Peter B. v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
________________________________________________
PETER B.,
Plaintiff,
v. 1:06-CV-1652
(FJS)
CENTRAL INTELLIGENCE AGENCY,
MARGARET PEGGY LYONS,1 DOES 1-10
and JOHN O. BRENNAN, Director, Central
Intelligence Agency,
Defendants.
________________________________________________
APPEARANCES OF COUNSEL
LAW OFFICES OF MARK S. ZAID, P.C. MARK S. ZAID, ESQ.
1250 Connecticut Avenue, NW BRADLEY P. MOSS, ESQ.
Suite 200
Washington, D.C. 20036
Attorneys for Plaintiff
UNITED STATES DEPARTMENT MARCIA KAY SOWLES, ESQ.
OF JUSTICE
20 Massachusetts Avenue, NW
Room 7108
Washington, D.C. 20530
Attorneys for Defendants
SCULLIN, Senior Judge
1
In its April 27, 2015 Order, the Court denied Plaintiff's motion to serve Defendant
Lyons beyond the 120-day time frame set forth in Rule 4(m) of the Federal Rules of Civil
Procedure and dismissed Plaintiff's claims against Defendant Lyons without prejudice. See Dkt.
No. 53.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court are Defendant Central Intelligence Agency's ("CIA") motion for
summary judgment2 and Plaintiff's response thereto, which includes a motion for additional
discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.
II. BACKGROUND
A. Factual background3
Defendant CIA hired Plaintiff as a covert contract employee on January 22, 1992, for a two-
year term. See Declaration of Angela Pierson ("Pierson Decl.") at ¶ 4. The contract provided that
Defendant CIA could extend it for additional periods. See id. at Attachment 1. Defendant CIA
extended the contract for a series of consecutive periods through October 4, 2002. See id. at ¶ 5.
On that date, the contract expired and was not extended. See id. Defendant CIA informed Plaintiff
that the reason that his employment had ended was due to the expiration of his contract. See id. at
¶ 8. Plaintiff signed a document acknowledging that he understood that his contract had expired.
See id. at Attachment 2.
As a covert contract employee, Plaintiff's affiliation with Defendant CIA was and remains
classified. See id. at ¶ 10. Therefore, Plaintiff is not permitted to reveal his relationship to the CIA
2
Although there are nominally two remaining Defendants in this action - Defendant
Central Intelligence Agency and Defendant John O. Brennan, as Director of the CIA - the Court
will refer to these two Defendants collectively as Defendant CIA.
3
The Court notes that Plaintiff did not file a response to Defendant CIA's Statement of
Material Facts Not in Dispute. In lieu thereof, Plaintiff filed a Rule 56(f) Affidavit stating that he
required more discovery before he could respond fully.
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or that he had a national security clearance with the CIA to a potential employer. See id. If he were
to do so, he would violate the terms of his secrecy agreement. See id.
It is Defendant CIA's policy to respond to requests for employment verification only if those
requests are in writing. See id. Any inquiry directed to Defendant CIA by any government
contractor regarding Plaintiff would have resulted in a denial that Plaintiff had any affiliation with
Defendant CIA. See id. If such an inquiry had occurred in Plaintiff's case, it would have been
considered a potential security violation. See id. Such an inquiry would have been recorded and,
most likely, investigated. See id. There is no record of any such inquiry. See id.
If it were necessary for some reason for Plaintiff to reveal his relationship to Defendant CIA,
he could have prearranged to have Defendant CIA confirm his affiliation to a cleared outside
contact. See id. at ¶ 13. However, if Plaintiff had made such a request, there would have been a
record of it; and Defendant CIA has no record of any such request or approval for such a disclosure.
See id. Even if Defendant CIA had approved such an arrangement with a cleared contact, the only
information that Defendant CIA would have shared would have been salary information, service
computation date and other general employment data. See id. at ¶ 14. Defendant CIA's policy
prohibits sharing any other information that might be contained in an employee's personnel file. See
id. Likewise, Defendant CIA does not provide prospective employers access to an employee's
personnel records. See id.
Defendant CIA asserts that an outside entity providing cover for Plaintiff may receive
inquiries for employment verification, see id. at 15; but Defendant CIA does not maintain records of
such inquiries because they go to the outside entities, see id. However, if a prospective employer
had contacted the cover provider, the cover provider would not have had access to a covert contract
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CIA employee's personnel file and would not have had access to any alleged negative information
that may have been contained therein. See id.
