Matthew Palmieri v. United States , 896 F.3d 579 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2018 Decided July 24, 2018
No. 16–5347
MATTHEW RICHARD PALMIERI,
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01403)
Ryan Giles, Student Counsel, argued the cause as amicus
curiae in support of the appellant. Thomas Burch, appointed
by the court, and Holly Boggs and Aidan Moss, Student
Counsel, were with him on brief.
Matthew Richard Palmieri, pro se, filed the briefs for the
appellant.
Charles W. Scarborough, United States Department of
Justice, argued the cause for the appellees. Jessie K. Liu,
United States Attorney, and R. Craig Lawrence and W. Mark
Nebeker, Assistant United States Attorneys, were with him on
brief.
2
Before: HENDERSON, GRIFFITH and KATSAS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge KATSAS.
KAREN LECRAFT HENDERSON, Circuit Judge: Matthew
Palmieri had a security clearance and gainful employment with
a government contractor. He lost both, allegedly at the hands
of federal agencies and officials bent on destroying his career.
Palmieri sued the agencies and officials (collectively,
defendants or government), 1 claiming they put him through a
“Kafkaesque” investigation and “Star Chamber” proceeding
and thereby violated his rights. Pl.’s Am. Compl. (Compl.),
Dkt. No. 14 at 4 (July 23, 2013). In the order at issue, the
district court dismissed most counts of Palmieri’s complaint
and granted summary judgment to the government as to a
portion of one count. Joint Appendix (JA) 462-63; Palmieri
v. United States, 72 F. Supp. 3d 191 (D.D.C. 2014). With the
aid of court-appointed amicus curiae, Palmieri appeals. 2 We
affirm.
1
Palmieri’s complaint names the United States; the State
Department; the Defense Department; the Defense Office of
Hearings and Appeals; the Defense Manpower Data Center; the
Central Intelligence Agency; the Office of Personnel Management;
the Financial Crimes Enforcement Network; the United States Navy;
the Office of Naval Intelligence; the Naval Criminal Investigative
Service; the Defense Security Service; and certain officers and
employees of the latter three agencies.
2
We thank amicus for able briefing and argument.
3
I. BACKGROUND
We draw the facts primarily from the complaint, whose
well-pleaded allegations we take to be true. West v. Lynch,
845 F.3d 1228, 1231 (D.C. Cir. 2017). We also take account
of undisputedly authentic documents cited in and “integral to”
the complaint. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir.
2004); see 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL
PRACTICE § 12.34[2] n.35 (3d ed. 2018). Because the
complaint is prolix, weighing in at 163 pages, we highlight only
the essentials.
INVESTIGATION
Palmieri worked as a systems engineer for a contractor at
a United States naval base in Bahrain. He had a security
clearance. In June 2009, he and a Navy reservist friend had
dinner with two Syrian nationals, one of whom worked for the
Syrian embassy. The reservist told Palmieri that “she felt
compelled to report” to American authorities their contact with
foreign nationals. JA 352. Later, the reservist in fact
reported the contact, mentioning that Palmieri had introduced
her to the Syrians. According to the reservist, Palmieri had
asked her not to report his association with the Syrians.
The government opened an investigation. Without telling
Palmieri, agents of the Naval Criminal Investigative Service
(NCIS) reviewed his work emails, copied files from his office
computers and kept tabs on his travel. In May 2010, the
agents “interrogated” him. Compl. 19-20. They told him he
was free to leave but that, if he did not answer their questions,
his security clearance would be suspended. Afterward, the
agents reported to Navy lawyers that Palmieri had been
“evasive” and “unwilling to provide information.” Id. at 21.
Palmieri’s supervisors had him removed from the base. NCIS
4
agents searched his office and computers and seized his work
documents.
Palmieri returned to the United States and continued
working in a contractor job that required a security clearance.
In July 2011, he submitted to an NCIS polygraph test.
Thereafter, in a letter to the Defense Department, NCIS agent
Lynda Carpenter summarized the investigation and the results
of the polygraph test. According to her letter:
• The reservist told authorities that Palmieri had asked
her “not to report his association with the Syrian
nationals to anyone inside of the U.S. government.”
• In a security form, Palmieri “did not acknowledge any
ongoing foreign national contacts or associations with
foreign government officials.”
