Jones v. Executive Office of President

Decision Date13 March 2001
Docket NumberNo. 00-307.,00-307.
Citation167 F.Supp.2d 10
PartiesPaula JONES, Plaintiff, v. THE EXECUTIVE OFFICE OF THE PRESIDENT, Defendant.
CourtU.S. District Court — District of Columbia

Larry Elliot Klayman, Judicial Watch, Incorporated, Washington, DC, for Paula Jones, plaintiff.

Stuart Alexander Licht, U.S. Department of Justice, Civil Division, Washington, DC, for Executive Office of the President, federal defendant.


KOLLAR-KOTELLY, District Judge.

This matter, a Privacy Act action against the Executive Office of the President ("EOP"), comes before the Court on the EOP's Motion to Dismiss pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. In support of its motion, the EOP argues that the Privacy Act, 5 U.S.C. § 552a et seq., does not apply to EOP staff or units whose sole function is to advise and assist the President. Upon consideration of the EOP's motion, Plaintiff Paula Jones' opposition,1 the EOP's reply, Plaintiff's supplemental opposition the EOP's response to the supplemental opposition, and the relevant law, the Court shall grant the motion to dismiss.2


Plaintiff contends that the Clinton Administration EOP maintained a file on her and illegally used its contents "to attempt to smear and destroy her reputation." Compl. ¶ 14. Specifically, she alleges that Lanny J. Davis, a former Special Counsel to the President, had unauthorized access to the EOP files that contain information about Plaintiff. See id. ¶¶ 15-19. Plaintiff contends that she sought access to all such files pursuant to the Privacy Act, see id. ¶¶ 5-6, and that the EOP denied her request on the ground that it is not subject to the Act. See id. ¶¶ 7-8. According to Plaintiff, the EOP's rationale for its denial is incredible because White House officials have conceded the Act's applicability on several occasions in the past and because another court in this district has concluded that the Act applies. See id. ¶¶ 9-13.

Plaintiff contends that the EOP obtains information for its files unlawfully and uses the information to "attack[] or threaten[] attacks" on her and others. Id. ¶¶ 21-22. She argues that the EOP's improper maintenance and use of such records violates 5 U.S.C. § 552a(e)(1) and that its refusal to allow her access to them violates 5 U.S.C. § 552a(d)(1). See id. ¶¶ 23-25. In its Motion to Dismiss, the EOP contends that the allegations in Plaintiff's Complaint refer only to the Office of the Counsel to the President ("OCP"). The EOP argues that OCP is a subdivision of the White House Office, which is, in turn, a division of the EOP to which the Privacy Act does not apply. See Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss at 1 [hereinafter "EOP's Mem."].


The EOP brings its motion under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. Under Rule 12(b)(6), a motion to dismiss should be granted only if the "plaintiff[] can prove no set of facts in support of [its] claim which would entitle [it] to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (citing Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979)). When considering a motion to dismiss under Rule 12(b)(6), the Court must resolve all factual doubts in favor of the plaintiff and allow the plaintiff the benefit of all inferences. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997).

Notwithstanding this liberal construction, "the 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, 16 F.3d at 1276; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

In reviewing motions to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1), district courts employ a standard virtually identical to that used for 12(b)(6) motions. See, e.g., Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C.1999) (citing Pitney Bowes Inc. v. U.S. Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998)). In the 12(b)(1) context, the plaintiff bears the burden of proving jurisdiction. See id.


The Privacy Act governs federal agencies' acquisition, maintenance, use, and disclosure of information concerning individuals. When applicable, the Act provides that agencies may maintain "only such information about an individual that is relevant and necessary to accomplish a purpose of the agency as required by statute or by executive order of the President." 5 U.S.C. § 552a(e)(1). The Act further requires agencies maintaining such information to "establish 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 ...." Id. § 552a(e)(10). In addition, the Act prohibits agencies, subject to certain exceptions, from disclosing information about an individual in its records without the individual's consent. See id. § 552a(b).

