Echols v. Morpho Detection, Inc.

Filing 40

ORDER by Judge Claudia Wilken granting 36 Federal Defendants' Motion to Dismiss and Continuing Case Management Conference. (cwlc2, COURT STAFF) (Filed on 2/27/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 STEPHEN ECHOLS, 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 No. C 12-1581 CW Plaintiff, v. MORPHO DETECTION, INC.; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TRANSPORTATION SECURITY AGENCY; and JANET NAPOLITANO, in her official capacity as Secretary of Homeland Security, Defendants. ________________________________/ Defendants United States Department of Homeland Security (DHS), Transportation Security Agency (TSA) and Secretary of Homeland Security Janet Napolitano (collectively, Federal Defendants) move to dismiss three of the claims asserted against them by Plaintiff Stephen Echols. 24 25 26 27 28 Plaintiff opposes their motion and, in his opposition brief, requests leave to bring additional claims against them. The Court takes Federal Defendants’ motion under submission on the papers and GRANTS it. The Court also grants Plaintiff leave to file a motion for leave to amend his complaint to assert new claims against Federal Defendants. 22 23 ORDER GRANTING FEDERAL DEFENDANTS’ MOTION TO DISMISS (Docket No. 36) AND CONTINUING CASE MANAGEMENT CONFERENCE BACKGROUND The following facts are taken from Plaintiff’s first amended complaint (1AC). In September 2004, Plaintiff began working for Invision Technologies. 1AC ¶ 8. That company became or was acquired by Defendant Morpho Detection, Inc. in or about 2009. Id. Morpho 1 Detection has contracts with DHS and TSA to provide airport 2 security. 3 technician at the Los Angeles International Airport. 4 5 Id. at ¶ 9. Plaintiff was employed as a field service Id. at ¶ 8. Prior to March 9, 2010, Plaintiff passed all government airport and company background checks that he underwent. Id. 6 In or around January 2010, TSA required all of Morpho 7 Detection’s engineers, including Plaintiff, to undergo an “eQuip 8 background investigation.” 9 Id. at ¶ 10. Plaintiff received a letter from TSA dated March 9, 2010, United States District Court For the Northern District of California 10 stating that he was “ineligible to work on any TSA contract based 11 on the following issues identified during” the background 12 investigation: 13 CRIMINAL CONDUCT 14 • GRAND THEFT, $/LABOR/PROP $400+, 1/1/2007, Gardena Police Department, CA. 15 16 17 • BURGLARY OF IDENT/ 1 COUNT OF THREATEN CRIME WITH INTENT TO TERRORIZE/ 1 COUNT STALKING, 2/9/1999, Superior Court Los Angeles, CA. Sentence: CONVICTED, probation/jail 240 days/36 months. 18 19 20 21 22 23 • MAIMING/ASSAULT & BATTERY, 11/25/1990, Hampton Police Department, VA. Sentence: 6 months suspend, 6 months for 5 years. HONESTY • You failed to list most recent charge, GRAND THEFT, $/LABOR/PROP $400+, on your SF85P. 1AC ¶ 11, Ex. 2 (all errors in original).1 24 25 26 In the copy of the letter attached to the 1AC, the words “EXPUNGED & DISMISSED” are written next to the second item under the heading “Criminal Conduct.” 1AC ¶ 11, Ex. 2. 1 27 28 2 1 Plaintiff alleges that he was not the person who committed 2 the crimes identified in the first or second items under “Criminal 3 Conduct” or the item under “Honesty” and that he “was the victim 4 of identity theft.” 5 item under “Criminal Conduct” was “inaccurate in that the 6 plaintiff recalls the case was dismissed.” 7 Id. at ¶ 13. He also alleges that the third Id. In March 2010, Plaintiff received a telephone call from his 8 manager, David Fox, who told him that he was being placed on 9 suspension with pay. United States District Court For the Northern District of California 10 March 31, 2010. Id. at ¶ 15. Plaintiff was terminated on Id. at ¶ 16. 11 After he received the letter from the TSA, Plaintiff 12 communicated “with TSA and Morpho explaining the identity theft 13 issue and the alleged conviction in 1990.” 14 his repeated requests, TSA failed to provide Plaintiff with a copy 15 of his background report. 