Palmieri v. United States of America , 72 F. Supp. 3d 191 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW RICHARD PALMIERI,
Plaintiff,
v. Civil Action No. 12-1403 (JDB)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Matthew Richard Palmieri, a former contractor for the United States, brings this
30-count action against various government agencies and officials 1 (collectively "the United
States" or "the government"). Proceeding pro se, Palmieri claims that his industrial security
clearance was revoked after the government conducted an investigation of his activities. He
challenges the investigation, the subsequent administrative hearing, the loss of his security
clearance, and the government's responses to his document requests. Upon careful consideration
of the several motions and the parties' various memoranda, 2 the applicable law, and the record,
and for the reasons set forth below, the Court will reject most of Palmieri's claims.
1
The named defendants are: the United States; the Naval Criminal Investigative Service ("NCIS"); NCIS
Agent Maya Lena Pilatowicz; NCIS Agent Edward Jones; NCIS Agent Lynda G. Carpenter; NCIS Deputy Assistant
Director Katherine Smith; other unknown NCIS agents; the Office of Naval Intelligence ("ONI"); ONI Employee
Marie Stickney; ONI Employee "Jane Doe"; ONI Director David John Dorsett; the United States Army; the Defense
Security Service ("DSS"); DSS Director Stanley L. Sims; DSS Chief Financial Officer Barry E. Sterling; DSS
Employee David Bauer; other unknown DSS employees; the Defense Office of Hearing and Appeals ("DOHA"); the
Department of Defense ("DOD"); the Office of Personnel Management ("OPM"); the Defense Manpower Data
Center ("DMDC"); the Financial Crimes Enforcement Network ("FinCEN"); the Department of State ("DOS"); and
the Central Intelligence Agency ("CIA").
2
Defs.' Mot. to Dismiss, to Sever, for a More Definite Statement, or for Summ. J. [ECF No. 26] ("Defs.'
Mot."); Pl.'s Opp'n to Defs.' Mot. [ECF No. 37] ("Pl.'s Opp'n"); Defs.' Reply to Pl.'s Opp'n [ECF No. 43] ("Defs.'
Reply"); Pl.'s Mot. for Partial Summ. J. [ECF No. 44] ("Pl.'s Mot."); Defs.' Opp'n to Pl.'s Mot. [ECF No. 46] ("Defs.'
Opp'n"); Pl.'s Reply to Defs.' Opp'n [ECF No. 47] ("Pl.'s Reply"); Pl.'s Mot. for Preservation of Evidence [ECF No.
48].
1
BACKGROUND
According to the complaint, Palmieri held an industrial security clearance for over a
decade as a government contractor. Am. Compl. [ECF No. 14] at 12.3 Palmieri worked as "a
systems engineer specializing in classified military communications systems." Id. He alleges
that, after a several-month-long government investigation into his activities and a subsequent
hearing before an administrative judge, his security clearance was revoked in 2011. Id. at 12–41.
He now brings this action challenging various aspects of the investigation and its aftermath.
When the investigation began, Palmieri was residing in Bahrain and working as a
government contractor. Id. at 13–15. He learned that an investigation "might be underway
targeting [him] around Christmas of 2009 or New Year[']s 2010." Id. at 15. As part of the
investigation, government officials allegedly accessed Palmieri's Facebook account. Id. at
15–16. They also "seized [Palmieri's] work emails" and "hard drives from multiple office
computers at [his] desk," reviewed his phone records, and used a "surveillance system" to
"capture" his work emails and "any other available Internet activity" on his work computer
system. Id. at 17, 24–25. Palmieri further claims that government officials engaged in physical
and vehicular surveillance of him in Bahrain. Id. at 19, 75. Also as part of the investigation,
Palmieri asserts that he was "interrogated inside the NCIS Middle East Field Office in Bahrain,"
during which he was told: "you are here voluntarily and you are free to leave[,] but if you don't
talk to us[,] we are going to recommend your security clearance be suspended." Id. at 20.
In May 2010, after much of the investigation apparently had been completed, the
government recommended that Palmieri's security clearance be suspended. Id. at 22. Palmieri
3
Palmieri failed to abide by Federal Rule of Civil Procedure 10(b), which instructs petitioners to present
their claims in numbered paragraphs. The Court will therefore refer to the page numbers of his complaint
throughout this opinion. For the purposes of defendants' motion to dismiss, the well-pleaded allegations of
plaintiff's complaint will be taken as true. Sissel v. U.S. Dep't of Health and Human Servs., 760 F.3d 1, 4 (D.C. Cir.
2014).
2
alleges that he was then escorted from his office, and government officials searched his office
area. Id. at 23. Later, on July 19, 2011, "at [the government's] request," Palmieri took a
polygraph test. Id. at 25. Prior to the test, Palmieri "was read a Miranda warning and asked to
sign a paper acknowledging it." Id. Palmieri was asked if he had committed unauthorized
disclosures of national defense information and if he was currently in possession of any
unauthorized classified materials. Id. at 25–26. Palmieri claims that government officials
believed "deception was indicated" by his negative responses to the questions, and as a result, an
official requested permission to search Palmieri's home. Id. Palmieri declined to give
permission. Id.On August 24, 2011, Palmieri's security clearance was officially suspended. Id. at 30.
Palmieri was "'released without prejudice,' or fired," from his position "based wholly on the
suspension" of his security clearance. Id. at 31. The United States later provided Palmieri with a
"Statement of Reasons," which "constituted the Government's formal allegations against [him]."
Id. at 33. Of the twenty-seven allegations, Palmieri admitted to some, which alleged that he
knew particular individuals and that he maintained a foreign bank account worth more than
$300, and he denied the remainder. Id.The government then provided Palmieri with notice that a hearing before a DOHA
Administrative Judge regarding his security clearance would be held on November 7, 2012, in
Arlington, Virginia. Id. at 34. In pre-hearing communications, the government told Palmieri
that it would not call any witnesses. Id. Palmieri alleges that the "hearing was mostly uneventful
except for extensive discussions surrounding" the government's allegation that:
In approximately June 2009, [Palmieri] introduced a United States military
member to two Syrian nationals associated with the Syrian diplomatic
establishment in Manama, Bahrain and subsequently asked the military member
3
not to disclose [Palmieri's] association with said Syrian nationals to anyone inside
the United States government.
