Opinion
No. 14 Civ. 7615 (CM)
10-21-2015
AHMED MOHAMED, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, UNITED STATES OF AMERICA, JOHN DOES 1 - 10, Defendants.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
:
Pro se Plaintiff Ahmed Mohamed was an FBI informant. After he helped the FBI bring down a network of corrupt police officers, the FBI left him high and dry, by allegedly failing to provide him with the compensation he was promised. As a result, Mohamed brings breach of contract and several other common law claims against the FBI, the United States, and unidentified John Does ("Defendants" or "the Government").
Defendants move to dismiss these claims, asserting that this court does not have jurisdiction to hear them, or alternatively, that the complaint fails to state a claim under Rule 12(b)(6).
For the reasons discussed below, Defendants' motion is GRANTED.
BACKGROUND
Unless otherwise noted, the following facts are taken from the plaintiff's complaint.
Mohamed alleges that he served as an FBI informant from August 2009 until sometime in 2011. Am. Compl., ¶¶ 1-2. During this time, he assisted the FBI's investigation of a contraband ring involving corrupt New York and New Jersey police officers, which led to a prosecution in this district. Id. at ¶ 2. Although Mohamed does not detail his precise role, he alleges that his work became increasingly life-threatening towards the end of the investigation. Id. at ¶ 3. For example, he says that on one occasion he was "negligently left alone with a group of known criminals and almost $500,000 in cash." Id.
Later, he claims that "the FBI recklessly, negligently, and carelessly introduced an erratic and unpredictable undercover agent into [Mohamed's] operations." Id. After a violent incident involving this unnamed undercover agent ("the UC agent"), Mohamed alleges that another FBI agent searched him in the middle of a street "without any basis in law or fact." Id.
Mohamed claims that despite the assistance he provided and the risks he endured, he has not received the compensation "that was promised to [him] following the end of [his] employment period" and that he and his family "are now in severe danger due to FBI treatment." Id. at ¶ 5. Although he refers to a promise of compensation, which was to include a "lump sum payment" after his employment ended, Mohamed does not describe the details of any compensation agreement - not even the amount he was supposed to be paid. See id. at ¶ 1. In support of his entitlement to payment, Mohamed cites to a sealed criminal complaint attached to his complaint, which states in a footnote: "The CI, who is not a U.S. citizen, has been assisting the FBI in exchange for payment and aid in remaining in the United States." Ex. B, at 6 n.2.
Mohamed alleges that he has filed "two complaints with the assistant director of the FBI as well as with Sandy Bango in Washington, D.C.," but he attaches to the complaint only a letter that he sent to the U.S. Attorney for the Southern District of New York on June 26, 2013, via email to the FBI's New York field office. The letter mostly pertains to Mohamed's complaints about the UC agent's effect on the investigation, but also states that an FBI agent named Bill "assured me from the start I would receive up to 100 dollars a day to support me and my family [and] since August not one penny has come my way." Ex. A.
Plaintiff asserts seven causes of action based on these allegations. The majority of the claims arise from the FBI's alleged failure to pay Mohamed the compensation he was promised. He brings claims for (1) breach of contract, (2) breach of fiduciary duty/duty of good faith and fair dealing, (3) fraud and misrepresentation, (4) misappropriation, embezzlement, and conversion, (5) constructive trust, (6) negligence, and (7) negligent infliction of emotional distress. As discussed below, Chief Judge Preska also read the complaint broadly to assert a claim for violation of Mohamed's Fourth Amendment rights under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for the allegedly unlawful search he describes.
PROCEDURAL HISTORY
Mohamed filed his complaint on Sep. 15, 2014. Docket #2. On Nov. 4, 2014, Chief Judge Preska ordered Plaintiff to amend his complaint if he wanted to proceed. Docket #4. She noted several deficiencies that Mohamed's amended complaint needed to rectify, such as his failure to allege facts showing he had exhausted any claims subject to the FTCA; she also notified him that this court did not have jurisdiction over contract claims seeking more than $10,000. Id. She also informed Mohamed that his putative Bivens claim failed to state a claim as pleaded, so that to proceed he needed to "allege any available facts giving rise to the inference that Defendants lacked legal justification for the search." Id. at 9.
