Robert J. Camm, et al.,             )
          Plaintiffs,               )
          v.                        )   Civil Action No. 85-3844
Ralph E. Kennickell, Jr., et al.,   )
          Defendants.               )

                  OPINION OF CHARLES R. RICHEY


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.


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.


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

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

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.


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.



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).