CIRALSKY v. CIA, et al

Filing 85

MEMORANDUM OPINION: For the reasons stated above, defendant's Motion to Dismiss[Dkt. No. 77] will be granted as to all counts, by an Order to be issued with this Memorandum Opinion. Signed by District Judge Leonie M. Brinkema on 11/15/10. (yguy)

-JFA CIRALSKY v. CIA, et al

Doc. 85

IN T H E U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H I 1
EASTERN DISTRICT OF VIRGINIA

NOV I 5 2010
CLERK, U.S. DISTRICT COURT
ALEXANDRIA. VIRGINIA

Alexandria Division

A D A M J.

CIRALSKY,

Plaintiff,
v.

l : 1 0 c v 9 1 1 (LMB/JFA)

CENTRAL INTELLIGENCE AGENCY,
et. al.,

Defendants.

MEMORANDUM OPINION

Before the Court is defendants'

Motion to Dismiss.

For the

reasons stated in o p e n court a n d in this opinion, the Motion to
D i s m i s s w i l l be g r a n t e d as to a l l claims.
I. Background

Plaintiff Adam J. Ciralsky filed this civil action against

his former employer, the Central Intelligence Agency ["CIA"], and

eight current and former CIA and Federal Bureau of Investigations
o f f i c i a l s a d e c a d e a g o in the U n i t e d S t a t e s D i s t r i c t C o u r t for

the District of Columbia, alleging numerous statutory and
constitutional violations surrounding the revocation of his

security clearance and subsequent termination from his position
as an attorney advisor for the CIA. Ciralsky claims that the CIA

r e v o k e d h i s s e c u r i t y c l e a r a n c e b e c a u s e he is J e w i s h a n d was

viewed as a supporter of Israel.

After dismissing some of the

claims earlier this year, the District of Columbia court found

that venue was improper for most of the surviving counts and

Dockets.Justia.com

transferred them to this Court.
141 (D.D.C. 2010).

Ciralsky v. CIA. 689 F. Supp. 2d

Ciralsky worked as an Attorney Advisor in the CIA's Office

of General Counsel beginning on December 2, 1996.x

The position,

based in Langley, Virginia, required a top secret security
clearance, which Ciralsky had obtained during a previous job at the Department of Defense. The CIA reinvestigated Ciralsky's

security clearance, and on August 19, 1997, Ciralsky failed a polygraph examination. After interviewing Ciralsky and

conducting a second polygraph examination, the CIA began the
process of revoking his security clearance and on October 20,

1997 placed Ciralsky on administrative leave.

On November 21,

1997, after hearing arguments from Ciralsky, a CIA Employment Review Panel recommended revocation of his security clearance and
termination of his employment. The panel reconsidered the matter

on March 6, 1998, but maintained its recommendation.
1998, the CIA revoked Ciralsky's security clearance.

On July 2,
After

Ciralsky exhausted his appeals, the CIA terminated his employment
o n D e c e m b e r 13, 1999.

Ciralsky filed his initial Complaint on July 19, 2000.
Defendants filed a motion to strike the complaint, which was
granted but with leave to amend. Ciralsky filed an amended

The Court adopts the factual background as set forth in the District of Columbia court's opinion.
2

complaint, w h i c h was s t r i c k e n again,

t h i s t i m e w i t h o u t l e a v e to

amend.

Ciralsky appealed to the United States Court of Appeals
which remanded the case to the district

for the D.C. Circuit,

court with instructions to review whether Ciralsky should be

permitted to amend.

The district court allowed Ciralsky to file

his Second Amended Complaint, which alleges the following causes
of action: (1) D i s c r i m i n a t i o n a n d r e t a l i a t i o n i n v i o l a t i o n o f

Title VII of the Civil R i g h t s Act of 1964, 42 U.S.C. § 2000e-2 et

seq. (Claims VII and VIII);

(2) Breach of Plaintiff's employment

contract by the CIA (Claim XIX); (3) Improper disclosure of three

records in violation of Section (b) of the Privacy Act, 5 U.S.C.

