Alexander v. Fbi ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
§
Cara Leslie Alexander et al., §
Plaintiffs, §
§ Civil Action 96-2123 (RCL)
v. §
§ Consolidated Cases
Federal Bureau of Investigation, § 4 ,
et al., § n L E n
Defendants. §
§ MAR ~ § 2959
Memorandum Opini0n t!t$.®@$ta\t:r::ti;zzz»
In 1996 the Clinton White House informed Congress that towards the
beginning of President Clinton’s first term, it had mistakenly asked the Federal
Bureau of Investigation for the summary background reports of over four hundred
former employees of the Bush and Reagan administrations. Some of the files
requested were of high ranking political appointees; others were simply non-
political, career employees. While the White House maintained that the requests
were made as a result of bureaucratic bungling, others thought that something was
rotten in the District of Columbia. In any case, it was clear that something had
gone wrong. A number of those whose files were requested decided to file suit
against the White House, the FBI, and those White House officials they believed
responsible for requesting the files alleging sundry violations of the Privacy Act
and the common law. The defendants’ motion for summary judgment and the
plaintiffs’ cross-motion for summary judgment are now before the Court. Also
before the Court is the Attorney General’s certification regarding the individual
defendants’ scope of employment.
I. Background
The Executive Office of the President ("EOP") was created during the
administration of President Franklin Roosevelt to house the immediate advisors to
the President. See generally Cong. Res. Serv., Harold C. Relyea, T he Executz``ve
Oyj‘ice of the President: A Hz``storical Overview, CRS Report No. 98-606 O\Iov. 26,
2008). Although the components of the EOP have varied over time, the White
House Office,l whose members assist the President with those tasks incidental to
the office, has been a part of the EOP since its inception. Ia’. at 24. The White
House Office has various subcomponents as well. Among these are the Office of
the White House Counsel, the Office of Legislative Affairs, the Office of the Press
Secretary, and the Office of the Staff Secretary. See Dkt. 372-33, Defendants’
Statement of Material Facts, 11 2. The bureaucratic babushka doll does not stop
there though. The Office of the Staff Secretary houses a subunit called the Office
of Records Management ("ORM"), z'd. 1 3, and until a reorganization in 1996 the
White House Counsel housed a subcomponent called the Office of Personnel
Security ("OPS"), id. 11 4. ORM maintains the files of the White House Office and
ensures compliance with the Presidential Records Act. Ia’. 1 3. OPS was tasked
l The White House Office is also sometimes referred to as the Office of the President, which
undoubtedly invites confusion with the Executive Office of the President. See Meyer v. Bush,
981 F.Zd 1288, 1310 (D.C. Cir. l993). Some ofthe cases the Court cites refer to the White
House Office as the Office of the President, see, e.g., Wz``lson v. Lz``bby, 535 F.3d 697, 708 (D.C.
Cir. 2008), this Court will refer to it as the White House Office.
with ensuring that all persons working at the White House underwent the
background checks required to determine whether they could be cleared for
regular access to the White House. Id. 1 5.
All people who work at the White House are required to undergo FBI
background checks to determine whether they can be granted access to the facility.
See Exec. Order 10450; 3 C.F.R. § 946 (1953). OPS was tasked with initiating
these background investigations for new employees. Defendants’ Statement of
Material Facts at 1 25. OPS was also tasked with ensuring that employees who
spanned two different administrations had up-to-date background checks.
At the beginning of the Clinton administration, most of the employees who
had worked in OPS under the Bush administration left the White House. Id. 1 23.
However, one holdover, Nancy Gemmell, who had worked in OPS and its
predecessor since 1981, remained. Id. Given her experience, she was frequently
sought out for advice about OPS’s operation. Ia’. 1 24. ln the spring of 1993, Ms.
Gemmell informed Craig Livingstone, the director of OPS, that the office needed
to conduct the "Update Project." Ia’. 1 26. The purpose of the Update Project was
to recreate the personnel security files of holdover employees, like Ms. Gemmell,
who continued to require access to the White House. Ia’. 1 27. This involved
obtaining copies of the most recent FBI background reports to determine whether
the employee was due for a five-year reinvestigation and whether they were
suitable for continued employment in the new administration. Id. 1 28.
OPS was unable to use files from the Bush administration because these
had been submitted to the National Archives, as required by the Presidential
Records Act. See 44 U.S.C. §§ 2201 et seq. To begin the Update Project, OPS
first had to identify the holdover employees who required continued access to the
White House. Defendants’ Statement of Material Facts at 1 30. To identify these
holdovers, OPS would normally use a list of active pass holders obtained from the
Secret Service. Id.
To begin the project Ms. Gemmell requested a list of all active pass holders
from the Secret Service. Ia’. 1 33. The list she received, however, included both
active and inactive pass holders, without designating their status. Ia'. at 11 33-4.
After obtaining the list, OPS would request new copies of the pass holders’
summary background reports from the FBI’s EXecutive Agencies Dissemination
Subunit ("EADS"). Id. 1 31, 82. Although these requests were made on form
memoranda with the printed name of the White House Counsel Bernard
Nussbaum, they were not actually reviewed by anyone in the Counsel’s Office. Ia’.
