Matthew Palmieri v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2018 Decided July 24, 2018

No. 16–5347

MATTHEW RICHARD PALMIERI,

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01403)

Ryan Giles, Student Counsel, argued the cause as amicus

curiae in support of the appellant. Thomas Burch, appointed

by the court, and Holly Boggs and Aidan Moss, Student

Counsel, were with him on brief.

Matthew Richard Palmieri, pro se, filed the briefs for the

appellant.

Charles W. Scarborough, United States Department of

Justice, argued the cause for the appellees. Jessie K. Liu,

United States Attorney, and R. Craig Lawrence and W. Mark

Nebeker, Assistant United States Attorneys, were with him on

brief.

2

Before: HENDERSON, GRIFFITH and KATSAS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge KATSAS.

KAREN LECRAFT HENDERSON, Circuit Judge: Matthew

Palmieri had a security clearance and gainful employment with

a government contractor. He lost both, allegedly at the hands

of federal agencies and officials bent on destroying his career.

Palmieri sued the agencies and officials (collectively,

defendants or government), 1 claiming they put him through a

“Kafkaesque” investigation and “Star Chamber” proceeding

and thereby violated his rights. Pl.’s Am. Compl. (Compl.),

Dkt. No. 14 at 4 (July 23, 2013). In the order at issue, the

district court dismissed most counts of Palmieri’s complaint

and granted summary judgment to the government as to a

portion of one count. Joint Appendix (JA) 462-63; Palmieri

v. United States, 72 F. Supp. 3d 191 (D.D.C. 2014). With the

aid of court-appointed amicus curiae, Palmieri appeals. 2 We

affirm.

1

Palmieri’s complaint names the United States; the State

Department; the Defense Department; the Defense Office of

Hearings and Appeals; the Defense Manpower Data Center; the

Central Intelligence Agency; the Office of Personnel Management;

the Financial Crimes Enforcement Network; the United States Navy;

the Office of Naval Intelligence; the Naval Criminal Investigative

Service; the Defense Security Service; and certain officers and

employees of the latter three agencies.

2

We thank amicus for able briefing and argument.

3

I. BACKGROUND

We draw the facts primarily from the complaint, whose

well-pleaded allegations we take to be true. West v. Lynch,

845 F.3d 1228, 1231 (D.C. Cir. 2017). We also take account

of undisputedly authentic documents cited in and “integral to”

the complaint. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir.

2004); see 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL

PRACTICE § 12.34[2] n.35 (3d ed. 2018). Because the

complaint is prolix, weighing in at 163 pages, we highlight only

the essentials.

INVESTIGATION

Palmieri worked as a systems engineer for a contractor at

a United States naval base in Bahrain. He had a security

clearance. In June 2009, he and a Navy reservist friend had

dinner with two Syrian nationals, one of whom worked for the

Syrian embassy. The reservist told Palmieri that “she felt

compelled to report” to American authorities their contact with

foreign nationals. JA 352. Later, the reservist in fact

reported the contact, mentioning that Palmieri had introduced

her to the Syrians. According to the reservist, Palmieri had

asked her not to report his association with the Syrians.

The government opened an investigation. Without telling

Palmieri, agents of the Naval Criminal Investigative Service

(NCIS) reviewed his work emails, copied files from his office

computers and kept tabs on his travel. In May 2010, the

agents “interrogated” him. Compl. 19-20. They told him he

was free to leave but that, if he did not answer their questions,

his security clearance would be suspended. Afterward, the

agents reported to Navy lawyers that Palmieri had been

“evasive” and “unwilling to provide information.” Id. at 21.

Palmieri’s supervisors had him removed from the base. NCIS

4

agents searched his office and computers and seized his work

documents.

Palmieri returned to the United States and continued

working in a contractor job that required a security clearance.

In July 2011, he submitted to an NCIS polygraph test.

Thereafter, in a letter to the Defense Department, NCIS agent

Lynda Carpenter summarized the investigation and the results

of the polygraph test. According to her letter:

• The reservist told authorities that Palmieri had asked

her “not to report his association with the Syrian

nationals to anyone inside of the U.S. government.”

• In a security form, Palmieri “did not acknowledge any

ongoing foreign national contacts or associations with

foreign government officials.”

