Roark v. United States

Filing 110

OPINION AND ORDER: Granting Motion for Summary Judgment 79 ; Denying Motion for Partial Summary Judgment 87 ); Denying Motion to Compel 103 ; Denying Motion to Unseal Document 107 . Defendant United States of America shall submit a plan for automated search of Plaintiff's hard drive no later than May, 19, 2015. Signed on 5/4/15 by Judge Michael J. McShane. (ljb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DIANE ROARK,
Plaintiff,

Case No. 6:12-cv-01354-MC
OPINION AND ORDER

v.
UNITED STATES OF AMERICA,
Defendant.

MCSHANE, Judge:
Plaintiff Diane Roark brings this motion under Fed. R. Crim. Proc. 41(g), seeking the
return of certain property seized in 2007 by government agents. Defendant United States filed a
motion for summary judgment, and Roark filed a cross-motion for summary judgment. For the
reasons that follow, the government's motion for summary judgment, ECF No. 79, is
GRANTED, and Roark's motion for summary judgment is DENIED. 1

1

After oral argument on summary judgment, Roark filed a Motion to Compel for four types of documents. See ECF
No. 103. That motion is DENIED. The government has insisted that it is unaware of a recent, superseding NDA
between Roark and HPSCI. I do not believe that granting a motion to compel, under threat of sanctions, will produce
that document. Second, Roark asks for documents from the Information Security Oversight Office to clarify whether
the National Security Agency Act of 1959 applies to certain personnel information. As explained in the body ofthis
opinion, even ifl were to agree with Roark's position, I am bound by Ninth Circuit precedent to the contrary. The
production of these documents, even if they existed, would have no effect on my ruling. Third, Roark requests the
production of certain seized but unidentified documents. The government insists that all seized documents are

1 -OPINION AND ORDER

BACKGROUND
In an earlier order on this case, 2 Judge Aiken provided a detailed recitation of the
underlying facts, which I incorporate here. The lengthy history of this case originates from the
government's allegedly wrongful actions pursuant to its investigation into leaked confidential
government information. Following the September 11,2001, attacks on the United States,
President Bush established the Terrorist Surveillance Program ("TSP"), which authorized the
National Security Agency ("NSA") to intercept international communications of persons linked
to Al Qaeda or related terrorist organizations. On December 15, 2005, the New York Times
began publishing a series of articles describing a range of alleged NSA activities, including the
TSP and warrantless wiretaps. The Baltimore Sun published an article on the same subject.
Shortly after publication of the first New York Times article, the Department of Justice
("DOJ") and the Federal Bureau of Investigation ("FBI") initiated an investigation to ascertain
the source or sources that were responsible for the unauthorized disclosure of classified
information contained within the article. Roark, a former staff member of the U.S. House of
Representatives Permanent Select Committee on Intelligence ("HPSCI), was identified as a
subject of that investigation.

accounted for and the subject of this motion for summary judgment. I do not believe that granting a motion to
compel under threat of sanctions will produce additional documents. Finally, Roark requests NSA documentation
confirming that the government already released as unclassified a document in the case of her associate J. Kirk
Wiebe, which is identical to one of her documents at issue in this case. The government explained during oral
argument that if such a document were released, it was released in error, and any such document is in the possession
of Mr. Wiebe, not the government. A motion to compel such documents at this stage would not resolve any of the
issues pending before this Court for summary judgment. Roark also moves to unseal documents. ECF No. 107. In an
exceedingly broad request, Roark seeks to unseal "any type of search or other document pertaining to her that was
sealed by a Title Ill court from 2000 through 2015 ." ECF No. I 07, I. Even assuming I had the jurisdiction to do
what Roark requests, the motion goes well beyond what is at issue here, which is Roark's motion to return property
under rule 4l(g). The motion to unseal is DENIED.
2
See ECF No. 35.

