Press v. United States of America et al
MEMORANDUM. Signed by Chief Judge James K. Bredar on 3/7/2018. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA, et al.,
CIVIL NO. JKB-17-1667
Plaintiff Roderick Press brought this action against the United States of America (the
“United States”), Knight Sky LLC (“Knight Sky”), and George Knizewski on June 19, 2017.
(See Compl., ECF No. 1.) In his complaint, Plaintiff raised a claim of negligence against the
United States, and a claim of tortious interference with prospective economic and business
relations against Knight Sky and Mr. Knizewski (collectively, “the Knight Sky Defendants”).
(Id. ¶¶ 44-66.) Both the United States and the Knight Sky Defendants brought motions to
dismiss, Plaintiff has responded to both motions and Defendants have replied. Therefore, both
motions are ripe for review. No hearing is necessary to resolve the matter. See Local Rule 105.6
(D. Md. 2016). Plaintiff’s claim against the United States is partially barred by sovereign
immunity, and he has failed to state a claim against the Knight Sky Defendants. Accordingly,
his complaint will be dismissed in part by accompanying order.
Plaintiff worked in information technology and security, and in 2006 he joined Knight
Sky as a network engineer. (Compl. ¶¶ 10, 14.) Knight Sky is a Maryland company that
contracted with the Federal Government. (Id. ¶ 14.) Knight Sky’s employees had security
clearances, and it would use the Joint Personnel Adjudication Verification System (“JPAS”) to
process security-related information. (See id. ¶ 16; id. p. 1 (defining “JPAS”).) JPAS is an
“electronic personnel database maintained by the Department of Defense [(“DoD”)] for the
purpose of collecting reports touching on a person’s ability to use and to handle classified
information.” (Id. ¶ 16.) When Plaintiff worked for Knight Sky, his security clearance was
“tagged on JPAS for Knight Sky and Knight Sky served as a servicing entity for Plaintiff’s
security clearance on JPAS.” (Id. ¶ 17.) The exact nature of this relationship is not entirely
clear, but what matters is this: Knight Sky was allowed to “update Plaintiff’s record during the
service relationship.” (Id.) That means that Knight Sky was able to post reports to JPAS that
would affect Plaintiff’s ability to handle classified information. In 2008 Plaintiff “terminated his
business relationship” with Knight Sky. (Id. ¶ 18.) Plaintiff had helped manage Knight Sky’s
JPAS access, and before leaving in 2008 he “separated himself . . . from the JPAS system,” such
that “Knight Sky was no longer a servicing entity to Plaintiff’s security clearance” and could not
continue to update his record. (Id. ¶ 19.)
After leaving Knight Sky, Plaintiff “activated” Astraeos Technologies, Inc. (“Astraeos”),
a corporation he had formed a decade earlier, and began bidding on government contracts and
competing with Knight Sky. (Id. ¶ 20, 22.) He also took a new job at Northrop Grumman. (Id.
¶ 21.) In March 2009, Knight Sky’s CEO, George Knizewski, attended a trade show and told
The facts are recited here as alleged by Plaintiff, as this memorandum is evaluating a motion to dismiss. See Ibarra
v. United States, 120 F.3d 472, 474 (4th Cir. 1997).
attendees that they should not do business with Astraeos. (Id. ¶ 23.) In April 2009, Astraeos
filed suit against the Knight Sky Defendants in Maryland state court, for defamation, tortious
interference, and unfair competition. (Id. ¶ 24.) Knight Sky brought several counterclaims, and
ultimately a judge granted both parties a directed verdict, finding that Astraeos’ claims failed for
lack of damages, and Knight Sky’s for failure to “present sufficient evidence as to liability and
damages.” (Id. ¶ 25.) The verdict was upheld by the Maryland Court of Special Appeals in
September 2010. (Id.)
On October 2010, one month after the Court of Special Appeals’ decision and two years
after Plaintiff had left Knight Sky, Knight Sky published a security incident report (the “Incident
Report”) on Plaintiff’s JPAS account.
(Id. ¶ 26.)
This Incident Report contained nine
accusations against Plaintiff, mostly regarding mishandling various sensitive data or
inappropriately using various systems, all with the intent to harm Knight Sky financially. (Id.)
