UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) PETER B., ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1652 (RWR) ) CENTRAL INTELLIGENCE AGENCY, ) et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Peter B.1 brings this action under the

Administrative Procedure Act (“APA”),

, the Privacy

Act, 5 U.S.C. § 552a, and the Due Process Clause of the Fifth

Amendment against the CIA and individuals within the CIA,

alleging nine violations of his rights stemming from the CIA’s

decision to terminate his employment. The defendants have moved

to dismiss the complaint under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and

failure to state a claim, or in the alternative, to transfer this

action to the Eastern District of Virginia. Because the

defendants have not demonstrated that transfer is warranted,

their motion to transfer venue will be denied. The defendants’

motion to dismiss will be granted in part and denied in part.

1 As plaintiff’s true name is classified, he has been permitted to file as “Peter B.” -2-

Because Counts I and IV of the amended complaint seek review that

is precluded by the Civil Service Reform Act (“CSRA”), these

counts will be dismissed for lack of jurisdiction. Because Peter

B. has stated claims under the Due Process Clause of the Fifth

Amendment and the Privacy Act in the remaining seven counts of

the amended complaint, the defendant’s motion to dismiss Counts

II, III and V through IX will be denied.

BACKGROUND

Peter B. brings this action against the CIA, former CIA

Director Michael V. Hayden, his former supervisor Margaret Peggy

Lyons, and Does #1-10, unknown or covert officials of the CIA who

he contends were involved in illegal actions against him. He

asserts that the CIA’s conduct in terminating his employment and

subsequently refusing to confirm certain information about his

relationship with the CIA or communicating negative information

about him to future employers violated his rights under the APA,

the Privacy Act, the Due Process Clause of the Fifth Amendment,

and other unidentified CIA regulations and statutes.

Peter B. contends that “[i]n the early 1990s, [he] entered

into a covert operational relationship with the CIA” and “at a

certain point in the 1990s he became a full [CIA] staff employee

[as] possessive of all constitutional, statutory and regulatory

rights as any other CIA federal employee[,]” which included “the

usual rights, privileges and benefits that are accorded federal -3-

employees.” (Am. Compl. ¶¶ 8-9.) He alleges that “[o]n or about

October 3, 2002, [his] relationship [with the CIA] was formally

terminated,” which left him “abandoned at his domestic post” and

“forced to incur significant expenses that exceeded $15,000.”

(Id. ¶¶ 12, 15.) Peter B. further contends that he “was never

provided any administrative remedies . . . which . . . he was

entitled to pursue” as a federal employee and that “despite

multiple requests,” the only reason he has ever been given for

his termination was that he was terminated “for the convenience

of the government.” (Id. ¶¶ 12, 18.)

In addition, Peter B. alleges that “[a]t the time [he was]

terminated by the CIA he possessed a TS/SCI clearance that was

still active” and “he was repeatedly verbally informed by

representatives of the CIA that there were no security clearance

issues or concerns within his CIA files.” (Id. ¶ 20.) Still, he

contends, “the CIA disseminated false and defamatory information

concerning [him] to . . . government contractors for the purpose

of causing the potential employer to either never provide Peter

B. with an offer of employment or withdraw any such offer that

had been provided.” (Id. ¶ 21.)

In his amended complaint, Peter B. lists nine causes of

action. Counts I and IV seek APA review of the CIA’s

classification of Peter B.’s employment status, Peter B.’s

termination, and the CIA’s failure to reimburse him for certain -4-

expenses. Counts II, III, V, and IX allege Fifth Amendment Due

Process claims. Counts VI through VIII allege Privacy Act

violations. The defendants have filed a motion to dismiss under

Rules 12(b)(1) and 12(b)(6), or in the alternative, to transfer

venue to the Eastern District of Virginia.

DISCUSSION

I. MOTION TO TRANSFER VENUE

The defendants contend that this case should be transferred

to the Eastern District of Virginia. Venue is proper in the

District of Columbia because three of plaintiff’s claims are

brought under the Privacy Act, which expressly permits claims to

be brought in the District of Columbia. See 5 U.S.C.

§ 552a(g)(5) (“An action . . . may be brought in the district

court of the United States in the district in which the

complainant resides, or has his principal place of business, or

in which the agency records are situated, or in the District of

Columbia[.]”).

Nonetheless, a court may transfer a case “for the

convenience of parties and witnesses, in the interest of

justice.”

(a). The moving party has the burden

of persuasion, and must show that transfer is “‘justified by

particular circumstances that render the transferor forum

inappropriate by reference to the considerations specified in

that statute.’” SEC v. Savoy Indus. Inc.,

, 1154 -5-

(D.C. Cir. 1978) (quoting Starnes v. McGuire,

(D.C. Cir. 1974)). A court has broad discretion to decide

whether transfer from one jurisdiction to another is warranted

for the convenience of the parties and witnesses.

A court may transfer an action under § 1404(a) only to a

venue where the action “might have been brought.” See

(a). This case could have been brought in the Eastern

District of Virginia because relevant conduct underlying Peter

B.’s claims occurred there and because the CIA resides in the

Eastern District. See

. After determining that

venue in the proposed transferee district would be proper, a

court then “must weigh in the balance the convenience of the

witnesses and those public-interest factors of systemic integrity

and fairness that, in addition to [the] private concerns [of the

parties], come under the heading of ‘the interest of justice.’”

Stewart Org. Inc. v. Ricoh Corp.,

(1988).

Because “it is perhaps impossible to develop any fixed general

rules on when cases should be transferred[,] . . . the proper

technique to be employed is a factually analytical, case-by-case

determination of convenience and fairness.” Savoy Indus.,

(internal quotation marks and citations omitted).