Chief Judge Preska also noted that Mohamed invoked the Fair Labor Standards Act ("FLSA") as one of several grounds for jurisdiction in his original complaint - though he did not include sufficient supporting facts for such a claim. He removes this reference in his amended complaint, so I do not consider Mohamed to press any FLSA claim in his amended complaint. --------
On Jan. 7, 2015, Mohamed filed his amended complaint. Docket #6. Despite Chief Judge Preksa's instructions, his substantive allegations and claims are virtually identical to those in his original complaint. He did make several changes: he added the United States and John Doe defendants in the case caption (though not in the separate causes of action, where he left the FBI as the lone wrongdoer), attached several documents about the investigation he assisted, added several factual embellishments, and clarified that the $5,000,000 ad damnum related to Counts Two through Seven, while he sought only "an amount to be proven at trial" on Count One, his breach of contract claim.
On May 8, 2015, the Government moved to dismiss the amended complaint. Docket #17.
DISCUSSION
The Government contends that this court should dismiss the complaint for want of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), or alternatively for failure to state a claim under Rule 12(b)(6).
I. 12(b)(1) and 12(b)(6) Standards
Rule 12(b)(1) provides for the dismissal of a complaint when the federal court lacks subject matter jurisdiction. In considering a motion to dismiss for lack of subject matter jurisdiction, the court must assume the truth of the plaintiff's factual allegations. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The party asserting subject matter jurisdiction bears the burden of establishing it by a preponderance of the evidence, see Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002), but a court is not to draw inferences favorable to the party asserting jurisdiction, see Norton v. Larney, 266 U.S. 511, 515 (1925). Because the lack of subject matter jurisdiction renders other defenses moot, a court usually deals with Rule 12(b)(1) issues first. See Friedman v. United States, 2003 WL 1460525 at *5 (S.D.N.Y. Mar. 18, 2003); Prestop v. Hamlett, No. 99 Civ. 2747(GBD), 2001 WL 363676 at *6 (S.D.N.Y. Apr. 12, 2001).
In deciding a motion to dismiss under Rule 12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003); see also Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007). However, to survive a motion to dismiss, "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). A court must interpret pro se filings "to raise the strongest arguments that they suggest." Harris v. Westchester Cnty. Medical Ctr., No. 08 Civ. 1128, 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)).
Because I find that all of Plaintiff's claims, save the Bivens claim, should be dismissed on jurisdictional grounds under Rule 12(b)(1), I need not address the Government's arguments that these claims also fail to meet the pleading standard of Rule 12(b)(6). However, the purported Bivens claim must be dismissed for failure to state a claim under Rule 12(b)(6).
II. The Governments' Motion to Dismiss is GRANTED
The United States cannot be sued without its consent. United States v. Mitchell, 463 U.S. 206, 212 (1983). Congress can waive this immunity from suit, but only through unequivocal statutory language. Because waiver is within Congress's sole power, it can impose conditions on the waiver. United States v. Dalm, 494 U.S. 596, 608 (1990). If the United States has not waived its sovereign immunity, or if it has but the conditions attached to such waiver have not been met, a federal court lacks subject matter jurisdiction over an action against the Government. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Waivers of sovereign immunity and their conditions, whether substantive, procedural, or temporal, must be strictly applied against the claimant. Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998).
A. This Court Lacks Jurisdiction Over Mohamed's Contract Claims (Counts One and Two)
The Tucker Act provides a limited waiver of sovereign immunity for contract claims against the United States. 28 U.S.C. § 1491. Under the Tucker Act, the Court of Federal Claims has exclusive jurisdiction over contract claims seeking more than $10,000, while federal district courts have concurrent jurisdiction over contract claims seeking $10,000 or less. 28 U.S.C. § 1346(a)(2). Where the plaintiff has not waived "his right to monetary relief in excess of $10,000, the Tucker Act does not provide for [waiver of] the United States' sovereign immunity from suit in this Court." Greene v. U.S. Army Reserve, 222 F. Supp. 2d 198, 201 (D. Conn. 2002). Because "the plaintiff asserting subject matter jurisdiction has the burden of proving that it exists by a preponderance of the evidence," Czetwertynski v. United States, 514 F. Supp. 2d 592, 594 (S.D.N.Y. 2007), the plaintiff must establish that the claims asserted are below the monetary threshold.
