Opinion
Civil Action 2:21-cv-01935-DCN-MHC
06-07-2022
Cristina Gillaspie, Plaintiff, v. United States of America, Department of Navy, Special Agent Doyle Mullis, and Special Agent Anthony Luckman, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CFHERRY UNITED STATES MAGISTRATE JUDGE
Plaintiff, represented by counsel, brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”), the Administrative Procedures Act, 5 U.S.C. § 500, et. seq. (“APA”), and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). ECF No. 1.
Before the Court is a Motion to Dismiss filed by Defendants pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 16. Plaintiff filed a Response in Opposition to the Motion to Dismiss (ECF No. 22), Defendants filed a Reply (ECF No. 27), and Plaintiff filed a Sur-Reply with leave of the Court (ECF No. 31). The parties also filed a Joint Motion to Drop Parties, in which the parties jointly move pursuant to Rule 21 of the Federal Rules of Civil Procedure “to drop Special Agents Anthony Luckman and Doyle Mullis as defendants in this matter.” ECF No. 26. The Motions are ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion to Drop Parties be granted, and that the Motion to Dismiss be granted.
LEGAL STANDARD
I. Rule 12(b)(1) of the Federal Rules of Civil Procedure
A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In deciding such a motion, “the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (internal quotation marks omitted). When determining whether subject matter jurisdiction is present, the court applies the standard applicable to motions for summary judgment where the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Richmond, 945 F.2d at 768 (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987)). “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.
II. Rule 12(b)(6) of the Federal Rules of Civil Procedure
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
PLAINTIFF'S ALLEGATIONS In her Complaint, Plaintiff alleges that she was employed by SPAWAR Systems Center Atlantic (SPAWAR) from September 18, 2006, until November 1, 2019, when she was terminated. She began at SPAWAR as an operations research analyst, and eventually became a lead for a team creating cloud services for the Navy and Department of Defense. Plaintiff alleges that in March 2015, Plaintiff's former coworker Ryan Gunst falsely reported to the SPAWAR
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendants' Motion to Dismiss. See Kolon Indus., Inc., 637 F.3d at 440.
SPAWAR has changed its name to Naval Information Warfare Center (“NIWC”). ECF No. 22.
Inspector General's Office and Office of General Counsel that Plaintiff had a conflict of interest and misappropriated funds to her husband's company, Sotera. The purported bases for this allegation were issues with Plaintiff's OGE 450 forms (a confidential document authored by government employees disclosing financial interests in private companies) and a withdrawn contract modification request package for Sotera in the amount of $10,000.
Prior to Gunst's 2015 allegations, in or about May 2014, Plaintiff had discovered an inadvertent failure to list her husband's employment with Sotera in the non-investment income section of the OGE 450, though she did include Sotera in the investment income section (regarding his 401k). Upon her realization of this mistake, Plaintiff immediately attempted to correct it, and she was assured by the appropriate authorities at SPAWAR that the error did not need to be immediately corrected. Nevertheless, Plaintiff informed her supervisor at the time (Kevin Holcomb) and the SPAWAR Office of General Counsel of the error. Plaintiff alleges that although SPAWAR Office of General Counsel was aware of Plaintiff's self-reporting of the OGE 450 issue in 2014 and the fact that Gunst was the subject of an EEO claim filed by Plaintiff, it retaliatorily referred Gunst's allegations to SPAWAR Office of Inspector General (“SPAWAR IG”). The SPAWAR IG, apparently after no investigation of its own, then referred it to the Naval Criminal Investigative Service (NCIS). NCIS began its investigation on or about October 2015. NCIS investigated this issue jointly with the Department of Defense Criminal Investigative Service (DCIS), which is the law enforcement arm of the Department of Defense Inspector General's Office.
On January 18, 2017, Defendant Special Agent Anthony Luckman of NCIS sought a warrant from a United States Air Force judge to search and seize evidence at Plaintiff's workplace for the alleged criminal conflict of interest reported by Gunst. Defendant Luckman presented and swore to an affidavit in support of that warrant. Plaintiff alleges that the affidavit demonstrated a misunderstanding of the contracting process and the lack of authority Plaintiff had in directing contracts to her husband's company, and that it contained material inaccuracies and misstatements made in reckless disregard of the truth. Plaintiff also alleges that the agents conducted no interviews with personnel who were actually acting in an official capacity on the Delivery Orders in question, either prior to the issuance of the search warrant or since, and instead simply relied on Gunst's allegations.
According to Plaintiff, the affidavit failed on its face to establish probable cause for the alleged violations of 18 U.S.C. § 208 (criminal conflict of interest) or of 18 U.S.C. § 1001 (material false statement). Nevertheless, an Air Force official signed the warrant on January 18, 2017. Later that day, six federal agents (two of whom were in full tactical gear and bearing assault rifles) descended upon Plaintiff's workplace at SPAWAR, detaining Plaintiff and executing the search warrant. Agents seized Plaintiff's work computer and documents as well as personal items. While Plaintiff was detained by agents, she was paraded around the office and humiliated in front of her coworkers.
Shortly thereafter, the NCIS/DCIS affidavit was presented as support to suspend Plaintiff from all of her local security accesses on February 6, 2017. Those local accesses were formally suspended on February 21, 2017, resulting ultimately in her indefinite suspension without pay pending favorable security clearance adjudication from the Department of Defense Consolidated Adjudications Facility (“DoD CAF”). Plaintiff alleges that this suspension of all local accesses, including access related to non-classified buildings and materials, violated the Navy's own policy by exceeding the authority set forth in SSO Navy 031802Z, BANIF 003-14.
Plaintiff alleges that for such a security clearance adjudication to occur, SPAWAR was required to report the suspension and provide sufficient details to support adjudicative review within 10 working days through the Joint Personnel Adjudication System (“JPAS”), pursuant to SECNAV M-5510.30, 9-7 in effect at the time. Plaintiff further alleges that SPAWAR reported the suspension via JPAS on February 21, 2017, stating that its Security Access Eligibility Report (“SAER”) was forthcoming, but that SPAWAR did not send the SAER or details sufficient to support adjudication within the proscribed time frame.
At some point in 2017, Defendants Mullis and Luckman met with Plaintiff's criminal defense attorney (Bart Daniel) and Assistant United States Attorney Rhett Dehart. At that meeting, agents made a presentation allegedly perpetuating the errors, omissions, and misstatements of the search warrant affidavit. Later, on or about August 28, 2017, Defendants Mullis and Luckman met with Plaintiff, her husband, Mr. Daniel, and AUSA Dehart at the Charleston office of the U.S. Attorney's Office in the District of South Carolina. During this meeting, Defendant Mullis shouted at Plaintiff and threatened to ruin her government career. Defendant Mullis's actions at the meeting prompted an apology from AUSA Dehart to Mr. Daniel afterwards.
AUSA Dehart ultimately declined to prosecute the case in July 2018, allegedly due to lack of evidence. After AUSA Dehart's declination, the agents then appealed to the U.S. Attorney to reconsider the declination, who reviewed the evidence and declined the case again. The agents then presented their case directly to the Department of Justice, Criminal Division, Public Integrity Section, who also declined the case. Plaintiff alleges that NCIS and DCIS unjustifiably and improperly kept the criminal investigation open until at least as of the date the Complaint was filed in this case. Plaintiff further alleges that the statute of limitations as to the alleged criminal violations expired in July 2019.
