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Lamb v. Millennium Challenge Corp.

United States District Court, District of Columbia

January 6, 2017



          RANDOLPH D. MOSS United States District Judge

         This case is before the Court on plaintiff Jerry Lamb's third motion for leave to amend his complaint, Dkt. 41; his motions for summary judgment on all three counts of his amended complaint, Dkts. 21, 22; his motion seeking court-appointed counsel, Dkt. 27; and his motion for entry of a default judgment against defendant the Millennium Challenge Corporation (“MCC”) and to strike a declaration supporting the MCC's motion for summary judgment, Dkt. 43. MCC, in turn, moves for summary judgment on all three counts of Lamb's amended complaint, Dkt. 17, and defendant George Chiamulera moves to dismiss the claims brought against him, Dkt. 11. For the reasons explained below, Lamb's motion for leave to amend is granted in part and denied in part; his remaining motions are denied; Chiamulera's motion to dismiss is granted; and the MCC's motion for summary judgment is granted in part and denied in part.

         I. BACKGROUND

         The following facts are either alleged in the amended complaint, which is the currently operative pleading, or are subject to judicial notice. In November 2015, Lamb applied for a job as an “Acquisition Business Analyst” with Sawdey Solutions Services, Inc. (“Sawdey”). Dkt. 9 at 2, ¶ 6. Sawdey, in turn, served as a contractor for the MCC, id., a corporation established in the executive branch of the federal government, see 22 U.S.C. § 7703(a). The Secretary of State serves as chairperson of the Board of Directors of the MCC. Id. at § 7703(c)(5). Other members of the Board include the Secretary of the Treasury, the Administrator of the Agency for International Development, the MCC's Chief Executive Officer, the United States Trade Representative, and four other individuals appointed by the President with the advice and consent of the Senate. Id. § 7703(c)(3). The MCC is authorized to provide foreign assistance to countries that enter into a compact with the United States setting forth a plan for “achieving shared development objectives.” Id. § 7708(a). The MCC “may contract with individuals for personal services, who shall not be considered [f]ederal employees for any provision of law administered by the Office of Personnel Management.” Id. § 7713(a)(8).

         Lamb was offered a position with Sawdey to “augment[]” MCC employees as a “[p]ersonal [s]ervices [c]ontractor.” Dkt. 9 at 2, ¶ 6. That position, however, required “a favorable background check investigation.” Id. The MCC ordinarily conducts its own background investigations for applicants “for the office in question, ” but “in some instances [it] may request that the United States Department of State assist in the background investigations.” Id.

         Lamb successfully completed the required questionnaires and was cleared to begin work as an MCC personal services contractor on February 22, 2016. Id. at 2-3, ¶ 7. On or about March 8, 2016, however, an official at “MCC security” contacted Lamb and told him that George Chiamulera, an “independent contractor to the Office of Personnel Security & Suitability [in the] Bureau of Diplomatic Security [at the] U.S. Department of State, ” would interview him as part of his background investigation. Id. at 3, ¶ 8. The “background investigation” was “conducted in part by [the] MCC and in part by . . . George Chiamulera” and took place on March 11 and 13, 2016. Id. Upon completion of the investigation, Chiamulera forwarded the information he had gathered to the State Department's Office of Personnel Security & Suitability, which subsequently forwarded that information to the MCC on March 28, 2016. Id. at 3, ¶ 9 When Lamb arrived to work on the morning of April 18, 2016, MCC officials confiscated his government identification, removed him from the premises, and terminated his employment. Id. at 3, ¶ 10. At that time, no one offered Lamb any explanation for these events. Id. Lamb later asked a contact at Sawdey why he had been dismissed and was told that Sawdey had been “informed by someone at MCC that Mr. Lamb's security check came back unfavorable.” Id. Lamb, then, sent an email to the MCC on April 21, 2016, requesting “copies of all information maintained about himself” under both the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act, 5 U.S.C. § 552. Id. at 4, ¶ 14. The MCC responded by email that same day, assigning a request number to Lamb's FOIA request, but it did not separately acknowledge or address his request under the Privacy Act. Id. at 4, ¶ 15; see also Dkt. 1 at 12-13.

