Ames v. United States Department of Homeland Security , 861 F.3d 238 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2017 Decided June 30, 2017
No. 16-5064
HARRIETT A. AMES,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND
UNITED STATES DEPARTMENT OF DEFENSE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00629)
John F. Karl, Jr. argued the cause for appellant. With
him on the briefs was Kristen Grim Hughes.
Damon Taaffe, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief was R. Craig Lawrence,
Assistant U.S. Attorney. Patricia K. McBride, Assistant U.S.
Attorney, entered an appearance.
Before: HENDERSON and KAVANAUGH, Circuit Judges,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
2
KAVANAUGH, Circuit Judge: Harriett Ames was Chief of
the Personnel Security Branch in the Federal Emergency
Management Agency, which is part of the U.S. Department of
Homeland Security. As Chief of the Personnel Security
Branch, Ames reviewed security clearance applications for
prospective DHS employees. In 2012, an internal
investigation by DHS’s Office of Inspector General
determined that Ames had granted two security clearances that
should have been rejected. The Office of Inspector General
also found that Ames had made false statements during the
investigation. The Office of Inspector General ultimately
prepared a report documenting those conclusions.
A few months before the Inspector General’s report was
finished, however, Ames left her employment at DHS. Ames
obtained a position in the Personnel Security Division of the
National Geospatial-Intelligence Agency, an agency in the
Department of Defense. For ease of reference, we will refer
to Ames’s new employer as DOD.
After learning of Ames’s move to another federal agency,
the DHS agent who prepared the Inspector General’s report
(Special Agent K.C. Yi) sent the Inspector General’s report to
DOD. After reviewing the Inspector General’s report and
conducting its own review of the matter, DOD fired Ames.
Ames subsequently sued DHS and DOD under the Privacy
Act. See 5 U.S.C. § 552a. Ames argued that DHS’s
disclosure of the report to DOD violated the Privacy Act. In
a thorough and persuasive opinion, the District Court rejected
Ames’s argument. We affirm. Like the District Court, we
conclude that DHS’s disclosure of the Inspector General’s
report to DOD was permissible under the Privacy Act.
3
***
In 1974, Congress passed and President Ford signed the
Privacy Act. See Pub. L. No. 93-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. § 552a). As relevant here, the Privacy
Act forbids disclosure by executive and independent agencies
of “any record” to “any person, or to another agency,” without
the consent of the individual to whom the record pertains. 5
U.S.C. § 552a(b).
The Privacy Act contains some exceptions. As relevant
here, the Act allows an agency to make disclosures that
constitute a “routine use” of the record. Id. § 552a(b)(3). To
fit within the confines of the routine use exception to the
Privacy Act, an agency’s disclosure of a record must be both
(i) “for a purpose which is compatible with the purpose for
which it was collected” and (ii) within the scope of a routine
use notice published by the agency. Id. § 552a(a)(7),
552a(e)(4)(D).
Here, DHS’s disclosure of the Inspector General’s report
to DOD satisfied both requirements.
First, the purpose of DHS’s disclosure of the Inspector
General’s report to DOD was compatible with the purpose for
which the report was collected. DHS’s purpose in collecting
the report was to determine whether Ames had committed
wrongdoing that could affect her suitability for federal
employment. But before DHS could take action against
Ames, Ames left her job at DHS and moved to DOD. DHS’s
purpose in disclosing the report to DOD was to enable DOD to
determine whether Ames should continue to be employed
there. DHS’s purpose in disclosing the report was therefore
compatible with DHS’s purpose in collecting the report. After
all, it would be strange indeed if an employee such as Ames
4
could avoid the consequences of one agency’s Inspector
General investigation by simply high-tailing it to another
agency before the Inspector General’s investigation was
finished. 1
Second, as required by the Privacy Act, DHS’s disclosure
of the DHS Inspector General’s report to DOD met the
requirements of a DHS routine use notice. Indeed, it met the
requirements of two routine use notices: Routine Use G and
Routine Use H.
