You're viewing Docket Item 19 from the case KELLEY et al v. FEDERAL BUREAU OF INVESTIGATION et al. View the full docket and case details.

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Gilberte Jill Kelley, and
Scott Kelley, M.D.
1005 Bayshore Blvd.
Tampa, Florida 33606



v.

Plaintiffs,





The Federal Bureau of Investigation,
935 Pennsylvania Avenue, N.W.
Washington, D.C., 20535-0001,

United States Department of Defense
1400 Defense Pentagon
Washington, D.C., 20301,

United States Department of State
2201 C Street NW
Washington DC, 20520

The United States of America
950 Pennsylvania Ave., NW
Washington DC, 20530,

Leon Edward Panetta

Sean M. Joyce

George E. Little

Steven E. Ibison

Adam R. Malone

John and Jane Does 1 through 10







Civil Action No: 13-cv-825 (ABJ)

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Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 1 of 54



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

individually,

Defendants.1



1 By agreement with counsel for the FBI, DOD State Department and United States, home
addresses for the individual defendants have been suppressed out of respect for the privacy and
security of the current and former government officials named.

1

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 2 of 54



VERIFIED FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

1.

Plaintiffs Mrs. Gilberte Jill Kelley and Scott Kelley, M.D., bring this action to

vindicate their legal rights to privacy and dignity that were infringed by the government’s

improper searches, maintenance, and disclosures of their personal, private, and confidential

information. While the government’s investigation led to the resignation of Central Intelligence

Agency (“CIA”) Director David Petraeus (“Director Petraeus”) and abrupt retirement of General

John Allen, the government was not legally entitled to treat the Kelleys’ like criminals, pry into

and disclose their personal communications, violate their privacy, and disseminate confidential

records as well as false information about them.

2.

Therefore, Mrs. Kelley and Dr. Kelley make this complaint against the Federal

Bureau of Investigation (“FBI”), the U.S. Department of Defense (“DOD”), and the U.S.

Department of State (“State Department”) for money damages for violations of Plaintiffs’

privacy rights under the Privacy Act, 5 U.S.C. § 552a; against the United States of America for

declaratory and injunctive relief under the Stored Communications Act, 18 U.S.C. § 2707(g);

and against Former Secretary of Defense Leon Panetta, FBI Deputy Director Sean Joyce,

Assistant to the Secretary of Defense for Public Affairs and Pentagon Press Secretary George

Little, FBI Special Agent Steven E. Ibison, FBI Special Agent Adam R. Malone, and John and

Jane Does 1 through 10 (“Doe Defendants”) for money damages and injunctive relief for

violations of Plaintiffs’ constitutional rights and common law privacy rights and defamation.

3.

There is no question that Mrs. Kelley and Dr. Scott Kelley were the victims of

and witnesses to a potential cyberstalking crime. There is no question that they reported the facts

to the FBI out of concerns for their own physical safety and the safety of their friends who were

among the nation’s most senior intelligence and military leaders.

2

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 3 of 54



4.

There is also no reasonable argument that in exchange for their coming forward as

good citizens they became the target of an unreasonable and intrusive investigation, and a

malicious smear campaign where their names, emails, and damaging (as well as false)

information were leaked to the media. For example, on November 11th, 2012, Douglas Frantz,

then a journalist with the Washington Post and currently serving as Assistant Secretary of State

for Public Affairs, sent a fax to Mrs. Kelley stating “[w]e have now seen some of the harassing e-

mails she [Paula Broadwell] sent to you.”2 On November 13th, the New York Times reported

that then Defense Secretary Leon Panetta leaked Mrs. Kelley’s name in relation to the scandal,

writing that “Defense Secretary Leon E. Panetta and other officials traveling with him to

Australia overnight on Monday [November 12, 2012] disclosed the inquiry into General Allen’s

e-mails with Jill Kelley, the woman in Tampa, Fla., who was seen by Paula Broadwell, Mr.

Petraeus’s lover, as a rival for his attentions,” and that “the Pentagon” characterized the emails as

“inappropriate communication[s].”3 On November 14, 2012, a “US official” is quoted by Fox

News as saying the communications were the “equivalent of phone sex over email.”4

5.

Former Defense Department General Counsel Jeh Johnson, and current nominee

to be Secretary of Homeland Security, has acknowledged that he “pored over” several years’

worth of Mrs. Kelley’s emails provided to him by the FBI but which “were not germane to


2 See Exhibit 1.
3 Eric Schmitt and Elisabeth Bumiller, Another General Is Tied to the Petreaus Inquiry, N.Y.
Times, Nov. 13, 2012, at A10.
4 See, e.g., Gen. Allen’s Emails to Friend of Petraeus Family Were Like ‘Phone Sex,’ Sources
Say, FoxNews.com, Nov. 14, 2012, http://www.foxnews.com/politics/2012/11/13/top-us-
commander-in-afghanistan-gen-john-allen-under-investigation-for-alleged/#ixzz2Ubsiijue
(“[T]wo U.S. officials later told Fox News that Allen's contact with Kelley was more than just
general flirting. One official described some of the emails as sexually explicit and the ‘equivalent
of phone sex over email.’”).

