Palmieri v. United States of America
72 F. Supp. 3d 191
D.D.C.2014Background
- Palmieri, a former government contractor, sues the United States in a 30-count action challenging the security-clearance investigation, the DOHA hearing, the resulting suspension and revocation, and responses to his records requests.
- Palmieri resided in Bahrain during the investigation and learned of the investigation around late 2009/early 2010 while working as a contractor.
- The government conducted surveillance and data collection (Facebook access, emails, hard drives, phone records) and conducted a Bahrain-field interrogation; a polygraph was given in July 2011.
- A DOHA Administrative Judge issued a favorable finding to the government on the reserve military-member allegation in November 2012, and the DOHA Appeal Board affirmed, allowing hearsay evidence under the Directive.
- Palmieri appealed, seeking to prohibit hearsay, challenge the hearing process, and obtain records; the court ultimately grants partial dismissal, grants summary judgment on one APA issue, and allows FOIA/Privacy Act remaining claims to proceed with a narrowed scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review security-clearance decisions. | Palmieri seeks judicial review of the clearance investigation and revocation. | Egan v. Navy bars judicial review of national-security clearance decisions. | No jurisdiction to review those security-clearance decisions. |
| Whether SCA claims against the United States lie in this suit. | SCA violations occurred in the conduct of the investigation. | SCA lacks sovereign-immunity waiver for equitable claims and FTCA prerequisite blocks damages. | SCA claims dismissed for lack of jurisdiction. |
| Whether the Bivens claim against named NCIS officers survives jurisdictional hurdles. | Personal injuries from alleged interrogation in Bahrain support Bivens liability. | Court lacks personal jurisdiction over individual defendants. | Bivens claim dismissed for lack of personal jurisdiction. |
| Whether due process/APA challenges to the DOHA hearing survive. | DOHA improperly denied cross-examination and naming of witnesses. | DOHA complied with directives; cross-examination not required for out-of-hearsay evidence. | APA claim regarding cross-examination rejected; other related claims dismissed. |
| Whether Privacy Act/FOIA claims against the six agencies survive. | Disclosures and record-keeping violated the Privacy Act/FOIA. | Claims lack explicit damages and fail to plead specifics; exemptions and need-to-know justify some disclosures. | FOIA/Privacy Act claims may proceed with further narrowing; other privacy claims largely dismissed. |
Key Cases Cited
- Department of Navy v. Egan, 484 U.S. 518 (U.S. 1988) (court exercises restraint reviewing security-clearance decisions; national-security concerns foreclose review)
- Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) (no liberty interest in a security clearance where none exists; due process not cognizable)
- Doe v. Chao, 540 U.S. 614 (U.S. 2004) (Privacy Act damages require actual injury; exemptions apply to disclosures)
- United States v. Knotts, 460 U.S. 276 (U.S. 1983) (GPS/fixed surveillance not applicable here; public-travel expectation of privacy limited)
- Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009) (reviewing agency discretion in security-clearance context; limits on judicial review)