         Lamb filed suit on April 26, 2016, initially alleging that the MCC had violated his rights under the Privacy Act and FOIA by failing to provide the records he requested. See Dkt. 1. He amended his complaint as of right on May 26, 2016, adding George Chiamulera as a defendant and asserting three counts: In Count 1, Lamb alleges that the MCC violated the Privacy Act and FOIA by denying him access to records, Dkt. 9 at 4-5, ¶¶ 13-18; in Count 2, he alleges that Chiamulera violated the Privacy Act by disseminating “protected health information [and] inaccurate and defamatory information regarding” Lamb, without first securing his written authorization, id. at 5, ¶¶ 19-22; and, in Count 3, he alleges that Chiamulera violated the Privacy Act by “fail[ing] to make reasonable efforts to ensure that the information and records were accurate, complete, timely and relevant for agency purposes, ” id. at 5-6, ¶¶ 23-27.

         Since filing the amended complaint, Lamb has filed three motions seeking leave to file a second, third and fourth amended complaint. See Dkts. 26, 32, 41. The Court denied the first two of those motions as moot by minute order dated December 7, 2016. The Court now addresses Lamb's most recent motion for leave to amend, Dkt. 41; Chiamulera's motion to dismiss; Dkt. 11; Lamb's motions for summary judgment; Dkts. 21, 22; the MCC's motion for summary judgment; Dkt. 17; and Lamb's remaining motions; Dkts. 27, 43.

         II. ANALYSIS

         A. Pending Dispositive Motions

         Before turning to the adequacy of the claims that Lamb seeks to add, the Court starts with the pending dispositive motions: Chiamulera's motion to dismiss, the MCC's motion for summary judgment, and Lamb's cross-motions for summary judgment.

         1. Chimulera's Motion to Dismiss and Lamb's Cross-Motion for Summary Judgment

         The currently operative complaint contains three counts. The first count invokes both the Privacy Act and FOIA and alleges that the MCC failed to comply with its statutory obligations to provide Lamb with the records he requested. Dkt. 9 at 4-5, ¶¶ 13-18. The second and third counts both invoke the Privacy Act. Id. at 5-6, ¶¶ 19-27. According to the second count, Chiamulera disseminated Privacy Act-protected records without Lamb's authorization, id. at 5, ¶¶ 19-22, and, according the third count, he failed to take reasonable steps to ensure that Privacy Act records were “accurate, complete, timely and relevant for agency purposes, ” id. at 5-6, ¶¶ 23-27.

         As an initial matter, Chiamulera and Lamb dispute whether the first count, which seeks disclosure of agency records, is asserted against the MCC and Chiamulera or just the MCC. Compare Dkt. 11-2 at 3 with Dkt. 21 at 2. Given the allegations that Lamb submitted his request to the MCC and that the MCC lacked a “legal basis for the denial” of Lamb's request, Dkt. 9 at 4-5, ¶¶ 14, 18, Chiamulera has the better argument. But, even giving Lamb the benefit of the doubt as a pro se litigant, the Court concludes that none of the three claims can stand as asserted against Chiamulera. It is well-settled that “no cause of action exists that would entitle” a plaintiff to obtain relief from an individual “under the Privacy Act or FOIA.” Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per curiam). This conclusion follows from the indisputable premise that “[b]oth statutes concern the obligations of agencies as distinct from individual employees in those agencies.” Id. The Court will, accordingly, dismiss all claims currently pending against Chiamulera.

         Lamb also cross-moves for summary judgment against Chiamulera, arguing that Chiamulera should be “enjoin[ed] . . . from further deprivation of [the] requested records” and required to “expunge all records or information created, compiled, adjudicated or maintained by . . . Chiamulera that [are] inaccurate, illegal and/or derogatory to . . . Lamb.” Dkt. 21 at 2. For the same reason that Chiamulera is entitled to judgment in his favor, Lamb's cross-motion must fail. Both the Privacy Act and FOIA apply to agency records, see Martinez, 444 F.3d at 624, and only the agency has the authority or the ability to produce or correct those records.