At the time that his contract expired, Plaintiff held a Top Secret/Sensitive Compartment
Information ("SCI") security clearance. See Declaration of William Milbourn, Jr. ("Milbourn
Decl."), at ¶ 7. That security clearance lapsed as a matter of law when Plaintiff's employment with
Defendant CIA ended. See id. (citing Exec. Order No. 12968, § 2.1(b)(4) ("access to classified
information shall be terminated when an employee no longer has need for access")). "Access
eligibility" for a former employee can be reapproved or "crossed-over" for up to a period of two
years if certain conditions are met. See Exec. Order No. 12968, § 3.3(d). A former employee would
be eligible for such "cross-over" if he were
determined to be eligible based on a favorable adjudication of an
investigation completed within the prior 5 years and . . . [had] been
retired or otherwise separated from the United States Government
employment for not more than two years; provided there is no
indication that the individual may no longer satisfy the standards of
this order, the individual certifies in writing that there has been no
change in the relevant information provided by the individual for the
last background investigation, and an appropriate record check reveals
no unfavorable information.
See id.
Plaintiff's last investigation was completed in November 1998. See Milbourn Decl. at ¶ 10. Thus,
under the Executive Order, his security clearance could only have been reapproved and "crossed-
over" to another agency until November 2003. See id. After that date, Plaintiff, like any other
former employee whose "reapproval" period had expired, would have been required to apply for a
new security clearance with his employer as his sponsor. See id.
Although Plaintiff was not authorized to reveal his relationship with Defendant CIA to a
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government contractor, there are procedures available by which a covert employee can request and
receive authorization from the Defendant CIA component that sponsored his security clearance to
arrange to have his security clearance crossed-over to another agency. See id. at ¶ 15; Pierson Decl.
at ¶ 13. Defendant CIA has no record of Plaintiff making such a request or approval of such a
request under this procedure. See Pierson Decl. at ¶ 13.
Defendant CIA's Clearance Division maintains records regarding any inquiries that
employers make regarding an individual's security clearance. See Milbourn Decl. at ¶ 16. The
Clearance Division has no record of any inquiry by a government contractor or other prospective
employer regarding the status of Plaintiff's security clearance. See id. at ¶ 17. Had a prospective
employer contacted the Clearance Division without the prior authorization described above, it could
not have verified that Plaintiff had been an employee or even held a security clearance with
Defendant CIA because of the classified nature of his employment. See id. at ¶ 18. Instead, the
Clearance Division would have affirmatively denied that Plaintiff had any association with
Defendant CIA. See id. Moreover, because such an inquiry would have suggested a potential
breach of security, Defendant CIA would have, most likely, conducted an investigation into it. See
id. Certainly, at a minimum, such an unusual event would have been noted in Plaintiff's security
file. See id. However, there is no such record of any contact by a government contractor in
Plaintiff's security file. See id. at ¶ 17.
Finally, even if Plaintiff's relationship with Defendant CIA had not been classified and a
government contractor had contacted the Clearance Division, Defendant CIA would have only
provided limited information as to whether the individual was eligible for a "cross-over" or if a new
security clearance application needed to be initiated. See id. at ¶¶ 11-12. If a new application had
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been submitted, Defendant CIA would have revealed whether the application had been approved or
denied. See id. at ¶ 12. Defendant CIA would not have provided the government contractor with
the reason for any denial of a security clearance. See id. Nor would it have provided the
government contractor with access to an individual's security files. See id. at ¶ 11. In fact,
Defendant CIA's employees who respond to inquiries have access only to general information
regarding the status of an individual's security clearance and a history of when clearances have been
requested and investigations completed with respect to an individual. See id. at ¶ 12. Thus, even if
Plaintiff's security file contained adverse information regarding security problems he may have had,
individuals providing verification of clearances could not have revealed any such information to a
potential employee. See id.
B. Procedural background
Plaintiff filed this action against the CIA, the Director of the CIA and several others 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 to the United States Constitution. Specifically,
Plaintiff alleged nine violations of his rights stemming from Defendant CIA's decision to terminate
his employment.
Defendant moved to dismiss the complaint for lack of subject matter jurisdiction and failure
to state a claim or, in the alternative, to transfer venue to the Eastern District of New York. In a
Memorandum Opinion and Order, the Court (Roberts, J.) denied the motion to transfer venue and
granted in part and denied in part Defendant's motion to dismiss. See Peter B. v. CIA, 620 F. Supp.
