Ciralsky v. Cia

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADAM CIRALSKY ) Civil Action No. 00-1709-JDS
)
Plaintiff, )
) MEMORANDUM OPINION
vs. ) AND ORDER
)
CENTRAL INTELLIGENCE AGENCY, )
et. al., )
)
Defendants. )
__________________________________________)
INTRODUCTION
Plaintiff, Adam Ciralsky, brought this action against Defendants, various individuals and
Plaintiff’s former employer, the Central Intelligence Agency (“CIA”, or the “Agency”), for the
following causes of action: (1) discrimination and retaliation under Title VII of the Civil Rights
Act; (2) breach of employment contract; (3) improper disclosure and improper stewardship of
federal agency records under the Privacy Act and (4) constitutional torts via a Bivens action.
Pending before the Court is Defendants’ Motion to Dismiss, for Judgment on the Pleadings, or
for Summary Judgment as to Claims I – XVI and XIX – XX in response to Plaintiff’s suit
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containing twenty claims against eleven parties.1 Also pending is Plaintiff’s cross-motion for discovery.
BACKGROUND
Plaintiff, a Jewish male, was employed at CIA Headquarters in Langley, Virginia, through
the CIA Legal Honors Program under a two-year contract starting December 2, 1996. His
position as an Attorney Advisor in the Agency’s Office of General Counsel (“OGC”) required a
“top secret” security clearance. Plaintiff had previously obtained the requisite clearance pursuant
to his prior employment with the Department of Defense.
Shortly after he began working at the CIA, the Agency initiated a reinvestigation of
Plaintiff’s security clearance, administering a series of polygraph examinations and interviews to
evaluate his fitness. On August 19, 1997, Plaintiff failed a polygraph examination. In the month
following this polygraph session, various CIA employees interviewed Plaintiff on four separate
occasions. At one of these interviews on September 11, 1997, Plaintiff was given a laptop
computer and told to use it to document and explain issues arising out of the failed polygraph
session of August 19, 1997. Plaintiff returned this laptop to the CIA on September 29, 1997.
The veracity of Plaintiff’s declarations in these interviews was tested through another polygraph
examination on October 3, 1997.
As this reinvestigation unfolded, Plaintiff approached officials in the CIA’s Office of
Equal Employment Opportunity (“OEEO”) to complain that he was being subjected to
1
Defendants’ motion does not address Plaintiff’s Claims XVII and XVIII for withholding of records by the
CIA and FBI in violation of the Privacy Act and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Based
on a prior unopposed motion by Defendants, this Court granted an Order allowing Defendants to move for summary
judgment with respect to Claim XVIII solely on the grounds that disclosure was unnecessary under 5 U.S.C. §
552(b)(1) because the records were not classified. See Order of August 8, 2005 by Judge Robertson. To date, no
such motion has been filed by Defendants.
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discriminatory treatment based on his religion. In August 1997, he expressed that belief to
Defendant Anne Fischer, at that time the Legal Advisor and the Chief of the Complaints Staff at
the OEEO, in a meeting at her office. On October 20, 1997, Plaintiff again raised his concerns
with Defendant Kathleen McGinn, Fischer’s successor at the OEEO.
Following the reinvestigation, the CIA advanced the process of revoking Plaintiff’s
security clearance. On October 20, 1997, the CIA placed Plaintiff on administrative leave and
informed him that an employee review panel (“ERP”) would reconsider his access to classified
information. After Plaintiff submitted a memorandum defending himself, the ERP met on or
about November 21, 1997, and recommended that the CIA revoke Plaintiff’s security clearance
and terminate his employment. After reviewing two additional memoranda submitted by
Plaintiff in response to certain damaging information, the ERP maintained its initial
recommendation when it reconsidered the matter on March 6, 1998. Records of both ERP
meetings describe the panel’s concern to be Plaintiff’s failure to disclose information about and
lack of candor regarding several contacts that were or may have been involved in the Israeli
security establishment. See Pl.’s Mot. for Disc. Attach. 1 and 2 (official summaries of ERP
meetings).
Accordingly, CIA official Alan Wade revoked Plaintiff’s security clearance on July 2,
1998. Four days later, the CIA provided Plaintiff with a copy of the written explanation for this
decision (the “Wade Memorandum”) as well as a copy, containing redactions, of the
investigative file upon which the decision was made. On July 17, 1998, Plaintiff sent a letter to
the CIA seeking further relevant information under the Freedom of Information Act and the
Privacy Act.
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Following his security clearance revocation, Plaintiff exercised further appeals to the
responsible CIA official, Alan Wade, and a separate CIA appeals panel. While these appeals
were pending and Plaintiff remained suspended from duty, the CIA twice extended his
employment contract, but placed him on non-pay status effective March 1, 1999. At the time,
Plaintiff had achieved at least the GS-11, step 1 salary of $37,094 per annum. Wade and the CIA
appeals panel continued deliberating during this period, with both deciding to uphold revocation
of Plaintiff’s security clearance. The CIA finally terminated Plaintiff’s employment on
December 13, 1999.
These events and Plaintiff’s allegations stirred much controversy. Beginning in June
1998, several major media outlets reported on the situation, with Plaintiff and his then-attorney
often being interviewed. At one point, the Wade Memorandum was leaked to a Washington Post
reporter. In addition, the CIA took two noteworthy actions in responding to Plaintiff’s
allegations of anti-Semitism. First, in June 1998 the CIA established a panel of five private
citizens (the “Jacobs Panel”) to probe certain CIA security clearance decisions, including
Plaintiff’s, and examine whether the Agency indeed had engaged in anti-Semitism. Second,
Defendant George Tenet, at the time Director of Central Intelligence, wrote to the President of
the United States officially to express the CIA’s intolerance towards discrimination and inform
him that while the Jacobs Panel found no anti-Semitism, it did identify instances of insensitivity
that would be addressed through sensitivity training.
PROCEDURAL HISTORY
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This case has already run a lengthy procedural gauntlet. Plaintiff filed his initial
Complaint in this matter on July 19, 2000. On February 27, 2001, this Court granted
Defendants’ motion to strike the complaint, with leave to amend, for failure to provide “a short
and plain statement of the claim” under Fed. R. Civ. P. 8(a). The Court again struck down
Plaintiff’s amended complaint on December 28, 2001, for continued failure to comply with Rule
8(a), dismissing it without prejudice. Plaintiff’s request for leave to further amend his complaint
was denied on August 30, 2002. On appeal, the Court of Appeals held that the Court had not
abused its discretion, but remanded the case to the Court to review whether Plaintiff should be
permitted to amend in light of circumstances of which it had been unaware pertaining to statutes
of limitations. Ciralsky v. CIA, 355 F.3d 661 (D.C. Cir. 2004). The Court subsequently allowed
Plaintiff to file his Second Amended Complaint and deemed it filed on June 9, 2004. Defendants
filed their pending motion on August 23, 2004.
DISCUSSION
For purposes of adjudicating these motions, Plaintiff’s claims break down into five
analytic categories, with Defendants offering various defenses:
1. Discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2 et seq. (Claims VII and VIII).
2. Breach of Plaintiff’s employment contract by the CIA (Claim XIX).
3. Improper disclosure of three records in violation of Section (b) of the Privacy Act, 5
U.S.C. § 552a (Claim IX).
