                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


Joseph Majid,

           Plaintiff,

     v.

Federal Bureau                        Civil Action No. 16-731 {GK)
Of Investigation, et al.

           Defendant.


                           MEMORANDUM OPINION

     Plaintiff    Joseph Maj id brings      this   lawsuit     against    Nikki

Wallace,   his   former   co-worker   at   DynCorp    International,          Inc.

("DynCorp"), the Federal Bureau of Investigation ("FBI"), and two

unnamed agents of the FBI, John Doe #1 and John Doe #2 ("the John

Doe Agents").    Mr. Majid alleges that while working in Afghanistan

as an interpreter for the U.S. military, Ms. Wallace falsely told

his supervisors that he was a security risk and potential terrorist

sympathizer.     He   further   alleges    that    this   triggered      an    FBI

investigation, and ultimately a campaign of harassment against him

by the FBI and the two John Doe-Agents.             Mr. Majid has brought

numerous claims against the various defendants, based on the United

States' Constitution, the Privacy Act, 5 U.S.C.           §   552(a), various

California statutes, and the common law of the state of California.
        Presently before the Court is the FBI's Motion to Dismiss or,

in the Alternative,        for Summary Judgment       [Dkt. No.   6]   ("MTD" or

"Motion"), arguing that the Court should dismiss those claims that

Mr. Majid has brought against the FBI or grant summary judgment to

the FBI on those claims.          The FBI also argues that if the claims

against the FBI are dismissed,             the Court lacks     jurisdiction to

hear the remaining claims and should dismiss the entire action.

        Based on the Complaint, the Motion, the Opposition, the Reply,

and the entire record herein, the FBI's Motion will be granted in

part and denied in part. The constitutional and state law claims

against the FBI contained in Counts VI and VIII will be dismissed,

but the Privacy Act claims contained in Count V and the remaining

claims against the other Defendants will not be dismissed.


I .     BACKGROUND

      A. Factual Background

        Mr.    Majid is an American Citizen of Afghan descent who is

fluent or proficient in a number of languages other than English,

such as Dari, Pashto, Russian, and Turkmen.             Complaint ~ 1.     Given

his language skills he was hired by DynCorp in June of 2012 to

serve     as    a   security   linguist    in   Afghanistan,   assisting    U.S.

military personnel.        Id. at   ~~    1, 10-11.



                                          -2-
      Mr. Majid and Ms. Wallace,               another DynCorp employee, began

working together in Afghanistan in January of 2013.                                 Id. at    ~   12.

Mr.   Majid       alleges    that   immediately             after       they    began       working

together, Ms. Wallace treated him with hostility because he was of

Afghan descent and she was jealous that he was being paid at a

higher salary than she received.                 Id. at      ~~       12-14.    He alleges she

spread false rumors about him to their military clients, and filed

a   false    report with their superiors                    indicating that he was                  a

security risk and potential terrorist sympathizer,                                  which forced

him to resign from DynCorp.              Id. at        ~~    14-15.          Mr. Majid alleges

that because of this "defamatory" report, his security clearance

has an "incident" associated with it, and that he can no longer

obtain      comparable       employment     to     his       position          as    a   security

linguist.      Id. at    ~   17.

      Mr. Majid alleges that, as a result of these false reports,

the FBI began investigating him.                  Id. at          ~    16.     He alleges that

two John Doe Agents have been intrusively surveilling him and

implying     to    his   employers      that      he    is    a       security       risk    and    a

potential terrorist.           Id. at   ~   18, 25,         26.        He alleges that as a

consequence of the FBI investigation he has lost multiple jobs.

See Id. at     ~~ 16,    19.




                                            -3-
  B. Procedural Background

      Mr. Majid filed his Complaint on April 19, 2016.                            [Dkt. No.

1].   In Count I, Mr. Majid alleges that Ms. Wallace's reports to

the FBI constitute negligent misrepresentation.                       Id.   ~~   27-34.   In

Count II-IV, Mr. Majid alleges that the John Doe Agents negligently

carried out their investigation, intentionally inflicted emotional

distress upon him, and invaded his privacy.                     Id.    ~~   35-45.