16 Id. at ¶ 15. Despite Id. Plaintiff filed this case on March 29, 2012, originally 17 asserting claims against Morpho Detection only. Docket No. 1. 18 October 12, 2012, the Court granted the parties’ stipulation to 19 allow Plaintiff to file his 1AC. On Docket Nos. 23, 25. 20 In his 1AC, Plaintiff asserts four claims against Federal 21 Defendants: (1) willful violation of the Fair Credit Reporting Act 22 (FCRA), 15 U.S.C. §§ 1681-1681x; (2) negligent violation of the 23 FRCA; (3) violation of the Freedom of Information Act (FOIA), 5 24 U.S.C. § 552; and (4) declaratory relief that Plaintiff is 25 eligible to be employed by the federal government or organizations 26 that require passage of the eQuip background check. 27 his FCRA claims, among other things, Plaintiff seeks “damages 28 3 As relief for 1 exceeding $300,000.00 which is the approximate equivalent of four 2 (4) years of salary with the related benefits.” 1AC ¶¶ 23, 25. Federal Defendants move to dismiss the FCRA claims and 3 4 declaratory relief claim. 5 to dismiss the FOIA claim. LEGAL STANDARDS 6 7 8 9 In the instant motion, they do not seek I. Federal Rule of Civil Procedure 12(b)(1) Subject matter jurisdiction is a threshold issue which goes to the power of the court to hear the case. Federal subject United States District Court For the Northern District of California 10 matter jurisdiction must exist at the time the action is 11 commenced. 12 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). 13 court is presumed to lack subject matter jurisdiction until the 14 contrary affirmatively appears. 15 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Morongo Band of Mission Indians v. Cal. State Bd. of A federal Stock W., Inc. v. Confederated 16 Dismissal is appropriate under Rule 12(b)(1) when the 17 district court lacks subject matter jurisdiction over the claim. 18 Fed. R. Civ. P. 12(b)(1). 19 been challenged, the plaintiff has the burden of establishing its 20 existence. 21 Agency, 509 F.3d 1095, 1102 n.1 (9th Cir. 2007). 22 Once subject matter jurisdiction has Rattlesnake Coal. v. United States Envtl. Prot. “A Rule 12(b)(1) jurisdictional attack may be facial or 23 factual.” Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) 24 (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). 25 facial attack, the challenger asserts that the allegations 26 contained in a complaint are insufficient on their face to invoke 27 federal jurisdiction.” Id. 28 4 “In a When a facial attack is made, the court’s inquiry is confined 1 2 to the allegations in the complaint. Savage v. Glendale Union 3 High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003) 4 (citation omitted). 5 under Rule 12(b)(6) and the allegations made in the complaint are 6 taken as true and construed in the light most favorable to the 7 plaintiff. 8 1989). Review is similar to that of a motion made Love v. United States, 915 F.2d 1242, 1245 (9th Cir. Because Federal Defendants do not submit any evidence beyond 9 United States District Court For the Northern District of California 10 the complaint with their motion and instead contend that the 11 allegations set forth in Plaintiff’s 1AC, even if true, are 12 insufficient on their face to invoke federal jurisdiction, they 13 raise a facial attack on jurisdiction. 14 II. 15 Federal Rule of Civil Procedure 12(b)(6) A complaint must contain a “short and plain statement of the 16 claim showing that the pleader is entitled to relief.” Fed. R. 17 Civ. P. 8(a). 18 state a claim, dismissal is appropriate only when the complaint 19 does not give the defendant fair notice of a legally cognizable 20 claim and the grounds on which it rests. 21 Twombly, 550 U.S. 544, 555 (2007). 22 complaint is sufficient to state a claim, the court will take all 23 material allegations as true and construe them in the light most 24 favorable to the plaintiff. 25 896, 898 (9th Cir. 1986). 26 to legal conclusions; “threadbare recitals of the elements of a 27 cause of action, supported by mere conclusory statements,” are not On a motion under Rule 12(b)(6) for failure to Bell Atl. Corp. v. In considering whether the NL Indus., Inc. v. Kaplan, 792 F.2d However, this principle is inapplicable 28 5 1 taken as true. 2 (citing Twombly, 550 U.S. at 555). 