Plaintiff alleges that SPAWAR, despite notice of the declination by prosecuting authorities and after the statute of limitations had expired, continued to justify its refusal to send the necessary documentation to DoD CAF so that the adjudication process could begin, denying Plaintiff procedural due process. SPAWAR's delay in providing the necessary documentation to DoD CAF, and the failure to abide by the Navy and DoD regulations regarding the security adjudicative process, prior to her termination in November 2019 (more than 4 years after the DCIS/NCIS investigation began), placed Plaintiff “out of jurisdiction” regarding DoD CAF. Plaintiff alleges that this result makes it practically impossible for Plaintiff to obtain the security clearance necessary for her chosen field of employment.
According to Plaintiff, Defendant Mullis has testified that he believed Plaintiff was a criminal and he recommended her termination to SPAWAR. He identified her termination as a successful result of the investigation. Agent Mullis also stated, only days prior to Plaintiff's termination, that he would get “his” justice regarding Plaintiff.
In her Complaint, Plaintiff asserts claims under the FTCA for malicious prosecution, abuse of process, outrage, and intrusion against Defendants United States and the Department of Navy. ECF No. 1 at 10-12 (Counts One through Four). Plaintiff also set forth a claim against the same Defendants under the Administrative Procedures Act seeking the process she was allegedly denied regarding her security clearance. Id. at 13-14 (Count Six). Finally, Plaintiff included a civil rights claim pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against Defendants Luckman and Mullis. Id. at 12-13 (Count Five).
DISCUSSION
In their Motion to Dismiss, Defendants seek dismissal of all of Plaintiff's claims. ECF No. 16. In her Response in Opposition, Plaintiff states that she intends to dismiss voluntarily the Bivens claim and the intrusion claim and, therefore, she does not address Defendants' arguments as to those two claims. ECF No. 22 at 6 n.4. The parties subsequently filed the Joint Motion to Drop Parties, seeking dismissal of Defendants Mullis and Luckman from this action pursuant to Rule 21. ECF No. 26; see Fed.R.Civ.P. 21 (“Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.”).
In light of the foregoing, the undersigned recommends that the Court grant the Joint Motion to Drop Parties and drop Defendants Mullis and Luckman as parties to this action. The undersigned further recommends that the Court grant the Motion to Dismiss as to the intrusion claim (Count Four) and the Bivens claim (Count Five), as Plaintiff has abandoned those claims. The remaining four claims are discussed below.
I. Plaintiff's APA Claim (Count Six)
In Count Six of the Complaint, Plaintiff alleges that the United States and the Navy violated certain procedures, rules, and regulations in processing and suspending her security clearance, which she attributes “to the retaliatory actions of SPAWAR and NCIS/DCIS.” ECF No. 1 at ¶¶ 26, 48. She seeks judicial review pursuant to the APA and requests injunctive relief compelling the United States and the Navy to afford her due process by providing DoD CAF with documents needed to adjudicate her national security eligibility. Id. at ¶ 49. Defendants move to dismiss this claim pursuant to Rule 12(b)(1), arguing that Plaintiff's claim is moot. ECF No. 16 at 33-34. Defendants also argue that prior litigation bars this claim, either by the doctrine of claim preclusion or the rule against claim splitting. ECF No. 16 at 24-33.
A. Mootness
Federal courts lack the authority to decide moot questions or abstract propositions of law because they do not constitute “cases or controversies” under Article III of the United States Constitution. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401-03 (1975). A claim is moot if it is “impossible for the court to grant any effectual relief whatever to a prevailing party.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quotation marks and citation omitted); see Deakins v. Monaghan, 484 U.S. 193, 199 (1988) (finding claim moot where party no longer sought any equitable relief in federal court); Williams v. Ozmint, 716 F.3d 801, 809 (4th Cir. 2013) (“A claim may be mooted when . . . the court no longer has effective relief to offer.”) (citation and internal quotation marks omitted).
In Count Six, Plaintiff alleges that the United States and the Navy “violated their own procedures, rules, and regulations regarding the adjudication of Plaintiff's security clearance suspension” and demands “injunctive relief to provide her the process she was denied.” ECF No. 1 at ¶¶ 48-49. Specifically, Plaintiff alleges that the suspension of her local accesses in February 2017 violated and exceeded the authority of the Navy's own policy. Id. at ¶ 17. She further alleges that SPAWAR denied her “procedural due process” by refusing to send documentation to DoD CAF so that the adjudication process can begin. Id. at ¶ 25. According to Plaintiff, following her termination, she is no longer within DoD CAF's jurisdiction, which “makes it practically impossible for Plaintiff to obtain the security clearance necessary for her chosen field of employment.” Id. at ¶ 26.
Defendants argue that DoD CAF lacks authority to consider Plaintiff's national security eligibility “regardless of what documentation it receives.” ECF No. 16 at 34. They conclude, therefore, that Count Six is moot and should be dismissed because even if Plaintiff “succeeded in showing violations of applicable policies and procedures, there is no effective relief the Court could provide to redress any injury to Gillaspie.” Id. (summarizing affidavit submitted by Defendants averring that DoD CAF cannot adjudicate Plaintiff's national security eligibility or take any action unless she is reaffiliated within the DoD). Plaintiff disagrees, arguing that the government “cannot shield itself from the consequences of its constitutional violations with its own policies and regulations. If Defendants violated procedural due process resulting in the failure to adjudicate Plaintiffs' security clearance, the Court can demand that due process be afforded.” ECF No. 22 at 18.
The only relief Plaintiff seeks in Count Six is “injunctive relief to provide her the process she was denied,” i.e., the adjudication of her security clearance. ECF No. 1 at ¶ 49; Id. at ¶ 25 (alleging that SPAWAR's “refusal to send the necessary documentation to DoD CAF so that the adjudication process could begin [denied] Plaintiff procedural due process”). However, Plaintiff also alleges that after her termination, she was “placed ‘out of jurisdiction' regarding DoD CAF.” Id. at ¶ 26. Plaintiff does not allege that she has been reinstated or has returned to within the jurisdiction of DoD CAF. Accordingly, based on the Complaint's allegations alone, it appears that there is no injunctive relief that the Court can order to provide Plaintiff the process she was denied-adjudication of her security clearance by DoD CAF-because she is no longer within DoD CAF's jurisdiction. Moreover, the declaration submitted by Defendants confirms Plaintiff's allegation that because Plaintiff was terminated, DoD CAF no longer has jurisdiction to adjudicate her security clearance. See ECF No. 16-1 at ¶ 14 (“Following its own procedures, the DoD CAF administratively closed the case on March 4, 2020, with no action based on loss of jurisdiction over the Plaintiff's case. This action would not prevent Plaintiff from being adjudicated in the future should she reestablish affiliation with the Department of Defense through a new appointment as a civilian or hiring by a cleared DoD contractor.”); see In re KBR, Inc., Burn Pit Litig., 744 F.3d at 333 (explaining that on a 12(b)(1) motion, “the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment”).