Mohamed asserts two contract claims in his complaint: one for breach of contract and one denominated "breach of fiduciary duty, duty of good faith and fair dealing." The latter claim - which is really a combination of two separate claims - simply restates the breach of contract he alleges, because it is based on the Government's failure to pay Mohamed what he believes he was promised. See Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc., 837 F. Supp. 2d 162, 193, 205 (S.D.N.Y. 2011). Count Two is thus properly considered a contract claim subject to the Tucker Act's jurisdictional provision.
Mohamed has been informed multiple times that the Tucker Act deprives this court of jurisdiction for contract claims seeking more than $10,000. First, Chief Judge Preska told Mohamed that his breach of contract claim - and all those claims stemming from a breach of contract - could not be heard in this court if he sought more than $10,000 in damages. Her order instructed him to "clearly state the amount of the monetary damages he seeks for each cause of action alleged." Order to Amend at 6. Instead, in his amended complaint Mohamed claimed $5,000,000 on Counts Two through Seven collectively, and simply declared that he sought "an amount to be proven at trial on the first cause of action." Am. Compl. at 4. Count Two is the restated breach of contract claim, and Mohamed seeks $5,000,000 on claims including that one.
Similarly, when the Government moved to dismiss, it reiterated this warning to Mohamed: "until and unless Plaintiff agrees to waive his right to monetary relief in excess of $10,000 on his breach of contract claim, Plaintiff must pursue that claim before the Court of Federal Claims." Gov't Br. at 10. Again, Mohamed ignored this. In his opposition brief, he does not even mention his breach of contract claim - let alone clarify the amount he seeks or waive a right to relief in excess of $10,000.
Because Mohamed has not established that this court has jurisdiction over his contract claims, Counts One and Two must be dismissed. Dismissal is without prejudice; Mohamed can bring an action against the United States in the Court of Federal Claims in Washington, D.C.
B. This Court Lacks Jurisdiction Over Mohamed's Claims Arising Out Of Intentional Torts (Counts Three, Four, And Five)
The Federal Tort Claims Act ("FTCA") waives the federal government's sovereign immunity for certain kinds of tortious conduct committed by federal officers or employees acting within the scope of their employment. See 28 U.S.C. § 1346(b)(1). But "this broad waiver of sovereign immunity is subject to a number of exceptions set forth in § 2680." Millbrook v. United States, 133 S. Ct. 1441, 1442 (2013). "One such exception, relating to intentional torts, preserves the Government's immunity from suit for any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." Id. (alterations and quotation marks omitted) (quoting Section 2680(h)).
Mohamed's claim for fraud and misrepresentation is based on the allegation that, "The FBI knowingly and intentionally misrepresented to me the amount of compensation I was to receive for my services." Am. Compl., at 3. The intentional tort exception expressly reserves the Government's immunity for "misrepresentation" claims. 28 U.S.C. § 2680(h). Therefore, Count Three must be dismissed.
The Government urges the court to treat Count Four (misappropriation, embezzlement, and conversion) and Count Five (constructive trust) the same way, noting that Section 2680(h) bars claims, not just for the torts it lists, but all claims "arising out of the enumerated torts. In response, Plaintiff cites to Levin v. United States, 133 S. Ct. 1224, 1228 n.1 (2013), in which the Supreme Court stated in a footnote that the intentional tort exception "does not remove from the FTCA's waiver all intentional torts, e.g., conversion and trespass." But the Supreme Court's decision - which dealt with whether the Gonzalez Act permitted suits for medical battery despite the intentional tort ban - does not purport to limit the longstanding interpretation of the broad "arising out of" language in Section 2680(h)'s intentional tort ban. See, e.g., Guccione v. United States, 847 F.2d 1031 (2d Cir. 1988). The Court simply made the observation that some intentional torts, such as conversion and trespass, were not enumerated in Section 2680(h). However, even if a claim does not assert an enumerated tort, it is still barred if it "aris[es] out of an enumerated tort.