Id.; see also Ex. 2 to Defs.' Mot., Nov. 27, 2012 DOHA Opinion [ECF No. 26-2] ("Nov. 27,
2012 DOHA Opinion") at 2, 4. 4 Palmieri claims that he "complained that this allegation was
hearsay unsupported by an in-hearing witness testifying in-person, under oath, and subject to
cross-examination." Am. Compl. at 34. The government exhibit supporting this allegation was a
letter from NCIS to DSS discussing "a report by a reserve military member" about this
allegation. Nov. 27, 2012 DOHA Opinion at 2; see also Ex. 29 to Pl.'s Opp'n [ECF No. 37-29]
("NCIS Letter"); Ex. 12 to Pl.'s Mot. (same). The Administrative Judge admitted the evidence
"into the record under an exception to the Hearsay Rule." Am. Compl. at 36. The
Administrative Judge also noted that Palmieri "knew the identity of the reserve military member"
and that the Administrative Judge had allowed Palmieri to "request the reserve military member
as a witness," had offered to "ask Department Counsel to locate her and seek her testimony," and
had given Palmieri until November 15, 2012, to decide whether to call the reserve military
member, but that Palmieri declined to call her. Nov. 27, 2012 DOHA Opinion at 2.
On November 27, 2012, the Administrative Judge issued his decision, which "found
against [Palmieri]" on the reserve-military-member allegation. Am. Compl. at 36. The
Administrative Judge found that:
[Palmieri] has not accepted responsibility for his conduct with the reserve military
member. I found him evasive and less than completely forthcoming at the
hearing. Without complete candor, I am unable to find that [Palmieri] has learned
from the experience and such behavior is unlikely to recur. No mitigating
4
The Court will consider in its analysis of the defendants' motion to dismiss the two DOHA opinions—
from November 27, 2012, and March 14, 2013—as well as the exhibit (a letter from NCIS to DSS) that Palmieri
challenged in both DOHA hearings, because Palmieri references these documents in his complaint and because they
are central to some of his claims. See, e.g., Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 F.
App'x 4 (D.C. Cir. 2002) (holding that, when a document is referred to in a complaint and is central to a plaintiff's
claim, the court may consider it without converting the motion to dismiss into one for summary judgment).
4
conditions apply. . . . Overall, the record evidence leaves me with questions and
doubts as to [Palmieri's] eligibility and suitability for a security clearance.
Nov. 27, 2012 DOHA Opinion at 10–11. Based on the record before him, the Administrative
Judge concluded that "it is not clearly consistent with the national interest to continue
[Palmieri's] eligibility for a security clearance," and denied Palmieri's "[e]ligibility for access to
classified information." Id. at 11.
Palmieri appealed the Administrative Judge's decision, arguing that the NCIS Letter
should not have been admitted into evidence because it contained hearsay. Am. Compl. at 36–
37. After hearing his appeal, DOHA's Appeal Board affirmed the Administrative Judge's
decision, stating that "hearsay was admissible in industrial security clearance proceedings and
that [Palmieri did] not maintain any Right of Confrontation or cross-examination if the
allegations are contained within this admissible hearsay." Id. That opinion states:
[W]e have consistently held that [DOD Directive 5220.6 (Jan. 2, 1992, as
amended)] ¶ E3.1.22 does not provide a right of cross examination concerning
out-of-hearing statements that are admissible under other provisions of the
Directive. . . . One such provision [encompasses] . . . the FRE's panoply of
exceptions. Another . . . states: "[o]fficial records or evidence compiled or
created in the regular course of business . . . may be received and considered by
the Administrative Judge without authenticating witnesses, provided that such
information has been furnished by an investigative agency pursuant to its
responsibilities . . . to safeguard classified information . . . ."
Ex. 1 to Defs.' Mot., Mar. 14, 2013 DOHA Opinion [ECF No. 26-1] ("Mar. 14, 2013 DOHA
Opinion") at 4–5. The Appeal Board determined that the NCIS Letter could be admitted without
an authenticating witness because it was compiled in the regular course of agency operations: it
was "[p]repared on NCIS letterhead," related to matters that fell within the agency's purview, and
was not "generated merely in anticipation of a DOHA hearing." Id. at 5.
Before this Court, Palmieri's lawsuit broadly "challenges th[e] investigation [of him], the
techniques used in it, [and] the damages the investigation caused [him], and demands all records
5
held by various government agencies which were used and created during the investigation."
Pl.'s Opp'n at 15. Palmieri also challenges the administrative proceedings before DOHA.
LEGAL STANDARDS
I. MOTION TO DISMISS UNDER RULE 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack
of subject-matter jurisdiction. Subject-matter jurisdiction is both a statutory requirement and an
Article III requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003).
The plaintiff bears the burden of demonstrating that jurisdiction exists. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court
must construe the complaint liberally, granting the plaintiff the benefit of all inferences that can
be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004).
Nonetheless, "the court need not accept factual inferences drawn by plaintiff[] if those inferences
are not supported by facts alleged in the complaint, nor must the court accept plaintiff['s] legal
conclusions." Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006). Additionally, a
court may consider material other than the allegations of the complaint in determining whether it
has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint
as true. See, e.g., Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005); EEOC
v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 n.3 (D.C. Cir. 1997).
II. MOTION TO DISMISS UNDER RULE 12(b)(2)
Federal Rule of Civil Procedure 12(b)(2) provides for dismissal of an action for lack of
personal jurisdiction. To establish jurisdiction, a plaintiff must allege "specific facts upon which
personal jurisdiction may be based," Blumenthal v. Drudge, 992 F. Supp. 44, 53 (D.D.C. 1998),
6
and cannot rely on conclusory allegations, Elemary v. Philipp Holzmann AG, 533 F. Supp. 2d
116, 121–22 (D.D.C. 2008).
III. MOTION TO DISMISS UNDER RULE 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails "to state a claim upon which relief can be granted." To survive a Rule 12(b)(6)
motion to dismiss, a complaint must contain "'a short and plain statement of the claim showing
that the pleader is entitled to relief,'" in compliance with Rule 8, "in order to 'give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Although "detailed factual allegations" are not necessary, plaintiffs must furnish "more than
labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to provide
the "grounds" of "entitle[ment] to relief." Twombly, 550 U.S. at 555 (internal quotation marks
and citation omitted). "To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570); accord Atherton v. D.C.
Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A court need not accept as true,
however, legal conclusions set forth in a complaint. Ashcroft, 556 U.S. at 679.
Unlike motions to dismiss under Rule 12(b)(1), factual challenges are not permitted
under Rule 12(b)(6) and the Court "may only consider the facts alleged in the complaint, any
documents attached as exhibits thereto, and matters subject to judicial notice in weighing the
merits of the motion." Kursar v. Transp. Sec. Admin., 581 F. Supp. 2d 7, 14 (D.D.C. 2008),
aff'd, 442 F. App'x 565 (D.C. Cir. 2011). When a document is referred to in a complaint and is
central to a plaintiff's claim, however, the court may consider it without converting the motion to
7
dismiss into one for summary judgment. See, e.g., Solomon v. Office of the Architect of
Capitol, 539 F. Supp. 2d 347, 349–50 (D.D.C. 2008).