§ 552a (Claim IX); (4) Various improprieties in the stewardship
of federal agency records under Section (e) of the Privacy Act
(Claims X - XVI); a n d (5) V a r i o u s c o n s t i t u t i o n a l t o r t s (under
B i v e n s v. S i x U n n a m e d A g e n t s of t h e Fed. B u r e a u of N a r c o t i c s . 403

U.S. 388 (1971)), conspiracy to violate civil rights under 42 U.S.C. §§ 1985-1986, and unlawful surveillance under the Foreign

Intelligence Surveillance Act ("FISA"), 50 U.S.C. §§ 1801, et
seq. ( C l a i m s I - V I a n d XX). T h e D i s t r i c t of C o l u m b i a c o u r t d i s m i s s e d t h e T i t l e V I I a n d

breach of contract claims for lack of subject matter jurisdiction

and dismissed some of the information disclosure and Privacy Act
claims but allowed other portions of those claims to go to

discovery, w h i c h s t i l l is in progress.2

The Court also found
§§

that v e n u e was i m p r o p e r f o r the c l a i m s u n d e r Bivens,
1 9 8 5 - 1 9 8 6 , a n d F I S A ( C l a i m s I - V I a n d XX)

and transferred those

claims to the Eastern District of Virginia.
Most of the claims before this Court arise under Bivens, which allows plaintiffs to seek damages from federal officials

for violations of important constitutional rights.3

The specific

Bivens claims before this Court allege violations of the Fifth
Amendment's procedural and substantive due process protections
( C l a i m s II, V, a n d V I ) ; t h e F i r s t A m e n d m e n t ' s F r e e E x e r c i s e

Clause and Fifth Amendment's Equal Protection Clause (Claims I

and III); and the Fourth Amendment's protection against
u n r e a s o n a b l e s e a r c h a n d s e i z u r e ( C l a i m I V ) ; a s w e l l as a r e l a t e d

claim of a violation of FISA (Claim IV) and conspiracy in
v i o l a t i o n of §§ 1 9 8 5 - 1 9 8 6 ( C l a i m XX). D e f e n d a n t s h a v e m o v e d to d i s m i s s t h e s e c l a i m s u n d e r Fed. R.

Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed.
R. C i v . P. 1 2 ( b ) ( 6 ) for failure to state a claim.

2At oral argument, plaintiff's counsel raised many
allegations about anti-Semitic discrimination that were recently
learned in discovery but not raised in the complaint. It would
be i n a p p r o p r i a t e f o r the C o u r t to c o n s i d e r n e w f a c t s w h e n

deciding a motion to dismiss.

Therefore, the Court will only

consider the facts presented in the Second Amended Complaint. 3Although the CIA remains listed as a defendant in the caption of the civil action, a plaintiff can only bring Bivens claims against individual officials, not government agencies.

II.
A. Standard of review

Discussion

In a motion to dismiss under Rule 12(b)(1)

for lack of

s u b j e c t m a t t e r jurisdiction, a d e f e n d a n t m a y " c o n t e n d that the

complaint fails to allege facts u p o n which subject matter
j u r i s d i c t i o n m a y be based" o r "argue that the j u r i s d i c t i o n a l facts a l l e g e d in the c o m p l a i n t are untrue." G u a r d a d o v. U n i t e d

S t a t e s . I : 1 0 c v l 5 1 (JCC), 2 0 1 0 U.S. D i s t . L E X I S 1 0 4 8 6 2 , at * 5 - * 6

(E.D. Va. Sept. 30, 2010) .

W h e n such challenges are made to the

c o u r t ' s jurisdiction, a d i s t r i c t c o u r t m a y r e v i e w e v i d e n c e not

c o n t a i n e d w i t h i n the c o m p l a i n t w i t h o u t c o n v e r t i n g the m o t i o n i n t o
a m o t i o n for s u m m a r y judgment.
1219 (4th Cir. 1982).

See A d a m s v. Bain, 697 F . 2 d 1213,

U n d e r Fed. R. Civ. P. 1 2 ( b ) ( 6 ) , a c o m p l a i n t s h o u l d n o t be

dismissed "unless it appears certain that [plaintiff] can prove
no set of facts that w o u l d s u p p o r t his c l a i m a n d w o u l d e n t i t l e h i m to relief." S m i t h v. Svdnor. 184 F . 3 d 356, 361 (4th Cir.

1999).

The Court must accept all of the complaint's well-pleaded

allegations a n d v i e w them in a light most favorable to the

plaintiff.

Smith. 1184 F.3d at 361.

This does not apply to
A s h c r o f t v. Icrbal. 129 S.

legal c o n c l u s i o n s b u t o n l y to facts.

Ct. 1937 (2009).

In addition, "if the well-pled facts do not

permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged- but it has not *show[n]'-

that the p l e a d e r is e n t i t l e d to r e l i e f . "

Id. at 1950.

"Factual

allegations must be enough to raise a right of relief above the speculative level, on the assumption that all of the allegations in the complaint are true."
U.S.
B.

Bell Atlantic Corp. v. Twombly. 550

544,

554

(2007).

Subject matter jurisdiction

"Federal courts are courts of limited jurisdiction.

