Alexander v. FBI

• Decision Date: 09 March 2010
• Docket Number: 97-1288(RCL).,Civil Action No. 96-2123(RCL)
• Citation: 691 F. Supp.2d 182
• Parties: Cara Leslie ALEXANDER et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

691 F. Supp.2d 182

Cara Leslie ALEXANDER et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civil Action Nos. 96-2123(RCL), 97-1288(RCL).

United States District Court, District of Columbia.

March 9, 2010.

Larry Klayman, Freedom Watch, Inc., Los Angeles, CA, Paul J. Orfanedes, James F. Peterson, Judicial Watch, Inc., Washington, DC, for Plaintiffs.

Elizabeth J. Shapiro, James J. Gilligan, Julia Fayngold, David Jay Anderson, U.S. Department of Justice, Jeffrey T. Green, Sidley Austin LLP, Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Michael R. Geske, Arnold & Porter, LLP, Randall J. Turk, Baker Botts LLP, Washington, DC, Peter L. Zimroth, Arnold & Porter, New York, NY, for Defendants.

Memorandum Opinion

ROYCE C. LAMBERTH, Chief Judge.

In 1996 the Clinton White House informed Congress that towards the beginning of President Clinton's first term, it had mistakenly asked the Federal Bureau of Investigation for the summary background reports of over four hundred former employees of the Bush and Reagan administrations. Some of the files requested were of high ranking political appointees; others were simply non-political, career employees. While the White House maintained that the requests were made as a result of bureaucratic bungling, others thought that something was rotten in the District of Columbia. In any case, it was clear that something had gone wrong. A number of those whose files were requested decided to file suit against the White House, the FBI, and those White House officials they believed responsible for requesting the files alleging sundry violations of the Privacy Act and the common law. The defendants' motion for summary judgment and the plaintiffs' cross-motion for summary judgment are now before the Court. Also before the Court is the Attorney General's certification regarding the individual defendants' scope of employment.

I. Background

The Executive Office of the President ("EOP") was created during the administration of President Franklin Roosevelt to house the immediate advisors to the President. See generally Cong. Res. Serv., Harold C. Relyea, The Executive Office of the President: A Historical Overview, CRS Report No. 98-606 (Nov. 26, 2008). Although the components of the EOP have varied over time, the White House Office,¹ whose members assist the President with those tasks incidental to the office, has been a part of the EOP since its inception. Id. at 24. The White House Office has various subcomponents as well. Among these are the Office of the White House Counsel, the Office of Legislative Affairs, the Office of the Press Secretary, and the Office of the Staff Secretary. See Dkt. 372-33, Defendants' Statement of Material Facts, ¶ 2. The bureaucratic babushka doll does not stop there though. The Office of the Staff Secretary houses a subunit called the Office of Records Management ("ORM"), id. ¶ 3, and until a reorganization in 1996 the White House Counsel housed a subcomponent called the Office of Personnel Security ("OPS"), id. ¶ 4. ORM maintains the files of the White House Office and ensures compliance with the Presidential Records Act. Id. ¶ 3. OPS was tasked with ensuring that all persons working at the White House underwent the background checks required to determine whether they could be cleared for regular access to the White House. Id. ¶ 5.

All people who work at the White House are required to undergo FBI background checks to determine whether they can be granted access to the facility. See Exec. Order 10450; 3 C.F.R. § 946 (1953). OPS was tasked with initiating these background investigations for new employees. Defendants' Statement of Material Facts at ¶ 25. OPS was also tasked with ensuring that employees who spanned two different administrations had up-to-date background checks.

At the beginning of the Clinton administration, most of the employees who had worked in OPS under the Bush administration left the White House. Id. ¶ 23. However, one holdover, Nancy Gemmell, who had worked in OPS and its predecessor since 1981, remained. Id. Given her experience, she was frequently sought out for advice about OPS's operation. Id. ¶ 24. In the spring of 1993, Ms. Gemmell informed Craig Livingstone, the director of OPS, that the office needed to conduct the "Update Project." Id. ¶ 26. The purpose of the Update Project was to recreate the personnel security files of holdover employees, like Ms. Gemmell, who continued to require access to the White House. Id. ¶ 27. This involved obtaining copies of the most recent FBI background reports to determine whether the employee was due for a five-year reinvestigation and whether they were suitable for continued employment in the new administration. Id. ¶ 28.

