896 F.3d 579
D.C. Cir.2018Background
- Matthew Palmieri, a cleared contractor systems engineer, was investigated after a colleague reported his contact with Syrian nationals; NCIS reviewed emails, seized work computers, and administered a polygraph.
- NCIS reported polygraph deception and alleged Palmieri had asked the reservist not to report him; the Defense Department suspended and then DOHA revoked his security clearance, leading to job loss.
- Palmieri filed a 30‑count pro se complaint asserting constitutional and statutory claims (Privacy Act, APA, Stored Communications Act, FISA, Bivens claims, etc.) against multiple agencies and officials.
- The district court dismissed 23 counts, partially dismissed one, and required more definite statements for several others; it later granted summary judgment against the remaining counts.
- On appeal, this Court (with court‑appointed amicus briefing for Palmieri) affirmed in full, rejecting challenges ranging from Egan preclusion to merits, qualified immunity, and procedural adequacy of the DOHA proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Egan bars judicial review of constitutional/statutory challenges to clearance decisions | Palmieri argued government violated multiple constitutional rights and statutes in investigating and revoking clearance | Government relied on Egan to say clearance decisions are committed to the Executive and not judicially reviewable | Court treated many such claims as barred by Egan or resolved them on other grounds; counts presenting frivolous constitutional challenges were dismissed under Egan principles |
| Privacy Act claims (creation/use of records; unlawful acquisition) | Palmieri alleged records impermissibly documented First Amendment activity and agents obtained personnel records under false pretenses | Government argued records were part of authorized law‑enforcement investigation; individual agents are not ‘‘agencies’’ for Privacy Act civil remedies | Counts dismissed on the merits: records were permissible under §552a(e)(7) and criminal/ civil provisions were improperly conflated (no civil remedy against individuals under §552a(g)) |
| Bivens due‑process claims for job/removal (personal capacity) | Palmieri alleged NCIS/DoD officials deprived him of due process in removing him from positions | Government asserted Egan and qualified immunity; also contested personal jurisdiction for some individual‑capacity claims | Court affirmed dismissal mainly on qualified immunity grounds (plaintiff/amicus failed to show clearly established rights) and lack of personal‑jurisdiction for overseas interrogation claim |
| Procedural and APA challenge to DOHA admission of Carpenter’s letter and denial of confrontation | Palmieri claimed DOHA improperly admitted hearsay (Carpenter letter) and denied chance to confront the reservist | Government argued DOHA procedures permit relaxed rules of evidence and Palmieri was offered the opportunity to call the reservist but declined | Court upheld DOHA: administrative judge and appeal board permissibly admitted the business record and Palmieri waived confrontation by declining to secure reservist testimony; APA claim denied |
| Fourth Amendment / FISA claims for searches of workspace, computers, and Facebook | Palmieri/amicus alleged unlawful searches/seizures and FISA violations (including covert access to Facebook) | Government argued searches were reasonable workplace investigations and Facebook info was accessed via a third party with authorized access | Court held: Facebook access involved third‑party disclosure (no expectation of privacy); searches of workspace/computers were reasonable under O’Connor standards; FISA claim failed to state a claim |
| Stored Communications Act challenge to seizure of work emails | Palmieri claimed seizure of work emails violated SCA's disclosure/warrant requirements | Government argued the emails and computers were employer/government records, not third‑party disclosures triggered by SCA | Court dismissed SCA claims: government did not ‘‘disclose’’ its own records to a service provider as contemplated by the statute |
Key Cases Cited
- Department of Navy v. Egan, 484 U.S. 518 (holding security‑clearance determinations are committed to the Executive and generally not subject to judicial second‑guessing)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (establishing implied damages remedy for certain constitutional violations by federal officers)
- Nat’l Fed’n of Fed. Employees v. Greenberg, 983 F.2d 286 (D.C. Cir.) (Egan does not bar review of unconstitutional investigatory methods in some contexts)
- O’Connor v. Ortega, 480 U.S. 709 (plurality) (framework for reasonableness of workplace searches by public employers)
- Smith v. Maryland, 442 U.S. 735 (no legitimate expectation of privacy in information voluntarily disclosed to third parties)
- United States v. Miller, 425 U.S. 435 (no Fourth Amendment protection for records held by third parties)
- Gill v. U.S. Dep’t of Justice, 875 F.3d 677 (D.C. Cir.) (plaintiff may have liberty interest from clearance revocation in some circumstances; affirms adequacy of DOHA procedures)
- Fox v. District of Columbia, 794 F.3d 25 (D.C. Cir.) (appellate forfeiture principles and standard for contesting qualified immunity)