Chesser v. Chesser et al

Filing 103

MEMORANDUM OPINION. Signed by District Judge Liam O'Grady on 2/17/2017. (dest, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Zachary Chesser
also known as

Abu Talhah,
Plaintiff,

I:13cvl29 (LO/IDD)
Appeal No. 13-7239

V.

Federal Bureau of Investigation, et al.
Defendants.
MEMORANDUM OPINION

Zachary Chesser, also known as Abu Talhah, a federal inmate proceeding gro

filed a

civil rights action pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics.

403 U.S. 388 (1971), the Foreign Intelligence Surveillance Act, and the Privacy Act. Dkt. No. 1.
Plaintiff alleged that various federal officials conspired with his mother regarding the custody

proceedingsfor his son. Id By Order dated February 14,2013, plaintiffs complaint was
dismissed as fnvolous, pursuant to 28 U.S.C. § 1915A(b)(l). Dkt. No. 6.

Plaintiff appealed and on May 1,2015, the United States Court of Appeals for the Fourth
Circuit affirmed in part and remanded in part. Appeal No. 13-7239. The Fourth Circuit

remandedthe matter to allow plaintiff to submit "an amended complaintraising only a Privacy
Act claim against the FBI and Secret Service." Id.

On July 23,2015, the court received plaintiffs second amended complaint in which he

asserted Privacy Act claims against the United States Secret Service ("USSS") and the Federal

Bureau of Investigation ("FBI").^ Dkt. No. 52. Defendants have filed a Motion to Dismiss and
Motion for Summary Judgment, as well as memoranda of law with supporting exhibits. Dkt.

^Because plaintiff's claims will be dismissed, the Court will assume, without deciding,
that the USSS and the FBI are the properly named defendants in this civil matter.

Nos. 78-80. Plaintiff was given the Notice required by Local Rule 7(K) and the opportunityto
file responsive materials pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). After
having been granted an extension of time to respond, plaintiff filed a Response to Defendants'
Motion to Dismiss. Dkt. No. 95. After receiving an extension of time to file, defendants filed a

Reply Memorandum in Support of Defendants' Motion to Dismiss and Motion for Summary
Judgment. Dkt. Nos. 100-101. This matter is now ripe for adjudication.
1. Background
A. Motion to Dismiss

Plaintiffs allegations, which will be taken as true for purposes of the Motion to Dismiss,

are as follow. Plaintiff is currently an incarceratedfederal inmate. SAC at f 6. He is married to
ProscoviaNzabanita ("Proscovia") and together they have a child, T.C. Id. at 19. Plaintiffs
mother is Barbara Chesser ("Barbara") and Proscovia's mother is Cecilia Nzabanita ("Cecilia").

Plaintiffwas arrested in July 2010, and charged with providing material support to
terrorists. Id at T[ 15. Both before and afterhis arrest, the FBI monitored plaintiffs and
Proscovia's communications. Id, at

40-46. On October20,2010, plaintiffpled guilty because

he was afi-aid that his son would not be raised as a Muslim if his wife were imprisoned. Id at fK
17-18. Plaintiffwas sentenced to 300 months in prisonon February 24,2011. Id at ^ 21.

^For purposes ofthe Motion to Dismiss, the Court also relies on evidence plaintiff
explicitly relied on in the second amended complaint, as plaintiffdoes not challenge the
authenticity of this evidence. ^ Kerrv. Marshall Univ. Bd. of Governors. 824 F.3d 62,68 (4th
Cir. 2016) ("Inruling on a motion to dismiss forfailure to state a claim, courts may rely on
evidence that is extraneous to thecomplaint without converting the motion to onefor summary
judgment — provided that the evidence's authenticity is not challenged andthe evidence is
integral to and explicitly reliedon in the complaint") (internal quotation marks and citation
omitted). The evidence relied upon includes court orders from the underlying custody matters

to plaintiffs son
^ January 18,
2011 Memorandum written by FBI agents, anda January 19,2011 email from an FBIagent to
plaintiffs mother.

Proscovia pled guilty to making false statements to federal officials on November 8,2010, and as

part of her plea deal she agreed to relinquish her legal status in the United States and to leave the
country by March 8,2011. Id, at

23-24.