IV. SUMMARY JUDGMENT
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In a motion for summary judgment under the APA, "the standard set forth in Rule 56(a)
does not apply because of the court's limited role in reviewing the administrative record." Coe v.
McHugh, 968 F. Supp. 2d 237, 239 (D.D.C. 2013). "[I]t is the role of the agency to resolve
factual issues to arrive at a decision that is supported by the administrative record, whereas the
function of the district court is to determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision it did." Univ. of Mass. v.
Kappos, 903 F. Supp. 2d 77, 84 (D.D.C. 2012) (internal quotation marks and citation omitted).
Accordingly, "district courts reviewing agency action under the APA's arbitrary and capricious
standard do not resolve factual issues, but operate instead as appellate courts resolving legal
questions." James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996).
"[T]he court considers whether the agency acted within the scope of its legal authority, whether
the agency has explained its decision, whether the facts on which the agency purports to have
relied have some basis in the record, and whether the agency considered the relevant factors."
Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995).
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DISCUSSION
Palmieri has voluntarily dismissed Counts 28 and 30 of his amended complaint; all of his
Administrative Procedure Act claims in relation to the denial of records; his common-law claims
against the United States and its employees acting in their official capacities; and his claims for
equitable relief against the individual defendants. See Pl.'s Stip. of Dismissal [ECF No. 38]; see
also Pl.'s Opp'n at 13–14. Of Palmieri's remaining claims, many are barred by Department of
Navy v. Egan, 484 U.S. 518 (1988), and therefore will be dismissed because this Court lacks
jurisdiction over them. The Court also lacks jurisdiction over Palmieri's remaining Stored
Communications Act claims. Palmieri's Bivens claim will be dismissed because the Court lacks
personal jurisdiction over the individual defendants. Nearly all the rest of Palmieri's claims—
brought under the Fifth Amendment, the Fourth Amendment, the First Amendment, the Foreign
Intelligence Surveillance Act ("FISA"), and the Privacy Act—will be dismissed for failure to
state a claim upon which relief can be granted. Summary judgment, however, will be granted in
favor of the United States on the APA portion of Count 21. Finally, the Court will order
Palmieri to provide a more definite statement regarding his six remaining claims under the
Freedom of Information Act ("FOIA") and the Privacy Act.
I. CHALLENGES RELATED TO THE INVESTIGATION, SUSPENSION, AND REVOCATION
OF PALMIERI'S SECURITY CLEARANCE (COUNTS 1–3, 7–9, 13, 16, 19, 20, & 22)
The President's Article II Commander-in-Chief powers include the "authority to classify
and control access to information bearing on national security," which the President has
delegated to executive agencies through a series of Executive Orders. Egan, 484 U.S. at 527–28.
As such, "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; accord Oryszak v. Sullivan, 576 F.3d 522, 525–26 (D.C. Cir. 2009). These
9
agencies have "broad discretion to determine who may have access" to classified information,
and "it is not reasonably possible for an outside nonexpert body to review the substance of such a
judgment." Egan, 484 U.S. at 529. Consequently, the "strong presumption in favor of" judicial
review of administrative decisions "runs aground when it encounters concerns of national
security." Id. at 527.
Because "federal courts do not have the authority to adjudicate cases that would require
the fact-finder to second-guess the propriety of an agency's security clearance decisions," Bland
v. Johnson, --- F. Supp. 2d ---, 2014 WL 4347191, at *3 (D.D.C. Sept. 2, 2014), federal courts do
not have jurisdiction over actions contesting a security clearance investigation, suspension, or
revocation. This is so because a court would have to inquire into and pass judgment on the
propriety of the agency's security determinations in order to find that improper considerations,
rather than an agency's stated security clearance concerns, were the reason for the investigation,
suspension, or revocation. See id.; Egan, 484 U.S. at 523–24. Hence, to the extent a plaintiff
challenges the decisions of governmental agencies and officials to investigate, to suspend, or to
revoke his security clearance, "Egan makes such claims nonjusticiable, and the Court lacks
jurisdiction to address them." Burns-Ramirez v. Napolitano, 962 F. Supp. 2d 253, 258 (D.D.C.
2013); see also Oryszak v. Sullivan, 565 F. Supp. 2d 14, 23 (D.D.C. 2008), aff'd, 576 F.3d 522(D.C. Cir. 2009) (finding that "the Secret Service's decision to revoke [plaintiff's] security
clearance was a decision committed to agency discretion by law"); Becerra v. Dalton, 94 F.3d
145, 149 (4th Cir. 1996) ("The question of whether the Navy had sufficient reasons to investigate
the plaintiff as a potential security risk goes to the very heart of the 'protection of classified
information [that] must be committed to the broad discretion of the agency responsible, and this
10
must include broad discretion to determine who may have access to it.'" (quoting Egan, 484 U.S.
at 529)).
In Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012), this Circuit recognized a narrow
exception to the general premise that courts lack jurisdiction to review security clearance
decisions. There, in the context of a Title VII employment retaliation case, the Circuit held that
Egan's "absolute bar on judicial review" does not apply where a plaintiff could show that an
employee acted with retaliatory and discriminatory motives in knowingly making false reports
about the plaintiff to security personnel. Id. at 768; see also Burns-Ramirez, 962 F. Supp. 2d at
258. The Circuit's rationale was that Egan shields only decisions made by individuals and
agencies authorized and trained to make security clearance determinations or recommendations,
not the allegedly discriminatory actions of other employees who merely refer matters to security
personnel. Rattigan, 689 F.3d at 768–70.
Here, many of Palmieri's claims directly implicate agency decisions regarding his
security clearance, and none fall within the narrow exception defined by Rattigan. 5 Because
Palmieri's claims would require this Court to question discretionary agency decisions regarding a
security clearance investigation, suspension, and revocation, the Court does not have jurisdiction
to review these claims in light of Egan. Accordingly, Counts 1–3, 7–9, 13, 16, 19, 20, and 22
will be dismissed.
II. STORED COMMUNICATIONS ACT CLAIMS (COUNTS 5 AND 15)
Palmieri argues that he is entitled to equitable relief because the government violated the
Stored Communications Act ("SCA"), 18 U.S.C. § 2701, when it accessed Palmieri's workplace
5
Counts 1 and 2 challenge the government's decision to create a security clearance investigation record of
Palmieri; Counts 3, 7–9, 16, and 22 challenge the government's decision to conduct a security clearance
investigation of Palmieri and the government's decisions regarding the security clearance investigation itself; and
Counts 13, 19, and 20 challenge the government's decisions to close the security clearance investigation of Palmieri,
to suspend his security clearance, and to revoke his security clearance.
11
email and internet activity as part of its security clearance investigation of him. But there is no
waiver of sovereign immunity for equitable claims against the government under the SCA. See
Kelley v. Fed. Bureau of Investigation, --- F. Supp. 3d ---, 2014 WL 4523650, at *19 (D.D.C.
