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Ames v. United States Department of Homeland Security

United States District Court, D. Columbia.

January 27, 2016

HARRIET A. AMES, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants

          For HARRIETT A. AMES, Plaintiff: Katherine Atkinson Dave, LEAD ATTORNEY, LAW OFFICES OF GARY M. GILBERT AND ASSOCIATES, P.C., Silver Spring, MD; Joseph D. Gebhardt, The Law Offices of Gary M. Gilbert & Associates, P.C., Silver Spring, MD; Phillip Robert Kete, LAW OFFICE OF PHILLIP ROBERT KETE, Chesapeake Beach, MD.

         For UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF DEFENSE, Defendants: John G. Interrante, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Patricia K. McBride, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE DC, Civil Division, Washington, DC; Stephanie Nicole Liaw, U.S. ATTORNEY'S OFFICE, Washington, DC.

         MEMORANDUM OPINION

         ELLEN SEGAL HUVELLE, United States District Judge.

         Plaintiff Harriet A. Ames brings this action alleging that the United States Department of Homeland Security (" DHS" ) and the United States Department of Defense violated her rights under the Privacy Act, 5 U.S.C. § 552a, by unlawfully disclosing DHS's investigative report on plaintiff's past misconduct to her subsequent employer, the National Geospatial-Intelligence Agency (" NGA" ). (Compl. ¶ 1, May 2, 2013 [ECF 1].) Before the Court is defendants' Motion for Summary Judgment. (Defs' Mot., July 2, 2015 [ECF 49].) As explained herein, defendants' motion will be granted.

         BACKGROUND

         In October 2008, plaintiff began working for the Federal Emergency Management Agency (" FEMA" ) of DHS as a GS-13 personnel security specialist. In September 2009, plaintiff was selected to be Acting Branch Chief of the Personnel Security Branch. She was subsequently promoted to Branch Chief (GS-14) in October 2010. The Personnel Security Branch is responsible for conducting suitability and national security checks for permanent full-time employees, On-Call Response Employees, Disaster Assistant Employees, contractors, affiliates, and interns at FEMA. As Branch Chief, plaintiff was personally responsible for adjudicating and granting high level security clearances, including Top Secret with Sensitive Compartmented Information access.

         On August 1, 2011, Senior Special Agent K.C. Yi of the DHS Office of Inspector General (" DHS OIG" ) interviewed plaintiff as part of an active investigation of FEMA's Chief Security Officer and plaintiff's supervisor, Burt Thomas. The investigation of Mr. Thomas determined that he appeared to have engaged in a conflict of interest when he hired Gary Walker and James Bland as supervisory fraud investigators while Walker and Bland were the owners of a FEMA vendor, and that Mr. Thomas provided false statements to DHS OIG regarding his knowledge of their criminal histories.

         Agent Yi subsequently initiated and conducted a separate investigation of plaintiff. The investigation ultimately determined that she had also provided false statements to DHS OIG, and that she appeared to have violated security standards in favorably adjudicating security clearances for Walkers and Bland, both of whom had criminal records. Specifically, the investigation found that, at the time of her interview, plaintiff had detailed knowledge of Mr. Walker's past criminal conviction--information which was material to the OIG's investigation--but denied knowing anything about it. The inquiry additionally determined that plaintiff may have provided false information or lacked candor when she had been previously interviewed by an Office of Personnel Management investigator as part of Mr. Bland's official background investigation for a security clearance--information which was considered material to the OPM investigation and was used to assist in determining Bland's suitability for FEMA employment. Finally, the investigation concluded that plaintiff failed to follow DHS policy and federal regulations when she approved national security clearances for both Walker and Bland.

         On February 15, 2012, DHS OIG presented the investigative findings to the U.S. Attorney's Office for the District of Columbia, which declined criminal prosecution in favor of administrative remedies. On February 16, 2012, DHS OIG conducted a second interview with plaintiff and gave her formal notice that she was the subject of an investigation. During the interview, plaintiff admitted in a sworn statement that she had granted interim Secret security clearances regardless of whether positions were designated Special Sensitive, in violation of DHS and Director of National Intelligence regulations, guidelines, and policies. (Defs' Mot., Ex. 3F, Plaintiff's February 16, 2012 Sworn Statement, at 8.)

