Peter B. v. Central Intelligence Agency ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
PETER B., )
)
Plaintiff, )
)
v. ) Civil Action No. 06-1652 (RWR)
)
CENTRAL INTELLIGENCE AGENCY, )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Peter B.1 brings this action under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, the Privacy
Act, 5 U.S.C. § 552a, and the Due Process Clause of the Fifth
Amendment against the CIA and individuals within the CIA,
alleging nine violations of his rights stemming from the CIA’s
decision to terminate his employment. The defendants have moved
to dismiss the complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and
failure to state a claim, or in the alternative, to transfer this
action to the Eastern District of Virginia. Because the
defendants have not demonstrated that transfer is warranted,
their motion to transfer venue will be denied. The defendants’
motion to dismiss will be granted in part and denied in part.
1
As plaintiff’s true name is classified, he has been
permitted to file as “Peter B.”
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Because Counts I and IV of the amended complaint seek review that
is precluded by the Civil Service Reform Act (“CSRA”), these
counts will be dismissed for lack of jurisdiction. Because Peter
B. has stated claims under the Due Process Clause of the Fifth
Amendment and the Privacy Act in the remaining seven counts of
the amended complaint, the defendant’s motion to dismiss Counts
II, III and V through IX will be denied.
BACKGROUND
Peter B. brings this action against the CIA, former CIA
Director Michael V. Hayden, his former supervisor Margaret Peggy
Lyons, and Does #1-10, unknown or covert officials of the CIA who
he contends were involved in illegal actions against him. He
asserts that the CIA’s conduct in terminating his employment and
subsequently refusing to confirm certain information about his
relationship with the CIA or communicating negative information
about him to future employers violated his rights under the APA,
the Privacy Act, the Due Process Clause of the Fifth Amendment,
and other unidentified CIA regulations and statutes.
Peter B. contends that “[i]n the early 1990s, [he] entered
into a covert operational relationship with the CIA” and “at a
certain point in the 1990s he became a full [CIA] staff employee
[as] possessive of all constitutional, statutory and regulatory
rights as any other CIA federal employee[,]” which included “the
usual rights, privileges and benefits that are accorded federal
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employees.” (Am. Compl. ¶¶ 8-9.) He alleges that “[o]n or about
October 3, 2002, [his] relationship [with the CIA] was formally
terminated,” which left him “abandoned at his domestic post” and
“forced to incur significant expenses that exceeded $15,000.”
(Id. ¶¶ 12, 15.) Peter B. further contends that he “was never
provided any administrative remedies . . . which . . . he was
entitled to pursue” as a federal employee and that “despite
multiple requests,” the only reason he has ever been given for
his termination was that he was terminated “for the convenience
of the government.” (Id. ¶¶ 12, 18.)
In addition, Peter B. alleges that “[a]t the time [he was]
terminated by the CIA he possessed a TS/SCI clearance that was
still active” and “he was repeatedly verbally informed by
representatives of the CIA that there were no security clearance
issues or concerns within his CIA files.” (Id. ¶ 20.) Still, he
contends, “the CIA disseminated false and defamatory information
concerning [him] to . . . government contractors for the purpose
of causing the potential employer to either never provide Peter
B. with an offer of employment or withdraw any such offer that
had been provided.” (Id. ¶ 21.)
In his amended complaint, Peter B. lists nine causes of
action. Counts I and IV seek APA review of the CIA’s
classification of Peter B.’s employment status, Peter B.’s
termination, and the CIA’s failure to reimburse him for certain
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expenses. Counts II, III, V, and IX allege Fifth Amendment Due
Process claims. Counts VI through VIII allege Privacy Act
violations. The defendants have filed a motion to dismiss under
Rules 12(b)(1) and 12(b)(6), or in the alternative, to transfer
venue to the Eastern District of Virginia.
DISCUSSION
I. MOTION TO TRANSFER VENUE
The defendants contend that this case should be transferred
to the Eastern District of Virginia. Venue is proper in the
District of Columbia because three of plaintiff’s claims are
brought under the Privacy Act, which expressly permits claims to
be brought in the District of Columbia. See 5 U.S.C.
§ 552a(g)(5) (“An action . . . may be brought in the district
court of the United States in the district in which the
complainant resides, or has his principal place of business, or
in which the agency records are situated, or in the District of
Columbia[.]”).
Nonetheless, a court may transfer a case “for the
convenience of parties and witnesses, in the interest of
justice.” 28 U.S.C. § 1404(a). The moving party has the burden
of persuasion, and must show that transfer is “‘justified by
particular circumstances that render the transferor forum
inappropriate by reference to the considerations specified in
that statute.’” SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154
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(D.C. Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925
(D.C. Cir. 1974)). A court has broad discretion to decide
whether transfer from one jurisdiction to another is warranted
for the convenience of the parties and witnesses. Id.A court may transfer an action under § 1404(a) only to a
venue where the action “might have been brought.” See 28 U.S.C.
§ 1404(a). This case could have been brought in the Eastern
District of Virginia because relevant conduct underlying Peter
B.’s claims occurred there and because the CIA resides in the
Eastern District. See 28 U.S.C. § 1391. After determining that
venue in the proposed transferee district would be proper, a
court then “must weigh in the balance the convenience of the
witnesses and those public-interest factors of systemic integrity
and fairness that, in addition to [the] private concerns [of the
parties], come under the heading of ‘the interest of justice.’”
Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988).
Because “it is perhaps impossible to develop any fixed general
rules on when cases should be transferred[,] . . . the proper
technique to be employed is a factually analytical, case-by-case
determination of convenience and fairness.” Savoy Indus., 587
F.2d at 1154 (internal quotation marks and citations omitted).
A. Private factors
Private interest factors to consider typically include
things such as each party’s choice of forum, where the claim
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arose, the convenience of the parties, the convenience of the
witnesses, particularly if important witnesses may actually be
unavailable to give live testimony in one of the trial districts,
and the availability and ease of access to sources of proof.
Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 32-33 (D.D.C.
2008). A plaintiff’s choice of forum is generally accorded
substantial deference. Schmidt v. Am. Inst. of Physics, 322 F.
Supp. 2d 28, 33 (D.D.C. 2004). However, if the plaintiff is not
a resident of the forum and “most of the relevant events occurred
elsewhere,” this deference is weakened. Hunter v. Johanns, 517
F. Supp. 2d 340, 344 (D.D.C. 2007); see Robinson v. Eli Lilly &
Co., 535 F. Supp. 2d 49, 52 (D.D.C. 2008). “When the events
occur in more than one district, a court can consider which
jurisdiction has the stronger factual nexus to the claims.”
Miller v. Insulation Contractors, Inc., Civil Action No. 08-1556
(RWR), 2009 WL 1066263, at *2 (D.D.C. Apr. 21, 2009) (concluding
that where it was unclear in which forum “the more significant
locus of material events” occurred, the movant had not
demonstrated that the private interest factors favored transfer).
Peter B. does not claim to be a resident of the District of
Columbia, but he does allege that “events pertaining to [him]
took place within this jurisdiction.” (Am. Compl. ¶ 5.)
Although it is unclear what a qualitative or quantitative
comparison of the events in the two fora would reveal, the
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allegation that at least some of the relevant conduct occurred in
this forum suggests that Peter B.’s choice of forum should be
accorded some deference. Regarding where the claims arose,
because the CIA has a presence in both the District of Columbia
and Virginia, and because at least one of the defendants, Lyons,
works in the District of Columbia, Peter B. alleges that his
claims arose from events and actions, including those by Lyons,
that occurred in both jurisdictions. (See id. ¶ 5; Pl.’s Opp’n
at 27.) Accordingly, this factor favors neither forum. The
remaining private interest factors do not strongly support
transfer because of the close proximity of this district and the
Eastern District of Virginia. Peter B. alleges that “many of the
witnesses and the parties live or work with the District of
Columbia.” (Pl.’s Opp’n at 28 (noting that defendant Lyons
currently works in the District of Columbia).) The defendants
contend that Virginia would be more convenient because the CIA
resides within that district and most of the records and other
evidence at issue are located there. (See Defs.’ Mem. in Support
of Their Motion to Dismiss (“Defs.’ Mem.”) at 29; Defs.’ Reply
23-25.) Although there is insufficient information at this early
stage to conclusively determine which forum hosts more evidence
or potential witnesses, neither the parties nor potential
witnesses would be significantly inconvenienced if the case is to
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proceed in the District of Columbia rather than the Eastern
District of Virginia.
B. Public factors
Relevant public interest factors include the local interest
in making local decisions about local controversies, the
potential transferee court’s familiarity with the applicable law,
and the congestion of the transferee court compared to that of
the transferor court. Akiachak Native Cmty. v. Dep’t of the
Interior, 502 F. Supp. 2d 64, 67 (D.D.C. 2007). Because Peter B.
alleges that significant events underlying his claims occurred in
both fora, the defendants have not carried their burden of
demonstrating that Virginia would have a greater local interest
in deciding this controversy. The complaint alleges causes of
action all grounded in the federal constitution and federal law,
and the two district courts would be deemed equally familiar with
applicable federal law in this case. Miller, 2009 WL 1066263, at
*3 (noting that “all federal courts are presumed to be equally
familiar with the law governing federal statutory claims”).
Neither party has commented on the congestion in either forum.
The public factors, then, do not favor transfer.
Thus, in light of both the private and public factors, the
defendants have not shown that transfer to the Eastern District
of Virginia would be more convenient for the parties or
witnesses, or be in the interest of justice. Accordingly, the
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defendants’ motion to transfer venue to the Eastern District of
Virginia will be denied.
II. MOTION TO DISMISS
“On a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the
burden of establishing that the court has subject-matter
jurisdiction.” Shuler v. United States, 448 F. Supp. 2d 13, 17
(D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)). In reviewing the motion, a court accepts as
true all of the factual allegations contained in the complaint,
see Lujan, 504 U.S. at 560, and may also consider “undisputed
facts evidenced in the record.” Coal. for Underground Expansion
v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); see also Tootle v.
Sec’y of the Navy, 446 F.3d 167, 174 (D.C. Cir. 2006) (explaining
that a court may look to certain materials beyond the pleadings
to resolve disputed jurisdictional facts when considering a
motion to dismiss under Rule 12(b)(1)). The “nonmoving party is
entitled to all reasonable inferences that can be drawn in [its]
favor.” Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir.
1998).
A complaint can be dismissed under Rule 12(b)(6) when a
plaintiff fails to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). In order to survive a
motion to dismiss under Rule 12(b)(6), the allegations stated in
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the plaintiff’s complaint “must be enough to raise a right to
relief above the speculative level[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “[A] well-pleaded claim may
proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that recovery is very remote and
unlikely.” Id. (internal quotation marks omitted). The
complaint must be construed in the light most favorable to the
plaintiff and “the court must assume the truth of all
well-pleaded allegations.” Warren v. District of Columbia, 353
F.3d 36, 39 (D.C. Cir. 2004). However, if a plaintiff fails to
allege sufficient facts to support a claim, the complaint must be
dismissed. See Twombly, 550 U.S. at 555.
A. Peter B.’s employment status
As a preliminary matter, the amended complaint contends that
the nature of Peter B.’s relationship with the CIA is disputed.
