McNeil v. Duncan

PATRICK MCNEIL, Plaintiff, v. JEFFREY DUNCAN, et al., Defendants.

Civil Action No. 19-694 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 31, 2020

MEMORANDUM OPINION AND ORDER

Plaintiff, Patrick McNeil is a former employee of BAE Systems Corporation ("BAE"), a defense contractor, which, along with JRC Systems, Inc. ("JRC"), provided engineering and cybersecurity services to the Department of the Navy's Strategic Systems Program ("SSP"). Dkt. 1-1 at 6-7, 23 (Compl. ¶¶ 24, 26, 29, 97); Dkt. 11 at 6. McNeil brought this action in the Superior Court against one former employee and one current employee of the Department of the Navy and against two JRC employees, asserting claims for (i) tortious interference of a business relationship, (ii) intentional infliction of emotional distress, and (iii) defamation. Dkt. 1-1 at 6-24 (Compl. ¶¶ 23-107). He alleges that he is the victim of "an ongoing campaign of misleading and outright false reports to federal agencies," to BAE, and "to various [N]avy and contractor person[nel]," id. at 2 (Compl. Preamble), resulting in his termination from BAE in September 2017, id. at 12 (Compl. ¶ 48).

On March 12, 2019, the United States certified pursuant to 28 U.S.C. § 2679(d) that the former and current federal employees, Tony Benedict and Karon Joyner-Bowser, "were acting within the scope of their employment as deemed employees of the United States Department of Navy at the time of the alleged incidents," Dkt. 1-2 at 2, and, as a result, the United States has substituted itself as the party defendant in place of Benedict and Joyner-Bowser, see id.; 28 U.S.C. § 2679(d). That same day, the United States removed the action to this Court, Dkt. 1, and it now moves to dismiss the claims brought against it, arguing that the Court lacks subject-matter jurisdiction and that McNeil has failed to state a claim, Dkt. 7 at 1. The two defendants employed by JRC, Jefferey Duncan and Marco D'Eredita, also move to dismiss, arguing that they "are entitled to absolute immunity" for reporting information to the Navy relating to McNeil's security clearance and that, in any event, McNeil fails to state a claim upon which relief can be granted. Dkt. 11 at 1.

For the reasons explained below, the Court will GRANT the United States' motion to dismiss for lack of jurisdiction, will DENY without prejudice Duncan and D'Eredita's motion to dismiss, and will ORDER that the parties show cause why McNeil's claims against Duncan and D'Eredita should not be dismissed or remanded to the Superior Court for lack of federal jurisdiction.

I. BACKGROUND

Unless otherwise indicated, the following facts are derived from McNeil's complaint and, for the purposes of the United States' motion to dismiss, are taken as true.¹ See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) ("At this stage of the litigation, we must accept petitioner's allegations as true.").

McNeil is a former employee of BAE. Dkt. 1-1 at 6 (Compl. ¶ 24). At the time of his employment, BAE provided cybersecurity services to the Navy's Strategic Systems Program. Id. at 6, 23 (Compl. ¶¶ 26, 97); Dkt. 11 at 6. McNeil served as an information and technologymanager "tasked to work with" JRC on the SSP. Dkt. 1-1 at 7 (Compl. ¶ 29); id. at 23 (Compl. ¶ 97). JRC employed McNeil's now ex-wife, DeAnna Rhodes. Id. at 17 (Compl. ¶ 75).

Although not a model of clarity, McNeil's complaint focuses on a series of events that led BAE to terminate his employment. He brings claims against Vice Admiral Terry Benedict, SSP's then-director, Dkt. 1-1 at 3 (Compl. ¶¶ 6-7); Dkt 1-2 at 3 (Berman Decl.), and Karon Joyce-Bowser, the SSP Security Manager, Dkt. 1-1 at 4 (Compl. ¶¶ 9-10); Dkt. 1-2 at 4 (Poletis Decl.). McNeil also brings claims against two JRC employees, Jefferey Duncan, the Vice President of Systems Integration, and Marco D'Eredita, the Director of Facilities and Security. Dkt. 1-1 at 3 (Compl. ¶¶ 3-5); Dkt. 11 at 7. McNeil alleges that: (i) Duncan and D'Eredita banned McNeil from JRC facilities, thereby impairing his ability to perform his duties for BAE; (ii) D'Eredita contacted "the Navy and BAE in attempts to harm" his employment; and (iii) Duncan "supported the posting [of] immoral photos of" McNeil's wife "in an effort to cause [McNeil] emotional distress."² Dkt. 1-1 at 7, 9, 18 (Compl. ¶¶ 29, 36, 76).