• When the NCIS agents interviewed Palmieri, he was

“reluctant to provide information” about his foreign

contacts. He eventually “disclosed ongoing contact

with an employee of the Syrian embassy” but “only

after it was revealed [that] NCIS officials were already

aware of the relationship.”

• During the polygraph test, Palmieri was asked if he

possessed “classified material outside of government

control” or “provided classified information to

unauthorized personnel.” The polygraph indicated

“[d]eception . . . in his responses to both questions.”

JA 230-31.

In August 2011, the Defense Department suspended

Palmieri’s security clearance “pending a final clearance

5

decision from the Defense Office of Hearings and Appeals

[(DOHA)].” Compl. 30. As a result, Palmieri’s employer

fired him.

ADMINISTRATIVE AND DISTRICT COURT PROCEEDINGS

By executive order, as implemented through Defense

Department Directive 5220.6 (Aug. 30, 2006),

perma.cc/2DQ4-Z4KW, a contractor is not to be granted a

security clearance unless clearance “is clearly consistent with

the national interest,” id. ¶ 3.2; see Exec. Order No. 10865 § 2,

25 Fed. Reg. 1583 (Feb. 20, 1960). In September 2012, per

the Directive, the Defense Department issued a Statement of

Reasons explaining why the government was “unable to find

that it is clearly consistent with the national interest” for

Palmieri to regain clearance. JA 196; see Compl. 33. The

Statement of Reasons alleged (inter alia) that Palmieri

displayed “questionable judgment” by asking the reservist “not

to disclose [his] association with . . . Syrian nationals.” JA

196; see Compl. 34. In a written response, Palmieri denied the

allegations.

The matter was submitted to a DOHA administrative judge

to determine whether to revoke Palmieri’s security clearance.

Over Palmieri’s confrontation and hearsay objections—and

after Palmieri declined an opportunity to call the reservist as a

witness—the judge admitted Carpenter’s letter. Palmieri

testified at length and “denied that he told the [reservist] not to

mention his name.” JA 188. The judge discredited this

testimony, finding that Palmieri was “evasive and less than

completely forthcoming.” JA 188, 194. Ultimately, the

judge concluded that Palmieri had indeed displayed

questionable judgment in “attempt[ing] to convince [the

reservist] to leave him out of her report.” JA 193.

6

Accordingly, the judge revoked his clearance. The DOHA

appeal board affirmed.

Palmieri filed suit, raising an assortment of constitutional

and statutory claims. His 30-count complaint invokes (inter

alia) the Bill of Attainder Clause, U.S. CONST. art. I, § 9, cl. 3;

the Treason Clause, id. art. III, § 3, cl. 1; the Due Process

Clause, id. amend. V; the First, Fourth, Ninth and Tenth

Amendments; the Privacy Act, 5 U.S.C. § 552a; the

Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.;

the Stored Communications Act, 18 U.S.C. § 2701 et seq.; and

the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et

seq.

In the order under review, the district court dismissed

twenty-three counts: Counts 1-20, 22, 28 and 30. Also, the

court partially dismissed Count 21 and granted summary

judgment to the government on the remainder of that count.

Finally, the court ordered Palmieri to “file a more definite

statement about” the other six counts: Counts 23-27 and 29.

JA 462. It later granted summary judgment to the government

on those six counts. In our claim-by-claim analysis, we

summarize the necessary particulars of Palmieri’s theories of

liability and the district court’s grounds of decision.

II. ANALYSIS

First we clear some underbrush. We need not consider

Counts 3, 7, 9 and 16 because Palmieri expressly forfeits any

challenge to their dismissal. Appellant’s Br. 32 (he “invites”

us to “dispense” with them). We need not consider Counts 10-

11, 17-18, 23-27 and 29 because neither Palmieri nor amicus

raises any argument about them. See S. Cal. Edison Co. v.

FERC, 603 F.3d 996, 1000 (D.C. Cir. 2010) (“A party can and

does [forfeit] any argument not presented in our court except

those going to our own jurisdiction or similar structural

7

issues[.]”). And we need not consider Counts 28 and 30

because Palmieri acquiesced in their dismissal. Our task,

then, is to decide whether Palmieri or amicus advances any

good reason to reinstate any of the other fourteen counts:

Counts 1-2, 4-6, 8, 12-15 and 19-22. We think not.