It alleges that he was “a full [CIA] staff employee [as]
possessive of all constitutional, statutory and regulatory rights
as any other CIA federal employee[,]” and that the CIA wrongly
considered him to be “some sort of independent contractor whose
relationship with the government can be terminated at its
convenience.” (Am. Compl. ¶¶ 9-10.) The amended complaint is
unclear as to whether it alleges “inconsistent facts in support
of alternative theories of recovery” -- where Peter B. is
entitled to recover on his claims either as a “full staff
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employee” or as “some sort of independent contractor” -- or if
his claims are all premised on the assertion that he was a full
staff employee of the CIA. See Powers-Bunce v. District of
Columbia, 479 F. Supp. 2d 146, 164-65 (D.D.C. 2007) (noting that
a Rule 8(e) permits pleading inconsistent factual allegations);
Doe v. Goss, Civil Action No. 04-2122 (GK), 2007 WL 106523, at *9
(D.D.C. Jan. 12, 2007) (same). For example, in Count IV, labeled
as a claim for “failure to follow regulations or statutes” and
brought under the APA, the text begins with the assertion that
“at a certain point in the 1990s [Peter B.] became a full staff
employee [as] possessive of all constitutional, statutory and
regulatory rights as any other CIA federal employee.” (Am.
Compl. ¶ 46.) Nonetheless, Count IV continues to allege that the
CIA’s failure to reimburse Peter B. certain expenses violated the
APA “[r]egardless of whether [he] was a staff employee or some
sort of contractor[.]” (Am. Compl. ¶ 50.) Thus, Count IV
reasonably could be interpreted to be pleading APA claims as an
employee or, in the alternative, as an independent contractor.
In their motion to dismiss or transfer, the defendants agree
with Peter B.’s allegation that he was a CIA employee, but they
argue that he was classified as a “contract employee,” rather
than a staff employee. (Defs.’ Mem. at 1-2 (labeling Peter B. as
a “former covert contract employee”).) The defendants allege
that a “contract employee . . . is defined as an individual
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employed in a non-career status through a contract.” (Id. at 6,
n.2 (internal quotation marks omitted).) They contend that as a
contract employee, Peter B. was “appointed under the authority of
the [DCI] to serve in an employment relationship entitling [Peter
B.] to benefits provided under federal law or regulations except
as modified by law applicable to the [CIA].” (Id. (internal
quotation marks omitted).) They further argue that as a contract
employee, Peter B. was subject to the provisions of the CSRA, “a
comprehensive remedial scheme for the review of personnel
decisions” made concerning federal employees. (Id. at 6.) Peter
B. does not refute the defendants’ argument that he was a CIA
employee who was subject to the CSRA. Indeed, in his opposition
to the defendants’ motion, he virtually concedes that the CSRA
applies to him. (Pl.’s Opp’n at 2 n.2 (stating that “if his APA
claims were solely to enforce CIA regulations,” they would be
barred by the CSRA).) “Where a plaintiff addresses some but not
all arguments raised in a defendant’s motion to dismiss, courts
in this district may treat such arguments as conceded.” Payne v.
District of Columbia, Civil Action No. 08-163 (CKK), 2008 WL
5401532, at *6 (D.D.C. Dec. 30, 2008) (citing Fox v. Am.
Airlines, Inc., 295 F. Supp. 2d 56, 58 (D.D.C. 2003), aff’d, 389
F.3d 1291 (D.C. Cir. 2004)); Hopkins v. Women’s Div., General Bd.
of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002)
(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)) (“It
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is well understood in this Circuit that when a plaintiff files an
opposition to a motion to dismiss addressing only certain
arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.”).
Accordingly, because Peter B. makes no attempt to preserve any
argument that he was not a CIA employee subject to the CSRA, the
defendants’ argument that Peter B. was a CIA employee subject to
the CSRA will be deemed conceded and will be accepted.
B. APA review of adverse personnel decisions (Counts I and
IV)
In Counts I and IV of the amended complaint, Peter B. seeks
APA review of the CIA’s alleged misclassification of his
employment status, the decision to deny him certain benefits, and
the decision to terminate his employment with the CIA. (Am.
Compl. ¶¶ 22-28; 44-54.) The defendants contend that these
claims “challenge various personnel actions” which are precluded
from review by the CSRA, and that the CSRA provides the exclusive
framework for how federal employees may seek review of adverse
personnel decisions. (See Defs.’ Mem. at 5-8.)
When enacted, the CSRA “established an elaborate new
framework for evaluating adverse personnel actions [taken]
against certain categories of federal employees.” Doe v. Goss,
Civil Action No. 04-2122 (GK), 2007 WL 106523, at *4 (D.D.C.
Jan. 12, 2007). The scheme is a comprehensive and “exclusive
framework for judicial review” of personnel decisions within its
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ambit. Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv.,
940 F.2d 704, 709 (D.C. Cir. 1991) (internal quotations and
citations omitted). “The CSRA expressly excludes CIA employees
from the classes of employees for whom the CSRA’s review
procedures are available.” Doe v. Goss, 2007 WL 106523, at *6
(citing 5 U.S.C. §§ 2302(a)(2)(A), 7511(b)(7)). Although CIA
employees are excluded from those employees permitted to invoke
the CSRA’s review procedures, their exclusion does not leave them
“free to pursue whatever judicial remedies [they] would have had
before enactment of the CSRA.” United States v. Fausto, 484 U.S.
439, 447 (1988). Fausto explained that “[d]irect judicial review
for non-covered employees would undermine ‘the development,
through the [Merit Systems Protection Board], of a unitary and
consistent Executive Branch position on matters involving
personnel action,’ and would frustrate the congressional intent
to ‘avoid[] an unnecessary layer of judicial review in lower
federal courts.” Doe, 2007 WL 106523, at *5 (quoting Fausto, 484
U.S. at 449 (internal quotations omitted)).
Thus, the court of appeals has concluded that when the CSRA
precludes judicial review of an adverse personnel action, the APA
cannot be used to circumvent the CSRA. Harrison v. Bowen, 815
F.2d 1505, 1513 (D.C. Cir. 1987); Carducci v. Regan, 714 F.2d
171, 174-75 (D.C. Cir. 1983). For example, a plaintiff cannot
“invoke the principle that agencies must follow their own
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regulations” to suggest that the agency created a right to APA
review outside of the CSRA scheme because “agencies cannot
purport to confer rights undermining a comprehensive
congressional scheme.” See Graham v. Ashcroft, 358 F.3d 931,
935-36 (D.C. Cir. 2004).