McNeil's claims against the United States focus on two events. The first incident occurred after Duncan "supported the posting" of "immoral photos" of McNeil's wife on FetLife, a social networking website that serves people interested in the "BDSM" community.³ Dkt. 1-1 at 5, 18 (Compl. ¶¶ 20, 76). Following the publication of those photos, McNeil made a post "on his webpage (autobiography)" that "out[ed] members of the BDSM community." Dkt.1-1 at 8 (Compl. ¶ 32). Duncan, in turn, reported McNeil's post to Vice Admiral Benedict, id. at 10 (Compl. ¶ 39), and the Vice Admiral took "issue with" the post because it associated the Navy "with a website containing objectional activities," id. (Compl. ¶ 40); see also id. at 18 (Compl. ¶ 79) (alleging that the Vice Admiral compared the post to scandalous publicity). Seeking to "squash" McNeil's post, Vice Admiral Benedict "personally call[ed] [the] BAE Vice President and requested [McNeil's] removal . . . from his site or the program al[]together." Id. at 18 (Compl. ¶ 78). BAE investigated Vice Admiral Benedict's concern but concluded that McNeil had not "violat[ed] . . . any company policy," and "the matter was closed 2 days later as far as . . . BAE was concerned." Id. at 10 (Compl. ¶ 41). Notwithstanding that conclusion, however, the chain of events leading from the posting of the "immoral photos" to the Vice Admiral's contacting BAE "result[ed] [in] an event [being] logged against [McNeil's] security clearance" on the Joint Personnel Adjudication System ("JPAS"). Id. at 11 (Compl. ¶ 42).

The second incident occurred after McNeil's then-wife sought and obtained a protective order against him. See id. at 21-22 (Compl. ¶¶ 91, 94-95). McNeil alleges that, after that protective order was issued, D'Eredita, Duncan and Joyner-Bowser "generated and submitted a secret report to BAE security alleging [that] [McNeil] was involved in domestic matters involving an altercation (with his wife) and a protective order," id. at 21 (Compl. ¶ 91), and that they did so even though they "understood that the [p]rotect[ive] order . . . had no basis in law," id. at 22 (Compl. ¶ 94). That report, according to McNeil, "was the primary reason [he] was removed from the [N]avy [work] site in the District of Columbia." Id. at 11-12 (Compl. ¶ 45). McNeil alleges that as a result of all of the defendants' actions—including specific conduct by Vice Admiral Benedict and Joyner-Bowser—his "security clearance [was] suspended . . . [and] [he] was terminated from [BAE][.]" Id. at 12 (Compl. ¶¶ 47-48).

McNeil filed this action in the D.C. Superior Court. Dkt. 1-1. He asserts claims against all defendants for (1) tortious interference with a business relationship, id. at 6, and (2) intentional infliction of emotional distress, id. at 15, and a claim against Duncan, D'Eredita, and Joyner-Bowser for (3) defamation, id. at 20. The United States removed the case to this Court, Dkt. 1, and, that same day, certified pursuant to 28 U.S.C. § 2679(d) that Vice Admiral Benedict and Joyner-Bowser "were acting within the scope of their employment . . . at the time of the alleged incidents," Dkt. 1-2 at 2. The United States, accordingly, substituted itself as the party defendant in place of Vice Admiral Benedict and Joyner-Bowser. Dkt. 1 at 2; 28 U.S.C. § 2679(d). Two days later, the United States moved to dismiss for lack of subject-matter jurisdiction and for failure to state a claim. Dkt. 7. Duncan and D'Eredita have also moved to dismiss, arguing that they are "entitled to absolute immunity" from suit for informing the Navy about issues potentially affecting McNeil's security clearance and that, in any event, the complaint does not state a claim upon which relief can be granted. Dkt. 11.

II. LEGAL STANDARD

The United States moves to dismiss pursuant to Rule 12(b)(1). A motion to dismiss under Rule 12(b)(1) challenges the Court's jurisdiction to consider the claim and may raise a facial or factual challenge. "A facial challenge asks whether the plaintiff has pleaded facts sufficient to establish the court's jurisdiction, while a factual challenge asks the court to 'consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Lemma v. Hispanic Nat'l Bar Ass'n, No. 17-2551, 2019 WL 4043983, at *5 (D.D.C. Aug. 27, 2019) (quoting Herbert v. Nat'l Academy of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Whether a Rule 12(b)(1) motion to dismiss for lack of jurisdiction is facial or factual, the plaintiff bearsthe burden of establishing that the court has subject-matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561(1992).

The United States, Duncan, and D'Eredita also move to dismiss for failure to state a claim under Rule 12(b)(6), see Dkt. 7 at 1; Dkt 11 at 1, which tests whether the plaintiff has alleged a cognizable legal claim. As explained below, however, before reaching the merits of that motion, the Court must determine whether it has subject matter jurisdiction over the claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

III. ANALYSIS

A. The Westfall Certification

Because McNeil disputes that the federal employees "were acting within the scope of their employment," Dkt. 17 at 2, the Court first considers whether the United States was properly substituted as a Defendant in place of Vice Admiral Benedict and Joyner-Bowser. "When a federal employee is sued for . . . wrongful or negligent act[s], the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, ...