• When the NCIS agents interviewed Palmieri, he was
“reluctant to provide information” about his foreign
contacts. He eventually “disclosed ongoing contact
with an employee of the Syrian embassy” but “only
after it was revealed [that] NCIS officials were already
aware of the relationship.”
• During the polygraph test, Palmieri was asked if he
possessed “classified material outside of government
control” or “provided classified information to
unauthorized personnel.” The polygraph indicated
“[d]eception . . . in his responses to both questions.”
JA 230-31.
In August 2011, the Defense Department suspended
Palmieri’s security clearance “pending a final clearance
5
decision from the Defense Office of Hearings and Appeals
[(DOHA)].” Compl. 30. As a result, Palmieri’s employer
fired him.
ADMINISTRATIVE AND DISTRICT COURT PROCEEDINGS
By executive order, as implemented through Defense
Department Directive 5220.6 (Aug. 30, 2006),
perma.cc/2DQ4-Z4KW, a contractor is not to be granted a
security clearance unless clearance “is clearly consistent with
the national interest,” id. ¶ 3.2; see Exec. Order No. 10865 § 2,
25 Fed. Reg. 1583 (Feb. 20, 1960). In September 2012, per
the Directive, the Defense Department issued a Statement of
Reasons explaining why the government was “unable to find
that it is clearly consistent with the national interest” for
Palmieri to regain clearance. JA 196; see Compl. 33. The
Statement of Reasons alleged (inter alia) that Palmieri
displayed “questionable judgment” by asking the reservist “not
to disclose [his] association with . . . Syrian nationals.” JA
196; see Compl. 34. In a written response, Palmieri denied the
allegations.
The matter was submitted to a DOHA administrative judge
to determine whether to revoke Palmieri’s security clearance.
Over Palmieri’s confrontation and hearsay objections—and
after Palmieri declined an opportunity to call the reservist as a
witness—the judge admitted Carpenter’s letter. Palmieri
testified at length and “denied that he told the [reservist] not to
mention his name.” JA 188. The judge discredited this
testimony, finding that Palmieri was “evasive and less than
completely forthcoming.” JA 188, 194. Ultimately, the
judge concluded that Palmieri had indeed displayed
questionable judgment in “attempt[ing] to convince [the
reservist] to leave him out of her report.” JA 193.
6
Accordingly, the judge revoked his clearance. The DOHA
appeal board affirmed.
Palmieri filed suit, raising an assortment of constitutional
and statutory claims. His 30-count complaint invokes (inter
alia) the Bill of Attainder Clause, U.S. CONST. art. I, § 9, cl. 3;
the Treason Clause, id. art. III, § 3, cl. 1; the Due Process
Clause, id. amend. V; the First, Fourth, Ninth and Tenth
Amendments; the Privacy Act, 5 U.S.C. § 552a; the
Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.;
the Stored Communications Act, 18 U.S.C. § 2701 et seq.; and
the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et
seq.
In the order under review, the district court dismissed
twenty-three counts: Counts 1-20, 22, 28 and 30. Also, the
court partially dismissed Count 21 and granted summary
judgment to the government on the remainder of that count.
Finally, the court ordered Palmieri to “file a more definite
statement about” the other six counts: Counts 23-27 and 29.
JA 462. It later granted summary judgment to the government
on those six counts. In our claim-by-claim analysis, we
summarize the necessary particulars of Palmieri’s theories of
liability and the district court’s grounds of decision.
II. ANALYSIS
First we clear some underbrush. We need not consider
Counts 3, 7, 9 and 16 because Palmieri expressly forfeits any
challenge to their dismissal. Appellant’s Br. 32 (he “invites”
us to “dispense” with them). We need not consider Counts 10-
11, 17-18, 23-27 and 29 because neither Palmieri nor amicus
raises any argument about them. See S. Cal. Edison Co. v.
FERC, 603 F.3d 996, 1000 (D.C. Cir. 2010) (“A party can and
does [forfeit] any argument not presented in our court except
those going to our own jurisdiction or similar structural
7
issues[.]”). And we need not consider Counts 28 and 30
because Palmieri acquiesced in their dismissal. Our task,
then, is to decide whether Palmieri or amicus advances any
good reason to reinstate any of the other fourteen counts:
Counts 1-2, 4-6, 8, 12-15 and 19-22. We think not.