         The same day, February 16, 2012, plaintiff submitted her two-week notice of resignation from FEMA, which took effect on February 24, 2012. Two days later, plaintiff started working as the Division Chief of Personnel Security (GS-15) at NGA, another agency in the government intelligence community, which is located within the Department of Defense.

         On May 31, 2012, DHS OIG issued its Report of Investigation. (Defs' Mot., Ex. 3, DHS OIG Report of Investigation (" Report" ).) When Agent Yi learned that plaintiff had accepted the position at NGA, he became concerned that plaintiff posed a national security risk, in view of DHS OIG's conclusion that she had provided false information to investigators and violated various national security regulations. ( See Report at 6 (citing violations of 5 C.F.R. § § 732.202(a)(2)(i) (waivers and exceptions to investigative requirements), 731.104(b)(2) (appointments subject to investigation), and 731.202 (suitability standards for security clearance and pre-employment checks).) On July 11, 2012, Agent Yi emailed his supervisor, Special Agent James Izzard, as well as Danielle Blue at the Personnel Security Division, and Kimberly Lew (Blue's supervisor) to discuss his concerns that plaintiff had " hopped" agencies before her clearance could be revoked. Agent Yi wrote:

One of the concerns that came up during the investigation is that federal employees can hop agencies knowing that their clearance was about to be revoked, and thus no action is taken once they leave that particular agency. The employee's new agency never finds out about the clearance issue because the revocation is not in the system. This occurred with Gary Walker when he left Department of Transportation OIG under threat of termination and his clearance was not revoked. FEMA-OCSO, in particular, Harriet Ames, used this as an excuse to grant him a TS clearance based on reciprocity.

(Defs' Mot. at 8) (quoting Agent Yi email).

         Ms. Lew responded that the Personnel Security Division had taken no actions prior to plaintiff's departure from FEMA, although her office " would have initiated a security clearance action," and recommended that " since this information may have a bearing on Ms. Ames['s] employment," that the DHS OIG office " would forward/share this with the OIG of the agency in which she is now employed." (Defs' Mot. at 8-9.)

         On July 13, 2012, Agent Yi contacted his counterpart in the Office of Inspector General for NGA, Special Agent Heather K. Alexander, and disclosed the contents of the Report by telephone. He also mentioned that DHS OIG would provide a copy of the Report upon receipt of a formal request. On July 13, 2012, NGA formally requested the Report. Agent Yi forwarded NGA's request to Richard Doery, Assistant Counsel for the DHS OIG Office of Counsel, and Special Agent Izzard to review any possible privacy law concerns related to disclosure of the Report. On July 17, 2012, NGA initiated its own investigation into whether plaintiff had made false statements. On July 18, 2012, Agent Yi emailed Investigator Alexander to explain that DHS OIG Office of Counsel's review would delay official disclosure of the Report.

         On August 30, 2012, Agent Yi sent the Report to NGA in a series of four emails. NGA subsequently terminated plaintiff's employment. On May 2, 2013, plaintiff initiated this action alleging that defendants violated her rights under the Privacy Act. Defendants moved for summary judgment on July 2, 2015. Plaintiff filed her Opposition to defendants' Motion for Summary Judgment on September 24, 2015. (Pl's Opp'n, September 24, 2015 [ECF 67].) Defendants filed their Reply on November 10, 2015. (Defs' Reply, Nov. 10, 2015 [ECF 74].)

         ANALYSIS

         I. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 56, a motion for summary judgment shall be granted if the pleadings, discovery, and any affidavits show that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " A genuine issue of material fact exists if the evidence, viewed in a light most favorable to the nonmoving party, could support a reasonable jury's verdict for the non-moving party." Brooks v. Grundmann, 748 F.3d 1273, 1276, 409 U.S.App.D.C. 299 (D.C. Cir. 2014) (quoting Hampton v. Vilsack, 685 F.3d 1096, 1099, 401 U.S.App.D.C. 472 (D.C. Cir. 2012)) (internal citation marks omitted). To defeat a summary judgment motion, however, " the non-movant must do more than simply show that there is some metaphysical doubt as to the material facts; [i]f the evidence is merely colorable, or is not significantly probative, ...


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