Sep. 15, 2014); see also 18 U.S.C. § 2712(a), (d). Hence, the SCA does not provide a basis for
Palmieri's claim against the government. Moreover, "the waiver of sovereign immunity [for
monetary damages] in section 2712 is only triggered after the plaintiff presents his or her claim
'to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as
set forth in title 28, United States Code.'" Kelley, 2014 WL 4523650, at *19 (quoting 18 U.S.C.
§ 2712(b)). Palmieri has not alleged that he presented his SCA claims to the appropriate
department or agency prior to this lawsuit. For these reasons, this Court lacks jurisdiction over
Palmieri's SCA claims, which must be dismissed.
III. BIVENS CLAIM (COUNT 12)
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971), recognizes in certain circumstances "an implied private action for damages against
federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001). Palmieri asserts a Bivens claim against several individual
government officers—"Pilatowicz, Jones, and other unknown named NCIS agents"—for a
purported "unconstitutional police interrogation" that occurred in Bahrain. Am. Compl. at 78.
When a plaintiff seeks relief against individual defendants, the Court must have personal
jurisdiction over those individuals to enter a binding judgment. Here, however, the Court lacks
12
personal jurisdiction over Pilatowicz and Jones and the other "unknown named NCIS agents,"
and so this claim must be dismissed. 6
To establish personal jurisdiction, the plaintiff must allege specific acts connecting the
defendant with the forum, Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d
521, 524 (D.C. Cir. 2001), and "cannot rely on conclusory allegations," Atlantigas Corp. v.
Nisource, Inc., 290 F. Supp. 2d 34, 42 (D.D.C. 2003). Here, the 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. Am. Compl. at 5–8. "A person's status as a
government employee who works for an agency headquartered in Washington, D.C., however,
does not constitute contacts sufficient to subject him to this Court's personal jurisdiction."
Scurlock v. Lappin, 870 F. Supp. 2d 116, 121 (D.D.C. 2012) (citing Ali v. District of Columbia,
278 F.3d 1, 7 (D.C. Cir. 2002); Akers v. Watts, 740 F. Supp. 2d 83, 92 (D.D.C. 2010); Pollack v.
Meese, 737 F. Supp. 663, 666 (D.D.C. 1990)). Without more, then, Palmieri has failed to show
that the Court has personal jurisdiction over the defendants in their individual capacities. This
claim will therefore be dismissed.
IV. FIFTH AMENDMENT DUE PROCESS AND ADMINISTRATIVE PROCEDURE ACT
CLAIMS (COUNT 21)
Palmieri alleges that the United States violated his Fifth Amendment due process rights
and acted "arbitrarily and capriciously" under the Administrative Procedure Act ("APA") in the
course of his security clearance administrative hearing when it (1) "denied his right to cross-
examine a witness [the reserve military member] providing an adverse statement"; (2) "refused to
officially name and identify [its] witness"; and (3) "hampered [Palmieri's] access to witnesses via
6
The two named Bivens defendants—Pilatowicz and Jones—waived objections to the absence of proper
service, but they did not waive their right to contest the Court's jurisdiction. See Service Waivers [ECF Nos. 33,
36].
13
the execution of non-disclosure agreements." Pl.'s Mot. at 1–2; Am. Compl. at 110–114.
Palmieri's claims that the government refused to name witnesses and hampered Palmieri's access
to witnesses fail to meet the requirements of Rule 8, and will therefore be dismissed. His due
process claim that the government denied his right to cross-examine the reserve military member
will also be dismissed. Finally, the Court will grant summary judgment in favor of the
government on Palmieri's remaining APA claim regarding the cross-examination issue.
A. Claims That The Government Refused To Name Its Witness and Hampered
Access to Witnesses
The Court has reviewed Palmieri's complaint, "keeping in mind that complaints filed by
pro se litigants are held to less stringent standards than those applied to formal pleadings drafted
by lawyers." Caldwell v. Argosy Univ., 797 F. Supp. 2d 25, 27 (D.D.C. 2011) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)). "Even pro se litigants, however, must comply with the
Federal Rules of Civil Procedure." Id. Rule 8(a) requires that a complaint contain a short and
plain statement showing that the pleader is entitled to relief. The purpose of this minimum
standard is to give fair notice to the defendants of the claim being asserted, sufficient to prepare a
responsive answer, to prepare an adequate defense, and to determine whether the doctrine of res
judicata applies. See, e.g., T.M. v. District of Columbia, 961 F. Supp. 2d 169, 173–74 (D.D.C.
2013); Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977). Claims that do not meet the
requirements of Rule 8 are dismissed for failure to state a claim upon which relief can be granted
under Rule 12(b)(6).
Here, Palmieri's claims that the government "refused to officially name and identify [its]
witness" and that the government "hampered [his] access to witnesses via the execution of non-
disclosure agreements," fail to comply with Rule 8. The only adverse witness Palmieri
references in his complaint and in his briefings is the reserve military member, but it is clear
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from the record that Palmieri knew her identity, see Nov. 27, 2012 DOHA Opinion at 2 (noting
that, in the administrative hearing, Palmieri "stated that he knew the identity of the reserve
military member"), and that he was given an opportunity to access her as a witness, see id.(stating that Palmieri was told by the Administrative Judge that "he could request the reserve
military member as a witness" and that the Administrative Judge "would ask Department
Counsel to locate her and seek her testimony," but that Palmieri responded that he "did not desire
to call the witness"). Palmieri does not contest these facts. He fails to show, then, how he is
entitled to any relief for the government's purported refusal to disclose this witness's identity or
for the government's alleged "hamper[ing]" of access to this witness.
To the extent that Palmieri is referring to some other witness, he fails to provide any
information that would support his claim or that would give the government "fair notice . . . of
the claim being asserted" to defend against his claim. Fed. R. Civ. P. 8; see also Ashcroft, 556
U.S. at 678 (explaining that Rule 8 "demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation"); Twombly, 550 U.S. at 555 (explaining that a complaint
tendering "naked assertions" devoid of "further factual enhancement" does not suffice under
Rule 8). Accordingly, these claims will be dismissed.
B. Due Process Claim That Palmieri Was Denied The Opportunity To Cross-
Examine A Witness
Palmieri claims that the DOHA Administrative Judge's acceptance of the NCIS Letter as
evidence in Palmieri's administrative hearing, without mandating the cross-examination of the
reserve military member, violated his due process rights. "'The first inquiry in every due process
challenge is whether the plaintiff has been deprived of a protected interest in 'liberty' or
'property.' Only after finding the deprivation of a protected interest do we look to see if the
[government's] procedures comport with due process.'" Gen. Elec. Co. v. Jackson, 610 F.3d 110,
15
117 (D.C. Cir. 2010) (quoting Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)).