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) A statute of limitations defense may be raised by a motion to 4 dismiss if the running of the relevant statute of limitations is 5 apparent on the face of the complaint. 6 Produce, Inc., 816 F.2d 482, 484 n.1 (9th Cir. 1987). 7 motion to dismiss is based on the running of a statute of 8 limitations, the motion can be granted “only if the assertions of 9 the complaint, read with the required liberality, would not permit Ledesma v. Jack Stewart When a United States District Court For the Northern District of California 10 the plaintiff to prove that the statute was tolled.” Jablon v. 11 Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (citation 12 omitted). 13 When granting a motion to dismiss, the court is generally 14 required to grant the plaintiff leave to amend, even if no request 15 to amend the pleading was made, unless amendment would be futile. 16 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 17 F.2d 242, 246-47 (9th Cir. 1990). 18 amendment would be futile, the court examines whether the 19 complaint could be amended to cure the defect requiring dismissal 20 “without contradicting any of the allegations of [the] original 21 complaint.” 22 Cir. 1990). 23 In determining whether Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Although the court is generally confined to consideration of 24 the allegations in the pleadings, when the complaint is 25 accompanied by attached documents, such documents are deemed part 26 of the complaint and may be considered in evaluating the merits of 27 a Rule 12(b)(6) motion. 28 1265, 1267 (9th Cir. 1987). Durning v. First Boston Corp., 815 F.2d 6 DISCUSSION 1 Federal Defendants move to dismiss Plaintiff’s FCRA and 2 3 declaratory relief claims on several bases. First, they contend 4 that FCRA does not waive sovereign immunity for damages claims 5 against the government. 6 non-justiciable and that judicial review of a security clearance 7 determination is not available. 8 Plaintiff has not stated a claim for relief under the FCRA. 9 Further, they argue that the FCRA claims are barred by the statute Second, they argue that the claims are Third, they maintain that United States District Court For the Northern District of California 10 of limitations. 11 identified any tenable basis for his declaratory relief claim. 12 I. 13 Finally, they contend that Plaintiff has not Sovereign Immunity “It is axiomatic that the United States may not be sued 14 without its consent and that the existence of consent is a 15 prerequisite for jurisdiction.” 16 U.S. 206, 212 (1983). 17 to federal agencies and to federal employees acting within their 18 official capacities.” 19 Cir. 1997) (quoting South Delta Water Agency v. Dep’t of Interior, 20 767 F.2d 531, 536 (9th Cir. 1985)). 21 Government’s sovereign immunity must be unequivocally expressed in 22 statutory text . . . and will not be implied . . .” 23 518 U.S. 187, 192 (1996) (citations omitted). 24 the statutory language are to be construed in favor of immunity, 25 . . . so that the Government’s consent to be sued is never 26 enlarged beyond what a fair reading of the text requires, . . .” 27 Fed. Aviation Agency v. Cooper, 132 S. Ct. 1441, 1448 (2012) 28 (internal citations omitted). United States v. Mitchell, 463 “The doctrine of sovereign immunity applies Hodge v. Dalton, 107 F.3d 705, 707 (9th “A waiver of the Federal Lane v. Pena, “Any ambiguities in “Ambiguity exists if there is a 7 1 plausible interpretation of the statute that would not authorize 2 money damages against the Government.” 3 Id. Plaintiff contends that the FCRA contains an express waiver 4 of sovereign immunity. He points out that the FCRA defines 5 “person” to mean “any individual, partnership, corporation, trust, 6 estate, cooperative, association, government or governmental 7 subdivision or agency, or other entity,” 15 U.S.C. § 1681a 8 (emphasis added), and that it states, “Any person who willfully 9 fails to comply with any requirement imposed under this title with United States District Court For the Northern District of California 10 respect to any consumer is liable to that consumer . . .” 