Plaintiff asserts six counts of violations of the Privacy Act.
i. Count One - January 19,2011 Email from Agent Menges to Barbara's
Attorney

Priorto

plaintiffand Proscovia planned to send

T.C. to Jordan on January 19,2011, with a friend, to demonstrate that T.C. would be safe,
regardless of what happened to Proscovia, and '*to ensure that he would be with Muslims in a

worst case scenario." SAC at fl 47-50. On January 18,2011, FBI Agents Hersem and Piro
wrote a memorandum to an assistant United States Attorney regarding plaintiffs and Proscovia's

plan. PI. 0pp. to MTD/MSJ at Ex. A. The agents wrote that the FBI believed neither plaintiff

nor Proscovia had violated any laws, but that, because of|
both plaintiffand Proscovia couldbe in danger of beingcharged with violating a courtorder or
state law in the future, which would be a violation of their plea deals. Id. The next day, FBI
Agent Menges emailed a copy of this memorandum to Barbara's attorney. Id. at Ex. B. The
email also stated that a copy ofthe memorandum was sent to plaintiff and Proscovia "by way of

their known attorneys." Id This disclosure of a record stored in an FBI system of records was
willful and intentional, and caused plaintiff to spend money fighting evidence from the

disclosure in child custody proceedings and in mitigating its harmto him in the public. SAC at
56-64.

ii. Count Two - January 19,2011 Phone Call from Agent Kirgan to Barbara
On January 19,2011, FBI Agents Kirgan and Menges, as well as unknown U.S. Marshals

and New York City Police Department officers, intercepted T.C. and plaintiffs friend at JFK

Airport, refusing to allow them to leave for Jordan. Id. at H65-66. During this time, Agent
Kirgan and another unknown FBI agent called Barbara to inform her of plaintiffs and

Proscovia's plan to send T.C. to Jordan. Id. at ^ 67-68. The events that took place at the airport
were documented in records after the incident. Id at 171. The disclosure of this information

was willfiil and intentional, and caused plamtiff to spend money fighting the use of information

from the disclosure in child custodyproceedingsand in mitigatingits harm to him in the public.
Id at

74-75. Barbara and her attorney have also used this information to try to have Proscovia

and T.C.'s Jordanian visas revoked, which would have forced them to go to Uganda where

Proscovia's life is in danger. Id at

16-11. The Jordanian government mterrogated Proscovia,

kicked her out ofthe university she was attending, and ordered her to leave the country while
attempting to arrest her. Id at

78-80. Proscovia was a fugitive for a month until she was

declared a refugee by the United Nations; however, she is unable to work in Jordan and lives off
assistance from the United Nations and others. Id at

81-82. Because of Proscovia's limited

ability to work, she is no longer able to send money to support plaintiff. Id at

83-84.

iii. Count Three - July 12,2011 Phone Call Between Agent Kinder and
Barbara

On July 12,2011, FBI Agent Kinder allegedly called Barbara to inform her that (1)
plaintiff and Proscovia planned to send T.C. to Jordan with Cecilia so that T.C. could be with

Proscovia,and (2) T.C. had been attendinga mosque and wearing Islamic clothing while in
Cecilia's care. Id at K87-90. This disclosure of information contained in FBI records was based

on plaintiffs communications andthe surveillance of Proscovia. Id at UTI95-96,98-99. Plaintiff
learned of this disclosure based on testimony from the custody proceedings. Id at 197. Plaintiff
claims the disclosure of this information was willful and intentional, and causedplaintiff to

spend money fighting the use ofthis information in child custody proceedings and in mitigating
its harm to him in the public. Id at

100-102.

iv. Count Four - December 2011 Phone Call Between Agent Kinder and
T.C.'s Guardian Ad Litem

In December 2011, T.C.'s GAL "called the FBI to verify the information" disclosed to

Barbara, as alleged in Count Three. Id at 1[ 105. During the call, Agent Kinder disclosed the
same information to the minor child's GAL. Id at KH 106-107. The disclosure of this
to T.C.'s GAL

willful and intentional, and caused plaintiff to spend money fighting the use of this information

in child custody proceedings and in mitigating its harm to him in the public. Id at

108-110.

V. Count Five - Copy of Draft Article

AvivaStahl beganresearching the events outlmed in the second amended complamt to
write an article. Id at H113. Plaintiffs GALprovidedher with a transcriptofthe custody
hearing. Id at H114. In January 2012, Barbara obtained a draft of Stahl's article, which "was

not the same as [the] one Stahl sent" plaintiff; therefore, plaintiff claims, the only way Barbara

couldhave obtained the draft article was if an FBI agentprovided it to her from records they kept
ofplaintiffs communications. Id at

115-118.