A. Private factors

Private interest factors to consider typically include

things such as each party’s choice of forum, where the claim -6-

arose, the convenience of the parties, the convenience of the

witnesses, particularly if important witnesses may actually be

unavailable to give live testimony in one of the trial districts,

and the availability and ease of access to sources of proof.

Montgomery v. STG Int’l, Inc.,

(D.D.C.

2008). A plaintiff’s choice of forum is generally accorded

substantial deference. Schmidt v. Am. Inst. of Physics,

(D.D.C. 2004). However, if the plaintiff is not

a resident of the forum and “most of the relevant events occurred

elsewhere,” this deference is weakened. Hunter v. Johanns,

(D.D.C. 2007); see Robinson v. Eli Lilly &

Co.,

(D.D.C. 2008). “When the events

occur in more than one district, a court can consider which

jurisdiction has the stronger factual nexus to the claims.”

Miller v. Insulation Contractors, Inc., Civil Action No. 08-1556

(RWR),

(D.D.C. Apr. 21, 2009) (concluding

that where it was unclear in which forum “the more significant

locus of material events” occurred, the movant had not

demonstrated that the private interest factors favored transfer).

Peter B. does not claim to be a resident of the District of

Columbia, but he does allege that “events pertaining to [him]

took place within this jurisdiction.” (Am. Compl. ¶ 5.)

Although it is unclear what a qualitative or quantitative

comparison of the events in the two fora would reveal, the -7-

allegation that at least some of the relevant conduct occurred in

this forum suggests that Peter B.’s choice of forum should be

accorded some deference. Regarding where the claims arose,

because the CIA has a presence in both the District of Columbia

and Virginia, and because at least one of the defendants, Lyons,

works in the District of Columbia, Peter B. alleges that his

claims arose from events and actions, including those by Lyons,

that occurred in both jurisdictions. (See id. ¶ 5; Pl.’s Opp’n

at 27.) Accordingly, this factor favors neither forum. The

remaining private interest factors do not strongly support

transfer because of the close proximity of this district and the

Eastern District of Virginia. Peter B. alleges that “many of the

witnesses and the parties live or work with the District of

Columbia.” (Pl.’s Opp’n at 28 (noting that defendant Lyons

currently works in the District of Columbia).) The defendants

contend that Virginia would be more convenient because the CIA

resides within that district and most of the records and other

evidence at issue are located there. (See Defs.’ Mem. in Support

of Their Motion to Dismiss (“Defs.’ Mem.”) at 29; Defs.’ Reply

23-25.) Although there is insufficient information at this early

stage to conclusively determine which forum hosts more evidence

or potential witnesses, neither the parties nor potential

witnesses would be significantly inconvenienced if the case is to -8-

proceed in the District of Columbia rather than the Eastern

District of Virginia.

B. Public factors

Relevant public interest factors include the local interest

in making local decisions about local controversies, the

potential transferee court’s familiarity with the applicable law,

and the congestion of the transferee court compared to that of

the transferor court. Akiachak Native Cmty. v. Dep’t of the

Interior,

(D.D.C. 2007). Because Peter B.

alleges that significant events underlying his claims occurred in

both fora, the defendants have not carried their burden of

demonstrating that Virginia would have a greater local interest

in deciding this controversy. The complaint alleges causes of

action all grounded in the federal constitution and federal law,

and the two district courts would be deemed equally familiar with

applicable federal law in this case. Miller,

(noting that “all federal courts are presumed to be equally

familiar with the law governing federal statutory claims”).

Neither party has commented on the congestion in either forum.

The public factors, then, do not favor transfer.

Thus, in light of both the private and public factors, the

defendants have not shown that transfer to the Eastern District

of Virginia would be more convenient for the parties or

witnesses, or be in the interest of justice. Accordingly, the -9-

defendants’ motion to transfer venue to the Eastern District of

Virginia will be denied.

II. MOTION TO DISMISS

“On a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the

burden of establishing that the court has subject-matter

jurisdiction.” Shuler v. United States,

(D.D.C. 2006) (citing Lujan v. Defenders of Wildlife,

(1992)). In reviewing the motion, a court accepts as

true all of the factual allegations contained in the complaint,

see Lujan,

, and may also consider “undisputed

facts evidenced in the record.” Coal. for Underground Expansion

v. Mineta,

(D.C. Cir. 2003); see also Tootle v.

Sec’y of the Navy,

(D.C. Cir. 2006) (explaining

that a court may look to certain materials beyond the pleadings

to resolve disputed jurisdictional facts when considering a

motion to dismiss under Rule 12(b)(1)). The “nonmoving party is

entitled to all reasonable inferences that can be drawn in [its]

favor.” Artis v. Greenspan,

(D.C. Cir.

1998).

A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted. See Fed. R. Civ. P. 12(b)(6). In order to survive a

motion to dismiss under Rule 12(b)(6), the allegations stated in -10-

the plaintiff’s complaint “must be enough to raise a right to

relief above the speculative level[.]” Bell Atl. Corp. v.

Twombly,

(2007). “[A] well-pleaded claim may

proceed even if it strikes a savvy judge that actual proof of

those facts is improbable, and that recovery is very remote and

unlikely.”

(internal quotation marks omitted). The

complaint must be construed in the light most favorable to the

plaintiff and “the court must assume the truth of all

well-pleaded allegations.” Warren v. District of Columbia,

(D.C. Cir. 2004). However, if a plaintiff fails to

allege sufficient facts to support a claim, the complaint must be

dismissed. See Twombly,

.

A. Peter B.’s employment status

As a preliminary matter, the amended complaint contends that

the nature of Peter B.’s relationship with the CIA is disputed.