15 11 U.S.C. § 1681n (emphasis added). 12 (similar provision imposing liability on “any person” who 13 negligently fails to comply with the FCRA’s requirements). 14 Plaintiff does not maintain that any statute other than the FCRA 15 is the source of a waiver of sovereign immunity for the damages 16 claims that he has asserted here. See also 15 U.S.C. § 1681o 17 Although neither the Ninth Circuit nor the Supreme Court has 18 addressed the issue, most courts that have done so have held that 19 the FCRA does not contain an unequivocal waiver of sovereign 20 immunity in its text. 21 1843286, at *5 (D. Ariz.) (holding that the plaintiff had not 22 shown an unequivocal waiver of sovereign immunity under the FCRA); 23 Gillert v. United States Dep’t of Educ., 2010 WL 3582945, at *3-4 24 (W.D. Ark.) (same); Ralph v. U.S. Air Force MGIB, 2007 WL 3232593, 25 at *3 (D. Colo.) (same); Kenney v. Barnhart, 2006 WL 2092607, at 26 *9 (C.D. Cal.) (same); but see Talley v. U.S. Dep’t of Agric., 27 2007 WL 2028537, at *2 (N.D. Ill.) (finding waiver of sovereign 28 immunity in the FCRA), aff’d on other grounds, 595 F.3d 754 (7th See Taylor v. United States, 2011 WL 8 1 Cir. 2010) (finding waiver of sovereign immunity in the Tucker 2 Act), vacated, 2010 U.S. App. LEXIS 12927, judgment affirmed by 3 equally divided court on reh’g en banc, 2010 WL 5887796 (7th Cir. 4 2010). 5 Although he has quoted the statutory text, Plaintiff has not 6 shown that these provisions contain an unequivocal waiver of 7 sovereign immunity. 8 decisions in which other courts have held that they do not. 9 Further, the Court notes that most other federal statutes that He has also failed to address the numerous United States District Court For the Northern District of California 10 have unequivocally waived sovereign immunity have done so in much 11 clearer terms than the statutory provisions at issue here. 12 example, the Federal Tort Claims Act authorizes “claims against 13 the United States, for money damages . . . for injury or loss of 14 property or personal injury or death caused by the negligent or 15 wrongful act or omission of any employee of the Government while 16 acting within the scope of his office or employment . . .” 17 U.S.C. § 1346(b)(1); see also 42 U.S.C. § 2000e-5(k) (“In any 18 action or proceeding under this subchapter . . . the United States 19 shall be liable for costs the same as a private person.”); 26 20 U.S.C. § 7433(a) (“If, in connection with any collection of 21 Federal tax with respect to a taxpayer, any officer or employee of 22 the Internal Revenue Service . . . disregards any provision of 23 this title . . . such taxpayer may bring a civil action for 24 damages against the United States.”). 25 provision of the FCRA itself contains an express waiver of 26 sovereign immunity for certain violations that is stated in 27 unequivocal terms. 28 department of the United States obtaining or disclosing any For In fact, a separate See 15 U.S.C. § 1681u(i) (“Any agency or 9 28 1 consumer reports, records, or information contained therein in 2 violation of this section is liable to the consumer . . .”). Like the plaintiff in Al-Malik v. United States Department of 3 4 Education, 2011 U.S. Dist. LEXIS 96753 (N.D. Cal.), Plaintiff has 5 not shown that sovereign immunity has been waived and thus that 6 this Court has subject-matter jurisdiction over his FCRA claims 7 against Federal Defendants. 8 Accordingly, the Court GRANTS Federal Defendants’ motion to 9 dismiss the FCRA claims for lack of subject matter jurisdiction. United States District Court For the Northern District of California 10 II. Failure to State a Claim for Relief under the FCRA Even if sovereign immunity were waived for Plaintiff’s FCRA 11 12 claims against Federal Defendants, he has failed to state a claim 13 for relief against them under that statute. 