The opinion of the court was delivered by: Jack D. Shanstrom Senior U.S. District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Adam Ciralsky, brought this action against Defendants, various individuals and Plaintiff's former employer, the Central Intelligence Agency ("CIA", or the "Agency"), for the following causes of action: (1) discrimination and retaliation under Title VII of the Civil Rights Act; (2) breach of employment contract; (3) improper disclosure and improper stewardship of federal agency records under the Privacy Act and (4) constitutional torts via a Bivens action. Pending before the Court is Defendants' Motion to Dismiss, for Judgment on the Pleadings, or for Summary Judgment as to Claims I -- XVI and XIX -- XX in response to Plaintiff's suit containing twenty claims against eleven parties.*fn1 Also pending is Plaintiff's cross-motion for discovery.
Plaintiff, a Jewish male, was employed at CIA Headquarters in Langley, Virginia, through the CIA Legal Honors Program under a two-year contract starting December 2, 1996. His position as an Attorney Advisor in the Agency's Office of General Counsel ("OGC") required a "top secret" security clearance. Plaintiff had previously obtained the requisite clearance pursuant to his prior employment with the Department of Defense.
Shortly after he began working at the CIA, the Agency initiated a reinvestigation of Plaintiff's security clearance, administering a series of polygraph examinations and interviews to evaluate his fitness. On August 19, 1997, Plaintiff failed a polygraph examination. In the month following this polygraph session, various CIA employees interviewed Plaintiff on four separate occasions. At one of these interviews on September 11, 1997, Plaintiff was given a laptop computer and told to use it to document and explain issues arising out of the failed polygraph session of August 19, 1997. Plaintiff returned this laptop to the CIA on September 29, 1997. The veracity of Plaintiff's declarations in these interviews was tested through another polygraph examination on October 3, 1997.
As this reinvestigation unfolded, Plaintiff approached officials in the CIA's Office of Equal Employment Opportunity ("OEEO") to complain that he was being subjected to discriminatory treatment based on his religion. In August 1997, he expressed that belief to Defendant Anne Fischer, at that time the Legal Advisor and the Chief of the Complaints Staff at the OEEO, in a meeting at her office. On October 20, 1997, Plaintiff again raised his concerns with Defendant Kathleen McGinn, Fischer's successor at the OEEO.
Following the reinvestigation, the CIA advanced the process of revoking Plaintiff's security clearance. On October 20, 1997, the CIA placed Plaintiff on administrative leave and informed him that an employee review panel ("ERP") would reconsider his access to classified information. After Plaintiff submitted a memorandum defending himself, the ERP met on or about November 21, 1997, and recommended that the CIA revoke Plaintiff's security clearance and terminate his employment. After reviewing two additional memoranda submitted by Plaintiff in response to certain damaging information, the ERP maintained its initial recommendation when it reconsidered the matter on March 6, 1998. Records of both ERP meetings describe the panel's concern to be Plaintiff's failure to disclose information about and lack of candor regarding several contacts that were or may have been involved in the Israeli security establishment. See Pl.'s Mot. for Disc. Attach. 1 and 2 (official summaries of ERP meetings).
Accordingly, CIA official Alan Wade revoked Plaintiff's security clearance on July 2, 1998. Four days later, the CIA provided Plaintiff with a copy of the written explanation for this decision (the "Wade Memorandum") as well as a copy, containing redactions, of the investigative file upon which the decision was made. On July 17, 1998, Plaintiff sent a letter to the CIA seeking further relevant information under the Freedom of Information Act and the Privacy Act.
Following his security clearance revocation, Plaintiff exercised further appeals to the responsible CIA official, Alan Wade, and a separate CIA appeals panel. While these appeals were pending and Plaintiff remained suspended from duty, the CIA twice extended his employment contract, but placed him on non-pay status effective March 1, 1999. At the time, Plaintiff had achieved at least the GS-11, step 1 salary of $37,094 per annum. Wade and the CIA appeals panel continued deliberating during this period, with both deciding to uphold revocation of Plaintiff's security clearance. The CIA finally terminated Plaintiff's employment on December 13, 1999.
