Palmieri v. United States

Decision Date03 November 2014
Docket NumberCivil Action No. 12–1403 JDB
Citation72 F.Supp.3d 191
PartiesMatthew Richard Palmieri, Plaintiff, v. United States of America, et al., Defendants.
CourtU.S. District Court — District of Columbia

Matthew Richard Palmieri, Springfield, VA, pro se.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiff Matthew Richard Palmieri, a former contractor for the United States, brings this 30–count action against various government agencies and officials1 (collectively “the United States” or “the government”). Proceeding pro se, Palmieri claims that his industrial security clearance was revoked after the government conducted an investigation of his activities. He challenges the investigation, the subsequent administrative hearing, the loss of his security clearance, and the government's responses to his document requests. Upon careful consideration of the several motions and the parties' various memoranda,2 the applicable law, and the record, and for the reasons set forth below, the Court will reject most of Palmieri's claims.

BACKGROUND

According to the complaint, Palmieri held an industrial security clearance for over a decade as a government contractor. Am. Compl. [ECF No. 14] at 12.3 Palmieri worked as “a systems engineer specializing in classified military communications systems.” Id. He alleges that, after a several-month-long government investigation into his activities and a subsequent hearing before an administrative judge, his security clearance was revoked in 2011. Id. at 12–41. He now brings this action challenging various aspects of the investigation and its aftermath.

When the investigation began, Palmieri was residing in Bahrain and working as a government contractor. Id. at 13–15. He learned that an investigation “might be underway targeting [him] around Christmas of 2009 or New Year[']s 2010.” Id. at 15. As part of the investigation, government officials allegedly accessed Palmieri's Facebook account. Id. at 15–16. They also “seized [Palmieri's] work emails” and “hard drives from multiple office computers at [his] desk,” reviewed his phone records, and used a “surveillance system” to “capture” his work emails and “any other available Internet activity” on his work computer system. Id. at 17, 24–25. Palmieri further claims that government officials engaged in physical and vehicular surveillance of him in Bahrain. Id. at 19, 75. Also as part of the investigation, Palmieri asserts that he was “interrogated inside the NCIS Middle East Field Office in Bahrain,” during which he was told: “you are here voluntarily and you are free to leave[,] but if you don't talk to us[,] we are going to recommend your security clearance be suspended.” Id. at 20.

In May 2010, after much of the investigation apparently had been completed, the government recommended that Palmieri's security clearance be suspended. Id. at 22. Palmieri alleges that he was then escorted from his office, and government officials searched his office area. Id. at 23. Later, on July 19, 2011, “at [the government's] request,” Palmieri took a polygraph test. Id. at 25. Prior to the test, Palmieri “was read a Miranda warning and asked to sign a paper acknowledging it.” Id. Palmieri was asked if he had committed unauthorized disclosures of national defense information and if he was currently in possession of any unauthorized classified materials. Id. at 25–26. Palmieri claims that government officials believed “deception was indicated” by his negative responses to the questions, and as a result, an official requested permission to search Palmieri's home. Id. Palmieri declined to give permission. Id.

On August 24, 2011, Palmieri's security clearance was officially suspended.Id. at 30. Palmieri was ‘released without prejudice,’ or fired,” from his position “based wholly on the suspension” of his security clearance. Id. at 31. The United States later provided Palmieri with a “Statement of Reasons,” which “constituted the Government's formal allegations against [him].” Id. at 33. Of the twenty-seven allegations, Palmieri admitted to some, which alleged that he knew particular individuals and that he maintained a foreign bank account worth more than $300, and he denied the remainder. Id.

The government then provided Palmieri with notice that a hearing before a DOHA Administrative Judge regarding his security clearance would be held on November 7, 2012, in Arlington, Virginia. Id. at 34. In pre-hearing communications, the government told Palmieri that it would not call any witnesses. Id. Palmieri alleges that the “hearing was mostly uneventful except for extensive discussions surrounding” the government's allegation that:

In approximately June 2009, [Palmieri] introduced a United States military member to two Syrian nationals associated with the Syrian diplomatic establishment in Manama, Bahrain and subsequently asked the military member not to disclose [Palmieri's] association with said Syrian nationals to anyone inside the United States government.