Thedisclosure of this information, which was part of an FBI system of records, was allegedly
willful and intentional. Id at UK 125-126.

vi. Count Six - November 26,2012 Disclosure of FBI Records

On November 26,2012, the FBI informed plaintiff that, in response to a request for

information, they disclosed information aboutplaintiffcontained in FBI records. Id. at 1128.
This intentional and willful disclosure of information was supposedly based on the "health or

safety" exception to the Privacy Act, despite the fact that plaintiff was not affecting anyone's
health or safety at the time. Id at

129,134,136. Plaintiff spent money learning what

information was disclosed and to whom it was disclosed. Id. at H133. He learned that the

informationwas disclosed to either Barbara, her attomey, or T.C.'s GAL for use in the custody
proceedings. Id. at^ 130.
B. Motion for Summary Judgment

Attached to their Motion for Summary Judgment, defendants provided sworn affidavits

from Barbara and Agent Kinder. Defs. MTD/MSJat Exs. 4,5. In her affidavit, Agent Kinder
states that she called Barbara on July 12,2011 to ask about the current terms of T.C.'s custody

and whether he was prohibited from traveling outside the United States. Id at Ex. 4. Agent
Kinder also states that she "did not disclose any information about [plaintiffs and Proscovia's]
plans;" rather, Barbara answered Agent Kinder's questions and the call ended. Id Finally,
Agent Kinder states that she did not "disclose or share any draft article or information regarding

any of [plaintiffs] communications with Aviva Stahl with [Barbara] or any other member of the
public." Id

In her affidavit, Barbarastates that, prior to the July 12,2011, phone call from Agent
Kinder, Cecilia told her that "she was planning on taking T.C. to visit his mother 'very soon,'"
prompting Barbara to consult with her attomey about modifying the custody arrangements. Id at
Ex. 5. Barbara states that, during the call from Agent Kinder, she was asked about the terms of

the custody agreement for T.C. and whether T.C. was allowed to travel out of the United States,

but that Agent Kinder did not disclose any informationto her about plaintiff or the minor child.
Id. Barbara states that she answered Agent Kinder's questions and then ended the call, at which
point she feared that Cecilia would take T.C. to Jordan where he would be in unsafe conditions.

Id Finally, Barbara statesthat she received a draft article beingwrittenby AvivaStahlfrom her
attorney, who receivedthe copy from T.C.'s GAL. Id The letter from Barbara's attorneythat
was sent to Barbara with the draft article states 'the author is a woman by the name of Aviva
Stahl.... Apparently [plaintiffs GAL] is communicatingwith her about the article, but at this

time we do not know how she obtained a copy of the transcript." Id
II. Privacy Act

"The Privacy Act of 1974, codified in part at 5 U.S.C. § 552a, contains a comprehensive
and detailed set of requirements for the managementof confidential records held by Executive

Branchagencies." F.A.A. v. Cooper. 132S. Ct. 1441,1446 (2012). "No agency shall disclose
any record which is contained in a systemof records ... to any person, or to anotheragency,
except pursuant to a written request by, or with the prior written consent of, the individual to

whomthe record pertains, unless disclosure of the record" falls underone of a list of exceptions.
5 U.S.C. § 552a(b). Should an agency violate the requkements set out in the Privacy Act,
[t]he text of §§ 552a(g)(l)(D) and (g)(4) clearly provide that (1) if an individual
can show an adverse effect (2) caused by the Government's intentional or willftil
breach of the statute, (3) the Government shall be liable to that individual for the

sum of (a) actual damages and (b) the costs and reasonable attorneyfees of the
action.

Doe V. Chao. 435 F.3d 492,495 (4th Cir. 2006) (alterations omitted); s^ also Ouinnv. Stone.
978 F.2d 126,131 (3d Cir. 1992) (holding the elements of a cause of action under

§ 552a(g)(l)(D) are "(1) the information is covered by the Act as a ^record' contained in a

'system of records'; (2) the agency 'disclose[d]' the information; (3) the disclosure had an

'adverse effect' on the plaintiff(an elementwhich separates itself into two components: (a) an
adverse effect standing requirement and (b) a causal nexus between the disclosure and the

adverse effect); and (4) the disclosure was 'willful or intentional'") (alteration in original).
[T]he [Privacy Act] establishes a standard of intentional or willful behavior that,
on a continuum between negligence and the very high standard of willful,
arbitrary, or capricious conduct is viewed as only somewhat greater than gross
negligence. Thus, the standard for intentional or willful behavior under the
Privacy Act has been articulated as an act committed without grounds for
believing it to be lawfiil, or by flagrantly disregarding others' rights under the
Act.