Here, Palmieri has not alleged a basis for the Court to find any deprivation of liberty or property
in the administrative hearing process that resulted in the revocation of his security clearance.
Palmieri does not have a liberty or property interest in his security clearance, so his
security clearance cannot serve as a predicate liberty or property interest. 7 Dorfmont v. Brown,
913 F.2d 1399, 1404 (9th Cir. 1990) ("[A] claim for denial of due process stemming from the
revocation of a security clearance is not a colorable constitutional claim."); accord El-Ganayni v.
U.S. Dep't of Energy, 591 F.3d 176, 183 n.4 (3d Cir. 2010); Robinson v. Dep't of Homeland
Security, 498 F.3d 1361, 1364 (Fed. Cir. 2007); Jamil v. Sec'y of Dep't of Defense, 910 F.2d
1302, 1209 (4th Cir. 1990); cf. Egan, 484 U.S. at 528 (explaining that the decision to grant a
security clearance is "an affirmative act of discretion on the part of the granting official," and that
"no one has a 'right' to a security clearance"). Nor does Palmieri's contention that he suffered an
injury to his livelihood give rise to a protected liberty or property interest, because the right "to
earn a living" does not extend to jobs requiring a security clearance. Dorfmont, 913 F.2d at 1403("If there is no protected interest in a security clearance, there is no liberty interest in
employment requiring such clearance."). Accordingly, Palmieri has not sufficiently alleged the
7
Palmieri also claims that he was "publicly branded . . . disloyal" by the loss of his security clearance,
which, he alleges, constitutes the loss of a protected liberty or property interest. Pl.'s Opp'n at 21. This claim was
not included in his complaint, so the Court need not address it. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S.
Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) ("'It is axiomatic that a complaint may not be amended by the
briefs in opposition to a motion to dismiss.'") (quoting Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18,
24 n.8 (D.D.C. 2000))). Nevertheless, the Court notes that "[a security] clearance does not equate with passing
judgment upon an individual's character. Instead, it is only an attempt to predict his possible future behavior and to
assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive
information." Egan, 484 U.S. at 528. In line with Egan's analysis, Executive Order 10865—regarding the security
clearance of applicants—specifically states that "[a]ny determination under this order adverse to an applicant shall
be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned." Id. § 7. Accordingly, Palmieri's loss of a security clearance does not constitute a public
branding of disloyalty that can form the basis for a protected liberty or property interest violation. See, e.g., Hill v.
Dep't of Air Force, 844 F.2d 1407, 1412 (10th Cir. 1988) (holding that, under Egan, the government's dissemination
of information regarding plaintiff's security clearance suspension, which plaintiff argued "impugned [his] standing
and reputation," did not violate a liberty or property interest).
16
deprivation of a liberty or property interest to form the basis of a due process claim. Therefore,
this claim will be dismissed.
C. APA Claim That Palmieri Was Denied The Opportunity To Cross-Examine A
Witness
Palmieri also asserts that the government violated the APA by "arbitrarily and
capriciously ignoring the requirements set forth in both Executive Order 10865 and DOD
Directive 5220.6" when it purportedly denied his right to cross-examine the reserve military
member. 8 Am. Compl. at 111. Specifically, Palmieri argues that, pursuant to Section 3(6) of
Executive Order 10865 and the corresponding Section 4.3.3 of Directive 5220.6, he has a right to
cross-examine witnesses making adverse statements against him in an administrative hearing.
Under the APA, a court must set aside agency action if it is "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This
standard of review is "[h]ighly deferential" and "presumes the validity of agency action." AT&T
Corp. v. FCC, 220 F.3d 607, 616 (D.C. Cir. 2000). Here, this Court's review is limited to
consideration of whether DOHA complied with its own regulations during the security clearance
administrative hearing. Executive Order 10865, 25 Fed. Reg. 1583 (1960), provides that a
security clearance may not be finally denied or revoked unless the applicant has "[a]n
opportunity to cross-examine persons either orally or through written interrogatories . . . ." Id. §
3(6). This Executive Order was implemented by Department of Defense Directive 5220.6,
which establishes that, in security clearance proceedings, the applicant shall have "[n]otice of the
right to a hearing and the opportunity to cross-examine persons providing information adverse to
8
Palmieri claims in his opposition to defendants' motion to dismiss that he has, "in actuality," complained
that defendants "have also not followed the requirements" of "PDD/NSC-12" and Executive Order 12333. Pl.'s
Opp'n at 24. These claims were not included in his amended complaint. Moreover, Palmieri fails to point to any
particular section of these regulations that the government has allegedly violated. Such claims fail because they
"tender[] naked assertion[s] devoid of further factual enhancement." Ashcroft, 556 U.S. at 678. And to the extent
these claims challenge the security decisions made by the government, they are barred by Egan.
17
applicant." Id. § 4.3.3. The Directive's enclosure elaborates that "[a] written or oral statement
adverse to the applicant on a controverted issue may be received and considered by the
Administrative Judge without affording an opportunity to cross-examine the person making the
statement orally, or in writing, when justified by the circumstances," which include: where the
head of the Department or agency supplying the statement certifies that the person who furnished
it is a confidential informant; where the statement has been determined to be reliable, the person
who made the statement is unavailable to testify for specific reasons, and the Administrative
Judge's failure to consider it would be substantially harmful to national security; and where there
is "[s]ome other cause determined by the Secretary of Defense, or when appropriate by the
Department or Agency head, to be good and sufficient." Id. ¶¶ E3.1.22–E3.1.22.2.2.
Also relevant to the issue of cross examination is ¶ E3.1.20, which provides:
Official records or evidence compiled or created in the regular course of business,
other than DoD personnel background reports of investigation (ROI), may be
received and considered by the Administrative Judge without authenticating
witnesses, provided that such information has been furnished by an investigative
agency pursuant to its responsibilities in connection with assisting the Secretary
of Defense, or the Department or Agency head concerned, to safeguard classified
information within industry under E.O. 10865 (enclosure 1). An ROI may be
received with an authenticating witness provided it is otherwise admissible under
the Federal Rules of Evidence (28 U.S.C. [§] 101 et seq. (reference (d)).
Id. Directive paragraphs E3.1.22 and E3.1.20 are consistent with Executive Order 10865
Sections 4(a) and 5(a), respectively.
