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Andrew G. Watters v. Robert S. Mueller Iii


August 8, 2012


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


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


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27 upon an extensive background investigation and discussed the grounds under which the 28 appointment may be rescinded.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 On July 1, 2009, plaintiff's conditional appointment was rescinded after 10 he was adjudicated "not suitable" for criminal conduct based on the SACU Special Agent's report.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


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 statute of limitations and should be dismissed. See Dkt. No. 13

Title 28 U.S.C. section 1361 provides that "[t]he district courts shall have original 15 jurisdiction of any action in the nature of mandamus to compel an officer or employee of the 16 F.3d 1078, 1084 (9th Cir. 2003). "Mandamus is an extraordinary remedy and is available to 18 compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; 19

(2) the official's duty is non-discretionary, ministerial, and so plainly prescribed as to be free from 20 doubt, and (3) no other adequate remedy is available." Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 21

The FBI argues that this court lacks mandamus jurisdiction because plaintiff has not

23 established a mandatory, non-discretionary duty owed to him by the FBI. A Rule 12(b)(1) attack 24 on the court's jurisdiction may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 25

In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual

attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. . .

16 at 5:5-16. Thus, the court's analysis is limited to the Mandamus Act claim. 14 United States or any agency thereof to perform a duty owed to the plaintiff." Kildare v. Saenz, 325 17 1998). 1039 (9th Cir. 2004). The Ninth Circuit has explained the differences as follows:

In resolving a factual attack on jurisdiction, the district court may review evidence

beyond the complaint without converting the motion to dismiss into a motion for summary judgment. The court need not presume the truthfulness of the plaintiff's

allegations. Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before

the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Id. (citations omitted). 5

6 policy that provides automatic appeal rights for plaintiff. Plaintiff relies on inconclusive evidence, 7 including an internal document with spaces for "Date of Board" and "Board's Decision," another 8 internal document in which a Program Manager was instructed to "explain [the] appeal process" to 9 plaintiff, and the experiences of other discontinued applicants with whom plaintiff has 10 communicated. While this evidence may tend to show that an appeals board exists and that certain

applicants have had their appeals heard, there is no indication that any particular appeals process is 12 mandatory in every case. The FBI, to support its position that no such right to appeal exists, 13 submitted the declaration of Mark A. Gant, Section Chief of the Initial Clearance Section in the 14

Security Division. See Dkt. No. 18-1. Mr. Gant, however, admits that the Internal Clearance 15

Section has developed internal procedures for handling appeals like plaintiff's and has established 16 an Appeals Board "to meet periodically and consider appeals." Id. ¶ 7. And, while Mr. Gant 17 attests in conclusory fashion that the internal procedures "did not grant any right or entitlement to 18 any individual, and did not impose any mandatory, non-discetionary duty upon any FBI official to 19 convene an appeals board to review an applicant's appeal of non-suitability," id., he provides no 20 actual details about what the procedures do involve. Thus, on the present factual record, the court 21 is unable to determine whether a mandatory appeals process exists. 22

23 court must still resolve whether such internal policies can give rise to a mandamus claim. In 24

Workman v. Mitchell, 502 F.2d 1201, 1206 (9th Cir. 1974), the court explained that "mandamus 25 jurisdiction was improperly invoked" in an earlier case, Jarrett v. Resor, 426 F.2d 213 (9th Cir. 26 1970), "because there was no allegation that defendants had failed to perform any ministerial duty, 27 be it established by regulation, statute or constitutional provision." See also Chevron, U.S.A. Prod. 28

In their papers, the parties present a factual dispute about whether or not the FBI has a Even if the FBI had an internal policy granting applicants a right to appeal, however, the Co. v. O'Leary, 958 F. Supp. 1485, 1500 (E.D. Cal. 1997) (finding defendant "has no clear, non-2 discretionary obligation to take affirmative action which is positively commanded by an explicit 3 statutory, regulatory, or constitutional mandate"). Such authority tends to suggest that mandamus 4 claims are limited to the enforcement of regulations, statutes, and constitutional provisions. 5

6 and internal policies or handbooks, finding that the latter are not binding upon the government. 7

In contexts other than a mandamus claim, courts have distinguished between regulations

The Supreme Court, in explaining that agency interpretations contained in opinion letters are 8 entitled to less deference than formal regulations, has stated that such interpretations, "like 9 interpretations contained in policy statements, agency manuals, and enforcement guidelines, all . . . 10 lack the force of law." Christensen v. Harris County, 529 U.S. 576, 587 (2000).

