Majid v. Federal Bureau of Investigation , 245 F. Supp. 3d 63 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Joseph Majid,
Plaintiff,
v.
Federal Bureau Civil Action No. 16-731 {GK)
Of Investigation, et al.
Defendant.
MEMORANDUM OPINION
Plaintiff Joseph Maj id brings this lawsuit against Nikki
Wallace, his former co-worker at DynCorp International, Inc.
("DynCorp"), the Federal Bureau of Investigation ("FBI"), and two
unnamed agents of the FBI, John Doe #1 and John Doe #2 ("the John
Doe Agents"). Mr. Majid alleges that while working in Afghanistan
as an interpreter for the U.S. military, Ms. Wallace falsely told
his supervisors that he was a security risk and potential terrorist
sympathizer. He further alleges that this triggered an FBI
investigation, and ultimately a campaign of harassment against him
by the FBI and the two John Doe-Agents. Mr. Majid has brought
numerous claims against the various defendants, based on the United
States' Constitution, the Privacy Act, 5 U.S.C. § 552(a), various
California statutes, and the common law of the state of California.
Presently before the Court is the FBI's Motion to Dismiss or,
in the Alternative, for Summary Judgment [Dkt. No. 6] ("MTD" or
"Motion"), arguing that the Court should dismiss those claims that
Mr. Majid has brought against the FBI or grant summary judgment to
the FBI on those claims. The FBI also argues that if the claims
against the FBI are dismissed, the Court lacks jurisdiction to
hear the remaining claims and should dismiss the entire action.
Based on the Complaint, the Motion, the Opposition, the Reply,
and the entire record herein, the FBI's Motion will be granted in
part and denied in part. The constitutional and state law claims
against the FBI contained in Counts VI and VIII will be dismissed,
but the Privacy Act claims contained in Count V and the remaining
claims against the other Defendants will not be dismissed.
I . BACKGROUND
A. Factual Background
Mr. Majid is an American Citizen of Afghan descent who is
fluent or proficient in a number of languages other than English,
such as Dari, Pashto, Russian, and Turkmen. Complaint ~ 1. Given
his language skills he was hired by DynCorp in June of 2012 to
serve as a security linguist in Afghanistan, assisting U.S.
military personnel. Id. at ~~ 1, 10-11.
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Mr. Majid and Ms. Wallace, another DynCorp employee, began
working together in Afghanistan in January of 2013. Id. at ~ 12.
Mr. Majid alleges that immediately after they began working
together, Ms. Wallace treated him with hostility because he was of
Afghan descent and she was jealous that he was being paid at a
higher salary than she received. Id. at ~~ 12-14. He alleges she
spread false rumors about him to their military clients, and filed
a false report with their superiors indicating that he was a
security risk and potential terrorist sympathizer, which forced
him to resign from DynCorp. Id. at ~~ 14-15. Mr. Majid alleges
that because of this "defamatory" report, his security clearance
has an "incident" associated with it, and that he can no longer
obtain comparable employment to his position as a security
linguist. Id. at ~ 17.
Mr. Majid alleges that, as a result of these false reports,
the FBI began investigating him. Id. at ~ 16. He alleges that
two John Doe Agents have been intrusively surveilling him and
implying to his employers that he is a security risk and a
potential terrorist. Id. at ~ 18, 25, 26. He alleges that as a
consequence of the FBI investigation he has lost multiple jobs.
See Id. at ~~ 16, 19.
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B. Procedural Background
Mr. Majid filed his Complaint on April 19, 2016. [Dkt. No.
1]. In Count I, Mr. Majid alleges that Ms. Wallace's reports to
the FBI constitute negligent misrepresentation. Id. ~~ 27-34. In
Count II-IV, Mr. Majid alleges that the John Doe Agents negligently
carried out their investigation, intentionally inflicted emotional
distress upon him, and invaded his privacy. Id. ~~ 35-45.
In Count V, Mr. Maj id alleges that the FBI violated the
Privacy Act, by maintaining inaccurate records about him. Id. ~~
46-50. In Count VI, Mr. Majid alleges that the FBI and the two
John Doe Agents deprived him of his rights to procedural due
process under the United States' Constitution. Id. ~~ 51-57.
In Count VIII, Mr. Majid alleges that the two John Doe Agents
violated his rights to life, liberty and happiness, to travel
freely, and to be free of false stigma. Id. ~~ 58-64. Finally,
in Count VII, Mr. Majid alleges that all of the Defendants violated
Sections 51.7 and 52.1 of the California Civil Code, subjecting
him to threats based on his race or national origin and interfering
with his right to privacy.