It alleges that he was “a full [CIA] staff employee [as]

possessive of all constitutional, statutory and regulatory rights

as any other CIA federal employee[,]” and that the CIA wrongly

considered him to be “some sort of independent contractor whose

relationship with the government can be terminated at its

convenience.” (Am. Compl. ¶¶ 9-10.) The amended complaint is

unclear as to whether it alleges “inconsistent facts in support

of alternative theories of recovery” -- where Peter B. is

entitled to recover on his claims either as a “full staff -11-

employee” or as “some sort of independent contractor” -- or if

his claims are all premised on the assertion that he was a full

staff employee of the CIA. See Powers-Bunce v. District of

Columbia,

(D.D.C. 2007) (noting that

a Rule 8(e) permits pleading inconsistent factual allegations);

Doe v. Goss, Civil Action No. 04-2122 (GK),

, at *9

(D.D.C. Jan. 12, 2007) (same). For example, in Count IV, labeled

as a claim for “failure to follow regulations or statutes” and

brought under the APA, the text begins with the assertion that

“at a certain point in the 1990s [Peter B.] became a full staff

employee [as] possessive of all constitutional, statutory and

regulatory rights as any other CIA federal employee.” (Am.

Compl. ¶ 46.) Nonetheless, Count IV continues to allege that the

CIA’s failure to reimburse Peter B. certain expenses violated the

APA “[r]egardless of whether [he] was a staff employee or some

sort of contractor[.]” (Am. Compl. ¶ 50.) Thus, Count IV

reasonably could be interpreted to be pleading APA claims as an

employee or, in the alternative, as an independent contractor.

In their motion to dismiss or transfer, the defendants agree

with Peter B.’s allegation that he was a CIA employee, but they

argue that he was classified as a “contract employee,” rather

than a staff employee. (Defs.’ Mem. at 1-2 (labeling Peter B. as

a “former covert contract employee”).) The defendants allege

that a “contract employee . . . is defined as an individual -12-

employed in a non-career status through a contract.” (Id. at 6,

n.2 (internal quotation marks omitted).) They contend that as a

contract employee, Peter B. was “appointed under the authority of

the [DCI] to serve in an employment relationship entitling [Peter

B.] to benefits provided under federal law or regulations except

as modified by law applicable to the [CIA].” (Id. (internal

quotation marks omitted).) They further argue that as a contract

employee, Peter B. was subject to the provisions of the CSRA, “a

comprehensive remedial scheme for the review of personnel

decisions” made concerning federal employees. (Id. at 6.) Peter

B. does not refute the defendants’ argument that he was a CIA

employee who was subject to the CSRA. Indeed, in his opposition

to the defendants’ motion, he virtually concedes that the CSRA

applies to him. (Pl.’s Opp’n at 2 n.2 (stating that “if his APA

claims were solely to enforce CIA regulations,” they would be

barred by the CSRA).) “Where a plaintiff addresses some but not

all arguments raised in a defendant’s motion to dismiss, courts

in this district may treat such arguments as conceded.” Payne v.

District of Columbia, Civil Action No. 08-163 (CKK),

(D.D.C. Dec. 30, 2008) (citing Fox v. Am.

Airlines, Inc.,

(D.D.C. 2003), aff’d,

(D.C. Cir. 2004)); Hopkins v. Women’s Div., General Bd.

of Global Ministries,

(D.D.C. 2002)

(citing FDIC v. Bender,

(D.C. Cir. 1997)) (“It -13-

is well understood in this Circuit that when a plaintiff files an

opposition to a motion to dismiss addressing only certain

arguments raised by the defendant, a court may treat those

arguments that the plaintiff failed to address as conceded.”).

Accordingly, because Peter B. makes no attempt to preserve any

argument that he was not a CIA employee subject to the CSRA, the

defendants’ argument that Peter B. was a CIA employee subject to

the CSRA will be deemed conceded and will be accepted.

B. APA review of adverse personnel decisions (Counts I and IV)

In Counts I and IV of the amended complaint, Peter B. seeks

APA review of the CIA’s alleged misclassification of his

employment status, the decision to deny him certain benefits, and

the decision to terminate his employment with the CIA. (Am.

Compl. ¶¶ 22-28; 44-54.) The defendants contend that these

claims “challenge various personnel actions” which are precluded

from review by the CSRA, and that the CSRA provides the exclusive

framework for how federal employees may seek review of adverse

personnel decisions. (See Defs.’ Mem. at 5-8.)

When enacted, the CSRA “established an elaborate new

framework for evaluating adverse personnel actions [taken]

against certain categories of federal employees.” Doe v. Goss,

Civil Action No. 04-2122 (GK),

, at *4 (D.D.C.

Jan. 12, 2007). The scheme is a comprehensive and “exclusive

framework for judicial review” of personnel decisions within its -14-

ambit. Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv.,

(D.C. Cir. 1991) (internal quotations and

citations omitted). “The CSRA expressly excludes CIA employees

from the classes of employees for whom the CSRA’s review

procedures are available.” Doe v. Goss,

, at *6

(citing

(a)(2)(A), 7511(b)(7)). Although CIA

employees are excluded from those employees permitted to invoke

the CSRA’s review procedures, their exclusion does not leave them

“free to pursue whatever judicial remedies [they] would have had

before enactment of the CSRA.” United States v. Fausto,

(1988). Fausto explained that “[d]irect judicial review

for non-covered employees would undermine ‘the development,

through the [Merit Systems Protection Board], of a unitary and

consistent Executive Branch position on matters involving

personnel action,’ and would frustrate the congressional intent

to ‘avoid[] an unnecessary layer of judicial review in lower

federal courts.” Doe,

, at *5 (quoting Fausto,

(internal quotations omitted)).

