Abou-Hussein v. Mabus

• Decision Date: 17 July 2013
• Docket Number: Civil Action No. 12–0913 (RBW).
• Citation: 953 F.Supp.2d 251
• Parties: Hamdy Alex ABOU–HUSSEIN, Plaintiff, v. Raymond Edwin MABUS, Jr., Secretary, United States Department of Navy, and Naval Criminal Investigative Services Unknown Agents, Defendants.
• Court: U.S. District Court — District of Columbia

953 F.Supp.2d 251

Hamdy Alex ABOU–HUSSEIN, Plaintiff,

v.Raymond Edwin MABUS, Jr., Secretary, United States Department of Navy, and Naval Criminal Investigative Services Unknown Agents, Defendants.

Civil Action No. 12–0913 (RBW).

United States District Court,

District of Columbia.

July 17, 2013.

Hamdy Alex Abou–Hussein, N. Charleston, SC, pro se.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Plaintiff Hamdy Alex Abou–Hussein, proceeding pro se, filed this action seeking relief for the alleged actions of his employer, the Department of the Navy, see Complaint (“Compl.”) ¶¶ 56–61, and unknown agents of the Naval Criminal Investigative Services (“NCIS”), see id. at 1 (listing unknown NCIS agents in the caption). Currently before the Court is Defendant Raymond Edwin Mabus, Jr.'s (“the Secretary”) motion to dismiss this case pursuant to various provisions of Federal Rule of Civil Procedure 12(b) or, in the alternative, for summary judgment.¹ Motion to Dismiss or, in the Alternative, for Summary Judgment (“Def.'s Mot.”) at 1. After carefully considering the plaintiff's complaint, the Secretary's motion to dismiss, and all memoranda of law relating to that motion,² the Court concludes for the reasons that follow that it must grant in part and deny in part the Secretary's motion to dismiss the claims against him.

I. BACKGROUND

The following factual allegations are taken from the plaintiff's complaint, and are accepted as true for the purpose of resolving the Secretary's motion as required by Federal Rule of Civil Procedure 12(b). The plaintiff began working for his current employer, the Space and Naval Warfare Systems Command (“Command”) in Charleston, South Carolina, in September 2005. Compl. ¶¶ 1, 30. After settling an Equal Employment Opportunity Commission complaint against the Command in 2007, id. ¶ 37, the plaintiff was falsely accused of sexual harassment, id. ¶ 39, and was subjected to repeated “false espionage and terrorism allegations,” id. ¶ 37, “based on his Arabic national origin,” id. ¶ 57. During this time, the plaintiff “began to piece the puzzle together” of rampant contractfraud within the Command. Id. ¶ 40. After his supervisors noticed that he had begun “collecting financial and contracting information” showing the fraudulent conduct within the Command, members of the Command “humiliated him unceasingly with busy work, refused to fund his training, tried to have him shipped to combat zones for a year deployment away from Habeas Corpus, and [made] snide remarks behind his back,” id., eventually culminating in his transfer to the Command's facility in San Diego, id. ¶ 47, and a requirement that he obtain a higher-level security clearance for the purpose of “disqualify[ing] [him] from federal service,” id. ¶ 50. Following these events, the plaintiff traveled to the District of Columbia, where he “hand-carried an appeal for redress to all members of the Senate and House Armed Services Committees.” Id. ¶ 51.

In May 2008, the plaintiff filed a complaint with the Office of Special Counsel, which resulted in him being subjected to “intimidating death threats, humiliation, discrimination, and a conspiracy that needs a much longer complaint to detail,” including an unfounded criminal investigation by the NCIS. Id. ¶ 55. He subsequently filed actions in the United States District Court for the District of South Carolina against the Command under the False Claims Act and the Freedom of Information Act (“FOIA”). Id. ¶ 55. Beginning in 2009, the plaintiff also “repeatedly filed [m]ixed-[c]ase appeals with the Merit Systems Protection Board [ (“MSPB”) ] ... alleging contract fraud, conspiracy death threats, and retaliatory discrimination on account of his Arab origin and in retaliation for his whistleblowing.” Id. ¶ 8. The plaintiff received final decisions on two of his appeals from the MSPB in December 2010 and on April 4, 2012. Id. ¶¶ 12–13. A third appeal is currently pending before the MSPB. Pl.'s Opp'n at 15.

The plaintiff filed this action on June 5, 2012, alleging discrimination based on his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2 (2006), Compl. ¶¶ 56–57, retaliation resulting from his whistleblowing activity in violation of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (2006), Compl. ¶¶ 58–59, and retaliation resulting from the previous suits he filed against his employer under the False Claims Act, 31 U.S.C. § 3730(h) (2006), Compl. ¶¶ 60–61, for which he seeks an array of remedies, id. at pp. 19–20. The plaintiff also requests the Court to issue an order to the United States Department of Justice's Office of Information Policy “to publish an update on [its] website” regarding the plaintiff's previous suit against the defendant under the FOIA. Id. at 20.

The Secretary seeks dismissal of this action pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3), (4), (5), and (6). Def.'s Mot. at 1. Alternatively, the Secretary requests summary judgment pursuant to Federal Rule of Civil Procedure 56. Id. The plaintiff opposes the Secretary's motion, and indicates that he is also bringing claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for declaratory relief, Pl.'s Opp'n at 1, 4–5, and the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1964 (2006), Pl.'s Opp'n at 8–13. For the reasons explained below, the Court concludes that the Secretary is entitled to either dismissal or transfer under Rules 12(b)(1), (3), and (6), and that his motion can be resolved without consideration of the additional exhibits attached to the Secretary's motion. ³

II. STANDARDS OF REVIEW

A. Motion to Dismiss Under Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) “presents a threshold challenge to the [C]ourt's jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987). When reviewing such a motion, the Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.’ ” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (citation omitted). However, because “[f]ederal courts are courts of limited jurisdiction,” it is “presumed that a cause lies outside [their] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and “the [p]laintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction,” Hollingsworth v. Duff, 444 F.Supp.2d 61, 63 (D.D.C.2006). Accordingly, the “ ‘[p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13–14 (D.D.C.2001) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.1987)). Finally, in determining whether it has jurisdiction, the Court “may consider materials outside of the pleadings.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).

B. Motion to Dismiss Under Rule 12(b)(3)

In considering a motion to dismiss for lack of proper venue under Rule 12(b)(3), “the Court accepts the plaintiff['s] well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff['s] favor, and ... resolves any factual conflicts in the plaintiff['s] favor.” Quarles v. Gen. Inv. & Dev. Co., 260 F.Supp.2d 1, 8 (D.D.C.2003) (internal quotation marks and citation omitted); see also 2215 Fifth St. Assocs. v. U–Haul Int'l, Inc., 148 F.Supp.2d 50, 54 (D.D.C.2001) (stating that courts will grant a 12(b)(3) motion if “facts [are] presented that ... defeat [the] plaintiff's assertion of venue”) (citation omitted). “Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C.2003) (citations omitted).

C. Motion to Dismiss Under Rule 12(b)(6)

A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint “state[s] a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In making this assessment, a plaintiff receives the “benefit of all inferences that can be derived from the facts alleged,” Am. Nat'l Ins. Co., 642 F.3d at 1139 (internal quotation marks and citation omitted), and the Court “may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice,” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997) (footnote omitted). But raising a “sheer possibility that a defendant has acted unlawfully” fails to satisfy the facial plausibility requirement. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Rather, a claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While the Court must accept the plaintiff's factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those...