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Gill v. Department of Justice

United States District Court, District of Columbia

July 22, 2016

KAISER GILL, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          OPINION

          ROSEMARY M. COLLYER United States District Judge

         Plaintiff 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 be dismissed.

         I. FACTS

         Mr. 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.

         In 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.

         The FBI 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.

         While 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 security clearance.

         The 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 removed. Id.

         Mr. 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.

         Defendants 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] (Mot.).

         II. LEGAL STANDARD

         A. Motion to Dismiss

         1. Rule 12(b)(1)

         Federal 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).

         When 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).

         2. Rule 12(b)(6)

         A 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).

         B. Standing

         Standing 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 ...


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