      In Count V,   Mr.    Maj id alleges          that     the       FBI   violated the

Privacy Act, by maintaining inaccurate records about him.                            Id. ~~

46-50.    In Count VI, Mr. Majid alleges that the FBI and the two

John Doe Agents     deprived him of          his    rights        to procedural due

process under the United States' Constitution.                        Id. ~~ 51-57.

      In Count VIII, Mr. Majid alleges that the two John Doe Agents

violated his   rights     to   life,   liberty and happiness,                    to travel

freely,   and to be free of false stigma.                 Id.    ~~    58-64.      Finally,

in Count VII, Mr. Majid alleges that all of the Defendants violated

Sections 51.7 and 52.1 of the California Civil Code,                             subjecting

him to threats based on his race or national origin and interfering

with his right to privacy.

      A Summons was issued to the FBI, as well as to the two John

Doe Agents, care of the FBI.       [Dkt. No. 2-1].              Similarly, a Summons




                                       -4-
was issued to Ms. Wallace, care of DynCorp.                   Id.   Only the FBI has

made an appearance before this Court. 1

      On August 8, 2016,           the FBI filed this Motion to Dismiss or,

in the Alternative, for Summary Judgment, seeking dismissal of or

judgment on those claims that have been brought against the FBI,

contained in Counts V,            VI,    and VII,       and arguing that,     if those

claims are dismissed,             the court lacks jurisdiction to hear the

remaining     claims.        On    October    6,    2016,    Mr.    Majid    filed   his

Opposition.     [Dkt. No. 8]            On October 27, 2016, the FBI filed its

Reply.      [Dkt. No. 9] .


II.   STANDARD OF REVIEW

    A. Motion to Dismiss

                1. Standard for Dismissal under Rule 12{b) (1) for Lack
                   of Jurisdiction

      Federal courts are courts of limited jurisdiction, possessing

"only that power authorized by Constitution and statute."                     Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "It is

to be presumed that a cause lies outside this limited jurisdiction,

and   the    burden     of   establishing         the    contrary    rests   upon    the




1 The Department of Justice has made clear that it represents only
the FBI, as an agency, in this matter and that it does not represent
the John Doe Agents. MSJ at 15 n.4.
                                            -5-
[plaintiff]." Id.; see also Shuler v. United States, 531 F.3d 930,

932 (D.C. Cir. 2008).

        In deciding whether to grant a motion to dismiss for lack of

jurisdiction under Rule 12(b)        (1), the court must "'accept all of

the factual allegations in the complaint as true. '"             Jerome Stevens

Pharmaceuticals, Inc. v. F.D.A., 402 F.3d 1249, 1253-54 (D.C. Cir.

2005)    (quoting United States v. Gaubert, 499 U.S. 315, 327 (1991)).

Nonetheless,       "[t]he    plaintiff'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).

                 2. Standard for Dismissal under          Rule    12 (b) (6)   for
                    Failure to State a Claim

        Rule 12(b) (6) of the Federal Rules of Civil Procedure permits

dismissal for the "failure to state a claim upon which relief can

be granted."       Fed. R. Civ. P. 12(b) (6).         "To survive a motion to

dismiss,     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 (2009)            (internal

quotation marks       and citations       omitted).     A claim    is    facially

plausible when the pleaded facts            "allows the court to draw the

reasonable       inference   that   the     defendant    is   liable     for   the

                                      -6-
misconduct alleged."       Id.    Plausibility requires "more than a sheer

possibility that a defendant has acted unlawfully," but it is not

a "probability requirement."             Id.

       At   the Rule 12 (b) (6)     stage,      the court accepts all of the

complaint's factual allegations as true and draws all reasonable

inferences from those facts           in plaintiff's favor.           Browning v.

Clinton, 292 F.3d 23S, 242          (D.C. Cir. 2002).         In addition to the

complaint,      the ·court   may     consider      "other    sources,"      such   as

"documents      incorporated      into    the    complaint    by    reference      and

matters of which a court may take judicial notice."                 Tellabs, Inc.,

SSl U.S. 308, 322 (2007)          (citing SB Charles A. Wright & Arthur R.

Miller,     Federal    Practice    and    Procedure,   §     13S7   (3d ed.     2004)

(hereinafter "Wright & Miller))); Maggio,               79S F.3d S7,       62   (D.C.

