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M.K. v. TENET

March 23, 2000

M.K., ET AL., PLAINTIFFS,
V.
GEORGE TENET, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Urbina, District Judge.

  MEMORANDUM OPINION
Granting in Part and Denying in Part the Defendants' Motion to Dismiss

I. Introduction

Eight employees of the CIA brought an as-yet-uncertified class action against the CIA, CIA Director George Tenet, and thirty unnamed "John and Jane Does" (collectively "the CIA"). The plaintiffs allege that the CIA violated their constitutional rights to "liberty, due process, access to the courts and to receive effective assistance of counsel under the First, Fourth, Fifth and Sixth Amendments" and violated the Privacy Act. (Am.Compl. ¶¶ 103, 107, 115-120) The plaintiffs seek monetary damages and declaratory and injunctive relief, as well as attorney fees and litigation costs. This matter comes before the court on the defendants' motion to dismiss various claims on the following grounds: under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted; [2] under Rule 12(b)(1), for lack of subject-matter jurisdiction; [3] under Rule 12(b)(2), for lack of personal jurisdiction; and [4] under Rule 12(b)(4), for insufficiency of process. For the reasons which follow, the court will grant in part and deny in part the defendants' motion.

II. Background*fn1,*fn2

Eight employees of the CIA brought suit, on behalf of themselves and a class*fn3 of persons similarly situated, against the CIA, CIA Director George Tenet, and thirty unnamed "John and Jane Does," for violation of their constitutional rights to "liberty, due process, equal protection, access to the courts and to receive effective assistance of counsel under the First, Fourth, Fifth and Sixth Amendments," and for violations of the Privacy Act. (Am. Compl. ¶¶ 103, 107)

A. Plaintiff M.K.

According to the plaintiffs, the CIA reprimanded plaintiff M.K. and denied her benefits for a security lapse which, she claims, was not her fault. M.K. retained attorney Roy W. Krieger, who also represents the plaintiffs in the instant action, to advise and represent her in the matter. The CIA allegedly prevented Mr. Krieger from obtaining documents that he believed he needed to effectively represent M.K. The CIA denied access to the documents pursuant to an internal policy notice that limits access to CIA facilities by employees' counsel and prohibits CIA employees from disclosing any document containing official information to their lawyers without prior approval from the CIA Office of General Counsel. The prohibition extends to un classified information which the CIA otherwise permits its employees to disclose to the public. (Am. Compl. ¶¶ 18-20 & n. 7) The CIA denied Mr. Krieger's requests for access to certain documents,*fn4 impairing his ability to effectively represent M.K. and thereby injuring M.K.'s ability to protect her legal rights. (Am.Compl. ¶¶ 17, 21)

B. Plaintiffs Conway, Tilden, C.T., Mitford and R.B.

In addition to M.K., Mr. Krieger has previously represented several of the other plaintiffs in matters pertaining to their employment with the CIA. Specifically, Mr. Krieger represented plaintiffs Conway, Tilden, C.T. and Mitford in their claims of employment discrimination. Like M.K., these four plaintiffs complain that the CIA has denied Mr. Krieger access to documents and information that he needed to effectively represent them — either by denying his requests for access (in the case of plaintiffs M.K., Conway*fn5, C.T.*fn6 and Mitford*fn7) or by preventing the plaintiffs themselves from obtaining the information (in the case of plaintiff Tilden*fn8).