2d 58 (D.D.C. 2009). The Court granted Defendant's motion with respect to Counts I and IV, which
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raised claims challenging Plaintiff's termination and other personnel actions under the
Administrative Procedure Act, 5 U.S.C. § 706, finding that the Civil Service Reform Act precluded
those claims. The Court denied the motion with respect to Plaintiff's claims that Defendant CIA
deprived him of a liberty interest without due process (Counts II, III, V, and IX) and claims alleging
violations of the Privacy Act, § 552a (Counts VI-VIII).
Defendant then filed the pending motion for summary judgment with regard to the remaining
claims. See Dkt. No. 35. Plaintiff filed papers in opposition to that motion and sought further
discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. See Dkt. No. 39.
Defendant filed its papers in further support of its motion and in opposition to Plaintiff's request for
further discovery. See Dkt. No. 44.
At a hearing at which the Court heard oral argument in support of and in opposition to
Defendant's motion for summary judgment, the Court discussed several issues with counsel. At that
time, Plaintiff's counsel acknowledged that, although there were nine causes of action in the
complaint, there were actually only two causes of action that were not time-barred: (1) a cause of
action based on Plaintiff's allegations that Defendant CIA, through its employees, had violated his
liberty interest under the Fifth Amendment to the United States Constitution stemming from the
termination of his employment with Defendant CIA in 2002, and (2) a cause of action based on
Plaintiff's allegation that Defendant CIA, through its employees, violated his rights under the
Privacy Act with respect to the termination of his employment with Abraxis Corporation in 2006,
see 5 U.S.C. § 552a(e)(6).
With respect to Plaintiff's motion for additional discovery pursuant to Rule 56(d) of the
Federal Rules of Civil Procedure, the Court asked Plaintiff's counsel to identify the material factual
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disputes that Plaintiff alleged existed between him and Defendant based on the declarations that
Defendant had submitted in its motion for summary judgment. The Court provided Plaintiff with an
opportunity to file papers to support his contention that such material issues of fact existed to
warrant the discovery he sought.
The Court has now reviewed the parties' submissions in support of and in opposition to
Plaintiff's motion for additional discovery, as well as the parties' submissions and oral arguments in
support of and in opposition to Defendant's motion for summary judgment, and the following
constitutes the Court's written disposition of both motions.
III. DISCUSSION
A. Summary judgment standard
Summary judgment is appropriate when "'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of
law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quotation omitted). In assessing
a motion for summary judgment, the court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party's favor. See Hildebrandt v.
Vilsack, No. 04-1423, 2015 WL 2061678, *2 (D.D.C. May 5, 2015) (citations omitted). "A
disputed fact is 'material' if it 'might affect the outcome of the suit under the governing law.'" Id.
(quotation omitted). "A dispute over a material fact is 'genuine' if it could lead a reasonable jury to
return a verdict in favor of the nonmoving party." Id. (citations omitted). "'[T]he moving party is
entitled to judgment as a matter of law if the nonmoving party "fails to make a showing sufficient to
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establish the existence of an element essential to that party's case, and on which that party will bear
the burden of proof at trial."'" Id. (quotation omitted). Therefore, when considering a motion for
summary judgment, the court's job is "'not [to] determine the truth of the matter, but instead [to]
decide[] only whether there is a genuine issue for trial.'" Id. (quotation and other citations omitted).
B. Plaintiff's Fifth Amendment liberty interest claim
In Bd. of Regents v. Roth, 408 U.S. 564 (1972), the Supreme Court established two tests to
determine whether a plaintiff had established a protected liberty interest. Under the first test,
referred to as the "reputation-plus" test, a plaintiff can show a protected liberty interest if he
establishes that "the government changed his status and accompanied such a change with
defamation that 'seriously damage[d] his standings and associations in the community.'" Peter B. v.
CIA, 620 F. Supp. 2d 58, 70 (D.D.C. 2009) (quoting M.K. v. Tenet, 196 F. Supp. 2d 8, 15 (D.D.C.
2001)) (citing O'Donnell v. Barry, 148 F.3d 1126, 1139-40 (D.C. Cir. 1998)). Defamation alone
does not give rise to a due process claim. See id. (citations omitted). "'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." Id. at 71 (quoting
Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir. 1983)). "'Although the conceptual basis for
reputation-plus claims is not fully clear, it presumably rests on the fact that official criticism will
carry much more weight if the person criticized is at the same time demoted or fired.'" Id. (quoting
O'Donnell, 148 F.3d at 1140) (citing 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
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discharge")).
