Doe v. Benoit

J.Q. DOE, Plaintiff, v. ANDREA LYNNE BENOIT, et al., Defendants.

No. 19-cv-1253 (DLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 29, 2020

MEMORANDUM OPINION

In this case, the pseudonymous plaintiff J.Q. Doe asserts five counts against various defendants for alleged injuries connected to an "insider threat" investigation against Doe. In particular, Doe asserts two counts against the Department of Defense under the Freedom of Information Act, 5 U.S.C. § 552, et seq., and the Privacy Act, 5 U.S.C. § 552a, et seq. (collectively, FOIA); one count against the Department of Defense and (in his official capacity) Secretary of Defense Mark T. Esper under the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq.; one count against Andrea Lynne Benoit in her individual capacity under the First Amendment, based on Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); and one count against Benoit and ten unknown John Doe defendants in their individual capacities under the Due Process Clause of the Fifth Amendment, again based on Bivens. Before the Court is the government's Motion to Dismiss in Part and to Strike, Dkt. 32. For the following reasons, the Court will grant in part and deny in part the motion.

I. BACKGROUND

In October 2012, Doe joined the Defense Contract Management Agency's Eastern Regional Command legal office in Massachusetts as Assistant Counsel. 2d Am. Compl. ¶ 111, Dkt. 30. In September 2015, that agency hired Benoit as Eastern Regional Command Counsel, making her Doe's boss. Id. ¶ 130. In May 2016, Doe "received a geographic transfer" to the Defense Contract Management Agency's Manassas Contract Management Office in Chantilly, Virginia. Id. ¶¶ 136-37. This case centers on an allegedly ill-founded "insider threat" investigation that Benoit launched against Doe in November 2016.

The term "insider threat" describes anyone who "wittingly or unwittingly" uses authorized access to Department of Defense resources "to harm national security interests or national security through unauthorized disclosure, data modification, espionage, terrorism, or kinetic actions resulting in loss or degradation of resources or capabilities of the United States." Id. ¶ 13. In 2011, President Obama issued Executive Order 13,587, which "directed federal departments and agencies with access to classified information to establish insider threat detection and prevention programs." Id. ¶ 9.

Based on this directive, in June 2016 the Defense Contract Management Agency issued Instruction 563. Id. ¶ 141. Instruction 563 was meant to "assist personnel in identifying potential insider threat indicators," outline "associated reporting guidance and procedures," and serve as "a concise reference that can be used to increase early warning sign recognition of potentially concerning actions/behaviors." Id. ¶ 159. Though the Defense Contract Management Agency rescinded Instruction 563 and replaced it with Manual 3301-05 on November 2018, id. ¶¶ 202-203, Instruction 563 was the operative guidance at the time of Doe's insider threat investigation, id. ¶¶ 165-68.

In November 2016, Benoit filed an Insider Threat Report against Doe under Instruction 563. Id. ¶ 165. Benoit felt "obligated" to file the report based in part on an email from Doe's coworker. Id. The email described Doe as showing "threatening and erratic" behavior towardthe coworker and becoming "increasingly unprofessional, paranoid[,] and aggressive." Id. ¶ 153-54. The Defense Contract Management Agency placed Doe on indefinite leave while it investigated this report. Id. ¶ 171. On December 14, 2016, an investigator interrogated Doe for six hours. Id. ¶ 172. By January 2017, the investigators had concluded that Doe "was never an insider threat," id. ¶ 183, and Doe returned to work in early 2017, id. ¶¶ 176, 178.

In July 2017, Doe left the Defense Contract Management Agency for a different Department of Defense agency. Id. ¶ 179. About two weeks later, Benoit allegedly directed ten unknown Defense Contract Management Agency "officials or employees"—the ten John Doe defendants in this case—to notify the security office of Doe's new employer that Doe had been evaluated as a possible insider threat. Id. ¶ 181. This notification prompted "a new suitability evaluation or investigation" of Doe. Id. ¶ 184. None of the John Does told the security office that the earlier insider threat investigation had cleared Doe. Id. ¶ 183. The security office also notified Doe's first- and second-level supervisors that Doe's security clearance had been flagged based on the information from Benoit and the other ten unknown employees. Id. ¶ 185. On May 18, 2018, Doe's employer notified Doe that the Office of Personnel Management had completed its security background investigation and had favorably adjudicated Doe for a Secret clearance. Id. ¶ 189.