They

p o s s e s s o n l y that p o w e r a u t h o r i z e d b y C o n s t i t u t i o n a n d statute." K o k k o n e n v. G u a r d i a n L i f e Ins. Co. of America. 511 U.S. 375, 377

(1994).

Defendants argue that the Court does not have subject

matter jurisdiction o v e r this civil action because the Supreme
C o u r t in D e p a r t m e n t of N a v y v. Egan. 4 8 4 U.S. 518 (1988), h e l d

that s e c u r i t y c l e a r a n c e d e c i s i o n s are c o m m i t t e d to the s o l e

discretion of the executive branch.
Renewed Mot. to Dismiss at 7.

See Mem. in Supp. of Defs.'

I n Egan.

the Supreme Court stated that

[ t ] h e P r e s i d e n t , a f t e r all, is t h e ' C o m m a n d e r i n C h i e f of the A r m y a n d N a v y of the U n i t e d S t a t e s . ' U.S.

Const., Art. II, § 2. His a u t h o r i t y to c l a s s i f y a n d c o n t r o l a c c e s s to i n f o r m a t i o n b e a r i n g o n n a t i o n a l s e c u r i t y a n d to d e t e r m i n e w h e t h e r a n i n d i v i d u a l is s u f f i c i e n t l y t r u s t w o r t h y to o c c u p y a p o s i t i o n i n the E x e c u t i v e B r a n c h t h a t w i l l g i v e t h a t p e r s o n a c c e s s to s u c h information flows p r i m a r i l y f r o m this c o n s t i t u t i o n a l i n v e s t m e n t of p o w e r in the P r e s i d e n t a n d exists quite apart from a n y explicit congressional
grant.

Id. at 527.

T h e F o u r t h C i r c u i t h a s i n t e r p r e t e d E g a n as a b r o a d

r e s t r i c t i o n o n s u b j e c t m a t t e r j u r i s d i c t i o n in s e c u r i t y c l e a r a n c e

disputes, finding that "unless Congress specifically has provided
otherwise, the courts will not intrude upon the President's authority to grant or deny access to national security
information." G u i l l o t v. Garrett. 970 F . 2 d 1320, 1324 (4th Cir.

1992)

(internal quotations marks omitted) (holding that the Court

d o e s n o t h a v e j u r i s d i c t i o n to d e c i d e w h e t h e r t h e d e n i a l of a

s e c u r i t y c l e a r a n c e v i o l a t e d the R e h a b i l i t a t i o n Act)."

C i r a l s k y c r i t i c i z e s E g a n ' s h o l d i n g b u t d o e s not e x p l a i n h o w his c l a i m s o v e r c o m e this b i n d i n g S u p r e m e C o u r t precedent. See

P L ' s Opp. to D e f . ' s R e n e w e d Mot. to D i s m i s s ("Opp.") at 10-11.
There are very few areas where the executive branch's actions are

n o t s u b j e c t to a n y f o r m of j u d i c i a l review.

See Youngstown Sheet

& T u b e Co. v. Sawyer, 343 U.S. 579 (1952) . Indeed, C i r a l s k y r a i s e s l e g i t i m a t e c o n c e r n s a b o u t g r a n t i n g the e x e c u t i v e s u c h
u n i l a t e r a l a u t h o r i t y ; h o w e v e r , as the c a s e l a w i n t h i s C i r c u i t
a n d t h e S u p r e m e C o u r t m a k e clear, the granting, denial, or

r e v o c a t i o n of a s e c u r i t y c l e a r a n c e is a s u i g e n e r i s a c t o v e r

w h i c h the f e d e r a l c o u r t s h a v e no j u r i s d i c t i o n a b s e n t
congressional directive. T h e u n i q u e n a t u r e of c l a s s i f i e d

i n f o r m a t i o n has c a u s e d t h e c o u r t s to c a r v e t h i s n a r r o w y e t

4Although the Fourth Circuit has found that Egan limits
courts' s u b j e c t m a t t e r j u r i s d i c t i o n , o t h e r c i r c u i t s h a v e f o u n d t h a t E g a n r e q u i r e s d i s m i s s a l of c h a l l e n g e s t o s e c u r i t y c l e a r a n c e decisions u n d e r Fed. R. Civ. P. 12(b)(6). See, e.g.. El-Ganayni v. U n i t e d S t a t e s D e p a r t m e n t of E n e r g y . 5 9 1 F . 3 d 1 7 6 (3d Cir. 2010). M i n d f u l of this o t h e r v i e w of Egan, defendants' a r g u m e n t s
also will be addressed under 12(b)(6).

unambiguous exception to judicial review.