Thus, the court of appeals has concluded that when the CSRA

precludes judicial review of an adverse personnel action, the APA

cannot be used to circumvent the CSRA. Harrison v. Bowen,

(D.C. Cir. 1987); Carducci v. Regan,

(D.C. Cir. 1983). For example, a plaintiff cannot

“invoke the principle that agencies must follow their own -15-

regulations” to suggest that the agency created a right to APA

review outside of the CSRA scheme because “agencies cannot

purport to confer rights undermining a comprehensive

congressional scheme.” See Graham v. Ashcroft,

(D.C. Cir. 2004).

Peter B. offers no argument in response to defendants’

contention that the claims alleged in Counts I and IV seek APA

review of adverse personnel actions that is barred by the CSRA.

Accordingly, this argument will be deemed conceded and the

defendants’ motion to dismiss Counts I and IV will be granted.

C. Due process claims (Counts II, III, V, and IX)

In Claims II, III, V, and IX, Peter B. alleges that he was

deprived of a protected liberty interest without procedural due

process. The Fifth Amendment protects an individual’s right to

due process before the federal government may infringe upon a

person’s protected property or liberty interest. See Bd. of

Regents v. Roth,

(1972); Griffith v. Federal

Labor Relations Auth.,

(D.C. Cir. 1988).

The defendants argue that Peter B. has failed to state a

deprivation of either a property interest or liberty interest

without due process. In his opposition to the defendants’ motion

to dismiss, Peter B. groups all four of his due process claims as

claims alleging infringement of a protected liberty interest,

alleging that the CIA has deprived him of his protected liberty -16-

interest in his reputation and his ability to seek employment in

his chosen field without required due process. Because he does

not refute the government’s argument that he had no property

interest in his position with the CIA, this argument will be

deemed conceded.

In Roth, the Supreme Court found that the government’s

failure to re-hire a teacher was alone insufficient to implicate

a due process liberty interest because a person is not “deprived

of ‘liberty’ when he simply is not rehired in one job but remains

free as before to seek another.”

(citing

Cafeteria Workers v. McElroy,

(1961)).

However, the Court concluded that had the government’s failure to

rehire the plaintiff gone beyond simply foreclosing the single

employment opportunity and instead harmed the plaintiff’s “good

name, reputation, honor, or integrity,” or “imposed . . . a

stigma or other disability [on him] that foreclose[s] his freedom

to take advantage of other employment opportunities,” then the

government’s action would have implicated the person’s due

process liberty interest. Id. at 573; see Orange v. District of

Columbia,

(D.C. Cir. 1995) (stating that, for

a liberty interest claim, a plaintiff must “show that the

government ‘altered [his] status in a tangible way, and that an

imposition of stigma or injury to reputation accompanied this

change in status.’” (quoting United States Info. Agency v. Krc, -17-

(D.C. Cir. 1990))). Under the first Roth test,

called “reputation-plus,” a plaintiff can show a protected

liberty interest by establishing that the government changed his

status and accompanied such a change with defamation that

“seriously damage[d] his standings and associations in the

community.” M.K. v. Tenet,

(D.D.C. 2001);

see O’Donnell v. Barry,

(D.C. Cir. 1998).

Under the second test, termed “stigma or disability,” a

protectable liberty interest is implicated if the government

alters the employee’s status and such a change “foreclose[s] his

freedom to take advantage of other employment opportunities by

either (a) automatically excluding him from a definite range of

employment opportunities with the government or (b) broadly

precluding him from continuing his chosen career.” M.K.,

; see O’Donnell,

. When the

government has infringed upon a person’s protected liberty

interest under either test, the person has a due process right to

notice and an opportunity to refute the charges against him and

to clear his name. Doe v. U.S. Dep’t of Justice,

(D.C. Cir. 1985) (holding that because a Fifth Amendment

liberty interest claim implicates an interest in one’s “post-

employment reputation rather than any right to continued

employment,” the “well-settled remedy” is a name-clearing

hearing). -18-

1. Reputation-plus claim

Under the reputation-plus test, Peter B. alleges that the

defendants altered his status by terminating his employment and

publicly defamed him by “disseminat[ing] inaccurate and/or

derogatory information throughout the CIA that unlawfully and

unethically caused his employment with the CIA to be terminated”

and by “plac[ing] negative information within [his] files which

[were] ‘available, even on a limited basis, to prospective

employers or government officials.’” (Pl.’s Opp’n at 9-10

(quoting Kartseva v. Dep’t of State,

(D.C.

Cir. 1994)).) Defamation alone is not does not give rise to a

due process claim. Siegert v. Gilley,

(1991) (holding that injury to reputation alone is not a

protected liberty interest); Paul v. Davis,

(1976) (“[T]he Court has never held that the mere defamation of

an individual . . . was sufficient to invoke the guarantees of

procedural due process absent an accompanying loss of government

employment.”); see also Orange,

. “For a

defamation to give rise to a right to procedural due process, it

is necessary . . . that the defamation be accompanied by a

discharge from government employment” or other adverse personnel

action. Mosrie v. Barry,

(D.C. Cir. 1983)

(emphasis added). “Although the conceptual basis for

reputation-plus claims is not fully clear, it presumably rests on -19-

the fact that official criticism will carry much more weight if

the person criticized is at the same time demoted or fired.”

O’Donnell,

(emphasis added); see Doe v. Dep’t of

Justice,

n.25 (“conclud[ing] only that a

government employee must be given a name-clearing hearing when

the government disseminates allegedly false and

reputation-destroying charges against her in the course of her

discharge”).