Plaintiff maintains that the Incident Report “contained falsehoods” and that Knight Sky “did not
have a valid [DoD] sponsored account to access JPAS [and] did not have ownership, managing,
or service rights to initiate investigations on Plaintiff’ [sic] security clearance.” (Id. ¶ 27-28.)
As a result of Knight Sky’s actions “a red flag was placed on Plaintiff’s JPAS account.”
(Compl. ¶ 28.) The Plaintiff’s use of passive voice in this particular allegation is troublesome,
given the importance of this event to Plaintiff’s claims against the United States, but when read
in context, the allegation seems to be this: the substance of the Incident Report “flagged
[Plaintiff’s] top-secret security clearance” which resulted in a red flag appearing on his JPAS
account. (Id.) In other words, it was Knight Sky’s actions that resulted in a red flag appearing
on Plaintiff’s JPAS account.
Plaintiff discovered the Report in December 2010. (Id. ¶ 30.) The DoD2 then “reassured
Plaintiff that the Incident Report would be favorably adjudicated and removed from his JPAS
account.” (Id.) The Incident Report, however, was not removed from Plaintiff’s JPAS account,
and as a result Plaintiff lost a five year contract and his job at Northrop Grumman in 2011. (Id.
¶¶ 31-32.) For the next several years the DoD continued to make representations to Plaintiff in
regards to the adjudication of the Incident Report and the removal of the red flag, but, even
though the DoD “resolved the Incident Report . . . in [Plaintiff’s] favor” it remained on his JPAS
account as of the commencement of this action in 2017. (Id. ¶ 42; see id. ¶¶ 35, 41-43.)
On June 19, 2014, the Knight Sky Defendants posted an addendum (“the Addendum”) to
Plaintiff’s JPAS account. (Id. ¶ 36.) The Addendum discusses the legal action Plaintiff brought
against Knight Sky, its resolution, and that, as a result, Knight Sky lost out on a contract and has
been forced “into near bankruptcy.” (Id.) Nothing in the addendum seemed to implicate
Plaintiff’s ability to use or handle sensitive information. Again, Knight Sky did not have valid
DoD access to Plaintiff’s JPAS account when it posted this information. (Id. ¶ 38.) Again, the
DoD made representations to Plaintiff that it would resolve this issue, and it did not do so. (See
id. ¶ 41.) “As a result of Knight Sky’s Incident Report and Addendum, Plaintiff has lost contract
and employment opportunities” and suffered other harm. (Id. ¶ 43.)
On June 19, 2017, three years to the day after the Knight Sky Defendants posted the
Addendum, Plaintiff brought this action against the Knight Sky Defendants and the United
States. Plaintiff brought a claim of tortious interference with prospective economic and business
relations against the Knight Sky Defendants, and a claim of negligence against the United States.
Plaintiff seems to refer to the Department of Defense and “the Army” interchangeably. Where Plaintiff alleges that
an action was performed by “the Army” the Court will refer to the actor as the “Department of Defense” for the sake
(See Compl. ¶¶ 44-62.) The Knight Sky Defendants brought a motion to dismiss (ECF No. 12)
and the United States did as well (ECF No. 14), and both motions are ripe for review.
Standard for Motions to Dismiss under Rules 12(b)(1) and 12(b)(6)
The United States’ motion to dismiss presents, in part, a facial challenge to subject-matter
jurisdiction, asserting that the complaint fails to allege facts upon which subject-matter
jurisdiction can be based. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (discussing
the difference between facial and factual challenges to subject-matter jurisdiction). The burden
of proving subject-matter jurisdiction is on the plaintiff. Id.
Both the United States and the Knight Sky Defendants have moved to dismiss under Rule
12(b)(6), asserting that Plaintiff’s complaint does not “state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility exists
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of
a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations in the complaint, this principle does not
apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
The Court will first consider the United States’ motion to dismiss, and then turn to the
Knight Sky Defendants’ motion.
a. United States’ Motion to Dismiss
“Absent a statutory waiver, the United States is shielded from suit for a civil tort by
sovereign immunity.” Doe v. U.S. ex rel. U.S. Dep’t of Health and Human Servs., Civ. No.
TDC-14-1441, 2015 WL 1461236, at *4 (D. Md. Mar. 27, 2015) (citing Kearns v. United States,
585 F.3d 187, 193-94 (4th Cir. 2009). The United States has, via the Federal Tort Claims Act
(“FTCA”), statutorily waived sovereign immunity for certain claims under certain conditions.
