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Tripp v. Executive Office of the President

April 5, 2001

LINDA R. TRIPP PLAINTIFF,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

[20-1][95-1][95-2][53-1][53-2][89-1][105-1]

MEMORANDUM OPINION & ORDER

I. Background

Plaintiff Linda Tripp seeks declaratory and injunctive relief and damages against defendants the Executive Office of the President (EOP), the Federal Bureau of Investigation (FBI), and the U.S. Department of Defense (DOD) for violations of the Privacy Act, 5 U.S.C. § 552a et seq. Plaintiff also seeks damages against individual defendants Kenneth H. Bacon, Assistant Secretary of Defense, Clifford Bernath, Principal Deputy Assistant Secretary of Defense, and Jane and John Doe, numbers 1 through 99, for conspiracy to violate plaintiff's civil rights pursuant to clause 2 of the Civil Rights Act of 1871, 17 Stat. 13 (1871) and 42 U.S.C. § 1985(2). Finally, plaintiff seeks damages against defendants Bacon and Bernath for invasion of her privacy and civil conspiracy against her.

Plaintiff contends that the EOP, the FBI, and the DOD released confidential information about her. She alleges that she was the victim of a pattern of intentional and wrongful disclosures by the EOP and the FBI of confidential information contained in government files for the purpose of embarrassing her and retaliating against her. At the heart of plaintiff's complaint is the alleged release of information from plaintiff's security clearance application by the DOD to Jane Mayer, a reporter from The New Yorker magazine. Plaintiff alleges the following: On March 12, 1998, Mayer contacted Kenneth Bacon, the Assistant Secretary of Defense for Public Affairs. Mayer indicated she was writing a story on plaintiff and had uncovered information suggesting that plaintiff had been arrested in 1969. Mayer wanted to know whether plaintiff had disclosed any prior arrests on her security clearance application. Bacon then enlisted his deputy, Bernath, to obtain the information Mayer requested. The next day Bernath contacted Mayer and informed her that plaintiff had denied having an arrest record on her clearance application. Later that same day, The New Yorker published Mayer's article, entitled "Portrait of a Whistleblower," which included the information from plaintiff's file.

The original complaint in this case was filed in September 1999, and named as defendants the EOP, the DOD, Kenneth H. Bacon, Clifford Bernath, and Jane and John Doe, numbers 1 through 99. In January 2000, plaintiff filed an amended complaint, incorporating her prior claims and adding further allegations. In the amended complaint, plaintiff adds the FBI as a defendant.

This case comes before the Court on the EOP and the FBI's Motion to Dismiss Count I and II under Rule 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted, and Count V under Rule 12(b)(1) for lack of subject matter jurisdiction. The United States filed a Notice of Substitution as the sole defendant on Count V. Individual defendants Bacon and Bernath filed a Motion to Dismiss Counts IV and V. Upon consideration of those motions, and the responses and replies thereto, the Court will grant the Executive Office of the President's motion to dismiss Count 1 of the complaint with prejudice and enter final judgment against the plaintiff on that count. The Court will dismiss without prejudice Count II of the complaint against the FBI, pending resolution of the class certification issue in Alexander v. FBI, No. 96-2123 (D.D.C. filed Sept. 12, 1996). Accordingly, the motions of the EOP and FBI for protective orders are denied as moot. As to Count V, the motions of the government and the individual defendants are denied without prejudice pending determination of the Notice of Substitution issue.

Plaintiff may proceed with count III of her complaint against the DOD *fn1 for violations of the Privacy Act and Count IV of her complaint against the individual defendants pursuant to § 1985(2). The motion of the individual defendants to dismiss plaintiff's claim pursuant to § 1985(1) and the Civil Rights Act of 1871 is granted.

II. Standard of Review

The Court will not grant a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Accordingly, at this stage of the proceedings, the Court accepts as true all of the complaint's factual allegations. See Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Plaintiff is entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal, 16 F.3d at 1276.

The standard of review for a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is 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 Piney 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.

III. Discussion

A. Government's Motion to Dismiss Count I: Defendant EOP

Plaintiff sues the EOP for violations of the Privacy Act, 5 U.S.C. § 552a, et seq., which governs federal agencies' acquisition, maintenance, use, and disclosure of information concerning individuals. The Act requires that agencies maintain "only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President." 5 U.S.C. § 552a(e)(1). Agencies maintaining such information are required 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). Under the Act, an agency is generally prohibited from disclosing information about an individual in its records without the individual's consent. See id. § 552a(b). Moreover, an agency subject to the Privacy Act must permit an individual to have access to and an opportunity to correct its records regarding that individual. See id. § 552a(d). The Privacy Act grants federal courts jurisdiction to compel compliance with the Act and, in the case of willful or intentional violations, to award damages. See id. § 552a(g).

Defendant contends that the central issue in this case is whether the EOP is an "agency" within the meaning of the Privacy Act. Defendant EOP asserts that the Office of the President, which is a component of the EOP, is not an agency subject to the Privacy Act. Plaintiff asserts that the Office of the President is an agency under the Privacy Act based on the Act's plain language, purpose, and legislative history.