Based on the foregoing, the undersigned is constrained to agree with Defendants that there is no effective injunctive relief that the Court can provide as to this claim. Even if Plaintiff prevails in showing that she was denied procedural due process, the relief she seeks-adjudication of her security clearance by DoD CAF-is no longer available because DoD CAF does not have jurisdiction to adjudicate her security clearance. Accordingly, the undersigned recommends granting Defendants' Motion to Dismiss Count Six on mootness grounds. See Deakins, 484 U.S. at 200 (“When a claim is rendered moot . . . the District Court [should] dismiss the relevant portion of the complaint.”).
B. Claim Preclusion and Claim Splitting
Alternatively, Defendants argue that the doctrine of claim preclusion and the rule against claim splitting bar Count Six. Under the doctrine of claim preclusion, or res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Brown v. Felsen, 442 U.S. 127, 131 (1979); Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991)). “By precluding parties in a subsequent proceeding from raising claims that were or could have been raised in a prior proceeding, res judicata encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Id. (citation and internal quotation marks omitted).
For the doctrine of claim preclusion to be applicable, three elements must exist: “(1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits.” Id. at 354-55 (citing Nash County Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)).
As for the rule against claim splitting, the Fourth Circuit has explained that the rule “is one of the principles of res judicata,” for it “prohibits a plaintiff from prosecuting its case piecemeal and requires that all claims arising out of a single wrong be presented in one action.” Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273 Fed.Appx. 256, 264-65 (4th Cir. 2008) (citations omitted); see Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 635 (4th Cir. 2015). “Under this rule, a first lawsuit will bar a second lawsuit when there is: (i) ‘an identity of the cause of action in both the earlier and the later suit; and [ (ii) ] an identity of parties or their privies in the two suits.'” Wellin v. Wellin, No. 2:13-CV-1831-DCN, 2014 WL 2434636, at *10 (D.S.C. May 28, 2014) (alteration in original) (quoting Pueschel, 369 F.3d at 354-55). In other words, “the second suit will be barred if the claim involves the same parties and arises out of the same transaction or series of transactions as the first claim.” Sensormatic Sec. Corp., 273 Fed.Appx. at 265 (internal quotation marks omitted).
Before filing this action, Plaintiff had already filed three prior suits arising out of her employment at SPAWAR and the investigation into her alleged conflict of interest and the suspension of her security clearance. Upon review of those prior actions, the undersigned agrees with Defendants that Count Six is barred by the rule against claim splitting, such that it should be dismissed.
1. Gillaspie v. Spencer (Gillaspie I),
No. 2:18-CV-446-DCN-BM (D.S.C.)
On February 18, 2018, Plaintiff filed suit under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) against Richard Spencer in his official capacity as Secretary of the Navy. See Gillaspie v. Spencer (Gillaspie I), No. 2:18-CV-446-DCN-BM (D.S.C.), ECF No. 1. Among other allegations, Plaintiff claimed that SPAWAR launched an investigation into Plaintiff's alleged diversion of funds to her husband's employer, Sotera, as well as misrepresentations in her OGE 450 disclosures, and suspended her security clearance in retaliation for an earlier EEO complaint. Id. at ¶¶ 27-45. Before the Court could rule on a motion to dismiss filed by the defendant, Plaintiff voluntarily dismissed the action on July 25, 2018. Gillaspie I, ECF No. 11.
2. Gillaspie v. Spencer (Gillaspie II),
No. 2:18-CV-2207-DCN-MGB (D.S.C.)
On August 10, 2018, Plaintiff filed another complaint against the Secretary of the Navy in his official capacity under the same statutes, plus a claim under the Rehabilitation Act. See Gillaspie v. Spencer (Gillaspie II), No. 2:18-CV-2207-DCN-MGB (D.S.C.), ECF No. 1. She again complained of an investigation regarding her alleged diversion of funds to Sotera and the adequacy of her OGE 450 disclosures, leading to a search of her office, which she alleged was retaliation for past EEO complaints. Id. at ¶¶ 27-41. She again complained that SPAWAR security suspended her security clearances and base access without justification. Id. at ¶ 42. She contended that “SPAWAR is intentionally holding up the adjudication of plaintiff's clearance issues by the appropriate federal agency,” and that “Plaintiff, herself and through her counsel has attempted to force SPAWAR's General Counsel to act on the clearance issue as required by the Code of Federal Regulations, but the organization continues to delay the appropriate processes.” Id. at ¶ 45. Plaintiff demanded injunctive relief in the form of reinstatement as part of her requested relief. Id. at 18.
Defendant moved to dismiss the original complaint in Gillaspie II, arguing it presented an improper challenge to her security clearance that was exempt from review under 42 U.S.C. § 2000e-2(g). Gillaspie II, ECF No. 18-1 at 4-6. At an evidentiary hearing, Plaintiff alleged the process to suspend her security clearance violated Section 5200.02 of the DoD Manual. Gillaspie II, ECF No. 46 at 61. Defendant disputed Plaintiff's suggestion, noting that she had received due process in suspending her clearance and, in any event, no due process claim had been pled in the complaint. Id. at 65. Plaintiff alluded to the possibility she might “amend the complaint and add a due process claim,” and advised she intended to move the Court for leave to amend in the event Defendant's motion was granted. Id. at 32, 58, 60.
Shortly after the hearing in Gillaspie II, Plaintiff amended the complaint but did not include the referenced due process claim. See generally Gillaspie II, ECF No. 56. Defendant filed another motion to dismiss the amended complaint based on the exemption contained in 42 U.S.C. § 2000e-2(g). Gillaspie II, ECF No. 61. The Magistrate Judge largely agreed but recommended that the Court “consider Plaintiff's allegations of procedural and administrative violations in relation to” SPAWAR's security access decisions because they were not exempt under § 2000e-2(g) and recommended a finding that Plaintiff had alleged sufficient facts to state a claim under Rule 12(b)(6). Gillaspie II, ECF No. 69 at 14, 16. Defendant objected to that recommendation because Plaintiff's amended complaint alleged “no factual basis to support a finding that Plaintiff pled a due process or procedural claim against Defendant.” Gillaspie II, ECF No. 70 at 1. Plaintiff disagreed, arguing that she “has pled proper claims for redress by this Court based on procedural violations by Defendant.” Gillaspie II, ECF No. 71 at 2.
The Court ultimately rejected the latter part of the report and recommendation and dismissed the case in full. In so doing, the Court reviewed the adequacy of Plaintiff's allegations, not under Rule 12(b)(1), but pursuant to Rule 12(b)(6). Gillaspie II, ECF No. 73 at 5. The Court found that Plaintiff “must plead a cause of action for procedural violations. It appears that she contemplated doing so at the hearing before the magistrate judge, but inexplicably, she did not include such a claim in her amended complaint.” Gillaspie II, ECF No. 73 at 5, 15. The Court concluded that the amended complaint failed to identify any agency procedure or rule that the defendant allegedly violated, despite the availability of many governing procedures in the public domain. Id. at 16-17. Judgment was entered in defendant's favor on February 19, 2020. Gillaspie II, ECF No. 74. Plaintiff did not seek leave to amend to add more specificity regarding the alleged procedural violations, nor did she appeal.