COUNTS 2, 20 AND 22: FRIVOLOUS CONSTITUTIONAL CLAIMS

Count 2 alleges that the government violated Palmieri’s

“natural rights” by investigating him and gathering information

about him. Compl. 46. Count 20 alleges that Carpenter’s

letter and the ensuing revocation of Palmieri’s clearance were

part of a “Soviet-style” government conspiracy to “punish”

Palmieri through “extrajudicial” means. Id. at 104, 107.

Count 22 alleges that the conspiracy was motivated by “ethnic,

lingu[i]stic, religious, and/or racial” animus. Id. at 116; see id.

at 115 (alleging that defendants acted as they did because of

Palmieri’s “associations with Arab and/or Muslim

individuals”). According to Counts 2, 20 and 22, this conduct

violated the Bill of Attainder Clause, the Treason Clause and

the First, Fifth, Ninth and Tenth Amendments.

The district court concluded that Counts 2, 20 and 22 are

barred by Department of Navy v. Egan, 484 U.S. 518 (1988).

We agree. Egan holds that “the grant of security clearance to

a particular employee, a sensitive and inherently discretionary

judgment call, is committed by law to the appropriate agency

of the Executive Branch.” Id. at 527; see Oryszak v. Sullivan,

576 F.3d 522, 525-26 (D.C. Cir. 2009). The idea is that “an

outside non-expert body,” including a court, is institutionally

ill suited to second-guess the agency’s “[p]redictive judgment”

about the security risk posed by a specific person. Egan, 484

U.S. at 529. Counts 2, 20 and 22 ask us to engage in just this

sort of Monday-morning quarterbacking: as the district court

put it, these counts effectively challenge the government’s

8

decisions “to conduct a security clearance investigation” and to

resolve it in a particular way. Palmieri, 72 F. Supp. 3d at 203

n.5.

Granted, we have recognized an exception to Egan for

some constitutional claims challenging “the methods used to

gather information on which [a clearance decision] presumably

will be based.” Nat’l Fed’n of Fed. Employees v. Greenberg,

983 F.2d 286, 290 (D.C. Cir. 1993). But the exception does

not save “a wholly frivolous constitutional claim or an

immaterial one advanced solely for the purpose of”

circumventing Egan. Id. “[W]holly frivolous” well

describes Counts 2, 20 and 22. We see no law in Palmieri’s

briefs, or amicus’s, to suggest Palmieri suffered an actionable

violation under the provisions these three counts invoke. 3

COUNTS 1 AND 8: PRIVACY ACT CLAIMS

Count 1 claims that, in violation of the Privacy Act, the

defendants created an agency record “concerning [Palmieri’s]

exercise of First Amendment . . . activities,” including his

“[a]ssociation[s]” and “[t]ravel.” Compl. 42. Count 8

likewise claims a violation of the Privacy Act, alleging that

NCIS agents acquired some of Palmieri’s personnel records

under false pretenses. The district court dismissed both

counts, again concluding that Egan bars them. We affirm

3

Amicus concedes that Counts 20 and 22 are barred because

they “challenge the . . . decision to revoke [Palmieri’s] security

clearance or present no colorable constitutional challenge to the

revocation process.” Amicus Br. 30-31 n.9. Palmieri “adopts and

endorses” amicus’s briefs, Appellant’s Br. 25; Appellant’s Reply Br.

5, but does not expressly join the concession. No matter. We need

not accept the concession to affirm dismissal of Counts 2, 20, and

22; we simply note it for its good sense.

9

their dismissal but for a different reason: they fail on the

merits. 4 See Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C.

Cir. 2015) (“Ordinarily, a court of appeals can affirm a district

court judgment on any basis supported by the record, even if

different from the grounds the district court cited.”).

Count 1 runs headlong into 5 U.S.C. § 552a(e)(7), which

permits the government to maintain a record involving First

Amendment activity where, as here, it is “pertinent to and

within the scope of an authorized law enforcement activity.”

See Maydak v. United States, 363 F.3d 512, 517 (D.C. Cir.

2004) (“Although the Privacy Act does not define ‘law

enforcement activity,’ we have interpreted the phrase broadly”

to include “an authorized criminal, intelligence, or

administrative investigation.” (citing Nagel v. Dep’t of Health,

Educ. & Welfare, 725 F.2d 1438, 1441 n.3 (D.C. Cir. 1984))).

