Abou-Hussein v. Mabus et al

Filing 78

ORDER RULING ON REPORT AND RECOMMENDATION ADOPTING 67 Report and Recommendation GRANTING 42 Defendant Mabus' Motion to Dismiss and the Court sua sponte DISMISSES the claims against unknown NCIS agents. This action is DISMISSED WITH PREJUDICE Signed by Honorable Richard M Gergel on 9/3/2015. (sshe, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Hamdy Alex Abou-Hussein a/Ida Alex
Abou-Hussein
Plaintiff,
vs.
Raymond Edwin Mabus, Jr., Secretary of
the United States Department ofNavy;
Unknown Naval Criminal Investigative
Services Agents,
Defendants.

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No. 2: 14-cv-02597-RMG

ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge, (Dkt. No. 67), recommending that Defendant Mabus' motion to dismiss, (Dkt.
No. 42), be granted and that the claims against unknown NCIS agents be dismissed sua sponte.
For the reasons stated below, the Court adopts the R & R, grants Defendant Mabus' motion, and
dismisses the claims against unknown NCIS agents sua sponte.

I. Back&round
This action was originally filed in the United States District Court for the District of
Columbia. On July 17,2013, United States District Judge Reggie Walton dismissed all claims
against Defendant Mabus except Plaintiffs Title VII discrimination claim. (Dkt. No. 17). This
discrimination claim against Defendant Mabus and Plaintiff's RICO claim against unknown
NCIS agents was then transferred to this Court on the same date. (ld.). Plaintiff appealed Judge
Walton's decision to the United States Court of Appeals for the District of Columbia. (Dkt. No.

19). The appeal was dismissed for lack ofjurisdiction, and Plaintiff s petition for writ of
mandamus was denied. (Dkt. No. 24).
After transfer to the District of South Carolina, Defendant Mabus filed a motion to
dismiss Plaintiffs discrimination claim for failure to exhaust administrative remedies. (Dkt. No.
42). This matter was automatically referred to a Magistrate Judge pursuant to Local Civil Rule
73.02(B) (D.S.C.). The Magistrate Judge recommends granting Defendant Mabus's motion to
dismiss for failure to exhaust administrative remedies and because Plaintiff has abandoned the
claim. (Dkt. No. 67 at 8-9). The Magistrate Judge also recommends dismissing the remaining
claims against unknown NCIS agents sua sponte as preempted by the Civil Service Reform Act
(CSRA). (Id. at 9-14). Plaintiff filed objections to the R & R, (Dkt. No. 74), and this matter is
ripe for review.
II. Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those
portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b).
However, as to portions of the R & R to which no objection is made, this Court "must
'only satisfy itself that there is no clear error on the face of the record in order to accept the
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recommendation. ,,, Diamond v. Colonial Life & Ace. Ins. Co., 416 F3d 310, 315 (4th Cir. 2005)
(quoting Fed. R. Civ. P 72 advisory committee note). Additionally, the Court need not give any
explanation for adopting the R & R in the absence of specific objections by the parties. See
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983) ("Absent objection, we do not believe that

any explanation need be given for adopting the report.").

III. Discussion
A. Defendant Mabus' Motion to Dismiss
Plaintiff's objections, like his Complaint, are difficult to decipher. However, it does not
appear that Plaintiff objects to the Magistrate Judge's findings that he failed to exhaust his
administrative remedies before pursuing a Title VII claim or that he has abandoned this claim.
(See Dkt. No. 74). The only objection the Court can discern concerning Mabus' motion to

dismiss is Plaintiffs quotation of Rule 12(g)(2), which states
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this
rule must not make another motion under this rule raising a defense or objection
that was available to the party but omitted from its earlier motion.
(Dkt. No. 74 at 5). This rule does not bar the instant motion to dismiss. Defendant Mabus' first
motion to dismiss, filed when the case was still pending in the District Court for the District of
Columbia, also argued that Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 7 at
10-16). Thus, this argument was not omitted from Defendant's earlier motion. Furthermore,
motions to dismiss for lack of subject matter jurisdiction are exempted from this rule. See Fed.
R. Civ. P. 12(g)(2) (exempting motions under Rule 12(h)(3»); Fed. R. Civ. P. 12(h)(3) (regarding

motions to dismiss for lack of subject matter jurisdiction). "[A] failure by the plaintiff to exhaust

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administrative remedies concerning a Title VII claim deprives the federal courts of subject matter
jurisdiction over the claim." Jones v. Calvert Grp., Ltd., 551 F.3d 297,300 (4th Cir. 2009).
The Court agrees that Plaintiff has failed to allege exhaustion and that he has repeatedly
abandoned this claim in his filings with the Court. Therefore, the Court adopts the R & R on this
point and grants Defendant Mabus' motion to dismiss.