Palmieri complains that the government violated the Executive Order and DOD Directive
when the NCIS Letter, which discussed a reserve military member's report regarding Palmieri,
was introduced as evidence at Palmieri's security clearance administrative hearing and Palmieri
was not given an opportunity to cross-examine the reserve military member. DOHA's decision
to admit the document containing the reserve military member's report without cross-
18
examination, however, is in accordance with its rules and regulations. As the DOHA Appeal
Board noted in its decision affirming the revocation of plaintiff's security clearance, it has
"consistently held that ¶ E3.1.22 does not provide a right of cross examination concerning out-
of-hearing statements that are admissible under other provisions of the Directive." Mar. 14, 2013
DOHA Opinion at 4–5. And the NCIS Letter was found by the Administrative Judge to be
admissible under a separate provision in the Directive concerning official records. Id. (citing
DOD Directive 5225.6 ¶ E3.1.20).
The Appeal Board affirmed the Administrative Judge's decision, explaining that:
To interpret ¶ E3.1.22 as Applicant argues would impose a right of cross-
examination as a condition of admitting otherwise admissible hearsay evidence on
controverted matters. That would render other paragraphs of the Directive
meaningless. . . . Accordingly, we have consistently held that ¶ E3.1.22 does not
provide a right of cross examination concerning out-of-hearing statements that are
admissible under other provisions of the Directive. One such provision is
Directive ¶ E3.1.19 . . . with the FRE's panoply of hearsay exceptions. Another is
Directive ¶ E3.1.20, which states: "[o]fficial records or evidence compiled or
created in the regular course of business, other than DoD personnel background
reports of investigation (ROI), may be received and considered by the
Administrative Judge without authenticating witnesses, provided that such
information has been furnished by an investigative agency pursuant to its
responsibilities in connection with assisting the Secretary of Defense, or the
Department or Agency head concerned, to safeguard classified information . . . ."
We have cited this paragraph in admitting a variety of documents, including
police reports, criminal investigation reports by the military services, Defense
Investigative Service facility inspection reports, and Clearance Decision
Statements. In the case under consideration here, the document in question
possesses all the indicia of having been compiled in the regular course of official
NCIS operations. Prepared on NCIS letterhead station[e]ry, it relates matters that
fall within the purview of a DoD criminal investigating agency and which are
appropriate for reporting to the DoD agency charged with overseeing contractor
security matters. It does not appear to have been generated merely in anticipation
of a DOHA hearing. There is nothing in the record to suggest that this document
exceeded the scope of NCIS authority, and Federal officials are entitled to a
presumption of good faith in the conduct of their duties. Accordingly, this
document is an official record within the meaning of the Directive.
Moreover, it is not a report of a background investigation but, rather, of a
criminal investigation into possible counter-intelligence activity by Applicant.
Accordingly, it was legitimate for the Judge to admit it without an authenticating
19
witness. In light of the record as whole, the Judge's decision to admit this
document was not arbitrary, capricious, or contrary to law. To the extent that
Applicant raised a due process concern in making his argument on this issue, we
resolve it adversely to him.
Mar. 14, 2013 DOHA Opinion at 4–5. Hence, the Appeal Board exercised its responsibility to
interpret and apply the Directive, and found that, viewing Paragraph E3.1.22 in the context of the
entire Directive, the Administrative Judge properly admitted the evidence in question. Palmieri
fails to show how DOHA's careful application of the Directive was "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Indeed, the
DOHA Appeal Board thoughtfully reviewed and applied the governing authorities. Because
DOHA complied with its own regulations during the security clearance administrative hearing,
Palmieri's APA claims fails.
V. ILLEGAL SEARCH CLAIMS UNDER THE FOURTH AMENDMENT, THE FIRST
AMENDMENT, AND FISA (COUNTS 4, 6, 11, AND 14).
Palmieri makes several claims that the government performed illegal searches during its
investigation of him. Specifically, he alleges that the government accessed his Facebook account
in violation of his First and Fourth Amendment rights; conducted physical and vehicular
surveillance of him in Bahrain in violation of FISA; and searched his office and his work emails
and internet activity in violation of FISA. These counts will be dismissed for failure to state
claims upon which relief can be granted.
A. Facebook Access Claim (Count 4)
Palmieri alleges that defendants accessed information such as photographs, lists of
"friends," and various communications on Palmieri's Facebook account. Am. Compl. at 54–55.
He does not allege that the government hacked into his account or subpoenaed Facebook for his
account information. Rather, it appears that one of the individual defendants, to whom Palmieri
20
had given access to his Facebook page, used that access to obtain the information that Palmieri
complains was then shared with the government. See id. This alleged action, however, does not
constitute a violation of Palmieri's constitutional rights.
The Fourth Amendment guarantees that all people shall be "secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV.
A person has a reasonable expectation of privacy when he has a subjective expectation of
privacy that society recognizes as reasonable. See, e.g., California v. Greenwood, 486 U.S. 35,
39 (1988); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring). A person
generally has a reasonable expectation of privacy in the contents of his computer. See, e.g.,
United States v. Heckenkemp, 482 F.3d 1142, 1146 (9th Cir. 2007); United States v. Buckner,
473 F.3d 551, 554 n.2 (4th Cir. 2007); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.
2004); Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001). This expectation may be extinguished,
however, when a computer user disseminates information to the public through a website. Cf.
Katz, 389 U.S. at 351 ("What a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection."). And, similarly, "[a] person has no
legitimate expectation of privacy in information he voluntarily turns over to third parties," Smith
v. Maryland, 442 U.S. 735, 743–44 (1979), "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," United States v. Miller, 425 U.S. 435, 443 (1976). Hence, when a
Facebook user allows "friends" to view his information, the Government may access that
information through an individual who is a "friend" without violating the Fourth Amendment.
See United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y. 2012) (holding that
defendant's Facebook postings, to which a friend gave law enforcement access, were not the
21
subject of an illegal search); cf. Disner v. United States, 2013 WL 1164502, at *1 (D.C. Cir. Feb.
20, 2013) (explaining that appellants "had no reasonable expectation of privacy in records
allegedly stored on a third party's computer"); United States v. Barone, 913 F.2d 46, 49 (2d Cir.
1990) (explaining that a person does not have a legitimate privacy expectation in telephone calls
recorded by the Government with the consent of at least one party on the call); Roasio v. Clark
Cnty. Sch. Dist., 2013 WL 3679375, at *5–6 (D. Nev. July 3, 2013) (explaining that when a
person shares information with a third party—such as Twitter messages with friends—that
person takes the risk that the third party will share it with the government).
Palmieri shared his Facebook information with "friends," and hence he had no privacy
expectation in that information because those "'friends' were free to use the information however
they wanted—including sharing it with the Government." Meregildo, 883 F. Supp. 2d at 527
(citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (finding that an email sender, similar to a
letter writer, loses their expectation of privacy in the email's contents upon delivery of the email
to a third party)). Because Palmieri had no reasonable expectation of privacy in the information
he made available to "friends" on his Facebook page, he cannot claim a Fourth Amendment
violation. Palmieri likewise fails to make out a First Amendment claim. His bare allegation
does not show how the government's legal use of his Facebook information violated his First
Amendment rights.
