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 Plaintiffs' complaint, filed pursuant to 28 U.S.C. §§ 1331 and 1332, alleges that defendants have committed several common law torts and tortuously violated plaintiffs' constitutional rights. Specifically, plaintiffs allege that defendants have committed common law libel, slander, defamation, and placed plaintiffs in a false light. First Amended Complaint ¶ 1.1 They also claim that defendants have violated plaintiffs' first amendment rights of privacy, fifth amendment interest in reputation, and fifth amendment due process interests. These claims arise out of defendants' suspension and debarment of plaintiff Camm and of a contract between plaintiff Quadra Graphics, Inc., and the Government Printing Office, of which defendants are officers or employees. In 1979, the Inspector General of the Government Printing Office (hereafter GPO) began a five-year investigation of improprieties in the award of contracts by the Philadelphia Regional Printing Procurement Office (hereafter PRPPO), an arm of the GPO. Plaintiffs were among the targets of that investigation. At some point, plaintiffs' conduct became the concern of a grand jury investigation. The parties before this Court do not state when this occurred. In 1983, GPO investigators obtained information that plaintiffs had given food, drink, money to various PRPPO officials and employees. The parties dispute whether this information was obtained in violation of grand jury secrecy requirements or through an independent investigation. Plaintiffs claim that, at some point prior to June 18, 1984, the Department of Justice decided not to prosecute them and informed the GPO of that decision. On June 18, 1984, plaintiff Camm was suspended and disqualified from doing business with the GPO because suspected of bribery. Plaintiffs also claim that defendants subsequently informed a member of Congress, the Hon. James J. Florio, that plaintiff Camm might be subject to prosecution. On October 9, 1984, plaintiff Camm was sent a "Notice of Proposed Debarment." After a series of negotiations between plaintiff Camm and defendants, plaintiff Camm was debarred from doing business with GPO for one year. That debarment was announced, along with the alleged reasons for it, in a press release to the general public and various news organizations. Shortly thereafter, plaintiffs filed this suit. Before this Court are defendants' motion to dismiss this action, pursuant to Fed. R. Civ. P. 12 (b) (1), (b) (2), (b) (4), (b) (5), and (b) (6), or, in the alternative, for Summary Judgment. Also before the Court are plaintiffs' opposition to these motions and plaintiffs' motions for discovery pursuant to Fed. R. Civ. P. 56(f). This Court will grant defendants' motion to dismiss plaintiff's common law claims and all but two of the constitutional tort claims. The Court will deny plaintiffs' motion for Rule 56(f) discovery. Finally, the Court will grant defendants' motion for summary judgment as to one of the remaining constitutional tort claims and will deny summary judgment as to the other. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER THIS ACTION. Defendant question this Court's subject matter jurisdiction over this action and move to dismiss plaintiffs' complaint under Fed. R. Civ. P. 12 (b) (1). The Court finds that it has subject matter jurisdiction and will deny defendants' motion. Defendants do not elaborate where plaintiffs' jurisdictional allegations fail. Nor do they supply affidavits attacking the Court's jurisdiction over this action. As such, this Court must assume that defendant's motion is directed solely at the language of the pleadings. 5 C.A. Wright and A. Miller, Federal Practice and Procedure: Civil § 1350 (1969 and Supp. 1986). Plaintiffs brought this action under 28 U.S.C. §§ 1331 and 1332. First Amended Complaint ¶ 1. Plaintiffs allege that defendants, all federal officials, deprived them of their constitutional rights while action under color of their authority. Id. at ¶¶ 1, 48. Such a claim constitutes a federal question whose validity this Court may decide. See, Bivens v. Six Unknown named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395; Davis v. Passman, 442 U.S. 228 (1980); Doe v. United States Department of Justice, 753 F.2d 1902, 1104 (D.C. Cir. 1985). Plaintiffs also claim diversity jurisdiction. They allege that they are citizens of New Jersey and Pennsylvania, that all defendants are citizens of other states, and that the amount in controversy exceeds $10,000. First Amended Complaint ¶¶ 1, 2, 4. Defendants have not controverted these claims, and, having no reason to doubt them, the Court must accept these allegations as true. As the jurisdictional allegations of the complaint are complete, sufficient, and uncontradicted, the Court must deny defendants' motion to dismiss for want of subject matter jurisdiction. 