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Carolyn Martin v. Naval Criminal Investigative Service

August 1, 2012

CAROLYN MARTIN,
PLAINTIFF,
v.
NAVAL CRIMINAL INVESTIGATIVE SERVICE, ("NCIS"); MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE; MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE; MARINE CORPS RECRUIT DEPOT SAN DIEGO; GERALD MARTIN, "JERRY," NCIS SPECIAL AGENT; RAY MABUS, SECRETARY OF THE NAVY; JOHN DOES 1-7, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion to Dismiss the First Supplemental Complaint filed by the United States. (ECF No. 78).

I. Background

On September 9, 2010, Plaintiff initiated this action by filing a Complaint for Declaratory and Injunctive Relief and Damages. (ECF No. 1).

On December 17, 2010, Defendant Agent Gerald Martin ("Agent Martin") filed a Motion to Dismiss the claims of retaliation in violation of the First Amendment and violation of the Fourth Amendment. (ECF No. 31). On that same day, the United States filed a Motion to Dismiss the claims of retaliation in violation of the First Amendment, violation of the Fifth Amendment for unreasonable interference with employment, and violation of the First Amendment for interference with right of access to court on behalf of Defendants Naval Criminal Investigative Service, Mark D. Clookie; Wade Jacobson, Marine Corps West Field Office; Sean Sullivan, Marine Corps Recruit Depot San Diego, and Ray Mabus. (ECF No. 32).

On August 3, 2011, The Court issued an Order granting in part and denying in part the Motions to Dismiss. The Court dismissed Plaintiff's Fourth Amendment claim and request for damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and Plaintiff's claim for violation of Fifth Amendment due to unreasonable interference with employment.

On May 7, 2012, the First Supplemental Complaint was filed against the United States. (ECF No. 68).

On June 11, 2012, Defendant United States filed the Motion to Dismiss the First Supplemental Complaint. (ECF No. 78). On July 2, 2012, Plaintiff filed an Opposition. (ECF No. 80). On July 16, 2012, Defendant United States filed a Reply. (ECF No. 84).

II. Allegations of the Complaint

Plaintiff has worked as a federal contract investigator for the past ten years performing mostly personnel security investigations and, for the past four years, performing military criminal defense investigations. Plaintiff has conducted approximately 40 criminal defense investigations in the military justice system since 2006. As a criminal defense investigator, Plaintiff performs investigations including "interviewing the accused and the witnesses, conducting an investigation of the scene of the alleged crime, engaging in other background investigation, communicating with defense counsel about [Plaintiff's] findings, and writing reports for defense counsel." (ECF No. 1 at ¶ 21). Plaintiff "often testifies to bring evidence before the court [and] sometimes assists the defense in post-trial matters ...." Id. Plaintiff's military criminal defense investigations "have enabled her clients' attorneys to undermine prosecution testimony in courts-martial in a number of cases." Id. at ¶ 22.

"NCIS retaliated against [Plaintiff] because she is a zealous, effective defense investigator." Id. at ¶ 2. "Since around June 2009, military law enforcement personnel, including NCIS Special Agent Martin, an unknown agent ... and various Military Police ... have harassed and intimidated [Plaintiff] on account of her defense investigations." Id. at ¶ 26.

On June 29, 2009, Plaintiff's vehicle was pulled over by four Military Police Officers as she left the parking lot of the Legal Services Support Section-Echo in Camp Pendelton for failing to display a California vehicle registration sticker. One of the Military Police "acknowledged that her vehicle displayed a valid sticker ... demanded [Plaintiff's] identification and credentials and eventually issued a warning citation." Id. at ¶ 27.

On June 30, 2009, Plaintiff's vehicle was pulled over as she entered Camp Pendelton, although she had "entered Camp Pendelton hundreds of times previously and had never previously been pulled over," and a Military Police Officer asked for her identification. Id. at ¶ 28. "After [Plaintiff] produced her driver's license from inside her Defense Intelligence Agency credential holder, she was allowed to leave." Id.

On July 23, 2009, a Military Police vehicle and an unmarked car pulled Plaintiff's vehicle over as she was leaving the Legal Services Support Section-Echo in Camp Pendelton. The Military Police officer "initially said that he had clocked [Plaintiff] speeding, although he later said someone had called to tell him that she was speeding." Id. at ¶ 29. "It quickly became clear to [Plaintiff] that the allegation of speeding was a pretext for interrogating [Plaintiff] about her credentials." Id. at ¶ 30. "A male voice from the unmarked car" demanded Plaintiff's Defense Intelligence Agency credentials. Id. Two more Military Police vehicles arrived and a Military Police Officer asked Plaintiff whether she had posed as an NCIS officer or used NCIS credentials. The Military Police Officer asked for Plaintiff's permission to search her person and vehicle and Plaintiff "denied consent to search and requested an attorney." Id. at ¶ 32. The Military Police Officer "responded that she was not under arrest, but he told [Plaintiff] that she was not free to leave and that he would not allow her to call an attorney." Id. The Military Police Officer made a phone call and five armed Military Police Officers "surrounded [Plaintiff] on all sides." Id. at ¶ 34. The Military Police Officer told Plaintiff that "a search warrant for her vehicle and person was on its way." Id. After being detained for one hour and forty-five minutes, Plaintiff told the Military Police Officer that they could search her car.

"NCIS Special Agent Martin arrived soon after the search with another marked [Military Police] vehicle." Id. at ¶ 37. "Agent Martin told [Plaintiff] that he had received a call from a [Military Police Officer] reporting that [Plaintiff] had presented NCIS credentials at the Camp Pendelton gate." Id. Plaintiff "denied this false allegation." Id.

The Military Police Officer told Plaintiff that he had called the Defense Intelligence Agency and they directed him to confiscate her Defense Intelligence Agency credentials. The Military Police Officer took Plaintiff's Defense Intelligence Agency credentials, which Plaintiff used to perform her contract investigation work, over Plaintiff's protest. The Military Police Officer "turned the credentials over to Agent Martin." Id. at ¶ 38. Plaintiff was escorted off the military base after being detained for a total of two hours.

On July 27, 2009, Computer Science Corporation, the sponsoring agent for Plaintiff's Customs and Border Patrol credentials, which Plaintiff used to perform her contract investigation work, recalled Plaintiff's credentials.

On August 4, 2009, the Military Police Officer who had previously detained Plaintiff on July 23, followed Plaintiff's vehicle out of a restaurant parking lot in Carlsbad, but Plaintiff "made some unexpected turns" and the Military Police Officer "apparently lost ...


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