Sember v. Booz Allen Hamilton Engineering Services, LLC et al
ENTRY AND ORDER granting 16 Defendants' Motion to Dismiss the Amended Complaint Under Fed. R.Civ.P. 12(b)(6) and Terminating Case. Signed by Judge Thomas M. Rose on 8-3-2017. (de)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOHN M. SEMBER,
BOOZ ALLEN HAMILTON
ENGINEERING SERVICES, LLC, et al.,
Case No. 3:16-cv-445
Judge Thomas M. Rose
ENTRY AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
(DOC. 16) THE AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(b)(6)
AND TERMINATING CASE
This case is before the Court on the Motion to Dismiss (Doc. 16) pursuant to Fed.
R. Civ. P. 12(b)(6) filed by Defendants Booz Allen Hamilton Engineering Services, LLC
(“BAHES”), Booz Allen Hamilton, Inc. (“BAH”), and BAHES employee John Hancock
(“Hancock”) (collectively “Defendants”). Plaintiff John Sember (“Sember”), a former
BAHES employee, alleges that Defendants breached a duty to train him how to
properly handle, label and protect the data he created while employed by BAHES. (Doc.
14 at ¶ 66.) Sember alleges that, due to this lack of training, he was prosecuted for
alleged theft of government property—although he was ultimately acquitted at trial.
Defendants move to dismiss the Amended Complaint on two grounds: that Ohio
law does not recognize a claim for breach of a duty to train and derivative
governmental immunity. Defendants’ Motion to Dismiss is fully briefed and ripe for
review. (Docs. 16, 18, 19.) As discussed below, because Defendants are entitled to
immunity from the sole claim alleged in the Amended Complaint, the Court GRANTS
the Motion to Dismiss.1
As alleged in the Amended Complaint, Sember began employment with BAHES
in January 2013. (Doc. 14 at ¶ 7.) Prior to joining BAHES, Sember served in the United
States Air Force as an electrical engineer at the Center for Rapid Product Development
(“CRPD”). (Id. at ¶ 10.) Sember’s employment with BAHES required him to perform the
same responsibilities at the same location as was required of him when he served in the
Air Force. (Id. at ¶ 10.) BAHES is a wholly owned subsidiary of BAH, both of which
operate as government contractors. (Id. at ¶ 7-8.)
On March 14, 2014, Sember notified BAHES that he intended to resign effective
April 18, 2014. (Id. at ¶ 23.) On March 16, 2014, Hancock, who was one of Sember’s
supervisors, instructed Sember to report the next morning to an address different from
his usual duty station. (Id. at ¶ 26.) When Sember reported as directed, he was informed
that he was not fired, but BAHES no longer had work for him. (Id. ¶ 26-27.) Later that
same evening, Sember copied and transferred information he collected while working
at the CRPD to his personal hard-drive. (Id. at ¶ 28.) Sember returned some computer
components to a BAHES representative, but retained the data that he had copied. (Id. at
1 The Court acknowledges the valuable contribution and assistance of judicial extern Anthony
Satariano in drafting this opinion.
On March 25, 2014, the FBI interviewed several BAHES employees in connection
with a report that Sember had stolen government property. (Id. at ¶ 44.) During this
interview, a BAHES employee informed the FBI that Sember had access to a classified
asset at the CRPD. (Doc. 14 at ¶ 45.) On March 27, 2014, a teleconference was scheduled
to occur between Sember and several BAHES and BAH employees, but was cancelled.
(Id. at ¶ 47.) Shortly thereafter, Sember, through his counsel, submitted a letter moving
his resignation date from April 18, 2014 to March 28, 2014. (Id. at ¶ 48.) BAHES records
indicate Sember’s last day of employment as March 27, 2014. (Id. at ¶ 50.)
On March 28, 2014, federal agents, with the assistance of local law enforcement,
searched Sember’s home in search of the data transferred to his personal hard drive. (Id.
at ¶ 50.) Six months thereafter, Sember was indicted for theft of government property in
violation of 18 U.S.C § 641. (Id. at ¶ 52.) At the conclusion of trial, a unanimous jury
found Sember not guilty of the alleged offense. (Id. at ¶ 63.)