11 31, 38. Ms. Gemmell made a number of these requests from the time she
received the list until her retirement in August 1993. Ia’. 1 39. Upon retiring Ms.
Gemmell transferred responsibility for the Update Project to Anthony Marceca, a
Department of Defense employee, who had been temporarily detailed to OPS. Ia’.
11 41, 42, 44. From December 1993 until his detail ended on February 18, l994,
Mr. Marceca submitted some 400 requests for FBI background files, including
those of the plaintiffs. Ia’. 1 52.
At the time that OPS requested these background files, the process for
transferring files from the FBI to the White House was governed by procedures set
forth in memoranda of understanding between the FBI and the White House. Id. 1
81. EADS had routinely responded to such requests from the White House since
the Eisenhower administration. Ia’. 1 84. The procedures EADS followed were
virtually unchanged for the thirty years before these requests were made. ]d. For
EADS to process a request from the White House it first had to be received
through the proper channels. Id. 1 86. The request had to appear on the proper
form, and the forms were delivered to the FBI from OPS by an FBI courier. Ia’.
All of the requests for plaintiffs’ previous reports were ordinary on their face and
were routinely processed. Ia’. 1 89.
However, though the requests appeared to be normal, and indeed, many
were, some were not. Eventually Mr. Marceca leamed that OPS had received files
for people who no longer worked at the White House when, after circulating
memoranda to various Executive Office components indicating that certain
"employees" were overdue for their five-year background, he was informed that
those "employees" did not currently work at White House. Id. 11 60-63. Indeed,
a great number had never even worked in the Clinton White House. lt is out of
these requests that the present suit arose.
II. Summary Judgment Standard
A party is entitled to summary judgment if, after an adequate time for
discovery has passed, it can demonstrate that no genuine issue of material fact
exists and it is entitled to judgment as a matter of law. FED. R. CIv. P. 56(c)(2);
Celolex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment may be
entered against a party if it has failed to "make a showing sufficient to establish
the existence of an element . . . on which that party will bear the burden of proof at
trial." Celotex, 477 U.S. at 322. In order to rebut the motion for summary
judgment, the nonmovant doesn’t need to present evidence "in a form that would
be admissible at trial . . . ." Ia'. at 324. However, the evidence must be capable of
being converted into admissible evidence. Glenken v. Democratz'c Congressional
Campaz``gn Commz'ttee, l99 F.3d 1365, 1369 (D.C. Cir. 2000). Otherwise, it
"counts for nothing." Id.
Additionally, summary judgment shall be granted unless the dispute about
material facts is genuine, that is, "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (l986). If the moving party has met its burden, the nonmovant
must do more than show that there is some "metaphysical doubt as to the material
facts;" in other words, the dispute must be genuinely genuine. Matsushita Elec.
Ina’us. C0. v. Zenith Radz'o Corp., 457 U.S. 574, 587 (1986).
III. Discussion
A. The Privacy Act Does Not Apply to the White House Office
Earlier in this case, this Court held that the Privacy Act applied to the
Executive Office of the President ("EOP"). Alexander v. FBI, 971 F. Supp. 603,
606-607 (D.D.C. 1997) (Lamberth, J.). Since that decision, however, a number of
intervening cases have persuaded this Court that its interpretation-then a matter
of first impression-was not the correct one. Fortunately, however, this Court is
free to revisit its earlier decision.
Rule 54(b) allows a court to modify any ruling that adjudicates fewer than
all the claims or rights and liability of fewer than all the parties, which does not
end the action as to any of the claims or parties at any time before the entry of
final judgment. FED. R. CIV. P. 54(b). The denial of a motion to dismiss is just
such an order. Lemmons v. Georgetown Unz'v. Hosp., 241 F.R.D. l5, 22 n.ll
(D.D.C. 2007).
This Court has indicated in the past that reconsideration will be granted as
justice requires. Cobell v. Norton, 355 F. Supp. 2d 53l, 539 (D.D.C. 2005)
(Lamberth, J.). Whether justice requires granting such a motion, rests on a
determination, within the Court’s discretion, whether it is necessary given the
relevant circumstances. Ia’. Some of those considerations are: (l) whether the
court patently misunderstood one of the parties; (2) whether the court made a
decision beyond the adversarial issues presented; (3) whether the court failed to
consider a controlling decision or information; and (4) whether an intervening
change in controlling law (or even a significant change) has occurred. In Defense
of Anz``mals v. Nat’l Institutes of Health, 543 F. Supp. 2d 7(), 75 (D.D.C. 2008). In
this case, the Court feels that an intervening change in controlling law warrants
reconsideration of its previous denial of the Executive Office of the President’s
motion to dismiss.
The Privacy Act borrows its definition of agency from the Freedom of
Information Act (FOlA). 5 U.S.C. § 552a(a)(1) ("[T]he term ‘agency’ means
agency as defined in section 552(e) of this title. . . ."); see also Dong v.