Scrimeeour v. Internal Revenue. 149 F.3d 318,326 (4th Cir. 1998) (internal quotation marks,
citations, and alterations omitted).
III. Motion to Dismiss
A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss those allegations
which fail "to state a claim upon which relief can be granted." A court may dismiss claims based
upon dispositive issues of law. Hishon v. King & Soalding. 467 U.S. 69, 73 (1984). The alleged

facts are presumed true, and the complaint should be dismissed only when "it is clear that no
relief could be granted under any set of facts that could be proved consistent with the
allegations." Id To survive a 12(b)(6) motion, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v.

labal. 556 U.S. 662,678 (2009) (quoting Bell Atlantic Corp. v. Twomblv. 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the plaintiffpleads factual content that allows the

court to draw the reasonable inferencethat the defendant is liable for the misconduct alleged."

Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice" to meet this standard, id., and a plaintiffs "[f]actual
allegations must be enough to raise a right to relief above the speculative level

" Twomblv.

550 U.S. at 55.

On the other hand, where, as here, a complaint is filed by a prisoner acting pro se, it must
be construed liberally no matter how unskillfully it is pleaded. Haines v. Kemer. 404 U.S. 519
(1972). A pro ^ litigant thus is not held to the strict pleading requirements demanded of

attorneys. Estelle v. Gamble. 429 U.S. 97,106-07 (1976); Figgins v. Hudspeth. 584 F.2d 1345

(4th Cir. 1978), cert, denied. 441 U.S. 913 (1979). For these reasons, a court's "power
summarily to dismiss a prisoner's pro ^ complaint is limited." Figgins. 584 F.2d at 1347.

B. Counts One and Two - January 19,2011 Email from Agent Menges to Barbara's
Attorney and January 19,2011 Phone Call from Agent Kirgan to Barbara

Defendants argue that plaintiffhas failed to sufficiently plead that Agent Menges' and
Agent Kinder's disclosures of plaintiffs and Proscovia's plan to have their fnend take T.C. to
Jordan in January 2011 were intentional or willful. Defs. MTD/MSJ at 21-22,29. In Counts

One and Two, plaintiff asserts nothing more than the conclusory allegation that defendants acted
intentionally and willfully. SAC at ^ 58, 75. "Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements" are insufficient to survive a Rule 12(b)(6)

motion. Twomblv. 550 U.S. at 55. In fact, at the pleading stage, conclusory allegations need not
be taken as true. SeeBeck v. McDonald. (4th Cir.Feb. 6,2017) ("Wedo not, however, apply
the same presumption of truth to 'conclusory statements' and 'legal conclusions' contained in
[plaintiffs] complaint.") (citations omitted).

In response, plaintiffargues that it can be inferred that defendants actedintentionally and

willfully because they (1) had "no business in interfering in custody issues ... where the parents
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are acting legally," (2) continuedto interferefor two more years, making it "highly unlikely that
this multi-yearconspiracy was an 'honest mistake,'" (3) used a "massive response" to stop the
trip to Jordan, (4) wanted Barbara to have custody of T.C. because she works next to a FBI field

office while plaintiff is a convicted terrorist, (5) "revealed active FISA surveillance" with this

disclosure, and (6) used plaintiff's son to secure a guilty plea and knew plaintiff was considering
a collateral attack on his plea. PI. 0pp. to MTD/MSJ at 10-12,15-16. However, it is not
reasonable to infer that defendants acted intentionally or willfully based on the allegations in the
second amended complaint. At most, it is reasonable to infer that defendants acted with gross
negligence. Accordingly, plaintiff has not pled that the January 19,2011 disclosures described

in Counts One and Two were "committed without grounds for believing it to be lawful, or by
flagrantly disregarding others' rights under the Act." Therefore, Coimts One and Two will be
dismissed with prejudice for failure to state a claim upon which relief can be granted. See
Piccone v. U.S. Patent & Trademark Office. 2015 WL 6499687, at *5 (E.D. Va. Oct. 27,2015)

("Plaintiff's complaint with regards to his Privacy Act claim is ... nothing more than exactly the
kind of formulaic recitation of the elements of a cause of action which will not do.") (internal
quotation marks, citations, and alterations omitted).