Peter B. offers no argument in response to defendants’
contention that the claims alleged in Counts I and IV seek APA
review of adverse personnel actions that is barred by the CSRA.
Accordingly, this argument will be deemed conceded and the
defendants’ motion to dismiss Counts I and IV will be granted.
C. Due process claims (Counts II, III, V, and IX)
In Claims II, III, V, and IX, Peter B. alleges that he was
deprived of a protected liberty interest without procedural due
process. The Fifth Amendment protects an individual’s right to
due process before the federal government may infringe upon a
person’s protected property or liberty interest. See Bd. of
Regents v. Roth, 408 U.S. 564, 576 (1972); Griffith v. Federal
Labor Relations Auth., 842 F.2d 487, 495-97 (D.C. Cir. 1988).
The defendants argue that Peter B. has failed to state a
deprivation of either a property interest or liberty interest
without due process. In his opposition to the defendants’ motion
to dismiss, Peter B. groups all four of his due process claims as
claims alleging infringement of a protected liberty interest,
alleging that the CIA has deprived him of his protected liberty
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interest in his reputation and his ability to seek employment in
his chosen field without required due process. Because he does
not refute the government’s argument that he had no property
interest in his position with the CIA, this argument will be
deemed conceded.
In Roth, the Supreme Court found that the government’s
failure to re-hire a teacher was alone insufficient to implicate
a due process liberty interest because a person is not “deprived
of ‘liberty’ when he simply is not rehired in one job but remains
free as before to seek another.” 408 U.S. at 575 (citing
Cafeteria Workers v. McElroy, 367 U.S. 886, 895-96 (1961)).
However, the Court concluded that had the government’s failure to
rehire the plaintiff gone beyond simply foreclosing the single
employment opportunity and instead harmed the plaintiff’s “good
name, reputation, honor, or integrity,” or “imposed . . . a
stigma or other disability [on him] that foreclose[s] his freedom
to take advantage of other employment opportunities,” then the
government’s action would have implicated the person’s due
process liberty interest. Id. at 573; see Orange v. District of
Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995) (stating that, for
a liberty interest claim, a plaintiff must “show that the
government ‘altered [his] status in a tangible way, and that an
imposition of stigma or injury to reputation accompanied this
change in status.’” (quoting United States Info. Agency v. Krc,
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905 F.2d 389, 397 (D.C. Cir. 1990))). Under the first Roth test,
called “reputation-plus,” a plaintiff can show a protected
liberty interest by establishing that the government changed his
status and accompanied such a change with defamation that
“seriously damage[d] his standings and associations in the
community.” M.K. v. Tenet, 196 F. Supp. 2d 8, 15 (D.D.C. 2001);
see O’Donnell v. Barry, 148 F.3d 1126, 1139-40 (D.C. Cir. 1998).
Under the second test, termed “stigma or disability,” a
protectable liberty interest is implicated if the government
alters the employee’s status and such a change “foreclose[s] his
freedom to take advantage of other employment opportunities by
either (a) automatically excluding him from a definite range of
employment opportunities with the government or (b) broadly
precluding him from continuing his chosen career.” M.K., 196 F.
Supp. 2d at 15; see O’Donnell, 148 F.3d at 1140. When the
government has infringed upon a person’s protected liberty
interest under either test, the person has a due process right to
notice and an opportunity to refute the charges against him and
to clear his name. Doe v. U.S. Dep’t of Justice, 753 F.2d 1092,
1102 (D.C. Cir. 1985) (holding that because a Fifth Amendment
liberty interest claim implicates an interest in one’s “post-
employment reputation rather than any right to continued
employment,” the “well-settled remedy” is a name-clearing
hearing).
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1. Reputation-plus claim
Under the reputation-plus test, Peter B. alleges that the
defendants altered his status by terminating his employment and
publicly defamed him by “disseminat[ing] inaccurate and/or
derogatory information throughout the CIA that unlawfully and
unethically caused his employment with the CIA to be terminated”
and by “plac[ing] negative information within [his] files which
[were] ‘available, even on a limited basis, to prospective
employers or government officials.’” (Pl.’s Opp’n at 9-10
(quoting Kartseva v. Dep’t of State, 37 F.3d 1524, 1528 (D.C.
Cir. 1994)).) Defamation alone is not does not give rise to a
due process claim. Siegert v. Gilley, 500 U.S. 226, 233-34
(1991) (holding that injury to reputation alone is not a
protected liberty interest); Paul v. Davis, 424 U.S. 693, 706
(1976) (“[T]he Court has never held that the mere defamation of
an individual . . . was sufficient to invoke the guarantees of
procedural due process absent an accompanying loss of government
employment.”); see also Orange, 59 F.3d at 1274. “For a
defamation to give rise to a right to procedural due process, it
is necessary . . . that the defamation be accompanied by a
discharge from government employment” or other adverse personnel
action. Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir. 1983)
(emphasis added). “Although the conceptual basis for
reputation-plus claims is not fully clear, it presumably rests on
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the fact that official criticism will carry much more weight if
the person criticized is at the same time demoted or fired.”
O’Donnell, 148 F.3d at 1140 (emphasis added); see Doe v. Dep’t of
Justice, 753 F.2d at 1113 n.25 (“conclud[ing] only that a
government employee must be given a name-clearing hearing when
the government disseminates allegedly false and
reputation-destroying charges against her in the course of her
discharge”).
