Majid v. Federal Bureau of Investigation et al

MOTION to Dismiss Or, In The Alternative, MOTION for Summary Judgment

D.D.C.August 18, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOSEPH MAJID, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-731 GK ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) ___________________________________) FBI’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Defendant, the Federal Bureau of Investigation (“FBI”) by and through counsel, hereby moves, pursuant to Fed. R. Civ. P. 12(b)(1), (3) and (6), to dismiss the Complaint (ECF No. 1) in this action. In the alternative, the FBI moves for summary judgment in its favor, pursuant to Fed. R. Civ. P. 56, because there is no genuine issue as to any material fact and the FBI is entitled to judgment as a matter of law. Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 1 of 22 -2- The Court is respectfully referred to the memorandum and statement of material facts also submitted in support of this motion. Respectfully submitted, CHANNING D. PHILLIPS, DC Bar #415793 United States Attorney DANIEL F. VAN HORN, DC Bar #924092 Chief, Civil Division By: /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 2 of 22 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOSEPH MAJID, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-731 GK ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) ___________________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FBI’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT INTRODUCTION Plaintiff is a resident of California complaining that Defendant Wallace made false remarks about him while Plaintiff was working as a translator for DynCorp International, Inc., in Afghanistan. According to the Complaint, these false statements led to the opening of an FBI investigation of Plaintiff. Again, according to the Complaint, the authorization for opening the investigation took place in the District of Columbia, but the investigation was performed entirely in Afghanistan and California. See Complaint, ¶¶ 9, 11-26; id., ¶ 32 (“As a result of the false statements made by Wallace and other DI officials to the FBI that the Plaintiff posed a security risk, the California FBI office, at the direction of FBI headquarters, assigned local field agents to monitor Plaintiff’s activities and interview Plaintiff’s neighbors, Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 3 of 22 -2- coworkers, and even his friends at the local gym to determine what illicit activities the Plaintiff was involved in.”). As result of the allegations made against him, Plaintiff asserts, he is the subject of surveillance, including FBI agents “trailing him in their government vehicles.” Complaint, ¶¶ 33, 36. Moreover, Plaintiff asserts, the FBI agents have falsely disseminated information “that Plaintiff is a security risk.” Complaint, ¶ 46. The Complaint raises the following three claims against the FBI: 1) a Privacy Act Claim (Count V) asserting that mistakes in the FBI’s records warrant an order “allowing his attorneys to review whatever files the FBI currently maintains on his activities, and that any and all false and defamatory materials contained therein be deleted, consistent with the protections afforded the Plaintiff by the Privacy Act. Complaint, ¶ 50. 2) a Claim seeking damages for a violation of the Due Process clause of the U.S. Constitution (Count VI); and 3) a claim for a violation of the California Civil Code § 51.7, 52.1 (Count VIII). Complaint, ¶¶ 66-70. As reflected herein, the Privacy Act claim is subject to dismissal, because the FBI has exempted its Central Records System from the access, amendment and accuracy provisions of the Privacy Act; the Constitutional claim is subject to dismissal because there has been no waiver of sovereign immunity for such claims; and the tort claims in Count VIII are subject to dismissal because only the United States can be named in such an action under the Federal Tort Claims Act, because such suits require Plaintiff to exhaust Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 4 of 22 -3- administrative remedies before filing suit, and because venue for such a suit would not lie here anyway. ARGUMENT A. Legal Standards Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, see Willy v. Coastal Corp., 503 U.S. 131, 136-137, 112 S.Ct. 1076, 1080, 117 L.Ed.2d 280 (1992); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986), which is not to be expanded by judicial decree, American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). It is to be presumed that a cause lies outside this limited jurisdiction, Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799), and the burden of establishing the contrary rests upon the party asserting jurisdiction, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-183, 56 S.Ct. 780, 782, 80 L.Ed. 1135 (1936). Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may be presented as a facial or factual challenge. “A facial challenge attacks the factual allegations of the complaint that are contained on the face of the complaint, while a factual challenge is addressed to the underlying facts contained in the complaint.” Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003) (internal quotations and citations omitted.) When defendants make a facial challenge, the district court must accept the allegations contained in the complaint as true and consider the factual allegations in the light Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 5 of 22 -4- most favorable to the non-moving party. Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006). With respect to a factual challenge, the district court may consider materials outside of the pleadings to determine whether it has subject matter jurisdiction over the claims. Jerome Stevens Pharmacy, Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The plaintiff bears the responsibility of establishing the factual predicates of jurisdiction by a preponderance of evidence. Erby, 424 F. Supp. 2d at 182. In order to survive a Rule 12(b)(6) motion, the plaintiff must present factual allegations that are sufficiently detailed “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). As with facial challenges to subject-matter jurisdiction under Rule 12(b)(1), a district court is required to deem the factual allegations in the complaint as true and consider those allegations in the light most favorable to the non-moving party when evaluating a motion to dismiss under Rule 12(b)(6). Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006). However, where “a complaint pleads facts that are ‘merely consistent with’ a defendant=s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Further, a “court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 6 of 22 -5- more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. While “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, [] it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Finally, as a general matter, the Court is not to consider matters outside the pleadings, per Rule 12(b), without converting a defendant’s motion to a motion for summary judgment. In interpreting the scope of this limitation, however, the D.C. Circuit has instructed that the Court may also consider “any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice.” EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). For example, the D.C. Circuit has approved judicial notice of public records on file. In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (statements attached to complaint that undermined inference advocated by plaintiff). Defendant specifically asks that the Court take judicial notice of the documents accompanying this filing. See Fed. R. Evid. 201. Summary judgment is appropriate when, as here, the Complaint and Federal Register provisions demonstrate that “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 7 of 22 -6- As the Supreme Court has declared, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is appropriate, under Rule 56, if the pleadings on file, as well as the affidavits submitted, evidence that there is no genuine issue of any material fact and that movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Mendoza v. Drug Enforcement Admin., 465 F.Supp.2d 5 (D.D.C. 2006). Courts are required to view the facts and inferences in a light most favorable to the non-moving party. See Flythe v. District of Columbia, 791 F.3d 13, 19 (D.C. Cir. 2015)(citing Scott v. Harris, 550 U.S. 372, 383 (2007). However, the party opposing the motion cannot simply “rest upon the mere allegations or denials of the adverse party’s pleading, but. . . must set forth specific facts showing that there is a genuine issue for trial.” Mendoza, 465 F.Supp.2d at 9 (quoting Fed R. Civ. P. 56(e). A non-moving party must show more than “that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). In Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992), the Court recognized that “any factual assertions in the movants affidavits Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 8 of 22 -7- will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion.” Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). “[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). Since the Court is constrained to “treat the complaint’s factual allegations as true”, Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), the facts alleged in the Complaint “must be enough to raise a right to relief above the speculative level.” Schuer v. Rhodes, 416 U.S. 232, 236 (1974). The Privacy Act Claims Plaintiff asserts that he has been the subject of an official investigation by the FBI. The FBI maintains investigative records within the Central Records System (“CRS”). See 63 Fed. Reg. 8671 (Feb. 20, 1998) (the FBI Central Records System covers “[i]ndividuals who relate in any manner to official FBI investigations including but not limited to subjects, suspects. . .” and the FBI utilizes its central records system to maintain its “investigative, personnel, applicant, administrative and general files”). Under the Privacy Act, however, agencies may promulgate rules to exempt systems of records from various provisions of the Act, to include individual requests for access or amendment. See 5 U.S.C. Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 9 of 22 -8- §§ 552a(j) and (k). The U.S. Department of Justice (“DOJ”) promulgated regulations exempting certain systems of records from: inter alia, the Privacy Act’s individual access provision (5 U.S.C. § 552a(d)), the accuracy provision (5 U.S.C. § 552a(e)(1)) and the civil remedies provision (5 U.S.C. § 552a(g)). Specifically, DOJ has relied on § 552a(j)and(k) to exempt FBI law enforcement investigative records maintained in the CRS from these provisions of the Privacy Act. See 28 C.F.R. § 16.96(a)(1). Accordingly, the plaintiff has no individual right of access, to amend or to seek damages for inaccuracies in the FBI’s investigative files. Id.; Paxson v. United States Dep’t of Justice, 41 F. Supp. 3d 55, 59 (D.D.C. 2014) (noting that the FBI has exercised its authority to exempt CRS records from the disclosure obligations under the Privacy Act); Marshall v. FBI, 802 F.Supp.2d 125, 134 (D.D.C. 2011); Lee v. FBI, Civil Action No. 15-180 TSC, 2016 WL 1225957, at *3 (D.D.C. Mar. 28, 2016) (The CRS is exempt from the Privacy Act’s amendment and damages provisions); Bassiouni v. FBI, No. 02 C 8918, 2004 WL 2066890, at *5 (N.D. Ill. Sept. 14, 2004) (records in the CRS are exempt from the amendment procedures of subsection (d), and thus from an amendment suit under (g)(1)(A), if they were “compiled for law enforcement purposes”), aff’d, 436 F.3d 712 (7th Cir. 2006); see also Doe v. FBI, 936 F.2d 1346, 1351 (D.C. Cir. 1991) (an agency’s refusal Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 10 of 22 -9- to amend a record that it properly has exempted from 5 U.S.C. § 552a(d) cannot give rise to a claim under 5 U.S.C. § 552a(g)(1)(A)). Because the records at issue, if any, would be maintained in the CRS, and are allegedly investigatory records compiled in a criminal investigation (see Complaint, ¶ 9; 63 Fed. Reg. 8671), they are exempt from the access, amendment and accuracy provisions of the Privacy Act. 28 C.F.R. § 16.96(a)(1); Doe v. FBI, 936 F.2d at 1351. The Constitutional Claims Plaintiff’s claim that he is entitled to money damages from the FBI on account of an asserted Constitutional violation (Count VI) is without merit. These claims are subject to dismissal because there has been no waiver of sovereign immunity1 for a money damages claim against the sovereign for a purported violation of a Constitutional right. FDIC v. Meyer, 510 U.S. 471, 478 (1994) (a constitutional tort claim is not cognizable under the Federal Tort Claims Act); Settles v. U.S. Parole Commission, 429 F.3d at 1106 (sovereign immunity bars Section 1983 claims against a government agency); Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 1 An agency’s assertion of sovereign immunity goes to the Court’s jurisdiction. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1105 (D.C. Cir. 2005). And, a waiver of the United States’s sovereign immunity must be unequivocally expressed in statutory text, see, e.g., United States v. Nordic Village, Inc., 503 U.S. 30, 33–34, 37 (1992); it will not be implied. Lane v. Pena, 518 U.S. 187, 192 (1996). Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 11 of 22 -10- (D.C. Cir. 1994); Clark v. Library of Congress, 750 F.2d 89, 102-104 (D.C. Cir. 1984) (sovereign immunity acts as a bar to a damages remedy against a federal employee in an official capacity). Plaintiff’s Claims Under California Law Plaintiff’s claims under state law must also fail. Again, Plaintiff must establish this Court’s jurisdiction and must identify some waiver of sovereign immunity for a claim against a federal agency. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. at 377; FDIC v. Meyer, 510 U.S. at 484 (“The first inquiry is whether there has been a waiver of sovereign immunity.”); Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Security, 527 F. Supp. 2d 101, 104 (D.D.C. 2007) (plaintiff bears the initial burden of establishing that the Court has subject matter jurisdiction over his negligence claim.) One common waiver of sovereign immunity is the Federal Tort Claims Act (“FTCA”), 28 U.S.C §§ 1346(b), 1402, 2674-75, 2679, 2680. To begin with, however, only the United States is a proper party in an action under the FTCA. See 28 U.S.C. § 2679(a); Hall v. Administrative Office of U.S. Courts, 496 F.Supp.2d 203, 206 (D.D.C. 2007); Cox v. Secretary of Labor, 739 F.Supp. 28, 29 (D.D.C. 1990). Moreover, a claim under the FTCA requires that the Plaintiff have first exhausted the requisite administrative remedies mandated by 28 U.S.C. § 2675. Plaintiff does not assert that he has exhausted Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 12 of 22 -11- the necessary administrative remedies under the FTCA. It bears repeating that the FTCA is a limited waiver of sovereign immunity for certain monetary claims against the United States. Absent full compliance with the conditions placed upon waiver of that immunity, the Court lacks jurisdiction to entertain tort claims against the United States. GAF Corp. v. United States, 818 F.2d 901, 904, 916 and n.86 (D.C. Cir. 1987). One such condition is contained in 28 U.S.C. § 2675, which provides: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. . . . 28 U.S.C. § 2675(a); see GAF Corp. v. United States, 818 F.2d at 904 n.7. This requirement is jurisdictional and cannot be waived. Hohri v. United States 782 F.2d 227, 245-46 (D.C. Cir. 1986), reh. denied, 793 F.2d 304 (D.C. Cir. 1987), rev’d on other grounds sub nom., United States v. Hohri, 482 U.S. 64 (1987). An action cannot be maintained under the FTCA where the complaint is filed before such an administrative claim is finally denied or six months have passed. McNeil v. United States, 508 U.S. 106 (1993). Moreover, procedural Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 13 of 22 -12- prerequisites in Section 2675(a) must be strictly construed inasmuch as the FTCA constitutes waiver of sovereign immunity. Lann v. Hill 436 F. Supp. 463, 468 (W.D. Okla. 1977); see also Henderson v. Ratner, No. 10-5035, 2010 WL 2574175, at *1 (D.C. Cir. June 7, 2010) (per curiam) (affirming dismissal of FTCA claim where “[a]ppellant failed to demonstrate that he exhausted his administrative remedies before filing suit in the district court”); Hammond v. Fed. Bureau of Prisons, 740 F. Supp. 2d 105, 111 (D.D.C. 2010) (dismissing FTCA claim for lack of subject matter jurisdiction where plaintiff had not “established by a preponderance of the evidence that he administratively exhausted his FTCA claim with the BOP before commencing this action”). A failure to file an administrative claim will deprive a district court of jurisdiction over the claim. Jackson v. United States, 730 F.2d 808, 809 (D.C. Cir. 1984); Keene v. United States, 591 F. Supp. 1340, 1344 (D.D.C. 1984); GAF Corp. v. United States, 593 F. Supp. at 705. And, Plaintiff has not met his burden to allege or prove facts to support the Court’s jurisdiction over his tort claim.2 2 Plaintiff asserts that the Court has Diversity Jurisdiction under 28 U.S.C. § 1332. Complaint, ¶ 6. But he then admits that he and the unidentified defendants are from California. Complaint, ¶¶ 3-4. Similarly, although Plaintiff relies on this Court’s supplemental jurisdiction under 28 U.S.C. § 1367(a) (Complaint, ¶ Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 14 of 22 -13- Moreover, venue for a claim under the FTCA would not be proper in this district. 28 U.S.C § 1402(b). That statute provides in relevant part: Any civil action on a tort claim against the United States under subsection (b) of section 1346 of [Title 28] may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred. 28 U.S.C. § 1402(b).3 Plaintiff resides in California. Complaint, Caption and ¶ 16. Moreover, the acts complained of all took place in California or Afghanistan. Complaint, ¶¶ 10-26. Indeed, the sole link that Plaintiff says he has with this district is his claim that the FBI is located in the District of Columbia, with a field office in California and that “from its headquarters in this jurisdiction, it ordered . . . FBI agents . . . to engage in 24-hour 8), the Court would be unable to exercise such supplemental jurisdiction if, as the FBI argues, the Privacy Act claims and Constitutional claims are properly dismissed. See 28 U.S.C. § 1367(c). 