Sember asserts only one cause of action in the Amended Complaint. (Id. at ¶ 66.)
He alleges that Defendants breached a duty to train him on how to handle, label, and
protect the data he created while employed by BAHES. (Id.) Sember alleges that, as a
consequence of this failure to train, BAHES informed federal authorities that he stole
classified information, which led to his indictment for theft of government property.
(Id.) Sember seeks more than $50,000 in legal fees and compensation for his loss of
employment, mental anguish and embarrassment. (Id. at ¶ 64.)
When considering a Rule 12(b)(6) motion to dismiss, courts must construe the
complaint in the light most favorable to the plaintiff and accept as true all “well pleaded
allegations” in the complaint. Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 485
F.3d 840, 845 (6th Cir. 2007). However, a “plaintiff’s obligation to provide the ‘grounds’
of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A court may dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations.” Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 508 (2002). The mere presence of an affirmative defense
does not render a claim for relief invalid per se. Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687, 690 (7th Cir. 2012). However, a complaint may be dismissed “if an
affirmative defense or other bar to relief is apparent from the face of the complaint, such
as the official immunity of the defendant.” Picard Chem. Profit Sharing Plan v. Perrigo Co.,
940 F. Supp. 1101, 1115 (W.D. Mich. 1996) (quoting 2A James W. Moore, Moore's
Federal Practice, ¶ 12.07[2.5] (2d ed. 1991)).
Sember alleges that Defendants breached a duty to train him regarding the
proper handling of confidential information, which caused BAHES to report him to the
FBI and ultimately led to his indictment for alleged theft of government property.
Defendants argue that these allegations fail to state a claim under Ohio law and, even if
the allegations could state a claim, Defendants are immune, as government contractors,
from any claims based on their reporting of security-related information to the United
States government. As discussed below, the Court finds that Defendants are entitled to
dismissal of the Amended Complaint on immunity grounds. The Court therefore does
not consider Defendants’ argument under Ohio state law.
Citing Becker v. Philco Corp., 372 F.2d 771 (4th Cir. 1967), Defendants assert that
“absolute immunity protects federal defense contractors, both companies and
individuals, from claims originating from security reports they make to federal
agencies.” (Doc. 16 at 11.) In Becker, the Fourth Circuit considered whether the plaintiffs
could sue their employer for defaming them in a report made to the United States
pursuant to the terms of a defense contract. Becker, 372 F.2d at 771. The Fourth Circuit
first noted that the contractor was charged with duties and responsibilities similar to
those of a federal agency, such as the safekeeping of government secrets, and was
obligated to report “not only . . . actual but . . . each suspected compromise of classified
information” to the government. Id. at 773-74. The Fourth Circuit further observed that,
if a federal agency were in the contractor’s position, it would be accorded an
“unqualified privilege” for the allegedly defamatory communications because they
were mandatory and within the scope of the contractor’s functions. Id. at 774. In
addition, the communications did not involve any public disclosure, “but only a
confidential transmittal within the internal operations of the Government.” Id. at 775-76.
Since a federal agency could not be liable in such circumstances, the Fourth Circuit
reasoned that a libel action also should not lie “against a private party fulfilling its
governmentally imposed duty to inform.” Id. at 776.
The Sixth Circuit has not addressed similar circumstances—or, at least, the
parties have not cited and the Court’s research has not uncovered any such case. This
Court, however, has previously held that a defense contractor was immune from state
tort claims “stemming from reporting information to the United States about its
employees who hold United States Government security clearances.” Montgomery v.
Sanders, No. 3:07-cv-470, 2008 WL 4546262, at *3-4 (S.D. Ohio Aug. 18, 2008).
In Montgomery, the plaintiff, a program manager for a federal defense contractor,
alleged that the contractor’s Facility Security Officer (“FSO”) had filed a series of
allegedly false reports about him with federal authorities. Id. The reports included
claims that plaintiff had classified documents at his home, had brought weapons to
work, had stockpiles of weapons and ammunition at his home, and was recently
convicted of “reckless operation” of a motor vehicle. Id. The contractor terminated
plaintiff based on the reports and he was denied access to the Air Force base where he
was engaged in a separate business. Id.