A Summons was issued to the FBI, as well as to the two John
Doe Agents, care of the FBI. [Dkt. No. 2-1]. Similarly, a Summons
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was issued to Ms. Wallace, care of DynCorp. Id. Only the FBI has
made an appearance before this Court. 1
On August 8, 2016, the FBI filed this Motion to Dismiss or,
in the Alternative, for Summary Judgment, seeking dismissal of or
judgment on those claims that have been brought against the FBI,
contained in Counts V, VI, and VII, and arguing that, if those
claims are dismissed, the court lacks jurisdiction to hear the
remaining claims. On October 6, 2016, Mr. Majid filed his
Opposition. [Dkt. No. 8] On October 27, 2016, the FBI filed its
Reply. [Dkt. No. 9] .
II. STANDARD OF REVIEW
A. Motion to Dismiss
1. Standard for Dismissal under Rule 12{b) (1) for Lack
of Jurisdiction
Federal courts are courts of limited jurisdiction, possessing
"only that power authorized by Constitution and statute." Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "It is
to be presumed that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the
1 The Department of Justice has made clear that it represents only
the FBI, as an agency, in this matter and that it does not represent
the John Doe Agents. MSJ at 15 n.4.
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[plaintiff]." Id.; see also Shuler v. United States, 531 F.3d 930,
932 (D.C. Cir. 2008).
In deciding whether to grant a motion to dismiss for lack of
jurisdiction under Rule 12(b) (1), the court must "'accept all of
the factual allegations in the complaint as true. '" Jerome Stevens
Pharmaceuticals, Inc. v. F.D.A., 402 F.3d 1249, 1253-54 (D.C. Cir.
2005) (quoting United States v. Gaubert, 499 U.S. 315, 327 (1991)).
Nonetheless, "[t]he plaintiff's factual allegations in the
complaint will bear closer scrutiny in resolving a 12(b) (1) motion
than in resolving a 12(b) (6) motion for failure to state a claim."
Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d
9, 13-14 (D.D.C. 2001).
2. Standard for Dismissal under Rule 12 (b) (6) for
Failure to State a Claim
Rule 12(b) (6) of the Federal Rules of Civil Procedure permits
dismissal for the "failure to state a claim upon which relief can
be granted." Fed. R. Civ. P. 12(b) (6). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citations omitted). A claim is facially
plausible when the pleaded facts "allows the court to draw the
reasonable inference that the defendant is liable for the
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misconduct alleged." Id. Plausibility requires "more than a sheer
possibility that a defendant has acted unlawfully," but it is not
a "probability requirement." Id.
At the Rule 12 (b) (6) stage, the court accepts all of the
complaint's factual allegations as true and draws all reasonable
inferences from those facts in plaintiff's favor. Browning v.
Clinton, 292 F.3d 23S, 242 (D.C. Cir. 2002). In addition to the
complaint, the ·court may consider "other sources," such as
"documents incorporated into the complaint by reference and
matters of which a court may take judicial notice." Tellabs, Inc.,
SSl U.S. 308, 322 (2007) (citing SB Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure, § 13S7 (3d ed. 2004)
(hereinafter "Wright & Miller))); Maggio, 79S F.3d S7, 62 (D.C.
Cir. 201S). The court may take judicial notice of matters of
public record. Abhe & Svoboda, Inc. v. Chao, S08 F.3d 10S2, 10S9
(D.C. Cir. 2007) (public records are "subject to judicial notice
on a motion to dismiss"); see also SB Wright & Miller § 13S7.
B. Motion for Summary Judgment
Summary judgment may be granted only if the pleadings, the
discovery materials, and affidavits on file show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. See Arrington v. United
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...
States, 473 F.3d 329, 333 (D.C. Cir. 2006); Fed. R. Civ. P. 56(c).
"A dispute over a material fact is 'genuine' if 'the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.'" Arrington, 473 F.3d at 333 (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is
"material" if it might af feet the outcome of the case under the
substantive governing law. Id.
The burden is on the moving party to demonstrate the absence
of any genuine issues of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). When a moving party successfully does
so, the nonmoving party must show the existence of a genuine issue
of material fact by providing "specific facts showing that there
is a genuine issue for trial," and "may not rest on mere
allegations or denials" to prevail. Burke v. Gould, 286 F.3d 513,
517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248 (internal
quotation marks omitted) . The moving party is entitled to summary
judgment when the nonmoving party fails to offer evidence
sufficient to establish an essential element of a claim on which
it will bear the burden of proof at trial. Celotex, 477 U.S. at
322.