4. Various improprieties in the stewardship of federal agency records under Section (e) of
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the Privacy Act (Claims X – XVI).
5. Constitutional torts (under Bivens v. Six Unnamed Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971)), conspiracy to violate civil rights under 42 U.S.C. §§
1985-1986, and unlawful surveillance under the Foreign Intelligence Surveillance Act
(“FISA”), 50 U.S.C. §§ 1801, et seq. (Claims I – VI and XX).
STANDARD OF REVIEW
Defendants present their motion as a motion to dismiss, for judgment on the pleadings, or
in the alternative for summary judgment. As discussed in greater detail below, Defendants’
motion states arguments variously under Federal Rules of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(3) for improper
venue, and 56 for summary judgment.
In response, Plaintiff moves for discovery under Rule 56(f), as the parties have not yet
had discovery. In responding to a motion for summary judgment, if the nonmoving party “cannot
for reasons stated present by affidavit facts essential to justify the party’s opposition, the court
. . . may order . . . discovery to be had . . . .” Fed. R. Civ. P. 56(f). Essentially, 56(f) allows the
Court to delay or deny a motion for summary judgment as premature on the grounds that more
discovery is necessary to rule on that motion. See Londrigan v. FBI, 670 F.2d 1164, 1175 (D.C.
Cir. 1981).
The Court will first consider Defendants’ Rule 12(b)(1), 12(b)(2), and 12(b)(3) motions
before reaching the parties’ Rule 56 motions in the alternative. This is because “a federal court
must establish its jurisdiction to hear a case before adjudicating its merits.” Marra v.
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Papandreou, 216 F.3d 1119, 1122 (D.C. Cir. 2000) (citing Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83 (1998)). The Court exercises its own discretion in choosing the order
in which it addresses the Rule 12(b)(1), 12(b)(2), and 12(b)(3) motions. Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999) (“It is hardly novel for a federal court to choose
among threshold grounds for denying audience to a case on the merits.”).
To the extent the Parties submit matters outside the pleadings in support of their claims,
those claims shall be adjudicated as a Rule 56 motion for summary judgment. Fed.R.Civ.P.
12(b). Summary Judgment is appropriate when the pleadings and evidence before the court
demonstrate “that there is no genuine issue as to any material fact and that the moving party ie
entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56( c). When adjudicating a summary
judgment motion, a court must draw “all justifiable inferences” in the non-moving party’s favor,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and the “factual allegations of the
complaint must be taken as true.” Doe v. United States Dep’t of Justice, 753 F.2d 1092, 1102
(D.C. Cir. 1985). The court may “not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc, 530 U.S. 133, 150 (2000). However, the non-moving
party must establish more than “[t]he mere existence of a scintilla of evidence” in support of it
position. Anderson, 477 U.S. at 252.
I. TITLE VII CLAIMS (CLAIMS VII AND VIII)
In his Title VII claims, Plaintiff alleges that the revocation of his security clearance and
his termination were predicated on anti-Semitic profiling in which the CIA subjected him to
unwarranted harassment, discriminatory treatment, retaliation, and intimidation. According to
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Plaintiff, the CIA suffers an institutional pattern of targeting Jews as a security risk based on a
perception of divided loyalty between the United States of America and the State of Israel.
Plaintiff asserts that the review of his security clearance and hearing of his appeals were a sham
orchestrated by CIA officials who had pre-determined that Plaintiff was to be removed as a
security threat based on his Jewish background. Plaintiff claims that FBI officials were also
involved in this process. In Plaintiff’s account, the polygraph tests were rigged and applicable
disclosure requirements ignored so as to cook up an ostensible “lack of candor” as a pretext for
firing him. Plaintiff alleges that this mistreatment resulted in him not only wrongfully losing his
job at the CIA, but also being prevented from his scheduled rotation to a position on the National
Security Council.
Moreover, Plaintiff alleges that CIA officials frustrated his attempts to pursue
administrative recourse for employment discrimination. Rather than responding to his
complaints to the OEEO and the Attorney General, Plaintiff states that the Agency retaliated by
suspending him and revoking his clearance. Plaintiff also charges that the CIA made veiled
threats to his personal safety and threatened to attempt to have him disbarred if he filed the
instant suit.
Title VII prohibits the federal government from discriminating against its employees on
the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16(a). Additionally,
the federal government may not retaliate against an individual who invokes Title VII rights.
Forman v. Small, 271 F.3d 285, 297 (D.C. Cir. 2001) (Ҥ 2000e-16, in which Congress waived
sovereign immunity for claims under Title VII, includes a claim for retaliation.”). Plaintiff
claims that the reinvestigation, revocation, and termination targeted him as a Jew and that he
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additionally suffered retaliation when he complained about this discrimination.
Defendants attack Plaintiff’s Title VII claims on two grounds. First, Defendants contend
that these claims are non-justiciable because they would force the Court to interfere with the
CIA’s protected discretion in its security clearance decisions. Second, Defendants assert that
Plaintiff’s Title VII claims are defective because he neglected the procedural prerequisite of
reporting his grievance to an EEO Counselor to attempt administrative resolution.
A. Are the Title VII Claims Justiciable?
The controlling law in this Circuit is that “an adverse employment action based on denial
or revocation of a security clearance is not actionable under Title VII.” Ryan v. Reno, 168 F.3d
520, 524 (D.C. Cir. 1999).2 See also Weber v. United States, 209 F.3d 756, 760 (D.C. Cir. 2000)
(“[T]he general presumption of reviewability of agency action does not apply to security
clearance decisions.”). This rule follows from Dep’t of the Navy v. Egan, 484 U.S. 518 (1988),
where the Supreme Court expressed its reluctance to permit substantive judicial review of
Executive Branch decisions on security clearances:
[T]he protection of classified information must be committed to the broad discretion of
the agency responsible, and this must include broad discretion to determine who may
have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to
review the substance of such a judgment and to decide whether the agency should have
been able to make the necessary affirmative prediction with confidence. Id. at 529.
Within the Title VII context, Ryan effectively shields a federal agency from judicial
scrutiny of the security clearance process. In Ryan, this Circuit upheld the dismissal of a Title
2
With this opinion, this Circuit joined the position of other federal circuits. See Becerra
v. Dalton, 94 F.3d 145, 148 (4th Cir. 1996); Perez v. FBI, 71 F.3d 513, 514-15 (5th Cir. 1995);
Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 197 (9th Cir. 1995).
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VII complaint against two federal agencies by dual Irish-American citizens who alleged that their
offers of employment were withdrawn on the basis of national origin and citizenship. The
agencies defended the rescinded offers, explaining that because the applicants had spent much
time living abroad, it was impossible to investigate their backgrounds adequately and therefore
the required security clearances could not be granted. Ryan, 168 F.3d at 521. Confronted with
this explanation, the district court correctly concluded that it lacked jurisdiction to review the
complaint because scrutiny of security clearance procedures inescapably compels a
pronouncement on the validity of security clearance decisions.3 Id. at 523-24.