OPS was unable to use files from the Bush administration because these had been submitted to the National Archives, as required by the Presidential Records Act. See 44 U.S.C. §§ 2201 et seq. To begin the Update Project, OPS first had to identify the holdover employees who required continued access to the White House. Defendants' Statement of Material Facts at ¶ 30. To identify these holdovers, OPS would normally use a list of active pass holders obtained from the Secret Service. Id.

To begin the project Ms. Gemmell requested a list of all active pass holders from the Secret Service. Id. ¶ 33. The list she received, however, included both active and inactive pass holders, without designating their status. Id. at ¶¶ 33-4.

After obtaining the list, OPS would request new copies of the pass holders' summary background reports from the FBI's Executive Agencies Dissemination Subunit ("EADS"). Id. ¶ 31, 82. Although these requests were made on form memoranda with the printed name of the White House Counsel Bernard Nussbaum, they were not actually reviewed by anyone in the Counsel's Office. Id. ¶¶ 31, 38. Ms. Gemmell made a number of these requests from the time she received the list until her retirement in August 1993. Id. ¶ 39. Upon retiring Ms. Gemmell transferred responsibility for the Update Project to Anthony Marceca, a Department of Defense employee, who had been temporarily detailed to OPS. Id. ¶¶ 41, 42, 44. From December 1993 until his detail ended on February 18, 1994, Mr. Marceca submitted some 400 requests for FBI background files, including those of the plaintiffs. Id. ¶ 52.

At the time that OPS requested these background files, the process for transferring files from the FBI to the White House was governed by procedures set forth in memoranda of understanding between the FBI and the White House. Id. ¶ 81. EADS had routinely responded to such requests from the White House since the Eisenhower administration. Id. ¶ 84. The procedures EADS followed were virtually unchanged for the thirty years before these requests were made. Id. For EADS to process a request from the White House it first had to be received through the proper channels. Id. ¶ 86. The request had to appear on the proper form, and the forms were delivered to the FBI from OPS by an FBI courier. Id. All of the requests for plaintiffs' previous reports were ordinary on their face and were routinely processed. Id. ¶ 89.

However, though the requests appeared to be normal, and indeed, many were, some were not. Eventually Mr. Marceca learned that OPS had received files for people who no longer worked at the White House when, after circulating memoranda to various Executive Office components indicating that certain "employees" were overdue for their five-year background, he was informed that those "employees" did not currently work at White House. Id. ¶¶ 60-63. Indeed, a great number had never even worked in the Clinton White House. It is out of these requests that the present suit arose.

II. Summary Judgment Standard

A party is entitled to summary judgment if, after an adequate time for discovery has passed, it can demonstrate that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment may be entered against a party if it has failed to "make a showing sufficient to establish the existence of an element ... on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In order to rebut the motion for summary judgment, the nonmovant doesn't need to present evidence "in a form that would be admissible at trial . . . ." Id. at 324, 106 S.Ct. 2548. However, the evidence must be capable of being converted into admissible evidence. Gleklen v. Democratic Congressional Campaign Committee, 199 F.3d 1365, 1369 (D.C.Cir.2000). Otherwise, it "counts for nothing." Id.

Additionally, summary judgment shall be granted unless the dispute about material facts is genuine, that is, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party has met its burden, the nonmovant must do more than show that there is some "metaphysical doubt as to the material facts;" in other words, the dispute must be genuinely genuine. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. Discussion

A. The Privacy Act Does Not Apply to the White House Office

Earlier in this case, this Court held that the Privacy Act applied to the Executive Office of the President ("EOP"). Alexander v. FBI, 971 F.Supp. 603, 606-607 (D.D.C.1997) (Lamberth, J.). Since that decision, however, a number of intervening cases have persuaded this Court that its interpretation—then a matter of first impression—was not the correct one. Fortunately, however, this Court is free to revisit its earlier decision.

Rule 54(b) allows a court to modify any ruling that adjudicates fewer than all the claims or rights and...