M.K. v. Tenet

• Decision Date: 23 March 2000
• Docket Number: No. CIV.A. 99-0095 (RMU).,Doc. No. 18.,CIV.A. 99-0095 (RMU).
• Citation: 99 F.Supp.2d 12
• Parties: M.K., et al., Plaintiffs, v. George TENET, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 12

99 F.Supp.2d 12

M.K., et al., Plaintiffs, v. George TENET, et al., Defendants.

No. CIV.A. 99-0095 (RMU).

Doc. No. 18.

United States District Court, District of Columbia.

March 23, 2000.

COPYRIGHT MATERIAL OMITTED

Roy Walter Krieger, Paleos & Krieger, P.C., Washington, DC, for Plaintiffs.

Sylvia T. Kaser, U.S. Dept. of Justice, Civ. Div., Washington, DC, for Defendants.

MEMORANDUM OPINION

URBINA, District Judge.

Granting in Part and Denying in Part the Defendants' Motion to Dismiss

I. Introduction

Eight employees of the CIA brought an as-yet-uncertified class action against the CIA, CIA Director George Tenet, and thirty unnamed "John and Jane Does" (collectively "the CIA"). The plaintiffs allege that the CIA violated their constitutional rights to "liberty, due process, access to the courts and to receive effective assistance of counsel under the First, Fourth, Fifth and Sixth Amendments" and violated the Privacy Act. (Am.Compl. ¶¶ 103, 107, 115-120) The plaintiffs seek monetary damages and declaratory and injunctive relief, as well as attorney fees and litigation costs. This matter comes before the court on the defendants' motion to dismiss various claims on the following grounds: [1] under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted; [2] under Rule 12(b)(1), for lack of subject-matter jurisdiction; [3] under Rule 12(b)(2), for lack of personal jurisdiction; and [4] under Rule 12(b)(4), for insufficiency of process. For the reasons which follow, the court will grant in part and deny in part the defendants' motion.

II. Background¹,²

Eight employees of the CIA brought suit, on behalf of themselves and a class³ of persons similarly situated, against the CIA, CIA Director George Tenet, and thirty unnamed "John and Jane Does," for violation of their constitutional rights to "liberty, due process, equal protection, access to the courts and to receive effective assistance of counsel under the First, Fourth, Fifth and Sixth Amendments," and for violations of the Privacy Act. (Am. Compl. ¶¶ 103, 107)

A. Plaintiff M.K.

According to the plaintiffs, the CIA reprimanded plaintiff M.K. and denied her benefits for a security lapse which, she claims, was not her fault. M.K. retained attorney Roy W. Krieger, who also represents the plaintiffs in the instant action, to advise and represent her in the matter. The CIA allegedly prevented Mr. Krieger from obtaining documents that he believed he needed to effectively represent M.K. The CIA denied access to the documents pursuant to an internal policy notice that limits access to CIA facilities by employees' counsel and prohibits CIA employees from disclosing any document containing official information to their lawyers without prior approval from the CIA Office of General Counsel. The prohibition extends to un classified information which the CIA otherwise permits its employees to disclose to the public. (Am. Compl. ¶¶ 18-20 & n. 7) The CIA denied Mr. Krieger's requests for access to certain documents,⁴ impairing his ability to effectively represent M.K. and thereby injuring M.K.'s ability to protect her legal rights. (Am.Compl.¶¶ 17, 21)

B. Plaintiffs Conway, Tilden, C.T., Mitford and R.B.

In addition to M.K., Mr. Krieger has previously represented several of the other plaintiffs in matters pertaining to their employment with the CIA. Specifically, Mr. Krieger represented plaintiffs Conway, Tilden, C.T. and Mitford in their claims of employment discrimination. Like M.K., these four plaintiffs complain that the CIA has denied Mr. Krieger access to documents and information that he needed to effectively represent them—either by denying his requests for access (in the case of plaintiffs M.K., Conway⁵, C.T.⁶ and Mitford⁷) or by preventing the plaintiffs themselves from obtaining the information (in the case of plaintiff Tilden⁸).

