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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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STEPHEN ECHOLS,
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United States District Court
For the Northern District of California
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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.
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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.
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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.
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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
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• GRAND THEFT, $/LABOR/PROP $400+, 1/1/2007, Gardena
Police Department, CA.
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• 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.
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• 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
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25
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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.
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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.”
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item under “Criminal Conduct” was “inaccurate in that the
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plaintiff recalls the case was dismissed.”
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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
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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.
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After he received the letter from the TSA, Plaintiff
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communicated “with TSA and Morpho explaining the identity theft
13
issue and the alleged conviction in 1990.”
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his repeated requests, TSA failed to provide Plaintiff with a copy
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of his background report.
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Id. at ¶ 15.
Despite
Id.
Plaintiff filed this case on March 29, 2012, originally
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asserting claims against Morpho Detection only.
Docket No. 1.
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October 12, 2012, the Court granted the parties’ stipulation to
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allow Plaintiff to file his 1AC.
On
Docket Nos. 23, 25.
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In his 1AC, Plaintiff asserts four claims against Federal
21
Defendants: (1) willful violation of the Fair Credit Reporting Act
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(FCRA), 15 U.S.C. §§ 1681-1681x; (2) negligent violation of the
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FRCA; (3) violation of the Freedom of Information Act (FOIA), 5
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U.S.C. § 552; and (4) declaratory relief that Plaintiff is
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eligible to be employed by the federal government or organizations
26
that require passage of the eQuip background check.
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his FCRA claims, among other things, Plaintiff seeks “damages
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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
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declaratory relief claim.
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to dismiss the FOIA claim.
LEGAL STANDARDS
6
7
8
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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.
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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
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“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.
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1265, 1267 (9th Cir. 1987).
Durning v. First Boston Corp., 815 F.2d
6
DISCUSSION
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Federal Defendants move to dismiss Plaintiff’s FCRA and
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declaratory relief claims on several bases.
First, they contend
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that FCRA does not waive sovereign immunity for damages claims
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against the government.
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non-justiciable and that judicial review of a security clearance
7
determination is not available.
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Plaintiff has not stated a claim for relief under the FCRA.
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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.
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identified any tenable basis for his declaratory relief claim.
12
I.
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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,
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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,
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at *3 (D. Colo.) (same); Kenney v. Barnhart, 2006 WL 2092607, at
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*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
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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.”
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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
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“did not follow procedures to ensure maximum possible accuracy in
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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
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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
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26
27
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