14 second causes of action, Plaintiff alleges simply that Federal 15 Defendants willfully and negligently “failed to comply with the 16 requirements of the Fair Credit Reporting Act, 15 U.S.C. 1681 et 17 seq.” 18 that the FCRA creates liability for “consumer reporting agencies” 19 and “users of information” and that he has alleged that Federal 20 Defendants are “users of information” under FCRA and that they 21 “did not follow procedures to ensure maximum possible accuracy in 22 the background report 15 U.S.C. § 1681i, did not properly handle 23 his dispute 15 U.S.C. § 1681c and e, nor maintain strict 1AC ¶¶ 23, 25. In his first and In his opposition brief, Plaintiff contends 24 25 26 27 28 10 1 procedures to ensure the information was complete and up to date 2 15 U.S.C. § 1681k.” 3 Opp. at 10 (all errors in original).2 However, these code sections impose obligations on “consumer 4 reporting agencies” and not on “users of information.” See 15 5 U.S.C. § 1681k(a) (“A consumer reporting agency which furnishes a 6 consumer report for employment purposes . . . shall . . . maintain 7 strict procedures designed to insure that whenever public record 8 information which is likely to have an adverse effect on a 9 consumer’s ability to obtain employment is reported it is complete United States District Court For the Northern District of California 10 and up to date.”) (emphasis added); 15 U.S.C. § 1681e (b) 11 (“Whenever a consumer reporting agency prepares a consumer report 12 it shall follow reasonable procedures to assure maximum possible 13 accuracy of the information concerning the individual about whom 14 the report relates.”) (emphasis added); 15 U.S.C. § 1681i(a)(1)(A) 15 (“if the completeness or accuracy of any item of information 16 contained in a consumer’s file at a consumer reporting agency is 17 disputed by the consumer and the consumer notifies the agency 18 directly, or indirectly through a reseller, of such dispute, the 19 agency shall, free of charge, conduct a reasonable reinvestigation 20 to determine whether the disputed information is 21 inaccurate . . .”) (emphasis added); 15 U.S.C. § 1681c(f) (“If a 22 consumer reporting agency is notified pursuant to section 23 623(a)(3) that information regarding a consumer who was furnished 24 25 26 27 28 Plaintiff appears to have confused some of these citations. For example, the code provision that requires “reasonable procedures to assure maximum possible accuracy of the information” in consumer reports is contained in 15 U.S.C. § 1681e(b), not 15 U.S.C. § 1681i, which instead addresses procedures in cases of disputed accuracy. The Court addresses each provision that Plaintiff has cited and that it appears that he intended to cite. 2 11 1 to the agency is disputed by the consumer, the agency shall 2 indicate that fact in each consumer report that includes the 3 disputed information.”) (emphasis added); 15 U.S.C. § 1681c-2(a) 4 (“a consumer reporting agency shall block the reporting of any 5 information in the file of a consumer that the consumer identifies 6 as information that resulted from an alleged identity theft”). 7 Plaintiff has not alleged or argued that any Federal 8 Defendant is a consumer reporting agency as defined in the FCRA. 9 Nor could he. See Ollestad v. Kelley, 573 F.2d 1109, 1111 (9th United States District Court For the Northern District of California 10 Cir. 1978) (stating that “the Federal Trade Commission, the agency 11 charged with administering the FCRA, has concluded that federal 12 agencies are not consumer reporting agencies within the meaning of 13 the act” and that this “reasoned conclusion is entitled to our 14 deference”). 15 Accordingly, the Court GRANTS Federal Defendants’ motion to 16 dismiss the FCRA claims for failure to state a claim. Even if 17 Plaintiff had shown that subject matter jurisdiction existed over 18 these claims, dismissal under Rule 12(b)(6) would be with 19 prejudice because Plaintiff could not remedy through amendment 20 this deficiency so as to state a claim under any section of the 21 FCRA that he has identified. 