3. Gillaspie v. Spencer (Gillaspie III),
No. 2:19-CV-453-DCN (D.S.C.)
Plaintiff filed a third suit against the Secretary of the Navy on February 15, 2019. Gillaspie v. Spencer, No. 2:19-CV-453-DCN (D.S.C.) (Gillaspie III). As with the first two suits, the first amended complaint in Gillaspie III also complained of how SPAWAR responded to her OGE 450 disclosures, alleged that federal officers executed a search warrant at her office based on inadequate evidence, and alleged that SPAWAR inappropriately caused the suspension of her security access. Gillaspie III, ECF No. 6 at ¶¶ 29-45. When Plaintiff sought leave to file a second amended complaint, the Court partially denied her request, finding that allegations that the agency retaliated against Plaintiff through “personnel actions that relate to the investigation into Plaintiff's financial disclosures or the subsequent revocation of her security clearance” were foreclosed by the Court's decision in Gillaspie II. Gillaspie III, ECF No. 38 at 11 (“In light of Judge Norton's recent decision in [Gillaspie II], . . . the Court lacks jurisdiction to consider any Agency personnel actions that relate to the investigation into Plaintiff's financial disclosures or the subsequent revocation of her security clearance.”). Following discovery, the Court granted defendant's motion for summary judgment and specifically explained that Plaintiff's claims of retaliation relating to the suspension of her security clearance and accesses “were the subject of a prior lawsuit [Gillaspie
II] that was dismissed by this Court with prejudice.” Gillaspie III, ECF No. 103 at 23-24. The Court entered summary judgment in favor of defendant on March 31, 2022. ECF No. 104.
4. Analysis
Defendants argue that Count Six is barred by the rule against claim splitting because it arises out of the same operative facts as Gillaspie II and Gillaspie III. According to Defendants, both suits share the same parties as this suit, as Gillaspie II and Gillaspie III were asserted against the Secretary of the Navy, while Count Six in this action is asserted against the United States and the Navy. ECF No. 16 at 30-31 (“As far as privity is concerned in the relevant causes of action, there is no meaningful difference between the Secretary of the Navy, the United States, and the Navy.”). Additionally, they contend that the claims in Gillaspie II are sufficiently similar to Count Six:
The events giving rise to Count Six are the same as those alleged in Gillaspie II. And there can be no doubt that Gillaspie could have brought the claim asserted in Count Six as part of Gillaspie II: she expressly announced an intention to include procedural violations as part of that case and argued that her amended complaint sufficiently alleged the existence of such a claim. When the Court disagreed, Gillaspie took no action to remedy the identified pleading deficiencies, nor did she appeal.Id. at 30; see Pueschel, 369 F.3d at 355-56 (“[T]he doctrine of res judicata not only bars claims that were actually litigated in a prior proceeding, but also claims that could have been litigated.”). Finally, they assert that Plaintiff “was required to have included the claim as part of Gillaspie III because it arises out of the same operative facts.” ECF No. 16 at 32. The undersigned agrees.
First, with respect to the identity of the parties, Plaintiff does not make any arguments in her Response disputing Defendants' assertion that “there is no meaningful difference between the Secretary of the Navy, the United States, and the Navy.” See ECF No. 16 at 30-31; see generally ECF No. 22. The undersigned agrees with Defendants that these three parties are in privity, such that there is identity of parties across the three actions. See Martin v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005) (“To be in privity with a party to a former litigation, the non-party must be so identified in interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved.”); Wellin, 2014 WL 2434636, at *11.
Second, the undersigned finds that there is identity of claims across the actions. “The claims asserted in the lawsuits in question need not be identical for the rule against claim splitting to apply.” Wellin, 2014 WL 2434636, at *10. Rather, “an identity of the cause of action” means that both causes of action must “arise out of the same transaction or series of transactions or the same core of operative facts.” Id. (quoting Pueschel, 369 F.3d at 354-55). “Among the factors to be considered in deciding whether the facts of the current and prior claims are so woven together that they constitute a single claim are their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes.” Id. (quoting Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999)).
Plaintiff argues that the rule against claim splitting does not apply, since Count Six is not the same as the amendments that she sought in Gillaspie III. Plaintiff filed Gillaspie III six days before the Court, upon finding that she had failed to plead a procedural due process claim, dismissed Gillaspie II. Although Plaintiff subsequently attempted to amend her Complaint in Gillaspie III to assert additional retaliation claims related to the delay in sending her security clearance paperwork to DoD CAF, she did not assert a procedural due process claim based on those same facts. See Gillaspie III, ECF No. 38 at 11. Plaintiff now contends that because she “is not seeking to circumvent the denial of certain amendments to the complaint in Gillaspie III,” the rule against claim splitting does not apply. ECF No. 22 at 17-18. However, the Fourth Circuit has rejected similar arguments in the past, explaining that “[w]ere we to focus on the claims asserted in each suit, we would allow parties to frustrate the goals of res judicata through artful pleading and claim splitting given that a single cause of action can manifest itself into an outpouring of different claims, based variously on federal statutes, state statutes, and the common law.” Pueschel, 369 F.3d at 355 (citation and internal quotation marks omitted) (holding that a plaintiff's FTCA suit against her government employer was barred because she had previously filed a Title VII lawsuit that sought relief for the same pattern of conduct).
Here, there is no question that Count Six in this action arises out of “the same transaction or series of transactions or the same core of operative facts” as those alleged in Gillaspie II and Gillaspie III. In all three complaints, Plaintiff seeks relief based on the alleged improper handling and delayed adjudication of her security clearance. Moreover, although Plaintiff first suggested the existence of a procedural due process claim based on the facts alleged in Gillaspie II, she did not amend her complaint in either Gillaspie II or Gillaspie III to allege a procedural due process claim. Instead, she filed this action with Count Six while Gillaspie III was still pending. Count Six is “precisely the sort of duplicative claim[] that the rule against claim splitting is designed to prevent.” Wellin, 2014 WL 2434636, at *11; see Sensormatic Sec. Corp., 273 Fed.Appx. at 265 (“When one suit is pending in federal court, a plaintiff has no right to assert another action on the same subject in the same court, against the same defendant at the same time.”) (citation and internal quotation marks omitted); Pueschel, 369 F.3d at 355. Accordingly, the undersigned concludes that there is identity between the causes of action asserted in Gillaspie II and Gillaspie III and Count Six in this case.
Because there is identity of both parties and claims in Gillaspie II, Gillaspie III, and Count Six of this case, the undersigned finds that even if Count Six were not moot, it violates the rule against claim splitting and, therefore, should be dismissed.
The parties dispute whether the dismissal on the complaint in Gillaspie II for lack of jurisdiction was an adjudication on the merits for purposes of claim preclusion. Because the undersigned finds that Count Six should be dismissed on mootness grounds or, alternatively, because it violates the rule against claim splitting, the undersigned does not reach Defendants' alternative argument based on claim preclusion.
