United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion to dismiss filed by Defendants Ray Mabus and Mark Haskett. (ECF No. 7).
On February 27, 2015, Plaintiff Andre Bedgood commenced this action by filing a Complaint in this Court. (ECF No. 1). On March 3, 2015, Plaintiff filed an Ex Parte Application for Temporary Restraining Order. (ECF No. 3). On March 10, 2015, the Court issued an Order denying Plaintiff's Ex Parte Application for Temporary Restraining Order. (ECF No. 4).
On April 6, 2015, Defendants filed the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 7). On April 27, 2015, Plaintiff filed an opposition. (ECF No. 8). On May 4, 2015, Defendants filed a reply. (ECF No. 9).
II. Allegations of the Complaint
"On or about January 2014, the [Naval Criminal Investigations Service (NCIS')] required Plaintiff to attend a fitness for duty evaluation, asserting he was delusional.' The basis of the Agency asserted delusion' was that Plaintiff learned and disclosed to Agency that his wife... had been secretly engaging in swinger' activities... and been engaging in extramarital sexual relationships." (ECF No. 1 ¶ 26). "The Agency has refused to disclose the exact nature of the communications with the contracted evaluator, and refused to provide the underlying records it provided to the evaluator." Id. ¶ 28. "The Agency contracted evaluator concluded that Plaintiff needed psychological therapy and to be psychiatrically medicated. Plaintiff was not provided with this report or any of the materials that the evaluator had relied upon." Id. ¶ 30.
The Complaint alleges that Plaintiff was placed on administrative leave from January 23, 2014, through September 19, 2014, following the evaluation. Plaintiff attempted to provide evidence to a NCIS representative that would corroborate the report he made about his wife, but the NCIS representative would not accept or review Plaintiff's documents. The NCIS representative refused to review these corroborating documents because "another special agent of the Agency engaged in swinger activities in the same club as Plaintiff's wife." Id. ¶ 33.
On September 11, 2014, NCIS informed Plaintiff that he was required to go on enforced leave without pay, effective September 20, 2014, and continuing until May 2015. The Complaint alleges that Plaintiff has not been given any administrative remedies or documentation to oppose NCIS's findings and actions.
"On or about December 2, 2014, Defendants issued a Letter of Intent (LOI') to Plaintiff, indicating that they were proposing to revoke his security clearance." Id. ¶ 6. Plaintiff received the letter on December 29, 2014. Despite advising Plaintiff to "acquire all relevant documents necessary to respond to the LOI, " NCIS refused to provide Plaintiff with the records that NCIS relied on and Plaintiff requested. Id. ¶ 7-9. On January 5, 2015, Plaintiff requested a 45-day extension to respond to the LOI, and on January 19, 2015, Plaintiff filed a request pursuant to the Freedom of Information Act ("FOIA"). On January 22, 2015, NCIS responded and requested that Plaintiff resubmit his FOIA request on a specific form, and Plaintiff "immediately complied." Id. ¶ 12. On February 3, 2015, NCIS informed Plaintiff that it would take 8-12 weeks to respond to his FOIA request, without explanation for the delay. Despite having only until March 2, 2015 to respond to the LOI, Plaintiff has not received the records requested as of February 27, 2015 (the date the Complaint was filed).
The Complaint asserts the following claims for relief: (1) violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, (2) failure to comply with the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, and (3) violation of Fifth Amendment procedural due process. Plaintiff requests injunctive and declaratory relief, costs, and attorneys' fees.
III. Legal Standards
A. 12(b)(1) Standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal on grounds that the court lacks jurisdiction over the subject matter. Fed.R.Civ.P. 12(b)(1). The burden is on the plaintiff to establish that the court has subject matter jurisdiction over an action. Assoc. of Med. Colls. v. United States, 217 F.3d 770, 778-779 (9th Cir. 2000). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of ...