3 Under 28 U.S.C. § 1346(b): Subject to the provisions of chapter 171 of [title 28] the district courts, together with the United States District Court for the District of the Canal Zone and the District of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on or after January 1, 1945, for injury or loss of personal property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government... Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 15 of 22 -14- surveillance of the Plaintiff.” Complaint, ¶ 2. There is simply nothing wrongful with an agency initiating an investigation into the conduct of someone like Plaintiff, who has been described by a member of the public as engaging in suspicious activity. See Complaint, ¶¶ 5, 14-17; Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); Lewis v. United States, 385 U.S. 206, 210 (1967); United States v. Lee, 274 U.S. 559, 563 (1927). In any event, if Plaintiff is seeking to establish that the United States is liable for placing Plaintiff in a false light with his neighbors and coworkers, the United States has not waived sovereign immunity for the tort of False Light Invasion of Privacy. See Edmonds v. United States, 436 F.Supp.2d 28, 35 (D.D.C. 2006) (“Courts have consistently held that claims for ‘false light’ invasion of privacy are barred by the libel and slander exception.”); Johnson v. Sawyer, 47 F.3d 716, 732 n.34 (5th Cir. 1995) (noting that false light invasion of privacy claim would be barred under the FTCA); Metz v. United States, 788 F.2d 1528, 1535 (11th Cir. 1986) (barring false light invasion of privacy and intentional infliction of emotional distress claims based on allegedly slanderous statements); see also Lorenzo v. United States, 719 F. Supp. 2d 1208, 1212-13 (S.D. Cal. 2010). Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 16 of 22 -15- Plaintiff’s Claims to Injunctive Relief Are Without Merit Although the FBI is not, itself, named in the other counts of the Complaint, Plaintiff has sought to enjoin certain of its agents from continuing their surveillance of him. See, e.g., Complaint, ¶¶ 38, 40.4 Such relief would be in the nature of Mandamus. Issuance of a writ of mandamus is an extraordinary remedy, to be used only under exceptional circumstances and where essential to justice. See Haneke v. Secretary of HEW, 535 F.2d 1291, 1296 (D.C. Cir. 1976); In Re Tripati, 836 F.2d 1406, 1407 (D.C. Cir. 1988) (citing Starnes v. McGuire, 512 F.2d 918, 929 (D.C. Cir. 1974) (en banc)). While a federal district court has authority to issue a writ of mandamus pursuant to 28 U.S.C. § 1361, its issuance is not required; rather, mandamus is issued at the discretion of the Court. National Wildlife Federation v. United States, 626 F.2d 917, 923 (D.C. Cir. 1980). Mandamus generally will not issue unless there is a clear right in the plaintiff to the relief sought, a plainly defined and nondiscretionary duty on the part of the defendant to honor that 4 Undersigned counsel do not currently represent those unidentified agents. Thus, this motion does not act to waive any defenses that they may have, pursuant to Fed. R. Civ. P. 12 or otherwise, including immunity from suit. The Court, of course, would have to have personal jurisdiction over those unidentified defendants before they could be called upon to comply with the injunctive relief sought by Plaintiff. The United States, however, may present its statement of interest in not having its employees precluded from performing their lawful functions. See 28 U.S.C. § 517. Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 17 of 22 -16- right, and no other adequate remedy, either judicial or administrative, available. Ganem v. Heckler, 746 F.2d 844, 852 (D.C. Cir. 1984); accord In Re Lane, 801 F.2d 1040, 1042 (8th Cir. 1986); Homewood Professional Care Center, Ltd. v. Heckler, 764 F.2d 1242, 1251 (7th Cir. 1985); Homewood Professional Care Center, Ltd. v. Heckler, 764 F.2d 1242, 1251 (7th Cir. 1985); Jones v. Alexander, 609 F.2d 778 (5th Cir. 1980); Billiteri v. U.S. Board of Parole, 541 F.2d 938 (2nd Cir. 1976). The requirement of a clear duty to act has been interpreted to mean that the duty of the federal officer sued must be “ministerial, plainly defined and peremptory.” Jeno’s Inc. v. Commissioner of Patents and Trademarks, 498 F. Supp. 472, 476 (D. Minn. 1980). The act sought to be compelled must be “a clear nondiscretionary duty.” Pittston Coal Group v. Sebben, 488 U.S. 105, 121,109 S. Ct. 414, 424 (1988). Accord, Nova Stylings, Inc. v. Ladd, 695 F.2d 1179 (9th Cir. 1983); Welch v. Donovan, 551 F. Supp. 809 (D.D.C. 1982). “It is well settled that a writ of mandamus is not available to compel