5 Federal Practice and Procedure at § 1350. THIS COURT HAS IN PERSONAM JURISDICTION OVER ALL DEFENDANTS. Defendants have also moved to dismiss this action under Fed. R. Civ. P. 12 (b) (2). They challenge this Court's in personam jurisdiction over all defendants under the District of Columbia long-arm statute. This Court rejects this argument and finds that it has jurisdiction over all defendants. The District of Columbia "long-arm" statute establishes the conditions under which service of process may be made outside the District of Columbia. That statute applies to actions filed in this Court. Fed. R. Civ. P. 4(e); Akbar v. New York Magazine, 490 F. Supp. 60, 63 (D.D.C. 1980). It provides that, in pertinent part, this court "may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's...causing tortious injury in the District of Columbia by an act or omission in the District of Columbia." D.C. Code Ann. § 13-423(a) (3) (1981). Thus, to meet the statute, plaintiffs must allege an injury in the District of Columbia that was caused by defendants' acts or omissions in the District of Columbia. This injury, however, need not have caused pecuniary damage here. Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883 (D.D.C. 1975). Most important for this case, a tort committed in the District of Columbia that affects a business interest or reputation in the District constitutes an "injury in the District of Columbia" under the terms of the long-arm statute. Akbar v. New York Magazine, 490 F. Supp. at 64. Defendants admit that the allegedly defamatory press release was issued in the District of Columbia. Defendants' Memorandum of Law in Support of Their Motion to Dismiss or for Summary Judgment 7 n. 3. Plaintiffs allege, and defendants do not dispute, that they solicit printing contracts from "various executive agencies," among them the Government Printing Office. First Amended Complaint ¶ 2. The contract suspension and the allegedly defamatory press release could credibly, as plaintiffs assert, have injured their trade or business. Moreover, plaintiff's government contracts are approved or executed at least in part in the District of Columbia, see First Amended Complaint ¶ 43. Taken together, these facts and allegations show that the alleged torts affected plaintiffs' business interests in, among other places, the District of Columbia and therefore injured plaintiffs in the District of Columbia. Thus, plaintiffs have met the requirements of D.C. Code Ann. § 13-423(a). Akbar v. New York Magazine, 490 F. Supp. at 64. SERVICE OF PROCESS WAS PROPERLY EFFECTED. Defendants also ask to dismiss three defendants for insufficiency of process and service of process, pursuant to Fed. R. Civ. P. 12 (b) (4) and (b) (5). The Court must reject these motions. Fed. R. Civ. P. 12 (b) (4) contemplates a challenge to the content or form of a summons. 5 Federal Practice and Procedure at § 1353. Defendants do not specify where defects in the content or form of the summons allegedly lie. Without such allegations, the Court may not grant a 12 (b) (4) motion. Id. The 12 (b) (5) motion is properly stated. Defendants claim that an unauthorized agent accepted service by certified mail on defendants Kennickell, McMahon, and Peel. Were this the only service effectuated, these defendants would have to be dismissed from this action. Under Fed. R. Civ. P. 4(d), service accepted by an unauthorized agent is ineffective. 4 Federal Practice and Procedure: Civil § 1097 (1969 and Supp. 1985). The Court's records show that plaintiffs personally re-served defendant McMahon on May 7, 1986, and defendants Kennickell and Peel on May 8, 1986. This cures any defect in the earlier- attempted service. Maggette v. Dalsheim, 709 F.2d 800, 803 (2d Cir. 1983); Myers v. John Deere Ltd., 683 F.2d 270 (7th Cir. 1982); Cahill v. St. Mary's Hospital of Brooklyn, 20 F.R.D. 103, 103 (E.D.N.Y. 1956). Consequently, the Court finds that service of process has been properly effected denies the 12 (b) (4) and (b) (5) motions. THIS COURT MUST DISMISS ALL BUT TWO COUNTS OF PLAINTIFFS' COMPLAINT Defendants have moved, under Fed. R. Civ. P. 12 (b) (6), to dismiss plaintiffs' complaint for failure to state a claim. The only issue in such motions is whether the complaint, which must be construed most favorably towards the plaintiff and whose allegations must be regarded as true, states a claim for which this Court may grant relief. 5 Federal Practice and Procedure at § 1357. The court is obliged to determine only if the allegations provide for relief under any possible legal theory. Adams v. Bell, 711 F.2d 161, 187 n. 89 (D.C. Cir. 1983), cert. denied, 465 U.S. 1021 (1984). Given this liberal standard, the Court cannot say that all of plaintiffs' claims must be dismissed. The Court will, however, grant defendants' motions with respect to the common law claims and to the constitutional tort purported to arise out of alleged violations of grand jury secrecy requirements. The court will deny the motion with respect to plaintiffs' claims that their fifth amendment interests in due process and reputation were violated. 