Tort/Negligence – RICO – NCIS Agents – Terrorism Suspect

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Abou-Hussein v. Mabus (Lawyers Weekly No. 002-160-15, 11 pp.) (Richard Mark Gergel, J.) 2:14-cv-02597; D.S.C.

Holding: According to plaintiff’s own allegations, he was an unpaid informant for the Federal Bureau of Investigation before unknown Naval Criminal Investigative Service agents began investigating him; accordingly, losing his status as an FBI informant has not caused any injury to plaintiff’s “business or property” as is required to state a claim under the Racketeering Influenced and Corrupt Organizations Act.

This action is dismissed.

Similarly, plaintiff’s allegations that he has potentially been included on the terrorist watch list and has a “lifestyle of constant guardedness” does not constitute injury to “business or property” cognizable under RICO.

Since plaintiff has not alleged that he is an employee, contractor, or agent of the defendant unknown NCIS agents, a False Claims Act retaliation claim cannot lie against them.

In his Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), claim, plaintiff essentially alleges that unknown NCIS agents have falsely accused him of terrorist activities. But plaintiff has not alleged that he has been arrested or that any other actions have been taken against him as a result of these allegedly false allegations, only that unknown NCIS agents wrote false reports to the General Counsel for the Navy. The U.S. Constitution does not forbid libel and slander. Thus, allegations of defamation alone do not suffice to form a 42 U.S.C. § 1983 claim that is cognizable in federal court.

The Privacy Act of 1974, 5 U.S.C. § 552a, limits the kind of information that can be collected or disclosed by government agencies and provides a private cause of action against an agency for violating the Act’s provisions. However, an agency is the only proper defendant under the Act; individuals may not be named as defendants in such actions. Therefore, plaintiff cannot state a Privacy Act claim against unknown NCIS agents.

In support of his declaratory judgment claim under the Administrative Procedures Act, plaintiff argues that “a threat of arrest requires a declaratory judgment” and that “a threat of plaintiff’s extrajudicial detention or commitment to a mental health institution in the Soviet tradition, similarly requires a declaratory judgment.” However, plaintiff has not articulated what statute he has been “threatened” with, alleged that such a statute is unconstitutional, or alleged any connection between the APA and his alleged “threat of arrest.” Plaintiff has simply not pled sufficient factual content to state a claim for declaratory relief.

Finally, plaintiff complains that the government has provided documents to the court under seal, that he has not seen these documents, and that the magistrate judge failed to docket and give notice of a motion to seal. The government has filed one exhibit under seal. The government’s motion to seal was publicly docketed and served on plaintiff electronically. Plaintiff received electronic service of this document at his email address. Furthermore, the sealed document is a settlement agreement signed by plaintiff, so he has seen the document. In any event, the court did not consider the sealed document in reaching its decision.

Dismissed.