Defendant argue that Ryan governs the instant case. According to Defendants, if the
Court were to consider the merits of Plaintiff’s Title VII claims, it would have to pass judgment
on the merits of the CIA’s decision to revoke Plaintiff’s security clearance, which Ryan prohibits.
Therefore, Defendants argue that the Court must dismiss these claims as non-justiciable.
While acknowledging the general immunity that Ryan affords, Plaintiff tries to
distinguish his Title VII claims such that Ryan would not apply. He asks the Court to review not
the CIA’s decision to revoke his security clearance, but its decision to fire him, which is one step
removed from the security clearance decision. Accordingly, his complaint concerns not whether
the CIA properly evaluated security considerations in revoking his clearance, but whether the
revocation, and hence his termination, were based on security concerns at all.
3
Further application of Ryan has cemented this principle. Boykin v. England, No. 02-950
2003 U.S. Dist. LEXIS 13350 (D.D.C. July 16, 2003). In Boykin, the district court found that
this immunity from judicial scrutiny of security clearance decisions warranted dismissing the
Title VII complaint of an employee of the Department of the Navy who alleged that revocation of
his security clearance and consequent suspension from his job were based on racial
discrimination. Id.Page 10 of 35
In support of such a distinction, Plaintiff cites to Jones v. Ashcroft, 321 F.Supp.2d 1, 7-9
(D.D.C. 2004). In that case, the Court found it had jurisdiction to review the Title VII complaint
of a prospective employee whom the FBI declined to hire after finding her unsuitable based on a
routine background investigation. The FBI claimed that is finding of unsuitability was protected
as a security matter, but the court found no evidence that security concerns played any role at all.
Id. at 8. Indeed, the FBI had found the candidate unsuitable for employment based not upon a
predictive assessment of whether she would jeopardize national security, but instead on “her
perceived lack of forthrightness.” Id. Ultimately, because Jones did not implicate national
security, that court concluded that Ryan did not block her Title VII claims. Id.Relying on Jones, Plaintiff contends his present case merits similar treatment. He alleges
that the CIA’s alleged basis for firing him was his “lack of candor.” Second Am. Compl. ¶ 29.
Therefore, Plaintiff concludes that his termination was unrelated to security concerns and Ryan
does not bar his Title VII claims.
After consideration this Court concludes that Plaintiff’s argument fails because the CIA’s
decisions on his security clearance and termination cannot be viewed as unrelated events. In
stark contrast to Jones, it can hardly be said that there is “no evidence before this Court to
indicate that the government, at any time prior to the commencement of this lawsuit, considered
national security as a basis for its decision not to [employ] the plaintiff.” Jones, 321 F. Supp. 2d
at 8. First, as Defendants note, Plaintiff himself has pled that his firing was predicated on
security considerations, even if those concerns may have been misguided: “. . . [Plaintiff] had his
security clearance revoked and was fired by the CIA purely on account of the Agency’s suspicion
that as a Jew he posed a special security risk because of a perceived divided loyalty to both the
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United States of America and the State of Israel.” Second Am. Compl. ¶ 17 (emphasis added).
Plaintiff further alleges that “the CIA and FBI assumed that [he] was a disloyal American and
should be treated as [a] security risk.” Id. at ¶ 18. In this vein, it is noteworthy that, in contrast
to Jones, Plaintiff was investigated not as part of a mere background check, but a more stringent
security clearance review.
Second, the sequence of events conflicts with the idea that Plaintiff’s termination and the
revocation of his security clearance were unconnected. The CIA held off from terminating
Plaintiff until it had completed a lengthy formal process of reviewing his security clearance and
hearing his appeals, and then fired him immediately once the revocation was finalized. While the
Court cannot, for purposes of this motion, infer that the CIA identified Plaintiff as a security
threat and correspondingly fired him, the Court does recognize that making the opposite
inference in favor of the Plaintiff forces the Court into an area where it may not tread. In order to
validate Plaintiff’s allegation – that the CIA staged a bogus security clearance review as a pretext
for removing Plaintiff on other grounds – the Court would be forced to consider the merits of the
CIA’s security clearance decision. To determine whether the CIA review was a charade, the
Court would have to examine and declare what grounds the CIA identified and whether they
should have properly provoked security concerns. Such substantive judicial review of a CIA
security clearance decision is precisely what Ryan forbids.4
4
Of course, if Plaintiff were able to present some unequivocal evidence that the CIA’s
review as a mere pretext, the Court would not be required to engage in a substantive review of
the security clearance decision. However, Plaintiff has not produced such evidence, nor does he
appear able to do so. Nor has Plaintiff demonstrated that discovery could yield the necessary
evidence. The Court further notes that, even accepting arguendo Plaintiff’s allegations that CIA
files and communications regarding him exhibit stereotypes and prejudices that disfavor Jews,
that fact taken alone, would be insufficient to prove that the reinvestigation, revocation and
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Third, a recent D.C. Circuit opinion, Bennett v. Chertoff, 425 F.3d 999 (C.A.D.C. 2005),
postdating the Parties’ briefs casts further doubt on Plaintiff’s ability to draw a distinction
between his security clearance revocation and termination. In Bennett, Plaintiff also made the
argument that “the court retains jurisdiction to determine whether her employment was actually
terminated because of national security concerns even if the court cannot review the underlying
merits of that determination.” Id. at 1000. Like Plaintiff, Bennett had also previously received a
security clearance from the Department of Defense, but was denied a security clearance by the
Transportation Security Administration and then fired. Also similar to Plaintiff’s alleged “lack
of candor” basis for his termination, Bennett was fired for general unsuitability rather than
definite, stated security reasons.
Yet the D.C. Court of Appeals found that “Bennett’s alleged dishonesty could render her
both unsuitable for federal employment and ineligible for a security clearance, even if the two
determinations are distinct.” Id. at 2002. Naturally, lack of candor reflects just as poorly on
whether a person cab be trusted with security secrets as well as whether they can be an effective
employee. Therefore, there was “substantial evidence in the record that the agency’s action was
premised on Bennett’s inability to maintain a security clearance,” leading the Court of Appeals to
apply Ryan and affirm the district court’s dismissal of Bennett’s Title VII as non-reviewable. Id.
at 1000.
Comparing Bennett to our instant case, by alleging that the CIA fired him for lack of
candor, Plaintiff acknowledges the existence of a valid CIA justification for their denial of his
termination were based solely on bigotry rather than, at least in part security concerns. Plaintiff
needs something more to show that the review was a total pretext based purely on discriminatory
animus and entirely unrelated to any security concerns.
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security clearance. As in Bennett, this Court cannot judge the merits of that decision.
Thus, even accepting Plaintiff’s allegations entirely, his Title VII claims inextricably
implicate the merits of the CIA’s decision to revoke his security clearance. The Court therefore
cannot adjudicate these claims under Ryan. For the reasons stated above, The Court GRANTS
Defendants’ motion to dismiss the Title VII claims (Claims VII and VIII) for lack of subject
matter jurisdiction, and DENIES Plaintiff’s motion for discovery as to these claims. Further,
because Plaintiff’s Title VII claims are non-justiciable, the Court need not reach the question of
whether Plaintiff exhausted his administrative remedies.