COUNTS 2, 20 AND 22: FRIVOLOUS CONSTITUTIONAL CLAIMS
Count 2 alleges that the government violated Palmieri’s
“natural rights” by investigating him and gathering information
about him. Compl. 46. Count 20 alleges that Carpenter’s
letter and the ensuing revocation of Palmieri’s clearance were
part of a “Soviet-style” government conspiracy to “punish”
Palmieri through “extrajudicial” means. Id. at 104, 107.
Count 22 alleges that the conspiracy was motivated by “ethnic,
lingu[i]stic, religious, and/or racial” animus. Id. at 116; see id.
at 115 (alleging that defendants acted as they did because of
Palmieri’s “associations with Arab and/or Muslim
individuals”). According to Counts 2, 20 and 22, this conduct
violated the Bill of Attainder Clause, the Treason Clause and
the First, Fifth, Ninth and Tenth Amendments.
The district court concluded that Counts 2, 20 and 22 are
barred by Department of Navy v. Egan, 484 U.S. 518 (1988).
We agree. Egan holds that “the grant of security clearance to
a particular employee, a sensitive and inherently discretionary
judgment call, is committed by law to the appropriate agency
of the Executive Branch.” Id. at 527; see Oryszak v. Sullivan,
576 F.3d 522, 525-26 (D.C. Cir. 2009). The idea is that “an
outside non-expert body,” including a court, is institutionally
ill suited to second-guess the agency’s “[p]redictive judgment”
about the security risk posed by a specific person. Egan, 484
U.S. at 529. Counts 2, 20 and 22 ask us to engage in just this
sort of Monday-morning quarterbacking: as the district court
put it, these counts effectively challenge the government’s
8
decisions “to conduct a security clearance investigation” and to
resolve it in a particular way. Palmieri, 72 F. Supp. 3d at 203
n.5.
Granted, we have recognized an exception to Egan for
some constitutional claims challenging “the methods used to
gather information on which [a clearance decision] presumably
will be based.” Nat’l Fed’n of Fed. Employees v. Greenberg,
983 F.2d 286, 290 (D.C. Cir. 1993). But the exception does
not save “a wholly frivolous constitutional claim or an
immaterial one advanced solely for the purpose of”
circumventing Egan. Id. “[W]holly frivolous” well
describes Counts 2, 20 and 22. We see no law in Palmieri’s
briefs, or amicus’s, to suggest Palmieri suffered an actionable
violation under the provisions these three counts invoke. 3
COUNTS 1 AND 8: PRIVACY ACT CLAIMS
Count 1 claims that, in violation of the Privacy Act, the
defendants created an agency record “concerning [Palmieri’s]
exercise of First Amendment . . . activities,” including his
“[a]ssociation[s]” and “[t]ravel.” Compl. 42. Count 8
likewise claims a violation of the Privacy Act, alleging that
NCIS agents acquired some of Palmieri’s personnel records
under false pretenses. The district court dismissed both
counts, again concluding that Egan bars them. We affirm
3
Amicus concedes that Counts 20 and 22 are barred because
they “challenge the . . . decision to revoke [Palmieri’s] security
clearance or present no colorable constitutional challenge to the
revocation process.” Amicus Br. 30-31 n.9. Palmieri “adopts and
endorses” amicus’s briefs, Appellant’s Br. 25; Appellant’s Reply Br.
5, but does not expressly join the concession. No matter. We need
not accept the concession to affirm dismissal of Counts 2, 20, and
22; we simply note it for its good sense.
9
their dismissal but for a different reason: they fail on the
merits. 4 See Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C.
Cir. 2015) (“Ordinarily, a court of appeals can affirm a district
court judgment on any basis supported by the record, even if
different from the grounds the district court cited.”).
Count 1 runs headlong into 5 U.S.C. § 552a(e)(7), which
permits the government to maintain a record involving First
Amendment activity where, as here, it is “pertinent to and
within the scope of an authorized law enforcement activity.”
See Maydak v. United States, 363 F.3d 512, 517 (D.C. Cir.
2004) (“Although the Privacy Act does not define ‘law
enforcement activity,’ we have interpreted the phrase broadly”
to include “an authorized criminal, intelligence, or
administrative investigation.” (citing Nagel v. Dep’t of Health,
Educ. & Welfare, 725 F.2d 1438, 1441 n.3 (D.C. Cir. 1984))).