3

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 4 of 54



Kelley’s [cyberstalking] complaint.”5 In this same article, he disclosed to the Tampa Tribune

that he considered them to demonstrate “a potentially inappropriate relationship” to be

investigated by the Office of Inspector General, “but no breach of national security.”6 Indeed,

former Defense General Counsel Johnson has candidly acknowledged that “undue investigation

of these emails” which he admitted were not germane to the FBI’s investigation nor

demonstrating any breach of national security, “would be a fishing expedition and invasion of

privacy for both of them,” referring to Mrs. Kelley and Gen. Allen.7 That is, of course, precisely

what happened, and what is complained of here.

6.

In addition to the barrage of damaging leaks, U.S. Department of State

spokesperson Mark Toner willfully misinformed the public about Mrs. Kelley’s diplomatic

status. He stated on November 13, and again on November 15, 2012 that Mrs. Kelley had “no

formal affiliation with the State Department.”8 This false information was damaging to Mrs.

Kelley’s reputation and livelihood because it mischaracterized her as a fake, rather than as a

serious professional appointed by the Republic of Korea and accredited by the State Department

to serve as Honorary Consul, and instructed by the State Department as well as the Republic of

Korea in procedures for carrying out her consular responsibilities. Indeed, Mrs. Kelley was

at


5 Howard Altman, Feds Won’t Revisit Socialite Kelley’s Emails, Tampa Tribune, July 3, 2013,
available
http://tbo.com/list/military-news/feds-wont-revisit-socialite-kelleys-emails-
20130703/.
6 Id. See also Sari Horowitz and Greg Miller, FBI Probe of Petraeus Triggered by E-mail
Threats by Biographer, Officials Say, Washington Post, Nov. 10, 2012, available at
http://articles.washingtonpost.com/2012-11-10/world/35504278_1_petraeus-e-mail-threats-e-
mails (“‘This is a very personal matter, not a matter of intelligence,’ the senior U.S. intelligence
official said. ‘There are protocols for this. I would imagine things have to cross a certain
threshold before they are reportable.’”)
7 Id.
8 NBC News Staff, In 911 calls, Kelley Tried to Invoke Diplomatic Immunity, NBC News, Nov.
14, 2012, http://usnews.nbcnews.com/_news/2012/11/14/15162122-in-911-calls-kelley-tried-to-
invoke-diplomatic-immunity?lite.

4

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assigned a “United States Department of State Consular Identification Card.” Mr. Toner had the

opportunity in the intervening two days between the damaging press briefings to gather the

complete and accurate information necessary and indeed required by the law, prior to repeating

the misleading information. He did not. Instead, the State Department’s statements and

omissions contributed to the government’s destruction of Mrs. Kelley’s professional reputation

and the loss of her position as Honorary Consul to the Republic of Korea.

7.

Government officials, including law enforcement agents and even senior officials,

are required to maintain the confidentiality of sensitive information about witness and victims by

the Privacy Act, other laws and government policies.

8.

Courts have repeatedly recognized the damage that can be done by disclosing

sensitive information from law enforcement files, including how “the mention of an individual’s

name in a law enforcement file will engender comment and speculation and carries a

stigmatizing connotation.”9


9 Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990); see also Schiffer v. FBI, 78 F.3d 1405,
1410 (9th Cir. 1996) (noting that persons named in FBI files “have a strong interest in ‘not being
associated unwarrantedly with alleged criminal activity,’ and that disclosure could infringe upon
this interest”); Neely v. FBI, 208 F.3d 461, 464-66 (4th Cir. 2000) (upholding the FBI’s refusal to
release the names of individuals contained in FBI files to protect their “substantial interest[s] in
the nondisclosure of their identities and their connection[s] with particular investigations”);
Ruston v. DOJ, No. 06-0224, 2007 WL 809698, at *5 (D.D.C. Mar. 15, 2007) (agreeing that
release of names and references of third parties could subject those individuals “to unanticipated
and unwanted injury to their reputations, and to derogatory publicity or interferences arising
from their connection to law enforcement”); Palacio v. DOJ, No. 00-1564, 2002 U.S. Dist.
LEXIS 2198, at *9 (D.D.C. Feb. 11, 2002) (finding that release of individual’s name in
connection with criminal investigation may carry stigma and subject him to unnecessary public
attention or harassment), summary affirmance granted, No. 02-5247, 2003 WL 242751 (D.C.
Cir. Jan. 31, 2003); Anderson v. USPS, 7 F. Supp. 2d 583, 586 (E.D. Pa. 1998) (disclosing
identities of interviewees and witnesses may result in embarrassment and harassment), aff'd, 187
F.3d 625 (3d Cir. 1999) (unpublished table decision); Cujas v. IRS, No. 1:97-00741, 1998 U.S.
Dist. LEXIS 6466, at *9-10 (M.D.N.C. Apr. 15, 1998) (finding that “third parties named in these
law enforcement records have a very strong privacy interest in avoiding the stigma and

5

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9.

Leaks of the names of victims and witnesses are damaging not only to the leak

subjects, but to our faith in government and its ability to do its job, whether law enforcement or

national security.

10.

President Obama himself has declared a “zero tolerance” policy against

government leakers.10

11.