The plaintiff asserted, among others, claims for defamation, slander and libel per
se against the contractor and FSO. Id. at *2. The defendants moved to dismiss these
claims on the basis that they were immune from liability for claims premised on their
reporting of information with national security implications to the United States
government. Id. at *3. The Court agreed and explained that “this absolute immunity
allows defense contractors to alert the United States to potential threats to national
security without fear of a lawsuit, which would otherwise encourage self-censorship.”
Id. at *4. Quoting Gulati v. Zuckerman, 723 F.Supp. 353 (E.D.Pa.1989), the Court added:
Contractors have the duty to report all manner of potentially damaging
information about their employees to the appropriate federal authorities.
They must be able to do this free of the fear of expensive litigation. Selfcensorship in adverse information reporting would be extremely
detrimental to the federal goal of ferreting out security risks in the defense
industry. It is the province of federal security investigators, not of
reporting contractors, to sort out valid reports of employee misbehavior
from unfounded fictions.
Id. at *4 (quoting Gulati, 723 F.Supp. at 358).
Here, Defendants argue that, even though Sember dropped the malicious
prosecution and defamation claims pled in his original complaint, he still alleges that
“he was unfairly prosecuted for theft of government data based on information
Defendants provided to the federal government about him.” (Doc. 16 at 14 (citing Doc.
14 at ¶ 45).) Defendants reason that, because this sole remaining claim is derivative of
their mandatory reporting of security-related information about Sember, they are
entitled to absolute immunity—just as the defendants in the Montgomery case. (Id.)
Defendants’ argument is persuasive. As defense contractors to the federal
government, Defendants were subject to the requirements of the Department of
Defense’s (“DoD’s”) National Industrial Security Program Operating Manual
http://www.dss.mil/documents/odaa/nispom2006-5220.pdf.2 Specifically, NISPOM §
1-302 provides that “[c]ontractors shall report adverse information coming to their
attention concerning any of their cleared employees.” Id. Thus, Defendants were
required to report the adverse information about Sember alleged in the Amended
Moreover, as the Court noted in its ruling on Sember’s Motion to Remand,
Sember does not allege any damages that are not causally linked to Defendants’
reporting of information to federal officers. (Doc. at 7-8.) The policy reasons for the
immunity granted federal contractors in cases involving defamation claims therefore
also apply here. Namely, permitting Sember’s claim to go forward could engender selfcensorship among federal contractors due to a fear of expensive litigation that “would
be extremely detrimental to the federal goal of ferreting out security risks in the defense
industry.” Gulati, 723 F.Supp. at 358; see also Mangold v. Analytic Svcs. Inc., 77 F.3d 1442,
1449 (4th Cir. 1996) (federal contractor is immune from claims for defamation and
intentional infliction of emotional distress based on statements it made in response to
government investigators during an official investigation).
Sember did not address Defendants’ immunity argument in his opposition to the
Motion to Dismiss. He therefore neither contested Defendants’ reporting obligations
nor distinguished the caselaw establishing immunity for federal contractors in similar
circumstances. As a result, in accordance with that caselaw, the Court finds that
2 The Court may take judicial notice of the NISPOM, which is a public record, on Defendants’
motion to dismiss. Tellabs, Inc. v. Maker Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Defendants are entitled to immunity from the remaining claim asserted against them in
the Amended Complaint.
Even construing the Amended Complaint in the light most favorable to Sember,
he alleges a cause of action premised on Defendants’ mandatory reporting of securityrelated information to the United States government. As discussed above, Defendants
are entitled to immunity from state law claims based on such allegations. Accordingly,
the Court GRANTS Defendants’ Motion to Dismiss (Doc. 16) the Amended Complaint.
This case shall be TERMINATED on the Court’s docket.
DONE and ORDERED in Dayton, Ohio, this Thursday, August 3, 2017.
s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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