Under the second test, referred to as the "stigma or disability" test, "a protectable liberty
interested 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.'" Id. (quoting M.K.,
196 F. Supp. 2d at 15) (citing O'Donnell, 148 F.3d at 1140). If the plaintiff proves that "the
government has infringed upon [his] 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."
Id. (citing 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)).
As this Court previously held when it considered Defendant's motion to dismiss, "[t]o the
extent [Plaintiff] 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." Peter B., 620 F. Supp. 2d at 71. The Court further
explained that, "[a]bsent a showing that the individual defendants' statements were offered as
reasons for the decision to terminate [Plaintiff], the individual defendants' conduct was only
ordinary defamation that does not implicate a liberty interest." Id. at 72. However, the Court found
that it was plausible that Plaintiff was alleging that Defendant "publicly adopted the individual
defendants' defamatory statements against [Plaintiff] as the reasons for [his] termination" and such
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an allegation would state a claim under the reputation-plus test. Id. Likewise, the Court held that, if
Plaintiff'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." Id. The Court
concluded that, "[w]ithout evidence of the contents of [Plaintiff's] personnel files, the record does
not reflect whether the alleged 'false and defamatory information concerning [Plaintiff]' 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
[Plaintiff's] employment status, which does not confer any due process right." Id. Moreover, the
Court held that, based on Plaintiff's allegations, it was impossible to tell whether any alleged
derogatory statements were in fact statements that injure one's reputation under the law. See id. In
this regard, the Court noted that "a statement that simply indicates a person's ineligibility for a
security clearance, without more, would not be an injury to reputation." Id. (citation omitted). The
Court concluded that, based on Plaintiff's allegations, it was "a reasonable inference that the alleged
statements disseminated throughout the CIA to cause his termination might have been sufficiently
defamatory to injure [Plaintiff'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." Id. at 72-73.
Defendant argues that there is no evidence to support Plaintiff's reputation-plus claim under
either of his theories, i.e., that his former supervisor Margaret Lyons and others made defamatory
statements about him and that Defendant publicly adopted those statements as the reasons for
Plaintiff's termination or that there is negative information injuring his reputation in his file that is
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publicly available to future employers and that the negative information in his file consists of the
reasons for his termination. First, Plaintiff was a contract employee and the term of his contract
simply expired. See Pierson Decl. at ¶ 5. In fact, at the time of his separation from Defendant,
Plaintiff signed a statement acknowledging that he understood that his contract had expired. See id.
at Attachment 2. Furthermore, Defendant has not made any charge or public statement against
Plaintiff that could cause harm to his reputation. See Dkt. No. 35 at 11.
Alternatively, Defendant argues that, even if it had given defamatory reasons for not
renewing Plaintiff's contract, Plaintiff still could not prevail on his reputation-plus claim unless he
could demonstrate that those reasons were made public. See Peter B., 620 F. Supp. 2d at 72.
Defendant contends that Plaintiff cannot demonstrate that it (1) made any public stigmatizing
statements regarding the failure to renew his contract or (2) made files containing any alleged
stigmatizing reasons for the failure to renew his contract available to prospective employers. See
Dkt. No. 35 at 11. In his complaint, Plaintiff does not cite any direct evidence that Defendant made
any such public disclosures; instead, he infers that defamatory reasons exist and were made public
based on his assertion that he had received job offers from unspecified government contractors and
those offers were later revoked. See First Amendment Complaint at ¶¶ 20, 60. Plaintiff claims that
those alleged offers were revoked because Defendant had disseminated defamatory accusations
regarding his "termination" to the government contractors or made files containing defamatory
reasons for his termination available to prospective employers. See id.
Defendant contends that the facts do not support Plaintiff's allegations. First, there should
not have been any reason for a prospective employer to have contacted Defendant because of the
classified nature of Plaintiff's employment with Defendant. See Dkt. No. 35 at 12. Since Plaintiff's
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relationship with Defendant remains classified, it would have violated his secrecy agreement for
Plaintiff to have revealed his relationship with Defendant. See Pierson Decl. at ¶ 10. If Plaintiff's
relationship with Defendant were revealed and a prospective employer contacted Defendant
regarding his employment, Defendant would not have been able to confirm his employment, much
less reveal any details regarding the reasons why his employment ended. See id. at ¶ 12.