II. Plaintiff's FTCA Claims (Counts I - III)
Defendants argue that Plaintiff's FTCA claims are subject to dismissal pursuant to Rule 12(b)(6) for the following reasons: (1) Plaintiff has failed to allege sufficient facts to state any actionable tort claim; and (2) they are barred by the FTCA's two-year statute of limitations. ECF No. 16 at 6-18.
“[A] motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); see Goldfarb, 791 F.3d at 508 (“While no absolute bar exists, a motion to dismiss under Rule 12(b)(6) does not typically resolve the applicability of defenses to a well-pled claim.”); Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (stating that a motion to dismiss under Rule 12(b)(6) “does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses”). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense clearly appear on the face of the complaint.” Goodman, 494 F.3d at 464 (emphasis in original) (internal quotation marks and bracket omitted). With these standards in mind, the undersigned considers Defendants' arguments.
A. Claim for Malicious Prosecution (Count One)
Plaintiff asserts a malicious prosecution claim in Count One. ECF No. 1 at ¶¶ 28-32. “To maintain an action for malicious prosecution, a plaintiff must establish: (1) the institution or continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3) termination of such proceedings in [the] plaintiff's favor; (4) malice in instituting the proceedings; (5) lack of probable cause; and (6) resulting injury or damage.” Pallares v. Seinar, 756 S.E.2d 128, 131 (S.C. 2014) (internal citation omitted); Law v. S.C. Dep't of Corr., 629 S.E.2d 642, 648 (S.C. 2006).
Plaintiff alleges that “Defendant United States, by and through the agents of NCIS and DCIS, instituted criminal proceedings as early as January 18, 2017 with the obtainment and execution of the search warrant.” Id. ¶ 29. She further alleges that the “criminal proceedings were instituted, and the investigation conducted and continued, without just cause or excuse and without probable cause.” Id. ¶ 30. According to Plaintiff, the “proceedings were favorably terminated by the multiple declinations to prosecute for lack of evidence by the United States Attorney's Office, District of South Carolina and the Department of Justice, Ethics Division, as well as the expiration of the statute of limitations as to the alleged wrongdoing.” Id. ¶ 31. Finally, she alleges that this conduct resulted in various damages to Plaintiff. Id. ¶ 32.
Defendants argue that Plaintiff fails to state a claim for malicious prosecution because she has not alleged that proceedings were ever initiated against her, much less that any such proceedings were ever terminated in her favor. ECF No. 16 at 9. Defendants contend that because Plaintiff was never charged with a crime, no proceedings were initiated against Plaintiff that could give rise a to wrongful prosecution case. Id. Plaintiff, on the other hand, argues that “proceedings were initiated with the issuance and execution of the search warrant and terminated, at the earliest, upon the U.S. Attorney's Office declination for, upon information and belief, lack of evidence in July of 2018.” ECF No. 22 at 8.
“The threshold question in a malicious prosecution action arising in the criminal context is whether criminal proceedings were ever initiated. Absent the commencement of criminal proceedings, it obviously cannot be said that the plaintiff was ever the object of any ‘prosecution,' much less a ‘malicious' prosecution.” Jackson v. District of Columbia, 710 F.Supp. 13, 14 (D.D.C. 1989).
Under South Carolina law, “[i]n order to sustain an action for malicious prosecution, one must first be charged with the commission of a crime and exonerated.” Elletson v. Dixie Home Stores, 99 S.E.2d 384, 386 (S.C. 1957) (citing City of Sumter v. Keels, 78 S.E. 893, 893 (S.C. 1913); Segusky v. Williams, 71 S.E. 971 (S.C. 1911); Aiken v. Lancaster Cotton Mills, 67 S.E. 166 (S.C. 1910); Whaley v. Lawton, 35 S.E. 558 (S.C. 1900); Frierson v. Hewitt, 20 S.C.L. 499, 500 (S.C. App. L. & Eq. 1834)); see S. Holdings, Inc. v. Horry Cnty., No. 4:02-CV-1859, 2005 WL 8144891, at *15 (D.S.C. Jul. 14, 2005) (“In order to sustain an action for malicious prosecution, a plaintiff must have been charged with some criminal or civil wrong and exonerated.”). The Supreme Court of South Carolina has explained that a prosecution commences when the plaintiff has the “power . . . to compel the State to proceed, or to procure his own discharge, which can never happen until he is a party to them.” Clemmons v. Nicholson, 185 S.E. 34, 36 (S.C. 1936). Thus, a plaintiff's arrest is sufficient to institute judicial proceedings, as is the issuance of a warrant for plaintiff's arrest. Id. (judicial proceeding commenced in case where warrants were sworn out for plaintiff's arrest and plaintiff demanded a preliminary hearing at which the charges were dismissed); see Barber v. Whirlpool Corp., 34 F.3d 1268, 1277 (4th Cir. 1994) (finding sufficient evidence to show judicial proceedings were instituted against plaintiff where warrants issued for plaintiff empowered and directed the sheriff's department to arrest plaintiff as soon as practicable).
Plaintiff neither alleges nor argues that she was ever charged with a crime or that a warrant for her arrest was ever issued. Nonetheless, she contends that issuance of a search warrant is sufficient to establish that proceedings were initiated. ECF No. 22 at 11. In support, she points to a South Carolina case from 1875 where a malicious prosecution claim proceeded to trial. ECF No. 31 at 1-2 (citing Willis v. Knox, 5 S.C. 474 (1875)). In that case, the defendant store owner appeared before a trial justice and, by affidavit, “charged Caroline, the wife of the [plaintiff], before the said Trial Justice, with having feloniously stolen twenty-five cotton sheets” and concealing them in her house. Willis, 5 S.C. at 424 (emphasis added). The trial justice then issued a search warrant, directing the constable to search the place where the property was suspected to be concealed. Id. at 475. On appeal, the Supreme Court of South Carolina found that the plaintiffs “should have been non-suited,” as the evidence did not show malice but did show that defendant “had probable ground for suspecting the existence of the facts that constituted the substance of the charge on which the search warrant issued.” Id. at 476 (emphasis added).
Although Plaintiff contends that this case stands for the proposition that issuance of a search warrant is sufficient to institute proceedings for purposes of a malicious prosecution claim, it appears from the decision that Caroline had also been charged with felony larceny, such that the malicious prosecution claim was not based on issuance of a search warrant alone. The parties do not identify, and the undersigned has not found, any South Carolina case that has cited Willis for the proposition that issuance of a search warrant alone can initiate judicial proceedings for purposes of a malicious prosecution claim. Rather, in the almost 150 years since that decision was issued, South Carolina courts have repeatedly held that “[i]n order to sustain an action for malicious prosecution, one must first be charged with the commission of a crime and exonerated.” See Elletson, 99 S.E.2d at 386; S. Holdings, Inc., 2005 WL 8144891, at *15; see also Clemmons, 185 S.E. at 36 (“Justice dictates that where a citizen is in due form, that is, upon an affidavit and warrant issued for him by a lawful magistrate, charged with a crime, especially a felony, such citizen has the right to compel the state to proceed....”).