Ciralsky has not
as

overcome the clear constitutional rule set forth in Egan,

demonstrated by his inability to cite a single case in which a
court reviewed the m e r i t s of a s e c u r i t y c l e a r a n c e d e c i s i o n and
found for the plaintiff.

To avoid Egan. Ciralsky's counsel at oral argument stated

that the claims arise not from the revocation of his security
clearance but from the constitutional violations that led to the

revocation.

This distinction is illusory.

All of Ciralsky's

claims a n d d a m a g e s r e l a t e to the s a m e act: the r e v o c a t i o n of his

s e c u r i t y c l e a r a n c e a n d s u b s e q u e n t termination.

As the District

of Columbia court found w h e n it dismissed Ciralsky's Title VII
c l a i m for l a c k of s u b j e c t m a t t e r jurisdiction, "the CIA's
d e c i s i o n s o n his s e c u r i t y c l e a r a n c e a n d t e r m i n a t i o n c a n n o t be

viewed as unrelated events."
141, 150 (D.D.C. 2010).

Ciralsky v. CIA, 689 F. Supp. 2d

That conclusion is consistent with

B e c e r r a v. D a l t o n .

94 F . 3 d 1 4 5 ( 4 t h Cir.

1996),

in which the

plaintiff attempted to avoid Egan by challenging the instigation
of the investigation into his security clearance as a form of
retaliation. The Fourth Circuit held that "the distinction

between the initiation of a security investigation and the denial
of a s e c u r i t y c l e a r a n c e is a d i s t i n c t i o n w i t h o u t a difference. .

. . [I]f permitted to review the initial stage of a security

clearance determination to ascertain whether it was a retaliatory

act, the c o u r t w o u l d be r e q u i r e d to r e v i e w the v e r y i s s u e s t h a t
t h e S u p r e m e C o u r t h a s h e l d a r e n o n - r e v i e w a b l e . " Id. at 1 4 9 .

Therefore, the o n l y w a y this Court c o u l d h a v e j u r i s d i c t i o n

over this dispute is if Congress expressly granted judicial
r e v i e w of s e c u r i t y c l e a r a n c e d e c i s i o n s b a s e d o n i n v i d i o u s

discrimination.

However, Ciralsky has failed to identify any
For these reasons, all of

such congressional directive.

Ciralsky's claims will be dismissed for lack of subject matter
j u r i s d i c t i o n u n d e r Fed. R. Civ. P. 1 2 ( b ) ( 1 ) .
C. Failure to state a claim

Even if the Court had subject matter jurisdiction, all of
C i r a l s k y ' s c l a i m s w o u l d f a i l u n d e r Fed. R. Civ. P. 12(b)(6)

because the S e c o n d A m e n d e d Complaint does not m e e t the p l e a d i n g
s t a n d a r d s r e q u i r e d b y I q b a l a n d Twombly. 1. Bivens claims g e n e r a l l y

As defendants correctly argue, Bivens creates a right of action against individual federal officials in their personal capacities for violations of clearly established constitutional rights.
1-2.

See Reply Mem. in Supp. of the Defs.' Mot. to Dismiss at

B u t o t h e r t h a n a v a g u e c l a i m a b o u t f o r m e r D i r e c t o r of

Central Intelligence George Tenet, the Second Amended Complaint fails to identify any specific actions of individual defendants,

instead stating that its allegations are "against each and every
Defendant, jointly and severally," Second Am. Compl. at f 23, and

referring to alleged wrongdoings of the CIA.

See, e.g., Second

Am. Compl. at H 40 ("Defendant CIA subjected Ciralsky to
[counterintelligence] and security investigation without

providing him with due process . . . and thus denied Ciralsky a
chance to clear his name.").
a g a i n s t the agency.

C i r a l s k y cannot b r i n g Bivens claims

O n l y t h e a c t i o n s of i n d i v i d u a l d e f e n d a n t s

can be the basis of Bivens claims.

2.

Bivens claim:
V. and VI)

Fifth Amendment Due Process

( C l a i m s II.

Ciralsky claims that the defendants violated his due process

rights by denying him a security clearance.

Specifically,

Ciralsky argues that the CIA violated his substantive due process
rights by subjecting h i m to coercive polygraph tests and other

improper investigative techniques,

Second Am. Compl. at UU 36-

39, and

violated his procedural due process rights by subjecting

him to coercive interviews and failing to provide him with

adequate hearings and avenues for appeal.
UH 25-30, 40.

Second Am. Compl. at

Defendants respond that the Court should dismiss the procedural due process claims because the Fourth Circuit held in

Jamil v. Secretary. D e p ' t of Defense, 910 F.2d 1203 (4th Cir.

