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M.K. v. Tenet

July 30, 2002

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



The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge

Document Nos. 51, 59, 65

MEMORANDUM OPINION

GRANTING THE PLAINTIFFS' MOTION TO AMEND THE COMPLAINT; DENYING THE DEFENDANTS' MOTION TO SEVER

I. INTRODUCTION

Employees of the United States Central Intelligence Agency ("CIA") 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 defendants"). In a four-count amended complaint, six plaintiffs allege that the CIA violated the Privacy Act of 1974, as amended, 5 U.S.C. § 552a ("Privacy Act"), and several of their constitutional rights. In a proposed second amended complaint, which is a subject of this memorandum opinion, 15 plaintiffs altogether *fn1 allege that the CIA obstructs the plaintiffs' efforts to obtain assistance of counsel, thereby causing an invasion of privacy among other alleged violations of the Constitution. Additionally, the proposed second amended complaint states that beginning in 1997, the defendants' policy and practice associated with the alleged obstruction of counsel violates the Privacy Act. Furthermore, the plaintiffs claim that the defendants' alleged practice of obstruction of counsel violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq ("Title VII"). Before the court is the plaintiffs' motion to amend the complaint with their proposed second amended complaint pursuant to Federal Rule of Civil Procedure 15, and the defendants' motion to sever the claims of the six existing plaintiffs pursuant to Federal Rule of Civil Procedure 21. After consideration of the parties' submissions and the relevant law, the court grants the plaintiffs' motion to amend the complaint and denies the defendants' motion to sever.

II. BACKGROUND

A. Factual Background

On January 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. *fn2 By order dated August 4, 1999, the court approved the voluntary dismissal without prejudice of plaintiff Green's claims. Order dated August 4, 1999. By order dated March 3, 2000, the court approved the voluntary dismissal without prejudice of plaintiff M.D.E.'s claims. Order dated March 3, 2000. On November 30, 2001, the plaintiffs filed a proposed second amended complaint adding J.T., J.B., C.B., P.C., P.C.1., C. Lynn, Nathan (P), Elaine Livingston (P), and Betty E. Yales (P) as nine new plaintiffs. *fn3 Second Am. Compl. ("2d Am. Compl.") at 2 n.2. The court identifies the six existing plaintiffs as M.K., Conway, Tilden, R.B., C.T., and Mitford. Beginning in 1997 and continuing to the present, the plaintiffs claim that the defendants' acts and omissions in denying the plaintiffs access to effective assistance of counsel violate the plaintiffs' rights under the First, Fourth, Fifth, and Ninth Amendments of the United States Constitution, the Privacy Act, and Title VII. 2d Am. Compl. ¶¶ 2-5, 444. Specifically, the nine new plaintiffs, in addition to the six existing plaintiffs, allege in the second amended complaint that the defendants' September 4, 1998 notice entitled "Access to Agency Facilities, Information, and Personnel by Private Attorneys and Other Personal Representatives" deprives the plaintiffs' counsel access to "official information" pertaining to the plaintiffs' employment matters. Id. ¶ 23. The defendants' invocation of the September 4, 1998 notice has allegedly resulted in a denial of the plaintiffs' access to CIA documents, policies, procedures, and regulations, thereby preventing counsel from effectively advising the plaintiffs of their rights. Id. 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, thus failing to comply with 5 U.S.C. § 552a(e)(5) [of the Privacy Act]." Am. Compl. ¶ 116. What follows are the six existing 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. Id. ¶¶ 15, 116a. Plaintiff Conway complains of a finding by the CIA Human Resources Staff or Personnel Evaluation Board concerning her ineligibility for foreign assignment. Id. ¶¶ 23, 116b. Plaintiff Conway additionally avers that the CIA notified her of this finding in March 1997. 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. Id. ¶¶ 67, 116e. This Board of Inquiry convened after "early 1998." Id. ¶¶ 66-67. Plaintiff Mitford complains of receiving two negative Performance Appraisal Reports and two negative "spot reports" on unspecified dates in 1997, allegedly based on false information. Id. ¶¶ 81, 116g. Plaintiff R.B. complains of inaccurate counter-intelligence and polygraph information contained in his file. Id. ¶ 116f. Plaintiff R.B.'s last polygraph exam took place in February 1996. Id. ¶ 76. Plaintiff Tilden makes no allegations relating to Count IV of the amended complaint ("Violation of the Privacy Act").

B. Procedural History

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). 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. M.K. v. Tenet, 99 F. Supp. 2d 12 (D.D.C. 2000); Order dated Mar. 23, 2000. On April 20, 2001, the defendants filed a "motion for reconsideration" of that ruling pursuant to Federal Rule of Civil Procedure 54(b), seeking to dismiss the plaintiffs' remaining due process and Privacy Act claims. On November 30, 2001, the plaintiffs filed a motion for leave to file the second amended complaint along with the proposed second amended complaint. On December 3, 2001, this court issued a Memorandum Opinion and supplemental order granting in part and denying in part the defendants' motion for reconsideration under Rule 54(b). M.K. v. Tenet, 196 F. Supp. 2d 8 (D.D.C. 2001); Order dated Dec. 3, 2001. On December 4, 2001, this court set out the parties' filing deadlines in its "Initial Scheduling and Procedures Order." Order dated Dec. 4, 2001. On January 2, 2002, the defendants filed their instant motion to sever the claims of the six existing plaintiffs pursuant to Federal Rule of Civil Procedure 21. On March 6, 2002, the plaintiffs filed a certificate of notification informing the CIA and the court of the 30 Doe defendants' identities. For the reasons that follow, the court grants the plaintiffs' motion to amend the complaint and denies the defendants' motion to sever.

III. ANALYSIS

A. Legal Standard for a Motion to Amend

Federal Rule of Civil Procedure 15(a) provides that a "party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . ." FED. R. CIV. P. 15(a). Once a responsive pleading is filed, "a party may amend the party's pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962). The D.C. Circuit has held that for a trial court to deny leave to amend is an abuse of discretion unless the court provides a sufficiently compelling reason, such as "undue delay, bad faith, or dilatory motive[,] . . . repeated failure to cure deficiencies by [previous] amendments [or] futility of amendment." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Foman, 371 U.S. at 182). The court may also deny leave to amend the complaint if it would cause undue prejudice to the opposing party. Foman, 371 U.S. at 182. In sum, a district court has wide discretion in granting leave to amend the complaint.

A court may deny a motion to amend the complaint as futile when the proposed complaint would not survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (internal citations omitted). When a court denies a motion to amend a complaint, the court must base its ruling on a valid ground and provide an explanation. Id. "An amendment is futile if it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ...


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