These events and Plaintiff's allegations stirred much controversy. Beginning in June 1998, several major media outlets reported on the situation, with Plaintiff and his then-attorney often being interviewed. At one point, the Wade Memorandum was leaked to a Washington Post reporter. In addition, the CIA took two noteworthy actions in responding to Plaintiff's allegations of anti-Semitism. First, in June 1998 the CIA established a panel of five private citizens (the "Jacobs Panel") to probe certain CIA security clearance decisions, including Plaintiff's, and examine whether the Agency indeed had engaged in anti-Semitism. Second, Defendant George Tenet, at the time Director of Central Intelligence, wrote to the President of the United States officially to express the CIA's intolerance towards discrimination and inform him that while the Jacobs Panel found no anti-Semitism, it did identify instances of insensitivity that would be addressed through sensitivity training.
This case has already run a lengthy procedural gauntlet. Plaintiff filed his initial Complaint in this matter on July 19, 2000. On February 27, 2001, this Court granted Defendants' motion to strike the complaint, with leave to amend, for failure to provide "a short and plain statement of the claim" under Fed. R. Civ. P. 8(a). The Court again struck down Plaintiff's amended complaint on December 28, 2001, for continued failure to comply with Rule 8(a), dismissing it without prejudice. Plaintiff's request for leave to further amend his complaint was denied on August 30, 2002. On appeal, the Court of Appeals held that the Court had not abused its discretion, but remanded the case to the Court to review whether Plaintiff should be permitted to amend in light of circumstances of which it had been unaware pertaining to statutes of limitations. Ciralsky v. CIA, 355 F.3d 661 (D.C. Cir. 2004). The Court subsequently allowed Plaintiff to file his Second Amended Complaint and deemed it filed on June 9, 2004. Defendants filed their pending motion on August 23, 2004.
For purposes of adjudicating these motions, Plaintiff's claims break down into five analytic categories, with Defendants offering various defenses:
1. Discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. (Claims VII and VIII).
2. Breach of Plaintiff's employment contract by the CIA (Claim XIX).
3. Improper disclosure of three records in violation of Section (b) of the Privacy Act, 5 U.S.C. § 552a (Claim IX).
4. Various improprieties in the stewardship of federal agency records under Section (e) of the Privacy Act (Claims X -- XVI).
5. Constitutional torts (under Bivens v. Six Unnamed Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)), conspiracy to violate civil rights under 42 U.S.C. §§ 1985-1986, and unlawful surveillance under the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. §§ 1801, et seq. (Claims I -- VI and XX).
Defendants present their motion as a motion to dismiss, for judgment on the pleadings, or in the alternative for summary judgment. As discussed in greater detail below, Defendants' motion states arguments variously under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(3) for improper venue, and 56 for summary judgment.
In response, Plaintiff moves for discovery under Rule 56(f), as the parties have not yet had discovery. In responding to a motion for summary judgment, if the nonmoving party "cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court . . . may order . . . discovery to be had . . . ." Fed. R. Civ. P. 56(f). Essentially, 56(f) allows the Court to delay or deny a motion for summary judgment as premature on the grounds that more discovery is necessary to rule on that motion. See Londrigan v. FBI, 670 F.2d 1164, 1175 (D.C. Cir. 1981).
The Court will first consider Defendants' Rule 12(b)(1), 12(b)(2), and 12(b)(3) motions before reaching the parties' Rule 56 motions in the alternative. This is because "a federal court must establish its jurisdiction to hear a case before adjudicating its merits." Marra v. Papandreou, 216 F.3d 1119, 1122 (D.C. Cir. 2000) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)). The Court exercises its own discretion in choosing the order in which it addresses the Rule 12(b)(1), 12(b)(2), and 12(b)(3) motions. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999) ("It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits.").
To the extent the Parties submit matters outside the pleadings in support of their claims, those claims shall be adjudicated as a Rule 56 motion for summary judgment. Fed.R.Civ.P. 12(b). Summary Judgment is appropriate when the pleadings and evidence before the court demonstrate "that there is no genuine issue as to any material fact and that the moving party ie entitled to a judgment as a matter of law." Fed.R.Civ.P. 56( c). When adjudicating a summary judgment motion, a court must draw "all justifiable inferences" in the non-moving party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and the "factual allegations of the complaint must be taken as true." Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985). The court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc, 530 U.S. 133, 150 (2000). However, the non-moving party must establish more than "[t]he mere existence of a scintilla of evidence" in support of it position. Anderson, 477 U.S. at 252.