C. Count Four - December 2011 Phone Call Between Agent Kinder and T.C.'s
Guardian Ad Litem

In Count Four, plaintiff alleges that Agent Kinder disclosed information in violation of

the Privacy Act during a phone call with T.C.'s GAL in December 2011; however, taking all of
plaintiffs allegations as true, he is not entitled to relief because he states that T.C.'s GAL knew

the informationallegedly disclosed prior to the December2011 phone call. Specifically,

plaintiff alleges that T.C.'s GAL called the FBI to "confirm"the information previously

11

disclosed to Barbara. In other words, the allegations establish that T.C.'s GAL first learned of
the information from a source other than defendants.

Other courts ... held that the [PrivacyAct] is not violated when a government
agency makes available information that is known by the recipient, "averring the
'common sense' notion that it is not possible to 'disclose' something to someone
who already knows it." Pilon v. U.S. Dep't of Justice. 73 F.3d 1111,1112
(D.C.Cir.l996) (citing Ouinnv. Stone. 978 F.2d 126 (3rd Cir.1992); Kline v.

Dep't ofHeal^ and Human Services. 927 F.2d 522 (10th Cir.1991); Reves v.
Supervisor of D.E.A.. 834 F.2d 1093 (1st Cir.1987); and Pellerin v. Veterans
Admin.. 790 F.2d 1553 (11th Cir.1986)).

Jones v.Runvon. 32 F. Supp. 2d 873, 876 (N.D.W. Va. 1998),

173 F.3d 850 (4th Cir.

1999). Accordingly, Count Four will be dismissed with prejudice for failure to state a claim
upon which relief can be granted.
D. Count Six - November 26,2012 Disclosure of FBI Records

In Count Six, plaintiff alleges that the FBI's November 26,2012 disclosure of

informationin response to a request for informationviolated the Privacy Act. Defendants argue
that plaintiff has failed to sufficiently plead that the disclosures made in November 2012 were

intentional or willful. Defs. MTD/MSJat 38. In the second amended complaint, plaintiff asserts
that the FBI informed him that they disclosedtheir records pursuant to an exception to the
Privacy Act.

SAC at K129. Specifically, 5 U.S.C. § 552a(b)(8) allows for the disclosure of

documents "to a personpursuant to a showmg of compelling circumstances affecting the health
or safety of an individual if upon such disclosure notification is transmitted to the last known

address of such individual." Plaintiff goes on to claim, in a conclusoryfashion, that the

disclosure did not meet § 552a(b)(8)'s standards, because it was not necessary in orderto protect
T.C.'s health and safety, and that the disclosure was intentional and willful. Id at

134,136;

PI. 0pp. to MTD/MSJ at 35-36. The standard for determining if an actionwas intentional or

willful is not whether it fell under one of the Privacy Act's exceptions to the prohibition of
12

disclosure; rather, it is whether the "act [was] committed without grounds for believing it to be
lawful, or by flagrantly disregarding others' rights under the Act." Because the letter informing

plaintiffof the disclosure establishes that defendants believed their disclosure was legal pursuant
to § 552a(b)(8), plaintiff cannot establish that defendants' disclosure was intentional and willful.

Accordingly, Count Six will be dismissed with prejudicefor failure to state a claim upon which
relief can be granted.
IV. Motion for Summary Judgment
A. Standard of Review

Summaryjudgment "shall be renderedforthwith ifthe pleadings, depositions, answers to

interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that judgment on

the pleadings is appropriate. See CelotexCorp. v. Citrate. 477 U.S. 317,323 (1986) (moving
party bears the burden of persuasionon all relevant issues). To meet that burden, the moving
party must demonstrate that no genuine issues of material fact are present for resolution. Id. at
322. Once a moving party has met its burden to show that it is entitled to judgment as a matter

of law, the burden then shifts to the non-moving party to point out the specific facts which create

disputed factual issues. Anderson v. Libertv Lobby. Inc.. 477 U.S. 242,248 (1986); Matsushita
Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a

motion for summary judgment, a district courtshould consider the evidence in the lightmost
favorable to the non-moving party and draw all reasonable inferences from those facts in favor of

that party. United States v. Diebold. Inc.. 369 U.S. 654,655 (1962). Those facts which the

moving party bears the burden of proving are facts which are material. "[T]he substantive law

13

will identify which facts are material. Only disputes over facts which might affect the outcome

of the suit under the governing law will properly precludethe entry of summary judgment."
Anderson. 477 U.S. at 248. An issue of material fact is genuine when, *the evidence... create[s]
[a] fair doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite

Corp.. 759 F.2d 355,364 (4th Cir. 1985). Thus, summary judgment is appropriate only where no
material facts are genuinely disputed and the evidence as a whole could not lead a rational fact
finder to rule for the non-moving party. Matsushita, 475 U.S. at 587.