2 -OPINION AND ORDER

In February 2007, Roark voluntarily met with the DOJ and FBI for three hours regarding
their investigation. Over the course of the interview, Roark answered all of the government's
questions, except that she refused to reveal her sources of information on warrantless wiretaps, as
well as the details of her discussion with a congressman. At that time, Roark also provided an
affidavit, averring that she was not the source of the classified information in the articles at issue.
In July 2007, the government applied for and obtained warrants from the U.S. District
Courts for the Districts of Maryland and Oregon to search plaintiffs personal residence for
evidence related to the investigation. On July 26, 2007, FBI agents executed the search warrant
and confiscated a number of items, including computers, hard drives, other electronic items, and
various documents from Roark's home in Stayton, Oregon.
In December 2009, DOJ prosecutors alleged that Roark perjured herself during their
February 2007 interview and offered her a plea bargain. Roark refused their offer. Thereafter,
plaintiff was neither threatened with further charges nor did she receive notice that she was no
longer a target of the investigation. Three individuals subsequently admitted to being the sources
of the leaked information; none of them have been prosecuted.
In November 2011, plaintiff filed a lawsuit in the U.S. District Court for the District of
Maryland under Fed. R. Crim. P. 41(g), seeking the return ofproperty seized from her residence
in July 2007. Plaintiff was ultimately dismissed from that action for improper venue. See Wiebe
v. Nat'! Sec. Agency, 2012 WL 1670046, *1-2 (D. Md. May 11, 2012). Accordingly, on July 26,
2012, Roark filed a complaint in the U.S. District Court for the District of Oregon, alleging
constitutional, equitable, and whistle blower retaliation claims, as well as a return of property
claim pursuant to Fed. R. Crim. P. 41(g). After commencing her lawsuit in this District, Roark

3 -OPINION AND ORDER

I

received confirmation from the government that no criminal charges would be filed against her
arising out of the investigation or the July 2007 search of her residence.
On November 13, 2012, the government moved to dismiss Roark's complaint, except for
her return of property claim. On March 12, 2013, Judge Aiken granted Roark's request for
voluntary withdrawal of all claims except for the Rule 41 (g) motion. On July 8, 2013, the matter
was reassigned to me.
STANDARDS
The court must grant summary judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a). An issue is
"genuine" if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242,248 (1986)). A fact is "material" if it could affect the outcome of the case. Id. The
court reviews evidence and draws inferences in the light most favorable to the non-moving party.
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v.
Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the non-

moving party must present "specific facts showing that there is a genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting Fed. R. Civ. P.

56(e)).
DISCUSSION
"A person aggrieved ... by the deprivation of property may move for the property's
return." Fed. R. Crim. P. 41(g). The burden of proof on a Rule 41(g) motion depends on when
the plaintiff files the motion. "When a motion for return of property is made before an indictment
is filed (but a criminal investigation is pending), the movant bears the burden of proving both
4 -OPINION AND ORDER

that the [property's] seizure was illegal and that he or she is entitled to lawful possession of the
property." United States v. Gladding, No. 12-10544, 2014 WL 7399113, at *2 (9th Cir. Dec. 31,
2014) (citation omitted). After the government has abandoned its investigation, the movant "is
presumed to have a right to [the property's] return, and the government has the burden of
demonstrating that it has a legitimate reason to retain the property." Jd The government can
rebut the presumption by proving a "legitimate reason" for retaining the property that is
"reasonable under all of the circumstances." Id However, "ifthe government's legitimate
interests can be satisfied even if the property is returned, continued retention of the property
would become unreasonable." Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993).
As an initial matter, it is important to note that despite the long and often contentious
history between Roark and the government, the issue before this Court is restricted to the Rule
41 (g) motion. Although Roark raised numerous constitutional claims in her initial complaint and
again during oral argument, the inquiry before me is restricted to the issue of the return of
property. A motion for a return of property is of limited scope and does not provide grounds for
other forms of injunctive or declaratory relief. Roark has repeatedly mentioned that the alleged
illegality of the search that led to the seizure of her property should play a factor in whether the
government must return the property. As the Ninth Circuit explained in Gladding, if the
government were still considering charges against Roark, then Roark would have the burden of
proving an illegal search in order to be entitled to the return of her property. However, all
criminal investigations into Roark have ceased. Therefore, Roark is presumed to have a right to
her property's return unless the government can provide a legitimate reason for retaining the
property. Roark need not prove the illegality of the initial search.

5 -OPINION AND ORDER

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Both parties have agreed that the items currently in dispute consist of twenty-two

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documents/notebooks and Roark's computer hard drive. The government alleges that those items

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contain protected information that falls into one or more of the following categories: (1)

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classified information; (2) unclassified but protected NSA information, and; (3) unclassified

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HPSCI information protected by its nondisclosure agreement with Roark. The government is
willing to return all unprotected information from the computer, as well as the computer itself,
but only after a government expert scans the hard drive for protected information. The
government refuses to cede control over that process to a third party.
Because I find that the government has satisfied its burden to prove that it has a
legitimate interest in the disputed property, the government need only return the unprotected
information on Roark's computer hard drive.