Former DOD General Counsel Jeh Johnson characterized the expansive intrusion

into the Kelleys’ personal correspondence as “not germane” to the FBI’s investigation of the

Kelley’s cyberstalking complaint.11 The intrusion also contravened laws and policies that

recognize the significant privacy harm that can result from over-searching and collecting

documents. For example, the DOJ’s Guidelines on Methods of Obtaining Documentary

Materials Held by Third Parties, issued to implement safeguards in the Privacy Protection Act,

states that:

A search for documentary materials necessarily involves intrusions
into personal privacy. First, the privacy of a person’s home or
office may be breached. Second, the execution of such a search
may require examination of private papers within the scope of the
search warrant, but not themselves subject to seizure. In addition,
where such a search
into professional,
confidential relationships, the privacy interests of other persons are
also implicated.12


intrusions

involves

2012,

available


embarrassment resulting from their identification as a person that is or was under investigation”),
summary affirmance granted, 162 F.3d 1154 (4th Cir. 1998) (unpublished table decision).
10 Christi Parsons, Obama: 'Zero Tolerance' for Leaking Classified Information, LA Times, Jun.
at
8,
http://articles.latimes.com/2012/jun/08/news/la-pn-obama-news-
conference-leaks-20120608.
10 US Department of Justice, Attorney General Guidelines for Victim and Witness Assistance
at
(2011
http://www.justice.gov/olp/pdf/ag_guidelines2012.pdf.
11 See Altman, supra n. 5.
12 28 C.F.R. § 59.1.

available

revised

ed.,

May

2012),

6

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12.

The treatment of Mrs. Kelley and Dr. Kelley violates not only the law, but also

conflicts starkly with Attorney General Eric Holder’s “Guidelines for Victim and Witness

Assistance.” Current Department of Justice policy, which implements the Victim and Witness

Protection Act enacted by Congress, sets a proper, high standard for itself on how it treats those

individuals who come forward with evidence of a crime:

Our core mission is to pursue justice for criminal acts, and that
pursuit includes justice for the victims of and witnesses to crime.
Every day, Department personnel encounter individuals harmed by
crime or who witnessed others being harmed by crime. How we
treat those individuals has a huge impact on their confidence in the
criminal justice system and their ability to heal and recover from
crime. When the Department is successful in identifying and
convicting offenders, our victim assistance efforts help victims
navigate an unfamiliar system, foster accountability, and find
affirmation for their suffering.13

The government’s vast electronic overreach into the Kelleys’ personal emails and

13.

the prurient leaks by a Cabinet member, numerous senior government officials and law

enforcement agents could not present a starker conflict with the standards prescribed in the FBI’s

Domestic Investigations and Operations Guide (“DIOG”). That code of conduct obligates FBI

officials and agents to “protect individual rights and to ensure that investigations are confined to

matters of legitimate government interest” and to “[o]nly investigate for a proper purpose,” using

only the “least intrusive methods,” “particularly if there is the potential to ... damage someone’s

reputation [or] intrude on privacy.”14


13 Id. at i.
14 See FBI Domestic Investigations and Operations Guide, Oct. 15, 2011, § 4.1.1, available at
http://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20%
28DIOG%29/fbi-domestic-investigations-and-operations-guide-diog-2011-version. The DIOG
procedures for monitoring real-time and obtaining stored electronic communications are also
undoubtedly applicable to this case, but many of the provisions most likely to be relevant have
been redacted in whole or in part. See, e.g., id. at §§ 18.6.1.8.1.1 (Consensual Monitoring of
Computers); 18.6.8.4.2 (various provisions of ECPA – Compelled Disclosures); 18.6.8.4.3 (first

7

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14.

The only real question is whether the government will be held accountable for

cavalierly violating so many legal requirements, policies, and high ideals the public expects of its

law enforcement, legal, military, intelligence and policy officials. Through this Complaint, the

Kelleys seek to compel the government to respect the privacy of innocent citizens.

JURISDICTION

15.

This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a(g), the Stored

Communications Act, 18 U.S.C. § 2707, the Fourth Amendment of the United States

Constitution, the Fifth Amendment of the United States Constitution, and pursuant to 28 U.S.C.

§§ 1331, 1343, 1346, 1361, and 1367.

VENUE

16.

Venue is proper in this District pursuant to the Privacy Act, 5 U.S.C. §

552a(g)(5), and pursuant to the United States Code of Judicial Procedure, 28 U.S.C. § 1391.

PARTIES

17.

Plaintiff Mrs. Gilberte Jill Kelley (“Jill Kelley” or “Mrs. Kelley”) obtained an

undergraduate degree from an institution now known as Arcadia University, and pursued

additional post-baccalaureate medical studies at Drexel-Hahnemann University Hospital and

published medical research at the University of Pennsylvania. Prior to the Defendants’ actions,

Mrs. Kelley had been a real estate investor, and pursued her interests and expertise in medical

research and medical device patent development. She was also a community leader and liaison

to the military community in Tampa, and devoted considerable time to community service, both

to the local homeless as well as to the large community of servicemen and servicewomen in the


provision of ECPA – Voluntary Disclosure); 18.7.2.12 (Notice and Reporting Requirements –
Title III).

8

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Tampa area. Reflecting her contributions to the morale and well-being of the military base in

Tampa, she was named as the first “honorary ambassador” for the U.S. Central Command

(“CENTCOM”) Coalition in 2012 while under the command of CENTCOM Commander

General Mattis. As further testament to her abilities and reputation, in August 2012 the

Government of the Republic of Korea appointed Mrs. Kelley as Honorary Consul under the

Vienna Convention on Consular Affairs of 1963, Art. 10. In this capacity, Mrs. Kelley was

officially accredited by the U.S. Department of State as a foreign consular official entitled to

certain diplomatic privileges and immunities.