In addition to denying Mr. Krieger access to information he needed to effectively represent these plaintiffs, the plaintiffs allege, the CIA impeded them from getting effective legal assistance by other means:

— In late 1997, CIA personnel interviewed plaintiff Conway as part of a counterintelligience investigation with the potential for criminal charges. Ms. Conway requested that she be allowed to have counsel present at the interview, but the CIA refused. Following the interview, the CIA placed a memorandum criticizing Conway in her personnel files, causing her to be denied a promotion. (Am.Compl. ¶¶ 22-27)
— Plaintiff R.B. was subject to several polygraph examinations over the course of six years (1991-1996). R.B. failed one or more of these examinations. In response, the CIA revoked R.B.'s security clearances and placed him on administrative leave. Ultimately, R.B. was forced to retire as soon as he became eligible for retirement. Over the course of these six years, the CIA insisted that R.B. not retain a lawyer to represent him in these matters. (Am.Compl. ¶¶ 73-79)
— The defendants intercepted and recorded a telephone conversation between Mitford and Mr. Krieger, his attorney. (Am.Compl. ¶ 83)

The defendants have moved to dismiss the plaintiffs' claims on the following grounds: [1] under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted; [2] under Rule 12(b)(1), for lack of subject-matter jurisdiction; [3] under Rule 12(b)(2), for lack of personal jurisdiction, and [4] under Rule 12(b)(4), for insufficiency of process.

III. Legal Standards

A party moving for dismissal under Federal Rule of Civil Procedure 12(b)(6) has the burden of proving that the nonmovant has failed to state a claim upon which relief can be granted. To prevail, the movant must show "beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Chandler v. D.C. Dep't of Corrections, 145 F.3d 1355, 1360 (D.C.Cir. 1998); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ("A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.") For purposes of determining whether a complaint states a cause of action upon which relief can be granted, the averments in the complaint are taken as true, and the plaintiff is given the benefit of any doubts and of all reasonable inferences that can be drawn from the facts alleged. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994); Gregg v. Barrett, 771 F.2d 539, 547 (D.C.Cir. 1985); Shear v. National Rifle Ass'n, 606 F.2d 1251, 1253 (D.C.Cir. 1979). The court is not required, however, to accept inferences unsupported by the facts alleged, nor need it accept legal conclusions that are cast as factual allegations. See Kowal, 16 F.3d at 1276; United States v. BCCI Holdings, 980 F. Supp. 21, 26 (D.C. 1997). Bare conclusions of law and sweeping and unwarranted averments of fact will not be deemed admitted. See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir. 1987). The legal standards applicable to the other grounds for dismissal asserted shall be explicated to the extent necessary as the court addresses those grounds.

IV. Analysis

A. Should the claims against the thirty John/Jane Doe defendants be dismissed for failure to serve process on them?

The complaint lists as defendants thirty anonymous persons: "John & Jane Does, Numbers One Through Thirty (Names and Addresses Unknown or Classified)" ("the Doe defendants"). (Am. Compl. at 1 & ¶ 10) The defendants argue that these persons have not been properly identified or served, and that the claims against them must therefore be dismissed. (Mot. at 5153) The court construes this portion of defendants' motion as a motion to dismiss for insufficiency of process under Rule 12(b)(4) and Rule 4(m).*fn9

Rule 4(c) requires that "[a] summons shall be served together with a copy of the complaint." Fed.R.Civ.P. 4(c). Rule 4(m) provides that:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed.R. Civ.P.4(m); see, e.g., Claasen v. Brown, 1996 WL 79490, *2 (D.C. 1996) (dismissing action for plaintiffs' failure to serve process within the time provided under Rule 4(m)). The plaintiffs have yet to serve process on the Doe defendants, and it has been more than eight months since the filing of their amended complaint, roughly twice the 120 days that the Rule 4(m) permits as a matter of course.

The plaintiffs argue that the claims against the Doe defendants should not be dismissed because "the identity of certain Doe defendants must await discovery," while the identity of others "is not disclosed primarily for security reasons." (Opp. at 44 n. 50) The court reads this as an argument that the plaintiffs have good cause for having failed to serve the thirty Doe defendants within the time limits prescribed by Rule 4(m). See, e.g., Moore v. Agency for Intern. Development, 994 F.2d 874, 877 (D.C.Cir. 1993) ("two attempts to serve the defendants who had notice of the suit and were represented by counsel, coupled with the government's long delay in responding to the complaint, constitute good cause to satisfy [former] Rule 4(j)"); Henderson v. United States, 517 U.S. 654, 661 & n. 9, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (noting that Rule 4(j) has been renumbered 4(m)).