Smz'thsonian Instz``tutz``on, 125 F.3d 877, 878 (D.C. Cir. 1997). 1n turn agency is
defined by FOIA to include "any executive department, military department,
Govemment corporation, Government controlled corporation, or other
establishment in the executive branch of Govemment (including the Executive
Ojj"ice of the President), or any independent regulatory agency. . . ." 5 U.S.C. §
552@(1)2 (emphasis added).
Although both the White House Office of Personnel Security and the Office
of Records Management are components of the Executive Office of the President,
and it would thus seem that they are indeed subject to the Privacy Act, a number
of courts have held to the contrary when considering Privacy Act suits against
various White House Office components. See, e.g., Banks v. Lappin, 539 F. Supp.
2d 228, 234 (D.D.C. 2008). This is because "[t]he President’s immediate personal
staff or units in the Executive Office whose sole function is to advise and assist the
President are not included within the term ‘agency’ under the FOIA." Kz'ssz'nger v.
2 In 1986, Section 552(e) was relabeled section 552(f), however, no conforming amendment has
been made to the Privacy Act. Dale v. Executive Ojj'ice of the President, 164 F. Supp. 2d 22, 25
n.2 (D.D.C. 200l) (Urbina, J.).
Reporters Comrnittee for Freedom of the Press, 445 U.S. l36, 156 (1980); see also
Nat’l Security Archz've v. Archz``vz'st of the United States, 909 F.2d 541, 545 (D.C.
Cir. 1990) (holding that White House Counsel’s Office is not an "agency" for
purposes of FOIA). The Supreme Court reached the conclusion that FOIA did not
apply to such entities based on the unambiguous legislative history of an
amendment to the statute, which sought to codify Soucie v. Davz'a’, 448 F.2d 1067(D.C. Cir. 1971). Kz'ssz'nger, 445 U.S. at 156 (citing H.R. Conf. Rep. No. 93-1380,
p. 15 (1974)). In Soucie the D.C. Circuit indicated that a component of the
Executive Office whose sole function was to "advise and assist the President"
would not be an agency under FOIA or the Administrative Procedures Act. 448
F.2d at 152.
Since that time there has been piecemeal application of FOIA and the
Privacy Act to various components of the Executive Office and the White House
Office. FOIA (and by extension the Privacy Act) has been applied to Executive
Office Components that have substantial authority independent of the President.
Citz``zens for Responsz'bz``lity ana' Ethics in Wash. v. O/j‘l``ce of Admz'nz``stration, 566
F.3d 219, 222-23 (D.C. Cir. 2009). The Council on Environmental Quality, the
Office of Management and Budget, and the Office of Science and Technology
have all been declared agencies under FOIA. Pac. Legal Founa’. v. Council on
Envtl. Quality, 636 F.2d 1259, 1262 (D.C. Cir. 1980); Sz'erra Club v. Anclrus, 581
F.2d 895, 902 (D.C. Cir. 1978); Soucz``e, 448 F.2d 1067, 1073-75. In contrast, the
National Security Counci1, the White House Counsel’s Office, the President’s
Task Force on Regulatory Relief, and the Council of Economic Advisors have all
been excluded from FOIA’s definition of agency because they are either part of
the President’s immediate staff or have the sole function of advising and assisting
the President. Armstrong v. Executive Ojj'ice of the Presia’ent, 90 F.3d 553, 557,
557-66 (D.C. Cir. 1996); Meyer v. Bush, 981 F.2d 1288, 1292-98 (D.C. Cir.
1990); Nat’l Sec. Archive, 909 F.2d at 545; Rushforth v. Council of Economic
Aa’vz'sors, 762 F.2d 1038, 1040-41 (D.C. Cir. 1990). Most recently, the Court of
Appeals determined that the Office of Administration, another Executive Office
component, was also not within FOlA’s purview. CREW, 566 F.3d at 226.
Aside from this Court’s June 12, 1997 decision, every court to have
considered whether the White House Office is subject to the Privacy Act has
found that it is not. This Court’s earlier decision was premised on its belief that
the different purposes of FOIA and the Privacy Act counseled against extending
case law that had exempted EOP components from FOIA disclosure requirements
in light of the statute’s plain language. Alexander, 971 F. Supp. at 606. Still, at
the time the Court noted that its decision involved a question of law "as to which
there is substantial ground for difference of opinion," by certifying its decision for
interlocutory appeal. See Order of August 12, 1997 [Dkt. 81]; see also 28 U.S.C.
§ 1292(b).
Subsequent case law now makes clear that this Court’s prior interpretation
of the Privacy Act in Alexana’er is no longer the correct one. The Court of
Appeals made clear in Dong v. Smz``thsonian that the Privacy Act’s definition of
10
"agency" is to be interpreted coextensively with the term as used in FOIA. 125
F.3d at 878-879. More recently, the Court of Appeals has made explicit what
Dong implies. And that is, that the Privacy Act exempts the White House Office
from its coverage. Wilson v. Lz``bby, 535 F.3d 697, 708 (D.C. Cir. 2008) ("lt is true
that the Wilsons cannot obtain complete relief under the Privacy Act because the
Act exempts the Offices of the President and Vice President from its coverage").