III. CLAIM FOR BREACH OF EMPLOYMENT CONTRACT (CLAIM XIX)
Plaintiff claims that the CIA breached his employment contract by extending his term of
service without paying him. Defendants respond to this claim with two defenses. First,
Defendants argue that this Court lacks subject matter jurisdiction because the Court of Federal
Claims exercises exclusive jurisdiction over breach of contract claims against the federal
government for amounts over $10,000. Second, Defendants contend that the CSRA governs
Plaintiff’s claim exclusively and provides that a CIA employee is not entitled to judicial review
of claims arising out of suspension or termination.
A. Can this Court Exercise Jurisdiction over Plaintiff’s Contract Claim?
This Circuit has held that “[t]he sole remedy for an alleged breach of contract by the
federal government is a claim for money damages, either in the United States Claims Court under
the Tucker Act, 28 U.S.C. § 1491(a)(1) (1982), or, if damages of no more than $10,000 are
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sought, in district court under the Little Tucker Act, 28 U.S.C. § 1346(a)(2) (1982).” Sharp v.
Weinberger, 798 F.2d 1521, 1523 (D.C. Cir. 1986).5 Statutorily, the Court of Federal Claims has
“jurisdiction to render judgment upon any claim against the United States founded . . . upon any
express or implied contract with the United States . . . .” 28 U.S.C. § 1491(a)(1).
Concurrent with the Court of Federal Claims, the district courts have jurisdiction over any
“claim against the United States, not exceeding $10,000 in amount, founded . . . upon . . . any
express or implied contract with the United States . . . .” 28 U.S.C. § 1346(a)(2). It follows that
“[t]hese laws place the exclusive jurisdiction to hear contract disputes with the Court of Federal
Claims, explicitly depriving federal district courts from hearing such cases, when the amount in
controversy . . . exceeds $10,000.” Info. Sys. & Networks Corp. v. United States HHS, 970 F.
Supp. 1, 4 (D.D.C. 1997); see also Waters v. Rumsfeld, 320 F.3d 265, 270 n.6 (D.C. Cir. 2003)
(citing Bowen v. Massachusetts, 487 U.S. 879, 910 n.48 (1988)).
In this case, the Court lacks subject matter jurisdiction over Plaintiff’s breach of contract
claim because Plaintiff’s claim exceeds $10,000. Plaintiff’s prayer for relief asks the Court to
award him “back pay in the amount equal to the salary withheld by the CIA after he was
involuntarily placed in a leave without pay status beginning March 1, 1999 to the present, with
interest thereon.” Second Am. Compl. p. 27, ¶ p. Even excluding interest and limiting the
damages to the period between Plaintiff’s suspension and termination, this claim amounts to
5
The United States Claims Court was renamed the United States Court of Federal Claims
in 1992.
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$29,268.69.6 Therefore, this Court cannot hear this claim. Plaintiff has not substantively
disputed this point.
Therefore, the Defendants’ Motion to Dismiss Plaintiff’s Breach of Employment Contract
claim (Claim XIX) is GRANTED for lack of subject matter jurisdiction. Plaintiff’s Claim XIX
shall be DISMISSED WITHOUT PREJUDICE. Plaintiff’s Motion for discovery on this claim
is DENIED.
IV. IMPROPER DISCLOSURE UNDER 5 U.S.C. § 552A(B)(CLAIM IX)
Plaintiff’s Privacy Act claims allege numerous abuses of his privacy rights in the CIA’s
handling of his records. According to Plaintiff, the CIA committed violations by disclosing
official records pertaining to him to uninvolved government officials, the Jacobs Panel, and the
Washington Post journalist.
Plaintiff claims that the CIA violated his rights under § 552a(b) of the Privacy Act (the
“Act”), 5 U.S.C. § 552a, through three separate disclosures of the contents of his investigative
file to the Jacobs Panel, the Washington Post, and other government officials. The Privacy Act
regulates how a federal agency keeps records on individuals. With allowances for use in the
ordinary course of agency business and other defined purposes, the Act generally prohibits
disclosure to outside entities of “any record which is contained in a system of records . . . .” 5
U.S.C. § 552a(b). A “record” is defined as “any item, collection, or grouping of information
6
This figure is arrived at by pro-rating Plaintiff’s annual salary of $37,094 for the 288-
day period of March 1, 1999 to December 13, 1999. When a plaintiff fails to claim a specific
amount, a court may infer the amount claimed to determine whether that amount satisfies
jurisdictional requirements. Powell v. Castaneda, 390 F. Supp. 2d 1, 7 (D.D.C. 2005).
Page 16 of 35
about an individual that is maintained by an agency . . . .” § 552a(a)(4). A “system of records” is
defined as “a group of any records under the control of any agency from which information is
retrieved” by the individual’s name or personal identifier. § 552a(a)(5). When an agency
violates a requirement of the Privacy Act, an adversely affected individual may bring a civil
action against it. § 552a(g)(1)(C)-(D). Only when “the court determines that the agency acted in
a manner which was intentional or willful” will the United States be liable for damages. §
552a(g)(4).
Defendant CIA offers several defenses to Plaintiff’s claim of improper disclosure,
challenging each of the three alleged disclosures individually. With respect to the Jacobs Panel
disclosure, the CIA contends that Plaintiff’s claim is time-barred and that the disclosure was
statutorily permissible. Regarding the alleged Washington Post disclosure, the Agency maintains
that Plaintiff sustained no cognizable injury. Finally, the CIA argues that Plaintiff’s allegation of
disclosure to unspecified government officials is too vague to state a claim.
A. Jacobs Panel Disclosure
1. Is Plaintiff’s Claim for the Jacobs Panel Disclosure Time-Barred?
Ordinarily, the statute of limitations under the Privacy Act is two years.
5 U.S.C. § 552a(g)(5). That Act provides that:
An action to enforce any liability created under this section may 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 under this section to be disclosed to an individual and the information so
misrepresented is material to establishment of the liability of the agency to the
individual under this section, the action may be brought at any time within two
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yeas after discovery by the individual of the misrepresentation.
This statute of limitations is informed by three important interpretations. First, the cause
of action arises and the statute of limitations begins to run when "the plaintiff knows or should
know of the alleged violation.” Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987). See also
Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir. 1987). Second, the statute of limitations
may be equitably tolled in certain cases, “most commonly when the plaintiff despite all due
diligence . . . is unable to obtain vital information bearing on the existence of his claim." Chung
v. DOJ, 333 F.3d 273,278 (D.C. Cir. 2003). Third, a “Privacy Act claim is not tolled by
continuing violations.” Davis v. United States Dep’t of Justice, 204 F.3d 723, 726 (7th Cir.
2000) (citing Diliberti, 817 F.2d at 1263); see also Doe v. Thompson, 332 F. Supp. 2d 124, 133
(D.D.C. 2004).
Defendant CIA argues that Plaintiff knew or should have known of all the alleged Jacobs
Panel disclosure over two years before he filed his initial complaint on July 19, 2000. Plaintiff’s
then-attorney sent a letter to the CIA dated July 17, 1998, stating that “a senior Administration
official” had made him aware that Plaintiff’s case “was reviewed by a group of individuals other
than those sitting on the ERP” and requesting “any and all documents used in such review.”