1990) that the plaintiff "did not have a property or liberty
interest in his s e c u r i t y clearance, so he h a d no c o n s t i t u t i o n a l

rights to procedural due process in connection w i t h its
revocation." Id. a t 1 2 0 7 , n . 5 .

10

Ciralsky's Opposition brief does not explain how the due
p r o c e s s claims s u r v i v e this b i n d i n g precedent, and he fails to

demonstrate that he has a n y p r o p e r t y or l i b e r t y interest that
w o u l d t r i g g e r p r o c e d u r a l due p r o c e s s p r o t e c t i o n s .

Even if Ciralsky had a liberty or property interest in his

security clearance, he fails to allege sufficiently that the CIA
failed to meet its due process obligations. In fact, the Second

A m e n d e d Complaint describes how the C I A p r o v i d e d numerous avenues

to appeal the decision to individual officials and a separate review panel, and alleges that Ciralsky took advantage of those
review opportunities.

Similarly, Ciralsky fails to sufficiently allege any

violations of his substantive due process rights.

Ciralsky's

substantive due process c l a i m contains b r o a d allegations about the coercive conduct of the polygraph operators, but he does not

state how these allegations support a substantive due process
claim.

Accordingly, the procedural and substantive due process
c l a i m s w i l l b e d i s m i s s e d f o r f a i l u r e to s t a t e a c l a i m .
3. Bivens Claim:
and III)

First Amendment's Free Exercise Clause

and Fifth Amendment's Equal P r o t e c t i o n Clause (Claims I

Ciralsky alleges that the defendants violated his rights to
free e x e r c i s e of r e l i g i o n a n d e q u a l p r o t e c t i o n w h e n it r e v o k e d

his security clearance after describing Ciralsky's statements as

11

"pro-Israeli b a g g a g e " a n d p o r t r a y i n g C i r a l s k y a n d h i s f a m i l y as

"extreme s u p p o r t e r s of I s r a e l ' s h a r d l i n e r s in the L i k u d p a r t y due to his family's g i f t s to the U n i t e d J e w i s h A p p e a l a n d Israel

Bonds." Second Am. Compl. at UU 18-21, 24, 31-33.
Defendants argue that these claims should be dismissed
because the Civil Service Reform Act, Pub. L. 95-454, 92 S t a t .

1 1 1 1 et seq.
U.S.C.)

(codified, a s a m e n d e d , i n v a r i o u s s e c t i o n s

of 5

and Title VII are the exclusive remedies for federal

employees' workplace discrimination lawsuits and that the

s t a t u t e s b a r B i v e n s d i s c r i m i n a t i o n s u i t s b y f e d e r a l employees.
S e e Mem. i n Supp. o f D e f s . ' R e n e w e d Mot. t o D i s m i s s at 1 1 - 1 6 820 (1976);

( c i t i n g B r o w n v. G e n e r a l S e r v i c e s A d m i n . , 4 2 5 U.S.

Z i m b e l m a n v. Savage, 228 F . 3 d 367
U.S. Postal Serv., 802 F.2d 766

(4th Cir. 2 0 0 0 ) ; H a r d i n g v.
1986)).

(4th Cir.

In h i s O p p o s i t i o n brief, C i r a l s k y d o e s n o t d i s p u t e the
defendants' view of the law, but describes the law as a "Catch-22

situation."

Opp. at 13.

Although Ciralsky presents many

arguments as to why this rule is unfair, he offers no binding authority to support his arguments. Ciralsky has already

challenged the revocation of his security clearance under Title

VII in the D i s t r i c t of Columbia, w h i c h d i s m i s s e d that claim;
cannot use a Bivens action to receive a second chance at his
failed Title VII claim.

he

Indeed, a l l o w i n g t h i s c l a i m w o u l d r e q u i r e this Court to

12

broaden t h e s c o p e o f B i v e n s .

w h i c h c o u r t s a r e r e l u c t a n t t o do.

B i v e n s creates a n i m p l i e d r i g h t of a c t i o n f o r d a m a g e s a g a i n s t

federal officials who violate specific constitutional rights. Bivens, the Supreme Court allowed a plaintiff to sue government
o f f i c i a l s f o r m o n e y d a m a g e s f o r v i o l a t i n g t h e F o u r t h Amendment,

In

a n d the S u p r e m e C o u r t h a s e x t e n d e d the r e m e d y o n l y to e m p l o y m e n t d i s c r i m i n a t i o n d u e p r o c e s s claims, D a v i s v. Passman, 4 4 2 U.S. 228

(1979), a n d E i g h t h A m e n d m e n t c h a l l e n g e s to p r i s o n o f f i c i a l
conduct, C a r l s o n v. Green. 446 U.S. 14 (1980). The Fourth