See Talbert v. U.S., 932 F.2d 1064, 1065-66 (4th Cir. 1991); Fleming v. United States, 200 F.
Supp. 3d 603, 608 (D. Md. 2016). Plaintiff’s claim, the United States contends, is neither one of
those certain claims nor was it brought under those certain conditions. The first question –
whether Plaintiff’s claim is of a type covered by the FTCA – is jurisdictional in nature, and thus
will be discussed first. See Summers v. U.S., 480 F. Supp. 347, 349 (D. Md. 1979).
“Certain categories of torts are excluded from [FTCA] coverage by 28 U.S.C. § 2680,”
Summers, 480 F. Supp. at 349, including claims “arising out of . . . . libel, slander,
misrepresentation, [and] deceit,” 28 U.S.C. § 2680(h). In determining whether a plaintiff’s
claim “aris[es] out of” misrepresentation, courts look beyond the labels affixed to a plaintiff’s
complaint, “and instead look to the substance of the claim, the conduct on which such claim is
based, and the gravamen of the complaint.” Sheppard v. U.S., 537 F. Supp. 2d 785, 789 (D. Md.
2008). “Because waivers of sovereign immunity must be strictly construed, the plaintiff bears
the burden of demonstrating jurisdiction and showing that none of the FTCA’s exceptions
apply.” Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017). Here, construing the
misrepresentation exception broadly, in order to construe the waiver narrowly, and mindful of
Plaintiff’s burden, the Court nevertheless finds that the gravamen of Plaintiff’s claim against the
United States is negligence, not misrepresentation, and, accordingly, the Court has subject-matter
jurisdiction over it.
At bottom, Plaintiff’s claim against the United States is that it had a duty to exercise
reasonable care in the maintenance of the JPAS system, and that, by allowing the Knight Sky
Defendants to upload reports without authorization, and by failing to remove the reports, it
breached that duty and caused Plaintiff harm. (See, e.g., Compl. ¶ 56.) To be sure, Plaintiff’s
claim against the United States involves misrepresentation; he alleges that the United States
failed to prevent “the [JPAS] system from being used as a platform to enter false information,”
and that it “allow[ed] Knight Sky to enter a false Incident Report and Addendum on Plaintiff’s
JPAS account.” (Id. ¶¶ 56, 57 (emphasis added).) But even if the United States’ negligence
resulted in Plaintiff also being harmed by a misrepresentation, that would not mean that a claim
against the United States’ is barred by the FTCA. Cf. Sheridan v. U.S., 487 U.S. 392, 398-99
(1988) (“[I]t is both settled and undisputed that in at least some situations the fact that an injury
was directly caused by an assault or battery will not preclude liability against the Government for
negligently allowing the assault to occur.”).3 The Knight Sky Defendants may have, in effect,
The misrepresentations by the United States here are akin to those made by the United States in Block v. Neal, 460
U.S. 289 (1983). In that case, United States agents promised to supervise the construction of a home for which they
had provided the loan. 460 U.S. at 291-92. Those agents represented to the owner that the construction was sound,
when in fact the house had several serious defects. Id. at 292. After the homeowner brought a negligence claim
against the United States, the Supreme Court ultimately ruled that, although the agents had surely made a
misrepresentation to the homeowner, that was, if anything, the basis for a separate claim against the United States
(and one that would be barred by the FTCA). See id. at 296-99. The claim that the homeowner brought was for
negligence in the supervision of the construction process, which would have harmed the homeowner regardless of
whether the agents had misrepresented the quality of that construction or not. Here, the United States did allegedly
misrepresent to Plaintiff that it was taking care of the Incident Report and Addendum when it in fact was not doing
so. And, absent the FTCA’s misrepresentation exception Plaintiff “could also have brought a claim for negligent
misrepresentation to recover for any injury caused by [his] misplaced reliance on advice provided by [the United
States] officials . . . . But the partial overlap between these two tort actions does not support the conclusion that if
one is excepted under the Tort Claims Act, the other must be as well.” Id. at 298.
placed a red flag on Plaintiff’s account; the United States let them do it. The dispositive fact is
that Plaintiff’s claim does not rely on any misrepresentation made by the United States.4 The
veracity (or lack thereof) of the Incident Report and Addendum is not central to Plaintiff’s claim
against the United States. Even if they were completely true, the United States would still have
(according to Plaintiff) negligently allowed the Knight Sky Defendants to post reports on
Plaintiff’s JPAS account without authorization.