Suppl. Decl. of Alvina E. Jones ¶¶ 8-9. Defendant CIA contends this letter shows that Plaintiff
knew or should have known as of July 17, 1998, that the alleged disclosure to the Jacobs Panel
had occurred in violation of § 552a(b) of the Privacy Act.7 Moreover, the CIA argues, even if
7
The Court notes that the letter of July 17, 1998, is not as clear-cut as Defendant CIA
characterizes it. While the cited language of the letter indicates awareness that unauthorized
individuals were possibly examining Plaintiff’s records, it does not expressly demonstrate that
Plaintiff knew that those individuals were members of the Jacobs Panel.
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other alleged disclosures to the Washington Post and other government officials occurred after
that date, they would be irrelevant to the timeliness of Plaintiff’s claim for the Jacobs Panel
disclosure, because continuing violations do not extend the statute of limitations. Diliberti, 817
F.2d at 1263. Thus, according to Defendant CIA, Plaintiff’s claim brought two years and two
days after the letter is time-barred.
The Court rejects Defendant CIA’s argument, even though there is precedent to suggest
that the letter of July 17, 1998 would ordinarily toll the statute of limitations. In Diliberti, the
Seventh Circuit stated that “unsubstantiated hearsay and rumors, which alerted [the plaintiff] . . .
that the defendants might be maintaining a secret file on him [in violation of the Privacy Act],
were sufficient to trigger the statute of limitations. Id., 817 F.2d at 1263.
However, Defendant CIA does not address Plaintiff’s argument that by allegedly denying
his request of July 17, 1998, for pertinent information confirming his suspicion, see Second Am.
Compl. ¶¶ 58-62, the CIA committed a material and willful misrepresentation of information
required to be disclosed to Plaintiff and material to establishing the liability of the Agency to
him. See Pope v. Bond, 641 F. Supp. 489, 500 (D.D.C. 1986) (Federal Aviation Administration
committed willful and material misrepresentation that stayed running of statute of limitations
when it repeatedly denied employee access to files containing evidence of violations). Taking
the factual allegations of the complaint as true, such misrepresentation delays the start of the
limitations period well past July 17, 1998, so that the Plaintiff’s claim based on the Jacobs Panel
Disclosure is not time-barred.
2. Is the Alleged Disclosure to the Jacobs Panel Statutorily Permissible?
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While protecting individuals generally from having their records disclosed, § 552a(b)
contains twelve exceptions allowing agencies to disclose records for specified purposes.
Defendant CIA argues that the alleged disclosure to the Jacobs Panel is authorized under two of
those exceptions: § 552a(b)(1) allowing intra-agency disclosure when needed for the
performance of duties: and § 552a(b)(3) allowing disclosure for a routine, notified use for which
purpose the record was collected.
§ 552a(b)(1) permits disclosure “to those officers and employees of the agency which
maintains the record who have a need for the record in the performance of their duties.”
Defendant CIA contends that it fell within the scope of such authorized intra-agency disclosure to
disclose Plaintiff’s records to the Jacobs Panel, a group of Agency contractors engaged
specifically to conduct an official CIA investigation into allegations of anti-Semitism at the
Agency. Plaintiff retorts that § 552a(b)(1) is no shield because the Jacobs Panel members
cannot properly be termed “officers and employees” of the CIA under the plain language of the
statute.
The weight of precedent regarding whether a contractor is an “employee” under §
552a(b)(1) favors Defendant CIA. See Mount v. United States Postal Serv., 79 F.3d 531, 532,
533 (6th Cir. 1996) (describing “physician under contract with [United States Postal Service]” as
an employee or agent of Postal Service under § 552a(b)(1)); Coakley v. United States Dep’t of
Transp., No. 93-1420, 1994 U.S. Dist. LEXIS 21402 (D.D.C. Apr. 7, 1994) (Department of
Transportation properly disclosed employee’s records to independent contractor serving as EEO
investigator for employee’s EEO complaint).
These cases give clear guidance. In Coakley, the court held that “while the EEO
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investigator was an independent contractor, he must be considered an employee of [the
Department of Transportation] for Privacy Act purposes. Given that the disclosure in question
occurred in connection with an official agency investigation of Plaintiff's discrimination
complaint, the disclosure must be considered an intra-agency communication under the Act.”
Coakley, 1994 U.S. Dist. LEXIS 21402 at *3-4. The analogy to the instant case is obvious; it is
not disputed that the Jacobs Panel members were independent CIA contractors conducting an
official investigation at least partially in response to Plaintiff’s complaints about discrimination.
“Section 552a(b)(1) does not require an agency to list those of its officers eligible to look
at protected records, nor does it demand that an agency official be specifically assigned to
examining records. What must be determined . . . is whether the official examined the record in
connection with the performance of duties assigned to him and whether he had to do so in order
to perform those duties properly.” Bigelow v. Dep’t of Defense, 217 F.3d 875, 877 (D.C. Cir.
2000). Therefore, this Court concludes that the disclosure of Plaintiff’s records to the Jacobs
Panel is a permissible intra-agency disclosure.
Consequently, this Court need not reach Defendant CIA’s alternative argument that the
disclosure was allowed as a “routine use” under § 552a(b)(3). Therefore, as to Plaintiff’s claim
of improper disclosure to the Jacobs Panel, the Court GRANTS Defendant CIA’s summary
judgment motion of this claim, and DENIES Plaintiff’s request for discovery as to this claim.
B. Washington Post Disclosure
“[P]laintiffs seeking monetary relief under the Privacy Act must show actual damages.”
Maydak v. United States, 363 F.3d 512, 521 (D.C. Cir. 2004) (citing Doe v. Chao, 540 U.S. 614,
Page 21 of 35
627 (2004)). In Doe, the Supreme Court left open the precise definition of “actual damages” –
whether it is “restricted to pecuniary loss” or also includes “adequately demonstrated mental
anxiety even without any out-of-pocket loss” – for Courts of Appeals to decide. Id., 540 U.S. at627 n.12. In this Circuit, this definition remains unresolved. See Montemayor v. Fed. Bureau of
Prisons, No. 02-1283, 2005 U.S. Dist. LEXIS 18039, at *14-15 (D.D.C. Aug. 25, 2005)
(discussing various interpretations at the District Court level). However, it is undisputed that if a
plaintiff can show neither pecuniary or emotional damages, then there is no injury upon which a
court can grant monetary relief under the Privacy Act. See, e.g., Dodge v. Trs. of the Nat'l Gallery
of Art, 326 F. Supp. 2d 1, 12 (D.D.C. 2004); Foncello v. United States Dep’t of the Army, 2005
WL 2994011, at *12-13 (D.Conn. Nov. 7, 2005)
In light of these precedents, Defendant CIA correctly contends that the alleged disclosure
to the Washington Post is not a claim upon which the Court can grant relief. Plaintiff has not
even alleged, let alone demonstrated, that he suffered a pecuniary or emotional injury arising out
of this specific alleged disclosure. Plaintiff’s argument that it is for a jury to decide the extent of
damages overlooks the salient point that in defending against a motion for summary judgment he
nonetheless must show the existence of damages. Indeed, Plaintiff’s sole evidence of injury
arising out of this disclosure is a bare assertion that the disclosed Wade Memorandum contained
misleading information that had not previously appeared anywhere in the media. Decl. of Adam
J. Ciralsky (“Ciralsky Decl.”) ¶¶ 15, 22. Nowhere does Plaintiff describe how such disclosure
detrimentally affected him. Instead, his pleading and brief seem to assume that a wrongful
disclosure entitles him to relief without having to plead any actual damages.8 Absent a pleading
8
Confronted with a similar situation in Foncello, that court held that:
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of actual damages from disclosure to the Washington Post, the Court finds that Plaintiff has failed
to state a claim under the Privacy Act upon which relief can be granted.