Cir.   201S).     The court may take judicial notice of matters of

public record.        Abhe & Svoboda, Inc. v. Chao, S08 F.3d 10S2, 10S9

(D.C. Cir. 2007)       (public records are "subject to judicial notice

on a motion to dismiss"); see also SB Wright & Miller                  §   13S7.

  B. Motion for Summary Judgment

       Summary judgment may be granted only if the pleadings,                      the

discovery materials, and affidavits on file show that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.               See Arrington v. United
                                          -7-
...




      States, 473 F.3d 329, 333 (D.C. Cir. 2006); Fed. R. Civ. P. 56(c).

      "A dispute over a material fact is 'genuine' if 'the evidence is

      such       that    a     reasonable      jury    could    return      a    verdict    for    the

      nonmoving party.'"                Arrington, 473 F.3d at 333               (quoting Anderson

      v.     Liberty Lobby,           Inc.,    477 U.S.      242,    248    (1986)).      A fact    is

      "material" if it might af feet the outcome of the case under the

      substantive governing law.                 Id.

                 The burden is on the moving party to demonstrate the absence

      of any genuine issues of material fact. Celotex Corp. v. Catrett,

      477 U.S. 317, 323            (1986).      When a moving party successfully does

      so, the nonmoving party must show the existence of a genuine issue

      of material fact by providing "specific facts showing that there

      is     a    genuine       issue    for    trial,"      and    "may    not     rest    on    mere

      allegations or denials" to prevail.                    Burke v. Gould, 286 F.3d 513,

      517 (D.C. Cir. 2002)              (quoting Anderson, 477 U.S. at 248 (internal

      quotation marks omitted) . The moving party is entitled to summary

      judgment          when    the     nonmoving       party      fails    to    offer    evidence

      sufficient to establish an essential element of a claim on which

      it will bear the burden of proof at trial.                           Celotex, 477 U.S. at

      322.

                 In reviewing the evidence on a motion for summary judgment,

      the court views the evidence in the light most favorable to the


                                                       -8-
nonmoving party and draws all inferences in her favor.                        Johnson v.

Perez,    823        F.3d   701,   705   (D.C.     Cir.    2016).            "Credibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those

of   a judge at summary judgment."               Barnett v.       PA Consulting Grp.

Inc., 715 F.3d 354, 358 (D.C. Cir. 2013)                 (internal quotation marks

and citation omitted). Accordingly, the Court's role is "not [to]

determine the truth of the matter,                but instead [to]           decide only

whether there is a genuine issue for trial."                  Id.

III. ANALYSIS

     A. Count V: Privacy Act Violation by the FBI


       Mr. Majid alleges that the FBI maintains records about him

that    are   inaccurate,      because    they are based on the                false   and

defamatory reports of Ms. Wallace, and he seeks an opportunity to

review and correct these            records pursuant to the              Privacy Act.

Complaint       ~~    46-50.       The   FBI     seeks    dismissal      or,      in   the

alternative,         summary   judgment on this          claim,    arguing      that   the

records Mr. Majid seeks from the agency are exempt from the Privacy

Act's access provisions.            MSJ at 7-9.

       "A principal function of           the     [Privacy]       Act   is    to require

agencies to keep accurate systems of records." Doe v. F.B.I., 936

F.2d 1346, 1350 (D.C. Cir. 1991)           (internal citations and quotation

                                          -9-
marks    omitted) .        The    Privacy Act         requires       agencies        to make

reasonable       efforts   to    ensure    the     accuracy         of    the   records    it

maintains about individuals.              Id.     In furtherance of this goal,

the Privacy Act grants           individuals the right to access agency

records that pertain to them,              and to request amendment of any

records that are inaccurate.          See id.         (citing 5 U.S.C.          §   552a(d)).

"Where an agency denies such an amendment request, the Act grants

the   individual      seeking     amendment       the       right    to    obtain      agency

review."     Id.   (citing 5 U.S.C.        §    552a(d) (3), (g)).          If the agency

refuses to amend the record, the individual may then seek judicial

review of that determination.             5 U.S.C.      §    552a(d) (3),       (g).