The court recognizes that there may be a legitimate need for secrecy with respect to the identities of some CIA employees, and, if such a need is shown, arrangements could be made for excluding such defendants' true names from any filings. The plaintiffs, however, point to no authority suggesting that secrecy concerns obviate the requirement that the plaintiffs properly serve process on persons whom they would sue. Unless such persons are properly served, they have no ability to defend themselves, and adjudicating claims against them under such circumstances would deny them their due process right to notice and an opportunity to be heard.*fn10 See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ("Due process requires that the defendant be given adequate notice of the suit."); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ("The fundamental requisite of due process of law is the opportunity to be heard. . . . This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest."); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir. 1996), cert. den., 519 U.S. 1077, 117 S.Ct. 737, 136 L.Ed.2d 676 (1997).*fn11

The plaintiffs shall be given an additional thirty days from the date of the order accompanying this opinion (1) to serve process on the Doe defendants and (2) to file with the court a request to assign pseudonyms those Doe defendants, if any, for whom the plaintiffs believe pseudonyms are necessary, including an explanation why a pseudonym is necessary in each case. The claims against any Doe defendants upon whom proper service is not effected within that time shall be dismissed without prejudice pursuant to Rule 4(m) and Rule 12(b)(4).

B. Should the complaint be dismissed for indefiniteness?

The defendants contend that the complaint must be dismissed because it fails to satisfy the requirement of Federal Rule of Civil Procedure 8 that a complaint set forth "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)); see, e.g., Nicol v. National Sav. & Trust Co., 250 F.2d 36, 36 (D.C.Cir. 1957) (per curiam) (affirming dismissal for indefiniteness under Rule 8(a) where the Court could not "discover what claim the complaint is intended to make"), cert. den., 357 U.S. 909, 78 S.Ct. 1155, 2 L.Ed.2d 1159 (1958). The defendants argue that the complaint simply recites facts and cites various constitutional provisions without showing any logical connection between the two, and thereby fails to give notice of the nature of the plaintiffs' claims and the grounds on which they rest. (Mot. at 34-35) The plaintiffs argue that any indefiniteness in the complaint can be remedied by the granting of a motion for a more definite statement. (Opp. at 26-27)

Indeed, the defendants may move for a more definite statement of the plaintiffs' claims under Federal Rule of Civil Procedure 12(e),*fn12 pointing out the specific defects in the complaint and the details desired, as required by that rule. See, e.g., Saad v. Burns Int'l Sec. Servs., Inc., 456 F. Supp. 33, 36 (D.C. 1978) (ordering plaintiff to file a more definite statement pursuant to Rule 12(e)). Because any inadequacies in the complaint can be remedied by these less drastic means, the court declines to dismiss the complaint for indefiniteness at this juncture.*fn13

C. Subject-Matter Jurisdiction over Count III

The defendants contend that Count III must be dismissed because "the complaint states no jurisdictional basis for Count III." (Mot. at 18) They argue that the paragraphs which set forth Count III state no basis for jurisdiction other than the All Writs Act, 28 U.S.C. § 1651(a), and the Declaratory Judgment Act, 28 U.S.C. § § 2201 and 2202. (Mot. at 17-18) The unstated proposition on which the defendants' argument depends is that the specific paragraphs setting forth a count in a complaint must separately and independently state the basis for federal jurisdiction over that count. The defendants provide no authority for this proposition.

In paragraph 110 of the complaint, the first of five paragraphs setting forth Count III, the plaintiffs "reallege each and every paragraph numbered 1 through 99, inclusive, as if fully set forth herein." Paragraphs 1 through 99 include the plaintiffs' jurisdictional averments, which are stated in paragraphs 1 through 12. The defendants have not challenged the validity of the bases for jurisdiction asserted therein, and this court does not sua sponte find them wanting.