Additionally, although not controlling precedent, all the district courts to
have examined the issue since this Court’s decision in Alexana’er have likewise
concluded that the Privacy Act does not apply to the White House Office. Trz``pp v.
Executive Ojlce of the Presia'ent, 200 F.R.D. 140, 146 (D.D.C. 2001) (Sullivan,
J.); Jones v. Executive Ojj‘z``ce of the Presz'a’ent, 167 F. Supp. 2d 10, 19 (D.D.C.
2001) (Kollar-Kotelly, J.); Flowers v. Executive Ojj‘lce of the Presz``a’ent, 142 F.
Supp. 2d 38, 43 (D.D.C. 2001) (Kennedy, J.); Falwell v. Executive Offce of the
Presia’ent, 113 F. Supp. 2d 967, 970 (W.D. Va. 2000) (Wilson, C.J.); Barr v.
Executive O/j‘ice ofthe Presz``a’ent, No. 99-1695, slip op. at 6 (D.D.C. Aug. 9 2000)
(Green, June, J.).
1n light of the Court of Appeal’s decisions in Dong and Wilson along with
the persuasive reasoning of the other district courts to have considered the
question, this Court too concludes that the Privacy Act does not apply to the White
House Office, and thus the Executive Office of the President is entitled to
judgment as a matter of law. Accordingly the defendant Executive Office of the
President’s motion for summary judgment shall be granted.
11
B. The FBI is entitled to summary judgment as a matter of law.
In order to recover in this action under the Privacy Act, the plaintiffs must
prove that the government’s conduct, when considered in its context, was
intentional and willful. 5 U.S.C. § 552a(g)(4); Lanz``ngha)n v. U.S. Navy, 813 F.2d
1236, 1242 (D.C. Cir. 1987). This does not make the government liable for every
affirmative or negligent act that technically violates the Privacy Act, "[i]nstead,
the violation must be so ‘patently egregious and unlawful that anyone undertaking
the conduct should have known it ‘unlawful."’ Lanz``ngha)n, 813 F.2d at 1242
(quoting Wz'sdom v. HUD, 713 F.2d 422, 425 (8th Cir. 1983)). Summary
judgment cannot be avoided merely by presenting evidence that "the government
handled a matter in a disjointed or confused manner, or that the government acted
inadvertently to contravene the Act." Waters v. Thornburgh, 888 F.2d 870, 875-
76 abrogated on other grounds by Doe v. Chao, 540 U.S. 614 (2004). Rather,
summary judgment is proper where the agency presents evidence explaining its
conduct and its grounds for believing its action to be lawful. See Laningharn, 813
F.2d at 1242.
i. Disclosure
The plaintiffs claim that the FB1’s disclosure of their background reports to
the White House violated the Privacy Act. Section 552a(b) prohibits disclosure of
"any record contained in a system of records by any means of communication to
any person, or to another agency" unless one of several exceptions is met. One
such exception is that an agency may release a record if it does so for a "routine
12
use." 5 U.S.C. § 552a(b)(3). A routine use is one whose purpose "is compatible
with the purpose for which the record was collected." Ia'. § 552a(a)(7). Agencies
are also required to publish notice of each routine use of the records in their record
system. Ia'. § 552a(e)(4)(D).
There is no dispute that the FBI published a list of routine uses as required
by the statute. See 58 Fed. Reg. 51846, 51870 (Oct. 5, 1993). The FBI’s notice
states that records may be disclosed to any
Federal agencym where the purpose in making the disclosure is compatible
with the law enforcement purpose for which it was collected, e.g., . . . to
assist the recipient agency in making a determination concerning an
individual's suitability employment and/or trustworthiness for employment
and/or trustworthiness for access clearance purposes . . . .
Id.
lt is undisputed that the record requests in this case were facially
unremarkable. Defendant’s Statement of Material Facts 1 89. Nor is it disputed
that all the forms indicated that the people whose records were sought were under
consideration for access. In this case, the records were disclosed by the FBI and
the FBI’s purpose in making the disclosure was indeed compatible with its
published notice of routine use. See U.S. Postal Serv. v. Nat’l Ass’n of Letter
Carriers, 9 F.3d 138, 144 (D.C. Cir. 1993) (defining compatible). The disclosures
3 Despite this Court’s holding that the Privacy Act does not apply to the White House Office
because it is not an agency under FOIA, the FBI has long considered the White House to be a
federal agency for the purpose of its Privacy Act regulations. Where an agency’s interpretation of
its own regulations is consistent with the regulations themselves, the agency’s interpretation is
normally controlling Fea'. Labor Relations Auth. v. Dep ’t of Treasury, 884 F.2d 1446, 1454
(D.C. Cir. 1989). Because the Court finds that the FBI’s interpretation of agency is not
inconsistent with the regulation itself, the Court will defer to the FBI’s interpretation.
13
were also compatible with the purpose for which the records were collected. Ia’.
That is, the plaintiffs’ records were disclosed to determine whether they were
sufficiently trustworthy to be granted access to the White House, and it is
undisputed that the records were disclosed to the White House for the stated
purpose that the White House required them to make access determinations. Thus
the FBI’s disclosure of the records was for a routine use and they are entitled to
summary judgment as a matter of law.