        However,   law enforcement agencies may promulgate rules to

exempt criminal records systems from these individual access and

judicial review provisions,           if the records contain "information

compiled for the purpose of a criminal investigation,                               including

reports of informants and investigators,                     and associated with an

identifiable individual."           5 U.S.C.      §   552a(j) (2) (B).          The FBI has

exercised this        authority to exempt             its    Central Records           System

("CRS") from the individual access provisions of the Privacy Act. 2

28 C.F.R.    §   16.96; Doe, 936 F.2d at 1353.


2 As the FBI notes, making such investigative files available to
the subject of an investigation would enable the subject to impede
the investigation,   by destroying evidence,      or intimidating
                                          -10-
      Records contained in CRS are exempt if "if they constitute

law   enforcement       records    within    the    meaning    of   the   statute.

Accordingly,      the   FBI    bears   the   burden of   demonstrating a         law

enforcement purpose for each record as to which it has claimed

exemption in this case."          Doe, 936 F.2d at 1353. "[R]ecords kept

by a law enforcement agency must meet two criteria in order to

qualify as law enforcement records:"

      First, 'the agency's investigatory activities that give
      rise to the documents sought must be related to the
      enforcement of federal laws or to the maintenance of
      national security .

     Second, 'the nexus between the investigation and one of
     the agency's law enforcement duties must be based on
     information sufficient to support at least a colorable
     claim of its rationality.'   This second requirement is
     'deferential to the particular problems of a criminal
     law enforcement agency' ; while it is not met where the
     agency offers a 'pretextual or wholly unbelievable'
     basis for a claim that its investigation was rationally
     related to its law enforcement duty, a reviewing court
     'should be hesitant to second-guess a law enforcement
     agency's decision to investigate if there is a plausible
     basis for its deciiion.'
Doe, 936 F.2d at 1353-54 (quoting Pratt, 673 F.2d 408, 420 (D.C.

Cir. 1982))    (internal citations omitted).

      "When an agency meets both prongs of the Pratt test,                       the

burden   shifts    to    the    plaintiff    to    produce    evidence    that   the




potential witnesses, or fleeing to avoid potential arrest.                        28
C.F.R. § 16.96(b) (1).
                              -11-
asserted law enforcement rationale for an investigation was in

fact pretextual."         Id. at 1354.

        The FBI argues that Mr. Majid's Complaint makes clear that,

to the extent any records about Mr. Majid exist, those records are

exempt        law enforcement     records,     and consequently,        that he has

failed to state a claim upon which relief can be granted. 3                        The

FBI notes that Mr.            Maj id's Complaint identifies the records he

seeks as having been created pursuant to an investigation that was

itself initiated after information was shared with the FBI that

Mr.     Maj id might pose a       "security risk to America."               Reply at 4

    (quoting Complaint    ~    53 and citing Complaint         ~~   14, 15, 18, 26,

34,     36,    46).   Consequently,      the    FBI   argues    that    Mr.    Maj id's

Complaint        establishes     that   the     records   he        seeks    are   "law

enforcement records."            The FBI asserts that such law enforcement

records are ordinarily contained in "investigative files," which

are stored in CRS, an exempt system of records.                      FBI's Statement

of Material Facts as to which there is No Genuine Issue ("SOMF")

~    4 [Dkt. No. 6] . 4   Consequently, the FBI argues that to the extent


3    The FBI has refused to confirm or deny that Mr. Majid is the
subject of an investigation or that it has any files regarding Mr.
Majid. Reply at 5 n.2.

4    The SOMF refers to entries in the Federal Register and the
Code of Federal Regulations that exempt CRS from the Privacy Act.
SOMF ~~ 4,5 (citing 68 Fed. Reg. 8671 (Feb. 20, 1998) and 28 C.F.R.
                                -12-
that any records about Mr. Majid exist, they are necessarily law

enforcement records stored in an exempt system of records.

         There is a major problem with the FBI's argument.            Nowhere in

the record - not in the Complaint, not in the briefs, not even in

the FBI's Statement of Material Facts - does it establish that any

and all FBI records about Mr. Majid are located in CRS.                 While it

stands to reason that any such investigative files about Mr. Majid

are stored in CRS - because that is the ordinary practice of the

FBI - there is nothing in the record that conclusively establishes

that such files are not stored in another system of records that

is     not   exempt   from   the   individual    access    and   judicial   review

provisions of the Privacy Act.

        Bailey v.     Bureau of Prisons is directly on point.               133 F.