Therefore, Defendant CIA’s motion for summary judgment as to Plaintiff’s claim of
improper disclosure to the Washington Post is GRANTED and Plaintiff’s motion for discovery as
to this claim is DENIED.
C. Disclosure to “Other Government Officials”
Plaintiff claims that “Defendants disclosed the contents of [his investigative file] to other
government officials who were neither responsible for nor in any way involved with the handling
of [his] case within the CIA.” Second Am. Compl. ¶ 45. Contending that this allegation
involving unspecified government officials does not include the operative facts and give fair
notice of the basis for the claim, Defendant CIA asks the Court to discard it for vagueness.
However, Defendant CIA does not need to know the identities of the alleged recipient
government officials to understand Plaintiff’s charge. Indeed, providing such identities might
stray into the presentation of evidence in the complaint that Defendants and this Court have
emphatically cautioned Plaintiff to avoid.9 As Plaintiff suggests, these identities are evidentiary
The Plaintiff’s statement of “damages” merely summarizes the alleged violations
of law. In effect, to the extent it states a harm, the harm is the violation of the
statute. The requirement of an “adverse effect” requires more. [The plaintiff] does
not allege that he suffered physical or mental harm or injury as a result of these
violations. Thus, [the plaintiff] has not pled any “adverse effect” resulting from
the Army’s alleged violations of [the Privacy Act]. Foncello, 2005 WL 2994011,
at *13 (D.Conn. Nov. 7, 2005).
9
Moreover, Plaintiff’s Complaint has been dismissed twice for failure to provide a “short
and plain statement of the claim” pursuant to Fed.R.Civ.P. 8(a). In directing the Plaintiff to file a
less detailed pleading, the Court observed that “the [initial] complaint is a discursive account
containing a mass of detail more appropriate for trial . . .” Ciralsky v. CIA, Order (D.D.C. Feb.
Page 23 of 35
specifics that Defendant CIA can obtain through discovery. The allegation is not unacceptably
vague.
D. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant CIA’s motion for summary
judgment and DENIES Plaintiff’s motion for discovery with respect to alleged disclosures to the
Jacobs Panel and to the Washington Post within Claim IX. The alleged disclosure of Plaintiff’s
records to the Jacobs Panel was permissible under § 552a(b)(1) of the Privacy Act, while the
allegation of disclosure to the Washington Post fails to state a claim upon which relief can be
granted because Plaintiff alleged no injury. As for the allegation in Claim IX of disclosure to
other government officials, the Court DENIES summary judgment at this time and GRANTS
Plaintiff’s motion for discovery.
V. MISMANAGEMENT OF RECORDS UNDER 5 U.S.C. § 552A(E)(CLAIMS X – XVI)
Plaintiff alleges that over the course of the reinvestigation, revocation, and termination, the
CIA mismanaged records kept on him. According to Plaintiff, the CIA (1) maintained records on
his race and religion; (2) how he exercised his First Amendment rights; (3) kept records outside of
official record-keeping systems in a calculated effort to prevent him from obtaining them; (4) did
not provide him requested records in a timely manner; (5) unnecessarily classified information to
conceal wrongdoing; (6) redacted records in a way that prevented him from knowing how much
was being withheld; (7) created records that misquote him; (8) disseminated these unreasonably
27, 2001).
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flawed records; (9) failed to supervise employees in charge of these records; and (10) lacked
appropriate safeguards to prevent such breakdowns. Plaintiff claims that these CIA actions and
omissions were willful and intentional, constituting several violations of § 552a(e) of the Privacy
Act, which provides agencies with directives for the stewardship of records.
Among others, these directives include that an agency shall: (1) “maintain in its records
only such information about an individual as is relevant and necessary to accomplish a purpose of
the agency,” § 552a(e)(1); (2) “publish in the Federal Register upon establishment or revision a
notice of the existence and character of the system of records,” § 552a(e)(4); (3) “maintain all
records which are used by the agency in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to
the individual in the determination,” § 552a(e)(5); (4) “prior to disseminating any record about an
individual to any person other than an agency . . . make reasonable efforts to assure that such
records are accurate, complete, timely, and relevant for agency purposes,” § 552a(e)(6); (5) with
certain exceptions “maintain no record describing how any individual exercises rights guaranteed
by the First Amendment,” § 552a(e)(7); (6) “establish rules of conduct for” and provide instruction
to “persons involved in the design, development, operation, or maintenance of any system of
records, or in maintaining any record,” § 552a(e)(9); and (7) “establish appropriate administrative,
technical, and physical safeguards to insure the security and confidentiality of records.” §
552a(e)(10). Defendant CIA contests these claims on the grounds that they are all time-barred and
Claims XV and XVI are too conclusory to state a claim.
Page 25 of 35
A. Are the Claims Untimely?
Defendant CIA contends that the statute of limitations for these claims was triggered on
July 6, 1998, when the CIA passed the Wade Memorandum and investigative file to Plaintiff.
According to Defendant CIA, Plaintiff’s allegations are based in whole or in part on the
information contained in those documents, which gave him either knowledge or reason to know of
the alleged violations. Defendant CIA’s evidence for this conclusion are statements made in
Plaintiff’s initial complaint.10
The Court accepts Defendant CIA’s argument only as to Claim XII for violation of §
552a(e)(5), which Plaintiff’s initial complaint explicitly states was based upon the information he
received on July 6, 1998. Init. Compl. ¶¶ 293, 296. Indeed, Plaintiff contends that CIA
maintenance of his records was not accurate, complete, relevant, or timely based on the allegedly
excessive and disingenuous redactions contained in the records provided to him on that date. See
also Second Am. Compl. ¶ 51. Undoubtedly, Plaintiff attained knowledge of the alleged violation
on that day, and any misrepresentation by the CIA would be immaterial to establishing the
Agency’s liability because Plaintiff already possessed the necessary evidence. Therefore, this
claim brought on July 19, 2000, over two years after the statute of limitations was triggered on July
6, 1998, is time-barred.
The Court cannot rule that the other Privacy Act claims, Claims X-XI and XIII-XVI, are
10
Though the initial complaint was stricken, Defendants remain free to rely on its
contents as persuasive evidence. See Smiths Am. Corp. v. Bendix Aviation Corp, 140 F. Supp. 46,
53-54 (D.D.C. 1956) ("[w]hen a pleading is amended or withdrawn, the superseded portion
ceases to be a conclusive judicial admission; but it still remains as a statement once seriously
made by an authorized agent, and as such it is competent evidence of the facts stated." (quoting
Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195, 198 (2d Cir. 1929))).
