There are two statutory provisions authorizing a court to grant personal jurisdiction, neither of which are available to the Plaintiff. Under the first of these provisions, which permits the recognition of an enduring relationship between a person and the District, "[a] District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim for relief." D.C. Code § 13-422. Responding to Defendants' motion, the Plaintiff contends that the CIA officials have established an "enduring relationship" with the District, relying on Rochon v. F.B.I., 691 F.2d 1548 (D.D.C. 1988). However, this assertion is unfounded both legally and factually. Rochon is inapposite to this case, in that Rochon found jurisdiction under the District's long-arm statute. Id. at 1559. Moreover, the Plaintiff presents no facts to establish such an "enduring relationship" between the District and the Defendants as individuals; rather, he merely lists D.C. mailing addresses at the CIA for the Defendants, and makes no allegations regarding residences or principal places of business.
The Court must therefore look to the District's long-arm provision, which grants personal jurisdiction for claims based upon conduct. Where there is no indication that a defendant resides in the District, this statute provides the only means through which a district court may obtain personal jurisdiction over a defendant. See Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1049 (D.C. Cir. 1985). The relevant portion of the statute provides personal jurisdiction over a person for claims arising from the person's "transacting any business in the District of Columbia." D.C. Code § 13-423(a)(1).
The portion of the long-arm statute pertaining to the transaction of business is "coextensive with the Constitution's due process limit." First Chicago Int'l v. United Exchange Co., Ltd., 836 F.2d 1375, 1377 (D.C. Cir. 1988). Consequently, the Plaintiff must demonstrate that finding jurisdiction over the individual defendants would not offend the "traditional notions of fair play and substantial justice." International Shoe Co. v. State of Washington, 326 U.S. 310, 315, 90 L. Ed. 95, 66 S. Ct. 154 (1945). Even under this "minimum contacts" doctrine, the Plaintiff's Complaint is inadequate. Here, the Complaint presents no factual connection between the individuals' activities and the District.
II. THE COURT MUST DISMISS PLAINTIFF'S CONSTITUTIONAL CLAIMS AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITIES, AS HE DID NOT ADEQUATELY CLAIM AN INTEREST OR RIGHT THAT WOULD WARRANT INJUNCTIVE RELIEF, AND SOVEREIGN IMMUNITY PRECLUDES RECOVERY FOR MONETARY RELIEF.
Because the Plaintiff cannot sue Defendants Gates, Kerr, Owens, and Kemp in their individual capacities, the Court must now examine his action against the United States, the CIA, and the individual Defendants in their official capacities. Under the Court's most liberal reading of his Complaint, the Plaintiff apparently raises a variety of constitutional claims,
although he does not specify which of the Defendants violated which constitutional provision. The Plaintiff alleges generally that the determination to terminate him was "illegal and wrongful." More specifically, he claims that the CIA's ordering him to have a psychiatric examination "violated Agency procedures and the constitutional rights of the Plaintiff to wit: the Right of Privacy and the denial of equal application under the law." The Plaintiff further alleges violations of due process and internal regulations for the CIA's institution of proceedings without setting forth Notice Grounds, and its issuance of a negative job performance evaluation.
The Plaintiff seeks injunctive relief in the form of reinstatement to his former position, judicial intervention to prevent the destruction of documents, as well as access to the data and information that was previously available to him. Furthermore, he seeks monetary damages in the amount of $ 6,000,000, and requests additional discovery. The Court concludes that the Plaintiff has failed to state a claim for any form of relief.
A. THE PLAINTIFF MAY NOT MAINTAIN AN ACTION FOR INJUNCTIVE RELIEF ON A CONSTITUTIONAL CLAIM, BECAUSE HE HAS NOT ALLEGED A PROTECTIBLE PROPERTY OR LIBERTY INTEREST FOR A DUE PROCESS CLAIM AND HAS INSUFFICIENTLY DESCRIBED ANY BASIS FOR A FIRST AMENDMENT CLAIM.
The Plaintiff claims violations of the First, Fourth, and Fifth Amendments. The Court grants the Defendants' Motion to Dismiss with respect to equitable relief on the grounds that the Plaintiff has inadequately alleged a constitutional violation. Under this standard, none of the Plaintiff's claims can survive Defendants' Motion to Dismiss. He has not alleged a protectible property or liberty interest which would warrant due process protection, nor has he alleged any cognizable free speech or right to privacy claim.
The legal reasoning of Doe v. Gates, 299 U.S. App. D.C. 114, 981 F.2d 1316 (D.C. Cir. 1993), petition for cert. filed, 62 U.S.L.W. 3146 (June 21, 1993) (No. 92-2025), which held that an employee terminated by the CIA did not have a cognizable property interest in continued employment, similarly establishes why the Plaintiff in this case lacks a property interest entitling him to due process. Property interests in employment are created by non-constitutional independent sources, such as statutes or existing understandings. Id. at 1320, (citing Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). The Plaintiff provides no statutory support. Section 102(c) of the National Security Act of 1947 authorizes the CIA director "in his discretion, [to] terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States . . .," 50 U.S.C. § 403(c), and "federal employees are chargeable with knowledge of governing regulations or statutes." Doe v. Gates at 1321. Therefore, despite his Complaint's assertion "That by reason of his professional status, his training, experience and seniority of approximately twenty years with the Defendant Agency, [he] had a reasonable expectation of continued employment," he had no protectible property interest. See Id. (holding that "Doe's reliance on alleged statements by other employees and general provisions in the Agency handbook does not constitute a reasonable 'legitimate expectation of continued employment . . . .") (citation omitted).