B. Claims against Unknown NCIS Agents
Plaintiff alleges that unknown NCIS agents conspired to frame him criminally and wrote
false reports to the General Counsel for the Navy that Plaintiff was plotting a terrorist shooting
attack! (Dkt. No.1 at ~~ 27, 55i; see also Dkt. No. 74 at 14). The District Court for the District
of Columbia construed the Complaint as asserting a single RICO cause of action against
unknown NCIS agents. (See Dkt. No. 17 at 2). Plaintiff contends he also asserts claims under
the Privacy Act, Bivens, the APA, and the False Claims Act. (See Dkt. No. 74 at 15-24). The
Magistrate Judge found that Plaintiffs RICO claim, Bivens claim, and FCA claim were
preempted by the CSRA. (Dkt. No. 67 at 9-14). The Magistrate Judge also found that Plaintiff
failed to state a claim for relief under the APA. (Id. at 14-15). The Privacy Act claim appears to
be raised for the first time in Plaintiffs objections.
1. RICO Claim
The Magistrate Judge found that because any injuries alleged by Plaintiff are inextricably
linked to his federal employment, the CSRA preempts Plaintiffs RICO claim. (Dkt. No. 67 at 9­
13). Plaintiff does not appear to object to the fact that the CSRA preempts claims where

The Magistrate notes each specific allegation against NCIS agents in the R & R. (See
Dkt. No. 67 at 5-6).
I

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Plaintiffs alleged injuries are related to his federal employment in the civil service, (see Dkt. No.
74), and the Court agrees. See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1030 (Fed. Cir.
1995) ("The CSRA superseded preexisting remedies for all federal employees ... for all types of
personnel action within its scope.").
However, in his objections, Plaintiff asserts that he has non-employment related injuries
resulting from the alleged conspiracy: (1) that he was an FBI informant and has lost his "FBI
private contracting business" as a result of the conspiracy, (2) that he has potentially been
included on a terrorist watch list, and (3) that he has a "lifestyle of constant guardedness under
the death threats made against plaintiff." (Dkt. No. 74 at 9, 18,20).
As to Plaintiff s status as an FBI informant, he alleges that he was not paid but
"volunteered" for the FBI. Specifically, Plaintiff alleges that "Plaintiff could not collect payment
as a contractor for the FBI ... because he ha[ d] become a civil servant by then, and so the FBI
asked plaintiff to seek a waiver from DON to be paid as a contractor. Plaintiff offered FBI
instead to work as an unpaid volunteer, in order to keep his affiliation secret from Navy's corrupt
officials ..." (Dkt. No.1 at ~ 26). Thus, by Plaintiffs own allegations, he has not suffered any
injury "to his business or property" as is required to state a RICO claim. See 18 U.S.C. §
1964(c); Dickerson v. TLC The Laser Eye Ctr. Inst., Inc., 493 F. App'x 390,394 (4th Cir. 2012).
Similarly, Plaintiff's allegations that he has potentially been included on the terrorist
watch list and has a "lifestyle of constant guardedness" does not constitute injury to "business or
property" cognizable under RICO. See Bast v. Cohen, Dunn & Sine/air, PC, 59 F.3d 492, 495
(4th Cir. 1995) (holding that "extreme mental anguish" and "[a]n allegation of personal injury

