The opinion of the court was delivered by: Urbina, District Judge.
GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION
Eight employees of the United States Central Intelligence
Agency brought this as-yet-uncertified class action against that
agency, that agency's director, George Tenet, and 30 unnamed
"John and Jane Does" (collectively "the CIA"). In a four-count
amended complaint, the plaintiffs allege that the CIA violated
the Privacy Act of 1974, 5 U.S.C. § 552a, and their
constitutional rights to "liberty, due process, access to the
courts and to receive effective assistance of counsel under the
First, Fourth, Fifth and Sixth Amendments" of the Constitution.
Before the court is the defendants' motion for reconsideration,
pursuant to Federal Rule of Civil Procedure 54(b), of this
court's order granting in part and denying in part the
defendants' motion to dismiss, filed on March 23, 2000. After
consideration of the parties' submissions and the relevant law,
the court will not dismiss the plaintiffs' claims alleging a
violation of the Privacy Act since those claims are not
conclusively time barred by the applicable statute of
limitations. The court will dismiss the plaintiffs' due
process claim for failure to plead a cognizable claim.
Accordingly, the court will grant in part and deny in part the
defendants' motion for reconsideration.
By way of background, on October 13, 1999, plaintiffs M.K. and
Evelyn M. Conway filed the complaint initiating the present
action. On April 12, 1999, the plaintiffs filed an amended
complaint adding M.D.E., R.B., Grace Tilden, Vivian Green, and
George D. Mitford as plaintiffs.*fn1 By order dated August 4,
1999, the court approved the voluntary dismissal without
prejudice of plaintiff Vivian Green's claims. By order dated
March 3, 2000, the court approved the voluntary dismissal
without prejudice of plaintiff M.D.E.'s claims. Accordingly,
plaintiffs M.K, Evelyn M. Conway, R.B., Grace Tilden, and George
D. Mitford remain as plaintiffs in this action.
The plaintiffs claim that the defendants have "willfully and
intentionally failed to maintain accurate, timely and complete
records pertaining to the plaintiffs in their personnel,
security and medical files so as to ensure fairness to [the]
plaintiffs and therefore have failed to comply with
5 U.S.C. § 552a(e)(5) [the Privacy Act]." See Am. Compl. ¶ 116. The
following are the plaintiffs' factual allegations relating to
the inaccuracy of the records in question.
Plaintiff M.K. complains of a letter of reprimand placed in
her personnel file in April 1997, which concerns her
responsibility for the loss of top-secret information contained
on laptop computers sold at an auction. See id. ¶¶ 15, 116a.
Plaintiff Conway complains of a finding by the CIA Human
Resources Staff/Personnel Evaluation Board concerning her
ineligibility for foreign assignment. See id. ¶¶ 23, 116b.
Plaintiff Conway avers that the CIA notified her of this finding
in March 1997. See id. ¶ 23.
Plaintiff C.T. complains of a Board of Inquiry determination
that she was not qualified for the position she held with the
CIA. See id. ¶¶ 67, 116e. This Board of Inquiry convened after
"early 1998." See id. ¶¶ 66-67. Plaintiff Mitford complains of
receiving two negative Performance Appraisal Reports ("PARs")
and two negative "spot reports" on unspecified dates in 1997,
allegedly based on false information See id. ¶¶ 81, 116g.
Plaintiff R.B. complains of inaccurate counter-intelligence
("CI") and polygraph information contained in his file. See
id. ¶ 116f. Plaintiff R.B.'s last polygraph exam took place in
February 1996. See id. ¶ 76. The court notes that plaintiff
Tilden makes no allegations relating to count IV of the amended
complaint ("Violation of the Privacy Act").
By way of procedural history in the case, on March 24, 1999,
the defendants filed a motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1), (2), (3), and (6). The
plaintiffs responded to the defendants' motion to dismiss on
August 18, 1999, and the defendants filed their reply on
September 17, 1999. On March 23, 2000, this court issued a
Memorandum Opinion and supplemental order granting in part and
denying in part the defendants' motion to dismiss. On April 20,
2001, the defendants filed a motion for reconsideration of that
order, pursuant to Federal Rule of Civil Procedure 54(b),
seeking to dismiss the plaintiffs' remaining due process and
Privacy Act claims. For the reasons that follow, the court
grants in part and denies in part the defendants' motion for
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