18.

Plaintiff Scott Kelley, M.D., is a general surgeon and surgical oncologist with an

undergraduate degree from Dartmouth College and a medical degree from Columbia University.

He completed his residency at the University of Pennsylvania and his surgical oncology

fellowship at Moffitt Cancer Center in Florida. There, Dr. Kelley became the head of the

esophageal gastric section. After approximately five years, he left academics to enter private

practice. Dr. Kelley was a pioneer of hand-assisted laparoscopic surgery for esophageal cancer.

19.

Dr. and Mrs. Kelley met at the Hospital of the University of Pennsylvania, were

married in 1999 and have three young daughters.

20.

Defendant Federal Bureau of Investigation (“FBI”) is a component of the United

States Department of Justice, a Department of the Executive Branch of the United States

Government. The FBI’s principal place of business is in the District of Columbia.

21.

Defendant United States Department of Defense (“DOD”) is a Department of the

Executive Branch of the U.S. Government with its principal place of business in Virginia.

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22.

Defendant United States Department of State (“State Department”) is a

Department of the Executive Branch of the United States Government with its principal place of

business in the District of Columbia.

23.

Defendant United States of America is named in the request for declaratory and

injunctive relief under the Stored Communications Act. The actions of the FBI, DOD and State

Department complained of herein are the responsibility of the United States Government, and

such actions may have involved other Departments, Agencies, and/or Executive Offices.

24.

Defendant Leon E. Panetta was the U.S. Secretary of Defense from July 1, 2011

through February 27, 2013. He currently resides in California.

25.

26.

Defendant Sean Joyce is the deputy director of the FBI and a resident of Virginia.

Defendant George E. Little is the former Assistant Secretary of Defense for

Public Affairs and Pentagon Press Secretary from July 19, 2011 to November 15, 2013. He is a

resident of the District of Columbia.

27.

Defendant Steve Ibison was a special agent in the FBI, now retired, and had

supervisory authority in the Kelley’s investigation. He is a resident of Florida.

28.

Defendant Adam Malone is a FBI agent, and was assigned to investigate the

Kelleys’ complaints. He is a resident of Florida.

29.

Defendants John and Jane Does 1 through 10 are individuals who acted jointly

and in concert to conspire to and did commit, aid, and abet the acts complained of herein. The

Doe Defendants’ true names and capacities are currently unknown to Plaintiffs, but their

identities should become known during the course of discovery. Each Doe Defendant is or was

an agent or employee of the United States federal government who, at least in part, exercises or

10

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exercised government authority, and is responsible in some manner for the acts and occurrences

alleged in this complaint, and each directly and proximately caused the damages alleged herein.

FACTS

30.

Until November 2012, the Kelleys were active, dedicated, and productive

members of the diplomatic community and the Tampa community that is home to MacDill Air

Force Base and the United States Central Command. They volunteered many years in

community outreach and support for the local military community.

31.

One of the Kelleys’ particularly successful community service initiatives was

founding the Coalition and Multi-National Forces Appreciation Reception in 2009, which

included Senior National Representatives to CENTCOM from over 60 countries. Mrs. Kelley

also acted as a goodwill ambassador to the Commanders at CENTCOM. In 2012, Mrs. Kelley’s

ongoing efforts for community service to the base were formally recognized through designation

as Honorary Ambassador for the US CENTCOM Coalition. These roles came with no official

duties or compensation, but, rather, recognized her continuing and dedicated commitment to

contributing positively to the military community, including promoting the importance of cross-

cultural and interfaith dialogue, and building relations with foreign ambassadors under the

support of the Commander at Central Command.

32.

Through their contributions to the military community, Mrs. Kelley and Dr.

Kelley became acquainted with a number of military officials and their families, including

Director David H. Petraeus and US Marine Corps General John R. Allen, Jr. The Kelleys,

individually and as a couple, interacted and corresponded with these individuals and their

spouses and families on a regular basis, and they all attended many of the same social and

dignitary functions.

11

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33.

On or about December 2011, South Korean official Han Duk-soo, who is

currently Chairman and CEO of the Korean International Trade Association (“KITA”), and who

served as the South Korean Ambassador to the United States through approximately February

2012, proposed Mrs. Kelley to be named Honorary Consul, a position recognized and governed

by the Vienna Convention on Consular Relations.

34.

In February 2012, South Korea nominated Mrs. Kelley for an Honorary

Consulship, and in August 2012, she was accredited by the U.S. Department of State.

35. Mrs. Kelley was free to carry on other business while serving as Honorary Consul

for the Republic of Korea, and Honorary Consuls typically engage in business deals and

transactions arising out of their knowledge and contacts. Mrs. Kelley was presented with such

opportunities and intended to do so during her service as Honorary Consul to the extent that such

business would not conflict or interfere with her consular responsibilities.

36.

As Honorary Consul, Mrs. Kelley was required to submit to a State Department

security clearance and approval process; was issued an identification card bearing State

Department identification number 4019-7108-51; received a State Department approved Florida

license plate noting her diplomatic status; and received instructions and other communications on

State Department procedures applicable to her in the conduct of official duties.

37.

Honorary consular officers recognized by the U.S. Government are American

citizens or permanent resident aliens who perform consular services on a part-time basis. The

State Department maintains official records describing the status of Honorary Consuls, “Foreign

Career Consular Offices and Honorary Consular Offices in the United States,” and providing an

official listing of such Honorary Consuls and the location of their consular offices.