But even were this not the case, the FBI would still be entitled to summary
judgment, because the plaintiffs have failed to adduce any evidence that the FBI
willfully and intentionally violated the Privacy Act. They have deposed none of
the FBI employees who were responsible for processing previous report requests,
and thus have not gathered any evidence that the defendant FBI willfully and
intentionally violated the Privacy Act by disclosing their summary background
reports. Furthermore, on the evidence that has been presented by the FBI, and
indeed that isn’t disputed, namely that these facially ordinary requests submitted
according to unchallenged procedures that had been in place for thirty years, it is
hard to fathom that any reasonable jury could find for the plaintiffs. Moreover,
this Circuit has said that when an agency discloses records pursuant to its
unchallenged regulations, or in response to a request that it justifiably believed to
be authorized-as was the case here-the disclosing agency can’t have willfully
violated the Privacy Act. All)rz``ght v. United States, 732 F.2d at 189 (citing with
approval Wz``sdom, 713 F.2d at 424 and Doe v. Gen. Servs. Admz``n., 544 F. Supp.
14530, 541-42 (D.Md. 1982)). As such, the defendant FBI is entitled to summary
judgment on the plaintiffs’ § 552a(b) claims on these grounds as well.
ii. Safeguards
Agencies subject to the Privacy Act must establish "appropriate
administrative, technical, and physical safeguards" to ensure the security and
confidentiality of the "private" information under their charge. 5 U.S.C. §
552a(e)(10). It is undisputed that numerous administrative, technical, and physical
safeguards were in place at the time these events occurred See Defendant’s
Statement of Material Facts 11 78, 79, 81, 86. Nor is it disputed that the FBI has
admitted that it "failed in a larger sense to institute sufficient protections to
effectively safeguard the very real privacy interest that we, as custodians of so
many people’s files, are responsible for protecting."4 See Ex. 7 to Plaintiffs’
Cross-Motion for Summary Judgment (hereinafter "The Shapiro Report").
Despite this statement, the FBI contends that the safeguards it had in place at the
time were adequate as a matter of law. See Defendant’s Motion for Summary at
56-60.
1n light of conflict between the post-incident statements made by the FBI
and the declarations of their employees, it would seem as if there were a genuine
issue of material fact about the adequacy of the agency’s privacy safeguards that
4 The Court notes that the FBI’s statements in the Shapiro Report were made with the caveat that
their inquiry did not attempt to provide definitive answers, which renders the report susceptible to
reliability problems that make its admission under the hearsay exception in Rule 803(8)(0)
uncertain. See In re Korean Az'rlz'nes Disaster, 932 F.2d 1475, 1481-82 (D.C. Cir. 1991); see also
Alexander, 971. F. Supp. at 607 (noting interim nature of the Shapiro Report).
15
would preclude entering summary judgment for the FBI. However, as this Circuit
has explained, in order to recover in an action under the Privacy Act the plaintiff
must demonstrate the defendant’s violation of the act, was intentional and willful.
5 U.S.C. § 552a(g)(4); Laningham, 813 F.2d at 1242. This means that the
government is not liable for every affirmative or negligent act that technically
violates the Privacy Act. Lanz``ngham, 813 F.2d at 1242. "Instead, the violation
must be so ‘patently egregious and unlawful that anyone undertaking the conduct
should have known it ‘unlawful."’ Id. (quoting Wz``sdom v. HUD, 713 F.2d 422,
425 (8th Cir. 1983)). The plaintiff may also meet its burden by showing that the
agency "‘flagrantly disregarded’ the rights guaranteed under the Privacy Act." Id.
(quoting Albrz``ght, 732 F.2d at 189). But in any case, even if the Court were to
assume that the FBI’s safeguards were inadequate as a matter of law, in order to
prevail on their claim the plaintiffs would still need to establish that the FBI’s
failure was willful and intentional. See 5 U.S.C. § 552a(g)(4). And it is on this
point that the plaintiffs have failed to carry their burden, which entitles the FBI to
summary judgment. See Celotex, 477 U.S. at 322.
Despite the Court’s earlier admonition that reliance on the Shapiro Report
would not be enough to sustain a motion for summary judgment, see Alexander,
971 F. Supp. at 607, the plaintiffs attempt to do just that. They have not deposed a
single FBI employee, nor brought forward any other evidence that would establish
that the FBI’s safeguards were so woefully inadequate that anyone examining
them would have known they violated the Privacy Act. See Lanz'ngham, 813 F.2d
16at 1242. Instead the plaintiffs ask this Court to grant them summary judgment
based on the acknowledgement in the Shapiro Report that what safeguards were in
place failed to protect the privacy interests of the plaintiffs. 1f this Court were to
do so, it would establish exactly the sort of liability for technical violation of the
Privacy Act that Congress wished to avoid by imposing a requirement of willful
and intentional violation. Albright, 732 F.2d at 189.
lt is hard for this Court to imagine how regulations that had been in place
for almost thirty years without incident would appear "patently egregious and
unlawful" to anyone or how by implementing safeguards and regulations designed
to comply with the Privacy Act, the FBI "flagrantly disregarded" the privacy
interests of others.§ But because the plaintiffs have failed to put forward any
evidence that the FBI willfully and intentionally violated the Privacy Act, all the
Court can do is imagine. Since proving that the FBI’s violation of the Privacy Act
was willful and intentional is an element the plaintiffs bear the burden of proving
to prevail and they have failed to adduce any evidence that the FBI did so, the
Court finds that the defendant FBI is entitled to summary judgment against the
plaintiffs on their claims under 5 U.S.C. § 552a(e)(10).
