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DALE v. EXECUTIVE OFFICE OF THE PRESIDENT
United States District Court, District of Columbia
September 25, 2001
BILLY RAY DALE, PLAINTIFF,
EXECUTIVE OFFICE OF THE PRESIDENT, DEFENDANT.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge
MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION FOR JUDGMENT
ON THE PLEADINGS
This case poses a distinct legal question: whether the Privacy Act of
1974, 5 U.S.C. § 552a ("the Privacy Act"), applies to the White
House. Billy Ray Dale ("the plaintiff" or "Mr. Dale"), the former
Director of the White House Travel Office, argues that it does. The
plaintiff sued the Executive Office of the President ("the defendant" or
"the EOP") under the Privacy Act, seeking any and all files that it
maintained on him. Declaring that the Privacy Act was not intended to
cover the White House, the EOP denied the plaintiff's request.
The defendant now moves for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). Specifically, the defendant
argues that Congress meant for the Privacy Act to apply only to
"agencies," and that those components of the EOP whose sole function is
to advise and assist the President are not "agencies" for purposes of the
Privacy Act. The court agrees with the defendant. Thus, the court lacks
jurisdiction to hear the plaintiff's Privacy Act claims and will grant
the defendant's motion.
Billy Ray Dale is the former Director of the White House Travel
Office. See Compl. ¶ 3; Pl.'s Opp'n to Mot. for J. on the Pleadings
("Pl.'s Opp'n") at 2. In 1993, when President Clinton took office, Mr.
Dale had been the Director of the White House Travel Office ("Travel
Office") for 11 years, and had worked in the Travel Office in various
capacities for almost 32 years. See Compl. ¶ 3. On May 19, 1993,
the White House fired Mr. Dale. See Def.'s Mot. for J. on the Pleadings
("Def.'s Mot.") at 3. Subsequently, Mr. Dale was indicted on charges of
financial improprieties in managing the Travel Office. See Pl.'s Opp'n
at 2. In November 1995, Mr. Dale was acquitted of all charges. See id.
The media expressed a keen interest in the story of the firing of the
seven Travel Office employees, and dubbed the episode "Travelgate." See
id. at 2. In 1993, Congress began conducting hearings into the matter,
and, on September 26, 1996, the House of Representatives issued a lengthy
report on the subject that was critical of the Clinton White House. See
Pl.'s Opp'n, Ex. 2. Former Attorney General Janet Reno also appointed an
independent counsel to investigate whether any high-level White House
official had engaged in criminal wrongdoing in this matter. In June
2000, Robert Ray, the independent counsel, issued a summary of his final
report and announced that his office would not seek to prosecute any
individuals involved in the matter. See, e.g., Editorial, Unindicted,
but Not Cleared, Washington Post, June 23, 2000 at A30.
Mr. Dale alleges that during the course of these various
investigations, he "learned that the Clinton White House had requested
Mr. Dale's FBI background investigation file — allegedly to
determine whether he was `suitable' for access to the White House
— some seven (7) months after he had been fired." Pl.'s Opp'n at
3. In addition, the plaintiff claims that during the December 14, 1998
deposition of Linda Tripp in Alexander v. Executive Office of the
President, Dkt. Nos. 96cv2123 and 97cv1288 (before United States District
Judge Royce Lamberth), Ms. Tripp stated that, before Mr. Dale was fired
from his job at the Travel Office on May 19, 1993, she saw what she
believed was his FBI file on the desk of the then-Deputy White House
Counsel Vincent Foster. See
Compl. ¶ 14. Mr. Dale also asserts
that Ms. Tripp saw what she believed to be his FBI file in Mr. Foster's
safe in then-White House Counsel Bernard Nussbaum's office. See id.
On July 14, 1999, Mr. Dale submitted a written request, pursuant to the
Privacy Act, for "any and all documents, including but not limited to
files, that refer or relate in any way to Billy Ray Dale." See id., Ex.
1. The request included a request for access to Mr. Dale's FBI
background investigation file. See id. ¶ 19; Pl.'s Opp'n at 4. The
EOP denied Mr. Dale's request on August 4, 1999.
In response, Mr. Dale filed this action on September 15, 1999, alleging
that the EOP had violated the Privacy Act by not allowing him access to
his records. In addition, Mr. Dale filed the case as a related case to
Alexander v. Executive Office of the President, Dkt. Nos. 96cv2123 and
97cv1288, pursuant to Local Civil Rule 40.5 of the United States District
Court for the District of Columbia. On January 24, 2000, Judge Lamberth
ruled that the case was not a related case to Alexander under Rule 40.5
and transferred it to the Calendar Committee for random reassignment.
Three days later, the plaintiff timely filed his appeal of Judge
Lamberth's decision. The following day, the Calendar Committee assigned
the case to this member of the court. See Reassignment of Docket No.
99cv2453. After the parties had fully briefed the related-case issue,
the court issued a Memorandum Opinion on October 19, 2000. See Dale v.
Executive Office of the President, 121 F. Supp.2d 35 (D.D.C. 2000)
(Urbina, J.). In sum, the court agreed with Judge Lamberth's analysis
and held that the case did not meet the criteria for related-case status
under Rule 40.5. See generally id.
In December 2000, the defendant moved for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). The court now turns to
the defendant's motion.
A. Legal Standard
Federal Rule of Civil Procedure 12(c) states that "[a]fter the
pleadings are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings." See FED. R. CIV.
If a party files a Rule 12(c) motion before
the answer, the court may treat it as a motion to dismiss under
Rule 12(b)(6). See Seber v. Unger, 881 F. Supp. 323,
325 n. 2 (N.D.Ill. 1995). "In fact, any distinction between them
is merely semantic because the same standard applies to motions made
under either subsection." 2 Moore's Federal Practice 3d § 12.38,
12-101; see also GATX Leasing Corp. v. National Union Fire Ins. Co.,
64 F.3d 1112, 1114 (7th Cir. 1995).
Under Rule 12(c), the court must accept the nonmovant's allegations as
true and should view the facts in the light most favorable to the
nonmoving party. See Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7
(D.D.C. 1995). The court should grant a motion for judgment on the
pleadings if the movant "is entitled to judgment as a matter of law." See
Burns v. Int'l Sec. Servs. v. International Union, 47 F.3d 14, 16 (2d
When a party moves to dismiss for lack of subject-matter jurisdiction
or for judgment on the pleadings, the court may consider the motion based
on the complaint standing alone or, where necessary, on the complaint
"supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court's resolution of
disputed facts." See Herbert v. National Academy of Sciences, 974 F.2d 192,
197 (D.C. Cir. 1992). This standard follows from the "well-established
practice — endorsed by the Supreme Court forty-five years ago . . .
of allowing the District Court to make findings when a factual dispute
regarding jurisdiction does arise." Id. at 198 n. 6 (citing Land v.
Dollar, 330 U.S. 731, 735 n. 4 (1947)). Under the Privacy Act, if a
particular entity does not constitute an "agency," any action may be
properly dismissed for lack of subject-matter jurisdiction under Rule
12(b)(1) and for failure to state a claim under Rule 12(b)(6). See Dong
v. Smithsonian Institution, 878 F. Supp. 244, 245 (D.D.C. 1996), rev'd on
other grounds, 125 F.3d 977 (D.C. Cir. 1997).
This case presents little, if any, disagreement about the facts.
Rather, the principal legal issue in this case centers on whether the
White House qualifies as an "agency" under the Privacy Act. If a
particular entity does not constitute an "agency" under the Privacy Act,
any action may be properly dismissed for lack of subject-matter
jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule
12(b)(6). See id. at 245. In sum, if the court holds that the White
House does not qualify as an "agency" under the statute, the plaintiff
would not be entitled to the relief he seeks.
In its motion, the defendant argues that the Privacy Act applies only
to "agencies" because the statute's plain language adopts the definition
of "agency" laid out in the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552. See Def.'s Mot. at 4. The defendant maintains that
the court should accept its syllogism. First, the defendant notes that
the Supreme Court has interpreted the term "agency" in the FOIA to
exclude those components of the EOP whose sole function is to advise and
assist the president. See Def.'s Mot. at 4 (citing Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980)).