discretionary acts.” Cox v. Secretary of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990)(citations omitted). To establish a clear and certain duty to act, a plaintiff must show a duty so plainly prescribed as to be free from doubt. Lozada Colon v. U.S. Department of State, 170 F.3d 191, 194 (D.C. Cir. 1999). Where a duty depends on a statute or statutes the construction or application of which is not free from doubt, it involves “the character of judgment or discretion which cannot be controlled by Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 18 of 22 -17- mandamus.” Wilbur v. United States, 281 U.S. 206, 219, 50 S.Ct. 320, 74 L.Ed. 809 (1930). Walpin v. Corp. for Nat. & Cmty. Serv., 718 F. Supp. 2d 18, 23 (D.D.C. 2010), aff'd sub nom. Walpin v. Corp. for Nat. & Cmty. Servs., 630 F.3d 184 (D.C. Cir. 2011). Here, the FBI has broad authority to initiate an investigation. 28 U.S.C. §§ 531-533;5 Heckler v. Chaney, 470 U.S. 821, 832 (1984). Plaintiff has identified no basis to support a ministerial duty to cease any investigation of him. Thus, the claim for injunctive relief is meritless. CONCLUSION WHEREFORE, the above civil action should be dismissed as to the claims against the Federal Bureau of Investigation, or summary judgment entered in its favor. Respectfully submitted, CHANNING D. PHILLIPS, DC Bar #415793 United States Attorney DANIEL F. VAN HORN, DC Bar #924092 Chief, Civil Division By: /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney 5 Section 533 specifically allows the Attorney General to appoint officials to conduct investigations. 28 U.S.C. § 533(4). Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 19 of 22 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOSEPH MAJID, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-731 GK ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) ___________________________________) FBI’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Pursuant to Local Civil Rule 7(h), the Federal Bureau of Investigation (“FBI”) hereby provides the following statement of material facts as to which there is no genuine dispute: 1. Plaintiff is a resident of California. Complaint, Caption, ¶ 16. 2. The unidentified defendants described in the Complaint are from California. See Complaint, ¶¶ 3-4, 9, 18, 20-21. 3. Plaintiff complains that the investigatory files created by the Federal Bureau of Investigation (“FBI”) about him contain inaccuracies. Complaint, ¶¶ 47-50. 4. FBI’s investigative files are maintained in the Central Record System, which is also designated as a System of Records denoted FBI-002. 63 Fed. Reg. 8671 (Feb. 20, 1998). Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 20 of 22 -2- 5. The FBI’s Central Record System has been exempted from the access, amendment and accuracy provisions of the Privacy Act. 28 C.F.R. § 16.96(a)(1). Respectfully submitted, CHANNING D. PHILLIPS, DC Bar #415793 United States Attorney DANIEL F. VAN HORN, DC Bar #924092 Chief, Civil Division By: /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 21 of 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing FBI’S Motion To Dismiss Or, In The Alternative, For Summary Judgment, supporting memorandum, statement of material facts and proposed order has been made through the Court’s electronic transmission facilities on the 18th day of August, 2016. /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, DC 20530 (202) 252-2536 Case 1:16-cv-00731-GK Document 6 Filed 08/18/16 Page 22 of 22 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOSEPH MAJID, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-731 GK ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) ___________________________________) ORDER Upon consideration of the FBI’s Motion To Dismiss Or, In The Alternative, For Summary Judgment, for the reasons set forth in support thereof and based upon the entire record herein, the Court is of the opinion and finds that the Motion should be granted. Accordingly, it is this _____ day of ____________, 2016, ORDERED that the FBI’s Motion To Dismiss Or, In The Alternative, For Summary Judgment be and hereby is GRANTED; and it is FURTHER ORDERED that all claims against the Federal Bureau of Investigation be and are hereby are DISMISSED. ______________________________ UNITED STATES DISTRICT JUDGE Case 1:16-cv-00731-GK Document 6-1 Filed 08/18/16 Page 1 of 2 -2- copies to: W. MARK NEBEKER MARTIN F. MCMAHON, ESQ. Assistant United States Attorney Martin F. McMahon & Assocs. 555 4th Street, N.W. 1150 Connecticut Ave., N.W. Washington, DC 20530 Suite 900 Washington, DC 20036 Case 1:16-cv-00731-GK Document 6-1 Filed 08/18/16 Page 2 of 2