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Peter B. v. Central Intelligence Agency

United States District Court, District of Columbia

March 30, 2016

PETER B., Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, MARGARET PEGGY LYONS, [1] DOES 1-10 and JOHN O. BRENNAN, Director, Central Intelligence Agency, Defendants.

LAW OFFICES OF MARK S. ZAID, P.C.MARK S. ZAID, ESQ. BRADLEY P. MOSS, ESQ. Attorneys for Plaintiff

UNITED STATES DEPARTMENT OF JUSTICE MARCIA KAY SOWLES, ESQ. Attorneys for Defendants

MEMORANDUM-DECISION AND ORDER

Frederick J. Scullin, Jr. Senior United States District Judge.

I. INTRODUCTION

Pending before the Court are Defendant Central Intelligence Agency's ("CIA") motion for summary judgment[2] and Plaintiff's response thereto, which includes a motion for additional discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.

II. BACKGROUND

A. Factual background[3]

Defendant CIA hired Plaintiff as a covert contract employee on January 22, 1992, for a two-year term. See Declaration of Angela Pierson ("Pierson Decl.") at ¶ 4. The contract provided that Defendant CIA could extend it for additional periods. See Id . at Attachment 1. Defendant CIA extended the contract for a series of consecutive periods through October 4, 2002. See Id . at ¶ 5. On that date, the contract expired and was not extended. See Id . Defendant CIA informed Plaintiff that the reason that his employment had ended was due to the expiration of his contract. See Id . at ¶ 8. Plaintiff signed a document acknowledging that he understood that his contract had expired. See Id . at Attachment 2.

As a covert contract employee, Plaintiff's affiliation with Defendant CIA was and remains classified. See Id . at ¶ 10. Therefore, Plaintiff is not permitted to reveal his relationship to the CIA or that he had a national security clearance with the CIA to a potential employer. See Id . If he were to do so, he would violate the terms of his secrecy agreement. See id.

It is Defendant CIA's policy to respond to requests for employment verification only if those requests are in writing. See Id . Any inquiry directed to Defendant CIA by any government contractor regarding Plaintiff would have resulted in a denial that Plaintiff had any affiliation with Defendant CIA. See Id . If such an inquiry had occurred in Plaintiff's case, it would have been considered a potential security violation. See Id . Such an inquiry would have been recorded and, most likely, investigated. See Id . There is no record of any such inquiry. See id.

If it were necessary for some reason for Plaintiff to reveal his relationship to Defendant CIA, he could have prearranged to have Defendant CIA confirm his affiliation to a cleared outside contact. See Id . at ¶ 13. However, if Plaintiff had made such a request, there would have been a record of it; and Defendant CIA has no record of any such request or approval for such a disclosure. See Id . Even if Defendant CIA had approved such an arrangement with a cleared contact, the only information that Defendant CIA would have shared would have been salary information, service computation date and other general employment data. See Id . at ¶ 14. Defendant CIA's policy prohibits sharing any other information that might be contained in an employee's personnel file. See Id . Likewise, Defendant CIA does not provide prospective employers access to an employee's personnel records. See id.

Defendant CIA asserts that an outside entity providing cover for Plaintiff may receive inquiries for employment verification, see Id . at 15; but Defendant CIA does not maintain records of such inquiries because they go to the outside entities, see Id . However, if a prospective employer had contacted the cover provider, the cover provider would not have had access to a covert contract CIA employee's personnel file and would not have had access to any alleged negative information that may have been contained therein. See id.

At the time that his contract expired, Plaintiff held a Top Secret/Sensitive Compartment Information ("SCI") security clearance. See Declaration of William Milbourn, Jr. ("Milbourn Decl."), at ¶ 7. That security clearance lapsed as a matter of law when Plaintiff's employment with Defendant CIA ended. See Id . (citing Exec. Order No. 12968, § 2.1(b)(4) ("access to classified information shall be terminated when an employee no longer has need for access")). "Access eligibility" for a former employee can be reapproved or "crossed-over" for up to a period of two years if certain conditions are met. See Exec. Order No. 12968, § 3.3(d). A former employee would be eligible for such "cross-over" if he were

determined to be eligible based on a favorable adjudication of an investigation completed within the prior 5 years and . . . [had] been retired or otherwise separated from the United States Government employment for not more than two years; provided there is no indication that the individual may no longer satisfy the standards of this order, the individual certifies in writing that there has been no change in the relevant information provided by the individual for the last background investigation, and an appropriate record check reveals no unfavorable information.

See id.

Plaintiff's last investigation was completed in November 1998. See Milbourn Decl. at ¶ 10. Thus, under the Executive Order, his security clearance could only have been reapproved and "crossed-over" to another agency until November 2003. See Id . After that date, Plaintiff, like any other former employee whose "reapproval" period had expired, would have been required to apply for a new security clearance with his employer as his sponsor. See id.

Although Plaintiff was not authorized to reveal his relationship with Defendant CIA to a government contractor, there are procedures available by which a covert employee can request and receive authorization from the Defendant CIA component that sponsored his security clearance to arrange to have his security clearance crossed-over to another agency. See Id . at ¶ 15; Pierson Decl. at ¶ 13. Defendant CIA has no record of ...


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