The fact that Plaintiff is unable to point to any South Carolina case issued later than 1875 to support her position is, in and of itself, persuasive that “modern [c]ourts generally do not consider the mere issuance of a search warrant to be sufficient to establish a claim of malicious prosecution. Further, there is no question that the use of search warrants, the reasons for their procurement, the manner in which they are requested and issued, and the laws and regulations supporting their issuance, ha[ve] dramatically changed in the last century.” See Martin v. Finley, No. 3:15-CV-1620, 2017 WL 626752, at *3 (M.D. Pa. Feb. 15, 2017) (finding that plaintiff's request “that the Court consider that the issuance and service of a search warrant, without more, constitutes the initiation of ‘criminal proceedings' is an attempt to expand the contours of a malicious prosecution claim well-beyond its intended scope”).
Although Plaintiff argues that after the search warrant was executed, she “was forced to hire defense counsel who advocated on her behalf that she should not be indicted due to her innocence,” she does not deny that she was never charged with any crimes. ECF No. 22 at 11. Rather, she states that “the case was declined for prosecution due to lack of evidence, [but] the investigation remained opened.” Id. It is widely held, however, that an investigation that does not materialize into filed charges does not give rise to a malicious prosecution claim. See Stead-Bowers v. Langley, 636 N.W.2d 334, 340-41 (Minn.Ct.App. 2001) (collecting cases and joining the many jurisdictions that “require the initiation of an action more formal than a criminal investigation in order for a malicious prosecution action to be triggered”); Martin v. Finley, No. 3:15-CV-1620, 2017 WL 626752, at *4 (M.D. Pa. Feb. 15, 2017) (granting motion to dismiss where the allegations set forth in the complaint “demonstrate that this case never proceeded beyond an initial investigation and the issuance of search warrants,” which “cannot be deemed sufficient to establish the fundamental element of any malicious prosecution claim, i.e.[,] the occurrence of a ‘criminal proceeding'”); see also Schroeder v. De Bertolo, 912 F.Supp. 23, 26 (D.P.R. 1996) (lack of filed criminal charges was a “glaring omission” preventing malicious prosecution claim).
Because Plaintiff has not alleged any facts showing that she was “charged with some criminal or civil wrong,” see S. Holdings, Inc., 2005 WL 8144891, at *15, the allegations in Plaintiff's Complaint fail to establish the first element of her malicious prosecution claim. Further, it follows a fortiori that because original judicial proceedings never were initiated, they similarly never terminated in Plaintiff's favor, such that she cannot establish the third element of her malicious prosecution claim. Accordingly, the undersigned recommends that Plaintiff's malicious prosecution claim (Count One) be dismissed for failure to state a claim.
Having found that Plaintiff has failed to state a claim for malicious prosecution, the undersigned need not address the alternative timeliness argument.
B. Plaintiff's FTCA Claim for Abuse of Process (Count Two)
In Count Two, Plaintiff asserts a claim for abuse of process. ECF No. 1 at ¶¶ 33-35. “The tort of abuse of process is intended to compensate a party for harm resulting from another party's misuse of the legal system.” Pallares, 756 S.E.2d at 133. “‘Process,' as used in this context, has been interpreted broadly to include the entire range of procedures incident to the litigation process.” Id. A plaintiff alleging an abuse of process claim must assert two essential elements: “(1) an ulterior purpose, and (2) a willful act in the use of the process that is not proper in the regular conduct of the proceeding.” Id.
The first element, an “ulterior purpose,” exists if the process is used to secure an objective that is “not legitimate in the use of the process.” Id. (citation omitted). The improper purpose “usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club.” Id. at 134. “[O]ne who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability for harm caused by the abuse of process.” Id. at 133-34 (emphasis in original) (citation omitted). Importantly, this collateral objective must be the “sole or paramount reason for acting,” and an allegation that a party had a bad or ulterior motive in bringing an action, without more, is not sufficient to sustain an abuse of process claim. Id. (further explaining that “no action lies where a person has an incidental or concurrent motive of spite or merely seeks to gain a collateral advantage from the process”).
The second element, a “willful act,” consists of three components: “(1) a willful or overt act; (2) in the use of the process; (3) that is improper because it is either (a) unauthorized or (b) aimed at an illegitimate collateral objective.” Id. at 134 (citation and internal quotation marks omitted).
In her Complaint, Plaintiff alleges the following:
By the actions described in paragraphs 12-17, 19, 21-24, 27 and 29-31, Defendant United States, by and through the agents of NCIS and DCIS, abused the criminal process, with an ulterior purpose to retaliate against Plaintiff by initiating a criminal investigation against her, and Defendant committed willful acts in the use of that process which were improper in the regular conduct of the proceedings, including but not limited to seeking, obtaining, and executing a search warrant lacking probable cause and keeping the criminal investigation open after multiple declinations and the expiration of the statute of limitations.ECF No. 1 at 11 ¶ 34. The referenced paragraphs allege facts relating to Special Agent Luckman's affidavit and application for a warrant and the alleged material inaccuracies therein; the execution of the warrant in January 2017 at SPAWAR's Charleston office; the suspension of Plaintiff's security clearance in February 2017; multiple meetings involving Plaintiff's counsel, the Special Agents, and an AUSA in 2017; the appeals by the special agents of multiple decisions declining to prosecute the case, beginning in July 2018; the decision to keep the criminal investigation open after the decisions not to prosecute; and Special Agent Mullis's testimony that he recommended Plaintiff's termination to SPAWAR and identified her termination in November 2019 as a successful result of the investigation.
1. Sufficiency of the Allegations
Defendants argue that Plaintiff's abuse of process claim fails “because she has not plausibly alleged an ulterior motive,” as required by the first element of her claim, or a “willful act,” as required by the second element. ECF No. 16 at 13-14. Plaintiff disagrees and argues that the facts are sufficient to establish both elements:
The facts set forth in the Complaint at paragraphs 9-27 establish Defendants' improper, ulterior purpose-retaliation for her prior complaints against superiors- and the wilful acts in the use of process, beginning with the fatally flawed search warrant and investigation, by the agents and SPAWAR to destroy Plaintiff's career. As alleged, the facts plausibly establish complicity and coordination between NCIS, DCIS, and individuals within SPAWAR in accomplishing their ulterior, retaliatory purpose from the initial complaint from Ryan [Gunst] (the subject of several of Plaintiff's EEO claims) regarding the concocted conflict of interest (Complaint at ¶¶ 9-11), to the manner in which NCIS and DCIS agents secured and executed the search warrant (id. at ¶¶ 12-16), to SPAWAR's violation of its own procedures and use of the search warrant and open investigation to improperly justify its refusal to forward necessary documentation for the adjudication of Plaintiff's security clearance and ultimately Plaintiff's termination despite knowledge of the multiple prosecutorial declinations (id. at ¶¶ 17- 20. 25-27), to the investigation inexplicably remaining open beyond the applicable statute of limitations (id. at ¶¶ 17-20. 25-27).
ECF No. 22 at 13-14 (footnote omitted).
