Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: FBI agents involved in January 6 investigations lack standing to assert disclosure, First Amendment claims, (Jul 22, 2025)

By Kathleen Kapusta, J.D.

“Plaintiffs filed these cases in a whirlwind of chaos and fear.”

Finding no evidence the Department of Justice is on the verge of disclosing the identities of the “Doe” plaintiffs involved in this consolidated action, who are current FBI agents and employees who worked on January 6 investigations, a federal court in the District of Columbia found they lacked standing to bring their Privacy Act and Fifth Amendment’s Due Process Clause claims. Nor could the Federal Bureau of Investigation Agents Association (FBIAA) assert associational standing on their behalf, said the court, dismissing these claims for lack of subject matter jurisdiction. The plaintiffs also failed to advance their First Amendment retaliation claims as they alleged no adverse action to which they would plausibly have standing (Does v. Department of Justice, Nos. 25-c-325 (JMC) and 25-cv-328 (JMC) (D.D.C. July 17, 2025)).

After the January 6, 2021, mob stormed the U.S. Capitol, FBI agents were involved in investigating the events of that day. Ultimately, the Department of Justice charged more than 1,500 individuals with criminal activity, 261 defendants went to trial, and 257 were convicted.

Pardons and EO. In January 2025, President Trump pardoned or commuted the sentence of every January 6 defendant. He also issued Executive Order 14147, entitled “Ending the Weaponization of the Federal Government,” in which he ordered the Attorney General to “review the activities” of certain agencies, including the DOJ, and “identify any instances where a department’s or agency’s conduct appears to have been contrary to the purposes and policies of this order.”

Memo. Shortly thereafter, the Acting Deputy Attorney General (A/DAG) issued a memo entitled “Terminations,” ordering the FBI Acting Director to fire eight named FBI officials who had been involved in the January 6 investigations and also directed the FBI Acting Director to identify “all current and former FBI personnel assigned at any time to investigations and/or prosecutions relating to events that occurred at or near the United States Capitol on January 6, 2021.” The DOJ further directed certain FBI agents, including some of the plaintiffs in this case, “to answer a questionnaire about their work on cases related to the events of January 6, 2021.”

Threats. Around this same time, January 6 pardonees began asking the Trump administration to take action against FBI agents who worked on January 6 cases. One pardonee, in a social medial post, demanded that an FBI agent who testified against him be fired, arrested, and “made to answer for her crimes.”

Lawsuit. The plaintiffs in this consolidated action, current FBI agents and employees who worked on January 6 investigations (the Doe plaintiffs) and the FBIAA, a nonprofit professional organization that “advocate[s] for the careers, economic interests, conditions of employment, and welfare of its members,” sued, seeking a temporary restraining order enjoining the DOJ from publicly disclosing the names of FBI agents who worked on January 6investigations. They also brought claims under the Privacy Act and the First and Fifth Amendments.

Email and memo. The day after they filed suit, the A/DAG sent an email to all FBI personnel discussing the need to identify all agents assigned to investigations relating to January 6, 2021. That same day, the Attorney General issued a memo announcing a new “Weaponization Working Group” to examine, among other things, “[t]he pursuit of improper investigative tactics and unethical prosecutions relating to events at or near the United States Capitol on January 6, 2021—as distinct from good-faith actions by federal employees simply following orders from superiors.”

Name and shame. The head of that group later made comments discussing his intent to “name and shame” those individuals the DOJ might not be able to charge.

Disclosure claims. Turning first to the plaintiffs’ disclosure claims in which they alleged that the DOJ plans to disseminate the list of names and other personnel information of FBI agents who worked on January 6 cases, in violation of the Privacy Act and the Fifth Amendment, the court divided their allegations into three categories, including Trump’s statements about FBI agents.

Trump’s statements. Here, the plaintiffs emphasized that Trump consistently promised vengeance against FBI personnel whom he claimed engaged in fraudulent and politically driven investigations of him. While they pointed to his social media postings calling FBI agents “[t]hugs,” “[t]yrants,” and “Gestapo,” those statements did not indicate any intent to disclose the list of agents’ names to the public.

Past disclosures/treatment of January 6 defendants. The plaintiffs also pointed to the government’s past conduct as evidence of what it might do in the future, including having “publicly identif[ied] and threaten[ed] to identify government officials,” including “identif[ying] and summarily terminat[ing], without warning, high-ranking FBI officials” who supervised January 6 investigations. As to the government’s disclosure of the eight “high-ranking” FBI officials, the court noted that they were not Special Agents like the plaintiffs and the A/DAG did not source their names from the list at issue in this case—the results of the questionnaire/survey.

Although the court agreed that past conduct can be relevant, the events they relied on—the discrete disclosures of employee information under different, non-analogous circumstances and the fact that Trump pardoned January 6 defendants—"just do not match up with the future injury alleged in this case,” said the court.

Conduct related to the survey. The plaintiffs further argued that disclosure is imminent because there was no lawful reason for the DOJ to create the list, specifically a list of names rather than the list of employee identification numbers the FBI initially provided, other than to disclose it. Their allegations, however, that the DOJ compiled the list of names to target the plaintiffs for adverse actions, like termination, would not necessarily involve disclosing their names to the public, said the court, refusing to infer, without more, that the DOJ has any plans to disseminate their information simply because it asked the FBI to provide it with a list of their names.

Recent statements. Addressing next the plaintiffs’ reliance on the “name and shame” statements by the head of the Weaponization Working Group, even assuming those statements applied to the plaintiffs, they did not, said the court, suggest that any disclosure was “certainly impending.” Rather the group head indicated that any “naming” and “shaming” would be contingent on some future finding that the plaintiffs are “bad actors” or did “something that does not make sense,” and a determination that the plaintiffs’ bad acts were not illegal or that they could not otherwise be criminally charged for those actions.

Although the court acknowledged the reason for the plaintiffs’ fear and understood that they wanted certain assurances from the government, it pointed out that there is “[n]o principle... more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” And here, the court observed, it could not “enjoin Defendants from disclosing the identities of FBI agents who worked on January 6 cases because Plaintiffs have not established that they have standing.” Because there was nothing from which it could find that the DOJ has any plan to release their identities to the public, the court dismissed the plaintiffs’ Privacy Act and due process claims.

First Amendment claims. Regarding their First Amendment retaliation claims, the court noted that the plaintiffs were not challenging any future “termination, demotion, or other reputational harm” but instead argued that their purported injury was rooted in the DOJ’s internal review, or investigation of, FBI agents who worked on January 6 cases. They contended that just placing an agent under investigation imposes immediate adverse professional consequences, regardless of the stage or potential outcome of that investigation, but they never alleged in their complaint that the review process or investigation is itself an adverse action motivated by an impermissible purpose that they are challenging in this case.

The plaintiffs, said the court, have “staked their First Amendment retaliation claims on the idea that Defendants’ review process is itself an adverse action taken for an impermissible purpose—but that allegation, inexplicably, appears nowhere in the Amended Complaint.” Dismissing this claim, the court found they alleged no adverse action to which they would plausibly have standing.

The case is Nos. 25-c-325 (JMC) and 25-cv-328 (JMC).

Judge: Cobb, J.

Attorneys: Andrew Peter Bakaj (Compass Rose Legal Group) for John and Jane Does 1-9. Christopher Mattei (Koskoff, Koskoff & Bieder) for Federal Bureau of Investigation Agents Association. Dimitar Georgiev-Remmel, U.S. Attorney's Office, for Department of Justice.

Companies: Federal Bureau of Investigation Agents Association

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