Count 8 similarly cannot withstand the force of statutory text:

it erroneously mixes and matches criminal and civil portions of

the Privacy Act. It alleges that individual agents violated 5

U.S.C. § 552a(i)(3), which prescribes criminal punishment for

“[a]ny person” who knowingly and willfully obtains certain

records under false pretenses. Count 8 then seeks redress for

that violation under 5 U.S.C. § 552a(g)(1), which creates a

cause of action only for “agency” violations. Under the

Privacy Act, an individual person is not an “agency.” 5 U.S.C.

§ 552a(a)(1) (incorporating definition now appearing at 5

U.S.C. § 552(f)(1)).

4

Because the Egan holding does not speak to jurisdiction,

Oryszak, 576 F.3d at 524-26, we can assume without deciding that it

does not bar these counts.

10

COUNTS 13 AND 19: DUE PROCESS CLAIMS UNDER BIVENS

Invoking Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), Counts 13 and 19

raise due process claims against individual officials. Count 13

alleges that in May 2010, without due process, NCIS agents

“orchestrated [Palmieri’s] removal from” his job at the Bahrain

naval base. Compl. 82. Count 19 alleges that in August

2011, without due process, Defense Department officers and

employees “orchestrated [Palmieri’s] removal from” the job he

had on his return to the United States. 5 Id. at 100. The

district court dismissed both counts, once again concluding that

Egan bars them. And once again, we affirm their dismissal

but for a different reason: the officials are entitled to qualified

immunity.

“The doctrine of qualified immunity shields officials from

civil liability so long as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (per curiam) (internal quotations

omitted). When an official asserts qualified immunity, the

plaintiff must “overcome” that assertion by demonstrating

(inter alia) that the right “was clearly established at the time

of” the alleged violation. Fox v. District of Columbia, 794

F.3d 25, 29 (D.C. Cir. 2015). This is no easy feat.

“[E]xisting precedent must have placed the statutory or

constitutional question beyond debate,” not merely “at a high

level of generality” but “in light of the specific context of the

case.” Hedgpeth v. Rahim, No. 16-7146, 2018 WL 3117808,

at *2 (D.C. Cir. June 26, 2018) (quoting White v. Pauly, 137 S.

5

Count 19 alleges a date of “August 2012,” Compl. 100, but

another part of the complaint makes clear that Palmieri lost his job

in August 2011, id. at 30-31.

11

Ct. 548, 551-52 (2017) (per curiam), and Scott v. Harris, 550

U.S. 372, 377 (2007)).

We doubt Palmieri can make the required showing. But

because neither he nor amicus even attempts to do so, we need

not decide the matter. See Fox, 794 F.3d at 29. We held in

Fox that a police officer was “entitled to qualified immunity

because [the plaintiff’s] opening brief fail[ed] to argue that her

right not to be seized in [those] particular circumstances was

clearly established, let alone identify what decisions of the

Supreme Court or the courts of appeals clearly established that

right.” Id. (internal quotation omitted). We reasoned that the

plaintiff thereby “forfeited” any attempt to stave off qualified

immunity. Id. The same is true here: the opening briefs do

not so much as mention qualified immunity, much less identify

precedent putting the due process question “beyond debate” on

the record facts. 6 Hedgpeth, 2018 WL 3117808, at *2

(internal quotation omitted).

COUNT 21: CHALLENGES TO DOHA PROCEEDING

Count 21 alleges that, during the DOHA proceeding, the

government violated due process and acted arbitrarily and

capriciously in introducing Carpenter’s letter and effectively

6

The issue of qualified immunity first appears in the

government’s brief. In reply, amicus asks us—but only as to Count

12—“not to address” qualified immunity because the district court

ruled on a different basis. Amicus Reply Br. 27-28. Even had

amicus tailored this request to Counts 13 and 19, we would not

entertain it. Amicus cites no law suggesting that dismissal on

grounds other than qualified immunity relieves the plaintiff of his

appellate burden under Fox where, as here, the defendants asserted

qualified immunity in district court. Mem. in Support of Mot. to

Dismiss, Dkt. No. 26 at 5, 17-20, 23-27 (Nov. 12, 2013).

12

denying Palmieri an opportunity to confront the Navy reservist.

The district court dismissed the due process component of this

claim on the ground that Palmieri has no liberty or property

interest in a security clearance. The court granted summary

judgment to the government on the APA component of the

claim, concluding that “the administrative judge properly

admitted the evidence” and “the DOHA appeal board

thoughtfully reviewed and applied the governing authorities.”