The Complaint's abuse of process claim explicitly alleges that “the United States, by and through the agents of NCIS and DCIS, abused the criminal process with an ulterior purpose to retaliate against Plaintiff by initiating a criminal investigation against her.” ECF No. 1 at ¶ 34. The undersigned agrees with Defendants that, as pleaded, Plaintiff bases her abuse of process claim on the ulterior motivations of a narrow class of federal employees: “the agents of NCIS and DCIS.” Id. Contrary to the argument in her Response, Plaintiff's allegations do not pin her claim more broadly on the motives or actions of SPAWAR, or the Navy, the Department of Defense, or the federal government writ large. And although she alleges that retaliation was the NCIS and DCIS agents' ulterior purpose, see id., she fails to support this conclusion with factual allegations sufficient to render it plausible. Plaintiff alleges that she filed a discrimination claim against her co-worker Gunst, causing Gunst in retaliation to falsely report her to the SPAWAR Inspector General's Office in 2015 regarding issues with her OGE 450 form. Id. at ¶ 9. She further alleges that the SPAWAR Inspector General conducted no independent investigation, but simply referred the complaint to NCIS, which investigated jointly with DCIS. Id. at ¶ 11. She also alleges that NCIS and DCIS agents relied upon Gunst's retaliatory claims in applying for the search warrant. Id. at ¶ 14. While these allegations may be sufficient to allege that retaliation motivated Gunst to levy exaggerated charges against Plaintiff, the Complaint contains no factual allegations sufficient to impute Gunst's motivation to the NCIS and DCIS agents, much less to such an extent that the retaliatory motivation could be considered the agents' sole or primary purpose in initiating the investigation and obtaining and executing the search warrant. See Pallares, 756 S.E.2d at 133-34. As such, the undersigned agrees with Defendants that Plaintiff's Complaint does not contain sufficient factual allegations to allege the first element of her claim. Because the Complaint fails to state a plausible claim for abuse of process, that claim should be dismissed. See Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002) (explaining that plaintiff has the burden of alleging facts sufficient to state all the elements of a claim).
Having found that Plaintiff's allegations cannot establish the first element of her abuse of process claim, the undersigned declines to address the arguments regarding the second element.
2. Timeliness of the Claim
Alternatively, Defendants argue that Plaintiff's abuse of process claim fails because it is untimely. ECF No. 16 at 7. Specifically, they argue that based on the allegations in the Complaint, Plaintiff's abuse of process claim accrued more than two years before she submitted an administrative claim to either the Department of the Navy or the Department of Defense. The undersigned agrees.
The FTCA requires that an administrative claim must first be filed with the appropriate federal agency before commencement of a civil action in a federal district court. See 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency[.]”). Further, a “tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). Because the FTCA's statute of limitations is not jurisdictional, see United States v. Kwai Fun Wong, 575 U.S. 402, 420 (2015), a motion to dismiss based on the FTCA's time bar is properly analyzed under Rule 12(b)(6).
Plaintiff alleges that she submitted an administrative claim to the Department of the Navy on December 30, 2019, with a separate administrative claim to the Department of Defense, Office of the Inspector General (DoD IG) “based on essentially the same facts,” on February 11, 2021. ECF No. 1 at ¶ 7. Thus, to be timely, Plaintiff's FTCA claims against employees of the Navy must have accrued on or after December 30, 2017, and, as to employees of the DoD IG, on or after February 11, 2019.
Plaintiff suggests that because her administrative claim made in 2021 to the DoD IG contained the same allegations regarding Defendant Mullis that were contained in her 2017 administrative claim submitted to the Navy in 2019, and because the Navy assumed responsibility for processing both claims pursuant to 28 C.F.R. § 14.2(b)(2), the Court should consider the 2019 claim as encompassing claims against both Navy employees and DoD employees. See ECF No. 22 at 9 n.5. Defendants dispute Plaintiff's suggestion that she did not have to submit separate administrative claims to each affected agency. ECF No. 27 at 10 n.7. The undersigned finds it unnecessary to resolve this dispute, however, because even if the December 2019 claim is used for purposes of determining the accrual deadline as to claims against both Navy and DoD employees, the undersigned's recommendation would be the same.
Federal, not state law, determines when an FTCA claim accrues. Gould v. U.S. Dep't of Health & Human Servs., 905 F.2d 738, 742 (4th Cir. 1990) (en banc). “Under federal law a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc). This means “that for a cause of action to accrue, it is critical that the plaintiff know that he has been hurt and who inflicted the injury.” Id.
Plaintiff alleges in her Complaint that Special Agent Luckman sought a search warrant from a United States Air Force judge on January 18, 2017. ECF No. 1 at ¶ 12. She further alleges that Special Agent Luckman presented and swore to an affidavit in support of that warrant that “was riddled with material inaccuracies and misstatements made in reckless disregard of the truth,” Id. at ¶ 13, and that “the affidavit on its face failed to establish probable cause for the alleged violations,” Id. at ¶ 15. Nevertheless, the Air Force official signed the warrant on January 18, 2017, and six federal agents (including Special Agents Luckman and Mullis) executed the warrant that day. Id. at ¶¶ 15, 16. Plaintiff further alleges that the affidavit was presented as support to suspend her from all of her local security access on February 6, 2017. Id. at ¶ 17. She alleges that in 2017, Special Agents Luckman and Mullis met with her lawyer and an Assistant U.S. Attorney, and they “made a presentation perpetuating the errors, omissions, and misstatements of the search warrant affidavit.” Id. at ¶ 21. “Later, on or about August 28, 2017,” Plaintiff and her husband attended a meeting with those same people, where Special Agent Mullis shouted at her and threatened to ruin her career. Id. at ¶ 22.
All of the events described above took place more than two years before she submitted an administrative claim to the Department of the Navy on December 30, 2019, and almost four years before she submitted a separate administrative claim to the DoD IG on February 11, 2021. Moreover, according to the allegations, Plaintiff learned about the alleged misstatements in the affidavit in February 2017 when it was presented as support for suspending her local security access and again when her attorney attended a presentation “perpetuating the errors, omissions, and misstatements of the search warrant affidavit,” sometime before August 28, 2017. Id. at ¶¶ 17, 21-22. Thus, by September 2017, Plaintiff possessed sufficient facts about the harm done to her and who caused the injury, as she knew that Special Agents Luckman and Mullis had executed a search warrant of her office while she was present; that the affidavit supporting the application for the search warrant contained errors, omissions, and misstatements, and failed to show probable cause; that those same special agents were continuing to investigate her and perpetuate those same errors, omissions, and misstatements; and that Defendant Mullis threatened to ruin her government career. Plaintiff's cause of action for abuse of process, therefore, accrued no later than September 2017. See Nasim, 64 F.3d at 955. Because Plaintiff did not file an administrative claim within two years of the accrual of her claim, her claim is barred by the FTCA. Accordingly, her abuse of process claim should be dismissed.