Peter B. “has emphatically alleged that [d]efendants Lyons

and Does #1-#10 disseminated inaccurate and/or derogatory

information throughout the CIA that unlawfully and unethically

caused his employment with the CIA to be terminated[.]” (Pl.’s

Opp’n at 9 (emphasis added); see Am. Compl. ¶ 13 (alleging that

these defendants “took steps . . . [to] ensure Peter B.’s

relationship with the CIA was terminated [which] included . . .

dissemination of false information”).) To the extent Peter B. is

alleging only that the defendants’ defamatory statement caused

his termination, he has not stated a claim under the reputation-

plus test because the defendants’ alleged defamatory statements

did not accompany his termination. An alleged cause-and-effect

relationship between the defendants’ conduct and Peter B.’s

termination alone does not state a reputation-plus claim because

such a claim does not suggest that the CIA publicly adopted the

individual defendants’ defamatory statements as the reason for -20-

his termination. The distinguishing feature between ordinary

defamation and reputation-plus defamation is that the defamation

is part of an official action, on the theory that the official

action makes the defamation much more damaging. See O’Donnell,

. Absent a showing that the individual

defendants’ statements were offered as the reasons for the

decision to terminate Peter B., the individual defendants’

conduct was only ordinary defamation that does not implicate a

liberty interest. Drawing all reasonable inferences in Peter

B.’s favor, though, it is plausible that the complaint is

alleging that the CIA publicly adopted the individual defendants’

defamatory statements against Peter B. as the reasons for Peter

B.’s termination. Such an allegation states a claim under the

reputation-plus test.

Similarly, Peter B.’s allegation that there is negative

information injuring his reputation in his file that is publicly

available to future employers states a reputation-plus claim if

he is alleging that the negative information in his file consists

of the reasons for his termination. The court of appeals has

held that a person has a due process right to clear his name if

he “can demonstrate that the stigmatizing reasons for [his]

discharge were disclosed to the public or were made available to

prospective employers or other government personnel.” Doe v.

Dep’t of Justice,

; see also Brandt v. Board of -21-

Co-op Educ. Servs.,

, 45 (2d Cir. 1987) (holding that

a liberty interest would be implicated where stigmatizing charges

“were placed in the employee’s file during the course of his

termination” and “were likely to be disclosed to future

employers”). In such a situation, as is alleged in this case,

although the defamation has occurred after the status change, it

is nonetheless accompanying the status change if it being offered

as the official reason for the status change. See id.

Without evidence of the contents of Peter B.’s personnel

files, the record does not reflect whether the alleged “false and

defamatory information concerning Peter B.” made available to the

contractors was the reason for his termination, which would

implicate a liberty interest requiring due process, or was simply

defamation unrelated to any determination of Peter B.’s

employment status, which does not confer any due process right.

In addition, based on Peter B.’s allegations, it is impossible to

discern whether any alleged derogatory statements were in fact

statements that injure one’s reputation under the law. For

example, in Department of the Navy v. Egan,

(1988),

the Supreme Court concluded that a clearance determination “does

not equate with passing judgment upon an individual’s character.”

. Accordingly, a statement that simply indicates a

person’s ineligibility for a security clearance, without more,

would not be an injury to reputation. See

Based on Peter -22-

B.’s allegations in the complaint,2 it is a reasonable inference

that the alleged statements disseminated throughout the CIA to

cause his termination may have been sufficiently defamatory to

injure Peter B.’s reputation and may have been adopted as reasons

for his termination and subsequently communicated to his

potential employers as the reasons for his termination.

Defendants contend that Peter B. will not be able to

establish that any negative reasons for his termination, if such

reasons existed, were publicly disclosed to any party outside the

CIA because he was a covert employee whose “connection with the

CIA cannot be publicly revealed” and CIA regulations explicitly

prohibit disclosure of the reasons for a termination without

consent of the employee. (Defs.’ Reply at 7.) This argument

attacks the merits of Peter B.’s factual allegation that such

disclosure did occur, and Peter B. is entitled to the truth of

all his factual allegations at this stage. Thus, because Peter

B. maintains he has never had a notice or an opportunity to

refute negative information relating to his termination that has

been allegedly disclosed to his potential employers, Peter B. has

2 For example, the complaint alleges that “Lyons and Does #1- #10 took steps based on their own personal reasons to unlawfully and/or unethically ensure Peter B.’s relationship with the CIA was terminated . . . includ[ing], but . . . not limited to, the dissemination of false information concerning Peter B.” (Am. Compl. ¶ 13.) It further contends that after Peter B.’s termination, “the CIA disseminated false and defamatory information concerning Peter B. to . . . government contractors.” (Id. ¶ 21.) -23-

stated a claim under a reputation-plus theory that he was

deprived of a protected liberty interest without due process.

2. Stigma or disability claim

Under the stigma or disability test, a plaintiff must

identify “the combination of a [status change] and ‘a stigma or

other disability that foreclosed [the plaintiff’s] freedom to

take advantage of other employment opportunities[.]’” O’Donnell,

(quoting Roth,

). Peter B.

alleges that the “CIA’s dissemination of false information

concerning [him] . . . has the same impact as actually denying or

revoking his security clearance,” and as a result, amounts to a

status change sufficient to support a stigma or disability claim.

(Am. Compl. ¶ 111; see Pl.’s Opp’n at 10-14.) He cites Kartseva

for the proposition that a “negative change in a plaintiff’s

status adequate to implicate a liberty interest can be found

where a federal agency’s conduct has the ‘broad effect of

precluding [the employee] from pursuing [their] (sic) chosen

career.’” (Pl.’s Opp’n at 12 (quoting Kartseva,

)

(bracketed language in original).) He suggests that “[his]

status, like that of Kartseva, was adequately altered, as he has

been broadly precluded from work in his chosen career due to the

inaccurate [or] derogatory statements made by the CIA to

contractors concerning him.” (Id.) -24-

In Kartseva, the State Department conducted a background

check on the plaintiff, a Russian language translator employed by

a government contractor, found that her background check revealed

“several significant counterintelligence concerns,” and “asked

the [contractor] to ‘act on’ this determination.”

