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Flanagan v. Federal Bureau of Investigation

United States District Court, W.D. Washington, Tacoma

May 21, 2019

JOHN D. FLANAGAN II, Plaintiff,
v.
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

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This 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.

         Plaintiff, 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.

         I. FACTS AND PENDING MOTION

         A. FACTS

         The following facts are taken from the Amended Complaint and attached exhibits (Dkts. 10-1-10-24).

         The 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.

         The 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.

         The 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 children. Id.

         The 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.

         One day 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.

         The 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.

         B. PENDING MOTION

         The 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 or ...


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