Second, Defendant contends that there is no record of any inquiry by a prospective employer
regarding Plaintiff to Defendant. See id. It is Defendant's policy that requests for employment
verification must be in writing. See id. Moreover, in Plaintiff's case, had an employer contacted
Defendant directly, it would have indicated a potential breach of security. See id. Therefore,
Defendant would have noted it and, more than likely, conducted an investigation into it. See id.
Thus, Defendant asserts that Plaintiff's claim that it made public statements regarding the reasons
for not renewing his contract has no factual basis. See Dkt. No. 35 at 12-13.
Third, Defendant argues that, even if a prospective employer had made an inquiry by a
cleared contact regarding Plaintiff, Defendant would not have provided any details regarding the
reasons why his employment ended. See Pierson Decl. at ¶ 14. The only information that
Defendant would have shared with a cleared contact would have been salary information, service
computation date, and other general information data. See id. Defendant has a strict policy of not
sharing other information that might be in an individual's personnel file. See id.; see also Dkt. No.
35 at 13 (citing Exhibit 2 to Dove Decl (Dkt. No. 13-3) ("the reasons for termination or resignation
of agency employment shall not be disseminated outside the agency to any private or Federal
government body without the consent of the employee"). Nor does Defendant provide prospective
employers access to an employee's personnel files. See Pierson Decl. at ¶ 14.
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For all these reasons, Defendant argues that Plaintiff cannot establish the requirements for
the "reputation-plus" test because he cannot establish that Defendant made public defamatory
statements regarding Plaintiff in connection with the expiration of his contract. See Dkt. No. 35 at
13.
Furthermore, Defendant contends that Plaintiff cannot establish a deprivation of a liberty
interest under the "stigma or disability" test. See Dkt. No. 25 at 13. Plaintiff bases this claim on
allegations that Defendant "intentionally interfered with [his] efforts to obtain employment in his
chosen field with government contractors, particularly by impeding the transfer of his security
clearance or by implying that derogatory information existed that would preclude the granting of a
security clearance." See id. (citing 1st Am. Compl., ¶ 59).
A review of the evidence on which Plaintiff relies to support his claim that an issue of
material fact exists with regard to his liberty interest due process claim under the "reputation-plus"
test shows that none of this evidence supports his contention. As a preliminary matter, whether
Plaintiff was a contract employee or a staff officer at the time his employment was terminated has
nothing to do with whether or not he has a protectable liberty interest. Whatever his employment
status, the change in status that forms the basis for his due process claim is the termination of his
employment. Although the parties may disagree about Plaintiff's employment status at the time that
his employment was terminated, it is the fact of the termination, not his actual employment status at
the time, that is material to the issue at hand. Thus, the Court finds that the parties' disagreement
about Plaintiff's employment status in 2002 is not a material fact and, therefore, does not require
additional discovery in order for Plaintiff to respond to Defendant's motion for summary judgment.
In addition to the amended complaint, Plaintiff relies on his declaration, the Abraxis e-mails,
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and his counsel's Rule 56(f) declaration to support his contention that he has established that an
issue of material fact exists with respect to whether Defendant made adverse public disclosures to
one or more contractors that harmed Plaintiff's reputation. There are several problems with this
evidence. First, there is no temporal proximity between the time that Plaintiff's employment was
terminated and the time that Defendant allegedly made adverse public disclosures to Abraxis, which
caused Abraxis to rescind its job offer to Plaintiff. Defendant terminated Plaintiff's employment in
October 2002. Plaintiff, by his own admission, did not contact Abraxis' founder until the summer of
2006, almost four years after his termination. See Dkt. No. 39-1, Declaration of Peter B dated
February 1, 2010 ("Peter B Declaration"), at ¶ 28. Thus, even assuming that Defendant made some
statements to Abraxis that were defamatory in nature, these statements were not made at the time
that Plaintiff's employment was terminated. Thus, any such statements, made nearly four years after
Plaintiff's employment with Defendant CIA terminated, could not give rise to a due process claim.