Receipt and Report of Threatening and Harassing Emails and Stalking

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38.

On May 11, 2012, United States Marine Corps General John R. Allen emailed

Mrs. Kelley alerting her that he had received a strange message. The email, sent to General

Allen from the address [email protected], disparaged Mrs. Kelley and made reference to

an upcoming dinner they were having with several senior US and foreign intelligence, defense,

and diplomatic officials.

39.

The email was troubling, as it indicated somebody knew about the private dinner,

thereby presenting a potential security concern. It also frightened the Kelleys, as it indicated that

Mrs. Kelley was being followed or stalked, and raised serious concerns about her own safety and

well-being, particularly given the terrorism risks faced by CENTCOM leaders.

40.

Because of the alarming nature of the email and the specific, non-public

knowledge

it contained, Mrs. Kelley contacted

the MacDill Air Force Base FBI

Counterintelligence Agent Fred Humphries. Agent Humphries, a highly decorated FBI veteran,

asked Mrs. Kelley to think about who might be targeting her in such emails. Mrs. Kelley could

not think of anyone who would have such animosity toward her, let alone someone who would

be willing to threaten high-ranking government and military officials. Agent Humphries advised

her to remain vigilant.

41.

On June 3, 2012, Dr. Kelley received an anonymous email disparaging Mrs.

Kelley and containing threats. The message was sent to Dr. Kelley’s email account, which he

primarily uses for work purposes, and advised him to “rein her in.” It also included a reference

to Mrs. Kelley’s recent trip to Washington, DC, and referenced “senior military and public

officials and foreign Ambassadors” with whom she had repeated interactions with in the past.

The email concluded with threats about “avert[ing]” “embarrassment for all, including spouses,

such as info in national headlines,” referring to CENTCOM and SOCOM officials and other

13

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senior government leaders mentioned elsewhere in the email. The sender used the pseudonym

and email handle “Tampa Angel.”

42.

Dr. Kelley immediately informed Mrs. Kelley about the email. Both Kelleys

were extremely frightened by the threatening tone in the email, which showed the sender had

been tracking Mrs. Kelley and senior US and foreign officials, and in which the sender claimed

to have taken pictures of Mrs. Kelley—admitting to her physical stalking. It was even more

alarming when read in conjunction with the email previously sent to General Allen.

43.

On June 5, 2012, Dr. Kelley received another anonymous email message from

“Tampa Angel” making more references to Mrs. Kelley.

The Kelleys’ Report of Threats and Harassment to the FBI

44.

In light of these anonymous, threatening emails targeting and tracking Mrs.

Kelley, and after a number of senior commanders urged Mrs. Kelley to report it to law

enforcement while they themselves sought their own security measures, Mrs. Kelley contacted

Agent Humphries again. At this point, Agent Humphries asked Mrs. Kelley to come in to the

Tampa FBI field office to provide additional information. On or about June 7, 2012, Agent

Humphries introduced Dr. and Mrs. Kelley to another agent, Agent Adam Malone, by email.

Agent Malone was in charge of taking a formal report from the Kelleys. Mrs. Kelley thereafter

contacted Agent Malone to report the harassing emails her husband had received.

45.

The Kelleys understood that the FBI had a legal duty to maintain the privacy and

confidentiality of non-public investigative material, including the name and identity of victims

and witnesses who reported a possible crime. Agent Malone specifically promised Mrs. Kelley

in their meetings throughout summer of 2012 that the FBI would respect her and Dr. Kelley’s

privacy, and specifically stated that their names would not be disclosed.

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46.

Sometime around their email introduction, Mrs. Kelley went to the Tampa FBI

field office to meet Agent Adam Malone in person. Agent Malone attempted to determine the

identity of the anonymous sender, including through the use of informal contacts to obtain the

sender’s subscriber information without legal process, but was unable to do so, noting that the

sender was highly sophisticated and “fingerprintless.” He determined that he needed to access

the one email in order to get more information.

47.

On or about June 8, 2012, the agents asked whether Mrs. Kelley could provide the

login and password to Dr. Kelley’s email account for the specific and limited purpose of

obtaining the anonymous sender’s IP address. The agents explained that they would need to

have access to the original “Tampa Angel” email in its “native” format to be able to discern the

sender’s IP address information by opening the original email Dr. Kelley received from Tampa

Angel and click on the sender’s information in the header of the one email only.

48.

The agents assured Mrs. Kelley that they would not need to access the contents of

the email account for any reason.

49. Mrs. Kelley declined to provide unlimited access to the email account, but she

and Dr. Kelley did agree to provide the agents with the login and password information for the

account for the specific and limited purpose of accessing the sender’s IP information in the first

“Tampa Angel” email.

50.

During a follow-up conversation, Agents Malone and Humphries specifically

asked Mrs. Kelley for authorization to access other emails in the account. She denied their

request. They also asked whether they could have authorization to access her own email

accounts. Mrs. Kelley again denied such overbroad and unnecessary authorization.

51.

Neither Mrs. Kelley nor Dr. Kelley authorized any access to their email accounts

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beyond the explicit and limited access to the June 3, 2012 “Tampa Angel” email.

52.

In follow up communications, Mrs. Kelley received repeated reassurances that the

FBI would respect their privacy.

53.

On June 7, 11, 18, and 22, 2012, the Kelleys received additional threatening

emails from “Tampa Angel,” often speaking to either Mrs. Kelley’s recent whereabouts or,

sometimes in precise detail, her upcoming, personal plans with high-level US leaders. The

increasingly distressed Kelleys contacted Agents Humphries and Malone about each of them.

54.

Around the second week of August, Agent Malone told Mrs. Kelley that the FBI

had identified the sender of the emails, but refused to give Mrs. Kelley any additional

information. Mrs. Kelley repeatedly inquired about obtaining security or protection, and Agent

Malone replied that he would get back to her about it. He never did. During that same

conversation, Mrs. Kelley reiterated her desire to maintain her privacy, and received further

reassurances from Agent Malone.

55.

Upon information and belief, the FBI had been able to trace the IP address of the

anonymous sender and, after additional investigation and surveillance, and perhaps as early as

June 25, 2012, had determined that Mrs. Paula Broadwell had stalked US leaders and senior

military officials and the Kelleys, and sent the threatening and defamatory emails.

56.

Unbeknownst to the Kelleys, Director Petraeus was engaged in an extramarital

affair with Mrs. Broadwell.

57.

The Kelleys never met or spoke to Mrs. Broadwell.

FBI Investigation of the Kelleys, Including Overbroad and Irrelevant

Search and Seizure of the Kelleys’ Personal Emails

Upon information and belief, the federal agents collected more than the one


58.

“Tampa Angel” email to which the Kelleys allowed them access.

16

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 17 of 54



59.

The Kelleys have not received any notice, delayed or contemporaneous, of any

subpoena, order, writ or other process by which the United States would have lawful access to

their electronic communications, such as is required by 18 U.S.C. §§ 2703, 2705.

60.

At no point did any government agents notify the Kelleys that they required

additional access to emails or that the Kelleys were the subjects or targets of an investigation.

61.

At no point did the government have any basis in law or fact for either of the

Kelleys to be investigated as the subjects or targets of any FBI’s criminal probe.

62.

Upon information and belief, the FBI Washington Cyber Division and FBI

Deputy Director Sean Joyce directed agents in the Tampa Field Office Cyber Squad to treat the

Kelleys’ case differently than other investigations. The Cyber Division and Deputy Director

Joyce preempted decisions made by the Field Office’s Cyber Supervisor and directed the course

of the investigation, including by directing the investigating agents not to proceed with a

scheduled effort to interview Mrs. Broadwell once they had identified her as the stalker

responsible for the threatening emails.

63.

The Kelleys’ case was also treated differently because they were not assigned a

victims’ assistance coordinator or provided with status updates regarding their case. In fact, in

July 2012, Agent Humphries informed the Kelleys that he was instructed by Assistant Special

Agent in Charge (“ASAC”) Kevin Eaton to cease all communication with Mrs. Kelley.

64.

The FBI marginalized Mrs. Kelley, denied her standard rights and deviated from

its standard practices, and did not treat her case with the integrity and confidentiality it deserved

and that other victims and witnesses would routinely receive, based on inappropriate and

unprofessional personal judgments made by certain agents.

65.

Upon information and belief, government agents accessed, collected, and

17

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 18 of 54



maintained records on a multitude of the Kelleys’ personal emails including, but not limited to,

other “Tampa Angel” emails, and emails between the Kelleys and Director Petraeus, General

Allen, and Agent Humphries.

66.

Upon information and belief, the additional emails the government agents seized,

searched, reviewed and maintained were not pertinent to unearthing evidence related to the case

involving the Kelleys’ cyber stalker or any other criminal investigation, nor could any reasonable

person believe they could have been. Rather, the government searched, obtained, and reviewed

personal, irrelevant private emails belonging to the Kelleys.

67.

Upon information and belief, government agents misused the emails obtained

through overbroad search and seizure to conduct a scurrilous investigation into Mrs. Kelley’s

private life that had no bearing on any legitimate concern to the FBI.

68.

For example, Agent Humphries has told Mrs. Kelley that his superiors confronted

him with her emails and accusing him of having an extramarital affair with Mrs. Kelley. They

ordered Agent Humphries to compose an affidavit, and forced him to remove his statement

denying an affair. The FBI engaged in this intrusive and irrelevant inquiry even though, at the

time of these accusations, the FBI and other government agents already knew that Mrs.

Broadwell had sent the anonymous threats. Agent Humphries’ relationship with Mrs. Kelley

was friendly, professional, and entirely platonic.

69.

As further example, on or about August 10, 2012, Mrs. Kelley was at her home

with her three daughters when FBI agents, including Agent Malone, arrived unannounced at her

home. They instructed Mrs. Kelley to get in the SUV in which they had arrived. She refused,

stating she was with her children and was scheduled to take a flight out of Tampa in the next two

hours. The agents insisted she go with them, leaving the children with the nanny, and again

18

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 19 of 54



ordered Mrs. Kelley to get in the vehicle. Mrs. Kelley asked whether she could contact her

attorney, and the FBI agents replied that she did not have time to do that, and demanded she

leave her children, not contact her attorney, and get in the SUV immediately.

70. While in the vehicle, she again asked to call her attorney, and they again denied

her, informing her she did not have time. Instead, they then demanded she answer accusations

regarding extramarital affairs with Director Petraeus.

71.