. “Based on State’s communication, [the contractor]

terminated Kartseva.”

Kartseva alleged that the State

Department’s determination implicated a protected liberty

interest entitling her to due process under the Fifth Amendment.

The court of appeals held that one way Kartseva could show

that the State Department’s determination implicated a protected

liberty interest was by demonstrating that, even if not an

“official disbarment” from all public contracting, the State

Department’s action, “was, in fact, a determination of her legal

eligibility to work on future State contracts[.]”

.

The court further held that, in the alternative, Kartseva could

prove “whether State’s disqualification interfere[d] with [her]

constitutionally protected ‘right to follow a chosen trade or

profession.’”

at 1529 (quoting Cafeteria Workers,

). It then concluded that it was “impossible to

speculate on whether th[e] disqualification implicate[d]

Kartseva’s general employability” because the record did not

disclose the “‘counterintelligence concerns’ underlying the

disqualification.” Id. at 1529-30. Accordingly, the court -25-

remanded the question of whether Kartseva stated a liberty

interest claim under a “preclusion from chosen profession” theory

for further proceedings to determine “the scope of the

disqualification,” and whether the State Department’s

disqualification determination for the single project was

“sufficiently stigmatic to work a similar disqualification

through much of Kartseva’s field.” Id. at 1530.

Peter B. suggests that Kartseva would support a claim that

the CIA’s negative statements alone, without a some kind of

actual determination of his clearance status, can become a status

change merely because of their potential effect on his future

employment opportunities. That suggestion is inconsistent with a

close reading of Kartseva and Supreme Court precedent. First,

the court in Kartseva found that there was a change in Kartseva’s

status -- as it described, “State’s express disqualification” --

for at least her current project. Id. Thus, the critical

question was the second element of the stigma or disability test

-- whether the status change foreclosed her future employment

opportunities beyond the single project. Further, the Supreme

Court has concluded that defamation alone cannot be a

“constitutional deprivation,” even if the alleged result is

“serious impairment of [one’s] future employment opportunities.”

Siegert,

; see Paul,

. In

Siegert, Siegert’s former government employer wrote a negative -26-

letter of recommendation to the plaintiff’s subsequent employer.

. The Court found that Siegert had stated only a

tort claim for defamation, but not a claim for a constitutional

deprivation of liberty, despite the effect of the defamation on

Siegert’s future employment. See

. The Court

explained that its “reference to a government employer

stigmatizing an employee in [Roth] was made in the context of the

employer discharging or failing to rehire a plaintiff[,]” and

Siegert had not connected the alleged defamation to a similar

action.

At this stage, however, without any record evidence

revealing any actual statements, Peter B. is entitled to the

reasonable inference that the CIA’s alleged negative statements

were not merely defamatory, but reflected an underlying

determination of Peter B.’s clearance eligibility. If discovery

were to reveal evidence leading to such a conclusion, then the

CIA’s conduct could be analogous to the State Department’s

determination of Kartseva’s contract eligibility and sufficiently

distinguishable from the mere defamation against Siegert. On the

other hand, if the CIA’s statements merely suggested that

negative information existed concerning Peter B., but did not

reflect that the CIA had acted upon such information, these

statements likely would not show that Peter B. suffered a status

change that would support a colorable due process claim. Rather, -27-

such statements might sound in the tort of defamation.

Construing the facts in Peter B.’s favor, he has stated a claim

under the stigma or disability test to the extent he has alleged

that the CIA’s alleged negative statements to contractors

reflected an actual determination of Peter B.’s clearance

eligibility, and were not merely defamatory.

D. Privacy Act claims (Counts VI through VIII)

Peter B. argues that the defendants violated the Privacy Act

by failing to collect information about him to the greatest

extent possible, failing to maintain accurate records, and

disseminating inaccurate information relating to him, in

violation of 5 U.S.C. § 552a(e)(2), (e)(5), and (e)(6). The

defendants contend that these claims should be dismissed because

Peter B. has not pled these claims with sufficient factual basis

to withstand a motion to dismiss and because any Privacy Act

claims are barred by the CSRA and the Privacy Act’s statute of

limitations. (See Defs.’ Mem. at 21-25; Defs.’ Reply at 13-15.)

1. 5 U.S.C. § 552a(e)(2)

In Count VI, Peter B. alleges that the CIA terminated him

based on incomplete or false records without affording him the

opportunity to provide or correct information. Under

§ 552a(e)(2), an agency maintaining a system of records must

“collect information to the greatest extent practicable directly

from [an] individual when the information may result in adverse -28-

determinations about [the] individual’s rights, benefits, and

privileges.” To state a claim for damages under this section, a

plaintiff must allege facts that suggest not only that “the

agency failed to elicit information directly from him to the

greatest extent practicable,” and that “this action had an

adverse effect on [him,]” but also that “the violation of the Act

was intentional or willful.”3 Waters v. Thornburgh,

(D.C. Cir. 1989), abrogated on other grounds by Doe v.

Chao,

(2000) (internal quotation marks and citation

omitted).

Peter B. alleges that the defendants violated this section

because “the CIA and one or more of the individual defendants has

failed to maintain [his] records with such accuracy, relevance,

timeliness, and completeness as is reasonably necessary to denote

his true employment status with the CIA and the extent to which

he possesses a security clearance,” and “compiled information and

arrived at conclusions that were irrelevant, false, malicious and

defamatory, incomplete, inaccurate, and untimely.” (Am. Compl.