Peter B. “has emphatically alleged that [d]efendants Lyons
and Does #1-#10 disseminated inaccurate and/or derogatory
information throughout the CIA that unlawfully and unethically
caused his employment with the CIA to be terminated[.]” (Pl.’s
Opp’n at 9 (emphasis added); see Am. Compl. ¶ 13 (alleging that
these defendants “took steps . . . [to] ensure Peter B.’s
relationship with the CIA was terminated [which] included . . .
dissemination of false information”).) To the extent Peter B. is
alleging only that the defendants’ defamatory statement caused
his termination, he has not stated a claim under the reputation-
plus test because the defendants’ alleged defamatory statements
did not accompany his termination. An alleged cause-and-effect
relationship between the defendants’ conduct and Peter B.’s
termination alone does not state a reputation-plus claim because
such a claim does not suggest that the CIA publicly adopted the
individual defendants’ defamatory statements as the reason for
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his termination. The distinguishing feature between ordinary
defamation and reputation-plus defamation is that the defamation
is part of an official action, on the theory that the official
action makes the defamation much more damaging. See O’Donnell,
148 F.3d at 1140. Absent a showing that the individual
defendants’ statements were offered as the reasons for the
decision to terminate Peter B., the individual defendants’
conduct was only ordinary defamation that does not implicate a
liberty interest. Drawing all reasonable inferences in Peter
B.’s favor, though, it is plausible that the complaint is
alleging that the CIA publicly adopted the individual defendants’
defamatory statements against Peter B. as the reasons for Peter
B.’s termination. Such an allegation states a claim under the
reputation-plus test.
Similarly, Peter B.’s allegation that there is negative
information injuring his reputation in his file that is publicly
available to future employers states a reputation-plus claim if
he is alleging that the negative information in his file consists
of the reasons for his termination. The court of appeals has
held that a person has a due process right to clear his name if
he “can demonstrate that the stigmatizing reasons for [his]
discharge were disclosed to the public or were made available to
prospective employers or other government personnel.” Doe v.
Dep’t of Justice, 753 F.2d at 1113; see also Brandt v. Board of
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Co-op Educ. Servs., 820 F.2d 41, 45 (2d Cir. 1987) (holding that
a liberty interest would be implicated where stigmatizing charges
“were placed in the employee’s file during the course of his
termination” and “were likely to be disclosed to future
employers”). In such a situation, as is alleged in this case,
although the defamation has occurred after the status change, it
is nonetheless accompanying the status change if it being offered
as the official reason for the status change. See id.Without evidence of the contents of Peter B.’s personnel
files, the record does not reflect whether the alleged “false and
defamatory information concerning Peter B.” made available to the
contractors was the reason for his termination, which would
implicate a liberty interest requiring due process, or was simply
defamation unrelated to any determination of Peter B.’s
employment status, which does not confer any due process right.
In addition, based on Peter B.’s allegations, it is impossible to
discern whether any alleged derogatory statements were in fact
statements that injure one’s reputation under the law. For
example, in Department of the Navy v. Egan, 484 U.S. 518 (1988),
the Supreme Court concluded that a clearance determination “does
not equate with passing judgment upon an individual’s character.”
Id. at 528. Accordingly, a statement that simply indicates a
person’s ineligibility for a security clearance, without more,
would not be an injury to reputation. See id. Based on Peter
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B.’s allegations in the complaint,2 it is a reasonable inference
that the alleged statements disseminated throughout the CIA to
cause his termination may have been sufficiently defamatory to
injure Peter B.’s reputation and may have been adopted as reasons
for his termination and subsequently communicated to his
potential employers as the reasons for his termination.
Defendants contend that Peter B. will not be able to
establish that any negative reasons for his termination, if such
reasons existed, were publicly disclosed to any party outside the
CIA because he was a covert employee whose “connection with the
CIA cannot be publicly revealed” and CIA regulations explicitly
prohibit disclosure of the reasons for a termination without
consent of the employee. (Defs.’ Reply at 7.) This argument
attacks the merits of Peter B.’s factual allegation that such
disclosure did occur, and Peter B. is entitled to the truth of
all his factual allegations at this stage. Thus, because Peter
B. maintains he has never had a notice or an opportunity to
refute negative information relating to his termination that has
been allegedly disclosed to his potential employers, Peter B. has
2
For example, the complaint alleges that “Lyons and Does #1-
#10 took steps based on their own personal reasons to unlawfully
and/or unethically ensure Peter B.’s relationship with the CIA
was terminated . . . includ[ing], but . . . not limited to, the
dissemination of false information concerning Peter B.” (Am.
Compl. ¶ 13.) It further contends that after Peter B.’s
termination, “the CIA disseminated false and defamatory
information concerning Peter B. to . . . government contractors.”
(Id. ¶ 21.)
-23-
stated a claim under a reputation-plus theory that he was
deprived of a protected liberty interest without due process.
2. Stigma or disability claim
Under the stigma or disability test, a plaintiff must
identify “the combination of a [status change] and ‘a stigma or
other disability that foreclosed [the plaintiff’s] freedom to
take advantage of other employment opportunities[.]’” O’Donnell,
148 F.3d at 1140 (quoting Roth, 408 U.S. at 573). Peter B.
alleges that the “CIA’s dissemination of false information
concerning [him] . . . has the same impact as actually denying or
revoking his security clearance,” and as a result, amounts to a
status change sufficient to support a stigma or disability claim.
(Am. Compl. ¶ 111; see Pl.’s Opp’n at 10-14.) He cites Kartseva
for the proposition that a “negative change in a plaintiff’s
status adequate to implicate a liberty interest can be found
where a federal agency’s conduct has the ‘broad effect of
precluding [the employee] from pursuing [their] (sic) chosen
career.’” (Pl.’s Opp’n at 12 (quoting Kartseva, 37 F.3d at 1528)
(bracketed language in original).) He suggests that “[his]
status, like that of Kartseva, was adequately altered, as he has
been broadly precluded from work in his chosen career due to the
inaccurate [or] derogatory statements made by the CIA to
contractors concerning him.” (Id.)