The Plaintiff also fails in his attempt to plead a due process claim based upon a liberty interest. Under a two-step test, a plaintiff making such a claim must first allege that the government's defamation caused harm to an interest beyond reputation, such as loss of present or future government employment. Secondly, a plaintiff must allege that the government has actually stigmatized his or her reputation by, for example, charging the employee with dishonesty, and that the stigma has hampered future employment prospects. Doe v. United States Dep't of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1111 (D.C. Cir. 1985). The Complaint does not approach this standard, alleging only an assumption that he was terminated for incompetence, and failing to allege with particularity a "stigma" or any form of potential employment harmed by such "stigma."
The Court also dismisses any possible free speech claim that may arise from the Plaintiff's Complaint. In his Response to Motion to Dismiss, the Plaintiff asserts that
Defendants' intimidation, harassment, stigmatization and termination allege and, in fact, constitutes a violation of Plaintiff's First Amendment right to free speech, insofar as these acts resulted from a legitimate communication by Plaintiff to a third party of non-classified information about the Agency.
However, his pleading only mentions an undescribed "incident," gives no indication in what form such harassment occurred, and lacks any reference to the First Amendment. The vagueness of Plaintiff's Complaint and the irrelevancy of factual allegations in papers filed subsequent to the Complaint to a 12(b)(6) motion compel the Court to dismiss any First Amendment claim.
Construing in the Plaintiff's favor his nebulous contention that the CIA's order to undergo a psychiatric examination violated his "Right of Privacy," the Court cannot determine a cause of action that would survive Defendants' Motion to Dismiss.
This allegation may be read to mean that the order is invalid in relation to his subsequent termination. However, he admits that he was found fit for duty, and his Complaint explicitly assumes that his discharge was based on performance-related concerns. As discussed above, such a challenge to the procedure behind his separation from the CIA is not entitled to constitutional protection because of a lack of protectible interest.
B. SOVEREIGN IMMUNITY BARS THE PLAINTIFF'S CLAIM FOR MONETARY DAMAGES FOR THE DEFENDANTS' ALLEGED CONSTITUTIONAL VIOLATIONS.
In addition to injunctive relief, the Plaintiff seeks monetary damages to compensate him for past and future loss of employment and damages for loss of publication. The Court must dismiss Plaintiff's claim for monetary relief under the doctrine of federal sovereign immunity. According to this doctrine, the United States may not be sued absent an express waiver from Congress. Block v. North Dakota, ex. rel. Board of University and School Lands, 461 U.S. 273, 280, 75 L. Ed. 2d 840, 103 S. Ct. 1811 (1983). This immunity bars "suits for money damages against officials in their official capacity absent a specific waiver by the government," including constitutional claims. Clark v. Library of Congress, 242 U.S. App. D.C. 241, 750 F.2d 89, 103-04 (D.C. Cir. 1984). No such waiver has been alleged. Therefore, the Plaintiff has neither an actionable claim for monetary relief against the federal government nor against its officials acting in their official capacity.
III. BECAUSE THE PLAINTIFF FAILED TO PLEAD FACTS WITHIN HIS KNOWLEDGE AND FAILED TO MAKE A COLORABLE CONSTITUTIONAL CLAIM, THE COURT DENIES THE PLAINTIFF'S REQUESTS FOR BOTH DISCOVERY AND AMENDMENT OF HIS COMPLAINT.
The Plaintiff seeks to amend his Complaint after obtaining additional information from the CIA. After reviewing the legal standards for pleading amendment and discovery, the Court concludes that the Plaintiff may not amend his Complaint nor pursue further discovery on the constitutional claims alleged.
In the alternative to a grant of jurisdiction, the Plaintiff asks that the Court permit discovery to assess personal jurisdiction over the Defendants in their individual capacities. The Court denies this request. While discovery for jurisdiction is freely permitted under the federal rules, district courts have broad discretion over it. Naartex Consulting Corp. v. Watt, 232 U.S. App. D.C. 293, 722 F.2d 779, 788 (D.C. Cir. 1983), cert. denied, Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 81 L. Ed. 2d 355, 104 S. Ct. 2399 (1984) (holding that a district court did not abuse its discretion in denying discovery where "the pleadings contained no allegations of specific facts that could establish the requisite contacts with the District").
In his request for jurisdictional discovery, the Plaintiff again relies on Rochon. Unlike the Plaintiff in this case, however, the Plaintiff in Rochon provided in his complaint the factual background warranting discovery for jurisdiction over FBI defendants not employed in the District, and submitted a sworn affidavit that those agents kept in regular contact with FBI headquarters in the District. Id. at 1560. In contrast, the Plaintiff's complaint is bare on the facts, and the CIA is headquartered in Virginia. Basic fact-finding should precede the filing of a lawsuit; the insufficiency of the Plaintiff's Complaint does not warrant any form of discovery for personal jurisdiction.
The Plaintiff also seeks discovery to develop the substance of his legal claims and amend his Complaint, asserting that the CIA's secrecy and tradition of bad faith may be responsible for the weaknesses in his case:
Even assuming, for the sake of argument, that Plaintiff's Complaint is not a model of specificity, the Court should take into consideration certain unique factors present in this case. The Agency is historically, by its very nature, involved in clandestine operations, secretive and resistant to public scrutiny and accountability. Plaintiff has been reticent to make full disclosure of more facts than necessary to satisfy the requirements of notice pleading in order to prevent the Agency from manufacturing a defense by destroying important documents, fabricating new documents and coordinating testimony. Before granting the dismissal requested by Defendants, Plaintiff should be granted the opportunity to amend his Complaint, along with adequate safeguards to ensure that Defendants do not illegally derive an advantage from this additional, factual disclosure.