22 to dismiss for lack of subject matter jurisdiction and failure to 23 state a claim, the Court does not reach Federal Defendants’ 24 alternative argument, that the FCRA claims are barred because the 25 two year statute of limitations had run before Plaintiff filed his 26 complaint. Because the Court grants the motion 27 28 12 1 2 III. Justiciability Federal Defendants also argue that Plaintiff’s claims are 3 non-justiciable because judicial review of a security clearance 4 determination is not available and here Plaintiff seeks a finding 5 that his security clearance was improperly denied. 6 In response, Plaintiff argues that he is bringing claims that 7 he was denied the right to earn a living in his chosen profession 8 without notice or hearing, apparently suggesting he is asserting a 9 procedural challenge, not a substantive challenge, to the United States District Court For the Northern District of California 10 decision. 11 the 1AC what conduct he is alleging was a violation of the FCRA. 12 The 1AC appears to present both procedural and substantive 13 challenges to Federal Defendants’ denial of his background 14 clearance. 15 finding him eligible to be employed by the Federal government or 16 organizations that require passage of the security clearance known 17 as an eQuip background check”); 1AC ¶ 20 (alleging that Federal 18 Defendants “failed and refused to reinvestigate to confirm or 19 disclaim the accuracy of the information” in the background 20 investigation in violation of the law). 21 opposition, rather than basing his arguments on a violation of the 22 procedures set forth in FCRA, Plaintiff appears to be arguing that 23 his constitutional due process rights have been violated. 24 4 (citing FCRA and addressing revocation of the security clearance 25 without notice or hearing and depriving him of a constitutionally- 26 protected liberty interest). 27 28 However, as discussed above, Plaintiff did not state in See 1AC, 8 (requesting a “judicial determination In addition, in his To the extent that Plaintiff seeks a judicial Opp. at determination that he should be granted a security clearance and deemed eligible 13 1 for employment in positions requiring such a clearance, those 2 claims are non-justiciable under the principles set forth in a 3 line of Supreme Court and Ninth Circuit cases. 4 sole basis for his declaratory relief claim that is apparent in 5 his 1AC. This includes the In Department of Navy v. Egan, 484 U.S. 518 (1988), the 6 7 Supreme Court held that employment decisions based on the 8 executive branch’s security clearance decisions are not reviewable 9 by the Merit Systems Protection Board (MPSB). In that decision, United States District Court For the Northern District of California 10 the Court held that “the grant of security clearance to a 11 particular employee, a sensitive and inherently discretionary 12 judgment call, is committed by law to the appropriate agency of 13 the Executive Branch.” 14 of the Executive Branch and as Commander in Chief,” has “authority 15 to classify and control access to information bearing on national 16 security and to determine whether an individual is sufficiently 17 trustworthy to occupy a position in the Executive Branch that will 18 give that person access to such information . . .” 19 decision to grant or deny a security clearance requires the type 20 of “[p]redictive judgment” that “must be made by those with the 21 necessary expertise in protecting classified information.” 22 529. 23 discussion, the protection of classified information must be 24 committed to the broad discretion of the agency responsible, and 25 this must include broad discretion to determine who may have 26 access to it.” 27 citations omitted). Id. at 527. “[T]he President[,] as head Id. The Id. at Thus, “[f]or reasons too obvious to call for enlarged Id. (internal formatting, quotation marks and Accordingly, the Court concluded that the 28 14 1 MPSB, as an “outside nonexpert body,” could not “review the 2 substance of such a judgment . . .” 3 Id. Then, in Webster v. Doe, 486 U.S. 592 (1988), the Supreme 4 Court confirmed that federal courts do not have jurisdiction to 5 review the merits of decisions regarding security clearances. 