I. TITLE VII CLAIMS (CLAIMS VII AND VIII)
In his Title VII claims, Plaintiff alleges that the revocation of his security clearance and his termination were predicated on anti-Semitic profiling in which the CIA subjected him to unwarranted harassment, discriminatory treatment, retaliation, and intimidation. According to Plaintiff, the CIA suffers an institutional pattern of targeting Jews as a security risk based on a perception of divided loyalty between the United States of America and the State of Israel. Plaintiff asserts that the review of his security clearance and hearing of his appeals were a sham orchestrated by CIA officials who had pre-determined that Plaintiff was to be removed as a security threat based on his Jewish background. Plaintiff claims that FBI officials were also involved in this process. In Plaintiff's account, the polygraph tests were rigged and applicable disclosure requirements ignored so as to cook up an ostensible "lack of candor" as a pretext for firing him. Plaintiff alleges that this mistreatment resulted in him not only wrongfully losing his job at the CIA, but also being prevented from his scheduled rotation to a position on the National Security Council.
Moreover, Plaintiff alleges that CIA officials frustrated his attempts to pursue administrative recourse for employment discrimination. Rather than responding to his complaints to the OEEO and the Attorney General, Plaintiff states that the Agency retaliated by suspending him and revoking his clearance. Plaintiff also charges that the CIA made veiled threats to his personal safety and threatened to attempt to have him disbarred if he filed the instant suit.
Title VII prohibits the federal government from discriminating against its employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16(a). Additionally, the federal government may not retaliate against an individual who invokes Title VII rights. Forman v. Small, 271 F.3d 285, 297 (D.C. Cir. 2001) ("§ 2000e-16, in which Congress waived sovereign immunity for claims under Title VII, includes a claim for retaliation."). Plaintiff claims that the reinvestigation, revocation, and termination targeted him as a Jew and that he additionally suffered retaliation when he complained about this discrimination.
Defendants attack Plaintiff's Title VII claims on two grounds. First, Defendants contend that these claims are non-justiciable because they would force the Court to interfere with the CIA's protected discretion in its security clearance decisions. Second, Defendants assert that Plaintiff's Title VII claims are defective because he neglected the procedural prerequisite of reporting his grievance to an EEO Counselor to attempt administrative resolution.
A. Are the Title VII Claims Justiciable?
The controlling law in this Circuit is that "an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII." Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999).*fn2 See also Weber v. United States, 209 F.3d 756, 760 (D.C. Cir. 2000) ("[T]he general presumption of reviewability of agency action does not apply to security clearance decisions."). This rule follows from Dep't of the Navy v. Egan, 484 U.S. 518 (1988), where the Supreme Court expressed its reluctance to permit substantive judicial review of Executive Branch decisions on security clearances:
[T]he protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside non-expert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Id. at 529. Within the Title VII context, Ryan effectively shields a federal agency from judicial scrutiny of the security clearance process. In Ryan, this Circuit upheld the dismissal of a Title VII complaint against two federal agencies by dual Irish-American citizens who alleged that their offers of employment were withdrawn on the basis of national origin and citizenship. The agencies defended the rescinded offers, explaining that because the applicants had spent much time living abroad, it was impossible to investigate their backgrounds adequately and therefore the required security clearances could not be granted. Ryan, 168 F.3d at 521. Confronted with this explanation, the district court correctly concluded that it lacked jurisdiction to review the complaint because scrutiny of security clearance procedures inescapably compels a pronouncement on the validity of security clearance decisions.*fn3 Id. at 523-24.
Defendant argue that Ryan governs the instant case. According to Defendants, if the Court were to consider the merits of Plaintiff's Title VII claims, it would have to pass judgment on the merits of the CIA's decision to revoke Plaintiff's security clearance, which Ryan prohibits. Therefore, ...