C i r c u i t r e c o g n i z e d the l i m i t e d r e a c h of B i v e n s w h e n it d e c l i n e d

to e x t e n d B i v e n s to a n E i g h t h A m e n d m e n t c l a i m a g a i n s t e m p l o y e e s of a p r i v a t e l y o p e r a t e d prison.
290 ( 4 t h Cir. 2006)

H o l l y v. Scott. 434 F . 3 d 287,

(holding that "[t]he Court has therefore on

m u l t i p l e o c c a s i o n s d e c l i n e d to e x t e n d B i v e n s b e c a u s e C o n g r e s s is

in a b e t t e r p o s i t i o n to d e c i d e w h e t h e r o r n o t the p u b l i c interest
w o u l d be s e r v e d b y the c r e a t i o n of n e w s u b s t a n t i v e l e g a l liability.") (internal q u o t a t i o n marks omitted). C i r a l s k y has

not cited any precedent that creates a Bivens action for free

e x e r c i s e o r e q u a l p r o t e c t i o n claims.

E v e n if C i r a l s k y c o u l d b r i n g s u c h a B i v e n s action, he does
not allege facts that make out a constitutional violation.

Ciralsky alleges that the CIA revoked his security clearance
b e c a u s e o f f i c i a l s s a w h i m as o v e r l y s y m p a t h e t i c to Israel.
true, the CIA's actions were within its broad discretion for

If

13

granting a n d d e n y i n g a c c e s s to n a t i o n a l s e c u r i t y information.
the S u p r e m e C o u r t h e l d i n Egan.

As

a s e c u r i t y c l e a r a n c e d e c i s i o n "is

o n l y a n a t t e m p t to p r e d i c t [a p e r s o n ' s ] p o s s i b l e f u t u r e b e h a v i o r

a n d to a s s e s s whether, u n d e r c o m p u l s i o n of c i r c u m s t a n c e s o r f o r

other reasons, he m i g h t c o m p r o m i s e sensitive information. It m a y
be based, to b e s u r e , u p o n p a s t o r p r e s e n t c o n d u c t , b u t it a l s o

m a y be b a s e d u p o n c o n c e r n s c o m p l e t e l y u n r e l a t e d to c o n d u c t , s u c h

as h a v i n g c l o s e r e l a t i v e s r e s i d i n g in a c o u n t r y h o s t i l e to the U n i t e d States." 484 U.S. 528-29. E g a n provides great discretion

to the e x e c u t i v e b r a n c h in r e v o k i n g a s e c u r i t y clearance, p a r t i c u l a r l y w h e n t h e r e are c o n c e r n s that the e m p l o y e e is l o y a l
to a n o t h e r g o v e r n m e n t o r f o r e i g n power.
The Third Circuit recently dismissed a similar free exercise

a n d e q u a l p r o t e c t i o n c h a l l e n g e to the D e p a r t m e n t of E n e r g y ' s
r e v o c a t i o n of a s c i e n t i s t ' s s e c u r i t y c l e a r a n c e t h a t s t e m m e d f r o m

his a c t i v i t i e s w i t h M u s l i m groups.
S t a t e s D e p a r t m e n t of E n e r g y .

In E l - G a n a y n i v. U n i t e d
(3d Cir. 2010), the

5 9 1 F . 3 d 176

T h i r d Circuit f o u n d that E g a n presents an "insuperable bar to relief" a n d that the S e c r e t a r y of E n e r g y " s i m p l y cannot be
o r d e r e d to j u s t i f y h i s d e c i s i o n s in t h i s area, n o r c a n his

justifications be subjected to weighing and second-guessing by a
' n o n e x p e r t o u t s i d e body' s u c h as a f a c t f i n d e r i n a f e d e r a l

court."

Id. at 185.

S i m i l a r l y , C i r a l s k y a l l e g e s t h a t the C I A

denied him access to classified information because it was

14

concerned about his l o y a l t y to a f o r e i g n government.

Such action

is w i t h i n the CIA's b r o a d a u t h o r i t y o v e r c l a s s i f i e d information.
T h e r e f o r e , the f r e e e x e r c i s e a n d e q u a l p r o t e c t i o n c l a i m s w i l l be
dismissed for failure to state a viable claim.
4. Bivens claim: (Claim IV) Fourth Amendment and FISA violations

C i r a l s k y c l a i m s t h a t the g o v e r n m e n t ' s s e a r c h of his

computer, w h i c h p r o d u c e d e v i d e n c e t h a t l e d to the s e c u r i t y
clearance revocation, violated the Fourth Amendment and FISA.