Alternatively, to the extent that Plaintiff's claim is based on his assertion that Defendant
placed negative information in his personnel file, which is publicly available to future employers,
this would state a reputation-plus claim if he is alleging that the negative information in the file
consists of the reasons for his termination. See Peter B., 620 F. Supp. 2d at 72. The evidence on
which Plaintiff relies as a basis for his claim that he has raised a material factual issue regarding
whether Defendant made adverse public disclosures to one or more contractors that harmed his
reputation simply does not support that assertion. The Abraxis e-mail on which Plaintiff relies
merely states as follows:
Peter we need to speak. [I]n our brief interaction I think you find me
honest and frank. [T]his relationship is trending in a direction [I] may
not be able to recover. [T]he customer you met with has declined any
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interest. [T]heir decline was a "firm" decline. [A]dditional research
on our side re your utility from there is finding some inconsistancies
[sic] in what you provided and what is a matter of public record.
See Dkt. No. 20-1 at 1.
Even if, as Plaintiff argues, the "customer" mentioned in the e-mail is Defendant CIA, there
is nothing in the e-mail that indicates that Defendant provided any information about Plaintiff to
Abraxis. In fact, the problem for Abraxis appears to be the inconsistencies between some
information Plaintiff provided and what was a matter of public record. Thus, this e-mail does not
raise an issue of fact that is material to Plaintiff's liberty interest due process claim.
Furthermore, the statements in Plaintiff's declaration offer nothing but conjecture about what
might have occurred. In addition, Plaintiff concedes that the alleged defamatory information might
have been "based on what defendant Lyons had told [CIA officials] sometime prior to that date, in
2002 or possibly later, or because the officials played a role in my 2002 termination." See Peter B
Declaration at ¶ 40.
Based on the lack of anything in the materials that Plaintiff has provided that even remotely
suggests that Defendant CIA made any statements to Abraxis about Plaintiff, the Court concludes
that Plaintiff has not shown that there are any material issues of fact in dispute with regard to his
"reputation-plus" liberty interest due process claim for which he requires discovery before
responding to Defendant's motion for summary judgment.
With respect to the "stigma or disability" text, Plaintiff only points to one issue of disputed
fact – whether Defendant CIA impeded the transfer of his security clearance or disseminated any
adverse information to government contractors regarding his security clearance. Plaintiff relies on
the same information on which he relied with respect to the "reputation plus" test. However, as
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noted, there is nothing in the Abraxis e-mail or Plaintiff's declaration that demonstrates that
Defendant CIA impeded the transfer of his security clearance or disseminated any adverse
information to Abraxis regarding his security clearance. There is no mention in the e-mail about
any problems with Plaintiff's security clearance or that Abraxis had made inquiries about Plaintiff's
security clearance. Furthermore, a person does not have a liberty interest in a security clearance.
See Jones v. Dep't of Navy, 978 F.2d 1223, 1226 (Fed. Cir. 1992). "An employee's liberty interest
centers on his concern for his reputation and good name . . . [and] '[a] clearance does not equate
with passing judgment upon an individual's character.' . . ." Id. (internal quotation and other citation
omitted).
In sum, for the above-stated reasons, the Court finds that Plaintiff has not identified any
material factual disputes that exist regarding his liberty interest due process claim under either the
"reputation-plus" or the "stigma or disability" test; and, therefore, the Court denies his motion for
Rule 56(f) discovery and grants Defendant's motion for summary judgment with respect to this
claim.
C. Plaintiff's Privacy Act claim
Plaintiff asserted Privacy Act claims under three provisions: 5 U.S.C. §§ 552a(e)(2), (e)(5),
and (e)(6). However, as Defendant correctly notes, at the December 7, 2012 proceeding, Plaintiff
acknowledged that the only Privacy Act claim that was not time-barred was his claim under
§ 552a(e)(6), which requires that, "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[.]" 5 U.S.C. § 552a(e)(6).
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Plaintiff relies on the same information to demonstrate that there is a dispute about material
issues of fact regarding his § 552a(e)(6) claim as he did his due process claim. However, none of
the items on which he relies creates any such dispute. There is nothing to indicate that Defendant
disseminated any record to Abraxis, let alone an inaccurate record. The Court finds that Plaintiff
has not pointed to anything that raises an issue of fact regarding this claim and, therefore, denies his
motion for discovery pursuant to Rule 56(d) and grants Defendant's motion for summary judgment
with regard to this claim.
IV. CONCLUSION
Having reviewed the record in this matter, the parties' submissions and oral arguments and
the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for discovery pursuant to Rule 56(d) of the Federal Rules
of Civil Procedure, see Dkt. Nos. 39, 49, is DENIED; and the Court further
ORDERS that Defendant's motion for summary judgment, see Dkt. No. 35, is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close
this case.
IT IS SO ORDERED.
Dated: March 30, 2016
Syracuse, New York
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