In reviewing the evidence on a motion for summary judgment,
the court views the evidence in the light most favorable to the
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nonmoving party and draws all inferences in her favor. Johnson v.
Perez, 823 F.3d 701, 705 (D.C. Cir. 2016). "Credibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge at summary judgment." Barnett v. PA Consulting Grp.
Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (internal quotation marks
and citation omitted). Accordingly, the Court's role is "not [to]
determine the truth of the matter, but instead [to] decide only
whether there is a genuine issue for trial." Id.
III. ANALYSIS
A. Count V: Privacy Act Violation by the FBI
Mr. Majid alleges that the FBI maintains records about him
that are inaccurate, because they are based on the false and
defamatory reports of Ms. Wallace, and he seeks an opportunity to
review and correct these records pursuant to the Privacy Act.
Complaint ~~ 46-50. The FBI seeks dismissal or, in the
alternative, summary judgment on this claim, arguing that the
records Mr. Majid seeks from the agency are exempt from the Privacy
Act's access provisions. MSJ at 7-9.
"A principal function of the [Privacy] Act is to require
agencies to keep accurate systems of records." Doe v. F.B.I., 936
F.2d 1346, 1350 (D.C. Cir. 1991) (internal citations and quotation
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marks omitted) . The Privacy Act requires agencies to make
reasonable efforts to ensure the accuracy of the records it
maintains about individuals. Id. In furtherance of this goal,
the Privacy Act grants individuals the right to access agency
records that pertain to them, and to request amendment of any
records that are inaccurate. See id. (citing 5 U.S.C. § 552a(d)).
"Where an agency denies such an amendment request, the Act grants
the individual seeking amendment the right to obtain agency
review." Id. (citing 5 U.S.C. § 552a(d) (3), (g)). If the agency
refuses to amend the record, the individual may then seek judicial
review of that determination. 5 U.S.C. § 552a(d) (3), (g).
However, law enforcement agencies may promulgate rules to
exempt criminal records systems from these individual access and
judicial review provisions, if the records contain "information
compiled for the purpose of a criminal investigation, including
reports of informants and investigators, and associated with an
identifiable individual." 5 U.S.C. § 552a(j) (2) (B). The FBI has
exercised this authority to exempt its Central Records System
("CRS") from the individual access provisions of the Privacy Act. 2
28 C.F.R. § 16.96; Doe, 936 F.2d at 1353.
2 As the FBI notes, making such investigative files available to
the subject of an investigation would enable the subject to impede
the investigation, by destroying evidence, or intimidating
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Records contained in CRS are exempt if "if they constitute
law enforcement records within the meaning of the statute.
Accordingly, the FBI bears the burden of demonstrating a law
enforcement purpose for each record as to which it has claimed
exemption in this case." Doe, 936 F.2d at 1353. "[R]ecords kept
by a law enforcement agency must meet two criteria in order to
qualify as law enforcement records:"
First, 'the agency's investigatory activities that give
rise to the documents sought must be related to the
enforcement of federal laws or to the maintenance of
national security .
Second, 'the nexus between the investigation and one of
the agency's law enforcement duties must be based on
information sufficient to support at least a colorable
claim of its rationality.' This second requirement is
'deferential to the particular problems of a criminal
law enforcement agency' ; while it is not met where the
agency offers a 'pretextual or wholly unbelievable'
basis for a claim that its investigation was rationally
related to its law enforcement duty, a reviewing court
'should be hesitant to second-guess a law enforcement
agency's decision to investigate if there is a plausible
basis for its deciiion.'
Doe, 936 F.2d at 1353-54 (quoting Pratt, 673 F.2d 408, 420 (D.C.
Cir. 1982)) (internal citations omitted).
"When an agency meets both prongs of the Pratt test, the
burden shifts to the plaintiff to produce evidence that the
potential witnesses, or fleeing to avoid potential arrest. 28
C.F.R. § 16.96(b) (1).
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asserted law enforcement rationale for an investigation was in
fact pretextual." Id. at 1354.
