United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge
Kaiser Gill challenges the revocation of his security
clearance by the Federal Bureau of Investigation (FBI) and
Department of Justice (DOJ), alleging violations of his
rights to Equal Protection and Due Process, and of the
Foreign Intelligence Surveillance Act. Defendants have filed
a motion to dismiss which is meritorious. The Complaint will
Gill was born in Pakistan and immigrated with his family to
the United States in 1980. Compl. ¶ 8 [Dkt. 1]. He began
working for the FBI in 2002, where he was required to qualify
for security clearance. In 2003, Mr. Gill accessed the
FBI’s Automated Case Support system and searched for
information on himself, his family, and friends.
2006, Mr. Gill disclosed to his supervisor that a family
member was approached by the FBI and had contacted Mr. Gill
about the incident. After this disclosure, Mr. Gill was
required to take a polygraph test. Because his answers
indicated deception, he was re-interviewed by the Security
Unit, at which time he disclosed his previous unauthorized
use of the FBI’s Automated Case System system to run
searches on friends and family members. The FBI suspended
Gill in 2006 and temporarily revoked his security clearance.
permanently revoked Mr. Gill’s security clearance in
2008 and terminated Mr. Gill “for violating FBI policy
against unauthorized searches of its computer systems”
and because his answers “lacked candor.”
Id. ¶ 24. Mr. Gill sought review of the
decision to terminate, made by the FBI’s Office of
Professional Responsibility (OPR), by the Assistant Director
of OPR, and on February 19, 2009, Mr. Gill received a hearing
before the Assistant Director. However, in March 2009, the
Assistant Director upheld the revocation of Mr. Gill’s
security clearance and his removal.
the review by the Assistant Director of OPR was pending, on
October 17, 2008, Mr. Gill appealed his removal and the
revocation of his security clearance to the Access Review
Committee (occasionally, Committee) of the DOJ. On April 30,
2009, the Access Review Committee held a hearing to assess
Mr. Gill’s claims. On April 2, 2014, it decided to
affirm Mr. Gill’s removal and the revocation of his
decision of the Access Review Committee was attached as
Exhibit 1 to Mr. Gill’s Complaint. Compl., Ex. 1 [Dkt.
1-2]. In it, the Committee recounted the background to
revocation of Mr. Gill’s security clearance, noting
that it “was based upon information indicating that Mr.
Gill had conducted a number of unauthorized searches of the
FBI’s Automated Case Support (ACS) System. The Security
Division determined that this behavior posed a significant
and unacceptable risk to the national security.”
Id. at 1. The Committee listed the “Basis for
Denial of Security Clearance, ” to include foreign
influence, personal conduct, criminal conduct, handling
protected information, and use of the information technology
system. Id. at 1-2. The Access Review Committee
concluded that “Mr. Gill’s admitted misconduct in
accessing sensitive information for personal reasons
involving his family raises straightforward concerns
regarding his ability to safeguard classified information and
not disclose it for personal reasons.” Id. at
4. Although the Committee noted that Mr. Gill appeared
sincerely remorseful, it affirmed the FBI’s decision to
revoke his security clearance because “all
doubts” on the question of whether Mr. Gill “will
engage in similar future misconduct” had not been
Gill filed the instant Complaint on June 4, 2015, seeking
judicial review of the decision on the revocation of his
security clearance. See Compl. Mr. Gill alleges that
(1) the Committee’s decision violated the Equal
Protection Clause because it was based on his race, religion,
and national origin; (2) the Committee violated due process
by failing to provide notice of the information it reviewed
to support the decision to uphold his removal and the
revocation of his security clearance; (3) the FBI violated
the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C.
§ 1801 et seq., by not disclosing evidence it
intended to use before the Access Review Committee to support
the FBI’s decisions to revoke Mr. Gill’s security
clearance and remove him; (4) the Committee violated Mr.
Gill’s rights to due process by misapplying the
guidelines applicable to its review of the FBI’s
decisions; (5) the Committee’s decision violated the
Equal Protection Clause because it was based on his
family’s national origin; and (6) the Committee
violated due process by improperly delaying its decision to
uphold the revocation of Mr. Gill’s security clearance.