¶¶ 75-76.) He further contends that he was never given an

opportunity to review any information “that led to his

termination or that pertains to his security clearance.” (Id.

¶ 76.) In addition, he alleges that “[t]he CIA’s failure to

3 Damages under the Privacy Act are available only if an agency “acted in a manner which was intentional or willful.” 5 U.S.C. § 552a(g)(4). -29-

collect information directly from [him] resulted in adverse

determinations concerning his rights, benefits, privileges, or

opportunities,” and that the CIA and individuals within the CIA

acted intentionally, knowing their actions were unlawful. (Id.

¶¶ 77-78.)

The defendants contend that Peter B. has not pled this claim

with adequate specificity to survive Rule 12(b)(6) scrutiny.

(See Defs.’ Mem. at 24.) Where a “plaintiff does not even know

the precise contents of his records because . . . he has no

access to them,” a plaintiff cannot be expected to plead much

detail. Doe v. Goss,

, at *9. Here, Peter B.

contends that the information relevant to his claims, including

his records has been solely within the defendants’ possession.

(See Am. Compl. ¶ 77; Pl.’s Opp’n at 24.) Nonetheless, he does

allege specifically (1) that he was terminated without any

explanation other than that his termination was for “the

convenience of the government;” (2) that defendant Lyons and

other unnamed defendants had “personal reasons to . . . ensure

[his] relationship with the CIA was terminated;” and (3) that,

despite assurances by CIA representatives that there were no

concerns related to his security clearance, at least one or more

potential employers have been unable to have his clearance

transferred or renewed, causing the employer to not provide or to

withdraw an offer of employment. (Am. Compl. ¶¶ 12, 20-21.) A -30-

reasonable inference can be drawn in Peter B.’s favor based on

the defendants’ alleged personal bias against Peter B. and the

contractors’ negative reactions to contact with the CIA

concerning Peter B. that Peter B.’s records contain false and

derogatory information that caused the CIA to terminate his

employment, and that eliciting information directly from Peter B.

may have corrected any false information. Thus, Peter B. has met

his minimal burden of pleading sufficient facts suggesting that

discovery will reveal the CIA’s intentional and willful failure

to obtain information from him that was relevant to its decision

to terminate him, and that this failure was the cause of his

termination. Accordingly, Peter B. has stated a claim under 5

U.S.C. § 552a(e)(2).

Nonetheless, the defendants contend that even if Peter B.

has stated a claim under this section, his claim is precluded by

the CSRA and time-barred by the Privacy Act’s statute of

limitations. The CSRA provides the exclusive framework for

review of adverse personnel decisions made against employees, and

the Privacy Act cannot be used to circumvent the CSRA scheme.

See Hubbard v. E.P.A.,

(D.C. Cir. 1986), aff’d in

part on other grounds sub nom. Spagnola v. Mathis,

(D.C. Cir. 1988); Doe v. Goss,

, at *8. Thus,

where review of personnel action is prohibited by CSRA, the

Privacy Act cannot be used as a means to seek such review.

-31-

For example, in Kleiman v. Dep’t of Energy,

(D.C. Cir. 1992), a former federal employee, subject to the CSRA,

sought correction of his records under the Privacy Act, alleging

that “his personnel records [were] inaccurate because they

reflect[ed] the title, [but] not the work” he performed.

. The court held that Kleiman’s claim was precluded by the

CSRA because the alleged “error” he sought corrected was the

agency’s substantive determination of his job within the agency.

See

. It determined that “‘[t]he Privacy Act allows

for amendment of factual or historical errors,’” but is not “‘a

vehicle for amending the judgments of federal officials or . . .

other[s] . . . as those judgments are reflected in records

maintained by federal agencies.’”

(quoting Rogers v. U.S.

Dep’t of Labor,

(N.D. Cal. 1985)).

Determining whether the records inaccurately reflected the

plaintiff’s job description would have required the court to

replicate the procedures used by the agency to determine the

classification. Plaintiff’s claim, then, although cast as a

Privacy Act claim, was in substance a review of a personnel

action that was within the CSRA’s exclusive jurisdiction. Id. at

338.

Here, Peter B. cannot use his Privacy Act claims to seek

review of the CIA’s alleged adverse personnel decisions against

him. At this early stage, though, the documents at issue are not -32-

yet in the record. It is premature to determine whether Peter B.

seeks to correct factually inaccurate records, or if Peter B.

disagrees with the defendants’ judgments contained in his

records. If it is the former, correcting facts would not be

precluded by the CSRA. If it is the latter, correction would be

an impermissible attempt to circumvent the CSRA. See id. at 337-

38.

However, even where the CSRA precludes review of the CIA’s

personnel decisions, a court still “retain[s] jurisdiction to

award damages ‘for an adverse personnel action actually caused by

an inaccurate or incomplete record.’” Doe v. Goss,

, at *8 (quoting Hubbard,

) (emphasis in

original). Thus, “[a] Privacy Act claim survives CSRA preclusion

in this jurisdiction if a plaintiff shows the harm alleged was

actually caused by the alleged violation.”

For this claim,

Peter B. alleges that the defendants “compiled information and

arrived at [false] conclusions” about him while he “was never

provided an opportunity to review or challenge any evaluation or

determination that led to his termination that pertains to his

security clearance.” (Am. Compl. ¶ 76.) He further alleges that

it was “[t]he CIA’s failure to collect information directly from

[him that] resulted in adverse determinations concerning his

rights, benefits, privileges, or opportunities.” (Id. ¶ 77.)

With these allegations, Peter B. has met his minimal burden of -33-

pleading facts suggesting that the defendants’ violation of

§ 552a(e)(2) actually caused his termination. Accordingly, Peter

B.’s claim cannot be dismissed as precluded by the CSRA at this

time.