Count 8 similarly cannot withstand the force of statutory text:
it erroneously mixes and matches criminal and civil portions of
the Privacy Act. It alleges that individual agents violated 5
U.S.C. § 552a(i)(3), which prescribes criminal punishment for
“[a]ny person” who knowingly and willfully obtains certain
records under false pretenses. Count 8 then seeks redress for
that violation under 5 U.S.C. § 552a(g)(1), which creates a
cause of action only for “agency” violations. Under the
Privacy Act, an individual person is not an “agency.” 5 U.S.C.
§ 552a(a)(1) (incorporating definition now appearing at 5
U.S.C. § 552(f)(1)).
4
Because the Egan holding does not speak to jurisdiction,
Oryszak, 576 F.3d at 524-26, we can assume without deciding that it
does not bar these counts.
10
COUNTS 13 AND 19: DUE PROCESS CLAIMS UNDER BIVENS
Invoking Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), Counts 13 and 19
raise due process claims against individual officials. Count 13
alleges that in May 2010, without due process, NCIS agents
“orchestrated [Palmieri’s] removal from” his job at the Bahrain
naval base. Compl. 82. Count 19 alleges that in August
2011, without due process, Defense Department officers and
employees “orchestrated [Palmieri’s] removal from” the job he
had on his return to the United States. 5 Id. at 100. The
district court dismissed both counts, once again concluding that
Egan bars them. And once again, we affirm their dismissal
but for a different reason: the officials are entitled to qualified
immunity.
“The doctrine of qualified immunity shields officials from
civil liability so long as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (per curiam) (internal quotations
omitted). When an official asserts qualified immunity, the
plaintiff must “overcome” that assertion by demonstrating
(inter alia) that the right “was clearly established at the time
of” the alleged violation. Fox v. District of Columbia, 794
F.3d 25, 29 (D.C. Cir. 2015). This is no easy feat.
“[E]xisting precedent must have placed the statutory or
constitutional question beyond debate,” not merely “at a high
level of generality” but “in light of the specific context of the
case.” Hedgpeth v. Rahim, No. 16-7146, 2018 WL 3117808,
at *2 (D.C. Cir. June 26, 2018) (quoting White v. Pauly, 137 S.
5
Count 19 alleges a date of “August 2012,” Compl. 100, but
another part of the complaint makes clear that Palmieri lost his job
in August 2011, id. at 30-31.
 11
Ct. 548, 551-52 (2017) (per curiam), and Scott v. Harris, 550
U.S. 372, 377 (2007)).
We doubt Palmieri can make the required showing. But
because neither he nor amicus even attempts to do so, we need
not decide the matter. See Fox, 794 F.3d at 29. We held in
Fox that a police officer was “entitled to qualified immunity
because [the plaintiff’s] opening brief fail[ed] to argue that her
right not to be seized in [those] particular circumstances was
clearly established, let alone identify what decisions of the
Supreme Court or the courts of appeals clearly established that
right.” Id. (internal quotation omitted). We reasoned that the
plaintiff thereby “forfeited” any attempt to stave off qualified
immunity. Id. The same is true here: the opening briefs do
not so much as mention qualified immunity, much less identify
precedent putting the due process question “beyond debate” on
the record facts. 6 Hedgpeth, 2018 WL 3117808, at *2
(internal quotation omitted).
COUNT 21: CHALLENGES TO DOHA PROCEEDING
Count 21 alleges that, during the DOHA proceeding, the
government violated due process and acted arbitrarily and
capriciously in introducing Carpenter’s letter and effectively
6
The issue of qualified immunity first appears in the
government’s brief. In reply, amicus asks us—but only as to Count
12—“not to address” qualified immunity because the district court
ruled on a different basis. Amicus Reply Br. 27-28. Even had
amicus tailored this request to Counts 13 and 19, we would not
entertain it. Amicus cites no law suggesting that dismissal on
grounds other than qualified immunity relieves the plaintiff of his
appellate burden under Fox where, as here, the defendants asserted
qualified immunity in district court. Mem. in Support of Mot. to
Dismiss, Dkt. No. 26 at 5, 17-20, 23-27 (Nov. 12, 2013).
12
denying Palmieri an opportunity to confront the Navy reservist.
The district court dismissed the due process component of this
claim on the ground that Palmieri has no liberty or property
interest in a security clearance. The court granted summary
judgment to the government on the APA component of the
claim, concluding that “the administrative judge properly
admitted the evidence” and “the DOHA appeal board
thoughtfully reviewed and applied the governing authorities.”