-24-
In Kartseva, the State Department conducted a background
check on the plaintiff, a Russian language translator employed by
a government contractor, found that her background check revealed
“several significant counterintelligence concerns,” and “asked
the [contractor] to ‘act on’ this determination.” 37 F.3d at
1526. “Based on State’s communication, [the contractor]
terminated Kartseva.” Id. Kartseva alleged that the State
Department’s determination implicated a protected liberty
interest entitling her to due process under the Fifth Amendment.
Id. The court of appeals held that one way Kartseva could show
that the State Department’s determination implicated a protected
liberty interest was by demonstrating that, even if not an
“official disbarment” from all public contracting, the State
Department’s action, “was, in fact, a determination of her legal
eligibility to work on future State contracts[.]” Id. at 1528.
The court further held that, in the alternative, Kartseva could
prove “whether State’s disqualification interfere[d] with [her]
constitutionally protected ‘right to follow a chosen trade or
profession.’” Id. at 1529 (quoting Cafeteria Workers, 367 U.S.
at 895-96). It then concluded that it was “impossible to
speculate on whether th[e] disqualification implicate[d]
Kartseva’s general employability” because the record did not
disclose the “‘counterintelligence concerns’ underlying the
disqualification.” Id. at 1529-30. Accordingly, the court
-25-
remanded the question of whether Kartseva stated a liberty
interest claim under a “preclusion from chosen profession” theory
for further proceedings to determine “the scope of the
disqualification,” and whether the State Department’s
disqualification determination for the single project was
“sufficiently stigmatic to work a similar disqualification
through much of Kartseva’s field.” Id. at 1530.
Peter B. suggests that Kartseva would support a claim that
the CIA’s negative statements alone, without a some kind of
actual determination of his clearance status, can become a status
change merely because of their potential effect on his future
employment opportunities. That suggestion is inconsistent with a
close reading of Kartseva and Supreme Court precedent. First,
the court in Kartseva found that there was a change in Kartseva’s
status -- as it described, “State’s express disqualification” --
for at least her current project. Id. Thus, the critical
question was the second element of the stigma or disability test
-- whether the status change foreclosed her future employment
opportunities beyond the single project. Further, the Supreme
Court has concluded that defamation alone cannot be a
“constitutional deprivation,” even if the alleged result is
“serious impairment of [one’s] future employment opportunities.”
Siegert, 500 U.S. at 233-34; see Paul, 424 U.S. at 706. In
Siegert, Siegert’s former government employer wrote a negative
-26-
letter of recommendation to the plaintiff’s subsequent employer.
500 U.S. at 228. The Court found that Siegert had stated only a
tort claim for defamation, but not a claim for a constitutional
deprivation of liberty, despite the effect of the defamation on
Siegert’s future employment. See id. at 233. The Court
explained that its “reference to a government employer
stigmatizing an employee in [Roth] was made in the context of the
employer discharging or failing to rehire a plaintiff[,]” and
Siegert had not connected the alleged defamation to a similar
action. Id.At this stage, however, without any record evidence
revealing any actual statements, Peter B. is entitled to the
reasonable inference that the CIA’s alleged negative statements
were not merely defamatory, but reflected an underlying
determination of Peter B.’s clearance eligibility. If discovery
were to reveal evidence leading to such a conclusion, then the
CIA’s conduct could be analogous to the State Department’s
determination of Kartseva’s contract eligibility and sufficiently
distinguishable from the mere defamation against Siegert. On the
other hand, if the CIA’s statements merely suggested that
negative information existed concerning Peter B., but did not
reflect that the CIA had acted upon such information, these
statements likely would not show that Peter B. suffered a status
change that would support a colorable due process claim. Rather,
-27-
such statements might sound in the tort of defamation.
Construing the facts in Peter B.’s favor, he has stated a claim
under the stigma or disability test to the extent he has alleged
that the CIA’s alleged negative statements to contractors
reflected an actual determination of Peter B.’s clearance
eligibility, and were not merely defamatory.
D. Privacy Act claims (Counts VI through VIII)
Peter B. argues that the defendants violated the Privacy Act
by failing to collect information about him to the greatest
extent possible, failing to maintain accurate records, and
disseminating inaccurate information relating to him, in
violation of 5 U.S.C. § 552a(e)(2), (e)(5), and (e)(6). The
defendants contend that these claims should be dismissed because
Peter B. has not pled these claims with sufficient factual basis
to withstand a motion to dismiss and because any Privacy Act
claims are barred by the CSRA and the Privacy Act’s statute of
limitations. (See Defs.’ Mem. at 21-25; Defs.’ Reply at 13-15.)
1. 5 U.S.C. § 552a(e)(2)
In Count VI, Peter B. alleges that the CIA terminated him
based on incomplete or false records without affording him the
opportunity to provide or correct information. Under
§ 552a(e)(2), an agency maintaining a system of records must
“collect information to the greatest extent practicable directly
from [an] individual when the information may result in adverse
-28-
determinations about [the] individual’s rights, benefits, and
privileges.” To state a claim for damages under this section, a
plaintiff must allege facts that suggest not only that “the
agency failed to elicit information directly from him to the
greatest extent practicable,” and that “this action had an
adverse effect on [him,]” but also that “the violation of the Act
was intentional or willful.”3 Waters v. Thornburgh, 888 F.2d
870, 872 (D.C. Cir. 1989), abrogated on other grounds by Doe v.
Chao, 540 U.S. 614 (2000) (internal quotation marks and citation
omitted).
Peter B. alleges that the defendants violated this section
because “the CIA and one or more of the individual defendants has
failed to maintain [his] records with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to denote
his true employment status with the CIA and the extent to which
he possesses a security clearance,” and “compiled information and
arrived at conclusions that were irrelevant, false, malicious and
defamatory, incomplete, inaccurate, and untimely.” (Am. Compl.
¶¶ 75-76.) He further contends that he was never given an
opportunity to review any information “that led to his
termination or that pertains to his security clearance.” (Id.