B. Physical and Vehicular Surveillance Claim (Count 11)
Palmieri alleges that the United States "performed surveillance against [him] overseas,
including, but not necessarily limited to, the physical and/or vehicular surveillance in the streets
of Bahrain." Am. Compl. at 75. He elaborates that, on April 26, 2010, he "was the target of
vehicular surveillance in the streets of Manama, Bahrain. Based on the techniques [that he]
22
observed and the fact that the person following [him] was Hispanic, not Middle Eastern in
appearance, [he] believed that this surveillance was American or otherwise Western in origin."
Id. at 19.
Palmieri contends that the purported "physical and vehicular" surveillance violates the
Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1881c. FISA, however, applies
only to surveillance "under circumstances in which a person has a reasonable expectation of
privacy and a warrant would be required for law enforcement purposes." 50 U.S.C § 1801(f).
As reflected in United States v. Knotts, 460 U.S. 276 (1983), no such reasonable expectation
applies to a person walking or driving on public roads. Id. at 281 (explaining that a person
traveling "on public thoroughfares has no reasonable expectation of privacy in his movements
from one place to another"). In support of his claim, Palmieri references United States v. Jones,
132 S.Ct. 945 (2012), which held that the government's "installation of a GPS device on a
target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a
'search'" within the meaning of the Fourth Amendment because there was a trespass. Id. at 949.
Palmieri does not allege, however, that the government used a GPS device attached to his vehicle
to conduct the alleged surveillance of him or otherwise committed a trespass.
Palmieri had no reasonable expectation of privacy while walking or driving on public
roads, so any surveillance of him in such circumstances is not actionable under FISA, even
assuming his standing to raise it. 9 This claim will therefore be dismissed.
9
Palmieri's standing to raise a claim under FISA is speculative. He has not alleged a search or seizure
made pursuant to authority under FISA that would constitute an actionable injury under FISA. Instead, as alleged,
his claim amounts to an allegation of "tailing" in a public space. Generally, standing is difficult to establish in
challenges to alleged surveillance under FISA. See, e.g., Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1146–54
(2013).
23
C. Office And Work Computer Search Claims (Counts 6 and 14)
Palmieri also claims that, in the course of the security clearance investigation, the
government illegally searched his office and accessed electronic information on his work
computer without a search warrant. When a government employer conducts a search pursuant to
the investigation of work-related misconduct, however, a warrant is not required if the search is
reasonable in its inception and its scope. O'Connor v. Ortega, 480 U.S. 709, 724–25 (1987); see
also id. at 725 ("Balanced against the substantial government interests in the efficient and proper
operation of the workplace are the privacy interests of government employees in their place of
work which, while not insubstantial, are far less than those found at home or in some other
contexts. . . . Government offices are provided to employees for the sole purpose of facilitating
the work of an agency. The employee may avoid exposing personal belongings at work by
simply leaving them at home."). A search ordinarily will be reasonable at its inception "when
there are reasonable grounds for suspecting that the search will turn up evidence that the
employee is guilty of work-related misconduct." Id. at 726. "The search will be permissible in
its scope when 'the measures adopted are reasonably related to the objectives of the search and
not excessively intrusive in light of . . . the nature of the [misconduct].'" Id. (quoting New Jersey
v. T.L.O., 469 U.S. 325, 342 (1985)). And an employer has an interest in fully investigating a
plaintiff's possible misconduct, even if the misconduct is criminal. See, e.g., United States v.
Simons, 206 F.3d 392, 400 (4th Cir. 2000) (holding that remote, warrantless searches of
defendant's office computer by his public employer, and employer's entry into defendant's office
to retrieve his hard drive to investigate possible work misconduct, which was also criminal
conduct, did not violate defendant's rights).
24
Accepting Palmieri's allegations as true, the searches of Palmieri's office and of his
activity on his work computer were performed because his employer suspected that he was
involved in misconduct related to his security clearance. The searches of his office and his
workplace computer activity appear reasonably related to the objective of discovering whether
Palmieri was, indeed, engaged in misconduct related to his security clearance. As alleged, then,
these searches fall within the ambit of the O'Connor exception to the warrant requirement, i.e.,
the searches were carried out for the purpose of obtaining "evidence of suspected work-related
employee misfeasance." 10 480 U.S. at 723–25. Accordingly, these claims will be dismissed.
VI. PRIVACY ACT CLAIMS (COUNTS 10, 17, & 18)
Palmieri alleges that the government violated several sections of the Privacy Act, 5
U.S.C. § 552a, when it shared and maintained records about him. None of his claims are legally
sufficient, however.
Counts 10 and 17 allege that the government disclosed protected information concerning
the investigation of Palmieri to "individuals who were not authorized to receive it." Am. Compl.
at 94; see also id. at 72. Palmieri asserts that the government disclosed the existence of an
ongoing security clearance investigation of him to "various employees" of the Navy, Palmieri's
supervisor, and Palmieri's "associates." Id. at 72, 94.
"The [Privacy] Act gives agencies detailed instructions for managing their records and
provides for various sorts of civil relief to individuals aggrieved by failures on the Government's
part to comply with the requirements." Doe v. Chao, 540 U.S. 614, 618 (2004). Section 552a(b)
generally prohibits government agencies from disclosing confidential records without the
10
Moreover, if this claim were to be decided on summary judgment, the Court notes that Palmieri's exhibits
to his briefing indicate that the government computer system warned users—like Palmieri—that the computer and
network were subject to search by the government. This warning undercuts any reasonable expectation of privacy
that Palmieri arguably may have had in the computer system.
25
consent of the individual. See Bigelow v. Dep't of Defense, 217 F.3d 875, 876 (D.C. Cir. 2000).
A "record" is "any item, collection, or grouping of information about an individual that is
maintained by an agency . . . ." U.S.C. § 552a(a)(4). An individual may file a lawsuit against an
agency for injunctive relief and monetary damages if an improper disclosure was willful or
intentional and caused injury that adversely affected the individual. Doe v. U.S. Dep't of Justice,
660 F. Supp. 2d 31, 44–45 (D.D.C. 2009); see also 5 U.S.C. § 552a(g)(1).
Palmieri's Privacy Act claims fail because he has not asserted actual damages from an
adverse effect caused by the alleged violations. He argues that the sharing of information
pertaining to the security investigation of him "resulted in [his] removal from employment in
Bahrain and the consequential loss of livelihood." Am. Compl. at 72. But information regarding
his status as a person under investigation is not what caused his loss of employment. As Palmieri
admits, the loss of his security clearance was the cause of his loss of employment. See id. at 31.
The only other damages Palmieri asserts are his speculative claims of emotional distress
allegedly caused by others talking about his status as a person under investigation. Id. at 73, 95.
