United States District Court, D. Columbia.
HARRIET A. AMES, Plaintiff,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants
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.
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,
SEGAL HUVELLE, United States District Judge.
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.
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.
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
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.
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.)
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.
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).
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.)
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.
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].)
STANDARD OF REVIEW
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, ...