In addition, the defendants have failed to establish that

Peter B.’s § 552a(e)(2) is time-barred. The statute of

limitations is an affirmative defense and the defendant bears the

burden of proof. See M.K.,

(concluding

that a plaintiff need not anticipate and rebut a statute of

limitations argument in the complaint); Doe v. Dep’t of Justice,

. Thus, “a motion to dismiss may be granted on

the basis that the action is time-barred only when it appears

from the face of the complaint that the relevant statute of

limitations bars the action.” Doe v. Dep’t of Justice,

. Under 5 U.S.C. § 552a(g)(5), a Privacy Act claim must

be brought

within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required . . . to be disclosed to an individual and the information so misrepresented is material to the establishment of the liability of the agency . . . , the action may be brought at any time within two years after discovery by the individual of the misrepresentation.

5 U.S.C. 552a(g)(5).

In response to the defendants’ argument, Peter B. alleges

that “due to the CIA’s intentional and willful misrepresentation -34-

of information concerning Peter B.[,] he did not become aware of

the violation until the rescission of the offer of employment

from [government] contractors which occurred as recently as

2006,” which was within two years of the filing of this

complaint. (Pl.’s Opp’n at 20.) Peter B. alleges that the

defendants repeatedly refused to provide a reason for his

termination, denied him access to records underlying the

termination decision, and repeatedly reassured him that there

were no issues with his security clearance. (See, e.g., Am.

Compl. ¶¶ 12-13; 76.) In addition, he contends that afterwards,

within two years before the filing of the complaint, one or more

potential employers contacted the CIA to request information

about him and they received negative information that caused them

to rescind or decide not to offer an opportunity for employment.

(Id. ¶ 21.) Construing these allegations in Peter B.’s favor, at

least two permissible inference can be drawn: 1) the defendants’

conduct toward Peter B. reflected deliberate misrepresentations

as to whether negative information existed in his records against

which Peter B. should have had the opportunity to defend; and

2) the defendants’ conduct may have prevented Peter B. from

discovering his claim until the contractors contacted the CIA,

within the two years prior to his filing the complaint, and

received negative information. Accordingly, Peter B. has alleged

a timely claim and his § 552a(e)(2) claim will not be dismissed. -35-

2. 5 U.S.C. § 552a(e)(5)

Count VII alleges that the CIA violated Peter B.’s rights

under 5 U.S.C. § 552a(e)(5) by willfully failing to maintain

accurate records relating to him. Section 552a(e)(5) “requires

an agency to ‘maintain all records which are used by the agency

in making any determination about any individual with such

accuracy . . . as is reasonably necessary to assure fairness to

the individual in the determination.’” Deters v. U.S. Parole

Comm’n,

(D.C. Cir. 1996) (quoting 5 U.S.C.

§ 552a(e)(5)). A § 552a(e)(5) claim requires proof that “(1)

[the plaintiff] has been aggrieved by an adverse determination;

(2) the [defendant] failed to maintain [plaintiff’s] records with

the degree of accuracy necessary to assure fairness in the

determination; (3) the [defendant’s] reliance on the inaccurate

records was the proximate cause of the adverse determination; and

(4) the [defendant] acted intentionally or willfully in failing

to maintain accurate records.” Id. Here, as in his § 552a(e)(2)

claim, Peter B. alleges that the presence of false and derogatory

information in his records was caused by the defendants’ willful

failure to maintain his records and that the defendants’ failure

to maintain accurate records caused his termination. (See Pl.’s

Opp’n at 22-23.) For the purposes of Rule 12(b)(6), these

factual allegations state a claim under § 552a(e)(5) upon which

relief could be granted. -36-

3. 5 U.S.C. § 552a(e)(6)

Under 5 U.S.C. § 552a(e)(6), “prior to disseminating any

record about an individual to any person other than an agency,

. . . [an agency shall] make reasonable efforts to assure that

such records are accurate, complete, timely, and relevant for

agency purposes[.]” Peter B. alleges that the defendants

“disseminated inaccurate information from [his] . . . [r]ecords

to at least one government contractor that had hired [him], which

as a result, led to the rescission of the employment offer due to

alleged security concerns.” (Am. Compl. ¶ 101.) Taking these

factual allegations as true, they state a claim under

§ 552a(e)(6).

CONCLUSION AND ORDER

Because venue is proper in the District of Columbia and the

relevant venue factors do not favor transfer to the Eastern

District of Virginia, the defendants’ motion to transfer venue

will be denied. Because the CSRA provides the exclusive

framework for federal employees to seek review of adverse

personnel actions, Peter B.’s claims in Counts I and IV seeking

APA review of the CIA’s adverse personnel actions concerning him

are barred by the CSRA and will be dismissed. Drawing all

reasonable inferences in Peter B.’s favor, he has pled a

constitutional deprivation of a liberty interest without due

process insofar as he contends that the defendants have -37-

disseminated negative reasons for his termination to future

employers. Thus, the defendants’ motion to dismiss Peter B.’s

due process claims found in Counts II, III, V, and IX will be

denied. Because Peter B. also has alleged facts that, if proven,

could support claims for damages under the Privacy Act, the

defendants’ motion to dismiss Peter B.’s Privacy Act claims found

in Counts VI through VIII will be denied. Accordingly, it is

hereby

ORDERED that the defendants’ motion to dismiss or, in the

alternative, to transfer venue to the Eastern District of

Virginia be, and hereby is, GRANTED IN PART and DENIED IN PART.

Counts I and IV of the amended complaint are DISMISSED. The

defendants’ motion in all other respects is DENIED.

SIGNED this 1st day of June, 2009.

________/s/_________________ RICHARD W. ROBERTS United States District Judge