B. Count Three - July 12,2011 Phone Call Between Agent Kinder and Barbara

Plaintiff claims that Agent Kinder told Barbara that Cecelia had plans to take T.C. to
Jordan and that T.C. had been attendinga mosque and wearing Islamic clothing while with
Cecelia; however, defendants' affidavits establish that Agent Kinder and Barbara never

discussed this informationduring their July 12,2011 phone call. In response, plaintiff argues
that Barbara and Agent Kinder's statements

are undermined by their past inquiry into the terms of the agreement...;
Barbara's willingness to lie in order to obtam custody of T.C....; her willingness

to literally subject Proscovia to alife-threatening situation to take T.C

;|||

and the
repeated disclosures and close relationship between [Barbara] and the FBI in this
affair ....

PI. 0pp. to MTD/MSJ at 18-19. Plaintiffs arguments as to the credibility of these affidavits are
merely speculative because he was not a party to the conversation. Therefore, his sworn
statements are insufficient to present a conflicting version of the facts. See Fed. R. Civ. P. 56

("[a]naffidavit or declaration usedto support or oppose a motion must be made on personal
knowledge"); Scottv. Harris. 550 U.S. 372, 380 (2007) ("[w]hen opposing partiestell two

different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court shouldnot adoptthat version of the facts for purposes of rulingon a
14

motionfor summary judgment"). Accordingly, the undisputed facts establish that Agent Kinder
did not disclose informationabout T.C. to Barbara on July 12,2011. Because a disclosure is
necessary for a violation ofthe Privacy Act to have occurred, defendants have established that

they are entitled to judgment on the pleadings.

5 U.S.C.A. § 552a(b); Ouinn. 978 F.2d at

131. Thus, judgment will be entered in favor of defendants on Count Three.

C. Count Five - Copy of Draft Article

In Count Five, plaintiff asserts that Agent Kinder provided a draft of Stahl's article to

Barbara. Specifically, plaintiff clauns that 'the only way Barbara [] could have obtamed [Stahl's
draft article] is if an FBI employee disclosed it to her;" SAC at K117, however, Barbara states in
her affidavit that she received a draft of the article from her attorney, who in turn received it

from T.C.'s GAL. Defs. MTD/MSJ at Ex. 5. Barbarahas also provideda copy of the letter from
her attorney to which the draft articlewas attached, corroborating her testimony. Id In addition,
Agent Kinder stated in her affidavit that she never disclosed the draft article to Barbara. Id at

Ex. 4. Finally, in the second amended complaint, plaintiff states that the draft article Barbara

receivedwas not the same as the draft he received, whichundermines his argument that the draft
article was taken from his records. S^ SAC at H116. Accordingly, the undisputed facts
establish that there was no disclosure of the draft article from defendants to Barbara.

In response, plaintiffargues that "even if Kinder didn't disclose [the draft article] and
[T.C.'s GAL] is the one who sent it to Barbara's attorney, it doesn't changethe fact that
somehow someone in the FBI disclosed it to somebody and that this disclosure resulted in

[plaintiff s] harms." PI. 0pp. to MTD/MSJ at 23. Theseconclusory allegations that someone in

the FBIdisclosed the article to someone elseare insufficient to meet plaintiff's burden of

15

creating a genuinely disputed fact. Accordingly, judgment will be entered in favor of defendants
on Count Five.

V. Pending Motions

Plaintiff has filed a Motion to Seal his Opposition to Defendant's Motion to Dismiss and

defendants have filed a Motion to File Document Partially UnderSeal. Dkt.Nos. 94, 98. By
Order dated September 1,2016, the parties were directed to submitall filings in this matter

referencing sealeddocuments related to T.C. underseal. Dkt. No. 88. As both plaintiffs
Response to the Motion to Dismiss and defendants' Reply Memorandum reference previously
sealed documents related to the minor child, the motions will be granted.
VI. Conclusion

For the reasons stated above, defendants' Motion to Dismiss and Motion for Summary

Judgment will be granted and this civil action will be closed. In addition, the pending motions to
seal documents will be granted. An appropriate Order shall issue.

is

Entered this

_day ofSk

2017.

Alexandria, Virginia

Ml
L'Kiin O'CiiLiUy

Unlicd Sialos DislrictluJge

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