         2. The MCC's Motion for Summary Judgment and Lamb's Cross-Motion

         The MCC asserts that it has disclosed all responsive records “with no redactions or withholdings, ” Dkt. 17 at 5, and that, as a result, Lamb's FOIA claim is moot, id. at 8-9. Although the MCC did not separately mention Lamb's Privacy Act claim seeking the disclosure of the same records in its motion for summary judgment, the same line of reasoning applies, and the MCC subsequently “clarifie[d]” that it intended to seek summary judgment on both claims. Dkt. 37 at 1 n.1. In response, Lamb disputes that he has now received all of the records he sought, and he cross-moves for summary judgment to the extent his amended complaint seeks disclosure of those records. Dkt. 22 at 9.

         FOIA requires that an agency conduct an adequate search for responsive records. “An agency fulfills [this] obligation[ ] . . . if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). “In certain circumstances, ” however, “a court may place significant weight on the fact that a records search failed to turn up a particular document in analyzing the adequacy of a records search.” Id. The Court may consider, for example, the fact that “the Department ignored indications in documents found in its initial search that there were additional responsive documents elsewhere, ” id. (citing Campbell v. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1996)), or evidence that “at the time [it] search[ed] its files there was reason to believe that [a particular document] was in those files, ” id. Ultimately, the question is whether the agency's affidavits are adequate, and not whether the agency failed to locate a document that the plaintiff speculates must exist. Id. at 315-16. The agency's failure to locate a document that the evidence indicates likely existed at the time of the search, however, may give rise to “material doubt” about the adequacy of the agency's affidavits. Valencia-Lucena, 180 F.3d at 325; Iturralde, 315 F.3d at 315.

         Here, Lamb has identified one potential inconsistency in MCC's declaration that, at a minimum, warrants clarification. According to the MCC's Chief FOIA Officer, after the Department of State conducts a background investigation on behalf of the MCC, it transmits “a Report of Investigation . . . and any documents related to suitability/security clearance . . . to [the] MCC for review.” Dkt. 17-1 at 2 ¶ 5 (Walker-Watkins Decl.) (emphasis added). She further explains, moreover, that the search of the MCC's records conducted in this case located “five . . . documents that were responsive to plaintiff's request, including the Report of Investigation.” Id. at 3, ¶ 8 (emphasis added). And, in responding to Lamb's FOIA request, the MCC did, in fact, identify five records. Those records included: “(1) MCC Adjudication Worksheet Grid; (2) Credit Report Summary; (3) Finger Print Results; (4) Electronic Questionnaire for Investigation Processing (e-QIP) application, and (5) MCC letter stating the reason for an unfavorable treatment.” Dkt. 17-6 at 1. The response, however, contains no reference to a “Report of Investigation” prepared by the State Department and transmitted to the MCC.

         There may be a simple explanation for this inconsistency, but, on the record as it now stands, it is not evident. Thus, at least in its current posture, this case is similar to Oglesby, 79 F.3d at 1185, and Founding Church of Scientology v. Nat'l Sec. Agency, 610 F.2d 824, 834 (D.C. Cir. 1979), where the evidence raised questions about the adequacy of the search and the agencies' affidavits failed to provide sufficient detail to put those questions to rest. Under these circumstances, the proper recourse is for the Court to require “a more exhaustive account of” the MCC's search, Founding Church of Scientology, 610 F.2d at 837, and, in particular, to require that it provide a further declaration explaining whether the “Report of Investigation” was produced and, if not, why not. The Court will, accordingly, deny the MCC's motion for summary judgment on Count One of the Complaint.

