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M.K. v. TENET

December 3, 2001

M.K. ET AL., PLAINTIFFS,
V.
GEORGE TENET, DIRECTOR, CENTRAL INTELLIGENCE AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Urbina, District Judge.

  MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION FOR RECONSIDERATION

I. INTRODUCTION

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.

II. BACKGROUND

A. Factual Background

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").

B. Procedural History

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 reconsideration.

III. ANALYSIS

A. Legal Standard for Review of ...


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