Supp. 3d 50, 57 (D.D.C. 2015).           In that case, the plaintiff was a

prisoner held in a Bureau of Prisons (BOP)                facility.   Id. at 52.

He alleged that BOP had wrongly categorized him as a gang member,

resulting in changes in the conditions of his confinement, and had

violated the Privacy Act by maintaining records                   that contained

false     information about him.        Id.     at 56.     BOP argued that the




§          Both are matters of public record of which the Court
     16. 96) .
may take judicial notice.
                              -13-
relevant records were of the type regularly stored in an exempt

system of records and moved to dismiss his claims.                           Id. at 57.

       The court refused to grant BOP's motion to dismiss, holding

that the defendant had produced no evidence that the records the

plaintiff sought were actually stored in the exempt system.                                Id.

The    court   found      that    the    defendants      had    offered       no    evidence

"whatsoever averring where               exactly these documents are housed,

making    it   impossible        for    this    Court    to determine         whether      the

documents      are   in    fact    Privacy      Act-exempt."           Id.         The   court

concluded that while "[i]t would certainly stand to reason that

documents relating to the BOP's investigation of inmate Bailey are

housed within [the exempt system]" given BOP's practices, it was

"by no means a foregone conclusion" given the lack of evidence.

Id.

       Similarly, in this case the FBI asserts that any files about

Mr. Majid that may exist would be investigative files, and that,

as a routine practice, such investigative files are stored in CRS.

Just as in Bailey,          such "[g] eneralities alone cannot suffice."

133 F. Supp. 3d at 57.             Instead,      the FBI must come forward with

some     affirmative        evidence,          such     as     sworn    affidavits          or

declarations, to demonstrate that records about Mr. Majid, to the

extent they exist,         are stored in an exempt system.                     See Bailey,


                                           -14-
133 F. Supp. 3d at 57; also Antonelli v. Fed. Bureau of Prisons,

591 F. Supp. 2d 15, 29-30 (D.D.C. 2008)                  (summary judgment granted

where the agency provided a sworn declaration that the relevant

records were maintained in an exempt system) .

       The    FBI's    attempt     to    rely     on   Mr.    Majid's   Complaint      to

establish that the records he seeks are stored in CRS also fails.

Had Mr. Majid's Complaint expressly alleged that the records he

seeks are stored in CRS, he may well have pled himself out of a

cause of action.         See Arnold v. U.S. Secret Serv., 524 F. Supp. 2d

65,    66    (D.D.C.    2007)     (dismissing     Privacy Act       claim where       the

complaint expressly stated that the relevant records were stored

"in the Secret Service Protection Information System USSS.007" and

it was undisputed that it was an exempt system of records).                           But

Mr. Majid's Complaint says no such thing; instead, it merely states

that    he   seeks     investigative       records.          Consequently,    there    is

nothing in the Complaint that establishes that the records he seeks

are in fact stored in CRS.

       Ultimately,      it is the FBI's burden to demonstrate that the

records Mr. Majid seeks access to are stored in CRS or some other

exempt system of records,              and it has not done so.             Mr. Majid's

Complaint states a plausible Privacy Act claim, so the claim cannot

be    dismissed       under     Rule    12(b) (6).       In    addition,     the   FBI's


                                           -15-
submissions do not establish that there is no genuine issue as to

any material fact,             and so it is not entitled to summary judgment

under Rule 56. Because the FBI has failed to establish that there

are actual records about Mr. Majid that are stored in other, non-

exempt systems, the FBI's Motion must be denied.

  B. Count VI: Deprivation of Due Process by the FBI

       Mr. Majid alleges that he was deprived of due process by the

FBI and the John Doe Agents because they failed to provide him an

opportunity to rebut the false allegations made by Ms. Wallace.

Complaint       ~    55.      The FBI seeks dismissal of        this    claim as    it

relates    to       the     FBI,    arguing that   there has been no waiver of

sovereign immunity to hear this claim, and consequently, that the

Court lacks jurisdiction.               MTD at 9-10.