The FBI argues that Mr. Majid's Complaint makes clear that,
to the extent any records about Mr. Majid exist, those records are
exempt law enforcement records, and consequently, that he has
failed to state a claim upon which relief can be granted. 3 The
FBI notes that Mr. Maj id's Complaint identifies the records he
seeks as having been created pursuant to an investigation that was
itself initiated after information was shared with the FBI that
Mr. Maj id might pose a "security risk to America." Reply at 4
(quoting Complaint ~ 53 and citing Complaint ~~ 14, 15, 18, 26,
34, 36, 46). Consequently, the FBI argues that Mr. Maj id's
Complaint establishes that the records he seeks are "law
enforcement records." The FBI asserts that such law enforcement
records are ordinarily contained in "investigative files," which
are stored in CRS, an exempt system of records. FBI's Statement
of Material Facts as to which there is No Genuine Issue ("SOMF")
~ 4 [Dkt. No. 6] . 4 Consequently, the FBI argues that to the extent
3 The FBI has refused to confirm or deny that Mr. Majid is the
subject of an investigation or that it has any files regarding Mr.
Majid. Reply at 5 n.2.
4 The SOMF refers to entries in the Federal Register and the
Code of Federal Regulations that exempt CRS from the Privacy Act.
SOMF ~~ 4,5 (citing 68 Fed. Reg. 8671 (Feb. 20, 1998) and 28 C.F.R.
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that any records about Mr. Majid exist, they are necessarily law
enforcement records stored in an exempt system of records.
There is a major problem with the FBI's argument. Nowhere in
the record - not in the Complaint, not in the briefs, not even in
the FBI's Statement of Material Facts - does it establish that any
and all FBI records about Mr. Majid are located in CRS. While it
stands to reason that any such investigative files about Mr. Majid
are stored in CRS - because that is the ordinary practice of the
FBI - there is nothing in the record that conclusively establishes
that such files are not stored in another system of records that
is not exempt from the individual access and judicial review
provisions of the Privacy Act.
Bailey v. Bureau of Prisons is directly on point. 133 F.
Supp. 3d 50, 57 (D.D.C. 2015). In that case, the plaintiff was a
prisoner held in a Bureau of Prisons (BOP) facility. Id. at 52.
He alleged that BOP had wrongly categorized him as a gang member,
resulting in changes in the conditions of his confinement, and had
violated the Privacy Act by maintaining records that contained
false information about him. Id. at 56. BOP argued that the
§ Both are matters of public record of which the Court
16. 96) .
may take judicial notice.
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relevant records were of the type regularly stored in an exempt
system of records and moved to dismiss his claims. Id. at 57.
The court refused to grant BOP's motion to dismiss, holding
that the defendant had produced no evidence that the records the
plaintiff sought were actually stored in the exempt system. Id.
The court found that the defendants had offered no evidence
"whatsoever averring where exactly these documents are housed,
making it impossible for this Court to determine whether the
documents are in fact Privacy Act-exempt." Id. The court
concluded that while "[i]t would certainly stand to reason that
documents relating to the BOP's investigation of inmate Bailey are
housed within [the exempt system]" given BOP's practices, it was
"by no means a foregone conclusion" given the lack of evidence.
Id.
Similarly, in this case the FBI asserts that any files about
Mr. Majid that may exist would be investigative files, and that,
as a routine practice, such investigative files are stored in CRS.
Just as in Bailey, such "[g] eneralities alone cannot suffice."
133 F. Supp. 3d at 57. Instead, the FBI must come forward with
some affirmative evidence, such as sworn affidavits or
declarations, to demonstrate that records about Mr. Majid, to the
extent they exist, are stored in an exempt system. See Bailey,
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133 F. Supp. 3d at 57; also Antonelli v. Fed. Bureau of Prisons,
591 F. Supp. 2d 15, 29-30 (D.D.C. 2008) (summary judgment granted
where the agency provided a sworn declaration that the relevant
records were maintained in an exempt system) .
The FBI's attempt to rely on Mr. Majid's Complaint to
establish that the records he seeks are stored in CRS also fails.
Had Mr. Majid's Complaint expressly alleged that the records he
seeks are stored in CRS, he may well have pled himself out of a
cause of action. See Arnold v. U.S. Secret Serv., 524 F. Supp. 2d
65, 66 (D.D.C. 2007) (dismissing Privacy Act claim where the
complaint expressly stated that the relevant records were stored
"in the Secret Service Protection Information System USSS.007" and
it was undisputed that it was an exempt system of records). But
Mr. Majid's Complaint says no such thing; instead, it merely states
that he seeks investigative records. Consequently, there is
nothing in the Complaint that establishes that the records he seeks
are in fact stored in CRS.
