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Peter B. v. Central Intelligence Agency

June 1, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Peter B.*fn1 brings this action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, the Privacy Act, 5 U.S.C. § 552a, and the Due Process Clause of the Fifth Amendment against the CIA and individuals within the CIA, alleging nine violations of his rights stemming from the CIA's decision to terminate his employment. The defendants have moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and failure to state a claim, or in the alternative, to transfer this action to the Eastern District of Virginia. Because the defendants have not demonstrated that transfer is warranted, their motion to transfer venue will be denied. The defendants' motion to dismiss will be granted in part and denied in part.

Because Counts I and IV of the amended complaint seek review that is precluded by the Civil Service Reform Act ("CSRA"), these counts will be dismissed for lack of jurisdiction. Because Peter B. has stated claims under the Due Process Clause of the Fifth Amendment and the Privacy Act in the remaining seven counts of the amended complaint, the defendant's motion to dismiss Counts II, III and V through IX will be denied.


Peter B. brings this action against the CIA, former CIA Director Michael V. Hayden, his former supervisor Margaret Peggy Lyons, and Does #1-10, unknown or covert officials of the CIA who he contends were involved in illegal actions against him. He asserts that the CIA's conduct in terminating his employment and subsequently refusing to confirm certain information about his relationship with the CIA or communicating negative information about him to future employers violated his rights under the APA, the Privacy Act, the Due Process Clause of the Fifth Amendment, and other unidentified CIA regulations and statutes.

Peter B. contends that "[i]n the early 1990s, [he] entered into a covert operational relationship with the CIA" and "at a certain point in the 1990s he became a full [CIA] staff employee [as] possessive of all constitutional, statutory and regulatory rights as any other CIA federal employee[,]" which included "the usual rights, privileges and benefits that are accorded federal employees." (Am. Compl. ¶¶ 8-9.) He alleges that "[o]n or about October 3, 2002, [his] relationship [with the CIA] was formally terminated," which left him "abandoned at his domestic post" and "forced to incur significant expenses that exceeded $15,000." (Id. ¶¶ 12, 15.) Peter B. further contends that he "was never provided any administrative remedies . . . which . . . he was entitled to pursue" as a federal employee and that "despite multiple requests," the only reason he has ever been given for his termination was that he was terminated "for the convenience of the government." (Id. ¶¶ 12, 18.)

In addition, Peter B. alleges that "[a]t the time [he was] terminated by the CIA he possessed a TS/SCI clearance that was still active" and "he was repeatedly verbally informed by representatives of the CIA that there were no security clearance issues or concerns within his CIA files." (Id. ¶ 20.) Still, he contends, "the CIA disseminated false and defamatory information concerning [him] to . . . government contractors for the purpose of causing the potential employer to either never provide Peter B. with an offer of employment or withdraw any such offer that had been provided." (Id. ¶ 21.)

In his amended complaint, Peter B. lists nine causes of action. Counts I and IV seek APA review of the CIA's classification of Peter B.'s employment status, Peter B.'s termination, and the CIA's failure to reimburse him for certain expenses. Counts II, III, V, and IX allege Fifth Amendment Due Process claims. Counts VI through VIII allege Privacy Act violations. The defendants have filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6), or in the alternative, to transfer venue to the Eastern District of Virginia.



The defendants contend that this case should be transferred to the Eastern District of Virginia. Venue is proper in the District of Columbia because three of plaintiff's claims are brought under the Privacy Act, which expressly permits claims to be brought in the District of Columbia. See 5 U.S.C. § 552a(g)(5) ("An action . . . may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia[.]").

Nonetheless, a court may transfer a case "for the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). The moving party has the burden of persuasion, and must show that transfer is "'justified by particular circumstances that render the transferor forum inappropriate by reference to the considerations specified in that statute.'" SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925 (D.C. Cir. 1974)). A court has broad discretion to decide whether transfer from one jurisdiction to another is warranted for the convenience of the parties and witnesses. Id.