1. The common law claims. Plaintiffs have alleged common law libel, slander, defamation and false light as a result of the press release issued by defendants. First Amended Complaint ¶ 1. Intentional and malicious injury to business reputation is hornbook defamation. See, 2 F.V. Harper, F. James, Jr. & O.S. Gray, The Law of Torts § 5.12 (2d ed. 1986); Restatement (Second) of Torts § 573, 192-95 (1977); see also, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., U.S. , 105 S. Ct. 2939 (1985). Defendants do not deny that plaintiffs' business reputation may have been harmed by their actions. Nor do they address whether their acts placed plaintiffs in a false light. Instead, defendants assert that absolute or good faith immunity insulates them from liability for any common law torts that may have occurred. Federal officials are absolutely immune for common law torts arising from allegedly libelous and malicious statements made within the "outer perimeter" of their duties. Barr v. Mateo, 360 U.S. 564, 575 (1959); Semi v. United States, 617 F.2d 755, 770 (D.C. Cir. 1979). Barr, like the instant case, involved an allegedly defamatory press release. There, the Supreme Court found that, despite allegations of malice, issuance of the press release was within the "outer perimeter" of an official's duties and therefore within the ambit of absolute immunity. 360 U.S. at 575. That rule equally applies here to deny plaintiffs recovery on the common law claims, and, as a result, defendants' motion to dismiss those claims must be granted. 2. The constitutional tort claims. Remaining for the Court to consider are plaintiffs' constitutional tort claims. Plaintiffs allege that defendants committed three violations of plaintiffs' constitutional rights: violation of their first amendment rights by misuse of secret grand jury information; violation of their fifth amendment interests in reputation; and violation of their fifth amendment interests in proper procedure before the suspension of their government contract. The threshold requirements of a constitutional tort claim are clear. Under the doctrine enunciated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and refined by its progeny, a plaintiff must allege deprivation of a constitutional right as a result of unconstitutional conduct by a federal official acting under color of his authority. See Bivens, 403 U.S. 388 (1971); see also, e.g., Davis v. Passman, 442 U.S. 228 (1979); Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), cert. denied 438 U.S. 916 (1978). To meet this standard, plaintiff must isolate the precise constitutional violation with which each defendant is charged and must allege facts that constitute that specific deprivation. Baker v. McCollum, 443 U.S. 137, 140 (1979); Paul v. Davis, 424 U.S. 693, 697 (1976);2 Doe v. District of Columbia, 697 F.2d 1115, 1123 (D.C. Cir. 1983). Defendants first argue that plaintiffs' claims are insufficiently specific to sound in constitutional tort. The Court disagrees. The complaint specifies that '"each and every defendant." First Amended Complaint ¶ 20. Thus, contrary to defendants' assertions, the complaint does not make "generalized assertions" but avers that all defendants participated in the alleged acts, which themselves are as detailed as the rules of pleading require. See, e.g., Conley v. Gibsom, 355 U.S. 41, 45-46 (1957); Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983). Plaintiffs may face grave difficulties proving that all defendants were so involved, but that does not render their complaint deficient. Defendants also maintain that, even if the complaint is sufficiently specific, the Court may not grant relief because plaintiffs' allegations fail to articulate a claim for a constitutional tort. The court agrees that it must dismiss plaintiff's attempt to base a Bivens action on alleged misuse of grand jury information. The Court will not, however, grant defendants' motion with respect to the fifth amendment claims. Plaintiffs argue that defendants' alleged misuse of grand jury information violates plaintiffs' first amendment interests in privacy. The Supreme Court has recently implied that constitutional tort actions may be grounded on first amendment violations for which the injured party would be entitled to compensatory damages. Memphis Community School District v. Stachura, U.S. , 106 S. Ct. 2537 (1986). This circuit has long recognized that the principles set forth in Bivens extended to violations of a person's First Amendment rights. Dellums v. Powell, 566 F.2d 167, 194-96 (D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978). But no