¶ 76.) In addition, he alleges that “[t]he CIA’s failure to
3
Damages under the Privacy Act are available only if an
agency “acted in a manner which was intentional or willful.” 5
U.S.C. § 552a(g)(4).
-29-
collect information directly from [him] resulted in adverse
determinations concerning his rights, benefits, privileges, or
opportunities,” and that the CIA and individuals within the CIA
acted intentionally, knowing their actions were unlawful. (Id.
¶¶ 77-78.)
The defendants contend that Peter B. has not pled this claim
with adequate specificity to survive Rule 12(b)(6) scrutiny.
(See Defs.’ Mem. at 24.) Where a “plaintiff does not even know
the precise contents of his records because . . . he has no
access to them,” a plaintiff cannot be expected to plead much
detail. Doe v. Goss, 2007 WL 106523, at *9. Here, Peter B.
contends that the information relevant to his claims, including
his records has been solely within the defendants’ possession.
(See Am. Compl. ¶ 77; Pl.’s Opp’n at 24.) Nonetheless, he does
allege specifically (1) that he was terminated without any
explanation other than that his termination was for “the
convenience of the government;” (2) that defendant Lyons and
other unnamed defendants had “personal reasons to . . . ensure
[his] relationship with the CIA was terminated;” and (3) that,
despite assurances by CIA representatives that there were no
concerns related to his security clearance, at least one or more
potential employers have been unable to have his clearance
transferred or renewed, causing the employer to not provide or to
withdraw an offer of employment. (Am. Compl. ¶¶ 12, 20-21.) A
-30-
reasonable inference can be drawn in Peter B.’s favor based on
the defendants’ alleged personal bias against Peter B. and the
contractors’ negative reactions to contact with the CIA
concerning Peter B. that Peter B.’s records contain false and
derogatory information that caused the CIA to terminate his
employment, and that eliciting information directly from Peter B.
may have corrected any false information. Thus, Peter B. has met
his minimal burden of pleading sufficient facts suggesting that
discovery will reveal the CIA’s intentional and willful failure
to obtain information from him that was relevant to its decision
to terminate him, and that this failure was the cause of his
termination. Accordingly, Peter B. has stated a claim under 5
U.S.C. § 552a(e)(2).
Nonetheless, the defendants contend that even if Peter B.
has stated a claim under this section, his claim is precluded by
the CSRA and time-barred by the Privacy Act’s statute of
limitations. The CSRA provides the exclusive framework for
review of adverse personnel decisions made against employees, and
the Privacy Act cannot be used to circumvent the CSRA scheme.
See Hubbard v. E.P.A., 809 F.2d 1, 5 (D.C. Cir. 1986), aff’d in
part on other grounds sub nom. Spagnola v. Mathis, 859 F.2d 223(D.C. Cir. 1988); Doe v. Goss, 2007 WL 106523, at *8. Thus,
where review of personnel action is prohibited by CSRA, the
Privacy Act cannot be used as a means to seek such review. Id.-31-
For example, in Kleiman v. Dep’t of Energy, 956 F.2d 335(D.C. Cir. 1992), a former federal employee, subject to the CSRA,
sought correction of his records under the Privacy Act, alleging
that “his personnel records [were] inaccurate because they
reflect[ed] the title, [but] not the work” he performed. Id. at
336. The court held that Kleiman’s claim was precluded by the
CSRA because the alleged “error” he sought corrected was the
agency’s substantive determination of his job within the agency.
See id. at 337-38. It determined that “‘[t]he Privacy Act allows
for amendment of factual or historical errors,’” but is not “‘a
vehicle for amending the judgments of federal officials or . . .
other[s] . . . as those judgments are reflected in records
maintained by federal agencies.’” Id. (quoting Rogers v. U.S.
Dep’t of Labor, 607 F. Supp. 697, 699 (N.D. Cal. 1985)).
Determining whether the records inaccurately reflected the
plaintiff’s job description would have required the court to
replicate the procedures used by the agency to determine the
classification. Plaintiff’s claim, then, although cast as a
Privacy Act claim, was in substance a review of a personnel
action that was within the CSRA’s exclusive jurisdiction. Id. at
338.
Here, Peter B. cannot use his Privacy Act claims to seek
review of the CIA’s alleged adverse personnel decisions against
him. At this early stage, though, the documents at issue are not
-32-
yet in the record. It is premature to determine whether Peter B.
seeks to correct factually inaccurate records, or if Peter B.
disagrees with the defendants’ judgments contained in his
records. If it is the former, correcting facts would not be
precluded by the CSRA. If it is the latter, correction would be
an impermissible attempt to circumvent the CSRA. See id. at 337-
38.
However, even where the CSRA precludes review of the CIA’s
personnel decisions, a court still “retain[s] jurisdiction to
award damages ‘for an adverse personnel action actually caused by
an inaccurate or incomplete record.’” Doe v. Goss, 2007 WL
106523, at *8 (quoting Hubbard, 809 F.2d at 5) (emphasis in
original). Thus, “[a] Privacy Act claim survives CSRA preclusion
in this jurisdiction if a plaintiff shows the harm alleged was
actually caused by the alleged violation.” Id. For this claim,
Peter B. alleges that the defendants “compiled information and
arrived at [false] conclusions” about him while he “was never
provided an opportunity to review or challenge any evaluation or
determination that led to his termination that pertains to his
security clearance.” (Am. Compl. ¶ 76.) He further alleges that
it was “[t]he CIA’s failure to collect information directly from
[him that] resulted in adverse determinations concerning his
rights, benefits, privileges, or opportunities.” (Id. ¶ 77.)
With these allegations, Peter B. has met his minimal burden of
-33-
pleading facts suggesting that the defendants’ violation of
§ 552a(e)(2) actually caused his termination. Accordingly, Peter
B.’s claim cannot be dismissed as precluded by the CSRA at this
time.