In addition to denying Mr. Krieger access to information he needed to effectively represent these plaintiffs, the plaintiffs allege, the CIA impeded them from getting effective legal assistance by other means:

— In late 1997, CIA personnel interviewed plaintiff Conway as part of a counterintelligience investigation with the potential for criminal charges. Ms. Conway requested that she be allowed to have counsel present at the interview, but the CIA refused. Following the interview, the CIA placed a memorandum criticizing Conway in her personnel files, causing her to be denied a promotion. (Am.Compl.¶¶ 22-27)

— Plaintiff R.B. was subject to several polygraph examinations over the course of six years (1991-1996). R.B. failed one or more of these examinations. In response, the CIA revoked R.B.'s security clearances and placed him on administrative leave. Ultimately, R.B. was forced to retire as soon as he became eligible for retirement. Over the course of these six years, the CIA insisted that R.B. not retain a lawyer to represent him in these matters. (Am. Compl.¶¶ 73-79)

— The defendants intercepted and recorded a telephone conversation between Mitford and Mr. Krieger, his attorney. (Am.Compl.¶ 83)

The defendants have moved to dismiss the plaintiffs' claims on the following grounds: [1] under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted; [2] under Rule 12(b)(1), for lack of subject-matter jurisdiction; [3] under Rule 12(b)(2), for lack of personal jurisdiction; and [4] under Rule 12(b)(4), for insufficiency of process.

III. Legal Standards

A party moving for dismissal under Federal Rule of Civil Procedure 12(b)(6) has the burden of proving that the nonmovant has failed to state a claim upon which relief can be granted. To prevail, the movant must show "beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Chandler v. D.C. Dep't of Corrections, 145 F.3d 1355, 1360 (D.C.Cir. 1998); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ("A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.") For purposes of determining whether a complaint states a cause of action upon which relief can be granted, the averments in the complaint are taken as true, and the plaintiff is given the benefit of any doubts and of all reasonable inferences that can be drawn from the facts alleged. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994); Gregg v. Barrett, 771 F.2d 539, 547 (D.C.Cir.1985); Shear v. National Rifle Ass'n, 606 F.2d 1251, 1253 (D.C.Cir. 1979). The court is not required, however, to accept inferences unsupported by the facts alleged, nor need it accept legal conclusions that are cast as factual allegations. See Kowal, 16 F.3d at 1276; United States v. BCCI Holdings, 980 F.Supp. 21, 26 (D.D.C.1997). Bare conclusions of law and sweeping and unwarranted averments of fact will not be deemed admitted. See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987).

The legal standards applicable to the other grounds for dismissal asserted shall be explicated to the extent necessary as the court addresses those grounds.

IV. Analysis

A. Should the claims against the thirty John/Jane Doe defendants be dismissed for failure to serve process on them?

The complaint lists as defendants thirty anonymous persons: "John & Jane Does, Numbers One Through Thirty (Names and Addresses Unknown or Classified)" ("the Doe defendants"). (Am. Compl. at 1 & ¶ 10) The defendants argue that these persons have not been properly identified or served, and that the claims against them must therefore be dismissed. (Mot. at 51-53) The court construes this portion of defendants' motion as a motion to dismiss for insufficiency of process under Rule 12(b)(4) and Rule 4(m).⁹

Rule 4(c) requires that "[a] summons shall be served together with a copy of the complaint." Fed.R.Civ.P. 4(c). Rule 4(m) provides that:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed. R. Civ.P.4(m); see, e.g., Claasen v. Brown, 1996 WL 79490, *2 (D.D.C.1996) (dismissing action for plaintiffs' failure to serve process within the time provided under Rule 4(m)). The plaintiffs have yet to serve process on the Doe defendants, and it has been more than eight months since the filing of their amended complaint, roughly twice the 120 days that the Rule 4(m) permits as a matter of course.

The plaintiffs argue that the claims against the Doe defendants should not be dismissed because "the identity of certain Doe defendants must await discovery," while the identity of others "is not disclosed primarily for security reasons." (Opp. at 44 n. 50) The court reads this as an argument that the plaintiffs have good cause for having failed to serve the thirty Doe defendants within the time limits prescribed by Rule 4(m). See, e.g., Moore v. Agency for Intern. Development, 994 F.2d 874, 877 (D.C.Cir.1993) ("two attempts to serve the defendants who had notice of the suit and were represented by counsel, coupled with the government's long delay in responding to the complaint, constitute good cause to satisfy [former] Rule 4(j)"); Henderson v. United States, 517 U.S. 654, 661 & n. 9, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (noting that Rule 4(j) has been renumbered 4(m)).

The court recognizes that there may be a legitimate need for secrecy with respect to the identities of...