Here, Count Four does no more than state the legal conclusion that the FBI misappropriated, embezzled, and converted funds that should have been paid to Mohamed. Construing the complaint liberally, the only basis for such a claim is Mohamed's allegations of misrepresentation and fraud. Thus, Plaintiff's claim for misappropriation, embezzlement, and conversion arises out of his misrepresentation claim, which is expressly listed in Section 2680(h). As such, Count Four must be dismissed.
Even if I construed Count Four to assert a conversion claim under the FTCA that was not barred by the intentional tort exception, I would have to dismiss it for failure to exhaust administrative remedies (see infra, pp. 10-13).
Count Five, asserting a claim for constructive trust, must be dismissed as well. At its core, "a constructive trust is an equitable remedy . . . to prevent unjust enrichment." Counihan v. Allstate Ins. Co., 194 F.3d 357, 361 (2d Cir. 1999). "New York law is clear that a constructive trust is an equitable remedy intended to be 'fraud-rectifying.'" In re First Cent. Fin. Corp., 377 F.3d 209, 216 (2d Cir. 2004) (quoting Bankers Sec. Life Ins. Soc. v. Shakerdge, 49 N. Y. 2d 939, 940 (1980)). Therefore, Mohamed's constructive trust claim arises out of the alleged misrepresentation and fraud. It is therefore barred by the intentional tort exception, and must be dismissed.
C. This Court Lacks Jurisdiction Over Mohamed's Claims Under The Federal Tort Claims Act (Counts Four, Six, And Seven)
The FTCA permits suits against the United States for tort claims involving the conduct of federal employees acting within the scope of their employment. 28 U.S.C. § 2679(b)(1); Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991). However, "The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court. This requirement is jurisdictional and cannot be waived." Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
To exhaust his administrative remedies, a claimant must present his claim to the appropriate agency in writing within two years of the claim's accrual, and then file a federal lawsuit six months after the agency's final denial of the claim. See 28 U.S.C. § 2401(b). Under 28 C.F.R. § 14.2(a), "a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident." (Emphasis added.) Letters to an agency that "do not contain a demand for money damages in a sum certain" do not constitute presentation of a claim under the FTCA. Czetwertynski v. United States, 514 F. Supp. 2d 592, 596 (S.D.N.Y. 2007; see also Johnson v. Smithsonian Inst., 189 F.3d 180, 190 (2d Cir. 1999); Liriano v. ICE/DHS, 827 F. Supp. 2d 264, 269 n.3 (S.D.N.Y. 2011).
In United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015), the Supreme Court recently held that the FTCA's time limits for filing an administrative claim and initiating suit in federal court are not "jurisdictional." But the Court's opinion did not address - and therefore did not disturb - the well-established principle that certain prerequisites to filing suit under the FTCA, such as exhaustion of administrative remedies, are jurisdictional in nature, and are not subject to waiver or tolling. Celestine, 403 F.3d at 82; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); Freitas v. Cooper, 2014 WL 494525, at *3 (S.D.N.Y. Feb. 5, 2014). Indeed, since Wong, federal courts have continued to dismiss FTCA claims for failure to exhaust administrative remedies on jurisdictional grounds. See, e.g., Robertson v. Harvey, 2015 WL 5522133, at *3 (E.D. Cal. Sept. 17, 2015); Gabriel v. United States, 2015 WL 5444294, at *3 (D. Colo. Sept. 16, 2015); Peavey v. United States, 2015 WL 5063164, at *9 (D.D.C. Aug. 26, 2015).
This court lacks jurisdiction over Mohamed's FTCA claims because he did not exhaust his administrative remedies before filing suit. None of the documents in the record qualifies as the required presentation of a claim. Their main deficiency is failure to state a sum certain, but the documents also fail to actually assert any tort claim against the Government. At best, the letters below could be construed to provide notice of a contract claim, but that is insufficient for exhaustion purposes under the Federal Tort Claims Act.
The letter Mohamed emailed to the FBI on June 26, 2013, addressed to U.S. Attorney Preet Bharara, complains about Mohamed's treatment during the investigation, particularly his dissatisfaction with new FBI handlers and the erratic UC agent. Am. Compl., Ex. A. Mohamed also explains that he was not compensated for his services, and concludes: "I want [you] to know I have no money and cannot exist like this and agent Bill assured me from the start I would receive up to 100 dollars a day to support me and my family [and] since August not one penny has come my way. I believe they owe this to me till now." Id.
