WAYNE M. ANDERSON, Plaintiff,
ROBERT GATES, Secretary of Defense, et al., Defendants.
JOHN D. BATES, United States District Judge
Plaintiff Wayne Anderson, proceeding pro se, brings this action against former Secretary of Defense Robert Gates,  Secretary of the Army John M. McHugh, U.S. Army Colonel Hans E. Bush, U.S. Army Brigadier General Sean Mulholland, and U.S. Army Colonel Gregory Julian in their individual and official capacities, as well as "[o]ther [d]efendants as yet unknown" in their individual capacities. Defendants are sued in their individual capacities for damages and in their official capacities for declaratory and injunctive relief. Anderson's claims originate from the termination of his status as a military embed-journalist in Afghanistan. Before the Court is  defendants' motion to dismiss under Federal Rules of Civil Procedure 12(b)(1), (2), (5), and (6). For the reasons set forth below, the Court will grant defendants' motion.
On or about January 2010, Anderson, a freelance American journalist, applied for "military embed-journalist accommodation status" in Afghanistan. Compl. [ECF No. 1] ¶ 24. As part of the application process, Anderson signed a copy of the International Security Assistance Force ("ISAF") Media Accommodation and Ground Rules Agreement ("MAGRA"), confirming that he would abide by the ISAF Media Ground Rules ("Media Ground Rules"). Id. ¶¶ 25, 55, 57. ISAF is an international stabilization force in Kabul, Afghanistan that was created by the United Nations Security Council in December 2001. Id. ¶ 25 n.1. The Media Ground Rules were promulgated "to encourage the democratic ideals of open reporting and transparency, while balancing the needs of operational security and service member privacy, " and "[v]iolations of any of the . . . rules may result in termination of accommodated status." Id. ¶ 25; Media Ground Rules, Ex. A to MTD [ECF No. 13-2] at 1. After Brigadier General Mulholland authorized Anderson's embed accommodation status, Anderson flew to Kabul and was embedded with the Minnesota Army National Guard. Compl. ¶¶ 26-27. Anderson's role in Afghanistan was to provide news coverage of Army personnel and operations for several newspapers and live broadcasts. Id. ¶ 26.
On or about July 20, 2010, while Anderson was embedded in Afghanistan, he filmed an ambulance offloading American personnel who had been attacked in "a controversial shooting." Id. ¶ 29. On July 29, 2010, Anderson's story about the shooting and video of the ambulance offloading were published on The Washington Times website. Id. ¶ 34. The next day, a U.S. Army captain told Anderson that his embed status would be terminated. Id. Defendants contend that Anderson's embed status was terminated because his video showed the identifiable faces of wounded soldiers, and the dissemination of such a video violated Media Ground Rules ¶¶ 22(a) and (c), which require accommodated media to receive written permission from wounded soldiers or, in the case of a fatality, to notify the appropriate next of kin before dissemination. MTD at 4. Anderson denies that his video contained images of identifiable wounded military personnel. Pl.'s Opp'n to MTD ("Opp'n") [ECF No. 16] at 8.
On or about July 31, 2010, Anderson had a "15-minute meeting" with Colonel Bush that "took place outdoors and alongside a busy military-airport terminal." Compl. ¶ 36. Colonel Bush "accused [Anderson] of violating" the Media Ground Rules by "posting [a] video of wounded personnel." Id. ¶ 37. Colonel Bush then signed a memorandum terminating Anderson's embed status "without seeing or requesting to see the exculpatory video footage or asking for any substantial evidence from [Anderson]." Id. ¶ 39. Anderson subsequently returned home to the United States, where he appealed the termination. Id. ¶¶ 40, 41. On or about January 20, 2011, Colonel Julian, sitting in Brussels, Belgium, decided the appeal and upheld Anderson's embed-status termination. Id. ¶¶ 41, 42; Opp'n at 11.
Anderson then filed this three-count lawsuit. Count I alleges that defendants in their individual capacities violated 42 U.S.C. § 1983 because "they caused the termination of [Anderson]'s journalist-embed status without just cause of his constitutionally protected speech; and . . . refus[ed] or neglect[ed] to prevent such deprivations and denials to [Anderson] in violation of the First Amendment free speech and freedom of the press rights." Id. ¶ 52. Count I also alleges that defendants in their individual capacities violated 42 U.S.C. § 1983 because "[Anderson] possesses a constitutionally protected interest and he was subsequently deprived of that interest without a meaningful hearing . . . in violation of his procedural due process rights as afforded by the Fifth Amendment." Compl. ¶ 50. Count II alleges a breach of contract claim, stating that, by signing the MAGRA, Anderson entered into a contract with the U.S. Army, and that defendants breached that contract. Id. ¶¶ 55-60. Count III "seeks a judicial declaration that defendants' conduct deprived Anderson of his rights under the U.S. Constitution and the laws of the United States." Id. ¶ 63. Anderson also asks that the Court "enjoin [d]efendants to reverse the Memorandum terminating [Anderson]'s embed accommodation status" and award Anderson costs. Id. at 16.
Defendants have filed a motion to dismiss for lack of personal jurisdiction over defendants in their individual capacities under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(2), for failure to state a claim upon which relief can be granted under Rule 12(b)(6), and for lack of subject-matter jurisdiction under Rule 12(b)(1).
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of an action for ineffective service of process. "[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of [Federal] Rule [of Civil Procedure] 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (internal quotation marks and citation omitted). "If dismissing [a plaintiff's] claim without prejudice due to insufficient service would lead to the refiling of a meritless claim, however, this Circuit has held that it is proper to consider other means of dismissing the [claim]." Dominguez v. Dist. of Columbia, 536 F.Supp.2d 18, 22 (D.D.C. 2008) (citing Simpkins v. Dist. of Columbia Gov't, 108 F.3d 366, 369-70 (D.C. Cir. 1997)).
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary, plaintiffs must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to provide the "grounds" of "entitle[ment] to relief." Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). "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) (quoting Twombly, 550 U.S. at 570); accord Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack of subject-matter jurisdiction. Although the Court must construe the complaint liberally, a plaintiff bears the burden of establishing the elements of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The Court may look beyond the allegations in the complaint to resolve a motion to dismiss for lack of subject-matter jurisdiction. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).
The Court will first discuss its lack of personal jurisdiction over defendants in their individual capacities under Rule 12(b)(5) because they have not been properly served. And although the Court lacks personal jurisdiction over defendants in their individual capacities, it will nonetheless analyze Anderson's constitutional claims against them and dismiss those claims under Rule 12(b)(6). See Simpkins, 108 F.3d at 370 (holding that district court's dismissal of constitutional claims on the merits rather than for insufficiency of process was proper where claims were meritless). Next, the Court will dismiss Anderson's breach of contract claim for lack of ...