PALMIERI v. UNITED STATES OF AMERICA et al

Filing 74

MEMORANDUM OPINION. Signed by Judge John D. Bates on 9/21/16. (lcjdb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MATTHEW RICHARD PALMIERI,
Plaintiff,
v.

Civil Action No. 12-1403 (JDB)

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff 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.
Palmieri’s 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.

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ONI has 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).
ONI’s 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.
Palmieri’s 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,

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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.
OPM is 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.
Once 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

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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.
There 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.
For all 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

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the only ones remaining in dispute following earlier orders of the Court, this case will now be
dismissed.
A separate Order has issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: September 21, 2016

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