United States District Court, District of Columbia
D. BATES, UNITED STATES DISTRICT JUDGE
Matthew Richard Palmieri, a former contractor for the United
States, had his security clearance revoked following a
government investigation into his activities abroad. In
response, Palmieri brought a 30-count civil action against
various government agencies and officials, alleging
constitutional and statutory violations arising out of the
investigation, the subsequent administrative hearing, the
loss of his security clearance, and the government's
responses to his document requests. After two prior opinions
by this Court, just two counts remain. Summary judgment will
now be granted to the government on both.
remaining counts assert that the Office of Naval Intelligence
(ONI) and the Office of Personnel Management (OPM) have
denied him access to records that they are required to
disclose under the Freedom of Information and Privacy Acts.
See Am. Compl. [ECF No. 14] at 122-25 (count 23 as
to ONI); id. 133-36 (count 26 as to OPM). The Court
denied the agencies' earlier motion for summary judgment
because there were genuine questions of material fact as to
the adequacy of ONI's search for records and the basis
for several of OPM's redactions. See June 16,
2016, Mem. Op. [ECF No. 69] at 6-7, 15-17. Now that the
agencies have submitted supplemental declarations as required
by the Court, these open questions have been resolved.
now demonstrated beyond material doubt that it conducted an
adequate search for records responsive to Palmieri's
request. “The adequacy of an agency's search is
measured by a standard of reasonableness and is dependent
upon the circumstances of the case.” Weisberg v.
U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983) (internal quotation marks and citation omitted).
An agency must “demonstrate beyond material doubt that
its search was reasonably calculated to uncover all relevant
documents.” Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal
quotation marks omitted). “A reasonably detailed
affidavit, setting forth the search terms and the type of
search performed[, ] is necessary to afford a FOIA requester
an opportunity to challenge the adequacy of the search and to
allow the district court to determine if the search was
adequate in order to grant summary judgment.”
DeBrew v. Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015)
(internal quotation marks and alteration omitted).
supplemental declaration, which describes a new search of the
agency's records, satisfies this standard. The
declaration addresses the structure of the agency, Am. Decl.
of Jeana D. Watson [ECF No. 70-2] ¶ 2, how the agency
selected components to search, id. ¶ 5, and how
the search was conducted, including the search terms that
were used, id. ¶¶ 7-10. The declaration
also details efforts to locate a record of particular
interest to Palmieri: a “summer 2009 ‘post-travel
debriefing'” by Deborah Stickney. See id.
¶¶ 4(d), 5(c), 7 & 10; Pl.'s More Definite
Statement [ECF No. 54] at 1-2. In an attempt to locate such a
record, ONI reached out to Stickney, who is no longer
affiliated with the agency. See Am. Decl. of Jeana
D. Watson ¶ 10. Stickney believed that the agency would
be unlikely to have a record of her debriefing, because no
ONI file was created for Palmieri. Id.
memorandum opposing summary judgment has nothing to say about
ONI's search, even though that is the only issue still
pending before the Court as to the agency. Instead, Palmieri
returns to an old complaint: that Stickney violated the
Privacy Act when she created and disseminated a record
“concerning [his] activities guaranteed by the First
Amendment, ” notwithstanding the fact that ONI was
prohibited from collecting such information. See
Pl.'s Supp. Mem. Concerning Issues in Dispute [ECF No.
71] at 3-6. That allegation, completely distinct from the
record request at issue here, was the basis for the first
count of Palmieri's amended complaint. See Am.
Compl. at 42-45. But that count was dismissed almost two
years ago for lack of jurisdiction because its adjudication
“would require this Court to question discretionary
agency decisions regarding a security clearance
investigation, suspension, and revocation.” Nov. 3,
2014, Mem. Op. [ECF No. 51] at 10-11 & n.5 (citing
Dep't of Navy v. Egan, 484 U.S. 518 (1988)).
Palmieri has provided no reason why that count should be
resurrected now. Accordingly, summary judgment will be
granted as to ONI on Palmieri's sole remaining claim
related to ONI's search.
also entitled to summary judgment. OPM's prior motion
failed because the agency had not adequately justified
several redactions it made based on the Bank Secrecy Act and
on behalf of FinCEN, the Financial Crimes Enforcement
Network. See June 16, 2016, Mem. Op. at 15-17.
Rather than attempting to explain the redactions more fully,
OPM has elected to produce the disputed documents to Palmieri
in full. Decl. of Michelle L. Perry [ECF No. 70-1] ¶ 6.
Any controversy as to these documents is therefore moot.
See Boyd v. U.S. Dep't of Justice, 475 F.3d 381,
385 n.1 (D.C. Cir. 2007). And because only that controversy
stood between OPM and summary judgment, summary judgment for
OPM will now be granted.
again, Palmieri attempts to resist summary judgment by
raising arguments outside the scope of the present dispute.
First, he contends that OPM's recent production
demonstrates that other responsive documents are missing.
See Pl.'s Supp. Mem. Concerning Issues in
Dispute at 2-3. But the Court has already granted summary
judgment for OPM on the adequacy of its search and rejected
several iterations of Palmieri's “missing
records” argument. See June 16, 2016, Mem. Op.
at 14-15. Palmieri also contends that OPM has violated the
Bank Secrecy Act (BSA). According to Palmieri, information
collected under the BSA cannot be used in connection with
security clearance investigations. By obtaining and
disseminating such information in his case, Palmieri argues,
OPM violated that prohibition. See Pl.'s Mem.
Concerning Issues in Dispute at 1-2.
are several reasons to reject Palmieri's argument. The
first is that he did not allege any violations of the BSA in
his amended complaint. Although pro se plaintiffs
are sometimes permitted to amend their complaints through
subsequent briefing, see Richardson v. United
States, 193 F.3d 545, 548-49 (D.C. Cir. 1999), such
amendment is unwarranted here-at the tail end of a case where
Palmieri has filed and fully litigated a 30-count amended
complaint. In any event, Palmieri's BSA claim would fail
on the merits. Private parties do not have a cause of action
to enforce the BSA. See AmSouth Bank v. Dale, 386
F.3d 763, 777 (6th Cir. 2004); James v. Heritage Valley
Fed. Credit Union, 197 F. App'x 102, 106 (3d Cir.
2006) (nonprecedential); In re Agape Litig., 681
F.Supp.2d 352, 360 (E.D.N.Y. 2010). And Palmieri offers no
reason to believe that BSA information cannot be used in
security clearance investigations. The Act declares that BSA
information may be used in “regulatory investigations
or proceedings.” 31 U.S.C. § 5311. A security
clearance investigation surely fits within that category.
Cf. Egan, 484 U.S. at 529 (“[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.”). The BSA, therefore, provides no reason for the
Court to deny summary judgment to OPM.
the reasons stated above, the Court will grant summary
judgment for defendants on Palmieri's remaining FOIA and
Privacy Act claims against ONI and OPM. As those claims are
the only ones remaining in dispute ...