Palmieri, 72 F. Supp. 3d at 209 (capitalization altered). In
light of Palmieri’s allegations that the government’s actions
have made it impossible for him to find work, see, e.g., Compl.
36, 39, 64, 79, 107-08, we assume without deciding that he has
a cognizable liberty interest, see Gill v. DOJ, 875 F.3d 677, 681
(D.C. Cir. 2017) (per curiam) (in some circumstances, plaintiff
“may show that a liberty interest was violated by the revocation
of a security clearance” (citing Doe v. Cheney, 885 F.2d 898,
909-10 (D.C. Cir. 1989))). We nevertheless agree with the
district court that Palmieri has no viable claim.
We start with Palmieri’s assertion of arbitrariness and
caprice. He and amicus claim a violation of Executive Order
10865 and Directive 5220.6. Because of DOHA’s familiarity
with these laws and clearance issues more generally, cf.
Greenberg, 983 F.2d at 290—and because of the APA’s abuse-
of-discretion standard, 5 U.S.C. § 706(2)(A)—we owe
deference to the administrative judge and appeal board. We
see no abuse in the admission of Carpenter’s letter and the
reservist’s declarations therein.
Even assuming Palmieri was entitled to “an opportunity to
cross-examine” the reservist, Amicus Br. 28 (quoting Exec.
Order No. 10865 § 4 and Directive 5220.6, Encl. 3 ¶ E3.1.22),
the administrative judge in fact gave Palmieri an opportunity to
call the reservist as a witness. The judge asked Palmieri if he
knew the reservist’s whereabouts. Palmieri said he did. The
13
judge asked DOHA counsel if the government objected to the
reservist testifying by telephone. Counsel did not object.
The judge told Palmieri that, if he wanted the reservist to
testify, and if he provided as much information about her as he
could, the judge would “ask the Government . . . to make
arrangements” for her to testify. JA 448-49. Palmieri did not
say he lacked sufficient information to help make such
arrangements. Instead, he flatly declined the opportunity to
seek her testimony. See, e.g., JA 445 (“She’s not my witness.
She’s a Government witness. . . . She certainly wouldn’t be on
my side.”). Having chosen that strategy, he is in no position
to claim prejudicial error. 5 U.S.C. § 706; see Ritz v.
O’Donnell, 566 F.2d 731, 735 (D.C. Cir. 1977) (union member
suspected of misconduct received “full and fair hearing”
despite absence of charging parties because he declined
opportunity to call them); cf. Reynolds v. United States, 98 U.S.
145, 158 (1878) (even in criminal case, defendant “cannot
insist on” confronting witnesses “if he voluntarily keeps [them]
away”).
Relatedly, neither Palmieri nor amicus advances any
persuasive reason to second-guess the conclusions of the
administrative judge, JA 186 & n.1, appeal board, JA 182-83,
and district court, Palmieri, 72 F. Supp. 3d at 208-09, that
Carpenter’s letter was an admissible business record under
Directive 5220.6, Encl. 3 ¶ E3.1.20 (providing that certain
“[o]fficial records . . . compiled or created in the regular course
of business . . . may be received and considered . . . without
authenticating witnesses”). Amicus resists this conclusion
based on Federal Rule of Evidence 803(6), suggesting it applies
jot and tittle in a DOHA adjudication. Amicus Br. 23-27.
Amicus is mistaken: in a DOHA adjudication, the Federal
Rules of Evidence “serve as a guide” but “may be relaxed . . .
to permit the development of a full and complete record.”
14
Directive 5220.6, Encl. 3 ¶ E3.1.19; see JA 317 (administrative
judge explained as much to Palmieri).
Having dispatched Palmieri’s APA claim, we can “quickly
resolve” his due process claim. Gill, 875 F.3d at 681. In Gill,
we rejected the plaintiff’s due process challenge to the
revocation of his security clearance because he received “a full
hearing . . . where he had the right to counsel and the
opportunity to make his case.” Id. So too in Palmieri’s case.
See generally JA 311-461. Because the administrative judge
and DOHA appeal board reasonably applied Executive Order
10865 and Directive 5220.6, we have no cause to reach a
different result here from the result in Gill.