The letter fails to assert any tort claim or make a demand for money damages in a "sum certain." The statement that Mohamed was promised "up to 100 dollars a day" is not a sum certain, particularly when he does not describe how long he claimed to be entitled to receive such compensation or what factors influenced how much he would be paid "up to" the daily maximum. Because "one purpose of the specificity requirement is to give the government adequate notice of the extent of the claimant's demands," Adams by Adams v. U.S. Dep't of Hous. & Urban Dev., 807 F.2d 318, 321 (2d Cir. 1986), Plaintiff's failure to specify the time period of payment or the factors determining compensation is fatal. This is particularly true here where Plaintiff now seeks $5,000,000 in his complaint, asserts that he is also owed an unspecified "lump sum payment," and contends that he was promised "compensat[ion] for my services on a continual basis after my employment period ended." Am. Compl., at 3 (emphasis added).
Mohamed also referenced a letter to "Sandy Bango" in his complaint, although he did not include this letter with his submission. Mohamed does not explain who this individual is or when he sent such person a letter. The Government, however, filed a declaration from FBI Unit Chief Lori Lee Holland with its motion to dismiss that attaches an October 24, 2011 letter from Mohamed; it is not addressed to any individual in particular and makes no mention of Sandy Bango. The letter was found in the FBI's files. As with Mohamed's letter to the U.S. Attorney, the October 2011 letter bemoans the inadequacy of Mohamed's new FBI handlers. Mohamed writes that although he risked his life for the investigation, the FBI abandoned him after the arrests were made, "strand[ing] [him] with no compensation what so ever [sic] from the bureau." Holland Decl., Ex. A. He continued, "I feel I have worked with you and done my best to help you and now it is up to you to continue with the promises made to me by your department to make my life and my family safe and comfortable to go on." Id. He says he expects payment of "the remainder of the compensation promises made by your department to me immediately." Id.
This letter also does not constitute the presentation of a claim under the FTCA. It fails to assert any tort claim or mention any amount of damages Mohamed claims he is owed. Although there are allusions to promises of compensation, the letter contains absolutely no details about the content of those promises.
Finally, Mohamed attaches to his opposition brief a series of text messages that purport to be between him and several FBI agents. Some of the text messages appear to relate to payments to Mohamed, including a payment "at the conclusion of the case," but the text messages - like all of Plaintiff's other documents - does not assert a tort claim or a demand for money damages in a sum certain.
None of these documents constitutes the presentation of a claim required before a plaintiff may bring a claim in federal court under the FTCA. And the Government's declaration asserts that a search of the FBI's records revealed "no record of any administrative claim submitted to the FBI between January 1, 2011 and the present, by or on behalf of Ahmed Mohamed." Holland Decl. ¶ 4. Mohamed points to no other documents from which I could infer that a claim was properly made.
Because this court does not have jurisdiction over unexhausted FTCA claims, Counts Four, Six, and Seven must be dismissed.
D. Plaintiff Failed to Allege Any Facts Supporting a Bivens Claim For Violation of His Fourth Amendment Rights
Although the Government does not mention it, Chief Judge Preska liberally construed Plaintiff's original complaint to assert a Bivens claim based on the following allegation in the original complaint: "Additionally, due to a violent incident involving this new undercover agent, FBI agents searched me and humiliated me in the middle of the street." Compl., ¶ 3. She expressly informed Mohamed that to adequately state such a claim, his amended complaint needed to "allege any available facts giving rise to the inference that Defendants lacked legal justification for the search." Order to Amend at 9. Plaintiff's amended complaint adds no relevant factual allegations. He adds the name of the FBI agent who allegedly searched him - William Anzorella - and adds that Anzorella did it "illegally in front of his supervisor without any basis in law or fact." Am. Compl., ¶ 3. But he alleges no facts giving rise to an inference that the agent lacked legal justification for any search; all he has is the bare legal conclusion that no justification existed. This is insufficient to state a claim for violation of his Fourth Amendment rights.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED. The Clerk of the Court is directed to remove Docket No. 17 from the Court's list of pending motions and to close the file. Dated: October 21, 2015
/s/_________
U.S.D.J. BY ECF TO ALL COUNSEL