The United States’ argues, relying strongly on Talbert v. United States, 932 F.2d 1064
(4th Cir. 1991), that one cannot bring a “negligent maintenance of records” claim in the Fourth
Circuit. See 932 F.2d at 1067. But the United States reads Talbert too narrowly. In that case the
“negligent maintenance of records” claim was really a misrepresentation (or defamation) claim,
dressed up as something else – the plaintiff’s injury stemmed from his former Federal
Government employer making misrepresentations about his absences from work. See id. at
The court did not hold that the United States can never be liable for negligently
maintaining records, or negligently permitting access to a database. Rather, Talbert stands for
the simple proposition that a plaintiff who has been harmed by a misrepresentation made by the
United States cannot circumvent Congressional intent in the FTCA by shoehorning his claim into
one of negligence.
Plaintiff here did not perform such a contortion, and the Court has
jurisdiction over his negligence claim. The Court notes that this holding is in regard to the
Neither party presented the Court with a case in which, as here, an initial misrepresentation was allegedly made by
a non-government actor and a court still found that a negligence claim against the United States was barred by the
misrepresentation exception. There are numerous instances where the initial misrepresentation was made by the
United States, and the claim was barred. See U.S. v. Neustadt, 366 U.S. 696 (1961) (United States’ agent made
alleged misrepresentation, claim excepted); Life Partners Inc. v. U.S., 650 F.3d 1026 (5th Cir. 2011) (same); Hall v.
United States, 274 F.2d 69 (10th Cir. 1959) (same); Johnson v. United States, Civ. No. 3:15-CV-00556-RJC-DSC,
2016 WL 2757609 (W.D.N.C. Mar. 24, 2016) (same); Doe, 2015 WL 1461236 (same); Brockway v. VA Connecticut
Healthcare System, No. 3:10-CV-719(CSH), 2012 WL 2154263 (D. Conn. June 13, 2012) (same); Baker v. U.S.,
943 F. Supp. 270 (W.D.N.Y. 1996) (same); see also Alexander v. U.S., 787 F.2d 1349 (9th Cir. 1986) (Federal
Bureau of Investigation communicated “rap sheet” to future employer that contained records which should have
characterization of Plaintiff’s claim, not its substance. The Court makes no pronouncement
today as to, for instance, whether the United States had a duty to maintain JPAS in a certain way,
or whether it breached that duty. The Court only holds that Plaintiff’s claim is properly
characterized as one of negligence, and not a misrepresentation claim in negligence clothing.
Even though Plaintiff’s claim is of the type permitted under the FTCA, Plaintiff still must
meet certain conditions provided in the FTCA in order for his claim to proceed. See Summers,
480 F. Supp. at 349 (“When sovereign immunity is waived, Congress is permitted to specify the
terms and conditions under which such suits may be brought.”). Before a plaintiff can proceed
with a tort claim against the United States, a plaintiff must present his claim, in writing, to the
appropriate Federal agency within two years of its accrual. 28 U.S.C. § 2401(b). The claim
must then be denied by the agency and Plaintiff must bring his suit within six months of denial.
Id.; see Fleming, 200 F. Supp. at 608. This is non-jurisdictional, and is in the nature of a statute
of limitations defense. See U.S. v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015).
Plaintiff, it seems, presented a claim to the DoD on October 4, 2015. (See Compl. ¶ 9;
SF-95 Form, Decl. of Connie M. McConahy Ex. 1, ECF No. 14-2.)5 This claim was in the form
of an “SF-95,” a standard form for presenting tort claims to a federal agency. See Winston-Bey v.
United States, Civ. No. CCB-15-02020, 2015 WL 8757829, at *2 (D. Md. Dec. 15, 2015)
(discussing the Standard Form 95). It states that the “DATE AND DAY OF ACCIDENT” was
There is some confusion as to when Plaintiff’s claim was “presented” to the DoD, as Plaintiff alleges that he
“filed” it on October 4, 2015, and the United States contends that it was received on March 4, 2016. For purposes of
determining whether Plaintiff complied with the FTCA, the date of presentment is when the form is received, not
when it is mailed. Winston-Bey v. United States, Civ. No. CCB-15-02020, 2015 WL 8757829, at *2 (D. Md. Dec.
