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Carlson v. United States Department of Energy

United States District Court, D. New Mexico

October 26, 2018

ROLF ERIK CARLSON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

         This matter is before the Court on the United States Department of Energy's (Defendant or DOE) Motion to Dismiss (Doc. 22) and Rolf Erik Carlson's (Plaintiff) Motion for Leave to File Amended Complaint (Doc. 41). Jurisdiction arises under 28 U.S.C. § 1331.[1] Plaintiff alleges that Defendant violated several provisions of the Privacy Act, 5 U.S.C. § 552a, by denying his requests to amend and review materials in his Personnel Security File (PSF). (See Doc. 33 (Compl.) at 1.) Defendant argues that Plaintiff has failed to state a claim upon which relief can be granted because Plaintiff is no longer a DOE employee. (See Doc. 23 at 9.) After considering the submissions of counsel and relevant law, the Court will grant in part and deny in part Defendant's Motion to Dismiss and deny Plaintiff's Motion for Leave to File Amended Complaint.

         I. Factual Background

         A. Plaintiff's Request to Amend his PSF

         In 2010, while Plaintiff was employed by the DOE, his security clearance was suspended. (See Compl. at 5; see also Doc. 41-1 at 2.) The materials the DOE relied on to suspend Plaintiff's security clearance are contained in his PSF. (See Compl. at 5.) In March 2011, Plaintiff's security authorization was terminated. (Doc. 41-1 at 8.) Around that time he ceased working for the DOE. (See Id. at 10; see also Doc. 23 at 3.) In December 2014, believing certain materials the DOE relied on to suspend his security clearance were inaccurate and incomplete, Plaintiff submitted four requests to amend and review his PSF to the National Nuclear Security Administration (NNSA), an agency within the DOE. (See Compl. at 2, 12.)

         Plaintiff's requests included: (1) that information about a medical prescription be added to his file, and that an existing statement in his file regarding medical care be reevaluated in light of the new prescription information; (2) that an invoice from his doctor be added to his file, and an existing statement about medical care be reevaluated in light of the new doctor's invoice; (3) that a letter from his doctor be added to his file, and that an existing statement in his file regarding his medical diagnosis be reevaluated in light of the new letter; and (4) that progress notes from his doctor be added to his file, and that existing progress notes in his file be reevaluated for completeness in light of the new notes. (Id. at 12-14.)

         In April 2015, the NNSA Office of Personnel and Facility Clearances denied Plaintiff's requests. (Id.) In response to each of Plaintiff's requests to add new material to his PSF, the NNSA explained that the new material was an “unsubstantial amendment which has little or no bearing on his [PSF] . . . . [Plaintiff] has not shown that the information in his file is relevant and the information he is seeking to amend (introduce) to his PSF does not correct any factual information contained in the file.” (Id.) The NNSA also denied each of Plaintiff's requests to review the existing material in the PSF, stating that Plaintiff “is not requesting relevancy/accuracy information already existing in his PSF, he is requesting relevancy/accuracy of newly introduced information.” (Id. at 13-14.)

         Plaintiff appealed the denials through the proper administrative channels, and in July 2015 the DOE Office of Hearings and Appeals (Appeals Office) affirmed the NNSA's denial of all four requests. (Id. at 8.) In its order, the Appeals Office noted that the NNSA was incorrect in concluding that Plaintiff had been seeking a review of the accuracy of new information in his file, when in fact he had sought to introduce new information that would be used to review the accuracy of existing information already in his file. (See Id. at 9-10 (“We believe that Dr. Carlson's inquiries were valid under 10 C.F.R. § 1008.6(a)(3)(i)-(ii).”).) However, the Appeals Office noted that, despite this misinterpretation of Plaintiff's request, the NNSA properly denied the amendment requests because Plaintiff's DOE security clearance was no longer being investigated. (Id. at 10.) “Although the Appeal only challenges NNSA's determination that Dr. Carlson was seeking the accuracy of newly introduced information, . . . we believe that the denial of Dr. Carlson's requests for amendment and accuracy were both appropriate.” (Id.) The Appeals Office noted that if Plaintiff were to be investigated for a security clearance again in the future, he could properly request review of his PSF at that time. (Id.) Plaintiff then timely filed suit in this Court challenging the Appeals Office's final order. (Id. at 2-5.)

         Plaintiff alleges that his requests were improperly denied because the Appeals Office misinterpreted the term “determination, ” and the suspension and termination of his security clearance were adverse determinations warranting amendment of his PSF. (Id. at 3-5.) He argues that the Appeals Office “should have approved the appeal . . . because there had already been a determination and there was a question of the accuracy of the challenged information from Plaintiffs [sic] PSF.” (Id. at 5.) Plaintiff further argues that “the information in Plaintiff's PSF is subject to availability and disclosure through routine use regardless of an employer rescinding a request for a security clearance.” (Doc. 41-1 at 11; see also Doc. 26 at 4 (“DOE's routine use requirement . . . means that Plaintiff's DOE PSF continues to it [sic] be available to any agency that can invoke a routine use for the information, regardless of Plaintiff's employment.”).)[2]

         Specifically, Plaintiff states that he is bringing his action under 5 U.S.C. §§ 552a(g)(1)(C) and (D), and his first cause of action alleges that Defendant violated the Privacy Act by:

failing to amend [his] PSF, failing to investigate contested information in [his] PSF according to 10 C.F.R. § 1008.6(a)(3)(ii), and failing to maintain records in [his] PSF “with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, right, or opportunities of, or benefits of such record, and consequently a determination is made which is adverse to the individual.”

(Compl. at 5 (citation omitted).) A liberal reading of the Complaint suggests that Plaintiff's allegations rest on three provisions of the Privacy Act. First, section 552a(g)(1)(A), which provides a cause of action when an agency fails to amend or review an individual's record in conformity with the law. Second, section 552a(g)(1)(C), which provides a cause of action for an agency's failure to adequately maintain records. Third, section 552a(g)(1)(D), which provides a cause of action when an agency fails to comply with any other provision of the Privacy Act or rule promulgated under it.

         Defendant argues that it properly denied Plaintiff's request to amend his PSF because “[b]asically, the information sought to be included in the Plaintiff [sic] PSF was no longer needed nor applicable as the Plaintiff was no longer an employee of the DOE.” (Doc. 23 at 9.) Further, Defendant argues that Plaintiff's claim that the denial was improper “is not appropriate at this time and is not ripe for determination because the Plaintiff is not an employee of the DOE.” (Id.) Defendant also reasserts the DOE Appeals Office's reasoning that “[i]f, and when, the Plaintiff were ever to be employed again and a security clearance were necessary, the information requested to be included in the PSF would be reviewed and a determination made at that point for inclusion in his PSF.” (Id.)

         Finally, Defendant argues that the statutory provisions under which Plaintiff brings his claims for relief-5 U.S.C. §§ 552a(g)(1)(C) and (D)- require that the party asserting the claim show both a causal connection between the alleged failure to comply with the Privacy Act and an agency determination that was adverse to Plaintiff, and that the alleged non-compliance was “intentional or willful.” (See Doc. 23 at 11.) Defendant asserts that Plaintiff has not alleged facts to show that the ...


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