A court may transfer an action under § 1404(a) only to a venue where the action "might have been brought." See 28 U.S.C. § 1404(a). This case could have been brought in the Eastern District of Virginia because relevant conduct underlying Peter B.'s claims occurred there and because the CIA resides in the Eastern District. See 28 U.S.C. § 1391. After determining that venue in the proposed transferee district would be proper, a court then "must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to [the] private concerns [of the parties], come under the heading of 'the interest of justice.'" Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988). Because "it is perhaps impossible to develop any fixed general rules on when cases should be transferred[,] . . . the proper technique to be employed is a factually analytical, case-by-case determination of convenience and fairness." Savoy Indus., 587 F.2d at 1154 (internal quotation marks and citations omitted).

A. Private Factors

Private interest factors to consider typically include things such as each party's choice of forum, where the claim arose, the convenience of the parties, the convenience of the witnesses, particularly if important witnesses may actually be unavailable to give live testimony in one of the trial districts, and the availability and ease of access to sources of proof. Montgomery v. STG Int'l, Inc., 532 F. Supp. 2d 29, 32-33 (D.D.C. 2008). A plaintiff's choice of forum is generally accorded substantial deference. Schmidt v. Am. Inst. of Physics, 322 F. Supp. 2d 28, 33 (D.D.C. 2004). However, if the plaintiff is not a resident of the forum and "most of the relevant events occurred elsewhere," this deference is weakened. Hunter v. Johanns, 517 F. Supp. 2d 340, 344 (D.D.C. 2007); see Robinson v. Eli Lilly & Co., 535 F. Supp. 2d 49, 52 (D.D.C. 2008). "When the events occur in more than one district, a court can consider which jurisdiction has the stronger factual nexus to the claims." Miller v. Insulation Contractors, Inc., Civil Action No. 08-1556 (RWR), 2009 WL 1066263, at *2 (D.D.C. Apr. 21, 2009) (concluding that where it was unclear in which forum "the more significant locus of material events" occurred, the movant had not demonstrated that the private interest factors favored transfer).

Peter B. does not claim to be a resident of the District of Columbia, but he does allege that "events pertaining to [him] took place within this jurisdiction." (Am. Compl. ¶ 5.) Although it is unclear what a qualitative or quantitative comparison of the events in the two fora would reveal, the allegation that at least some of the relevant conduct occurred in this forum suggests that Peter B.'s choice of forum should be accorded some deference. Regarding where the claims arose, because the CIA has a presence in both the District of Columbia and Virginia, and because at least one of the defendants, Lyons, works in the District of Columbia, Peter B. alleges that his claims arose from events and actions, including those by Lyons, that occurred in both jurisdictions. (See id. ¶ 5; Pl.'s Opp'n at 27.) Accordingly, this factor favors neither forum. The remaining private interest factors do not strongly support transfer because of the close proximity of this district and the Eastern District of Virginia. Peter B. alleges that "many of the witnesses and the parties live or work with the District of Columbia." (Pl.'s Opp'n at 28 (noting that defendant Lyons currently works in the District of Columbia).) The defendants contend that Virginia would be more convenient because the CIA resides within that district and most of the records and other evidence at issue are located there. (See Defs.' Mem. in Support of Their Motion to Dismiss ("Defs.' Mem.") at 29; Defs.' Reply 23-25.) Although there is insufficient information at this early stage to conclusively determine which forum hosts more evidence or potential witnesses, neither the parties nor potential witnesses would be significantly inconvenienced if the case is to proceed in the District of Columbia rather than the Eastern District of Virginia.

B. Public Factors

Relevant public interest factors include the local interest in making local decisions about local controversies, the potential transferee court's familiarity with the applicable law, and the congestion of the transferee court compared to that of the transferor court. Akiachak Native Cmty. v. Dep't of the Interior, 502 F. Supp. 2d 64, 67 (D.D.C. 2007). Because Peter B. alleges that significant events underlying his claims occurred in both fora, the defendants have not carried their burden of demonstrating that Virginia would have a greater local interest in deciding this controversy. The complaint alleges causes of action all grounded in the federal constitution and federal law, and the two district courts would be deemed equally familiar with applicable federal law in this case. Miller, 2009 WL 1066263, at *3 (noting that "all federal courts are presumed to be equally familiar with the law governing federal statutory claims"). Neither party has commented on the congestion in either forum. The public factors, then, do not favor transfer.

Thus, in light of both the private and public factors, the defendants have not shown that transfer to the Eastern District of Virginia would be more convenient for the parties or witnesses, or be in the interest of justice. Accordingly, the defendants' motion to ...

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