15, 2015). However, as the Court reviews this issue under Rule 12(b)(6), it must accept all plausible alleged facts as
true. The Court will therefore assume that the claim was presented on October 4, 2015. This difference is not
consequential. Ultimately, whether the Court finds that the claim was presented on October 4, 2015 or March 4,
2016, its analysis of the claim is unchanged.
“10/28/2010.” (SF-95 Form.)6
For the “BASIS OF CLAIM” section, Plaintiff attached a
document that outlined much of the same allegations he has made before this Court. (Id.)
Importantly, in addition to discussing the 2010 Incident Report, he specifically alleged that
“Knight Sky LLC posted an addendum alleging more falsehoods to the 2010 incident on or about
June 2014.” (Id., Attachment ¶ f.) The DoD denied Plaintiff’s claim on May 9, 2017, and he
filed this suit roughly a month later, on June 19, 2017. (See Compl. ¶ 9.) Therefore, if Plaintiff’s
claim accrued on or after March 4, 2014 (two years before he presented his SF-95 to the DoD),
then Plaintiff complied with the statute of limitations requirements of the FTCA.
Plaintiff’s claim of negligence in regard to the posting of the 2010 Incident Report and
the harm that followed accrued well before March 4, 2014, and therefore is barred by sovereign
immunity. As the court stated in Fleming:
A claim accrues within the meaning of § 2401(b) when the plaintiff knows or, in
the exercise of due diligence, should have known both the existence and the cause
of his injury. The critical facts are that he has been hurt and who has inflicted the
injury. This is all that the plaintiff must know . . . .
200 F. Supp. 3d at 608 (alterations, quotation marks, and citations omitted). Plaintiff knew that
Knight Sky had, without authorization, uploaded an Incident Report to his JPAS account in
December 2010. He lost a contract, and his job, as a result in 2011. Therefore, at the absolute
latest Plaintiff knew the existence and cause of his injury in 2011. Insofar as his negligence
claim seeks redress for the harm he suffered as a result of the 2010 Incident Report, it is barred
by limitations and, accordingly in this circumstance, by sovereign immunity.
The Court may consider documents attached to the motion to dismiss that are “‘integral to and explicitly relied on
in the complaint . . . [if] the plaintiffs do not challenge [their] authenticity.’” Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (first alteration in the original) (quoting
Am. Chiropractic Ass’n, Inc. v. Trigon Healthcare Inc., 367 F.3d 212, 234 (4th Cir. 2004)). Here, Plaintiff himself
has cited to the Forms attached to the United States’ motion to dismiss. (See Opp’n to United States Mot. Dismiss 9,
ECF No. 22.)
Plaintiff’s claim of negligence in regard to the posting of the 2014 Addendum, however,
accrued, at the absolute earliest, on June 19, 2014, the day that the Addendum was posted. This
claim was properly presented to the appropriate agency within two years of accrual and was
subsequently denied. Therefore, Plaintiff has complied with the statute of limitations provision
of the FTCA with regard to his negligence claim against the United States arising out of the 2014
Going forward, if Plaintiff’s negligence claim proves successful, he can only
recover for harm that resulted exclusively from the 2014 Addendum, and did not result at all
from the 2010 Incident Report.7
Ultimately, the Court finds that Plaintiff’s claim, as stated, is not fundamentally a
misrepresentation claim, and therefore the Court has jurisdiction. Furthermore, the Court finds
that Plaintiff complied with the FTCA statute of limitations provisions with regard to his claim
arising out of the 2014 Addendum. Therefore, the Court will deny in part the United States’
motion to dismiss.
