Peter B. v. Cent. Intelligence Agency
| Decision Date | 30 March 2016 |
| Docket Number | 1:06-CV-1652 (FJS) |
| Citation | 174 F.Supp.3d 308 |
| Court | U.S. District Court — District of Columbia |
| Parties | Peter B., Plaintiff, v. Central Intelligence Agency, Margaret Peggy Lyons,Does 1-10 and John O. Brennan, Director, Central Intelligence Agency, Defendants. |
MARK S. ZAID, ESQ., BRADLEY P. MOSS, ESQ., LAW OFFICES OF MARK S. ZAID, P.C., 1250 Connecticut Avenue, NW, Suite 200, Washington, D.C. 20036, Attorneys for Plaintiff
MARCIA KAY SOWLES, ESQ., UNITED STATES DEPARTMENT OF JUSTICE, 20 Massachusetts Avenue, NW, Room 7108, Washington, D.C. 20530, Attorneys for Defendants
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.
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 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 CIA employee's personnel file and would not have had access to any alleged negative information that may have been contained therein. See id.
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 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 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.
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 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...
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