In addition, the defendants have failed to establish that
Peter B.’s § 552a(e)(2) is time-barred. The statute of
limitations is an affirmative defense and the defendant bears the
burden of proof. See M.K., 196 F. Supp. 2d at 13 (concluding
that a plaintiff need not anticipate and rebut a statute of
limitations argument in the complaint); Doe v. Dep’t of Justice,
753 F.2d at 1115. Thus, “a motion to dismiss may be granted on
the basis that the action is time-barred only when it appears
from the face of the complaint that the relevant statute of
limitations bars the action.” Doe v. Dep’t of Justice, 753 F.2d
at 1115. Under 5 U.S.C. § 552a(g)(5), a Privacy Act claim must
be brought
within two years from the date on which the cause of
action arises, except that where an agency has
materially and willfully misrepresented any information
required . . . to be disclosed to an individual and the
information so misrepresented is material to the
establishment of the liability of the agency . . . ,
the action may be brought at any time within two years
after discovery by the individual of the
misrepresentation.
5 U.S.C. 552a(g)(5).
In response to the defendants’ argument, Peter B. alleges
that “due to the CIA’s intentional and willful misrepresentation
-34-
of information concerning Peter B.[,] he did not become aware of
the violation until the rescission of the offer of employment
from [government] contractors which occurred as recently as
2006,” which was within two years of the filing of this
complaint. (Pl.’s Opp’n at 20.) Peter B. alleges that the
defendants repeatedly refused to provide a reason for his
termination, denied him access to records underlying the
termination decision, and repeatedly reassured him that there
were no issues with his security clearance. (See, e.g., Am.
Compl. ¶¶ 12-13; 76.) In addition, he contends that afterwards,
within two years before the filing of the complaint, one or more
potential employers contacted the CIA to request information
about him and they received negative information that caused them
to rescind or decide not to offer an opportunity for employment.
(Id. ¶ 21.) Construing these allegations in Peter B.’s favor, at
least two permissible inference can be drawn: 1) the defendants’
conduct toward Peter B. reflected deliberate misrepresentations
as to whether negative information existed in his records against
which Peter B. should have had the opportunity to defend; and
2) the defendants’ conduct may have prevented Peter B. from
discovering his claim until the contractors contacted the CIA,
within the two years prior to his filing the complaint, and
received negative information. Accordingly, Peter B. has alleged
a timely claim and his § 552a(e)(2) claim will not be dismissed.
-35-
2. 5 U.S.C. § 552a(e)(5)
Count VII alleges that the CIA violated Peter B.’s rights
under 5 U.S.C. § 552a(e)(5) by willfully failing to maintain
accurate records relating to him. Section 552a(e)(5) “requires
an agency to ‘maintain all records which are used by the agency
in making any determination about any individual with such
accuracy . . . as is reasonably necessary to assure fairness to
the individual in the determination.’” Deters v. U.S. Parole
Comm’n, 85 F.3d 655, 657 (D.C. Cir. 1996) (quoting 5 U.S.C.
§ 552a(e)(5)). A § 552a(e)(5) claim requires proof that “(1)
[the plaintiff] has been aggrieved by an adverse determination;
(2) the [defendant] failed to maintain [plaintiff’s] records with
the degree of accuracy necessary to assure fairness in the
determination; (3) the [defendant’s] reliance on the inaccurate
records was the proximate cause of the adverse determination; and
(4) the [defendant] acted intentionally or willfully in failing
to maintain accurate records.” Id. Here, as in his § 552a(e)(2)
claim, Peter B. alleges that the presence of false and derogatory
information in his records was caused by the defendants’ willful
failure to maintain his records and that the defendants’ failure
to maintain accurate records caused his termination. (See Pl.’s
Opp’n at 22-23.) For the purposes of Rule 12(b)(6), these
factual allegations state a claim under § 552a(e)(5) upon which
relief could be granted.
-36-
3. 5 U.S.C. § 552a(e)(6)
Under 5 U.S.C. § 552a(e)(6), “prior to disseminating any
record about an individual to any person other than an agency,
. . . [an agency shall] make reasonable efforts to assure that
such records are accurate, complete, timely, and relevant for
agency purposes[.]” Peter B. alleges that the defendants
“disseminated inaccurate information from [his] . . . [r]ecords
to at least one government contractor that had hired [him], which
as a result, led to the rescission of the employment offer due to
alleged security concerns.” (Am. Compl. ¶ 101.) Taking these
factual allegations as true, they state a claim under
§ 552a(e)(6).
CONCLUSION AND ORDER
Because venue is proper in the District of Columbia and the
relevant venue factors do not favor transfer to the Eastern
District of Virginia, the defendants’ motion to transfer venue
will be denied. Because the CSRA provides the exclusive
framework for federal employees to seek review of adverse
personnel actions, Peter B.’s claims in Counts I and IV seeking
APA review of the CIA’s adverse personnel actions concerning him
are barred by the CSRA and will be dismissed. Drawing all
reasonable inferences in Peter B.’s favor, he has pled a
constitutional deprivation of a liberty interest without due
process insofar as he contends that the defendants have
-37-
disseminated negative reasons for his termination to future
employers. Thus, the defendants’ motion to dismiss Peter B.’s
due process claims found in Counts II, III, V, and IX will be
denied. Because Peter B. also has alleged facts that, if proven,
could support claims for damages under the Privacy Act, the
defendants’ motion to dismiss Peter B.’s Privacy Act claims found
in Counts VI through VIII will be denied. Accordingly, it is
hereby
ORDERED that the defendants’ motion to dismiss or, in the
alternative, to transfer venue to the Eastern District of
Virginia be, and hereby is, GRANTED IN PART and DENIED IN PART.
Counts I and IV of the amended complaint are DISMISSED. The
defendants’ motion in all other respects is DENIED.
SIGNED this 1st day of June, 2009.
________/s/_________________
RICHARD W. ROBERTS
United States District Judge