Without stating which officials were involved, Ciralsky alleges
t h a t the C I A " p r o v i d e d C i r a l s k y w i t h a l a p t o p c o m p u t e r " a n d

m o n i t o r e d c o m m u n i c a t i o n s f r o m that computer.
at UK 34-35.

S e c o n d Am. Compl.

Defendants argue that the Fourth Amendment and FISA claims

are " e n t i r e l y c o n c l u s o r y a n d fail to s t a t e a p l a u s i b l e c l a i m for
relief." Mem. i n S u p p . of R e n e w e d Mot. to D i s m i s s at 28.

C i r a l s k y ' s O p p o s i t i o n b r i e f m e r e l y s t a t e s t h a t the a l l e g a t i o n s

"are sufficient to p l e a d the cause of action," Opp. at 23, but it

does not explain h o w the complaint satisfies Iqbal and Twombly.
Defendants are correct that the Fourth Amendment and FISA

claims are far too general and do not satisfy civil pleading
standards. Ciralsky has not alleged anything o t h e r than broad,

conclusory statements about a search conducted by unknown officials. A n e q u a l l y i m p o r t a n t issue, w h i c h n e i t h e r the
is t h a t e v e n if t h e

defendants nor plaintiffs address,
15

allegations were more specific, the F o u r t h A m e n d m e n t claim w o u l d

not be legally viable.

The Supreme Court, in City of Ontario v.

Quon. 130 S. Ct. 2619 (2010), found that a police department did

not violate an employee's Fourth Amendment rights when it
monitored the employee's text messages on a government-issued pager because "the search was motivated by a legitimate work-

related purpose."

Id^. at 2633.

Ciralsky alleges that the CIA

monitored his employer-provided computer to determine whether to entrust him with access to national security information. As in

Quon. the CIA search h a d a legitimate, work-related purpose and

involved a computer that it provided, not Ciralsky's personal
computer. Therefore, Ciralsky does not state a valid Fourth

Amendment claim.

Nor does Ciralsky state a valid FISA claim.

FISA governs

surveillance of "foreign intelligence information" b e t w e e n

"foreign powers" and "agents of foreign powers."

Ciralsky does

not allege that any of the communications constituted foreign

intelligence information, nor does he allege that the
communications were between foreign powers or their agents.
Ciralsky m e r e l y alleges that "[d]efendant's c o n d u c t also

violated" FISA. Second Am. Compl. at U 35.

Such a conclusory

allegation does not meet Twombly's requirement that the claims
r i s e a b o v e the " s p e c u l a t i v e " l e v e l to s u r v i v e a m o t i o n to
dismiss. 550 U.S. at 589.

16

Accordingly, C i r a l s k y ' s F o u r t h A m e n d m e n t a n d F I S A c l a i m s
w i l l be d i s m i s s e d f o r f a i l u r e to s t a t e a c l a i m .

5.

Conspiracy in violation of 55 1985-1986 (Claim XX)

Ciralsky alleges that CIA officials conspired to violate his

civil rights by subjecting him to discriminatory investigations,
harassment, interrogations, searches, and disciplinary
proceedings.
§§ 1985-1986.

These actions, Ciralsky alleges, violated 42 U.S.C.
S e c o n d Am. Compl. at H 71-75.

Section 1985 prohibits conspiracies to prevent a person from

discharging public duties or "for the purpose of depriving,
either directly or indirectly," a person of his constitutional
rights or privileges. The Fourth Circuit has h e l d that to state

a claim under Section 1985, a plaintiff must demonstrate "an
agreement or a 'meeting of the minds' by d e f e n d a n t s to violate

the claimant's constitutional rights."
1370, 1377 (4th Cir. 1995)

Simmons v. Poe. 47 F.3d

(quoting Caldeira v. County of Kauai.
1989)). Section 1986 creates a

866 F . 2 d 1175, 1 1 8 1 ( 9 t h Cir.

c a u s e of a c t i o n a g a i n s t a p e r s o n w h o k n o w s of a S e c t i o n 1985

conspiracy but fails to prevent it.

Defendants argue that Ciralsky fails to state a viable

Section 1985 claim because he fails to provide any "concrete

supporting facts" that show an agreement to violate Ciralsky's
constitutional rights.
Dismiss at 24.

See Mem. in Supp. of Renewed Mot. to
The Second Amended

The defendants are correct.

17

Complaint does not sufficiently allege a meeting of the minds,
and does not even identify which of the eight defendants
conspired. Instead, it merely alleges that "defendants"

conspired to deprive Ciralsky of his civil rights and then
r e p e a t s the g e n e r a l a l l e g a t i o n s of e a r l i e r claims. T h i s is the

sort of conclusory allegation that Iqbal prohibits.