5 The plaintiffs frequently cite to the Shapiro Report statement that the disclosure of the plaintiffs’
records was an "egregious violation[] of privacy." This statement, howcvcr, bears not on the
adequacy of the defendant’s safeguards, but rather on the result of the disclosure.
17
C. Plaintiffs’ F ailure to Oppose the Defendants’ Motion for Summary
Judgment
Local Civil Rule 7(b) requires that an opposition to a motion shall be filed
within 11 days of the date of service or at such other time as directed by the Court.
The local rule also clearly states that a party’s failure to file an opposition may be
treated as a concession of the motion.
In this Circuit, this rule has been applied to motions for summary judgment
with little controversy. See FDIC v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997)
("Because Local Rule 108(h)6 provides for an exception to the ll-day limit only
upon leave from the court . . . and because Bender did not seek such an extension
of time, it was not an abuse of discretion for the district court, pursuant to Local
Rule l08(b), to treat the FDIC’s motion for summary judgment as conceded.").
Furthermore, Rule 56 itself requires a party to oppose a proper motion for
summary judgment by setting out specific facts that show a genuine issue of
material fact for trial. FED. R. CIV. P. 56(€)(2). If a party fails to respond showing
genuine issues of material fact, summary judgment may be entered against it. Id.
However, simply treating the motion as conceded and granting the motion for
summary judgment, if a defendant has not made a proper showing, would create
discord between the local rule and the Rules of Civil Procedure. See Henry v. Gz``ll
Indus., 983 F.2d 943, 949-50 (9th Cir. 1993); see also Hz``bernz``a Nat’l Bank v.
Admz``nistracz``o'n Central Sociedad Ano'nima, 776 F.2d 1277, 1279 (5th Cir. 1985).
6 Local Rule l08(h) has since been renumbered Local Rule 7(b).
18
But the Court must interpret the local rule to be consistent with the requirements
of the Rules of Civil Procedure. See FED. R. CIV. P. 83(a)(1). This simply means
that even where a summary judgment motion is unopposed, it is only properly
granted when the movant has met its burden. Henry, 944 F.2d at 950; see also
Weisberg v. Dep’t ofJustice, 627 F.2d 365, 368 (D.C. Cir. 1980); cf Adickes v.
S.H. Kress & Co., 394 U.S. 144, 160 (1970) ("Because respondent did not meet is
initial burden of establishing the absence of [a genuine issue of material fact],
petitioner here was not required to come forward with suitable opposing
affidavits.").
Here, plaintiff Cate has failed to respond to the defendants’ motion for
summary judgment altogether and plaintiffs Alexander and Duggan have failed to
respond to the defendant FBI’s motion for summary judgment on their claims
under 5 U.S.C. § 552a(b). 1n both cases the Court finds that the entry of summary
judgment against the plaintiffs is appropriate, as the defendants have met their
burden.
First, the applicability of the Privacy Act to the White House Office is a
matter of law, which applies equally to Mr. Cate. Given that this Court has found
that Privacy Act does not apply to the White House Office, the Executive Office
of the President is entitled to summary judgment against Mr. Cate on those claims
as well.
All of the plaintiffs in this case appear to have abandoned their claim that
that the FBI willfully and intentionally disclosed their records in violation of
19
Privacy Act. However, given the Court’s holding that the records were disclosed
pursuant to a routine use, as well as the plaintiffs’ failure to produce any evidence
that the defendant willfully and intentionally disclosed their records in violation of
the Privacy Act, the FBI is entitled summary judgment on the section 552a(b)
claims against Mr. Cate and the other plaintiffs.
Finally, the FBI is also entitled to summary judgment against Mr. Cate on
his claims that the FBI willfully and intentionally failed to institute safeguards
sufficient to protect his records, as the plaintiffs have failed to put forward any
evidence that the FBI willfully and intentionally violated section 552(e)(10) of the
Privacy Act.
D. Common Law Claims, the lndividual Defendants’ Scope of Employment,
and the Federal Tort Claims Act
When this suit was originally filed, the plaintiffs also brought common law
tort claims against the then White House Counsel, Bernard Nussbaum, as well as
Craig Livingstone and Anthony Marceca. Since then, all of the plaintiffs, with the
exception of Joseph Cate, have voluntarily dismissed their claims for tortious
invasion of privacy. See Dkt. 1447, 1449, 1451, 1453. Thus the Court must still
decide whether or not the substitution of the United States in place of the three
named defendants is proper under the Westfall Act.