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and pecuniary losses occurring therefrom" does not meet the statutory requirement of injury to
business or property).
2. FCA Retaliation Claim
"A successful claim for retaliation under § 3730(h) requires that the plaintiff establish
three basic elements: (l) he engaged in 'protected activity' by acting in furtherance of a qui tam
suit; (2) his employer knew of these acts; and (3) his employer took adverse action against him as
a result of these acts." Glynn v. EDO Corp., 710 F.3d 209,214 (4th Cir. 2013). However, "a
federal employee, stands on different footing than a privately employed citizen when it comes to
an FCA retaliation claim." Gibbs v. United States, 865 F. Supp. 2d 1127, 1139 (M.D. Fla. 2012)
aff'd, 517 F. App'x 664 (lIth Cir. 2013). The CSRA preempts, and provides remedies, for such

retaliation claims. ld.
Again, Plaintiff does not dispute that the CSRA preempts claims that his federal employer
acted in retaliation, but argues that the "CSRA does not apply to the loss of private sector
employment or business." (Dkt. No. 74 at 22). While this statement is true as far as it goes, an
FCA retaliation claim can only lie against an employer, contractor or someone in a similar
relationship with Plaintiff. E.g., Hodnett v. Louisiana, No. 02-CV-2206, 2010 WL 3790807, at
*4 (W.D. La. Aug. 23,2010); see also 31 U.S.C. § 3730(h)(l) ("Any employee, contractor, or
agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if

that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in
any other manner discriminated against in the terms and conditions ofemployment . ..")
(emphasis added). Plaintiff has not alleged that he is an employee, contractor, or agent of the
unknown NCIS agents; therefore, an FCA retaliation claim cannot lie against them.
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3. Bivens Claim
The Magistrate Judge found that because any Bivens claims against unknown NCIS
agents arise out of Plaintiffs employment with the federal government, they are preempted by
the CSRA. (Dkt. No. 67 at 14). Plaintiff agrees that the CSRA preempts claims based on
"personnel decisions" but argues that "terrorism allegations are not recognized as 'personnel
decisions.'" (Dkt. No. 74 at 18). The Court finds that Plaintiff has failed to allege a
constitutional violation.
Plaintiff essentially alleges that unknown NCIS agents have falsely accused him of
terrorist activities. But Plaintiff has not alleged that he has been arrested or that any other actions
have been taken against him as a result of these allegedly false allegations, only that unknown
NCIS agents wrote false reports to the General Counsel for the Navy. "[T]he Constitution does
not forbid libel and slander." Davis v. City ojChicago, 53 F.3d 801,804 (7th Cir. 1995); see

also Stordahl v. Harrison, 542 F. Supp. 721,723 (RD. Va. 1982) ("Slander or defamation in and
of itself does not implicate a liberty or property interest so as to be cognizable under the
Fourteenth Amendment or 42 U.S.c. s 1983."). "[T]hus allegations of defamation, i.e. libel
and/or slander, alone, do not suffice to form a § 1983 claim that is cognizable in a federal court,"

Boyd v. Angelica Textile Servs. Inc., No. CA 3: 12-334-JFA-PJG, 2012 WL 2260235, at *4
(D.S.C. May 18,2012) report and recommendation adopted, No. CA 3:12-334-JFA, 2012 WL
2237167 (D.S.C. June 15,2012), aff'd, 491 F. App'x 425 (4th Cir. 2012).
"Defamation is only actionable under § 1983 or Bivens if it occurs in the course of or is
accompanied by a change or extinguishment of a right or status guaranteed by state law or
protected by the Constitution." Id. Again, Plaintiff has not alleged that he has been arrested or
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that this allegedly false report to the General of the Navy was accompanied by the lost of a right
or status guaranteed by law. 2 Thus, he has failed to state a claim.
4. Privacy Act Claim
Plaintiff raises for the first time in his objections to the R & R that he can state a Privacy
Act claim against unknown NCIS agents. (Dkt. No. 74 at 15-17). Plaintiff claims that the
unknown NCIS agents violated the Privacy Act "by a retaliatory open-ended criminal
investigation creating falsehoods in plaintiff's records (spying and terrorism); by disclosing
information to third parties without plaintiff's consent; and by refusing to disclose to him
information collected about him." (ld. at 16).
"The Privacy Act limits the kind of information that can be collected or disclosed by
government agencies and provides a private cause of action against an agency for violating the
Act's provisions." Wheeler v. Gilmore, 998 F. Supp. 666, 668 (E.D. Va. 1998). However, "an
agency is the only proper defendant under the Act and, therefore, individuals may not be named
as defendants in such actions." ld.; see also 5 U.S.C. § 522a(g)(1)("[T]he individual may bring a
civil action against the agency.") (emphasis added); Leitgeb v. S. Carolina Dep 't ofMotor

Vehicles, No. CA 7: 10-2989-TMC, 2011 WL 5878157, at *4 n.4 (D.S.C. Nov. 23,2011) ("[T]he
proper defendant in a Privacy Act action is an agency and not individual employees."). Thus,