Page 26 of 35
similarly time-barred. While these other claims in the initial complaint also make overt or indirect
references to various CIA documents in Plaintiff’s possession (some even explicitly provided to
Plaintiff by the CIA), the Court is unable to conclude that all of the referenced documents were
part of the handover of Plaintiff’s investigative file on July 6, 1998. Neither party has submitted to
the Court a precise list of what documents were included in that exchange and what information
those documents contained, or indicated whether Plaintiff might have obtained CIA documents
other than through the transfer on July 6, 1998. The Court is left to draw inferences about whether
these claims are based on the release to Plaintiff of his investigative file. On this motion for
summary judgment, the Court must make those inferences in favor of Plaintiff as the non-moving
party and assume that the documents referred to in Claims X-XI and XIII-XVI were not part of the
exchange on July 6, 1998, and thus that the statute of limitations was not triggered on that date.11
B. Are Plaintiff’s Allegations in Claims XV and XVI Too Conclusory to State a
Claim?
A “court need not accept inferences drawn by plaintiffs if such inferences are unsupported
by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form
of factual allegations.” Kowal v. MCI Commc’ns. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Defendant CIA urges the Court to dismiss
Claims XV and XVI, arguing that rather than making factual allegations, they are legal conclusions
that basically repeat the statutory language of § 552a(e)(9) and § 552a(e)(10) under which the
11
Defendant CIA relies on its arguments regarding the disclosure to the Jacobs Panel to
contend that Claims XV and XVI are time-barred. However, for the same reasons that disclosure
to the Jacobs Panel in Claim IX was not time-barred, these claims are not untimely.
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claims are brought.12
The Court rejects Defendant CIA’s argument. After review and consideration, the Court
concludes that Claims XV and XVI rest upon inferences that plausibly flow from the factual
allegations laid out in the claims themselves as well as the complaint as a whole. Whether those
inferences may turn out to be unfounded is irrelevant at this stage; what matters is only that
Plaintiff has pled those claims sufficiently. Indeed, “a trial court should not grant [a motion]
simply because it is dubious of the plaintiff's ability to prove the allegations of the complaint at
trial.” Haynesworth v. Miller, 820 F.2d 1245, 1254 n.73 (D.C. Cir. 1987). To the contrary, on
such a motion “the plaintiff enjoys the benefit of all inferences that plausibly can be drawn from
well-pleaded allegations of the complaint.” Id. at 1254.
Claims XV and XVI are not “plaintiff’s bare conclusions of law, or sweeping and
12
Claim XV reads:
The CIA failed to maintain certain records concerning Ciralsky covered by
the Privacy Act within specific record systems, failed to maintain accurate or
complete accountings of certain disclosures with respect to each system of records
under its control, and improperly disclosed protected information concerning
Ciralsky. The CIA has failed to instruct its officers and employees about the proper
operation and maintenance of the systems of records containing Ciralsky’s records,
the rules and requirements of the Privacy Act, and the penalties for noncompliance
in violation of 5 U.S.C. § 552a(e)(9). Second Am. Compl. ¶ 56.
Claim XVI reads:
The CIA’s improperly disclosing Ciralsky’s records as described in this complaint
constituted a violation of Section (e)(10) of the Privacy Act. Such improper
disclosure is evidence that the CIA has negligently or intentionally failed to abide by
that section’s statutory requirement that demands requires [sic] agencies to create and
maintain ‘appropriate administrative, technical and physical safeguards to insure the
security and confidentiality of records and to protect against any anticipated threats
or hazards to their security or integrity which could result in substantial harm,
embarrassment, inconvenience, or unfairness to any individual on whom information
is maintained.’ Second Am. Compl. ¶ 57.
Page 28 of 35
unwarranted averments of fact . . .” Id. If the CIA’s handling of Plaintiff’s records involved
various breakdowns and misconduct as alleged in the first sentence of Claims XV and throughout
the Complaint, then it can be plausibly inferred that the CIA did not properly establish rules of
conduct for and provide instruction to the responsible Agency employees as required by §
552a(e)(9), or else these failures would not have occurred. See Second Am. Compl. ¶ 56 and
throughout Complaint. Likewise, given the same alleged breakdown and misconduct, it is
conceivable that the CIA did not establish adequate safeguards to protect the records, as such
safeguards might be expected to prevent the alleged improper disclosures. See Second Am.
Compl. ¶ 57 and throughout Complaint. Therefore, Claims XV and XVI are not too conclusory to
state a claim.
C. Conclusion
For the reasons stated above, Defendant CIA’s motion for summary judgment is
GRANTED and Plaintiff’s motion for discovery is DENIED on Claim XII. As for the other
remaining claims under § 552a(e) of the Privacy Act (Claims X – XI, XIII – XVI), Defendant
CIA’s motion for summary judgment is DENIED and Plaintiff’s motion for discovery is
GRANTED.
VI. CIVIL CLAIMS UNDER BIVENS, 42 U.S.C. §§ 1985-1986, AND FISA (CLAIMS I –
VI AND XX)
Finally, Plaintiff makes several allegations pursuant to his claims under Bivens, 42 U.S.C.
§§ 1985-1986, and FISA. In his Bivens claims, Plaintiff contends that through the course of the
reinvestigation, revocation, and termination, several CIA and FBI officials violated his rights under
Page 29 of 35
the First, Fourth, and Fifth Amendments. Additionally, Plaintiff charges in his §§ 1985-1986
claim that these officials conspired to prevent him from performing his official duties and deprive
him of his civil rights. Plaintiff’s FISA claim alleges that the CIA used the laptop given to him at
the investigatory interview on September 11, 1997, to conduct illegal surveillance on him during
the eighteen days until Plaintiff returned it to the Agency. While the CIA purported to be assisting
him by providing the laptop, Plaintiff claims it was outfitted with electronic surveillance devices.
Defendants offer several arguments against these claims. First, according to Defendants the
proper venue for these claims is the Eastern District of Virginia. Second, Defendants argue that the
Court does not have personal jurisdiction over these eight defendants. Third, Defendants contend
that under the proper jurisdiction’s statute of limitations these claims are untimely. Finally,
Defendants state that Bivens and §§ 1985-1986 do not allow Plaintiff to challenge the appellate
phase of administrative review of his security clearance.
A. Is Venue Improper?
When federal jurisdiction in a civil action is premised on a federal question and no special
statutory venue provision exists – as with Plaintiff’s Bivens, §§ 1985-1986, and FISA claims – 28
U.S.C. § 1391(b) governs venue. See Davis v. Am. Soc'y of Civil Eng’rs, 290 F. Supp. 2d 116, 120
(D.D.C. 2003). For such an action, venue is proper in
(1) a judicial district where any defendant resides, if all defendants reside in the same
State, (2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the subject
of the action is situated, or (3) a judicial district in which any defendant may be found,
if there is no district in which the action may otherwise be brought. 28 U.S.C. §
1391(b).