Upon receipt of a proper request from an individual, any federal agency subject to the Privacy Act must permit that individual to have access to, and the opportunity to correct and amend, its records regarding that individual. See id. at § 552a(d). The Privacy Act grants jurisdiction to federal courts for civil actions to compel compliance with its terms and, in the case of intentional or willful violations, to award damages. See id. at § 552a(g).

The sole issue presently raised for this Court's determination is whether the White House Office, a unit within the EOP, may be considered an "agency" which is subject to the terms of the Privacy Act. See EOP's Mem. at 1-2.3 The Privacy Act provides that the term "agency" means "agency" as defined by the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(f). See 5 U.S.C. § 552a(a)(1); Dong v. Smithsonian Inst., 125 F.3d 877, 878 (D.C.Cir.1997) (holding that the Privacy Act "borrows the definition of `agency' found in FOIA"). FOIA, in turn, defines "agency" as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f).

Although the plain language of the statute expressly includes the "Executive Office of the President," FOIA's legislative history specifies that the term "Executive Office of the President" is "not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." S. CONF. REP. NO. 93-1200, at 15 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6923; H.R. CONF. REP. NO. 93-1380, at 14 (1974) (same). Recognizing congressional intent, the Supreme Court has held that the FOIA definition of "agency" does not include the "Office of the President," also known as the White House Office. See Kissinger, 445 U.S. at 156, 100 S.Ct. 960. The Kissinger Court based this finding, in part, on the Conference Report for the 1974 FOIA Amendments which indicate that the term "agency" shall not apply to "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." See id. (citing H.R. CONF. REP. NO. 93-1380, at 15 (1974)). Accordingly, the Court held that such staff and units "are not included within the term `agency' under the FOIA." Id.

Following the Supreme Court's opinion in Kissinger, the United States Court of Appeals for the District of Columbia Circuit recognized that "it has never been thought that the whole Executive Office of the President could be considered a discrete agency under FOIA." United States v. Espy, 145 F.3d 1369, 1373 (D.C.Cir. 1998). By the same rationale, the Court of Appeals noted that an entity within the EOP does not qualify as an "agency" unless it exercises "substantially independent authority." Id. Accordingly, the court noted that the Chief of Staff or the President's Counsel would not constitute an "agency" for FOIA purposes. Id.; see also Nat'l Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir. 1990) ("The Supreme Court has made clear that the [White House Office] is not an `agency' for purposes of the FOIA.").

While they concur that the White House Office is exempt from FOIA, the parties dispute its status under the Privacy Act. Both Plaintiff and the EOP argue that the Privacy Act is in some way "clear" on its face with regard to this issue. That is, the EOP argues that the statute clearly adopts the FOIA definition of "agency" and construes that statement as an adoption of the FOIA definition precisely as it has been applied and interpreted in FOIA actions. See EOP's Mem. at 16-18. In contrast, Plaintiff argues that the plain text of the definition of "agency", at least as it appears in FOIA, includes the entire EOP. See Pl.'s Opp'n at 8, 11. In support of this argument, Plaintiff points to the legislative history of FOIA and the Privacy Act, and contends that this history reveals an intent to subject as many federal agencies as possible to the Acts.4 See id. at 9-12.

There are two cases from this district which provide direct guidance on this issue but neither case binds this Court, and more significantly, the two cases reach opposite conclusions.5 In Alexander v. FBI, 971 F.Supp. 603 (D.D.C.1997), Judge Royce Lamberth determined that the Office of Personal Security ("OPS") and the Office of Records Management ("ORM"), subsets of the EOP, are not exempt from the Privacy Act. See id. at 606-07. Judge Lamberth reached this conclusion based on the rationale that "the concerns of FOIA and the Privacy Act are quite different" and that, as a result, the justification which excludes the OPS and ORM from F...

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