cognizable claim undergirds plaintiffs' efforts to predicate a Bivens action on alleged misuse of grand jury information. The secrecy with which Fed. R. Crim. P. 6(e) argues grand jury proceedings is integral to our criminal justice system. It helps ensure that only those against whom there is substantial, trustworthy, and untainted evidence will be indicted. United States v. Sells Engineering, 463 U.S. at 424; Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979). That secrecy, however, is not a constitutional demand but a creature of the Federal Rules of Criminal Procedure. See, e.g. United States v. Sells Engineering U.S. at 425; Murphy Federal Bureau of Investigation, 490 F. Supp. 1138, 1140 (D.D.C. 1980); Pakistan International Airlines Corp. v. McDonnell Douglas Corp., 94 F.R.D. 566, 567 (D.D.C. 1982). As such, its breach is not a constitutional violation, and it therefore is not a proper predicate for a constitutional tort claim. This Court is not untroubled by the possibility that a misguided government official could escape penalty for intentional malicious breach of the secrecy requirement. While such breaches are, in the experience of this and apparently other Courts, exceptionally rare, they ought not to go unpunished.3 But a constitutional tort action is not the proper (or even permissible) form of redress. This Court must grant defendants' motion to dismiss plaintiffs' claim that a constitutional tort arose from defendants' alleged misuse of grand jury information. Plaintiffs are more successful with respect to their claims for tortious violation of their fifth amendment interests. Plaintiffs allege that the contract suspension process deprived them of their constitutional liberty interests. They also allege that defendants infringed their liberty interest by stigmatizing plaintiffs in a manner that affects their profession. First Amended Complaint at ¶ 49(h). Violation of due process rights can give rise to a constitutional tort. Davis v. Passman, 442 U.S. 228 (1970); Doe v. Department of Justice, 753 F.2d at 1104. The due process guarantees required in suspension proceedings against government contractors are clear. Due process demands that a party to a suspension proceeding receive prior notice detailing the charges against him and be provided an opportunity to respond. Old Dominion Dairy v. Secretary of Defense, 631 F.2d 953 (D.C. Cir. 1980). Plaintiffs contend that defendants did not afford them adequate notice prior to suspension of their contract. First Amended Complaint ¶¶ 39, 40. As such, the Court may grant relief on this claim and may not dismiss it. Plaintiffs' claim of stigmatization could also support a constitutional tort action. Injury to reputation, when coupled with some tangible change in status, can trigger a liberty interest that requires provision of due process. Paul v. Davis, 424 U.S. at 694; Doe v. Department of Justice, 753 F.2d at 1105. Suspension of plaintiffs' government contract, together with the alleged foreclosure of other business opportunities, Complaint at ¶ 43, constitutes a change in status sufficient to give rise to the liberty interest. Id. Plaintiffs' assertion that defendants unjustly stigmatized plaintiff Camm could therefore be read to articulate a claim for which this Court could grant relief. In consequence, the Court must deny defendants' motion to dismiss this claim as well. PLAINTIFFS HAVE NOT SHOWN A NEED FOR DISCOVERY TO OPPOSE DEFENDANT'S SUMMARY JUDGMENT MOTION. Defendants filed their Motion to Dismiss or for Summary Judgment on March 5, 1986. On April 25, 1986, plaintiffs submitted their "Answer to Defendants (sic) Motion for Summary Judgment or to Dismiss," along with a lengthy Statement of Material Facts in Dispute, nineteen evidentiary exhibits, and one affidavit. Despite this extensive proffer of evidence that plaintiffs believe demonstrates disputes over material facts, on July 23, 1986, plaintiff moved for discovery pursuant to Fed. R. Civ. P. 56(f). Rule 56(f) provides: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Rule 56(f) is infused with a spirit of liberality. Wallace v. Brownell Pontiac-GMC Company, Inc., 703 F.2d 525, 527 (11th Cir. 1983). Consequently, plaintiffs' failure to provide affidavits detailing the need for and nature of the proposed discovery would not necessarily bar a 56(f) motion that otherwise seemed justified. See, e.g., Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1106 (5th Cir.), cert. denied, 414 U.S. 1116 (1973). Unfortunately for plaintiffs, they have hardly shown a need for gathering additional information. Plaintiffs state that "their answer to Defendant (sic) motion for summary judgment is sufficient......" Plaintiffs' Memorandum of Law in Support of Plaintiff's (sic) Motion for Discovery Pursuant (sic) to Rule #56 (f) 1; see also, Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Discovery