Id. ; see also Ex. 2 to Defs.' Mot., Nov. 27, 2012 DOHA Opinion [ECF No. 26–2] (Nov. 27, 2012 DOHA Opinion) at 2, 4.4 Palmieri claims that he “complained that this allegation was hearsay unsupported by an in-hearing witness testifying in-person, under oath, and subject to cross-examination.” Am. Compl. at 34. The government exhibit supporting this allegation was a letter from NCIS to DSS discussing “a report by a reserve military member” about this allegation. Nov. 27, 2012 DOHA Opinion at 2; see also Ex. 29 to Pl.'s Opp'n [ECF No. 37–29] (“NCIS Letter”); Ex. 12 to Pl.'s Mot. (same). The Administrative Judge admitted the evidence “into the record under an exception to the Hearsay Rule.” Am. Compl. at 36. The Administrative Judge also noted that Palmieri “knew the identity of the reserve military member” and that the Administrative Judge had allowed Palmieri to “request the reserve military member as a witness,” had offered to “ask Department Counsel to locate her and seek her testimony,” and had given Palmieri until November 15, 2012, to decide whether to call the reserve military member, but that Palmieri declined to call her. Nov. 27, 2012 DOHA Opinion at 2.

On November 27, 2012, the Administrative Judge issued his decision, which “found against [Palmieri] on the reserve-military-member allegation. Am. Compl. at 36. The Administrative Judge found that:

[Palmieri] has not accepted responsibility for his conduct with the reserve military member. I found him evasive and less than completely forthcoming at the hearing. Without complete candor, I am unable to find that [Palmieri] has learned from the experience and such behavior is unlikely to recur. No mitigating conditions apply.... Overall, the record evidence leaves me with questions and doubts as to [Palmieri's] eligibility and suitability for a security clearance.

Nov. 27, 2012 DOHA Opinion at 10–11. Based on the record before him, the Administrative Judge concluded that “it is not clearly consistent with the national interest to continue [Palmieri's] eligibility for a security clearance,” and denied Palmieri's [e]ligibility for access to classified information.” Id. at 11.

Palmieri appealed the Administrative Judge's decision, arguing that the NCIS Letter should not have been admitted into evidence because it contained hearsay. Am. Compl. at 36–37. After hearing his appeal, DOHA's Appeal Board affirmed the Administrative Judge's decision, stating that “hearsay was admissible in industrial security clearance proceedings and that [Palmieri did] not maintain any Right of Confrontation or cross-examination if the allegations are contained within this admissible hearsay.” Id. That opinion states:

[W]e have consistently held that [DOD Directive 5220.6 (Jan. 2, 1992, as amended) ] ¶ E3.1.22 does not provide a right of cross examination concerning out-of-hearing statements that are admissible under other provisions of the Directive.... One such provision [encompasses] ... the FRE's panoply of exceptions. Another ... states: [o]fficial records or evidence compiled or created in the regular course of business ... may be received and considered by the Administrative Judge without authenticating witnesses, provided that such information has been furnished by an investigative agency pursuant to its responsibilities ... to safeguard classified information....”

Ex. 1 to Defs.' Mot., Mar. 14, 2013 DOHA Opinion [ECF No. 26–1] (Mar. 14, 2013 DOHA Opinion) at 4–5. The Appeal Board determined that the NCIS Letter could be admitted without an authenticating witness because it was compiled in the regular course of agency operations: it was [p]repared on NCIS letterhead,” related to matters that fell within the agency's purview, and was not “generated merely in anticipation of a DOHA hearing.” Id. at 5.

Before this Court, Palmieri's lawsuit broadly “challenges th[e] investigation [of him], the techniques used in it, [and] the damages the investigation caused [him], and demands all records held by various government agencies which were used and created during the investigation.” Pl.'s Opp'n at 15. Palmieri also challenges the administrative proceedings before DOHA.

LEGAL STANDARDS
I. Motion To Dismiss Under Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack of subject-matter jurisdiction. Subject-matter jurisdiction is both a statutory requirement and an Article III requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003). The plaintiff bears the burden of demonstrating that jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court must construe the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v....

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