Palmieri, 72 F. Supp. 3d at 209 (capitalization altered). In

light of Palmieri’s allegations that the government’s actions

have made it impossible for him to find work, see, e.g., Compl.

36, 39, 64, 79, 107-08, we assume without deciding that he has

a cognizable liberty interest, see Gill v. DOJ, 875 F.3d 677, 681

(D.C. Cir. 2017) (per curiam) (in some circumstances, plaintiff

“may show that a liberty interest was violated by the revocation

of a security clearance” (citing Doe v. Cheney, 885 F.2d 898,

909-10 (D.C. Cir. 1989))). We nevertheless agree with the

district court that Palmieri has no viable claim.

We start with Palmieri’s assertion of arbitrariness and

caprice. He and amicus claim a violation of Executive Order

10865 and Directive 5220.6. Because of DOHA’s familiarity

with these laws and clearance issues more generally, cf.

Greenberg, 983 F.2d at 290—and because of the APA’s abuse-

of-discretion standard, 5 U.S.C. § 706(2)(A)—we owe

deference to the administrative judge and appeal board. We

see no abuse in the admission of Carpenter’s letter and the

reservist’s declarations therein.

Even assuming Palmieri was entitled to “an opportunity to

cross-examine” the reservist, Amicus Br. 28 (quoting Exec.

Order No. 10865 § 4 and Directive 5220.6, Encl. 3 ¶ E3.1.22),

the administrative judge in fact gave Palmieri an opportunity to

call the reservist as a witness. The judge asked Palmieri if he

knew the reservist’s whereabouts. Palmieri said he did. The

13

judge asked DOHA counsel if the government objected to the

reservist testifying by telephone. Counsel did not object.

The judge told Palmieri that, if he wanted the reservist to

testify, and if he provided as much information about her as he

could, the judge would “ask the Government . . . to make

arrangements” for her to testify. JA 448-49. Palmieri did not

say he lacked sufficient information to help make such

arrangements. Instead, he flatly declined the opportunity to

seek her testimony. See, e.g., JA 445 (“She’s not my witness.

She’s a Government witness. . . . She certainly wouldn’t be on

my side.”). Having chosen that strategy, he is in no position

to claim prejudicial error. 5 U.S.C. § 706; see Ritz v.

O’Donnell, 566 F.2d 731, 735 (D.C. Cir. 1977) (union member

suspected of misconduct received “full and fair hearing”

despite absence of charging parties because he declined

opportunity to call them); cf. Reynolds v. United States, 98 U.S.

145, 158 (1878) (even in criminal case, defendant “cannot

insist on” confronting witnesses “if he voluntarily keeps [them]

away”).

Relatedly, neither Palmieri nor amicus advances any

persuasive reason to second-guess the conclusions of the

administrative judge, JA 186 & n.1, appeal board, JA 182-83,

and district court, Palmieri, 72 F. Supp. 3d at 208-09, that

Carpenter’s letter was an admissible business record under

Directive 5220.6, Encl. 3 ¶ E3.1.20 (providing that certain

“[o]fficial records . . . compiled or created in the regular course

of business . . . may be received and considered . . . without

authenticating witnesses”). Amicus resists this conclusion

based on Federal Rule of Evidence 803(6), suggesting it applies

jot and tittle in a DOHA adjudication. Amicus Br. 23-27.

Amicus is mistaken: in a DOHA adjudication, the Federal

Rules of Evidence “serve as a guide” but “may be relaxed . . .

to permit the development of a full and complete record.”

14

Directive 5220.6, Encl. 3 ¶ E3.1.19; see JA 317 (administrative

judge explained as much to Palmieri).

Having dispatched Palmieri’s APA claim, we can “quickly

resolve” his due process claim. Gill, 875 F.3d at 681. In Gill,

we rejected the plaintiff’s due process challenge to the

revocation of his security clearance because he received “a full

hearing . . . where he had the right to counsel and the

opportunity to make his case.” Id. So too in Palmieri’s case.

See generally JA 311-461. Because the administrative judge

and DOHA appeal board reasonably applied Executive Order

10865 and Directive 5220.6, we have no cause to reach a

different result here from the result in Gill.

COUNTS 4, 6 AND 14: CLAIMS OF ILLEGAL SEARCH

Counts 4, 6 and 14 allege illegal searches in violation of

the First and Fourth Amendments and the Foreign Intelligence

Surveillance Act. Contrary to amicus’s contentions, as

adopted by Palmieri, the district court correctly dismissed these

counts for failure to state a claim.

Regarding Count 4, amicus contends that the government

“search[ed]” Palmieri’s Facebook account. Amicus Br. 34.

We disagree. The district court read Count 4 to allege that a

third person “to whom Palmieri had given access to his

Facebook page . . . used that access to obtain” information

about him. Palmieri, 72 F. Supp. 3d at 209. An investigative

report cited in Count 4 bolsters the court’s reading. The report

explains that the third person is one of Palmieri’s Facebook

friends and that she viewed his Facebook page using the access

she had based on her status. JA 201. Obtaining from that

person information Palmieri knowingly and voluntarily shared

with his Facebook friends is not a search. See Smith v.

Maryland, 442 U.S. 735, 743-44 (1979) (“[A] person has no

legitimate expectation of privacy in information he voluntarily

15

turns over to third parties.”); United States v. Miller, 425 U.S.

435, 443 (1976) (this is so “even if the information is revealed

on the assumption that it will be used only for a limited purpose

and the confidence placed in the third party will not be

betrayed”). 7

Regarding Counts 6 and 14, which allege illegal searches

of Palmieri’s workspace and computers, we agree with the

district court that they were reasonable searches “carried out

for the purpose of obtaining ‘evidence of suspected work-

related employee misfeasance.’” Palmieri, 72 F. Supp. 3d at

212 (quoting O’Connor v. Ortega, 480 U.S. 709, 723 (1987)

(plurality opinion)). Contrary to amicus’s argument, Amicus

Br. 41-43, the fact that the misfeasance may have been criminal

does not make the searches any less reasonable, see United

States v. Simons, 206 F.3d 392, 400 (4th Cir. 2000) (under

O’Connor, government agency has “an interest in fully

investigating [employee’s] misconduct, even if the misconduct

was criminal”).

COUNTS 5 AND 15: CLAIMS UNDER

STORED COMMUNICATIONS ACT

Counts 5 and 15 allege that the defendants’ search and

seizure of Palmieri’s “work computers” and “work emails”

violated the Stored Communications Act. Compl. 59, 89.

These counts, too, state no claim. 8 Under the Act, the

7

We note that Count 4 does not allege “a detailed

chronicl[ing] of [Palmieri’s] physical presence compiled every day,

every moment, over several years.” Carpenter v. United States, 138

S. Ct. 2206, 2220 (2018) (distinguishing Smith and Miller on this

basis).

8

The district court dismissed Counts 5 and 15 for lack of

jurisdiction, holding that the Stored Communications Act does not

16

government must obtain a warrant and follow prescribed

procedures whenever it requires a service provider to

“disclos[e]” certain stored electronic communications. 18

U.S.C. § 2703(a). As we read the complaint, the electronic

communications at issue—to repeat, Palmieri’s work emails on

his work computers—belonged to the government. And as a

matter of plain English, the government demanded no

“disclosure” of its own records. See IV OXFORD ENGLISH

DICTIONARY 738 (2d ed. 1989) (to “disclose” is to “open up to

the knowledge of others”); cf. FED. R. CIV. P. 26(a)(1)

(“[d]isclosure” involves providing information and documents

to “other parties”).

COUNT 12: CLAIM OF UNLAWFUL INTERROGATION

Finally, invoking Bivens, Count 12 alleges that NCIS

agents violated the Fifth Amendment when they “interrogated”

Palmieri in Bahrain. Compl. 19-20, 78-81. The district court

concluded that, on this count, Palmieri failed to establish

personal jurisdiction of the defendants. We agree.

If the plaintiff seeks relief against a government official in

his personal capacity, the district court must have personal

waive sovereign immunity for equitable claims like Palmieri’s. The

court overlooked the APA’s waiver of sovereign immunity, 5 U.S.C.

§ 702, which “eliminate[s] the sovereign immunity defense in

virtually all actions for non-monetary relief against a U.S. agency or

officer acting in an official capacity,” Clark v. Library of Congress,

750 F.2d 89, 102 (D.C. Cir. 1984). We have held “that the APA’s

waiver of sovereign immunity applies to any suit whether under the

APA or not.” Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006)

(internal quotation omitted). Accordingly, we affirm the dismissal

of Counts 5 and 15 under Federal Rule of Civil Procedure 12(b)(6),

not 12(b)(1). See id. at 197 (affirming for failure to state claim after

district court dismissed for lack of jurisdiction).

17

jurisdiction of that defendant. Ali v. District of Columbia, 278

F.3d 1, 7 (D.C. Cir. 2002). And “for personal jurisdiction in

the District Court for the District of Columbia to be proper,”

the defendant “must be covered by the District of Columbia’s

long-arm statute.” I.T. Consultants, Inc. v. Islamic Republic

of Pakistan, 351 F.3d 1184, 1191 (D.C. Cir. 2003). As

relevant here, the long-arm statute covers a “tortious injury in

the District of Columbia” caused “by an act or omission outside

the District of Columbia” if the defendant engages in a

“persistent course of conduct . . . in the District of Columbia.”

D.C. CODE § 13-423(a)(4).

Palmieri sues the agents in their personal capacity.

Compl. 78. Yet the agents’ only alleged conduct in the

District was undertaken in their official capacity. See

Palmieri, 72 F. Supp. 3d at 204 (“[T]he only specific contact

that Palmieri identifies between the individual defendants and

this District is their employment by a federal agency once

headquartered in the District.”). Without more, the agents’

official connections to the District do not suffice. See Ali, 278

F.3d at 7 (district court lacked personal jurisdiction over

Virginia prison officials acting in individual capacity because

connections to District of Columbia were in official capacity).

For the foregoing reasons, we affirm the district court’s

judgment.

So ordered.

KATSAS, Circuit Judge, concurring: The Court’s opinion

ably dispatches the jumble of thirty claims in the 163-page, pro

se complaint under review. As the Court explains, each of

Palmieri’s claims is either forfeited, frivolous, or otherwise

without merit. The Court thus manages to avoid the

overarching issue in this or any other case arising from the

revocation of a security clearance—whether Department of

Navy v. Egan, 484 U.S. 518 (1988), bars judicial review.

In particular, the Court avoids deciding whether Egan bars

non-frivolous constitutional challenges to the denial or

revocation of a security clearance. Egan itself barred

challenges under the Administrative Procedure Act, but the

Court’s reasoning—that control over classified information is

constitutionally committed to the President as Commander in

Chief, see id. at 527—seems to encompass constitutional

challenges as well as statutory ones. On the other hand,

Webster v. Doe, 486 U.S. 592 (1988), held that precluding

judicial review of constitutional challenges to executive action

can itself raise constitutional concerns, even in the area of

national security. See id. at 601–05. However, that case

involved only the statutory authority of the Director of Central

Intelligence, not the Article II authority of the President. See

id. at 597. Likewise, National Federation of Government

Employees v. Greenberg, 983 F.2d 286 (D.C. Cir. 1993), held

that Egan does not bar constitutional challenges to the methods

used by the Executive Branch to gather information for making

clearance decisions; but Greenberg did not involve a plaintiff

seeking to undo the actual denial or revocation of a clearance,

or even a challenge to adjudicatory as opposed to investigatory

processes. See id. at 287–90.

The question whether a plaintiff can seek to undo the

denial or revocation of a security clearance, based on non-

frivolous constitutional challenges to investigatory or even

adjudicatory processes, is weighty and difficult because, in

such cases, judicial review bumps up against the President’s

2

enumerated and exclusive power as Commander in Chief. We

recently reserved that question, see Gill v. U.S. Dep’t of Justice,

875 F.3d 677, 682 (D.C. Cir. 2017), as has the Ninth Circuit,

see Dorfmont v. Brown, 913 F.2d 1399, 1403–04 (9th Cir.

1990). At some point, we will likely need to decide it, for the

government warns us that individuals denied clearances are

increasingly invoking cases like Webster v. Doe and Greenberg

to chip away at Egan.

This case squarely presents the question, for Palmieri does

ask the Court to undo the revocation of his security clearance,

and some of his claims challenge the constitutionality of

adjudicatory as opposed to investigatory processes. The

government understandably wants some answers, in light of the

ongoing tension in the relevant precedents. Nonetheless,

prudence seems to counsel restraint in this case, given the pro

se representation and the sprawling, unfocused nature of the

complaint. Because Palmieri’s claims can be rejected on non-

Egan grounds, and because the Court’s opinion leaves open the

possibility that Egan might bar some or all of them, I join the

opinion in its entirety.