Plaintiff appears to advance a continuing violation theory to avoid a finding that her claims are time-barred, as she briefly argues that her abuse of process claim and her outrage claim are based on not just one discrete act, “but instead a series of separate acts which continued up until Plaintiff's termination and beyond.” ECF No. 22 at 10. The undersigned is unpersuaded. The Fourth Circuit has recognized that in cases where “the plaintiff can show that the illegal act did not occur just once, but rather in a series of separate acts, and if the same alleged violation was committed at the time of each act, then the limitations period begins anew with each violation.” A Soc'y Without A Name v. Va., 655 F.3d 342, 348 (4th Cir. 2011) (citation and internal quotation marks omitted). However, “continual unlawful acts are distinguishable from the continuing ill effects of an original violation because the latter do not constitute a continuing violation.” Id. In making her argument, Plaintiff does not point to any specific factual allegations that she contends support a continuing violation theory. Moreover, although the factual allegations in the Complaint suggest continuing ill effects of the alleged abuse of process premised on the agents' submission of the affidavit in support of the search warrant or the execution of the warrant, they do not show that those same alleged abuses were repeated. See Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 189 (4th Cir. 1999) (rejecting continuing violation argument upon finding that “[a]t bottom, appellants' continuing violation argument rests on the alleged ongoing effects of the original decision to locate the highway in proximity to Jersey Heights”); Nat'l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991) (“A ‘continuing wrong' theory should not provide a means of relieving plaintiff from its duty of reasonable diligence in pursuing its claims.”) (citation and internal quotation marks omitted).
C. Plaintiff's FTCA Claim for Outrage (Count Three)
Count Three of Plaintiff's Complaint asserts a claim for outrage, also known as intentional infliction of emotional distress. ECF No. 1 at ¶¶ 36-38. To establish a claim for outrage, a plaintiff must prove the following elements: (1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from defendant's conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community; (3) defendant's actions caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was severe so that no reasonable man could be expected to endure it. Argoe v. Three Rivers Behavioral Ctr. & Psychiatric Solutions, 697 S.E.2d 551, 555 (S.C. 2010); Hansson v. Scalise Builders of S.C., 650 S.E.2d 68, 70 (S.C. 2007); see Park v. Se. Serv. Corp., 771 F.Supp.2d 588, 591-92 (D.S.C. 2011).
To establish liability, it is not:
enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.Fulghum v. Wise Seats, Inc., No. CIV.A. 4:10-02112, 2012 WL 1032594, at *4 (D.S.C. Mar. 27, 2012) (quoting Restatement (Second) of Torts § 46, Comment d). The “question of whether a defendant's conduct may be reasonably regarded as so extreme and outrageous as to allow recovery is a question for the court to determine in the first instance.” Wright v. Sparrow, 381 S.E.2d 503, 506 (S.C. Ct. App. 1989).
In her Complaint, Plaintiff alleges that Defendant United States, through its conduct in the investigation of Plaintiff, “recklessly inflicted severe emotional distress, that conduct was extreme and outrageous, Defendant's actions caused Plaintiff emotional distress, and the emotional distress suffered by the Plaintiff was severe.” ECF No. 1 at ¶ 37. She further alleges that the “United States' conduct resulted in damages to Plaintiff, including emotional distress, humiliation, and other intangible damages.” Id. at ¶ 38. Plaintiff alleges that on January 18, 2017, six federal agents, including Special Agents Luckman and Mullis,
descended upon Plaintiff's workplace at SPAWAR (two of whom were in full tactical gear and bearing assault rifles), detaining Plaintiff and executing the search warrant. Agents seized Plaintiff's work computer and documents as well as personal items. While Plaintiff was detained by agents, she was paraded around the office and humiliated in front of her coworkers.Id. at ¶ 16. She further alleges that
on or about August 28, 2017, Defendants Mullis and Luckman met with Plaintiff, her husband, Bart Daniel, and AUSA Rhett Dehart at the Charleston office of the U.S. Attorney's Office in the District of South Carolina. During this meeting, Defendant Mullis shouted at Plaintiff and threatened to ruin her government career. Defendant Mullis' actions at the meeting prompted an apology from AUSA Dehart to Mr. Daniel afterwards.Id. at ¶ 22. A review of the Complaint reveals no additional allegations setting forth facts in support of her outrage claim.
Defendants argue that Plaintiff's outrage claim should be dismissed because it is untimely and because it fails to allege sufficient facts to state a claim. The undersigned agrees.
First, the claim, as alleged in the Complaint, is barred by the FTCA's two-year statute of limitations. As explained above, Plaintiff did not file an administrative claim before December 30, 2019; therefore, for her claim to be timely, it must have accrued on or after December 30, 2017. However, the specific factual allegations supporting an outrage claim-the January 2017 execution of a search warrant in which Plaintiff was detained, paraded around in front of coworkers, and “humiliated”; and the August 2017 meeting where Special Agent Mullis shouted at Plaintiff and threatened to ruin her government career-document events occurring months before December 30, 2017. Moreover, given the nature of the allegations, Plaintiff knew on the dates those events occurred that she had been humiliated, shouted at, or threatened, and who the persons were that acted that way towards her. Thus, her outrage claim based on those events accrued, at the latest, by September 2017. Accordingly, to the extent Plaintiff bases her outrage claim on these factual allegations, her claim is time-barred.
Even if her claim were not untimely, the alleged conduct cannot reasonably be regarded as so “extreme and outrageous” as to exceed “all possible bounds of decency,” nor could it be regarded as “atrocious” or “utterly intolerable in a civilized community.” See Hansson, 650 S.E.2d at 70; see also Callum v. CVS Health Corp., 137 F.Supp.3d 817, 856-57 (D.S.C. 2015) (granting motion to dismiss upon finding that defendant's alleged conduct-laughing at and denying Plaintiff's request for an accommodation, insulting Plaintiff with a racial slur, speaking to Plaintiff in an aggressive tone, and threatening to call the police on Plaintiff-did “not rise to the level of extreme and outrageous conduct necessary to state a claim for [outrage]”); Moore v. Rural Health Servs., Inc., No. CIV.A.1:04 376 RBH, 2007 WL 666796, at *17 (D.S.C. Feb. 27, 2007) (holding that where defendant board members came to Plaintiff's workplace, called him a “racist” and threatened to fire him from the board, called a sheriff's deputy to have him escorted off the property, shouted that he was a thief, and gave a newspaper reporter material from Plaintiff's personnel file, such conduct was not sufficient “to meet the high standard for establishing Plaintiff's outrage claim under South Carolina law”); Cosby v. Legal Servs. Corp., No. CIV.A.
Second, the allegations regarding events occurring after December 30, 2017, do not set forth any facts detailing, or even suggesting, the type of extreme and outrageous conduct required to establish an outrage claim. See Hansson, 650 S.E.2d at 70. And, Plaintiff does not point to any such factual allegations in her Response, but rather requests leave to amend the claim to cure any deficiency, if the Court finds her allegations insufficient. See ECF No. 22 at 15-17 & n.10. Because Plaintiff's post-December 2017 allegations are insufficient to state an outrage claim, her claim appears to be based only on events occurring before December 30, 2017, such that her claim is time-barred. Accordingly, the undersigned recommends that the outrage claim be dismissed.
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that the Joint Motion to Drop Parties (ECF No. 26) be GRANTED and that Defendants' Motion to Dismiss (ECF No. 16) be GRANTED.
IT IS SO RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).