COUNTS 4, 6 AND 14: CLAIMS OF ILLEGAL SEARCH
Counts 4, 6 and 14 allege illegal searches in violation of
the First and Fourth Amendments and the Foreign Intelligence
Surveillance Act. Contrary to amicus’s contentions, as
adopted by Palmieri, the district court correctly dismissed these
counts for failure to state a claim.
Regarding Count 4, amicus contends that the government
“search[ed]” Palmieri’s Facebook account. Amicus Br. 34.
We disagree. The district court read Count 4 to allege that a
third person “to whom Palmieri had given access to his
Facebook page . . . used that access to obtain” information
about him. Palmieri, 72 F. Supp. 3d at 209. An investigative
report cited in Count 4 bolsters the court’s reading. The report
explains that the third person is one of Palmieri’s Facebook
friends and that she viewed his Facebook page using the access
she had based on her status. JA 201. Obtaining from that
person information Palmieri knowingly and voluntarily shared
with his Facebook friends is not a search. See Smith v.
Maryland, 442 U.S. 735, 743-44 (1979) (“[A] person has no
legitimate expectation of privacy in information he voluntarily
15
turns over to third parties.”); United States v. Miller, 425 U.S.
435, 443 (1976) (this is so “even if the information is revealed
on the assumption that it will be used only for a limited purpose
and the confidence placed in the third party will not be
betrayed”). 7
Regarding Counts 6 and 14, which allege illegal searches
of Palmieri’s workspace and computers, we agree with the
district court that they were reasonable searches “carried out
for the purpose of obtaining ‘evidence of suspected work-
related employee misfeasance.’” Palmieri, 72 F. Supp. 3d at
212 (quoting O’Connor v. Ortega, 480 U.S. 709, 723 (1987)
(plurality opinion)). Contrary to amicus’s argument, Amicus
Br. 41-43, the fact that the misfeasance may have been criminal
does not make the searches any less reasonable, see United
States v. Simons, 206 F.3d 392, 400 (4th Cir. 2000) (under
O’Connor, government agency has “an interest in fully
investigating [employee’s] misconduct, even if the misconduct
was criminal”).
COUNTS 5 AND 15: CLAIMS UNDER
STORED COMMUNICATIONS ACT
Counts 5 and 15 allege that the defendants’ search and
seizure of Palmieri’s “work computers” and “work emails”
violated the Stored Communications Act. Compl. 59, 89.
These counts, too, state no claim. 8 Under the Act, the
7
We note that Count 4 does not allege “a detailed
chronicl[ing] of [Palmieri’s] physical presence compiled every day,
every moment, over several years.” Carpenter v. United States, 138
S. Ct. 2206, 2220 (2018) (distinguishing Smith and Miller on this
basis).
8
The district court dismissed Counts 5 and 15 for lack of
jurisdiction, holding that the Stored Communications Act does not
16
government must obtain a warrant and follow prescribed
procedures whenever it requires a service provider to
“disclos[e]” certain stored electronic communications. 18
U.S.C. § 2703(a). As we read the complaint, the electronic
communications at issue—to repeat, Palmieri’s work emails on
his work computers—belonged to the government. And as a
matter of plain English, the government demanded no
“disclosure” of its own records. See IV OXFORD ENGLISH
DICTIONARY 738 (2d ed. 1989) (to “disclose” is to “open up to
the knowledge of others”); cf. FED. R. CIV. P. 26(a)(1)
(“[d]isclosure” involves providing information and documents
to “other parties”).
COUNT 12: CLAIM OF UNLAWFUL INTERROGATION
Finally, invoking Bivens, Count 12 alleges that NCIS
agents violated the Fifth Amendment when they “interrogated”
Palmieri in Bahrain. Compl. 19-20, 78-81. The district court
concluded that, on this count, Palmieri failed to establish
personal jurisdiction of the defendants. We agree.
If the plaintiff seeks relief against a government official in
his personal capacity, the district court must have personal
waive sovereign immunity for equitable claims like Palmieri’s. The
court overlooked the APA’s waiver of sovereign immunity, 5 U.S.C.
§ 702, which “eliminate[s] the sovereign immunity defense in
virtually all actions for non-monetary relief against a U.S. agency or
officer acting in an official capacity,” Clark v. Library of Congress,
750 F.2d 89, 102 (D.C. Cir. 1984). We have held “that the APA’s
waiver of sovereign immunity applies to any suit whether under the
APA or not.” Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006)
(internal quotation omitted). Accordingly, we affirm the dismissal
of Counts 5 and 15 under Federal Rule of Civil Procedure 12(b)(6),
not 12(b)(1). See id. at 197 (affirming for failure to state claim after
district court dismissed for lack of jurisdiction).
