United States District Court, W.D. Washington, Tacoma
JOHN D. FLANAGAN II, Plaintiff,
FEDERAL BUREAU OF INVESTIGATION AND UNKNOWN OFFICIALS AND FEDERAL ACTORS OF THE FBI, Defendants.
ORDER ON FEDERAL BUREAU OF INVESTIGATION'S MOTION
TO DISMISS AMENDED COMPLAINT
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Federal Bureau of
Investigation's (“FBI”) Motion to Dismiss
Amended Complaint. Dkt. 17. The Court has considered the
pleadings filed in support of and in opposition to the motion
and the file herein.
acting pro se, filed this case, pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971), asserting that the
FBI and unknown FBI officials and actors (“Individual
Bivens Defendants”) violated his Second
Amendment rights when they denied him a federal firearm
license three times via the National Instant Criminal
Background Check System (“NICS”). Dkt. 10.
FACTS AND PENDING MOTION
following facts are taken from the Amended Complaint and
attached exhibits (Dkts. 10-1-10-24).
Plaintiff asserts that after a 1989 Class C non-violent
felony conviction (resulting from a plea), his conviction was
vacated and the file was sealed pursuant to RCW §
9.94A.640 in March of 2004. Dkts. 10-1, at 7-8, and 10-6, at
1-2. The Plaintiff maintains that in May of 1994, he applied
for and was granted a Washington License to Carry a Concealed
Pistol from the Thurston County Sheriff. Dkt. 10-1, at 8. He
asserts that this license was valid until May 11, 2019, and
has been active for 23 years. Id.
Plaintiff alleges that while he has maintained his Washington
Concealed Pistol Permit continually, he “has not owned
firearms for several years and proceeded to attempt three
firearm purchases in early 2016, ” and all three were
denied based on his federal background check. Dkt. 10-1, at
10. He alleges that after the first denial, he “made an
inquiry with the FBI to get additional information so he
could correct any erroneous records.” Id., at
11. The Plaintiff maintains that he was “mailed a
generic response . . . with [an] insufficient reason . . .
for the denial other than quoting the law for which his
Restoration of Firearms Rights Certificate exempted him . . .
and no known means of identifying those responsible for
denying his lawful purchases.” Id. Plaintiff
filed two appeals of the decision, and contacted Congressman
Denny Heck in January of 2017, who initiated an
investigation. Dkt. 10-1, at 12-13. He alleges that
Congressman Heck later informed him that he was not qualified
to judge the merits of his case. Id., at 13.
Plaintiff states that his employer signed a contract with the
federal government and was “increasing pressure [on
Plaintiff] to get his security clearance and causing [him] a
great deal of concern . . . over the inconsistent and
unexplained FBI actions.” Id. He also asserts
that he wanted to enjoy shooting activities with his
Plaintiff asserts that on February 8, 2017, he received a
response to his first appeal, and the FBI changed the grounds
for the denial. Dkt. 10-1, at 13. In that letter, which is
attached to the Amended Complaint, the Plaintiff was informed
that his restoration of rights certificate was “not
sufficient to relieve [him] from federal firearms
disabilities” and that a “vacated”
conviction “remains a conviction for the purposes of
determining eligibility to possess or receive
firearms.” Dkt. 10-18. He asserts that Individual
Bivens Defendants knowingly violated his
constitutional rights to purchase firearms because they had
“overwhelming documentation in their possession which
clearly demonstrated Plaintiff's constitutional right to
purchase firearms.” Dkt. 10-1, at 15. The Plaintiff
maintains that the FBI concealed the identity of Individual
Bivens Defendants “as a means to erode
[Plaintiff's] ability to take actions beyond the limited
NICS Denial appeal relief and 18 U.S.C. § 925A.”
Id., at 11.
after the Plaintiff filed this case, on February 5, 2019, his
two 2017 appeals were successful; he was notified by the FBI
that he was eligible to possess or receive a firearm. Dkts.
10-1, at 14 and 10-24. He was also granted a unique personal
identification number, which is issued by the FBI to someone
who has successfully appealed a firearm denial. Dkts. 10-1,
at 16 and 10-24. Plaintiff maintains that he “is unable
to complete the two approved purchases” because of the
time that has lapsed. Dkt. 10-1, at 16.
Plaintiff claims his Second Amendment rights were violated.
Dkt. 10-1, at 10. He also references the Fourteenth Amendment
(Dkt. 10-1, at 10), which is the due process clause that
applies to states. Accordingly, the Court should construe
Plaintiff's Amended Complaint to include a claim under
the Fifth Amendment's due process clause. The Plaintiff
seeks damages in the amount of $2, 700, 600, costs and
attorneys' fees. Id.
government now moves for dismissal of the constitutional
claims asserted against the FBI, arguing that under U.S.
Supreme Court precedent, a Bivens suit cannot be
maintained against a federal agency. Dkt. 17. To the extent
the Plaintiff asserts some other ground for relief (a
negligence claim, for example), it argues that the claim
should be dismissed because this Court lacks jurisdiction
over the claim due to the Plaintiff's failure to file an
administrative claim. Id. The government moves to
dismiss claims asserted against any Individual
Bivens Defendants, arguing that the Plaintiff has
failed to state a claim for relief against them. Id.
It asserts that the Plaintiff has failed to point to any acts