       "Absent        a    waiver,    sovereign    immunity   shields   the   Federal

Government and its agencies from suit."                   F.D.I.C. v. Meyer,       510

U.S.   471,     475       (1994).     "Sovereign immunity is jurisdictional in

nature."      Id.         ("It is axiomatic that the United States may not be

sued without its consent and that the existence of consent is a

prerequisite for jurisdiction"               (internal citations and quotation

marks omitted).             "A waiver of the United States's [sic] sovereign

immunity must be unequivocally expressed in statutory text and



                                            -16-
will not be implied."          Settles v.        U.S.       Parole Comm'n,    429 F.3d

1098, 1105 (D.C. Cir. 2005)          (internal citations omitted).


      Here, neither Mr. Majid's Complaint nor his Opposition to the

FBI's Motion identify any statute in which the United States has

waived sovereign immunity to allow this Court to hear his claim.

Instead,    Mr.   Maj id   argues    that    Bivens         supplies   the   necessary

waiver.     See Opp' n at      6-8    (citing Bivens v.            Six Unknown Fed.

Narcotics Agents, 403 U.S. 388, 389 (1971)).                    He is wrong.


      In Bivens, the Supreme Court recognized that an implied cause

of   action   exists       against    federal         officials    who   violate     an

individual's constitutional rights.                403 U.S. at 389.           However,

whether a     cause of      action exists        is     a   distinct question from

whether Congress has waived the sovereign immunity of the United

States.    Meyer, 510 U.S. at 483-84.


     Bivens does not,        indeed cannot, create the necessary waiver

of sovereign immunity; all Bivens does is provide a cause of action

against    federal   officials       in    their      personal    capacities.       Id.

Because an official, who is sued in her personal capacity, is not

clothed in the sovereign immunity of the United States,                        Clark v.

Library of Cong., 750 F.2d 89, 103 (D.C. Cir. 1984),                         Bivens has

nothing to say about the waiver of sovereign immunity.                       Moreover,

                                          -17-
"Bivens     claims    are      not   available    against    federal    agencies."

Abdelfattah v. U.S. Dept. of Homeland Sec., 787 F.3d 524, 534 (D.C.

Cir. 2015)    (citing Meyer, 510 U.S. at 483-86)); Drake v. F.A.A.,

291 F.3d 59,     72    (D.C.    Cir.    2002)   ("It is of course well-settled

that Bivens liability cannot be imposed on an agency of the Federal

Government.").        Accordingly,       Mr. Majid cannot rely on Bivens to

establish the necessary waiver of sovereign immunity.


     As Mr. Majid has failed to establish that sovereign immunity

has been waived, the Court lacks jurisdiction to hear Mr. Majid's

claim against        the   FBI under Count VI,        and that     claim will be

dismissed pursuant to Rule 12(b) (1).


  C. Count VIII: Violations of CA Code against FBI

     Mr.    Majid alleges that the FBI violated Sections 51.7 and

52.1 of the California Civil Code.               Complaint   ~~   65-71.    As with

Count VI,    the FBI seeks dismissal of Count VIII of Mr.                   Majid's

Complaint, as it relates to the FBI, arguing that there has been

no waiver of sovereign immunity to hear this claim.                    MTD at 10.

     As Mr. Majid did with his constitutional claims in Count VI,

he argues that Bivens provides the necessary waiver of sovereign

immunity.    Opp'n at 9-10.            That is incorrect for the same reasons

discussed above.           Accordingly,     the Court lacks       jurisdiction to

hear Mr. Majid's claims against the FBI,               alleging violations of
                             -18-
the California statutes, and that claim will be dismissed pursuant

to rule 12 (b) (1) .s

    D. Additional Arguments

      Finally,   the    FBI   makes   a   number   of   additional   arguments

regarding the absence of        jurisdiction,      improper venue,    and Mr.

Majid's request for injunctive relief.

              1. Diversity Jurisdiction

      The FBI argues that Mr.         Majid's Complaint establishes that

there is a lack of complete diversity amongst the parties, because

his Complaint alleges that both the John Doe Agents and Mr. Majid

are residents of California.          MSJ at 12 n.2.




5     The FBI, on its own initiative, has suggested that the Federal
Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346 (b), 2671-80, might
provide the necessary waiver of sovereign immunity. MTD at 10-11
(citing 28 U.S.C. § 2674). However, the FBI also argues that Mr.
Maj id cannot avail himself of the FTCA for various reasons,
including a failure to exhaust his administrative remedies.      MTD
at 10-14 (citing 28 U.S.C. § 2675 (requiring, as a prerequisite to
filing suit under the FTCA, that claimants must first present their
claim to the agency they allege injured them)).

