Kielczynski v. U.S. C.I.A.

• Decision Date: 20 February 2001
• Docket Number: No. 00 CV 539.,00 CV 539.
• Citation: 128 F.Supp.2d 151
• Parties: Andrzej KIELCZYNSKI a/k/a/ Joseph Barak, Plaintiff, v. THE UNITED STATES CENTRAL INTELLIGENCE AGENCY, George Tenet, individually and in the capacity of the Director of the United States Central Intelligence Agency, Defendants.
• Court: U.S. District Court — Eastern District of New York

128 F.Supp.2d 151

Andrzej KIELCZYNSKI a/k/a/ Joseph Barak, Plaintiff, v. THE UNITED STATES CENTRAL INTELLIGENCE AGENCY, George Tenet, individually and in the capacity of the Director of the United States Central Intelligence Agency, Defendants.

No. 00 CV 539.

United States District Court, E.D. New York.

February 20, 2001.

Janusz Andrzejewski, New York City, for Plaintiff.

Sandra L. Levy, United States Attorney, Civil Division, New York City, for Defendants.

Memorandum & Order

GLASSER, District Judge.

Defendants the United States Central Intelligence Agency ("CIA") and George Tenet ("Tenet") are moving to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. Plaintiff Andrzej Kielczynski a/k/a/ Joseph Barak has cross-moved to add the United States as a defendant and to add a claim for an injunction and/or a stay barring the United States from deporting plaintiff from the United States. For the following reasons, defendants' motion should be granted and plaintiff's cross-motion should be denied.

Background

The Amended Complaint states that plaintiff was recruited as a spy by the CIA in 1985. (Amended Complaint, ¶ 11)¹ At the time, plaintiff was a citizen and resident of Israel, where he served as a member of several political committees, including the Likud Party Central Committee, the Committee for Security and Foreign Affairs and the Committee for Police and Internal Affairs. (¶ 13) Plaintiff signed a contract with the CIA in October 1985, pursuant to which he was to convey classified information to the CIA concerning Israel in exchange for a monthly salary of approximately $3,000 per month, as well as reimbursement of costs and expenses. In addition, plaintiff was to receive United States citizenship and "all of its benefits," including health care insurance and retirement benefits. (¶ 14) Plaintiff was never given a copy of the contract (¶ 12), and its duration was never specified. (¶ 12)

Plaintiff alleges that he performed all of the services contemplated in the alleged secret contract with the CIA from time of his recruitment until 1991. Plaintiff avers that he provided the CIA with information "classified as of the most important value" concerning the Jonathan Pollard affair, the location of Israel's atomic weapons and Israel's use of aid advanced by the United States. (¶¶ 17, 18) Plaintiff further contends that "due to the highly stressful nature" of his work for the CIA, he developed a serious case of diabetes, which was diagnosed by a physician employed by the CIA for the first time in 1991. (¶ 19) That same year, plaintiff contends that the CIA "fraudulently terminated [its] contract" with him. (¶ 16)

Plaintiff next contends that the CIA, after learning of his serious medical condition, arranged a meeting with plaintiff in New York in which agents who spoke no Polish or Hebrew (the only languages in which plaintiff was fluent) urged plaintiff to sign a document that purportedly acknowledged the transfer of $50,000 to plaintiff for treatment of his diabetes. (¶¶ 20-22) Plaintiff, who was not represented by an attorney at the time, signed the document, but never received a copy of it. (¶ 23) Not long after this meeting, plaintiff was forced to return to his home in Israel because he was tipped off that Israeli security services were about to learn of his espionage activities. (¶ 25) Plaintiff did not remain in the United States, despite the fact that the CIA purportedly had promised him citizenship in this country, but instead returned to his native country of Poland. (¶ 26) From the time of this visit to the United States, plaintiff was not able to return to work due to his medical condition. (¶ 41)