DOJ and its constituent agency, the FBI (Defendants), move to
dismiss the Complaint for lack of subject matter
jurisdiction, Fed.R.Civ.P. 12(b)(1), and, in the alternative,
for its failure to state a claim upon which relief may be
granted, Fed.R.Civ.P. 12(b)(6). Mot. to Dismiss [Dkt. 10]
Motion to Dismiss
Rule of Civil Procedure 12(b)(1) allows a defendant to move
to dismiss a complaint, or any portion thereof, for lack of
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). No action
of the parties can confer subject matter jurisdiction on a
federal court because subject matter jurisdiction is both a
statutory requirement and an Article III requirement.
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003). The party claiming subject matter
jurisdiction bears the burden of demonstrating that such
jurisdiction exists. Khadr v. United States, 529
F.3d 1112, 1115 (D.C. Cir. 2008); see Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(noting that federal courts are courts of limited
jurisdiction and “[i]t is to be presumed that a cause
lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction”) (internal citations omitted).
reviewing a motion to dismiss for lack of jurisdiction under
Rule 12(b)(1), a court must review the complaint liberally,
granting the plaintiff the benefit of all inferences that can
be derived from the facts alleged. Barr v. Clinton,
370 F.3d 1196, 1199 (D.C. Cir. 2004). Nevertheless,
“the Court need not accept factual inferences drawn by
plaintiffs if those inferences are not supported by facts
alleged in the complaint, nor must the Court accept
plaintiffs’ legal conclusions.” Speelman v.
United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006). A
court may consider materials outside the pleadings to
determine its jurisdiction. Settles v. U.S. Parole
Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005);
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003). A court has “broad
discretion to consider relevant and competent evidence”
to resolve factual issues raised by a Rule 12(b)(1) motion.
Finca Santa Elena, Inc. v. U.S. Army Corps of
Eng’rs, 873 F.Supp.2d 363, 368 (D.D.C. 2012)
(citing 5B Charles Wright & Arthur Miller, Fed. Prac.
& Pro., Civil § 1350 (3d ed. 2004)); see also
Macharia v. United States, 238 F.Supp.2d 13, 20 (D.D.C.
2002), aff’d, 334 F.3d 61 (2003) (in reviewing
a factual challenge to the truthfulness of the allegations in
a complaint, a court may examine testimony and affidavits).
In these circumstances, consideration of documents outside
the pleadings does not convert the motion to dismiss into one
for summary judgment. Al-Owhali v. Ashcroft, 279
F.Supp.2d 13, 21 (D.D.C. 2003).
motion to dismiss for failure to state a claim under
Fed.R.Civ.P. 12(b)(6) challenges the adequacy of a complaint
on its face. Fed.R.Civ.P. 12(b)(6) (“Every defense to a
claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may
assert the following defenses by motion: . . . (6) failure to
state a claim upon which relief can be granted[.]”). To
survive a motion to dismiss, a complaint must contain
sufficient factual information, 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 Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A court must assume the truth of all
well-pleaded factual allegations and construe reasonable
inferences from those allegations in favor of the plaintiff.
Sissel v. U.S. Dep’t of Health & Human
Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). A court need not
accept inferences drawn by a plaintiff if such inferences are
not supported by the facts set out in the complaint.
Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994). Further, a court does not need to
accept as true legal conclusions set forth in a complaint.
Iqbal, 556 U.S. at 678. In deciding a motion under
Rule 12(b)(6), a court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits or
incorporated by reference, and matters about which the court
may take judicial notice. Abhe & Svoboda, Inc. v.
Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
is part and parcel of Article III's limitation on the
judicial power of the federal courts and extends only to
cases or controversies. U.S. Const. art. III, § 2
(“The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made,
under their Authority [and] to Controversies . . .”);
Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm’n, et al., 135 S.Ct. 2652, 2663 (2015). The
strictures of Article III standing are by now
“familiar.” United States v. Windsor,
133 S.Ct. 2675, 2685 (2013). Standing requires (1) the
plaintiff to have suffered an injury in fact that is both (a)
concrete and particularized and (b) actual or imminent, as
opposed to conjectural or hypothetical; (2) the ...