Routine Use G allows DHS to disclose records (i) to other
federal agencies “charged with investigating or prosecuting”
violations of law, (ii) where the record “indicates a violation or
potential violation of law,” and (iii) where such disclosure is
“proper and consistent with the official duties of the person
making the disclosure.” Department of Homeland Security
1
This Court has not definitively determined the precise meaning of
“compatible.” See Postal Service v. National Association of Letter
Carriers, AFL-CIO, 9 F.3d 138, 144-46 (D.C. Cir. 1993). Other courts
have held that compatibility requires a “meaningful degree of convergence”
between the agency’s purpose in collecting the record and the agency’s
purpose in disclosing the record. See, e.g., Britt v. Naval Investigative
Service, 886 F.2d 544, 549 (3d Cir. 1989); Swenson v. Postal Service, 890
F.2d 1075, 1078 (9th Cir. 1989). Judges Silberman and Williams, in
Postal Service v. National Association of Letter Carriers, 9 F.3d 138 (D.C.
Cir. 1993), took two different approaches. Judge Silberman, while
observing that it was not necessary to define the term “compatible” for
purposes of the case before the Court, cited to the common usage of
“compatible,” and to the tighter definition used in two circuits requiring “a
nexus approaching an identity of purpose.” Id. at 144 (opinion of
Silberman, J.) (citing from the Third and Ninth Circuits). Judge Williams,
on the other hand, would hold that purposes are compatible so long as there
is “no conflict” between them. Id. at 146-47 (Williams, J., concurring).
Here, we need not decide the precise formulation of the compatibility
requirement. Under any reasonable formulation of the compatibility test,
DHS’s purpose in disclosing the Inspector General’s report to DOD was
compatible with the purpose for which the report was collected.
5
Office of Inspector General-002 Investigative Records System
of Records, 74 Fed. Reg. 55,569, 55,571 (Oct. 28, 2009). In
this case, all three requirements are met. First, DHS disclosed
the report to an agency “charged with investigating or
prosecuting” violations of law. Id. at 55,571. The DHS
Office of Inspector General disclosed the report to an Office of
Inspector General in DOD. That Office of Inspector General
in DOD is charged with investigating violations of law. See
Inspector General Act of 1978, Pub. L. No. 95-452, § 4(a)(4),
92 Stat. 1101, 1102. Second, the DHS Inspector General’s
report on Ames showed “a violation or potential violation of
law.” 74 Fed. Reg. at 55,571. The report concluded that
Ames had made false statements to investigators and had
mishandled security clearances in violation of DHS
regulations. Third, DHS’s disclosure was “consistent with the
official duties of the person making the disclosure.” Id. at
55,571. Agent Yi, the investigator in DHS’s Office of
Inspector General, was charged with investigating misconduct
by employees and with coordinating with other federal
agencies to ferret out fraud and abuse in the government. See
Inspector General Act of 1978 § 4(a)(4).
Although DHS needs to show only one routine use to
justify the disclosure in this case, we note that Routine Use H
also applies here. Routine Use H allows DHS to disclose
records to other federal agencies “in order to provide
intelligence, counterintelligence, or other information for the
purposes of intelligence, counterintelligence, or antiterrorism
activities authorized by U.S. law, Executive Order, or other
applicable national security directive.” 74 Fed. Reg. at
55,571. DHS disclosed the Inspector General’s report to
DOD in order to provide information to DOD for the purposes
of DOD’s intelligence, counterintelligence, or antiterrorism
activities. In particular, in her old position at DHS and in her
new position at DOD, Ames was responsible for the
6
adjudication of security clearances. The adjudication of
security clearances helps determine who may participate in
intelligence, counterintelligence, or antiterrorism activities
authorized by U.S. law. DHS disclosed its report on Ames to
DOD so that DOD could determine whether Ames should
continue to be involved in determining who may participate in
such intelligence, counterintelligence, or antiterrorism
activities. Therefore, DHS’s disclosure of the report readily
qualified as a routine use under Routine Use H.
In sum, DHS’s disclosure to DOD of its report on Ames
qualifies as a “routine use” of the report. The disclosure of the
report was therefore permissible under the Privacy Act.
***
We have considered all of Ames’s arguments on appeal.
We affirm the judgment of the District Court.
So ordered.