In April 1992, plaintiff submitted a notice of claim to the United States Ambassador in Warsaw, Poland, in which he requested $300,000.00 in compensation for his loss of health and retirement pension payments in the amount of $2,000 per month. (¶ 27) Not having obtained a response from the CIA, plaintiff again approached the embassy in Poland with written notices of claim in May 1992 and in June 1993. (¶¶ 28, 29) In 1995, plaintiff visited the United States on a visa he had previously obtained from the CIA in connection with his espionage activities. (¶ 30) While in the United States, he hired an attorney who attempted to pursue plaintiff's loss of health and retirement pension claims, as well as his contract claims, with the CIA. This attorney managed to arrange a meeting between plaintiff and an unidentified member of the CIA and a later meeting with the Associate General Counsel of the CIA, neither of which produced the results plaintiff desired. (¶¶ 31-34) Plaintiff then hired a new attorney who made a Freedom of Information Act request for documents associated with the CIA's alleged contract with plaintiff and payments made pursuant to that contract. (¶ 35) The CIA denied this request, however, on the grounds that the information requested would be classified. After the summer of 1995, plaintiff returned to Poland, where he remained until 1998, at which time he and his wife entered the United States and requested political asylum. (¶ 36) Plaintiff was subsequently placed in deportation proceedings, which he has since appealed before the Board of Immigration Appeals. (¶ 43)² Sometime after arriving in the United States, plaintiff retained a third attorney who also attempted to contact the CIA on plaintiff's behalf but received no response. (¶ 37) Plaintiff's fourth attorney, who currently represents him, also submitted two notices to the CIA on plaintiff's behalf, but received no response. (¶ 38)

In sum, plaintiff contends that over the past seven years, he has tried to no avail to compel the CIA to adjudicate his claim for compensation. Throughout his extensive efforts, plaintiff acknowledges that the CIA never advised him of its decision concerning his claim and did not advise him about the procedure for filing and appealing claims. (¶ 40)

Plaintiff filed the original complaint in this action on January 7, 2000. Defendants served plaintiff with a Motion to Dismiss the complaint on July 11, 2000 and, instead of opposing that motion, on August 24, 2000, plaintiff filed an Amended Complaint. The relief requested in the Amended Complaint consists of: "(a) a preliminary injunction "requiring the CIA to provide the Plaintiff with financial support on a monthly basis equal to the financial support last supplied to Plaintiff by the CIA during a time when Plaintiff was employed by the CIA[,]" and a permanent injunction providing the same relief until such time as plaintiff is "provided a constitutionally adequate internal CIA hearing on his claim" and until defendants "fulfill their constitutional duty to protect plaintiff's personal security, adjust Plaintiff's tort claim and or ... provide for Plaintiff's basic needs"; (b) a declaratory judgment that the CIA "failed to provide a constitutionally adequate process for adjudicating Plaintiff's protected interests"; that it must "provide constitutionally adequate procedures for the conduct of internal confidential administrative proceedings related to adjudication of former spies, agents and/or defectors grievances" which include, at a minimum, written procedures, security clearances, access to certain unclassified information and classified information and persons, an opportunity to appear at a hearing, call and cross-examine witnesses and present evidence, a written decision containing findings of facts and conclusions of law, a right to seek reconsideration of any decision, and an independent and timely review; and that the Totten doctrine does "not apply to internal confidential administrative hearings conducted by the CIA; (c) an order of mandamus compelling defendant Tenet to adopt internal CIA regulations and procedures in accordance with any declaratory judgment ordered by this court and conduct a hearing of plaintiff's claims in accordance with those regulations; and, (d) an order compelling payment of $5,000,000 in compensatory and consequential damages" arising from plaintiff's claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). (Amended Complaint, 15-20)

Now before the court is defendants' motion to dismiss the Amended Complaint for lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P., and for failure to state a claim upon which relief may be granted under Rule 12(b)(6), Fed.R.Civ.P., as well as plaintiff's cross-motion for leave to amend the Amended Complaint to add the United States as an additional defendant and to add a claim for a preliminary and/or permanent injunction barring the United States from deporting plaintiff and his wife to Israel.

Discussion

I. Defendants' Motion to Dismiss Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) & Fed.R.Civ.P. 12(b)(6)

Because the present motion is one to dismiss pursuant to Rules 12(b)(1) and (6), Fed.R.Civ.P., this court simply assesses the legal sufficiency of the Amended Complaint. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991). All material facts well pleaded in the Amended Complaint will be accepted as true, and all reasonable inferences will be made in the light most favorable to the plaintiff. Id.; see also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief will a motion to dismiss be granted. Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

A. Fed.R.Civ.P. 12(b)(1)

The basis for federal jurisdiction pleaded in the Amended Complaint is 28 U.S.C. §§ 1331, 1346(b), 1361 and 2201. In any suit in which the United States is a defendant, a waiver of sovereign immunity with respect to the claim asserted is a prerequisite to subject matter jurisdiction. Up State Federal...