The Westfall Act grants federal employees immunity from common law
tort claims that arise out of the acts taken in the scope of their employment. 28
U.S.C. § 2679(b)(l); Osborn v. Haley, 549 U.S. 336, 229 (2007). Ifa government
20
employee is sued for a tort that was committed in the scope of his employment, the
United States may substitute itself as the defendant upon the certification of the
Attorney General. 28 U.S.C. § 2679(d). Litigation then proceeds under the
Federal Tort Claims Act. Osborn, 549 U.S. at 230 (citing 60 Stat. 842).
The certification of the Attorney General is not conclusive, however, and is
subject to judicial review. Gutz'errez de Martz'nez v. Larnagno, 515 U.S. 417, 420
(1995). However, the certification of the Attorney General is treated as prima
facie evidence that the employee was acting within the scope of his employment.
Kz``mbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994); see also Council on
American-Islamz``c Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006). If
the plaintiff wishes to challenge the certification, he must, after an opportunity for
reasonable discovery, come forward with competent evidence as to both scope of
employment and the underlying merits, as if responding to a motion for summary
judgment, Kirnbro, 30 F.3d at 1509 (expressing approval of Melo v. Hafer, 13
F.3d 736, 747 (3d Cir. 1994)). To determine whether the defendants were acting
within the scope of their employment, the respondeat superior law of the state
where the tort was alleged to have been committed is applied. Wz``lson, 535 F.3d at
711 (citing Ballenger, 444 F.3d at 663).
In this case, District of Columbia law, which follows the Restatement
(Second) of Agency, applies. Id. The Restatement provides that an employee’s
conduct falls within the scope of employment if it "is of the kind he is employed to
perform; it occurs substantially within the authorized time and space limits; [and]
21
it is actuated, at least in part, by a purpose to serve the master." Id. (citing
Restatement (Second) of Agency § 228(1)).
This Court previously rejected the government’s argument that even if the
individual defendants had gathered FBI files for partisan political purposes, it
would be within the scope of their employment since they were political
appointees. Alexander, 971 F. Supp. at 61 l. Here, despite voluminous discovery
the plaintiffs have failed to bring forward any competent evidence that, first the
defendants gathered the plaintiffs’ files for partisan political purposes and further
that the conduct that did occur was outside the scope of the individual defendants’
employment, The Court addresses each individual defendant in turn.
i. Anthony Marceca
Although the plaintiffs dispute that Anthony Marceca relied on the June 10,
1993 list of pass holders obtained by Nancy Gemmell from the Secret Service in
conducting the Update Project, despite nearly fourteen years of litigation in this
case, they have failed to produce even a scintilla of competent evidence to the
contrary. Co)npare Defendants’ Statement of Material Facts 1 47 with Plaintiffs’
Reply to Defendants’ Statement of Material Facts 1 47. The "evidence" that they
do point to, however, is neither reliable nor probative.
Plaintiffs rely extensively on an interim report from the House of
Representatives Committee on Government Reform and Oversight, which
assumed that Mr. Marceca must have used a "master list," that is one that
distinguished between active and inactive pass holders. See House Report at 98.
22
Reports of investigations by governmental bodies made pursuant to law may be
admitted as evidence under an exception to the hearsay rule unless "the
circumstances indicate a lack of trustworthiness." FED. R. EVID. 803(8)(0); Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 167 (1988). Here, the report itself noted
that the Committee’s investigation remained in progress and that it had yet to
conclude "whether colossal incompetence or a sinister motive precipitated these
events" House Report at 3. Given the self-professed interim nature of the report,
see In re Korean Airlines Disaster, 932 F.2d 1475, 1481~82 (D.C. Cir. 1991),
along with the production of part of the June 10, 1993 list, which undermines the
report’s assumption that Mr. Marceca relied on a "master list," the Court cannot
find the interim House Report sufficiently trustworthy. Additionally, that
conclusion is further contradicted by Mr. Marceca’s own testimony before staff
members of the House Committee, that he used a list provided by Ms. Gemmell.
See Defendants’ Motion [942], Ex. 34. Likewise Ms. Gemmell and Ms. Wetzl
(who assumed responsibility for the Update Project after Mr. Marceca’s detail
ended), have testified that the list that they worked from did not distinguish
between active and inactive pass holders. See Gemmell Decl. 11 16-21, Ex. A;
Wetzl Dec. 11 20, 26, Ex. A. As such the Court rules that the interim House
Report is inadmissible and cannot be the basis for concluding that Mr. Marceca
was acting outside the scope of his employment, Still, even if the House Report
were admissible, no reasonable jury could infer from it alone that Mr. Marceca
requested the plaintiffs’ summary background report for political purposes.
23
Indeed, beyond the one reference in the House Report, which the Court has
already determined is not evidence, the plaintiffs have failed to produce any other
competent evidence that Mr. Marceca requested the plaintiffs’ summary
background reports for political purposes. The plaintiffs also point to a statement
made by Mari Anderson, another OPS employee, that they say is evidence that Mr.
Marceca was acting outside the scope of his employment. Ms. Anderson’s
testimony before the Senate, however, indicates that while she and others in OPS
were aware it received summary background reports for people who no longer
needed access to the White House, they assumed that those people had worked in
the Clinton White House at some point. Anderson Dep. 140:5-18. That the White
House became aware it had requested summary background reports on people who
no longer worked there is not evidence that those reports were requested for
improper political purposes in the first place. And the plaintiffs have pointed to no
evidence that they were.