b. Knight Sky Defendants’ Motion to Dismiss
The Knight Sky Defendants ask that the Court dismiss Plaintiff’s claim against them on
three grounds: first, that their conduct was privileged; second, that Plaintiff has not stated a
claim for tortious interference with business relations; and third, that Plaintiff did not bring his
claim within the applicable statute of limitations. The Court will first discuss the statute of
Plaintiff argues that the harm resulting from the 2010 Incident Report can be considered under his negligence
action because of the continuing violations doctrine. Plaintiff misunderstands this doctrine. “[T]he purpose of the
continuing violation doctrine is to toll filing deadlines when a plaintiff could not reasonably be expected to perceive
the alleged violation before the limitations period has run, or when the violation only becomes apparent in light of
later events.” Threatt v. Jackson, No. 06-CV-3944, 2007 WL 723584, at *2 (N.D. Ill. Mar. 7, 2007) (internal
quotation marks omitted). Thus, “[t]he continuing tort doctrine applies where there is no single incident that can
fairly or realistically be identified as the cause of significant harm.” Gaudreau v. American Promotional Events,
Inc., 511 F. Supp. 2d 152, 156 (D.D.C. 2007) (internal quotation marks omitted). Here, the posting of the 2010
Incident Report was a distinct act, and Plaintiff alleges that he experienced harm from that act in 2011. Although
the posting of the 2014 Addendum was an instance of, essentially, the same tort, it was a distinct act. It was not as
though Plaintiff did not realize he had been harmed by the 2010 Report until after the 2014 Addendum was posted,
and therefore the continuing violations doctrine does not apply.
limitations defense, as its resolution narrows the scope of what conduct the Court must consider
in assessing the Defendants’ arguments regarding privilege and the sufficiency of Plaintiff’s
i. Statute of Limitations
The statute of limitations applicable to Plaintiff’s claim is three years. See Md. Code
Ann., Cts. & Jud. Proc. § 5-101. Plaintiff’s claim against the Knight Sky Defendants may be
substantively different than his claim against the United States, but it accrued at the same time.
That is, Plaintiff first learned of the existence of any injury arising out of the 2010 Incident
Report and the cause of that injury sometime in late 2010 or in 2011, six years before Plaintiff
filed his claim in this Court. Therefore, like Plaintiff’s claim against the United States, any
action against the Knight Sky Defendants premised on the 2010 Incident Report is barred by the
statute of limitations.8 The 2014 Addendum, however, was posted to Plaintiff’s JPAS account
on June 19, 2014, exactly three years prior to Plaintiff commencing this action. Therefore, again
like the Plaintiff’s claim against the United States, Plaintiff’s claim against the Knight Sky
Defendants is not barred by the statute of limitations insofar as the tortious act was the posting of
the 2014 Addendum. Having thus narrowed Plaintiff’s claim, the Court can proceed to discuss
the Knight Sky Defendants’ arguments regarding privilege and the sufficiency of Plaintiff’s
ii. Federal Contractor Privilege
The Knight Sky Defendants boldly state that “[t]he law is clear . . . in the Fourth Circuit
and throughout the federal system, that a communication required of and made by a defense
contractor to an agency of the United States Government is absolutely privileged.” (Knight Sky
Defendants’ Mot. Dismiss Mem. Supp. 8, ECF No. 17 (footnote omitted) (citing Becker v. Philco
Plaintiff’s arguments regarding the continuing violations doctrine are similarly unavailing in this context.
Corp., 372 F.2d 771, 774 (4th Cir. 1967).) And they are, in a sense, correct: communications
that are required of and made by a defense contractor to an agency of the United States are
privileged. The Knight Sky Defendants cite heavily to Becker for this proposition, and as an
example. There, a disgruntled employee of a defense equipment manufacturer provided negative
information to the manufacturer regarding two other employees.
372 F.2d at 772.
manufacturer then investigated those employees and turned over the information to the United
States. Id. The Fourth Circuit held that the employees could not bring a libel action against the
manufacturer because its communication to the Government was privileged. Id. at 776.
The privilege set forth in Becker does not, however, extend to communications that are
not required of government contractors. The Knight Sky Defendants have not presented the
Court with any case that would suggest otherwise. In Becker, the employer was contractually
obligated to report all “proven or even suspected compromise[s]” of any employees. 372 F.2d at
772. Similarly, the Knight Sky Defendants cite to a 2004 opinion from the Circuit Court of
Virginia which stands for the same proposition: that a contractor may be privileged in reporting
suspected adverse conduct when it is required to do so. See Bridge Tech. Corp. v. Kenjya Grp.,
Inc., No. 186469, 2004 WL 1318884 (Va. Cir. Ct. 2004). The Knight Sky Defendants cite
heavily to Stephenson v. Nassif, 160 F. Supp. 3d 884 (E.D. Va. 2015), but that case only held that
a person who reported information to JPAS acted “under” a federal officer’s directions for the
purposes of federal officer jurisdiction, and his defense that the communication was privileged
was “colorable.” See 160 F. Supp. 3d at 890-91.