Ultimately, it is the FBI's burden to demonstrate that the
records Mr. Majid seeks access to are stored in CRS or some other
exempt system of records, and it has not done so. Mr. Majid's
Complaint states a plausible Privacy Act claim, so the claim cannot
be dismissed under Rule 12(b) (6). In addition, the FBI's
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submissions do not establish that there is no genuine issue as to
any material fact, and so it is not entitled to summary judgment
under Rule 56. Because the FBI has failed to establish that there
are actual records about Mr. Majid that are stored in other, non-
exempt systems, the FBI's Motion must be denied.
B. Count VI: Deprivation of Due Process by the FBI
Mr. Majid alleges that he was deprived of due process by the
FBI and the John Doe Agents because they failed to provide him an
opportunity to rebut the false allegations made by Ms. Wallace.
Complaint ~ 55. The FBI seeks dismissal of this claim as it
relates to the FBI, arguing that there has been no waiver of
sovereign immunity to hear this claim, and consequently, that the
Court lacks jurisdiction. MTD at 9-10.
"Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit." F.D.I.C. v. Meyer, 510
U.S. 471, 475 (1994). "Sovereign immunity is jurisdictional in
nature." Id. ("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" (internal citations and quotation
marks omitted). "A waiver of the United States's [sic] sovereign
immunity must be unequivocally expressed in statutory text and
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will not be implied." Settles v. U.S. Parole Comm'n, 429 F.3d
1098, 1105 (D.C. Cir. 2005) (internal citations omitted).
Here, neither Mr. Majid's Complaint nor his Opposition to the
FBI's Motion identify any statute in which the United States has
waived sovereign immunity to allow this Court to hear his claim.
Instead, Mr. Maj id argues that Bivens supplies the necessary
waiver. See Opp' n at 6-8 (citing Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 389 (1971)). He is wrong.
In Bivens, the Supreme Court recognized that an implied cause
of action exists against federal officials who violate an
individual's constitutional rights. 403 U.S. at 389. However,
whether a cause of action exists is a distinct question from
whether Congress has waived the sovereign immunity of the United
States. Meyer, 510 U.S. at 483-84.
Bivens does not, indeed cannot, create the necessary waiver
of sovereign immunity; all Bivens does is provide a cause of action
against federal officials in their personal capacities. Id.
Because an official, who is sued in her personal capacity, is not
clothed in the sovereign immunity of the United States, Clark v.
Library of Cong., 750 F.2d 89, 103 (D.C. Cir. 1984), Bivens has
nothing to say about the waiver of sovereign immunity. Moreover,
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"Bivens claims are not available against federal agencies."
Abdelfattah v. U.S. Dept. of Homeland Sec., 787 F.3d 524, 534 (D.C.
Cir. 2015) (citing Meyer, 510 U.S. at 483-86)); Drake v. F.A.A.,
291 F.3d 59, 72 (D.C. Cir. 2002) ("It is of course well-settled
that Bivens liability cannot be imposed on an agency of the Federal
Government."). Accordingly, Mr. Majid cannot rely on Bivens to
establish the necessary waiver of sovereign immunity.
As Mr. Majid has failed to establish that sovereign immunity
has been waived, the Court lacks jurisdiction to hear Mr. Majid's
claim against the FBI under Count VI, and that claim will be
dismissed pursuant to Rule 12(b) (1).
C. Count VIII: Violations of CA Code against FBI
Mr. Majid alleges that the FBI violated Sections 51.7 and
52.1 of the California Civil Code. Complaint ~~ 65-71. As with
Count VI, the FBI seeks dismissal of Count VIII of Mr. Majid's
Complaint, as it relates to the FBI, arguing that there has been
no waiver of sovereign immunity to hear this claim. MTD at 10.
As Mr. Majid did with his constitutional claims in Count VI,
he argues that Bivens provides the necessary waiver of sovereign
immunity. Opp'n at 9-10. That is incorrect for the same reasons
discussed above. Accordingly, the Court lacks jurisdiction to
hear Mr. Majid's claims against the FBI, alleging violations of
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the California statutes, and that claim will be dismissed pursuant
to rule 12 (b) (1) .s
D. Additional Arguments
Finally, the FBI makes a number of additional arguments
regarding the absence of jurisdiction, improper venue, and Mr.
Majid's request for injunctive relief.