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In this case, individual Defendants reside in different states, so § 1391(b)(1) is inapplicable.13
Arguing that § 1391(b)(2) is the applicable venue provision for this action, Defendants
contend that by its terms the appropriate venue for Plaintiff’s claims under Bivens, §§ 1985-1986,
and FISA is the Eastern District of Virginia, where the CIA is headquartered and the relevant
proceedings occurred. Plaintiff maintains that the District of Columbia is an appropriate venue for
this action under § 1391(b)(2) because CIA and FBI officials conducted certain activities and
meetings there related to investigating Plaintiff and because the National Security Council position
that Plaintiff lost would have been in the District of Columbia. In the alternative, Plaintiff argues
that the District of Columbia is appropriate as a fallback venue under § 1391(b)(3) because his
action cannot be brought in any district.
The Court finds that appropriate venue for this action under § 1391(b)(2) is the Eastern
District of Virginia. The overwhelming bulk of events and omissions giving rise to Plaintiff’s
claims occurred at CIA Headquarters in Langley, Virginia. It was the workplace for Plaintiff and
seven of the eight defendants implicated in the Bivens, §§ 1985-1986, and FISA claims. It was
there that the reinvestigation of Plaintiff’s security clearance, alleged scrutiny of his Jewish
background, receipt of the laptop by Plaintiff, deliberations on his employment status, review of his
administrative appeals, revocation of his security clearance, and decision to terminate him
occurred.
By comparison, the events and omissions Plaintiff alleges in the District of Columbia are
more tangentially than substantially, related to the claims in this case. According to Plaintiff, CIA
13
The Court notes that even if these claims were severed into separate actions against
individual Defendants, venue in the District of Columbia would still be improper under §
1391(b)(1) because none of the Defendants reside in the District of Columbia.
Page 31 of 35
officials met with White House officials, National Security Council officials, and congressmen in
the District of Columbia specifically to discuss Plaintiff’s situation. Plaintiff also claims that his
allegedly lost position with the National Security Council would have been in the District of
Columbia.14 Finally, Plaintiff asserts that a CIA official briefed individual members of the Jacobs
Panel in the District of Columbia.
The Court concludes that these events and omissions represent only peripheral meetings
and consequences, and are not the gravamen of Plaintiff’s Bivens, §§ 1985-1986, and FISA claims.
Even assuming their factual accuracy, they are a dubiously tenuous reed upon which to rest venue.
It is instructive to compare the facts of this case with a similar case from this jurisdiction.
In Davis, 290 F. Supp. 2d at 119, the plaintiff claimed racial discrimination under 42 U.S.C. §
1981 and § 1985(3) pursuant to being terminated from his job at his employer’s headquarters in
Virginia. The sole consequence that he was thereby denied severance benefits in the District of
Columbia was inadequate to establish venue there. The court noted that “the record shows that
most if not all of the significant events relating to the action occurred . . . outside this district” and
that “only one of the many potential events giving rise to this action . . . occurred in the District of
Columbia.” Davis, 290 F. Supp. 2d at 123. The court concluded that venue in the District of
Columbia was improper because “the specter of the plaintiff’s federal claims” haunted the
defendant’s headquarters in the Eastern District of Virginia “more than any other locale.” Id.Our instant case parallels Davis. Similarly, like Davis, Plaintiff brings claims relating to
14
Were this a Title VII claim, this allegation would create venue by statutory provision. A
plaintiff may bring a Title VII action “in the judicial district in which the aggrieved person would
have worked but for the alleged unlawful employment practice . . . .” 42 U.S.C. § 2000e-5(f)(3).
See also James, 227 F. Supp. 2d at 23-24. However, Plaintiff’s Bivens, §§ 1985-1986, and FISA
causes of action contain no such provisions enabling venue on this basis.
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violations of his constitutional and civil rights by his employer headquartered in Virginia. He
posits a nexus for venue in the District of Columbia based on the consequent loss of economic
benefits there in the form of his anticipated position with the National Security Council, as well as
other peripheral activities. Yet undeniably, the weight of Plaintiff’s claims hangs most heavily in
the Eastern District of Virginia at CIA headquarters where he was employed. That is where most
of the individual Defendants worked, most of the events occurred, and most of the impact of a
judgment in this case would be felt. Thus, as in Davis, venue for Plaintiff’s Bivens, §§ 1985-1986,
and FISA claims is likewise improper in the District of Columbia.
Further, the Court concludes that Plaintiff cannot, in the alternative, fall back on §
1391(b)(3) to establish venue in the District of Columbia. “[S]ection 1391(b)(3) is only applicable
if there is no district in which venue is proper under one of the venue statute's first two provisions.”
Smith v. US Investigations Servs., No. 04-0711, 2004 U.S. Dist. LEXIS 23504, at *12 (D.D.C.
Nov. 18, 2004). As discussed, this action can be brought in the Eastern District of Virginia under §
1391(b)(2). Therefore, § 1391(b)(3) is inapplicable. The District of Columbia is not a proper
venue.
Given that the District of Columbia is not the proper venue, the Court elects to sever
Plaintiff’s claims under Bivens, §§ 1985-1986 and FISA (Claims I-VI and XX) from the rest of the
action and transfer them to the Eastern District of Virginia
CONCLUSION
Plaintiff’s Title VII claims (Claims VII and VIII) are not justiciable, and are therefore
DISMISSED for lack of subject matter jurisdiction. This Court also lacks subject matter
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jurisdiction under the CSRA to review Plaintiff’s claim for breach of contract (Claim XIX), and
therefore shall DISMISS Claim XIX. Regarding the three improper disclosures Plaintiff alleges in
Claim IX, the Court shall GRANT summary judgment in favor of Defendant CIA on claims for
disclosure to the Jacobs Panel and the Washington Post, which fail to state a claim upon which
relief can be granted. The Court shall DENY Defendant CIA’s motion for summary judgment as
to Plaintiff’s claim for disclosure to other government officials and GRANT Plaintiff’s motion for
discovery as to that claim. On Plaintiff’s other Privacy Act claims, the Court holds that Claim XII
is time-barred and thus GRANTS Defendant CIA’s motion for summary judgment. With respect
to Plaintiff’s remaining Privacy Act claims (Claims X – XI and XIII – XVI), the Court shall DENY
Defendant CIA’s motion for summary judgment and GRANTS Plaintiff’s motion for discovery.
Finally, on Claims I – VI and XX under Bivens, §§ 1985-1986, and FISA, the Court finds venue to
be improper in the District and therefore severs these claims and transfers them to the Eastern
District of Virginia.
For the foregoing reasons, IT IS HEREBY ORDERED that,
1. Defendant’s Motion to Dismiss or for Summary Judgment is GRANTED IN PART and
DENIED IN PART;
2. Plaintiff’s Motion for Discovery is GRANTED IN PART and DENIED IN PART;
3. Claims I – VI and XX under Bivens, §§ 1985-1986, and FISA, shall be severed from the
present action and transferred to the Eastern District of Virginia.
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The Clerk of Court shall notify the Parties of the making of this Order.
DATED this 26th day of February, 2010.
/s/
JACK D. SHANSTROM
SENIOR U.S. DISTRICT JUDGE
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