In United States v. Fifty-Three Eclectus Parrots, 685 F.2d 1131, 1135 (9th Cir. 1982), the court recognized that "an agency can create a duty to the public which no statute has expressly 13 created," but found that Customs had not done so in that case. The court noted there was no 14 applicable regulation at the relevant time, only the U.S. Customs Manual, which was "an internal 15 agency guide for Customs offices . . . not intended for the use of the general public." Id. at 1135-16

36. Under Ninth Circuit precedent, not even "all agency pronouncements which find their way to 17 the public can be considered regulations enforceable in federal court." Id. at 1136. Rather, they 18 must (1) "prescribe substantive rules-not interpretive rules, general statements of policy or rules 19 of agency organization, procedure or practice" and (2) be promulgated pursuant to a statutory grant 20 of authority and in conformance with procedural requirements imposed by Congress. Id. The 21 court concluded that Customs' internal procedure "was not intended as a substantive rule, and was 22 not entitled to the force and effect of law against the government." Id. 23

24 court found that the Social Security Administration's Hearings, Appeals, and Litigation Manual 25

("HALLEX") does not have the force and effect of law because it is "strictly an internal guidance 26 tool, providing policy and procedural guidelines to ALJs and other staff members" and "does not 27 prescribe substantive rules." The court also found that "[f]urther evidence that this is a purely 28 internal manual can be seen in the fact that HALLEX was not published in either the Federal

Applying the same standard in Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000), the Register or the Code of Federal Regulations, indicating that the manual was not promulgated in 2 accordance with the procedural requirements imposed by Congress for the creation of binding 3 regulations and was not intended to be binding." Id. at 869; cf. Morton v. Ruiz, 415 U.S. 199, 235 4 (1974) (holding agency could not impose substantive rule of eligibility without "comply[ing], at a 5 minimum, with its own internal procedures," which required publication in the Federal Register). 6

7 appeal heard by the FBI. Plaintiff relies solely on what he alleges is the FBI's internal policy. 8

Here, plaintiff has not identified any statute or regulation that affords him a right to have his Compl. ¶ 53. As noted above, Mr. Gant admits that the FBI has internal procedures "designed to 9 facilitate its administrative handling of appeals"; however, these procedures are not public. Dkt. 10

No. 18-1 ¶ 7. Thus, at best, plaintiff is relying on non-public, internal guidance similar to those found to be not binding in Fifty-Three Eclectus Parrots and Moore. In addition, based on Mr. Gant's description, it does not appear that the FBI's policy prescribed substantive rules rather than 13 simply creating rules of agency procedure. 14 At least one court has applied Moore and Christensen to hold that HALLEX and another

Social Security Administration manual do not impose a duty sufficient to warrant mandamus relief. 16 See Lowry v. Massanari, 2001 WL 34047027 at *4-5 (D. Or. 2001). In contrast, the parties have 17 not cited and the court has not found any case imposing a non-discretionary duty based on internal 18 agency policies. Thus, as a matter of law, plaintiff has not presented an adequate basis for his 19 mandamus claim. 20

Plaintiff argues that leave to amend should be granted "now that the Government has

21 indicated it will maintain its unreasonable position about a policy and process that the Government 22 does not deny and cannot deny exist." Dkt. No. 16 at 25:20-23. However, as discussed above, 23 plaintiff's claim fails even if the FBI has an internal policy as alleged and regardless of whether the 24

FBI admits or denies its existence. Plaintiff has had multiple opportunities to identify a statute or 25 regulation that supports his claim but has failed to do so. Thus, plaintiff has not demonstrated a 26 basis on which he could amend to state a claim, and it appears that amendment would be futile. 27


For the foregoing reasons the court grants the FBI's motion to dismiss and dismisses the 3 complaint with prejudice. 4 5 6

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