The Privacy Act adopts the Freedom of Information Act's (FOIA) definition of agency. 5 U.S.C. § 552a(1)("the term 'agency' means agency as defined in section 552(e)" of Title 5, U.S.C.); 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"). The definition of "agency" under the FOIA "includes any executive department....or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f). Despite the plain language of the statute, the FOIA's legislative history directs 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." H.R. Rep. No. 1380, 93rd Cong., 2d Sess. 114-15 (1974); S. Rep. No. 1200, 93rd Cong., 2d Sess. 15 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6285.

The Supreme Court recognized the FOIA's legislative history in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156, 100 S. Ct. 960, 972 (1980): The "legislative history is unambiguous...in explaining that the 'Executive Office' does not include the Office of the President [and]...that 'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.'" The Court held that the Office of the President is not subject to the FOIA.

Likewise, the D.C. Circuit held that the Office of the President and the White House are not agencies for purposes of the FOIA. See United States v. Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998)(holding that the EOP is not a discrete agency under the FOIA); Meyer v. Bush, 981 F.2d 1288, 1293 n.3 (D.C. Cir. 1993)(holding that individuals employed in the White House are considered part of the President's immediate personal staff and thus are exempt from the FOIA); National Security Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C. Cir. 1990)(holding that the White House is not an agency for purposes of the FOIA); see also Rushforth v. Council of Economic Advisors, 762 F.2d 1038, 1040 (D.C. Cir. 1985)(holding that the Council of Economic Advisors, whose sole function is to advise and assist the President, is not an agency for purposes of the FOIA).

The parties disagree whether this exception to the term "agency" under the FOIA for the Office of the President applies to the Privacy Act. Defendant EOP argues that the Privacy Act expressly adopts the FOIA definition of "agency," including that definition's legislative history and judicial interpretation. Plaintiff argues that while the Privacy Act adopts its definition of "agency" from the FOIA, it does not follow that the Office of the President is exempt from the Privacy Act. First, plaintiff argues that the Privacy Act adopts the plain language of the FOIA statute which includes the EOP in its definition of agency. Second, plaintiff argues that the definition of agency under the FOIA and the Privacy Act should be treated differently because the two statutes serve different purposes. Finally, plaintiff argues that the legislative history of the Privacy Act demonstrates that the Office of the President is subject to its terms.

There are several District Court cases that provide guidance on this issue. In Alexander v. FBI, 971 F. Supp. 603 (D.D.C. 1997), the District Court held that the Office of Personnel Security and the Office of Records Management, each units of the EOP within the White House, were agencies subject to the Privacy Act. The Alexander Court acknowledged that the Privacy Act adopts its definition of "agency" from the FOIA and that the Supreme Court and the D.C. Circuit have held that these units within the EOP are not agencies subject to the FOIA. However, the court concluded that, "[w]hile it is true that Congress adopted the statutory definition of 'agency' as used in FOIA for the Privacy Act, no court has provided the term 'agency,' as used in the Privacy Act, with the same interpretation which excludes from the plain language the President's personal staff and units whose sole function is to advise and assist the President. Recognizing the very different purpose the two statutes serve, this court will not be the first." Id. at 606. The court determined that since the FOIA and the Privacy Act serve different purposes, the term "agency" in each statute need not be interpreted the same way: "Words in statutes must be construed within the statutory scheme in which they appear, and this court holds that under the Privacy Act, the word "agency" includes the Executive Office of the President, just as the Privacy Act says." Id. at 607. *fn2

Five other Federal District Courts have since rejected the Alexander Court's reasoning. Recently, in Jones v. Executive Office of the President and Flowers v. Executive Office of the President, the District Courts held that the terms of the Privacy Act do not apply to the White House Office. In Jones, the court based its conclusion, in large part, "on the fact that Congress, neither in the text of the Privacy Act, nor in its legislative history, indicates an intention to interpret the term 'agency' in any manner other than as it is used in FOIA." Jones, No. 00-307, slip op. at 14 (D.D.C. Mar. 12, 2001). In Flowers, the court found that since the EOP is not an agency subject to the FOIA, the EOP is not an agency subject to the Privacy Act. Flowers, No. 99-3389, slip op. at 8 (D.D.C. Mar. 16, 2001).

Similarly, in Barr v. Executive Office of the President, No. 99-1695, slip op. at 6 (D.D.C. Aug. 9 2000), the District Court held that the EOP was not subject to the Privacy Act. The District Court found that if the Privacy Act applied to the Office of the President, the President would have to disclose information, publish in the Federal Register the types of records he or she keeps, be prohibited from maintaining certain records, and be restricted in what type of information he or she could disclose and to whom. Congress's exercise of this type of control over the President raises separation of powers and other constitutional concerns. Applying the rules of construction that require a statute to "first be construed to avoid doubts of constitutionality" and further noting that "Congress, in enacting legislation restricting presidential action, must make its intent clear," the District Court found that Congress has not clearly subjected the White House Office to the Privacy Act. Id. at 5-6. The Barr Court concluded that "[a]s the Privacy Act borrows the FOIA definition, it fairly borrows the exceptions thereto as provided in legislative history and by judicial interpretation," and excludes the White House from the terms of the Privacy Act. Id. at 6.