I. Classified Information
Roark insists that none of her documents or computer files are classified, and she alleges
the government has a history of over-classifying information. Roark asks this Court to engage in
a judicial review of the appropriateness of the government's classification of the disputed
materials, but that request is beyond the scope of judicial inquiry. See United States v. Marchetti,
466 F.2d 1309, 1317 (4th Cir. 1972) ("[T]he process of classification is part of the executive
function beyond the scope of judicial review."); United States v. Collins, 720 F.2d 1195, 1198
n.2 (11th Cir. 1983) ("It is an Executive function to classify information, not a judicial one.").
The government submitted a declaration from an NSA expert that four of Roark's
documents and four of Roark's computer files are properly classified as Secret or Top Secret.
Those documents allegedly relate to intelligence activities, and release of the information could
be expected to cause serious damage to United States national security. See ECF No. 80, Miriam
6- OPINION AND ORDER

P. Decl.

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12, 13, 17, 18. Roark has agreed that some of those disputed documents need not

be returned, but she disputes the few remaining classified documents. Based on the declaration of
the NSA expert, the government has demonstrated its legitimate interest in the property that
contains classified information, and this Court declines to engage in further judicial review of
those documents.
II. NSA Information
The government has identified nineteen items that reference NSA employees in nonpublic positions, 3 and employee names is a category of information explicitly exempted from
disclosure by 50 U.S.C. § 3605. See Lahr v. Nat'! Transpo. Safety Bd., 569 F.3d 964,985 (9th
Cir. 2009) (explaining that the National Security Agency Act falls under FOIA exemption 3 for
matters "specifically exempted from disclosure by statute."). Roark implores this Court to review
the disputed documents that contain information allegedly protected by the NSAA. 4 The
Maryland court, however, properly rejected Roark's position when her associates raised
substantially the same argument in their respective Rule 41 (g) motions:
The rationale precluding judicial review of classification decisions is equally
applicable to NSAA information. The National Security Agency ("NSA") is
also an executive agency whose functions "closely relate" to conducting
national defense. As such, designation of material as statutorily protected by
the NSAA is as much a part of the executive function as classification.

Wiebe v. Nat'! Sec. Agency, No. RDB-11-3245, 2012 WL 4069746 at *4 (D. Md. Sept. 14, 2012)
(internal citations omitted).

ECF No. 80, Miriam P. Dec!. at~ 15
To support her argument, Roark relies heavily on Founding Church of Scientology of Wash. D.C., Inc. v. Nat'/ Sec.
Agency, 610 F.2d 824 (D.C. Cir. 1979). That case is distinguishable because the church sought NSA records relating
to the church and its philosophy, which is material without a specific statutory exemption. Id at 825. In this case, the
disputed materials involve a category explicitly exempted from disclosure by statute. The D.C. court directly
acknowledged that the section of the statute on NSA employees "embraces personnel matters of a fairly restricted
character and susceptible of little interpretation." !d. at 828.
3

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7 -OPINION AND ORDER

Admittedly, NSAA information does not carry with it the same classification levels as
Secret and Top Secret information, the release of which imperils national security. However,
"The agency need not make a specific showing of potential harm to national security because
Congress has already, in enacting the statute, decided that disclosure ofNSA activities is
potentially harmful." Lahr, 569 F.3d at 985 (internal citations and quotations omitted).
Much of Roark's argument regarding NSAA information revolves around her request that
this Court overturn the NSA' s interpretation of the NSAA and declare other avenues by which
citizens can appeal the NSA's withholding of unclassified protected information. Roark insists
that the NSA's interpretation has misled the Ninth Circuit into denying review of materials that
the NSA has improperly designated as protected. Even if a Rule 41 (g) motion were the proper
means to challenge the NSA's interpretation of the NSAA, which it is not, this Court would still
be bound by Ninth Circuit precedent as articulated in Lahr.
The government has carried its burden in this case to show a legitimate interest in the
protected NSAA materials in dispute.
III. HPSCI Information

According to HPSCI rules at the time of Roark's employment, HPSCI staffers could not
discuss or disclose:
(A) the classified substance of the work ofthe Committee;
(B) any information received by the Committee in executive session;
(C) any classified information received by the Committee from any source; or
(D) the substance of any hearing that was closed to the public pursuant to
these rules or the Rules of the House.
ECF No. 81, Dick Decl., Ex. 2 (1999 Committee Rule 12(a)(l)). Those restrictions apply both
during the HPSCI staffer's employment and anytime thereafter. !d.