6 held that the CIA director’s decision to terminate a CIA employee 7 for a security reason was committed to the discretion of the 8 director by law, thereby precluding judicial review under the 9 Administrative Procedures Act (APA). Id. at 601. It It found, United States District Court For the Northern District of California 10 however, that the same considerations did not deprive the courts 11 of jurisdiction to review constitutional claims and remanded for 12 further proceedings. 13 whether the plaintiff had in fact presented colorable 14 constitutional claims. 15 alleged that the CIA unconstitutionally discriminated against 16 homosexuals in making security clearance determinations. 17 601-02. 18 Id. at 603-04. The Court did not decide Id. at 604 n.8. There, the plaintiff Id. at Later, in Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990), 19 the Ninth Circuit extended Egan to bar judicial review of the 20 merits of a decision regarding a security clearance. 21 case, the plaintiff sued the Department of Defense “seeking an 22 injunction against the revocation of her security clearance,” 23 arguing that the decision violated her constitutional “rights to 24 procedural and substantive due process.” 25 stated that, although Egan’s holding was limited to the MPSB, 26 “[t]he logic of that decision precludes judicial review as well.” 27 Id. at 1401. 28 is ‘an outside nonexpert body.’ In that Id. at 1400. The court “When it comes to security matters, a federal court We have no more business 15 1 reviewing the merits of a decision to grant or revoke a security 2 clearance than does the MPSB.” 3 529). 4 due process challenges,” her arguments--save two--were in fact 5 “attacks on the merits of the decision to lift her security 6 clearance.” 7 authority to review” those challenges to the merits of the 8 security clearance decision. 9 process challenges, the Dorfmount court held that, although they Id. (quoting Egan, 484 U.S. at The court stated, “Although Dorfmont fashions her claims as Id. The court held that “the district court has no Id. at 1402. As to the two due United States District Court For the Northern District of California 10 were justiciable, “a claim for denial of due process stemming from 11 revocation of a security clearance is not a colorable 12 constitutional claim.” 13 Id. at 1404. Under these cases, to the extent that Plaintiff seeks a 14 determination that he should be deemed to have passed the 15 background clearance, his FCRA and declaratory relief claims are 16 barred. 17 merits of Federal Defendants’ decision regarding Plaintiff’s 18 background investigation. This Court does not have the jurisdiction to review the 19 Instead of defending his claims that challenge the outcome of 20 the background investigation, Plaintiff argues instead that he has 21 asserted justiciable claims that challenge the procedures accorded 22 to him. 23 violation of the due process clause in the context of background 24 investigations and security clearances. 25 360 U.S. 474 (1959); Kartseva v. Dep’t of State, 37 F.3d 1524 26 (D.C. Cir. 1994); Baillargeon v. Drug Enforcement Adm., 638 F. 27 Supp. 2d 235 (D. R.I. 2009). 28 any such constitutional claims in his 1AC. In support, Plaintiff cites cases that address claims for See Greene v. McElroy, Plaintiff, however, has not asserted 16 Accordingly, because Plaintiff’s declaratory relief and FCRA 1 2 claims seek a determination that he should be granted the security 3 clearance, the Court finds that they are not justiciable and 4 dismisses them without leave to amend. 5 plead a claim for violation of his procedural due process rights 6 in the background investigation, the Court declines to address 7 whether any such hypothetical claims would be justiciable. 8 IV. Because Plaintiff has not Declaratory Relief Claim Federal Defendants contend that Plaintiff has not identified 10 United States District Court For the Northern District of California 9 any proper jurisdictional basis for his declaratory relief claim. 11 The Declaratory Judgment Act (DJA) provides that “any court 12 of the United States, upon the filing of an appropriate pleading, 13 may declare the rights and other legal relations of any interested 14 party seeking such declaration, whether or not further relief is 15 or could be sought.” 