Plaintiff does not allege that the Knight Sky Defendants reported “suspected” adverse
information that had been itself reported to them by some third party. Rather, Plaintiff alleges
that the Knight Sky Defendants reported irrelevant information about the parties’ state litigation,
and posted it, without authorization, to the JPAS database. The Knight Sky Defendants have not
convinced the Court that they were “required” to post irrelevant information to the Plaintiff’s
JPAS account years after Plaintiff had stopped working at Knight Sky, and solely for the purpose
of harming the Plaintiff.
The best argument the Knight Sky Defendants mount in support of this illusive
requirement is not a very good one. They point to language in the National Industrial Security
Program Operating Manual (“NISPOM”) which states:
“Contractors shall report adverse
information coming to their attention concerning any of their cleared employees. Reports based
on rumor or innuendo should not be made. The subsequent termination of employment of an
employee does not obviate the requirement to submit this report.” (See NISPOM § 1-302(a),
Knight Sky Defendants’ Mot. Dismiss Ex. A, ECF No. 17-1 (emphasis added).)9 The Knight
Sky Defendants read this language to mean that they have a continuing obligation to report all
information (apparently even false or irrelevant information) regarding Plaintiff, even after his
termination of employment. The Court reads it differently. The natural meaning of this passage
would suggest a) that Contractors are to report adverse information that is presented to them, b)
that Contractors are not supposed to report “rumor or innuendo” and c) that Contractors are to
report such adverse information even if they plan on firing the employee. This last instruction
only lends credence to Plaintiff’s contention that the Knight Sky Defendants lost authorization to
post reports on Plaintiff’s JPAS account after he left Knight Sky in 2008.10
The Court may consider documents that are official public records when evaluating a motion to dismiss. See
Witthohn v. Federal Ins. Co., 164 F. App’x 395, 396 (4th Cir. 2006).
Other statements in NISPOM and elsewhere enforce this inference. See NISPOM § 1-302(c) (instructing
Contractors to “report . . . the termination of employment.”); (Industrial Security Letter, Knight Sky Defendants
Mot. Dismiss Ex. C, ECF No. 17-3 (“Contractors are reminded that any adverse information coming to their
attention regarding cleared employees must be reported for the full duration of the individual’s employment with the
company.”).) Nevertheless, the Court does not need to decide whether the Knight Sky Defendants did lack of
authorization when they uploaded information to Plaintiff’s JPAS account after 2008. It need only decide that
Plaintiff plausibly alleges as such, and it finds that Plaintiff did.
The Court can find no support for the contention that a Government Contractor is
absolutely privileged in its false, irrelevant, or unauthorized communications to the United States
Government. In fact, insofar as the purpose of privileging a Contractor’s reports is to ensure
their candor in reporting information that could potentially impact national security, then
privileging spurious and unauthorized communications would seem counterproductive.
Becker, 372 F.2d at 774 (discussing the purpose behind the privilege). The Court does not find
that the 2014 Addendum was a privileged communication, and it will not dismiss Plaintiff’s
complaint against the Knight Sky Defendants on that ground.
iii. Failure to State a Claim
The Knight Sky Defendants also seek dismissal on the ground that Plaintiff has failed to
state a claim for tortious interference with business relations. The elements of a cause of action
for tortious interference with business relations are:
“(1) intentional and willful acts; (2)
calculated to cause damage to the plaintiff; (3) done to cause damage and loss, without right or
justifiable cause on the part of the defendants (which constitutes malice); and (4) damage
resulting.” Kwang Dong Pharm. Co. v. Han, 205 F. Supp. 2d 489, 496 (D. Md. 2002) (citing
Natural Design, Inc. v. Rouse Co., 485 A.2d 663, 675 (Md. 1984)). The Knight Sky Defendants
argue that Plaintiff has failed to sufficiently allege the third element, because they acted with
justifiable cause when they posted the 2014 Addendum, and furthermore, Plaintiff has alleged no
other wrongful conduct. The Knight Sky Defendants argument here is a rehash of their privilege
argument – asserting that they were required by law to post the Incident Report and Addendum,
and thus acted with justifiable cause. The Court is not persuaded by this argument for the
reasons outlined above.