Although gossip may cause an adverse effect, it does not constitute actual damages. See Doe,
660 F. Supp. 2d at 49–50 (explaining that emotional anguish alone is insufficient under the
Privacy Act). Palmieri's Privacy Act claims therefore cannot survive because of a lack of actual
damages.
Moreover, even if Palmieri could show actual damages, his claims would still be
deficient. An agency may legally disclose protected records without consent if one of twelve
statutory exemptions applies. See id. § 552a(b)(1–12) (listing the twelve exemptions). The
alleged disclosures at issue fall within the "need-to-know" exemption, which permits disclosure
"to those officers and employees of the agency which maintains the record who have a need for
26
the record in the performance of their duties." 5 U.S.C. § 552a(b)(1). When performing a
section 552a(b)(1) inquiry, a court asks "whether the official examined the record in connection
with the performance of duties assigned to him and whether he had to do so in order to perform
those duties properly." Bigelow, 217 F.3d at 877 (describing this inquiry as the "point" of the
exemption).
Palmieri complains that his former government-contractor co-workers and Navy
employees—at least some (if not all) of whom have industrial security clearances and access to
secure information—were told of the revocation of his security clearance and the ongoing
investigation of him. The government responds that these individuals were given this
information because they "had a need to know this information in order to ensure that Plaintiff
was not inadvertently permitted to access [information which] was no longer available to him."
Defs.' Reply at 19. The government argues that "[t]he need to safeguard the government's
national security interests clearly warranted notifying others who had worked with Plaintiff of
the need to avoid the possibility that he would employ them to gain access to government offices
and classified information." Id. at 19–20.
It seems clear that any disclosure of Palmieri's security status to a limited group of other
employees was done in the interest of national security. The only individuals who were
allegedly told about the revocation and investigation were individuals who may have otherwise
given Palmieri access to secure documents, buildings, or information. They were informed of
Palmieri's status so that they could continue to do their jobs, part of which involved protecting
classified information from unauthorized disclosure.
Count 18 alleges another Privacy Act claim: that government officials "disseminated
Privacy Act protected information to other Government agencies" in violation of 5 U.S.C. §
27552a(e)(5), which requires "accuracy, relevance, timeliness, and completeness" in the
maintenance of records; in violation of 5 U.S.C. § 552a(e)(6), which requires "reasonable effort
to assure that such records are accurate, complete, timely, and relevant for agency purposes"; and
in violation of 5 U.S.C. § 552a(e)(7), which prohibits the disclosure of records "describing how
any individual exercises rights guaranteed by the First Amendment." Palmieri claims that the
"disclosures of inaccurate or incomplete records . . . were used to make adverse determinations
against [him]." Am. Compl. at 98.
To the extent Palmieri challenges the government's national security decisions based on
its creation of security records about him, such claims are barred by Egan. To the extent he
alleges that information in those records was inaccurate, irrelevant, untimely, or incomplete, he
fails to plead his claims with specificity. He does not allege how his records were deficient or
what misinformation is allegedly included in his record, nor does he allege what the record
contained that allegedly concerned his exercise of First Amendment rights. The Rule 8 standard
is not satisfied by "naked assertion[s] devoid of further factual enhancement." Ashcroft, 556
U.S. at 678. Here, Palmieri fails to state a cognizable claim because he has failed to identify any
specific facts contained in agency records that he believes to be inaccurate or inappropriate. 11
Accordingly, his Privacy Act claims will be dismissed.
VII. FOIA/PRIVACY ACT CLAIMS (COUNTS 23–27, 29)
Palmieri's six remaining claims are all brought under FOIA and the Privacy Act for
denial of records by six separate agencies: ONI, NCIS, DDS, OPM, DMDC, and DOS. The
government has moved to dismiss these claims, arguing that doing so will benefit Palmieri:
"Plaintiff will still have time to bring [these claims] in separate actions; and he will be guided by
11
To the extent Palmieri is referring to the report from the military reserve member at issue in his other
claims, he has alleged no facts showing that the report was inaccurate.
28
the declarations that accompany this motion such that he may choose wisely what claims to
pursue." Defs.' Mot. at 37. The government provides no legal basis for dismissing these
claims, 12 however, and so the Court will deny this request.
The government also proposes severing these claims. It is this Court's view that severing
these six claims into six different actions, or into one separate FOIA-only action, would actually
be inefficient. The Court defers to the policy underlying Federal Rule of Civil Procedure 20,
which is to promote trial convenience, prevent multiple lawsuits, and expedite the final
determination of disputes. With all other claims now dismissed, the most efficient course is to
have this action now proceed on these remaining FOIA/Privacy Act claims. For this reason, the
Court will deny the government's motion to sever as well.
Lastly, the government moves the Court to order Palmieri to "provide a more definite
statement (now . . . informed by the several declarations filed with the Court) and specify exactly
what issues and/or withholdings Plaintiff may wish to further challenge." Defs.' Mot. at 37–38;
see also Defs.' Notice of Filing [ECF No. 27]. Palmieri responds by reiterating some of his
claims, and stating broadly that various entities are "refus[ing] to release to [him] records in full."
Pl.'s Opp'n at 45; see also id. at 46. In order to permit the best opportunity for Palmieri to receive
full and fair consideration of his FOIA/Privacy Act claims, the Court will order him to specify
exactly which withholdings he wishes to further challenge, in light of the declarations the
government has recently provided.
VIII. PALMIERI'S MOTION FOR THE PRESERVATION OF EVIDENCE
After the parties fully briefed the government's and Palmieri's motions, Palmieri filed a
motion for preservation of evidence. He requests that the Court order the government "to
12
The government discusses misjoinder immediately prior to proposing that the Court dismiss these
FOIA/Privacy Act claims, but "misjoinder of parties is not a ground for dismissing an action." Fed. R. Civ. P. 21.
29
preserve all documents and information, including electronic records, concerning any matter that
may be relevant to a claim or defense arising from litigation or potential litigation involving
Palmieri, or that may lead to the discovery of admissible evidence." Pl.'s Mot. for Preservation
of Evidence [ECF No. 48] at 1.
Federal Rule of Civil Procedure 26 provides that parties have a duty to disclose relevant
documents and records, which implicitly requires a duty to preserve relevant documents and
records. The government, like any party to a federal civil litigation, is expected to comply with
this rule. Without cause to believe otherwise, the Court assumes that the government is fulfilling
its obligations under the federal rules. For this reason, Palmieri's motion will be denied.
CONCLUSION
For the reasons set forth above, the Court will grant in part and deny in part the United
States' motion to dismiss, to sever, for a more definite statement, or for summary judgment; will
deny Palmieri's motion for partial summary judgment; and will deny Palmieri's motion for the
preservation of evidence. A separate Order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: November 3, 2014
30