The defendants appear to have been confused by the plaintiffs' statement in the last of the five paragraphs setting forth Count III, that "[t]his Court has jurisdiction to grant the relief requested under 28 U.S.C. § § 1651(a), 2201, & 2202 pursuant to its independent jurisdiction of the instant action existing under 28 U.S.C. § 1331." (Am.Compl. ¶ 114) 28 U.S.C. § 1331 provides for federal questionj jurisdiction.*fn14 The other Code provisions which the plaintiffs cite empower the district court to grant certain types of relief and are not relevant to whether the court has jurisdiction over the claim vel non. See 28 U.S.C. § 1651(a) ("all writs necessary or appropriate . . . agreeable to the usages and principles of law"), §§ § 2201-02 (declaratory judgments). The court understands the plaintiffs to be saying that the court has the jurisdiction to entertain Count III under § 1331, and the authority, under §§ 1651(a), 2201 and 2202, to grant the types of relief which they seek.

The court will deny the defendants' motion to dismiss Count III for lack of subject-matter jurisdiction.

D. The plaintiffs' Privacy Act claims

The plaintiffs seek monetary damages under the Privacy Act for adverse determinations by the CIA which the plaintiffs claim were based on inaccurate agency records. (Am.Compl. ¶¶ 116-17, 118) The plaintiffs also allege that the CIA violated the Privacy Act by refusing to amend records pertaining to them. (Am. Compl. ¶ 119) The defendants argue that the plaintiffs' Privacy Act claims must be dismissed because the plaintiffs have failed to aver that they have exhausted available administrative remedies. (Mot. at 55-56) For the reasons which follow, the court agrees in part and disagrees in part.

Exhaustion of administrative remedies is a prerequisite to bringing a civil suit under the Privacy Act to compel amendment of agency records. See Nagel v. U.S. Dept. of Health, Educ. and Welfare, 725 F.2d 1438, 1441 (D.C.Cir. 1984) (affirming summary judgment for the defendants as to the plaintiffs Privacy Act claim where the plaintiff had failed to exhaust). However,

exhaustion of administrative remedies is not required where an individual seeks damages pursuant to 5 U.S.C. § 552a(g)(4) [which provides for the recovery of damages from the government for violations of 5 U.S.C. § 552a(g)(1)(C)]. The asserted failure of an agency to maintain accurate, relevant and timely records states a claim for damages under Section (g)(1)(C) of the [Privacy] Act . . . if that failure results in an agency determination that is adverse to the individual.

Id. at 1441 n. 2 (internal quotes and brackets omitted); accord Hubbard v. U.S.E.P.A., 809 F.2d 1, 4 (D.C.Cir. 1986). The plaintiffs do seek monetary damages for adverse determinations which they say were based on inaccurate records. The amended complaint states that:

Defendant CIA has willfully and intentionally failed to maintain accurate, timely and complete records pertaining to Plaintiffs. . . . Said records were used to make adverse determinations about Plaintiffs. . . . As a direct and proximate result of the complained of conduct . . ., Plaintiffs have suffered and continues (sic) to suffer damage. . . .

(Am.Compl. ¶¶ 116-17) To the extent that these claims seek damages for such adverse determinations, the claims will not be dismissed for failure to exhaust. However, insofar as the plaintiffs seek to compel the CIA to amend their records, their claims will be dismissed without prejudice for failure to exhaust.*fn15

The defendants further contend that the plaintiffs' Privacy Act claims must be dismissed because the plaintiffs:

have pled insufficient facts to state a cognizable Privacy Act claim . . . Plaintiffs have not identified any specific, purportedly inaccurate information or factual statement contained in Agency records and/or the reason they believe it is inaccurate.

(Mot. at 53) One of the elements of a claim for damages under the Privacy Act is a showing that an agency:

fail[ed] to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to ...

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