United States District Court, District of Columbia
JAMES S. PARS, Plaintiff,
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.
N. MCFADDEN UNITED STATES DISTRICT JUDGE
James Pars,  an employee of defendant Central
Intelligence Agency ("CIA" or the
"Agency"), seeks a declaratory judgment and order
requiring the Agency to complete its investigation into his
reprisal complaint, which has been pending for nearly three
years. Compl. ¶¶ 3, 42, 56. He alleges that
Presidential Policy Directive 19 ("PPD-19" or the
"Directive"), issued by President Obama in October
2012, requires that the CIA Inspector General
("IG") conduct an investigation into his complaint,
and that the office's failure to do so can be rectified
through the Administrative Procedure Act ("APA").
Id. ¶¶ 37, 51-56. The Agency has moved to
dismiss the complaint for failure to state a claim upon which
relief can be granted. Def.' s Mot. to Dismiss, ECF No.
12. Upon consideration of the pleadings, relevant law, and
related legal memoranda in opposition and in support,
find that the complaint fails to allege that a private right
of action is established, either by statute or the Directive,
to sustain judicial review of the merits of this action.
Accordingly, the Defendant's motion will be granted, and
the complaint will be dismissed without prejudice.
Pars is a 16-year veteran of the CIA. Compl. ¶ 3. In
December 2014, he began a one-year assignment as the Deputy
Chief of Base, a management position, at a base located in a
conflict zone. Id. ¶¶ 6, 8. In this
position, he allegedly observed certain "unusual and
inappropriate" behaviors of the Chief of Base
("COB") which he feared "negatively impacted
the Base's ability to meet its mission of assisting
Intelligence Community (IC) and U.S. military partners, and
endangered the lives of personnel." Id.
¶¶ 8-9. For example, the COB allegedly often spent
time cooking, baking, socializing, entertaining, exercising,
and shopping, and insisted on traveling in areas of indirect
fire attack to perform certain of these activities, putting
herself and other military personnel in danger. Id.
¶¶ 10-12. In one instance, the COB and her
personnel allegedly traveled through an area that was hit by
a rocket ten minutes later. Id. ¶ 12. In
another instance, the COB allegedly missed a meeting with a
senior U.S. military official in order to cook. Id.
¶ 25. The COB also allegedly told Mr. Pars that she was
"horribly depressed" and missed her family.
Id. ¶ 10. According to Mr. Pars, she selected
certain individuals to become her "adopted sons, "
and gave preferential treatment to those individuals,
entertaining them and permitting them to shirk their work
responsibilities. Id. ¶¶ 13-18.
around January 2015, upon advice from the base's
Psychological Officer, Mr. Pars disclosed his concerns to the
"Chief, " the next person in the chain of command.
Id. ¶¶ 21-22. The Chief allegedly relayed
Mr. Pars' disclosure to the COB, who allegedly retaliated
against Mr. Pars by excluding him from key meetings,
micromanaging his work, and exhibiting "belligerent and
threatening behavior" towards him. Id.
¶¶ 23, 27. In March 2015, while on previously
scheduled leave for rest and recuperation, Mr. Pars was told
that he would not be returning to the base. Id.
¶ 32. He alleges that the COB sent a "short of tour
cable" stating that she had lost confidence in Mr.
Pars' leadership. Id. ¶ 33. Mr. Pars
alleges that the sole reason he was "sent home short of
tour was because he complained about the COB's behavior
and mismanagement of personnel and resources, " and that
this very negative career event that has severely impacted
his career at the CIA. Id. ¶¶ 34, 36.
April 2015, Mr. Pars submitted a complaint to the CIA IG,
alleging improper retaliation due to his protected
disclosures about the COB. Id. ¶ 42. Between
April and December 2015, Mr. Pars met twice with the CIA
IG's office about his complaint, and submitted
evidentiary and witness information to the IG. Id.
¶¶ 43-45. Since then, however, Mr. Pars alleges
that the IG has not taken any action on his complaint,
including interviewing main witnesses and issuing a final
written disposition. Id. ¶¶ 46-48. Mr.
Pars challenges this inaction as a violation of PPD-19 and
seeks that I order the Agency to conclude its investigation
and issue a written disposition. Id.
may move to dismiss a complaint on the ground that it
"fail[s] to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). A complaint must
contain sufficient factual allegations that, if true,
"state a claim to relief that is plausible on its
face." BellAtl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). In evaluating a motion to dismiss pursuant to
Rule 12(b)(6), the Court must construe the complaint in the
light most favorable to the plaintiff and accept as true all
reasonable factual inferences drawn from well-pled factual
allegations. See In re United Mine Workers of Am. Emp.
Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.
1994). In addition, "[i]n determining whether a
complaint fails to state a claim, [the court] may consider
only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of
which [the court] may take judicial notice." Hurd v.
District of Columbia Gov't, 864 F.3d 671, 678 (D.C.
Cir. 2017) (quoting EEOC v. St Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).
Policy Directive 19, signed on October 10, 2012 by President
Obama, seeks to "ensure that employees  serving in
the Intelligence Community ... can effectively report waste,
fraud, and abuse while protecting classified national
security information" and "prohibits retaliation
against employees for reporting waste, fraud, and
abuse." Def.'s Mot. to Dismiss Ex. 1
("PPD-19") at 1, 8. In the Directive, President
Obama ordered that intelligence agencies such as the CIA
establish a process for employees to seek review of any
personnel action allegedly made as a reprisal for a protected
disclosure. Id. at 2, 6. The Directive requires the
agency's Inspector General to investigate and determine
whether a personnel action complained of violated the
Directive and, if so, to recommend appropriate corrective
action including but not limited to reinstatement,
reassignment, and the award of back pay, related benefits,
expenses, and/or costs. Id. at 2. Employees who have
exhausted this process can seek further external review by a
three-member Inspector General panel. Id. at 4. Mr.
Pars alleges that the CIA IG's failure to investigate and
issue a final written disposition regarding his complaint
constitutes "agency action unlawfully withheld or
unreasonably delayed, " and that this inaction prevents
him from being able to seek external review. Compl.
¶¶ 51-56; see also 5 U.S.C. §
the APA requires courts to compel agencies to act where the
action is "unlawfully withheld or unreasonably delayed,
" the complaint does not adequately establish that the
CIA's investigation into the Plaintiffs reprisal
complaint was legally required, nor does it allege that a
private right of action exists to permit judicial review. As
an initial matter, "the only agency action that can be
compelled under the APA is action legally required"
Norton v. Southern Utah Wilderness Alliance, 542 U.S.
55, 63 (2004), and "private rights of action to enforce
federal law must be created by Congress." Alexander
v. Sandoval, 532 U.S. 275, 286 (2001). Furthermore, as
it pertains to executive orders, those "executive orders
without specific foundation in congressional action are not
judicially enforceable in private civil suits." In
re Surface Mining Regulation Litig., 627 F.2d 1346, 1357
(D.C. Cir. 1980).
complaint does not sufficiently allege that the CIA IG's
action is legally required such that it can be compelled by
the judiciary. Significantly, the complaint fails to identify
any statute that makes PPD-19 have the force and effect of
lawâin other words, that the President issued PPD-19 pursuant
to an authorization by Congress. Furthermore, the Plaintiff
admits that "PPD-19 does not provide whistleblowers with
a private right of action to enforce their rights."
Pl.'s Opp. to Def.'s Mot. to Dismiss 2. These
shortcomings require that the complaint be dismissed for
failure to state a claim.
the Plaintiff argues that PPD-19 was later entirely codified
in the Section 601 of the Intelligence Authorization Act for
FY 2014, the statute does not authorize a private right of
action by which I can adjudicate Mr. Pars' claim, See
id.; 50 U.S.C. §§ 3234(b)-(c). The statute
only codifies the prohibition on reprisals for disclosing
information regarding mismanagement and abuses of authority
to, inter alia, the inspector general for the
employee's agency, and requires that the "President
shall provide for the enforcement of this section." 50
U.S.C. §§ 3234(b)-(c). The statute is silent as to
how the President should enforce the prohibition, and says
nothing to permit or otherwise provide for judicial review.
See Id. Even assuming that PPD-19, which pre-dated
Section 601, is a directive detailing the President's
enforcement of Section 601, the Plaintiffs own admission that
PPD-19 does not create a private right of action precludes
judicial review of his claim. See Meyer v. Bush, 981
F.2d 1288, 1296 n.8 ("An Executive Order . . . which
does not create any private rights-is not, for instance,
subject to judicial review.").
Plaintiffs fatal admission that PPD-19 does not create a
private right of action echoes PPD-19 itself, which includes
a clear disclaimer: "This directive is not intended to,
and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other
person." Similar language has been found to not create
any private right of action. For example, in Meyer v.
Bush, the D.C. Circuit described an Executive Order
issued by President Reagan stating that it was "not
intended to create any right or benefit, substantive or
procedural, enforceable at law by a party against the United
States" as one that "created no private
rights." 981 F.2d at 1290, 1296 n.8. Thus, a private
right of action is neither created through the Directive nor
Section 601, and Mr. Pars' claim, no matter how
meritorious, cannot proceed under the circumstances as
alleged. "Without [a private ...