Finally plaintiffs allege that Mr. Marceca used a list that included
prominent Bush political appointees whom OPS employees struck from the list
using a permanent marker. As the government points out, however, this list could
not have been the one Mr. Marceca worked from, because it does not include the
information that the FBI required to process the summary background report
requests from OPS. Additionally this second list doesn’t contain the names of
many of the former employees of the Bush and Reagan administrations whose
background reports were requested by Mr. Marceca. The plaintiffs have presented
24
no evidence to the contrary, and this Court cannot rely on the mere conjecture of
the plaintiffs alone.
Finally the plaintiffs ask this Court to draw an adverse inference from Mr.
Marceca’s invocation of his privilege against self-incrimination during his
deposition in this case. While it is permissible to draw an adverse inference in a
civil case from a witness’s refusal to testify, in order to do so there must be
"independent evidence to support the negative inferences . . . ." United States v.
Stelmokas, 100 F.3d 302, 311 (3d Cir. 1996). Here since there is no independent
evidence to support such a negative inference, the Court will not draw one.
Nothing else the plaintiffs cite provides evidence to support their
allegations As such, there can be no finding at Mr. Marceca was acting outside
the scope of his employment under D.C. law. Furthermore, what evidence there is
firmly supports the conclusion that Mr. Marceca was indeed acting within the
scope of his employment when he requested plaintiffs’ summary background
reports. Accordingly, the Court will substitute the United States as a defendant in
place of the defendant Anthony Marceca. 28 U.S.C. § 2679(d)(1).
ii. Craig Livingstone
There has been no evidence that Craig Livingstone sought to obtain the
plaintiffs’ FBI summary background reports for any improper purpose, political or
otherwise. There is no dispute that Mr. Livingstone authorized the undertaking of
the Update Project, at the insistence of Nancy Gemmell, but there has been no
evidence that Mr. Livingstone had any involvement in the actual requisition of
25
summary background reports themselves and certainly not that he authorized the
project to compile a political "hit list" for the Clinton administration. There is also
no dispute that the Update Project was itself a necessary undertaking, and
whatever steps Mr. Livingstone undertook to ensure that it began certainly fell
within the scope of his employment, even if its execution was inadvertently
f1awed. As such, substitution of the United States as a defendant in place of Mr.
Livingstone is proper under the Westfall Act. 28 U.S.C. § 2679(d)(1).
iii. Bernard Nussbaum
Under the Westfall Act an employee is held to have acted within the scope
of his employment if he did not engage in the alleged conduct. Kimbro, 30 F.3d at
1506-08. The only reason that Mr. Nussbaum-as far as this Court can surmise~
was named a defendant in this case is that his name appears on the forms that were
used to request summary background reports. There has been no evidence that
Mr. Nussbaum made these requests himself and as the Court has noted earlier,
there has been no evidence presented that there was a conspiracy to request the
plaintiffs’ summary background reports for political purposes let alone that Mr.
Nussbaum was involved in it. As such, there can be no doubt that Mr.
Nussbaum’s conduct (or rather lack of conduct) places him under the protection of
the Westfall Act. Accordingly, the United States shall be substituted as a
defendant in place of Mr. Nussbaum. 28 U.S.C. § 2679(d)(1).
iv. Federal Tort Claims Act
26
Because the United States has been properly subsisted as a defendant for
the three individually named defendants in this case, and the plaintiffs have failed
to exhaust their administrative remedies under the Federal Tort Claims Act, this
Court lacks jurisdiction over the claims in Count 111 of the Complaint. 28 U.S.C. §
2675(a); McNeil v. United States, 508 U.S. l06, 110-13 (1993). As such, Count
111 of the Complaint shall be dismissed. 28 U.S.C. § 2675(a).
IV. Conclusion
After years of litigation, endless depositions the fictionalized portrayal of
this lawsuit and its litigants on television, and innumerable histrionics, this Court
is left to conclude that with this lawsuit, to quote Gertrude Stein, "there’s no there
93
there. While this Court seriously entertained the plaintiffs’ allegations that their
privacy had been violated-and indeed it was even if not in the sense
contemplated by Privacy Act-after ample opportunity, they have not produced
any evidence of the far-reaching conspiracy that sought to use intimate details
from FBI files for political assassinations that they alleged. The only thing that
they have demonstrated is that this unfortunate episode-about which they do
have cause to complain-was exactly what the defendants claimed: nothing more
than a bureaucratic snafu.
As such, the govemment’s motion for summary judgment shall be granted
in a separate order to be issued today and the plaintiffs’ cross-motion for summary
judgment shall be denied. Additionally, the United States shall be substituted for
the three individually named defendants_Anthony Marceca, Craig Livingstone,
27
and Bemard Nussbaum~and plaintiff Joseph Cate’s claims against them shall be
dismissed for his failure to exhaust administrative remedies as required by the
Federal Tort Claims Act.
March 1130 10.
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