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Andrew G. Watters v. Robert S. Mueller Iii

August 8, 2012

ANDREW G. WATTERS,
PLAINTIFF,
v.
ROBERT S. MUELLER III, IN HIS OFFICIAL CAPACITY; UNITED STATES DEPARTMENT OF JUSTICE; DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Ronald M. Whyte United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING MOTION TO 12 DISMISS [Re Dkt No. 14]

Defendants ("the FBI") filed the instant motion against plaintiff Andrew Watters ("plaintiff") to dismiss claims related to the rescission of plaintiff's conditional offer of 19 employment for a Special Agent position with the FBI. The court has heard the arguments of the 20 parties and considered the papers submitted. For the reasons set forth below, the court grants the 21 motion. 22

I. BACKGROUND

Plaintiff submitted an online application for employment as a special agent with the FBI on December 2, 2008. Compl. ¶ 34. After passing two phases of preliminary examinations, plaintiff 25 received and accepted conditional appointment as a Special Agent by letter on May 6, 2009. Id. 26 ¶ 37. The letter of conditional appointment informed plaintiff that his appointment was conditional 27 upon an extensive background investigation and discussed the grounds under which the 28 appointment may be rescinded. Id. ¶ 18. In completing the background investigation, plaintiff noted on one of the forms that he "was present in May 2008 when two friends from college 2 engaged in minor unlawful activity." Id. ¶ 47. 3

4 contacted plaintiff by telephone to discuss plaintiff's background investigation forms. Id. ¶ 46. The 5 special agent read aloud to plaintiff a description of the event that had been recorded on the forms 6 and plaintiff responded that "it was true." Id. ¶ 47. However, plaintiff alleges, despite this 7 conversation, the SACU Special Agent falsely stated that plaintiff, who is an attorney, "actively 8 participated in the commission of a crime by negotiating an unlawful transaction as the attorney for 9 the participants." Id. ¶ 48. On July 1, 2009, plaintiff's conditional appointment was rescinded after 10 he was adjudicated "not suitable" for criminal conduct based on the SACU Special Agent's report.

September 25, 2009. Id. ¶ 51. As plaintiff notes in his complaint, the action was later dismissed for 14 lack of jurisdiction on December 18, 2009. Id. Administrative Judge Richard Slizeski's order 15 informed plaintiff of his ruling and his rights for further appeal, including to the MSPB and to the 16 United States Court of Appeals for the Federal Circuit. See Dkt. No. 15, Ex. C.*fn1 Plaintiff did not 17 directly seek further proceedings before the MSPB or Federal Circuit. In response to plaintiff's 18 requests for the FBI to review his non-selection, the FBI sent plaintiff a letter on February 26, 2010 19 indicating that he had exhausted his options within the agency to appeal his non-selection and that 20 the FBI considered the matter closed. See Compl. ¶ 58; Dkt. No. 15, Ex. B.*fn2 From there, plaintiff 21 "revised his appeal. and prepared to send it higher in the FBI chain of command in hopes of 22 obtaining a review board hearing." Id. ¶ 59. 23

10, 24, but plaintiff incorporated the February 26, 2010 letter into his complaint by reference. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) ("Even if a document is not attached to 28 a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or document forms the basis of plaintiff's claim.").

On June 25, 2009 an individual from the FBI's Special Agent Clearance Unit (SACU) Id. ¶ 50.

Plaintiff appealed his non-selection to the Merit Systems Protection Board ("MSPB") on

On April 10, 2012, plaintiff filed the instant action seeking relief under the Mandamus Act, 28 U.S.C. § 1361, and the Privacy Act, 28 U.S.C. § 552a. As to his mandamus claim, plaintiff 3 alleges that "the FBI has an internal policy that gives its applicants the right to appeal negative 4 suitability determinations." Id. ¶ 53. The thrust of plaintiff's argument is that "when an applicant 5 appeal is received, the FBI official who receives it has a non-discretionary duty to refer the appeal 6 to the Adjudication Review Board for a decision." Id. ¶ 54. The FBI filed a Motion to Dismiss on 7

June 25, 2012 contending that there is not a mandatory, non-discretionary duty to convene a board 8 to hear a failed applicant's appeal of his or her non-selection as plaintiff has alleged. 9

II. DISCUSSION

The FBI moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of claim. Plaintiff concedes that subject matter jurisdiction, and Rule 12(b)(6), for failure to state a 12 his Privacy Act claim is barred by the ...


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