During this episode, Agent Malone informed Mrs. Kelley that the FBI had

identified the stalker, but, despite Mrs. Kelley’s repeated pleas for additional information, he

refused to provide any information or answer questions about whether she was in danger. Mrs.

Kelley requested protection, and Agent Malone said he would get back to her, but never did.

72.

After this incident, it was abundantly clear that Mrs. Kelley was not being treated

as the victim of a crime, and was not being afforded the respect, rights, and information normally

provided to crime victims. Instead, she had somehow become the target of the FBI’s zealous

investigation into the agents’ speculations and prurient interests.

Perpetration of Inaccurate, Irrelevant Information

73.

In addition to collecting vast amounts of irrelevant information and pursuing an

intrusive and unnecessary investigation into the Kelleys’ private affairs, the FBI intentionally or

recklessly maintained inaccurate information in their records about the Kelleys.

74.

For example, Agent Humphries has told the Kelleys that Agent Ibison confronted

him with allegations that Humphries was having an affair with Mrs. Kelley, presenting emails

between Mrs. Kelley and Humphries, including an email with an attachment of a photo of Agent

Humphries posing with target dummies taken at a firing range by other members of his SWAT

19

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 20 of 54



team. Humphries had sent this photo in 2010 to many friends, including both Dr. and Mrs.

Kelley, as a self-deprecating joke, and it was not suggestive or sexual.

75.

After confronting Agent Humphries about whether he had an inappropriate

relationship with Mrs. Kelley, the FBI also directed Agent Humphries to remove a statement in

his sworn 302 declaration addressing, and flatly denying, the accusation that he had a sexual

relationship with Mrs. Kelley.

76.

Additionally, Agent Humphries has told the Kelleys that at a time after the FBI

was aware that Mrs. Broadwell was the cyber stalker, it had a chart posted up on the wall, visible

to anyone in its Tampa Field Office, showing Mrs. Kelley at the hub with spokes drawn out to

several senior government and military officials. In addition to demonstrating that Mrs. Kelley

was the target of the investigation, the chart, as the FBI had posted it, did not shield Mrs.

Kelley’s identity or safeguard her privacy in any way. To the contrary, the chart and other

conduct of the agents demonstrated a discriminatory and sexist fascination with Mrs. Kelley.

Petraeus Affair Scandal and Leak of Victim Identity

77.

On November 9, 2012, Director Petraeus resigned as Director of the Central

Intelligence Agency. The intense media coverage that followed reported that he had resigned

because of an affair which had been uncovered through an investigation of anonymous,

threatening emails sent to an individual who had filed a complaint with the FBI—although these

reports did not initially identify the recipient of the harassing emails.15

Emails,”


15 See, e.g., Tabassum Zakaria and Mark Hosenball, FBI Probe of Petraeus Began With
“Suspicious
at
http://www.reuters.com/article/2012/11/10/us-usa-petraeus-idUSBRE8A81FP20121110 (“[T]he
FBI probe was triggered when Broadwell sent threatening emails to an unidentified woman close
to the CIA director”); FBI Probe of Petraeus’ Emails Purportedly Led to Discovery of
Extramarital
2012,
http://www.foxnews.com/politics/2012/11/10/fbi-probe-petraeus-emails-purportedly-led-to-

FoxNews.com,

available

Reuters,

Nov.

10,

2012,

Affair,

Nov.

10,

20

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 21 of 54



78.

On information and belief,16 Attorney General Eric Holder, FBI Director Robert

Mueller, FBI Deputy Director Sean Joyce, Director of National Intelligence James Clapper Jr.,

and National Security Adviser Tom Donilon made decisions regarding the investigation and the

decision on whether to inform the President, based on the timing of the presidential election.

79.

On November 9, the same day that Petraeus resigned and before the Kelleys’

name was linked to this scandal, the Kelleys learned through news reports that no criminal

charges were being pressed against Mrs. Broadwell. Indeed, the FBI made this decision without

ever interviewing Dr. Kelley, a key witness, victim and recipient of the threats, who was

interviewed by the FBI only after the disclosure that the FBI would not file charges.

80.

In the days that followed, in utter disregard for the Kelleys’ privacy and status as

victims, unnamed “law enforcement,” “senior military,” and other government officials willfully

ABC

News,

Nov.

'Human

Drama',

Uncovers


discovery-extramarital-affair/ (“The FBI investigation began when someone reported suspicious
emails allegedly sent from Broadwell.”); David Petraeus Affair: FBI Probe Into Inbox of Paula
Broadwell
10,
2012,
http://abcnews.go.com/Politics/OTUS/david-petraeus-affair-fbi-probe-uncovers-human-
drama/story?id=17689348 (“The FBI stumbled across the affair after the unnamed woman, who
received the troubling email several months ago, alerted authorities, who began a probe to track
the source of the message.”).
16 See Barton Gellman, Spyfall: David Petraeus’ Affair With his Biographer Ended His 37-year
Career. But the Damage From This Episode Goes Much Farther., TIME Magazine, Nov. 15,
2012, available at http://swampland.time.com/2012/11/15/spyfall/print/ (“The decision by FBI
Director Robert Mueller and Attorney General Eric Holder Jr. to withhold notice about the case
until Election Day has turned congressional attention once again on the inner workings of the
Obama Administration. . . . Thus far it is undisputed that word of the Petraeus affair first reached
the White House on Wednesday, Nov. 7, the day after Obama’s re-election, in a telephone call
from Director of National Intelligence James Clapper Jr. to National Security Adviser Tom
Donilon. Obama was celebrating with his family and staff in Chicago, and Donilon decided to
hold the news until Thursday morning.”); see also Mike Isikoff, Agent Feared FBI Was Stalling
Petraeus
Investigation Until After 2012 Election, NBC News, Nov. 7, 2013,
http://investigations.nbcnews.com/_news/2013/11/07/21337699-agent-feared-fbi-was-stalling-
petraeus-investigation-until-after-2012-election (interviewing Charles Mandigo, former Special
Agent in Charge of the FBI’s Seattle office, and former supervisor to FBI Special Agent
Humphries, who said that Humphries “had been told, just sit back and wait. Once the election is
over, this will be quietly handled and it will all be resolved.” Mandigo also said that “Humphries
attributed the comment to an unidentified senior official in the FBI’s Tampa office.”)