Pursuant (sic) to Rule #56 (f) 1. Thus, plaintiffs' belief that they have documented "facts essential to justify [their] opposition" is obvious. Nonetheless, they ask for apparently unlimited discovery to supplement their answer in case this Court is not convinced that their opposition is justified. Plaintiffs' Memorandum of Law at 1; Plaintiffs' Reply at 1. To grant plaintiffs' motion would be to the purpose of Rule 56(f). Under the Federal Rules, a party who has had a reasonable opportunity to prepare his case may not plead ignorance of the facts that would support his Opposition. See, 10A Federal Practice and Procedure at § 2741 (1983). Instead, a respondent to a summary judgment motion must either present affidavits opposing a summary judgment motion or explain his inability to do so. United States v. General Motors Corp. 518 F.2d 420, 442 (D.C. Cir. 1975). He may not submit a bevy of exhibits, bill them a sufficient answer to a summary judgment motion, and three months later petition for additional discovery to stave off a potentially adverse ruling. There is a second ground for denying plaintiffs' motion. In a recent case, the Court of Appeals for this Circuit summarized the burden that a Rule 56(f) movant bears. He must "show...the trial court what facts he hopes to discover and what reason justifies his inability to produce them on the motion." Hotel & Restaurant Employees Union, Local 25, et. al., v. Attorney General of the United States, No. 84-5859, slip op. at 22-23 (Oct. 31, 1986) (citing Exxon Corp. v. FTC, 633 F.2d 120, 126-27). Plaintiffs' motion does not even attempt to meet this burden. As such, the Court must deny their motion for additional discovery. DEFENDANTS' SUMMARY JUDGMENT MOTION MUST BE GRANTED IN PART AND DENIED IN PART. The Court has dismissed all of plaintiffs' claims save for the constitutional torts allegedly arising out of defendants' stigmatization of plaintiffs and out of the suspension process. Defendants have moved for summary judgment on these claims and advance two arguments to support that motion. First, they submit that the material facts in this case are undisputed and the law commands judgment in defendants' favor on those facts. They also argue that, even if this Court finds a factual dispute, defendants' absolute or qualified immunity compels a finding that defendants are not liable. The Court will grant the motion as to the stigmatization claim and deny it as to me claim arising out of the suspension process. Only if no material facts are disputed is summary judgment appropriate. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Inc., et al., v. National Right to Work Legal Defense and Education Foundation, et al., 781 F.2d 928, 932 (D.C. Cir. 1986). Regardless of any factual dispute, immunity may appropriately be determined on summary judgment. Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982); Gray v. Bell, 712 F.2d 490, 496 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100 (1984). The parties agree on the material facts with respect to plaintiffs' stigmatization claim. Specifically, defendants' questioning of plaintiffs' business integrity, and the alleged stigma that resulted from defendants' statements, hampered plaintiffs' opportunity to compete for and obtain government contracts. The Court need not consider whether this stigma was sufficient to invoke due process guarantees. Even if it were, plaintiffs would be entitled only to a meaningful opportunity to clear their names. Id. at 1111-12; Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d at 963-65. Plaintiffs have already participated in hearings and conferences at which they presented evidence intended to convince defendants of plaintiffs' untainted business record. E.g., Plaintiffs' Exhibit 17, Defendants' Exhibits 4, 9. Due process requires no more. Codd v. Vegler, 429 U.S. 624, 627 (1977); Doe v. Department of Justice, 753 F.2d at 1112-14. In consequence, the stigmatization claim does not amount to a constitutional tort, and defendants are entitled to summary judgment with respect to that claim. Defendants' argument fares worse with respect to the suspension hearing. Due process demands that a party to a suspension proceeding receive notice detailing the charges against him and be provided an opportunity to respond. Old Dominion Dairy v. Secretary of Defense, 631 F.2d 953. Unless the government can show why it was impossible to do so, that notice must be provided to a government contractor before a suspension of longer than one month occurs. Id. at 966-67. If notice is not so provided, the contractor's fifth amendment interest are violated and, under the doctrine established by Bivens and Davis v. Passman, a constitutional tort may have occurred. Plaintiffs maintain that their contract with the Government Printing Office was suspended for more than one month without prior