In Sculimbrene v. Reno, No. 99-2010, slip. op. at 15 (D.D.C. Feb. 16, 2001), the District Court held that the White House Office is not subject to the terms of the Privacy Act.

In this case, the court found the exclusion of the White House to be a fair construction of the terms of the Privacy Act, and that such construction properly avoids constitutional questions. The court based its conclusion, in large part, on the fact that Congress, neither in the text of the Privacy Act or its legislative history, indicates an intention to interpret "agency" in any other manner than it is used in the FOIA. The drafters of the Privacy Act, in choosing to expressly apply the FOIA definition of "agency" were aware of the FOIA's legislative history which specifically provided that "the term [agency] is not to be interpreted as including the President's immediate personal staff or units within the Executive Office whose sole function is to advise and assist the President." See H.R. Conf. Rep. 93-1380 at 15. Additionally, the Sculimbrene court points to Supreme Court precedent clearly stating that, "where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 581, 98 S. Ct. 866, 870 (1978). The Sculimbrene court rejects the Alexander court's reasoning, finding instead that "absent express congressional guidance, the mere fact that the Privacy Act and FOIA may reflect competing concerns for privacy and public access cannot control the Court's interpretation of the term 'agency' as it is used in the Privacy Act." Sculimbrene, slip. op. at 17.

In Falwell v. EOP, 113 F. Supp.2d 967 (W.D. Va. 2000), the District Court in another jurisdiction held that the Office of the President is not subject to the Privacy Act: "The Privacy Act clearly and expressly adopts the FOIA's definition of agency. This definition has been interpreted by the Supreme Court as excluding the Office of the President, a component of the EOP. Consequently, the FOIA's definition of agency and its judicial interpretation control the outcome of this case. Therefore, the court finds as a matter of law that the Office of the President is not subject to the Privacy Act and, therefore, is not required to comply with Falwell's request for information." Id. at 969-70. The Falwell court also relied on Rushforth v. Council of Economic Advisors, 762 F.2d 1038 (D.C. Cir. 1985), as authority that the FOIA's definition of agency, when incorporated into other statutes, applies exactly as it does under the FOIA, inclusive of judicial interpretation. See id. at 969. In Rushforth, the D.C. Circuit held that "[i]nasmuch as the Council of Economic Advisors is not an agency for FOIA purposes, it follows of necessity that the CEA is, under the terms of the Sunshine Act, not subject to that statute either...[because] the Sunshine Act expressly incorporates the FOIA definition of agency." 762 F.2d at 1043. Further, in Dong v. Smithsonian Institution, the Circuit held that the Smithsonian Institution is not an agency subject to the Privacy Act, because the Smithsonian is not an agency subject to the FOIA. 125 F.3d at 878-79.

The Court finds persuasive the reasoning of the courts in Barr, Sculimbrene, and Falwell and rejects plaintiff's arguments. *fn3 First, plaintiff argues that the EOP is subject to the Privacy Act based on the plain language of the statute. The plain language of the Privacy Act directs one to look to the FOIA for the definition of "agency." 5 U.S.C. § 552a(1). While on its face, the FOIA states that the definition of "agency" includes the Executive Office of the President, the U.S. Supreme Court, the D.C. Circuit, and Congress, through the FOIA's legislative history, have all made it abundantly clear this does not include the Office of the President. See Kissinger, 445 U.S. at 156 (1980); United States v. Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998); H.R. Rep. No. 1380, 93rd Cong., 2d Sess. 114-15 (1974); S. Rep. No. 1200, 93rd Cong., 2d Sess. 15 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6285.

In enacting the Privacy Act, Congress gave no indication that the identical language means one thing in the context of the FOIA and something completely different in the context of the Privacy Act. To the contrary, Congress said that the definition of agency for the Privacy Act was the same as for the FOIA.

Second, plaintiff argues that the definition of "agency" under the Privacy Act is different than the definition of "agency" under the FOIA because the statutes serve different purposes. Plaintiff asserts that the purpose of the FOIA is to provide access to federal government records, while the purpose of the Privacy Act is to protect individuals against invasion of personal privacy. The FOIA's exception for the Office of the President is based on a balance between the public's interest in information and the need for the President and his or her advisors to make important and classified decisions without fear of disclosure. Plaintiff argues that under the Privacy Act, there is no similar need for the exception. However, Congress did not indicate that this was the case. Rather, Congress adopted the FOIA's definition of "agency" for the Privacy Act, and the FOIA's legislative history was clear that it excluded the Office of the President. Congress did not indicate that the Privacy Act's definition of "agency" differed in any way from the definition under the FOIA.

As the Sculimbrene court correctly points out, when Congress adopts a new law incorporating sections of a prior law, Congress is normally presumed to have knowledge of the interpretation given to the incorporated law. Lorillard v. Pons, 434 U.S. 575, 581 (1978). In enacting the Privacy Act, Congress was aware of the legislative history of the FOIA which unambiguously states ...


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