17
jurisdiction of that defendant. Ali v. District of Columbia, 278
F.3d 1, 7 (D.C. Cir. 2002). And “for personal jurisdiction in
the District Court for the District of Columbia to be proper,”
the defendant “must be covered by the District of Columbia’s
long-arm statute.” I.T. Consultants, Inc. v. Islamic Republic
of Pakistan, 351 F.3d 1184, 1191 (D.C. Cir. 2003). As
relevant here, the long-arm statute covers a “tortious injury in
the District of Columbia” caused “by an act or omission outside
the District of Columbia” if the defendant engages in a
“persistent course of conduct . . . in the District of Columbia.”
D.C. CODE § 13-423(a)(4).
Palmieri sues the agents in their personal capacity.
Compl. 78. Yet the agents’ only alleged conduct in the
District was undertaken in their official capacity. See
Palmieri, 72 F. Supp. 3d at 204 (“[T]he only specific contact
that Palmieri identifies between the individual defendants and
this District is their employment by a federal agency once
headquartered in the District.”). Without more, the agents’
official connections to the District do not suffice. See Ali, 278
F.3d at 7 (district court lacked personal jurisdiction over
Virginia prison officials acting in individual capacity because
connections to District of Columbia were in official capacity).
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.
KATSAS, Circuit Judge, concurring: The Court’s opinion
ably dispatches the jumble of thirty claims in the 163-page, pro
se complaint under review. As the Court explains, each of
Palmieri’s claims is either forfeited, frivolous, or otherwise
without merit. The Court thus manages to avoid the
overarching issue in this or any other case arising from the
revocation of a security clearance—whether Department of
Navy v. Egan, 484 U.S. 518 (1988), bars judicial review.
In particular, the Court avoids deciding whether Egan bars
non-frivolous constitutional challenges to the denial or
revocation of a security clearance. Egan itself barred
challenges under the Administrative Procedure Act, but the
Court’s reasoning—that control over classified information is
constitutionally committed to the President as Commander in
Chief, see id. at 527—seems to encompass constitutional
challenges as well as statutory ones. On the other hand,
Webster v. Doe, 486 U.S. 592 (1988), held that precluding
judicial review of constitutional challenges to executive action
can itself raise constitutional concerns, even in the area of
national security. See id. at 601–05. However, that case
involved only the statutory authority of the Director of Central
Intelligence, not the Article II authority of the President. See
id. at 597. Likewise, National Federation of Government
Employees v. Greenberg, 983 F.2d 286 (D.C. Cir. 1993), held
that Egan does not bar constitutional challenges to the methods
used by the Executive Branch to gather information for making
clearance decisions; but Greenberg did not involve a plaintiff
seeking to undo the actual denial or revocation of a clearance,
or even a challenge to adjudicatory as opposed to investigatory
processes. See id. at 287–90.
The question whether a plaintiff can seek to undo the
denial or revocation of a security clearance, based on non-
frivolous constitutional challenges to investigatory or even
adjudicatory processes, is weighty and difficult because, in
such cases, judicial review bumps up against the President’s
2
enumerated and exclusive power as Commander in Chief. We
recently reserved that question, see Gill v. U.S. Dep’t of Justice,
875 F.3d 677, 682 (D.C. Cir. 2017), as has the Ninth Circuit,
see Dorfmont v. Brown, 913 F.2d 1399, 1403–04 (9th Cir.
1990). At some point, we will likely need to decide it, for the
government warns us that individuals denied clearances are
increasingly invoking cases like Webster v. Doe and Greenberg
to chip away at Egan.
This case squarely presents the question, for Palmieri does
ask the Court to undo the revocation of his security clearance,
and some of his claims challenge the constitutionality of
adjudicatory as opposed to investigatory processes. The
government understandably wants some answers, in light of the
ongoing tension in the relevant precedents. Nonetheless,
prudence seems to counsel restraint in this case, given the pro
se representation and the sprawling, unfocused nature of the
complaint. Because Palmieri’s claims can be rejected on non-
Egan grounds, and because the Court’s opinion leaves open the
possibility that Egan might bar some or all of them, I join the
opinion in its entirety.