Again, to the extent the allegedly false reports resulted in the loss of his federal
employment or other employment action, the Bivens claim cannot lie, and Plaintiff's remedy is
with the CSRA. See, e.g., Zimbelman v. Savage, 228 F.3d 367, 370 (4th Cir. 2000) ("Because
the CSRA constitutes a comprehensive set of procedural and substantive provisions governing
the rights of federal employees, it would be inappropriate to supplement that regulatory scheme
with a [Bivens] remedy.").
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Plaintiff cannot state a Privacy Act claim against unknown NClS agents, and this claim must be
dismissed.
5. APA Claim
The Magistrate Judge found that Plaintiffs claim for declaratory and injunctive relief
under the APA must fail because he has failed to state what declaratory relief is sought and the
only claim for injunctive relief was resolved by the District Court for the District of Columbia
and not transferred to this Court. (Dktr. No. 67 at 14-15). Plaintiff does not object the
Magistrate Judge's finding regarding injunctive relief, but argues that "a threat of arrest requires
a declaratory judgment" and that "a threat of plaintiffs extrajudicial detention or commitment to
a mental health institution in the Soviet tradition, similarly requires a declaratory judgment."
(Dkt. No. 74 at 21-22).
The Supreme Court has held that where a prosecution has been threatened, but is not
pending, under a state criminal statute, an individual can challenge the constitutionality of that
statute in a federal declaratory action. See Steffel v. Thompson, 415 U.S. 452 (1974). However,
Plaintiff has not articulated what statute he has been "threatened" with, alleged that such a statute
is unconstitutional, or alleged any connection between the APA and his alleged ''threat of arrest."
Plaintiff has simply not pled sufficient factual content to state a claim for relief "plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, any such claim must be
dismissed.
The Court agrees with the Magistrate Judge that allowing discovery for Plaintiff to
attempt to identify the unknown NClS agents would be futile, as he has failed to state a claim
against these agents.
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C. Purported Sealed Filings
In his objections, Plaintiff spends considerable space alleging that the government has
provided documents to the Court under seal, that he has not seen, and that the Magistrate Judge
violated the Federal Rules and Local Civil Rule 5.03 (D.S.C.) by not docketing and giving notice
of a motion to seal. (Dkt. No. 74 at 1-7).
While the case was pending before the United States District Court for the District of
Columbia, Defendant Mabus filed a motion for leave to file one exhibit, Exhibit 17 to his motion
to dismiss, under seal. (Dkt. No. 11). Exhibit 17 was a 2007 settlement agreement with Plaintiff
of an earlier EEOC claim. (ld.; see also Dkt. No.1 at ~ 35). This motion to seal was publically
docketed and served on Plaintiff electronically. (Dkt. No. 11). The district court granted the
motion to seal on November 9, 2012, and Exhibit 17 was filed under seal. (Dkt. No. 12).
Plaintiff received electronic service of this document at his hotmail email address. (See ECF
Notice for Dkt. No. 12). No other documents have been filed under seal in this action.
The document at Dkt. No. 12 was an exhibit to Mabus' first motion to dismiss before the
United States District Court for the District of Columbia. First, Plaintiff was served
electronically with this document. (See ECF Notice for Dkt. No. 12). Second, this a settlement
agreement signed by Plaintiff, as he admits in his complaint. (See Dkt. No.1 at ~ 35). Thus, he
has certainly seen the document. Finally, this document was not considered by this Court in its
ruling on Mabus' instant motion to dismiss. Plaintiff's allegations in Paragraph 35 of his
complaint, that his 2007 EEOC claim was settled is the basis for the Court's determination that
his current Title VII claim is a different claim, and Plaintiff has not alleged exhaustion of this

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new claim. Therefore, the Court finds that Plaintiff has not raised any issue that requires further
action by the Court.
IV. Conclusion
For the reasons stated above, the Court ADOPTS the R & R, (Dkt. No. 67), as an Order
of the Court. For the reasons stated in the R & R and for the reasons stated above, Defendant
Mabus' motion to dismiss, (Dkt. No. 42), is GRANTED, and the Court sua sponte DISMISSES
the claims against unknown NCIS agents. Accordingly, this action is DISMISSED WITH
PREJUDICE.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge
September ~, 2015
Charleston, South Carolina

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