8 -OPINION AND ORDER

In Roark's HPSCI nondisclosure agreement ("NDA''), the conditions precedent for her
employment mandated that she agree to the House and the HPSCI Rules of Procedure, which
include:
[N]ever divulge, publish, or reveal by writing, word, conduct, or otherwise,
either during my tenure with the HPSCI or anytime thereafter, any testimony
given before the HPSCI in executive session ... or information received or
generated by the HPSCI that has been identified under established HPSCI
security procedures ... or otherwise by statute, as requiring protection from
unauthorized disclosure [.]

I hereby agree to surrender to the HPSCI . . . upon my separation from the
HPSCI staff, all information, material, or restricted data, which I hereby agree
not to divulge, publish, or reveal by writing, word, conduct, or otherwise[.]

!d. at Ex. 4, ~~ 2, 7. Roark also signed a second, narrower NDA to obtain access to Secure
Compartmented Information ("SCI"). ECF No. 79, Ex. 1.
The government has identified fifteen documents that allegedly contain protected HPSCI
information. ECF No. 81, Dick Decl.

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8. For each document, the government's expert

identified which classification it fell into (classified, executive session, FOUO\ each ofwhich
was listed in Roark's NDA.
Roark alleges a different NDA governs her materials, and she challenges the HPSCI's
determination that some of her documents contain executive session information. As to the
additional NDA, this Court is limited to the record before it, and there is no evidence of another
superseding NDA that Roark signed with the government. Absent some documentation of a

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The HPSCI rules and confidentiality agreements apply to the classified information as well as the unclassified
information marked "For Official Use Only" ("FOUO").

9 -OPINION AND ORDER

superseding NDA that would grant Roark access to the disputed materials, the government is not
obligated to return her documents. 6
Regarding the HPSCI executive session materials, Roark contends that the government's
legal argument is based on impractical and unenforceable interpretations of committee rules.
Roark's argument is similar to her challenge to the NSAA in that it revolves around HPSCI's
interpretations of its own procedures and regulations. This Court is not in a position to review
HPSCI policies or standards for how it classifies its own protected information, and the scope of
judicial review in a Rule 41 (g) motion only pertains to the government interest in the disputed
material. Roark is bound by the NDAs submitted to the court.
Due to the sensitive nature ofthe information, as well as Roark's own NDAs, the
government has satisfied its burden that it has a legitimate interest in the fifteen disputed items.

IV. The Computer Hard Drive
The vast majority of the documents at issue, including thousands of emails, are found in
Roark's computer hard drive. The government contends that at least four files on the computer
contain information classified as Top Secret, and therefore the entire hard drive is classified at
the Top Secret level. See ECF No. 80, Miriam P. Decl.

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17, 19. The government has offered

to conduct an automated search for certain key words and return all files that do not result in a
"hit" without further review. The NSA and/or HPSCI would then review the files that do return a
"hit" to determine whether the files contain classified or protected information, return the
unprotected files that returned a "hit," wipe the computer hard drive, and return the computer.
6

I can understand Roark's frustration that I have denied her motion to compel for the allegedly newer, superseding
NDA while denying her Rule 4l(g) motion based on the lack of the newer, superseding NDA. However, I am
restricted to the record before me. The government has repeatedly insisted that no superseding NDA exists, and the
government is willing to submit a declaration to that effect. To the extent that a motion to compel would not produce
the alleged newer NDA, I would still be in the same position I am now with the two original NDAs, which do not
entitle Roark to the return of her documents.

10- OPINION AND ORDER

Roark claims that the information on her computer is improperly classified. She proposes
that her own expert, Martin Peck, use experimental Natural Language Processing software based
on IBM's Watson computer to more efficiently search the computer and automatically redact
sensitive information. Roark alleges Peck's software would streamline classification review, and
she "is willing to serve as a test case." ECF No. 87 at 6. If the parties can agree on a solution,
they may submit that solution to the Court. That said, the government has no obligation to cede
classification authority to a third party, and this Court is in no position to compel the government
to do so.
CONCLUSION

For the above mentioned reasons, the government's motion for summary judgment, ECF
No. 79 is GRANTED. The parties shall confer regarding the automated search of Roark's hard
drive. If the parties are unable to come to an agreement, the government shall submit to the Court
a plan for the examination of Roark's computer no later than May 29,2015.
IT IS SO ORDERED.

DATED this 4th day of May, 2015.

Is/ Micahel J. McShane
Michael J. McShane
United States District Judge

11 -OPINION AND ORDER