1. Diversity Jurisdiction
The FBI argues that Mr. Majid's Complaint establishes that
there is a lack of complete diversity amongst the parties, because
his Complaint alleges that both the John Doe Agents and Mr. Majid
are residents of California. MSJ at 12 n.2.
5 The FBI, on its own initiative, has suggested that the Federal
Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346 (b), 2671-80, might
provide the necessary waiver of sovereign immunity. MTD at 10-11
(citing 28 U.S.C. § 2674). However, the FBI also argues that Mr.
Maj id cannot avail himself of the FTCA for various reasons,
including a failure to exhaust his administrative remedies. MTD
at 10-14 (citing 28 U.S.C. § 2675 (requiring, as a prerequisite to
filing suit under the FTCA, that claimants must first present their
claim to the agency they allege injured them)).
Mr. Majid appears to disclaim any reliance on the FTCA. Opp'n
at 9. However, to the extent he does bring this claim pursuant to
the FTCA, it is undisputed that he has failed to comply with its
requirements in 28 U.S.C. § 2675. For example, the FBI is correct
that he failed to exhaust his administrative remedies, and that
the Court would have to dismiss his claims on that basis. See
Wasserman v. Rodacker, 557 F.3d 635, 642 (D.C. Cir. 2009)
(dismissal of FTCA claim was proper where plaintiff failed to
exhaust administrative remedies) .
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Although the FBI is correct that "complete diversity of
citizenship" amongst the parties is required to invoke diversity
jurisdiction under 28 U.S.C. § 1332, Caterpillar Inc. v. Lewis,
519 U.S. 61, 68 (1996) f its argument fails because it
mischaracterizes Mr. Majid's Complaint. Mr. Majid does not allege
that the John Doe Agents are citizens of California, only that
they "work out of [the FBI's] California office." Complaint~~ 3,
4. There is nothing in the Complaint that establishes that the
John Doe Agents' duty station is the same as the state of which
they are citizens, and therefore this allegation alone cannot
establish an absence of diversity. 6
Since the Court must accept as true Plaintiff's
uncontroverted allegation that the John Doe Agents are citizens of
a different state, diversity jurisdiction exists as of now.
2. Supplemental Jurisdiction
The FBI argues that the court lacks supplemental jurisdiction
to hear Mr. Majid's state law claims. MSJ at i2 n.2. Given that
6 The FBI argues that by failing to respond to this argument in
his Opposition, Mr. Majid has conceded the absence of diversity
jurisdiction. Reply at 2. Given that the FBI's own argument is
wholly without merit, the Court will not grant the FBI's Motion on
this basis. To the extent that the John Doe Agents exist and are
residents of California, that information is entirely within the
possession of the FBI and it may introduce such information at any
time.
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the Court will not dismiss the Privacy Act claims against the FBI,
this Court has supplemental jurisdiction over the state law claims
pursuant to 28 U.S.C. § 1367(a), as the FBI concedes in its Motion.
MSJ at 12 n.2.
3. Venue
The FBI argues that this Court is an improper venue because,
under the FTCA, Mr. Maj id should have brought this action in
California. MSJ at 13. The FBI is correct that the FTCA only
authorizes a suit to be brought in the judicial district where the
plaintiff resides or where the challenged act or omission occurred.
28 U.S.C. § 1402(b). However, Mr. Majid did not rely on the FTCA
in either his Complaint or his merits briefing. Indeed, given
what remains of Mr. Majid's claims once this Opinion issues, none
appear to have been brought pursuant to the FTCA. Accordingly,
the FBI's argument that this Court is an improper venue to hear
the FTCA claim fails.
4. Claims for Injunctive Relief
Finally, the FBI argues that Mr. Majid's request for
injunctive relief, contained in Counts II and III of his Complaint,
are without merit. That argument is premature. The FBI has not
sought to dismiss those claims, and therefore, they remain live
issues in the case. Whether Mr. Maj id can succeed on the
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underlying claims and what relief he may be entitled to are
questions for another day.
IV. CONCLUSION
For the foregoing reasons, the FBI's Motion is denied as to
Count V and granted as to Counts VI and VII.
Additionally, the parties will be ordered to submit briefing
on whether the Court may order the FBI to serve the John Doe Agents
with a copy of Mr. Majid's Complaint. See Bivens, 403 U.S. at 390
n.2 (noting that the district court ordered the agency to serve
the plaintiff's complaint on the agents who participated in the
raid where the alleged misconduct took place) .
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