suffered by defendant McMahon, the Court cannot, at this stage of the proceedings, assume that the emotional distress fails to rise to the level necessary for defendant to recover on this claim. Finally, the counterclaim charges plaintiffs with malicious prosecution. To state a claim for this tort, District of Columbia law requires defendant McMahon to plead and prove (1) that the underlaying suit terminated in his favor; (2) actual malice on plaintiffs' part or willful, wanton, reckless, or oppressive disregard by plaintiffs for defendant McMahon's rights; (3) lack of probable cause for plaintiffs' lawsuit; and (4) special injury. Morowitz, 423 A.2d at 198; Tyler v. Central Charge Service, Inc., 444 A.2d 965, 968 & n.10 (D.C. 1982). Regardless of whether the counterclaim properly pleads the rest of these elements, it does not sufficiently allege special injury. District of Columbia law defines "special injury" to include "such harm as arrest, seizure of property, or injury 'which would not necessarily result in suits to recover for like causes of action.'" Mazanderan v. McGranery, 490 A.2d 180, 182 (D.C. 1984), quoting Ammerman v. Newman, 384 A.2d 637, 641 (D.C. 1978). In Mazanderan, the District of Columbia Court of Appeals held that allegations of indignity and humiliation, mental and physical distress and pain, loss of productive work time, damage to reputation, and expense did not rise to the level of "special injury" necessary to state an abuse-of-process claim. As such, defendant McMahon's claims of "emotional pain and suffering, family disruption, loss of productive work time, and attorney's fees," Counterclaim at ¶ 29, cannot as a matter of law constitute special injury sufficient to satisfy the legal requirements. His claim for malicious prosecution must therefore be dismissed, without prejudice. CONCLUSION The Court has today reconsidered its November 5, 1986, Opinion and Order denying defendants' motion for summary judgment on plaintiffs' claim that their due process rights were violated when their contract with the Government Printing Office was suspended. The Court will instead grant that motion for summary judgment. As a result, plaintiffs no longer have any live claims before this Court. The Court has also considered plaintiffs' motion to dismiss a counterclaim filed by defendant Anthony McMahon, and the Court will deny that motion with respect to defendant McMahon's claims for abuse of process and intentional infliction of emotional distress but will grant it, without prejudice, with respect to the claim for malicious prosecution. The Court will issue an Order, of even date herewith, memorializing these findings. CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE _______________ 1 Defendants claim that this Court's Opinion erroneously held that plaintiffs were entitled to a hearing with respect to their suspension. See Memorandum of Points and Authorities in Support of Defendants' Motion for Reconsideration, at 3. The Court held no such thing. Rather, the Court's Opinion stated that "due process demands that a party of a suspension proceeding receive notice detailing the charges against him and an opportunity to respond." Opinion, at 16. (emphasis added).