Second, Congress specifically provided that the term "agency" in the
Privacy Act "means agency as defined in § 552(e) of [the FOIA]."*fn2
See 5 U.S.C. § 552a(a)(1). Therefore, the defendant argues, "it
follows that those components of the EOP whose sole function is to advise
and assist the president, including those components of the EOP at issue
in this case, also are not `agencies' for purposes of the Privacy
Act. . . ." Def.'s Mot. at 4. Accordingly, the defendant asserts that
the court lacks jurisdiction to hear the plaintiff's Privacy Act claims.
In contrast, the plaintiff relies on the fact that section 552(f)
specifically includes the EOP. See 5 U.S.C. § 552(f); Pl.'s Opp'n at
6. Thus, the plaintiff argues that the defendant is avoiding the express
language of the statute by claiming that the
Privacy Act does not apply
to the EOP. See Pl.'s Opp'n at 6. Furthermore, he insists that although
the Privacy Act states that it derives its definition of the term
"agency" from the FOIA, because the objectives of the FOIA are different
from the objectives of the Privacy Act, the court should read the term
"agency" differently in the two statutes. See Pl.'s Opp'n at 7-15.
The defendant has a much stronger argument. Quite simply, the
plaintiff's claim that Congress intended the term "agency" to have
different meanings in the FOIA and in the Privacy Act — which was
enacted within two months of the 1974 amendments to the FOIA at issue
here — is not plausible. This is particularly true since the plain
language of the Privacy Act provides that the term "agency" in the act
"means agency as defined in section 552(e) of [the Freedom of Information
Act . . .]." See 5 U.S.C. § 552a(a)(1).
Moreover, the Supreme Court has interpreted the term "agency" in the
Freedom of Information Act to not include those components of the EOP
whose sole function is to advise and assist the president:
The FOIA does render the "Executive Office of the
President" an agency subject to the Act.
5 U.S.C. § 552(e). The legislative history is
unambiguous, however, in explaining that the
"Executive Office" does not include the Office of the
President. The Conference Report for the 1974 FOIA
amendments indicates that "the President's immediate
personal staff or units in the Executive Office whose
sole function is to advise and assist the President"
are not included within the term "agency" under the
Kissinger, 445 U.S. at 156 (citing H.R. Conf. Rep. No. 93-1380, p. 15
(1974)). The defendant argues persuasively that because the FOIA's
legislative history is so clear, and because of the close temporal
connection between the 1974 FOIA amendments and the Privacy Act, those
components of the EOP whose sole function is to advise and assist the
president also are not "agencies." See Def.'s Mot. at 4. The court
agrees, and holds that the White House does not constitute an "agency"
for purposes of the Privacy Act.
In addition, while the court notes that it is not bound by the
decisions of its sister district courts, in this case, five of the six
federal district courts that have addressed this issue to date —
including four of the five judges within this court who have addressed
this issue — have reached the same conclusion as this court. See
Tripp v. Executive Office of the President, Dkt. No. 99cv2554 (EGS)
(D.D.C. April 5, 2001); Broaddrick v. Executive Office of the President,
Dkt. No. 99cv3381, slip op. at 5-8 (HHK) (D.D.C. March 16, 2001); Barr
v. Executive Office of the President, Dkt. No. 99cv1695, slip op. at 3-7
(JLG) (D.D.C. Aug. 9, 2000); Sculimbrene v. Reno, Dkt. No. 99cv2010, slip
op. at 6-18 (CKK) (D.D.C. Feb. 16 2001); Falwell v. Executive Office of
the President, 113 F. Supp.2d 967, 968-70 (W.D.Va. 2000); but see
Alexander v. FBI, 971 F. Supp. 603, 606-07 (RCL) (D.D.C. 1997). The
judges' nearly unanimous views on this issue underscore the strength of
the defendant's position.
The court concludes that it lacks jurisdiction to hear the plaintiff's
Privacy Act claims. Accordingly, the court grants the defendant's motion
for judgment on the pleadings.
For all these reasons, the court grants the defendant's motion for
judgment on the pleadings. An Order directing the parties in a fashion
consistent with this Memorandum Opinion is separately and
contemporaneously issued this ___ day of September, 2001.
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