In his Opposition brief, Ciralsky incorrectly argues that he
only needs to state the elements of conspiracy and "the nature of

the actions Plaintiff believes the Defendants took and why."
Opp. at 22. U n d e r Icrbal. the p l a i n t i f f m u s t p l e a d m o r e t h a n the

elements of the cause of action.

The plaintiff must also allege
Because

at least s o m e f a c t s t h a t s u p p o r t a p l a u s i b l e claim.

Ciralsky provides no details of the alleged conspiracy, the
Section 1985 and 1986 claim will be dismissed.

D.

Qualified Immunity

Defendants a r g u e that t h e y are e n t i t l e d to q u a l i f i e d

immunity for the Bivens claims because Ciralsky does not
adequately allege that they were personally involved in unlawful conduct that violated a k n o w n constitutional right.
Supp. of Renewed Mot. to Dismiss at 17-22.

See Mem. in

Qualified immunity protects government officials whose
conduct does not v i o l a t e "clearly e s t a b l i s h e d . . .

constitutional rights of which a reasonable p e r s o n would have
known." P e a r s o n v. Callahan. 555 U.S. 223 (2009). In Egan, the

18

Supreme Court held that "no one has a 'right' to a security

clearance."

484 U.S. at 528.

Because there is not a clearly

established right to a security clearance, qualified immunity
shields the individual defendants from the Bivens claims.

Moreover, Ciralsky does not sufficiently allege a

discriminatory purpose for any of the defendants.

Instead, he

generally states that "all allegations in this c l a i m about

Defendants' conduct are alleged against each and every Defendant, jointly and severally, individually and acting with their
respective official capacities as federal officers and federal

agencies."

Second Am. Compl. at 1 23.

Such broad allegations

are the "threadbare" type explicitly prohibited by iqbal.

In his Opposition brief, Ciralsky does not present any

compelling arguments as to why qualified immunity does not apply,
and he fails to point to any specific violations of clearly
established constitutional rights, by any specific defendants.

Instead, without citing any Fourth Circuit authority to support
his position, plaintiff makes the bold claim that the Court

cannot grant a motion to dismiss based on qualified immunity.
See Opp. at 14. Accordingly, the Bivens claims would also have

to be dismissed because the defendants are entitled to qualified
immunity.
E. Statute of limitations

Lastly, defendants argue that Ciralsky's claims are time

19

barred.

See Mem. in Supp. of Renewed Mot. to Dismiss at 22-23,
A federal court should apply the state's

25-26, and 29-30.

personal injury s t a t u t e of limitations to Bivens claims.

Reinbold v. Evers. 187 F.3d 348, 358 n.10 (4th Cir. 1999).

Virginia's two-year statute of limitations for personal injury,
Va. Code. 8.01-243(A), therefore applies to all the Bivens

claims.

Similarly, the two-year statute of limitations for
See Johnson

personal injury applies to the Section 1985 claim.

v. Pep Boys, No. 2:02CV381, 2002 WL 32366165, at *6 (E.D. Va.

Oct. 23, 2002).
limitations.

Section 1986 contains a one-year statute of

Ciralsky filed the original complaint in the District of

Columbia on July 19, 2000.

Therefore, this lawsuit can only

challenge alleged wrongdoings that occurred after July 19, 1998.
Ciralsky argues that "the dates of most of the various events

leading to the termination are not stated" in the Second Amended

Complaint, so dismissal is inappropriate.

Opp. at 20.

To the

contrary, the Second Amended Complaint states that the CIA had

already completed its reinvestigation and revoked Ciralsky's
security clearance well before July 19, 1998. The action that is

at the center of Ciralsky's complaint - the revocation of his

security clearance - actually occurred on July 2, 1998.
Therefore, Ciralsky's Bivens and Section 1985 and 1986 claims are

20

time-barred.5
IV. Conclusion

For the reasons s t a t e d above, d e f e n d a n t ' s M o t i o n to Dismiss

[Dkt. No. 77] will be granted as to all counts, by an Order to be
issued with this Memorandum Opinion.

Entered this /5 day of November, 2010.

Alexandria, V i r g i n i a
bL
Leonie M. Brinkema

United States District Judge

Defendants also argue that the FISA claim is time-barred.

Neither the FISA statute nor Fourth Circuit case law identifies a
clear statute of limitations.
of l i m i t a t i o n s argument.
21

Because the FISA claim will be

dismissed for lack of subject matter jurisdiction and failure to
state a claim, it is unnecessary to further consider the statute