notice. Notice of Suspension, Plaintiffs' Exhibit 3; Camm Affidavit, Plaintiffs' Exhibit 13, at 6. Defendants do not controvert this claim. See, Defendants Exhibit 7. Nor do they aver that it would have been impossible to provide plaintiffs prior notice or detailed notice and a hearing when it was clear that the suspension would exceed one month. As such, the material facts surrounding plaintiffs' suspension hearing are not undisputed. Ordinarily, existence of such a factual dispute would by itself defeat a summary judgment motion. John Curry Skating Co. v. John Curry Skating Co., 626 F. Supp. 611, 616 (D.D.C. 1985). Here, however, defendants also argue that summary judgment is appropriate regardless of any factual controversy because their acts are entitled to absolute or qualified immunity. As this Court has made clear, plaintiffs have successfully asserted one claim that sounds in constitutional tort. Defendants, who do not serve the government in the high-ranking and narrowly defined positions to which absolute immunity may be accorded, may claim only qualified immunity for any tort that may have occurred. Butz v. Economou, 478 U.S. 478 (1978); Gray v. Bell, 712 F.2d at 497; Sami v. United States, 617 F.2d 755, 768 (D.C. Cir. 1979). The Supreme Court has recently clarified the standard governing qualified, or "good faith," immunity. Under Harlow v. Fitzgerald, 457 U.S. 800, mere allegations of malice cannot defeat an immunity claim. Id. at 817-18. Instead, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which are reasonable person would have known." Id. at 818 (emphasis added). Horlow's objective test allows this Court to examine only whether defendants' alleged conduct violated clearly established law of which a reasonable person would be aware. See also, Mitchell v. Forsyth, U.S., 105 S. Ct. 2806, 2816 (1985). A government contracting agent is expected to be aware of the clear constitutional standards surrounding the suspension process. Old Dominion Dairy v. Secretary of Defense, 631 F.2d at 968-69. If defendants suspended plaintiffs' contract without prior notice, could have provided the required notice, and the suspension lasted longer than one month, their conduct would indeed have violated "clearly established law" and thereby lost its ordinary shield. Consequently, this Court finds that there is an issue of fact as to the due process protections surrounding plaintiffs' suspension. It further finds that, should these facts support relief for plaintiff, the Court could not accord defendants' action immunity. As such, the court must deny summary judgment as to this element of plaintiffs' complaint. CONCLUSION The court will deny defendants' motion to dismiss plaintiffs' complaint under Fed. R. Civ. P. 12 (b) (1), (2), (4), and (50). It will grant defendants' 12 (b) (6) motion to dismiss plaintiffs' claim of common law torts and tortious violation of plaintiffs' purported constitutional rights in grand jury secrecy. The Court will deny plaintiffs' motion for discovery under Fed. R. Civ. P. 569(f). The Court will grant defendants' motion for summary judgment as to plaintiffs' stigmatization claim but will deny the motion as to plaintiffs' constitutional tort claim of injury from alleged improprieties surrounding suspension of plaintiff's contract. That is the only claim remaining in this case. November 3, 1986 CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE _______________ 1 Plaintiffs' complaint also states that it is "brought on the basis" of conspiracy and a "privacy right" tort. First Amended Complaint ¶ 1. The Court cannot discern any conspiracy count or allegations amounting to a conspiracy count in plaintiffs' complaint. Nor can the Court divine any allegations of common law tort resulting from alleged intrusions into plaintiffs' privacy. 2 Baker v. McCollum and Paul v. Davis are not Bivens actions but arise under § 1983. Their doctrine is nonetheless applicable to Bivens claims, as the Supreme Court has made clear that Bivens actions are in most respects identical to § 1983 claims. Carlson v. Green, 446 U.S. 14, 18-25 (1980). Differences between the two are not relevant to this action. E.g., Monell v. Department of Social Services, 436 U.S. 658 (1978) (respondeat superior applies in § 1983 suits but not in Bivens claims); Robertson v. Wegman, 436 U.S. 584 (1978) (survivorship problems different). 3 There are, of course, sanctions designed to protect against breaches of grand jury secrecy. For instances, a court may enjoin unauthorized use of disclosure of grand jury information. United States v. Sell Engineering, 463 U.S. 418 (1983); Fleet National Bank v. Export-Import Bank of the United States, 612 F. Supp. 859, 867-68 (D.D.C. 1985). Moreover, Rule 6 (e) (2) itself provides that knowing unauthorized disclosure of information before the grand jury in punishable as contempt of court.