         For similar reasons, the Court will also deny Lamb's cross-motion for summary judgment on Count One. At this point in the litigation, the Court lacks sufficient information to determine whether the MCC's search was adequate and whether any responsive documents were improperly withheld. “It is well settled in Freedom of Information Act cases as in any others that ‘[s]ummary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.” Id. at 836 (quoting Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (1973)). The fact that Lamb has pointed to evidence that currently precludes entry of summary judgment in favor of the MCC does not mean that he has demonstrated the absence of a genuine dispute of material fact and that he is entitled to prevail. To the contrary, all that is apparent from the current record is that further explanation is warranted.

         With respect to the remaining two Counts of the amended complaint, the Court will dismiss both counts against the MCC for failure to state a claim. Count Two of the amended complaint asserts a claim under the Privacy Act for the improper dissemination of Privacy Act protected materials, and Count Three asserts a claim under the Privacy Act for failure to ensure that those records were accurate, complete, and relevant for agency purposes. See Dkt. 9 at 5-6, ¶¶ 19-27.

         The MCC takes the position that Count Two was asserted solely against Chiamulera, and not against the MCC. Under this view, no further action is required because the Court has already dismissed Count Two against Chiamulera. Lamb, however, seemingly contends that he intended to assert Count Two against both Chiamulera and the MCC. See Dkt. 22 at 9, 19 (seeking summary judgment against the MCC on Counts One and Two). That position, however, does not withstand scrutiny. Although Count Two does incorporate paragraphs 1-12 of the amended complaint, see Dkt. 9 at 5, ¶ 19, it alleges only that Chiamulera wrongfully disseminated protected information. If Chiamulera worked for the MCC that might be enough, given the liberal pleading rules applicable to pro se litigants, see, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the fact that the Privacy Act regulates the conduct of federal agencies, as opposed to individuals. But the amended complaint alleges that Chiamulera worked for the Office of Personnel Security and Suitability in the Department of State, Dkt. 9 at 2, ¶ 5, and does not allege that he was an employee or agent of the MCC. Moreover, even if he did work for the MCC, Count Two would still fail to state a claim against the MCC. The Privacy Act permits disclosure of otherwise protected records to agency personnel “who have a need for the record in the performance of their duties, ” 5 U.S.C. § 552a(b)(1), and the amended complaint does not allege that Chiamulera disclosed the records at issue to anyone at the MCC (or elsewhere) for any reason unrelated to the agency's security check and suitability determination. As a result, the Court does not read Count Two of the amended complaint as directed at the MCC, and, in any event, even if it were directed at the MCC, it would fail to state a claim upon which relief can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         The Court will, accordingly, deny Lamb's motion for summary judgment against the MCC on Count Two of the amended complaint and, to avoid any confusion, will dismiss that Count-to the extent that it is even arguably asserted against the MCC-for failure to state a claim upon which relief can be granted.

         This, then, leaves Count Three, which the MCC correctly reads to allege claims against both the MCC and Chiamulera. See Dkt. 9 at 6, ¶ 26 (alleging that “Chiamulera, [the] MCC, and its employees and officers” violated Lamb's rights under the Privacy Act). This Count alleges that “[p]rior to disseminating information and records concerning . . . Lamb, . . . Chiamulera failed to make reasonable efforts to ensure that the information and records were accurate, complete, timely and relevant for agency purposes in violation of 5 U.S.C. § 552a(e)(6).” Id. at 5, ¶ 24. Although not raised in the MCC's motion for summary judgment, the Court will sua sponte dismiss Count Three for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); see also Fed. R. Civ. P. 8(a). Section 552a(e)(6), which provides the gravamen of Lamb's claim, applies only to records disseminated “to any person other than an agency, ” 5 U.S.C. § 552a(e)(6), yet Lamb fails to include any allegation that the MCC disseminated his records to anyone outside that agency. Moreover, although Lamb alleges that the MCC failed to make reasonable efforts to ensure the accuracy, timeliness and relevance of the information at issue, id. at 5, ¶ 24, the amended complaint contains no “factual content” to support that claim, and “[t]hreadbare recitals of the elements of a cause of ...

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