     Mr. Majid appears to disclaim any reliance on the FTCA. Opp'n
at 9. However, to the extent he does bring this claim pursuant to
the FTCA, it is undisputed that he has failed to comply with its
requirements in 28 U.S.C. § 2675. For example, the FBI is correct
that he failed to exhaust his administrative remedies, and that
the Court would have to dismiss his claims on that basis.      See
Wasserman v. Rodacker, 557 F.3d 635, 642         (D.C. Cir. 2009)
(dismissal of FTCA claim was proper where plaintiff failed to
exhaust administrative remedies) .

                                      -19-
      Although       the    FBI    is    correct       that    "complete    diversity of

citizenship" amongst the parties is required to invoke diversity

jurisdiction under 28 U.S.C.                 §    1332, Caterpillar Inc. v. Lewis,

519   U.S.     61,     68     (1996)     f       its   argument     fails    because   it

mischaracterizes Mr. Majid's Complaint.                       Mr. Majid does not allege

that the John Doe Agents are citizens of California,                           only that

they "work out of [the FBI's] California office."                       Complaint~~    3,

4.    There is nothing in the Complaint that establishes that the

John Doe Agents' duty station is the same as the state of which

they are      citizens,      and therefore             this   allegation alone    cannot

establish an absence of diversity. 6

      Since      the       Court        must       accept      as    true    Plaintiff's

uncontroverted allegation that the John Doe Agents are citizens of

a different state, diversity jurisdiction exists as of now.

                2. Supplemental Jurisdiction

      The FBI argues that the court lacks supplemental jurisdiction

to hear Mr. Majid's state law claims.                     MSJ at i2 n.2.      Given that




6 The FBI argues that by failing to respond to this argument in
his Opposition, Mr. Majid has conceded the absence of diversity
jurisdiction.   Reply at 2.  Given that the FBI's own argument is
wholly without merit, the Court will not grant the FBI's Motion on
this basis. To the extent that the John Doe Agents exist and are
residents of California, that information is entirely within the
possession of the FBI and it may introduce such information at any
time.
                                               -20-
the Court will not dismiss the Privacy Act claims against the FBI,

this Court has supplemental jurisdiction over the state law claims

pursuant to 28 U.S.C.              §   1367(a), as the FBI concedes in its Motion.

MSJ at 12 n.2.

                    3. Venue

        The FBI argues that this Court is an improper venue because,

under    the       FTCA,    Mr.    Maj id should have        brought     this   action in

California.          MSJ at 13.           The FBI is correct that the FTCA only

authorizes a suit to be brought in the judicial district where the

plaintiff resides or where the challenged act or omission occurred.

28 U.S.C.      §    1402(b). However, Mr. Majid did not rely on the FTCA

in either his Complaint or his merits briefing.                             Indeed,    given

what remains of Mr. Majid's claims once this Opinion issues, none

appear to have been brought pursuant to the FTCA.                            Accordingly,

the FBI's argument that this Court is an improper venue to hear

the FTCA claim fails.


                    4. Claims for Injunctive Relief

        Finally,         the   FBI      argues    that    Mr.     Majid's    request       for

injunctive relief, contained in Counts II and III of his Complaint,

are without merit.                That argument is premature.            The FBI has not

sought to dismiss those claims,                   and therefore,        they remain live

issues    in       the     case.        Whether   Mr.    Maj id   can   succeed       on   the

                                              -21-
underlying   claims   and   what   relief   he   may be              entitled   to   are

questions for another day.


IV.   CONCLUSION

      For the foregoing reasons,      the FBI's Motion is denied as to

Count V and granted as to Counts VI and VII.

      Additionally, the parties will be ordered to submit briefing

on whether the Court may order the FBI to serve the John Doe Agents

with a copy of Mr. Majid's Complaint.         See Bivens, 403 U.S. at 390

n.2   (noting that the district court ordered the agency to serve

the plaintiff's complaint on the agents who participated in the

raid where the alleged misconduct took place) .



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March 28, 2017                             Gladys Kessl~g
                                           United States District Judge


Copies to: attorneys on record via ECF




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