16 scope of the federal courts’ remedial powers” but it did not 17 create or modify the courts’ jurisdiction, “which must properly 18 exist independent of the DJA.” 19 Mortg. Guar. Ins. Corp., 642 F.3d 849, 853 (9th Cir. 2011). 20 other words, federal courts have discretion under the DJA only as 21 to whether to award declaratory relief pursuant to the 22 jurisdiction that they must properly derive from the underlying 23 controversy between the litigants.” 24 28 U.S.C. § 2201(a). The “DJA expanded the Countrywide Home Loans, Inc. v. “In Id. In his response, Plaintiff asserts that the APA provides a 25 valid basis for declaratory relief. Plaintiff, however, has not 26 cited the APA in his 1AC or asserted any claim for relief under 27 the APA in his current pleading. 28 brief, Plaintiff seeks leave to amend to add an APA claim and a Instead, in his opposition 17 1 constitutional claim. 2 dispute that he has provided no proper jurisdictional basis for 3 his declaratory relief claim as plead in his 1AC, the Court grants 4 Federal Defendants’ motion to dismiss this claim. 5 V. 6 Because Plaintiff does not appear to Plaintiff’s Request for Leave to Amend to Assert New Claims In his opposition, Plaintiff requests leave to amend to 7 assert new claims under the APA, the due process clause of the 8 Fifth Amendment or both, which are not plead in his 1AC. 9 Plaintiff has improperly presented this request in an United States District Court For the Northern District of California 10 opposition brief and has not moved for permission to add new 11 claims, as required by the Federal Rules of Civil Procedure and 12 the Civil Local Rules of this Court. 13 Procedure 7(b)(1) (“A request for a court order must be made by 14 motion.”); Civil Local Rules 7-1 and 7-2. 15 address whether leave to amend should be granted pursuant to 16 Federal Rule of Civil Procedure 15(a) or the five factors that 17 courts consider when assessing the propriety of a motion for leave 18 to amend: undue delay, bad faith, futility of amendment, prejudice 19 to the opposing party and whether the plaintiff has previously 20 amended the complaint. 21 F.3d 1051, 1055 n.3 (9th Cir. 2009). 22 provide his proposed pleading as required by Civil Local Rule 10-1 23 and it is not clear what his proposed claims would be. 24 See Federal Rule of Civil Plaintiff also does not Ahlmeyer v. Nev. Sys. of Higher Educ., 555 Finally, Plaintiff does not Accordingly, the Court denies Plaintiff’s improper request 25 for leave to assert new claims, without prejudice to Plaintiff 26 renewing his request in a properly filed motion within two weeks 27 of the date of this Order, as set forth below. 28 18 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS Federal 3 Defendants’ motion to dismiss (Docket No. 36). Plaintiff’s claims 4 for violation of the FCRA against Federal Defendants and his 5 declaratory relief claim are DISMISSED without leave to amend. 6 Within two weeks of the date of this Order, Plaintiff may 7 file a motion for leave to amend his complaint to add new claims 8 against Federal Defendants under the APA or the due process 9 clause, including a declaratory relief claim based on these United States District Court For the Northern District of California 10 provisions. 11 proposed amended complaint and shall address why leave to amend 12 should be granted. 13 amend, Federal Defendants shall file a response within two weeks 14 thereafter, Plaintiff shall file a reply within one week 15 thereafter and the Court will resolve the motion for leave to 16 amend on the papers. 17 With any such motion, Plaintiff shall attach his If Plaintiff files a motion for leave to The case management conference currently set for Thursday, 18 March 7, 2013, at 2:00 p.m. is CONTINUED to Wednesday, April 24, 19 2013, at 2:00 p.m. 20 IT IS SO ORDERED. 21 22 23 Dated: February 27, 2013 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 19

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