The Knight Sky Defendants further argue that in order to plead this third element of
tortious interference with business relations, Plaintiff must plead a “predicate tort,” (Knight Sky
Defendants’ Reply 2, ECF No. 21), but they misunderstand Maryland law. Plaintiffs asserting a
claim of tortious interference with business relations need only plead that the actions of the
defendant are wrongful, independent of their impact on Plaintiff’s business; they need not plead
an entirely separate tort (though they may). See Alexander & Alexander Inc. v. B. Dixon
Evander & Assocs., Inc., 650 A.2d 260, 267-71 (Md. 1994). The malice requirement here serves
to distinguish between “the rough and tumble of the marketplace” and behavior that is “wrongful
so as to give rise to a cause of action in tort.” Alexander & Alexander, 650 A.2d at 269 (internal
quotation marks and citations omitted). In order to draw this line, and protect competition while
punishing wrongdoers, Maryland law requires a showing, generally, of “both a tortious intent
and improper or wrongful conduct.” Id. at 271 (emphasis added) (quoting Macklin v. Robert
Logan Assocs., 639 A.2d 112, 119 (Md. 1994)). That is, intent to engage in bad behavior aimed
at harming a competitor, as well as some improper or wrongful conduct. Maryland law does not
require tortious intent and tortious conduct, i.e. conduct that is itself a tort. Here, Plaintiff
alleges that the Knight Sky Defendants acted with tortious intent to harm Plaintiff financially,
and that they acted without authorization when they posted the Incident Report and Addendum.
Those are sufficient allegations to support a claim for tortious interference with business
relations. That Plaintiff did not separately plead the elements of defamation, or some other tort,
is of no consequence.
The Knight Sky Defendants finally argue that Plaintiff failed to allege interference with
specific business relations. When pleading tortious interference with business relations “an
individual must allege more than a disruption of a future relationship to a yet to be determined
party.” Baron Fin. Corp. v. Natanzon, 471 F. Supp. 2d 535, 542 (D. Md. 2006). That is, a
plaintiff “must establish some evidence that a prospective business relationship is likely to
occur.” Id. (emphasis in the original). If the Court were to consider the harm resulting from the
2010 Incident Report, the Knight Sky Defendant’s argument here would fail – Plaintiff clearly
alleged several specific business relationships that were adversely impacted by the Knight Sky
Defendants’ alleged wrongdoing, including loss of a $1 million contract and his position at
Northrop Grumman. But given the Court’s resolution of the statute of limitations issue, the
Knight Sky Defendants’ have lucked into a sound argument here.
Unlike the ramifications of the 2010 Incident Report, Plaintiff does not allege any
specific business relationship that has been harmed as a result of the 2014 Addendum. Plaintiff
conclusorily states that “[a]s a result of Knight Sky’s Incident Report and Addendum, Plaintiff
has lost contract and employment opportunities, sustained damaged [sic] to his career and
personal and professional reputation, and lost past and future earnings.” (Compl. ¶ 43.) But he
failed to allege any specific contract, employment opportunity, or business relationship that was
damaged because of the 2014 Addendum alone. Accordingly, Plaintiff’s claim against the
Knight Sky Defendants will be dismissed. The Court notes that Plaintiff is free to move the
Court to amend his complaint to include such specific allegations of harm, should he believe he
can prove such allegations at trial. The Court is instructed to “freely give leave [to amend] when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Should Plaintiff wish to amend his complaint
beyond adding specific allegations of harm resulting from the 2014 Addendum, he should be
mindful that the Court is also instructed to deny a motion to amend when the proposed
amendments would be futile. See Laber v. Harvey, 438 F. 3d 404, 426 (4th Cir. 2006).
Plaintiffs claim against the United States is one of negligence, and is not grounded in
misrepresentation. However, Plaintiff’s claim of negligence arising out of the 2010 Incident
Report was not presented to the appropriate federal agency within two years of its accrual.
Accordingly, the Court has subject-matter jurisdiction over Plaintiff’s claim against the United
States, but only insofar as the claim seeks redress for harm stemming from the 2014 Addendum.
To that extent it will not be dismissed. Plaintiff’s claim against the Knight Sky Defendants is
barred by the statute of limitations except insofar as it is based on the 2014 Addendum.
However, Plaintiff has failed to allege harm to specific business relations arising out of the 2014
Addendum in particular and therefore his claim against the Knight Sky Defendants will be
dismissed by accompanying order.
DATED this 7th day of March, 2018.
BY THE COURT:
James K. Bredar
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