The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
William E. Ranger has sued George Tenet, in his official capacity as Director of the Central Intelligence Agency ("CIA"), alleging that his Fifth and Fourteenth Amendment rights were violated during the administrative process through which he appealed the revocation of his security clearance. He seeks relief under 42 U.S.C. §§ 1983 and 1988 for monetary damages and attorneys' fees, and under 28 U.S.C. § 2201 for a declaratory judgment. The CIA has moved to dismiss the complaint, arguing that the Court has no jurisdiction to adjudicate these claims under Federal Rule of Civil Procedure 12(b)(1) and that Mr. Ranger has failed to state a claim upon which relief can be granted under Rule 12(b)(6). For the reasons stated below, the Court GRANTS the CIA's motion in part and DENIES it in part.
In December 1995, American Management Systems ("AMS"), a contractor to the CIA, hired Mr. Ranger as a corporate security officer. Upon his arrival at AMS, the CIA granted Mr. Ranger a provisional security clearance and advised him to submit an SF-86 form so that he could obtain the highest clearance level for government contractors, Industrial Security Staff Approval Top Secret ("ISSA/TS"). He submitted the requisite paperwork in March 1996. CIA personnel informed him that he was granted an Industrial Security Approval Top Secret ("ISA/TS") clearance, which would be upgraded upon successful completion of two polygraph examinations. Mr. Ranger passed both polygraph examinations in June 1996. In late November 1996, the CIA disapproved his application for ISSA/TS clearance and revoked its ISA/TS security approval, which had enabled him to work as a corporate security officer for the previous twelve months. Thereafter, the CIA notified AMS that the continued employment of Mr. Ranger as a corporate security officer violated the CIA's policies. AMS terminated Mr. Ranger's employment in late February 1997.
Mr. Ranger appealed the denial of his security clearance through the administrative process offered by the CIA. He was denied the opportunity to appear in person before an adjudicative authority; however, he did eventually meet with Mr. Tenet, who was the CIA's Acting Director at the time. Mr. Tenet promised to "follow [Mr.] Ranger's appeals process to closure." Compl. ¶ 16.
Mr. Ranger's appeal was denied finally in April 1998. Among other conclusions, the final letter denying his appeal expressed "doubts regarding [his] honesty, trustworthiness, reliability, and willingness to comply with rules and regulations." Pl.'s Response to Def.'s Mot. to Dismiss ("Opp.") Ex. A at 4. Mr. Ranger continued to seek review outside the formal review process and, "[i]n response to [Mr.] Ranger's efforts and Director Tenet's, the CIA conducted additional inquiries and adjudications." Compl. ¶ 18. On April 19, 2001, he was notified that he was eligible for an ISSA/TS clearance pending receipt of a sponsor's request that he work on a classified CIA project.
The complaint here was filed in October 2001. Count One alleges a denial of due process because "Ranger was not afforded an opportunity to personally appear before the adjudicative tribunal of the CIA" and "representatives of the CIA placed false and libelous material about Ranger in the administrative record." Id. ¶ 21. Count Two alleges an equal protection claim because the CIA's decision to deny Mr. Ranger a security clearance "was made without a rational basis" and thereby caused "loss of employment, interference with Ranger's ability to secure future employment and professional and personal embarrassment." Id. ¶ 23, 24. To redress these alleged wrongs, Mr. Ranger seeks a "declaratory judgment that [the CIA] violated his constitutional rights, monetary judgment for damages in the amount of $100,000.00 plus court costs, and attorneys['] fees." Id. at 4.
As the plaintiff, Mr. Ranger bears the burden of establishing subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 32 (D.D.C. 2002). In determining its jurisdiction, the Court must accept the allegations in the complaint as true and draw all reasonable inferences in Mr. Ranger's favor. Such allegations, however, "'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) (quoting 5A CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE& PROCEDURE§ 1350). The Court is permitted to consider information outside the pleadings. See Lipsman v. Sec'y of Army, No. 02-151, 2003 U.S. Dist. LEXIS 4882, at *6-7 (D.D.C. Mar. 31, 2003).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) will be denied unless the plaintiff "can prove no set of facts in support of [his] claim which would entitle [him] to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The issue is not whether Mr. Ranger will ultimately prevail on the merits, but whether he has properly stated a claim. In reviewing such a motion, the factual allegations of the complaint are taken as true and all reasonable inferences are drawn in Mr. Ranger's favor. See Glymph v. District of Columbia, 180 F. Supp. 2d 111, 113 (D.D.C. 2001).
The CIA argues for dismissal of Mr. Ranger's claims for monetary damages based on the doctrine of sovereign immunity. It is well settled that a lawsuit against a federal employee in his official capacity – as is the case here – constitutes a lawsuit against the United States. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Graves v. United States, 961 F. Supp. 314, 318 (D.D.C. 1997). The United States, in turn, may be sued in federal court "only if Congress has waived sovereign immunity for the lawsuit." Deaf Smith County Grain Processors, Inc. v. Glickman, 162 F.3d 1206, 1210 (D.C. Cir. 1998). Such a waiver must be express and unequivocal, and the Court will strictly construe it. See Lane v. Peña, 518 U.S. 187, 192 (1996) ("To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims.").
To defeat the CIA's motion to dismiss for lack of jurisdiction, Mr. Ranger must show that the United States has waived sovereign immunity. See Uberoi v. Equal Employment Opportunity Comm'n, 180 F. Supp. 2d 42, 45 (D.D.C. 2001) ("A claimant's failure to establish waiver deprives the court of subject-matter jurisdiction."). He contends that the United States' "unmistakable waiver of sovereign immunity derives from the establishment of an administrative process which the CIA has declined to follow." Opp. at 2. Mr. Ranger has failed to direct the Court, however, to any ...