Doe's security clearance issues and the stigma associated with being labeled a potential insider threat allegedly injured Doe in a few ways. They limited the kind of work that Doe could do, thus "angering and frustrating" Doe's supervisors. Id. ¶ 186. They caused Doe's second-level supervisor to give negative references to Doe's future potential employers. Id. ¶ 188. And they led Doe's first-level supervisor to award Doe a rating of "3" out of a possible "5" for the 2017 performance year. Id. ¶ 192; see id. ¶ 197. This rating generally precludes Doefrom advancing beyond the GS-14 level and thus obtaining a job for which prior experience at the GS-15 level is a prerequisite. Id. ¶ 195. It also caused Doe to receive "a much smaller performance rating cash bonus." Id. ¶ 200.

Based on these allegations, Doe filed this lawsuit on April 30, 2019, Dkt. 1, and filed the Second Amended Complaint on October 31, 2019, Dkt. 30. In Counts I and II, Doe brings two FOIA claims not at issue here against the Department of Defense. 2d. Am. Compl. ¶¶ 205-216. In Count III, Doe asserts an APA claim against the Department of Defense and Secretary of Defense Mark T. Esper. Id. ¶¶ 217-223. Doe claims that Instruction 563 was inconsistent with Executive Order 13,587 and thus was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see 2d Am. Compl. ¶¶ 217-23. In Count IV, Doe asserts a Bivens claim against Benoit for alleged First Amendment violations. Id. ¶¶ 224-272. And in Count V, Doe raises a Bivens claim against Benoit and the ten John Doe defendants for alleged Fifth Amendment violations. Id. ¶¶ 273-300. Before the Court is the government's Motion to Dismiss Counts III, IV, and V and to Strike portions of the Second Amended Complaint under Federal Rules of Civil Procedure 12(b)(1)-(6) and 12(f). Gov't's Mot. to Dismiss in Part and to Strike ("Gov't's Mot.") at 1, Dkt. 32.

II. LEGAL STANDARDS

A. Motion to Dismiss

Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss a complaint when the court lacks personal jurisdiction over the defendant. Fed. R. Civ. P. 12(b)(2). "On such a motion, the plaintiff bears the burden of 'establishing a factual basis for the exercise of personal jurisdiction' over each defendant." Triple Up Ltd. v. Youku Tudou Inc., 235 F. Supp. 3d 15, 20 (D.D.C. 2017) (quoting Crane v. N.Y. Zoological Soc., 894 F.2d 454, 456(D.C. Cir. 1990)). To meet this burden, a plaintiff may not rely on conclusory allegations, see Triple Up Ltd., 235 F. Supp. 3d at 20, but rather "must allege specific facts connecting the defendant with the forum," Shibeshi v. United States, 932 F. Supp. 2d 1, 2 (D.D.C. 2013) (internal quotation marks omitted). "Ultimately, the Court must satisfy itself that it has jurisdiction to hear the suit . . . ." Triple Up Ltd., 235 F. Supp. 3d at 20-21 (internal quotation marks and citations omitted).

Rule 12(b)(3) of the Federal Rules of Civil Procedure allows a party to move to dismiss an action or claim for improper venue. Fed. R. Civ. P. 12(b)(3). Similarly, the federal venue statute, 28 U.S.C. § 1406(a), requires a court to "dismiss, or if it be in the interest of justice, transfer" a case that has been filed "in the wrong division or district." 28 U.S.C. § 1406(a). On a Rule 12(b)(3) motion, the moving party "must provide sufficient specificity to put the plaintiff on notice" of the potential defect, but "the burden remains on the plaintiff to establish that venue is proper." McCain v. Bank of Am., 13 F. Supp. 3d 45, 51 (D.D.C. 2014) (internal quotation marks omitted), aff'd sub nom. McCain v. Bank of Am. N.A., 602 F. App'x 836 (D.C. Cir. 2015).

When ruling on a Rule 12(b)(3) motion, "the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff." Herbert v. Sebelius, 925 F. Supp. 2d 13, 17 (D.D.C. 2013). But the Court need not "accept the plaintiff's legal conclusions as true," Wilson v. Obama, 770 F. Supp. 2d 188, 190 (D.D.C. 2011), or draw inferences unsupported by the specific factual allegations in the complaint, Herbert, 925 F. Supp. 2d at 17. In determining whether venue is proper, the Court may "consider material outside the pleadings, including undisputed facts evidenced in the record." Wilson, 770 F. Supp. 2d at 190

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff's well-pleaded factual allegations are "entitled to [an] assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). And the court construes the complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (...