Haleem v. U.S. Dep't of Def.

1

DEEN HALEEM, Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, et al., Defendants.

Civil Action No. 23-1471 (JEB)

United States District Court, District of Columbia

January 22, 2024

MEMORANDUM OPINION

JAMES E. BOASBERG Chief Judge.

Plaintiff Deen Haleem has served in the military in one capacity or another for over four decades, most recently as a member of the U.S. Army Reserve in an intelligence role that requires him to hold a Top Secret security clearance with access to Sensitive Compartmented Information. In 2022, the Department of Defense informed him that it had made a preliminary decision to revoke his clearance. Seeking to uncover more information about that decision, Plaintiff sent several requests for records to components of DoD and the Department of Justice, which produced some records and withheld others under Privacy Act and Freedom of Information Act exemptions.

After filing and voluntarily dismissing a premature lawsuit against DoD and DOJ, Haleem submitted another round of records requests to those agencies. Dissatisfied with their responses (and, in some cases, the lack thereof), he brought the instant suit. He contends that both agencies violated the Privacy Act and FOIA. He alleges, moreover, that DoD decided to revoke his security clearance based on his race, religion and national origin in violation of the Fifth Amendment's guarantee of equal protection. Finally, he claims that DoD's actions violated its own agency guidelines and an Executive Order, rendering them contrary to law under the Administrative Procedure Act. Defendants move to dismiss, arguing that each claim in the seven-count Complaint is deficient. Largely agreeing, the Court will grant the Motion for the most part.

I. Background

The Court at this stage sets forth the facts as pled in the Complaint, assuming them to be true. See Sparrow v United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Haleem, a “Palestinian individual of Arab descent who practices Islam,” is a master sergeant in the U.S. Army Reserves with a “primary military occupation within the Military Intelligence Branch.” ECF No. 1 (Compl.), ¶¶ 41, 107. To maintain his position, he must hold a Top Secret security clearance with access to Sensitive Compartmented Information. Id., ¶ 42.

In February 2022, the Defense Counterintelligence and Security Agency (DCSA) - an agency within DoD - notified Plaintiff that it had made a preliminary decision to revoke his security clearance. Id., ¶ 43. It provided him with a “Statement of Reasons,” citing concerns about Haleem's foreign influences, personal conduct, and handling of classified information. Id., ¶¶ 43, 125. The Statement explained that, should Haleem wish to challenge the decision, he could request the records upon which DoD had relied and submit a written response. See Haleem v. Dep't of Def. (Haleem I), No. 22-3021 (D.D.C.), ECF No. 3-1, Exh. M (Statement of Reasons); see also ECF No. 1-1, Exh. A (Instructions for Responding to a Statement of Reasons).

Plaintiff declines to attach that Statement of Reasons to his Complaint in the present suit. But because his Complaint repeatedly references it, the document is integral to his claims, he attached it in his prior lawsuit on this issue, and it is a government document, the Court takes judicial notice of it. See Statement of Reasons; see Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015); see also Democracy Forward Found. v. White House Off, of Am. Innovation, 356 F.Supp.3d 61, 62 & n.2 (D.D.C. 2019).

In explaining his discrimination claim, Haleem alleges that the Statement “quotes and paraphrases almost exclusively” from the results of a DoD investigation into Haleem in 2003. See Compl., ¶¶ 51, 55. “[O]ne of, if not the only, source[] of information” for that investigation was Captain George T. Ferguson IV, “the supervisor of battalion intelligence personnel and assets.” Id., ¶¶ 111, 114, 116. Ferguson was a “Caucasian male who . . . identified as Christian, of European descent, and U.S. national origin” and had been “the subject of harassment, impropriety, and equal opportunity complaints,” including complaints filed by Haleem for “racism.” Id., ¶¶ 111, 112, 114. He had also been the “senior rater” on a “negative evaluation” of Haleem. Id., ¶¶ 110-11.

A. 2022 Requests

Concerned about Ferguson's influence and hoping to uncover the information necessary to challenge DoD's decision to revoke his security clearance, Plaintiff began a procedurally fraught journey in search of helpful materials. He first submitted records requests in spring 2022 to two components of DoD - DCSA and the Army Intelligence and Security Command (INSCOM) - and to the FBI. See Compl., ¶¶ 45, 49, 56. He sought, among other things, “[a]ll interagency and intra-agency correspondence pertaining to [him],” “[a]ll interagency and intraagency records related to [him],” and “[a]ll investigation and standard forms pertaining to [him].” ECF No. 1-1, Exh. D (2022 FBI Request); see Haleem I, ECF No. 3-1, Exh. A (2022 1st DCSA Request); No. 3-1, Exh. B (2022 2nd DCSA Request); No. 3-1, Exh. E (2022 INSCOM Request). He addressed the FBI request to the Office of Information Policy - an office within DOJ that coordinates administrative appeals and handles initial Privacy Act and FOIA responses for several DOJ components, not including the FBI - but indicated that he was seeking “records . . . held by the Federal Bureau of Investigation[].” 2022 FBI Request; see Compl., ¶ 56 (referring to request as “request to the FBI”).

All three agencies responded by summer 2022. DCSA produced some records, notified Haleem that it was withholding others in whole and in part pursuant to Privacy Act and FOIA exemptions, and informed him that it was making two referrals. See Compl., ¶¶ 46-47; Haleem I, ECF No. 3-1, Exh. C (2022 DCSA Response). Specifically, DCSA explained that Haleem's investigative file contained information under the purview of both the FBI and the Army Investigative Records Repository (AIRR), a subordinate DoD agency, so it was referring his request to those agencies to respond directly to him. See 2022 DCSA Response. DCSA's letter also noted that Haleem could file an administrative appeal and provided the details necessary to do so. Id.

INSCOM's response was similar: it produced some records, withheld others, and notified Haleem that it was making a referral to the U.S. Army Reserve Command (USARC), another subordinate DoD agency. See Compl., ¶¶ 50-52. USARC, the response explained, would take “action” and “direct[ly] reply to [Haleem].” Id., ¶ 52; see Haleem I, ECF No. 3-1, Exh. L (2022 INSCOM Response). Like DCSA, INSCOM informed Haleem of his administrative-appeal rights. See 2022 INSCOM Response.

The FBI responded both to the request that Haleem had sent directly to the Office of Information Policy and to DCSA's referral. As to the referral, the FBI released some records and withheld others. See ECF No. 1-1, Exh. E (2022 FBI Response to Referral). With respect to Plaintiff's direct request, the Bureau explained that it had conducted a search but was “unable to identify records subject to the [Privacy/Freedom of Information Acts] that are responsive.” ECF No. 1-1, Exh. G (2022 FBI Response to Direct Request). If Haleem had “additional information pertaining to the subject of [his] request,” the FBI added, he could “submit a new request providing the details.” Id. Alternatively, it said, he could file an administrative appeal. Id.

B. First Lawsuit

Displeased with those responses, Haleem filed a lawsuit in federal court in October 2022. Haleem I, ECF No. 1 (Compl.). He alleged, among other things, that DoD and DOJ had violated the Privacy Act and FOIA by unlawfully withholding records. Id., ECF No. 3 (Haleem I Am. Compl.), ¶¶ 29-41. The Government moved to dismiss those claims, contending that Haleem had failed to exhaust his administrative remedies. Id., ECF No. 13 (Haleem I MTD). Acknowledging as much, Haleem voluntarily dismissed the action. Id., ECF No. 17 (Haleem I Notice of Dismissal).

C. 2023 Requests

Returning to the drawing board, Haleem set out to “create a ‘clean' record of requests” and thus submitted a series of “new FOIA request[s]” in early 2023. See Compl., ¶¶ 63, 65, 67, 76. First, he wrote two letters to DCSA, one on March 14 and one on March 15. Id., ¶ 65 (noting only March 15 letter); ECF No. 14 (Opp.) at 7 (asserting that he also sent a March 14 letter). Haleem attaches and describes only the March 15 letter, which had as its subject “Privacy/FOIA Appeal.” Compl., ¶ 65; see ECF No. 1-1, Exh. H (2023 2nd DCSA Request). In that letter, he asked DCSA to produce the records that it was withholding in response to his 2022 request and to conduct “[a] review of the redactions” it had asserted were necessary. See 2023 DCSA Request. DCSA's response: crickets. See Compl., ¶ 66.

Second, Haleem emailed INSCOM with the subject “FOIA Request Appeal” on March 14. Id., ¶ 67; see ECF No. 1-1, Exh. I (2023 INSCOM Request). He explained that he was attaching “an appeal to the FOIA request relating to [INSCOM's] response to [Haleem's] initial request of February 2022.” 2023 INSCOM Request. His attachment, in turn, stated that Haleem was seeking, among other things, “[t]he 113 pages that have been withheld” and “a review of the redactions asserted by INSCOM.” Id.

Ten days later, INSCOM responded, informing Plaintiff that because he had “previously received all the [nonexempt] records related to [his] request under [its] control and purview,” it considered his request “a duplicate effort” and would therefore deny it. See Compl., ¶ 68; ECF No. 1-1, Exh. J (2023 INSCOM 1st Response). The response also noted on behalf of AIRR - to which DCSA had...