United States District Court, District of Columbia
Kessler United States District Judge
Joseph Majid brings this lawsuit against Nikki Wallace, his
former co-worker at DynCorp International, Inc.
("DynCorp"), the Federal Bureau of Investigation
("FBI"), and two unnamed agents of the FBI, John
Doe #1 and John Doe #2 ("the John Doe Agents"). Mr.
Majid alleges that while working in Afghanistan as an
interpreter for the U.S. military, Ms. Wallace falsely told
his supervisors that he was a security risk and potential
terrorist sympathizer. He further alleges that this triggered
an FBI investigation, and ultimately a campaign of harassment
against him j by the FBI and the two John Doe-Agents. Mr.
Majid has brought i numerous claims against the various
defendants, based on the United States' Constitution, the
Privacy Act, 5 U.S.C. § 552(a), various l California
statutes, and the common law of the state of California.
before the Court is the FBI's Motion to Dismiss or, in
the Alternative, for Summary Judgment [Dkt. No. 6]
("MTD" or "Motion"), arguing that the
Court should dismiss those claims that Mr. Majid has brought
against the FBI or grant summary judgment to the FBI on those
claims. The FBI also argues that if the claims against the
FBI are dismissed, the Court lacks jurisdiction to hear the
remaining claims and should dismiss the entire action.
on the Complaint, the Motion, the Opposition, the Reply, and
the entire record herein, the FBI's Motion will be
granted in part and denied in part. The constitutional and
state law claims against the FBI contained in Counts VI and
VIII will be dismissed, but the Privacy Act claims contained
in Count V and the remaining claims against the other
Defendants will not be dismissed.
Majid is an American Citizen of Afghan descent who is fluent
or proficient in a number of languages other than English,
such as Dari, Pashto, Russian, and Turkmen. Complaint ¶
1. Given his language skills he was hired by DynCorp in June
of 2012 to serve as a security linguist in Afghanistan,
assisting U.S. military personnel. Id. at
¶¶ 1, 10-11.
Majid and Ms. Wallace, another DynCorp employee, began
working together in Afghanistan in January of 2013.
Id. At ¶ 12. Mr. Majid alleges that immediately
after they began working together, Ms. Wallace treated him
with hostility because he was of Afghan descent and she was
jealous that he was being paid at a higher salary than she
received. Id. at ¶¶ 12-14. He alleges she
spread false rumors about him to their military clients, and
filed a false report with their superiors indicating that he
was a security risk and potential terrorist sympathizer,
which forced him to resign from DynCorp. Id. at
¶¶ 14-15. Mr. Majid alleges that because of this
"defamatory" report, his security clearance has an
"incident" associated with it, and that he can no
longer obtain comparable employment to his position as a
security linguist. Id. at ¶ 17.
Majid alleges that, as a result of these false reports, the
FBI began investigating him. Id. at ¶ 16. He
alleges that two John Doe Agents have been intrusively
surveilling him and implying to his employers that he is a
security risk and a potential terrorist. Id. at
¶ 18, 25, 26. He alleges that as a consequence of the
FBI investigation he has lost multiple jobs. See Id.
at ¶¶ 16, 19.
Majid filed his Complaint on April 19, 2016. [Dkt. No. 1] .
In Count I, Mr. Majid alleges that Ms. Wallace's reports
to the FBI constitute negligent misrepresentation.
Id. ¶¶ 27-34. In Count II-IV, Mr. Majid
alleges that the John Doe Agents negligently-carried out
their investigation, intentionally inflicted emotional
distress upon him, and invaded his privacy. Id.
Count V, Mr. Majid alleges that the FBI violated the Privacy
Act, by maintaining inaccurate records about him.
Id. ¶¶ 46-50. In Count VI, Mr. Majid
alleges that the FBI and the two John Doe Agents deprived him
of his rights to procedural due process under the United
States' Constitution. Id. ¶¶ 51-57.
Count VIII, Mr. Majid alleges that the two John Doe Agents
violated his rights to life, liberty and happiness, to travel
freely, and to be free of false stigma. Id.
¶¶ 58-64. Finally, in Count VII, Mr. Majid alleges
that all of the Defendants violated Sections 51.7 and 52.1 of
the California Civil Code, subjecting him to threats based on
his race or national origin and interfering with his right to
Summons was issued to the FBI, as well as to the two John Doe
Agents, care of the FBI. [Dkt. No. 2-1] . Similarly, a
Summons was issued to Ms. Wallace, care of DynCorp.
Id. Only the FBI has made an appearance before this
August 8, 2016, the FBI filed this Motion to Dismiss or, in
the Alternative, for Summary Judgment, seeking dismissal of
or judgment on those claims that have been brought against
the FBI, contained in Counts V, VI, and VII, and arguing
that, if those claims are dismissed, the court lacks
jurisdiction to hear the remaining claims. On October 6,
2016, Mr. Majid filed his Opposition. [Dkt. No. 8]. On
October 27, 2016, the FBI filed its Reply. [Dkt. No. 9].
STANDARD OF REVIEW
Motion to Dismiss
Standard for Dismissal under Rule 12(b)(1) for Lack of
courts are courts of limited jurisdiction, possessing
"only that power authorized by Constitution and
statute." Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). "It is to be
presumed that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the
[plaintiff]." Id.; see also Shuler v.
United States, 531 F.3d 930, 932 (D.C. Cir. 2008).
deciding whether to grant a motion to dismiss for lack of
jurisdiction under Rule 12(b) (1), the court must
"'accept all of the factual allegations in the
complaint as true.'" Jerome Stevens
Pharmaceuticals, Inc. v. F.D.A., 402 F.3d 1249,
1253-54 (D.C. Cir. 2005) (quoting United States v.
Gaubert, 499 U.S. 315, 327 (1991)). Nonetheless, "
[t] he plaintiff's factual allegations in the complaint
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) .
Standard for Dismissal under Rule 12(b)(6) for Failure to
State a Claim
12(b)(6) of the Federal Rules of Civil Procedure permits
dismissal for the "failure to state a claim upon which
relief can be granted." Fed.R.Civ.P. 12(b)(6). "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) (internal quotation
marks and citations omitted) . A claim is facially-plausible
when the pleaded facts "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. Plausibility requires
"more than a sheer possibility that a defendant has
acted unlawfully, " but it is not a "probability
Rule 12(b) (6) stage, the court accepts all of the
complaint's factual allegations as true and draws all
reasonable inferences from those facts in plaintiff's
favor. Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002). In addition to the complaint, the court may
consider "other sources, " such as "documents
incorporated into the complaint by reference and matters of
which a court may take judicial notice." Tellabs,
Inc., 551 U.S. 308, 322 (2007) (citing 5B Charles A.
Wright & Arthur R. Miller, Federal Practice and
Procedure, § 1357 (3d ed. 2004) (hereinafter
"Wright & Miller))); Maggio, 795 F.3d 57,
62 (D.C. Cir. 2015) . The court may take judicial notice of
matters of public record. Abhe & Svoboda, Inc. v.