21

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 22 of 54



leaked Mrs. Kelley’s name and damaging and false innuendo to the media.17

81.

On November 11, 2012, Mrs. Kelley received a fax from a national newspaper in

which the journalist stated that “[w]e have now seen some of the harassing e-mails she [Paula

Broadwell] sent to you.” See Ex. 1. The Kelleys now understood that not only had the

government leaked Mrs. Kelley’s name, but it was disseminating her emails to the press. The

journalist who sent that fax was Douglas Frantz of the Washington Post. On September 3, 2013,

Mr. Frantz was appointed Assistant Secretary for the Bureau of Public Affairs in the State

Department. He continues to serve as Assistant Secretary of State to the present time.

82.

As Mr. Johnson disclosed to the Tampa Tribune, three days after David Petraeus

resigned as CIA Director, Mr. Johnson received a call about the emails from the FBI General

Counsel, who said the emails were “not germane” to the FBI’s investigation of the Kelleys’

cyberstalking complaint. 18 The article quotes Mr. Johnson saying, “[m]y strong recollection is

that the emails that were handed over to me by the FBI were the product of a subpoena, therefore

they would have picked up every single communication between Mrs. Kelley and Gen. Allen.”

Mr. Johnson described the emails as “very comprehensive and you could tell over a several year


17 See, e.g., Sari Horwitz and Greg Miller, FBI Probe of Petraeus Triggered By E-mail Threats
From Biographer, Officials Say, Wash. Post, Nov. 10, 2012, available at
http://www.washingtonpost.com/world/national-security/fbi-probe-of-petraeus-triggered-by-e-
mail-threats-from-biographer-officials-say/2012/11/10/d2fc52de-2b68-11e2-bab2-
eda299503684_story.html (“The woman who received the emails [from Paula Broadwell] was
Jill Kelley in Tampa, Fla., according to law enforcement officials. The nature of her relationship
with Petraeus is unknown.”); Report: Emails Triggered Petraeus Probe, Nov. 11, 2012,
available at http://www.politico.com/news/stories/1112/83690.html#ixzz2UbQRzmpz
(“A
senior U.S. military official . . . says 37-year-old Jill Kelley in Tampa, Fla., received the emails
from Petraeus biographer Paula Broadwell that triggered an FBI investigation.”); Donna
Leinwand Leger, Jill Kelley ID’d as Woman Who Sparked Petraeus Inquiry, USA Today, Nov.
12, 2012, available at http://www.usatoday.com/story/news/nation/2012/11/11/petraeus-jill-
kelley-scandal/1698203/ (“A senior U.S. military official identified the woman who allegedly
received the harassing e-mails from Paula Broadwell as Jill Kelley, 37, of Tampa.”).
18 See Altman, supra n. 5.

22

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 23 of 54



period that nothing was missing. … There didn’t seem to be any gaps in what we were looking

at.” Mr. Johnson also acknowledged that the emails did not demonstrate any “breach of national

security,”19 and that further investigation could be an invasion of privacy.

83.

Upon information and belief, by November 12, 2012, United States government

sources had fed the media absolutely egregious, spurious, and false “facts” that generated even

more frenetic speculation about Mrs. Kelley’s life, which included publicly naming the Kelleys’

minor children.20 According to one press account titled “Petraeus Affair: Who is Jill Kelley?,”

published by ABC News on November 13, 2012, a government official disclosed that “[t]he FBI

has now uncovered ‘potentially inappropriate’ emails between Gen. Allen and Kelley, according

to a senior U.S. defense official who is traveling with Defense Secretary Leon Panetta. The

department is reviewing between 20,000 and 30,000 documents connected to this matter, the

official said.”21

84.

On November 11, 2012, government officials further leaked innuendo and

Jill

Insider,

Nov.

11,

Kelley,

Resident


19 Id. See also Sari Horowitz and Greg Miller, FBI Probe of Petraeus Triggered by E-mail
Threats by Biographer, Officials Say, Washington Post, Nov. 10, 2012, available at
http://articles.washingtonpost.com/2012-11-10/world/35504278_1_petraeus-e-mail-threats-e-
mails (“‘This is a very personal matter, not a matter of intelligence,’ the senior U.S. intelligence
official said. ‘There are protocols for this. I would imagine things have to cross a certain
threshold before they are reportable.’”)
20 See, e.g., Henry Blodget and Kim Bhasin, The ‘Other Woman’ In the Petraeus Scandal is
Tampa
2012,
http://www.businessinsider.com/jill-kelley-petraeus-2012-11 (characterizing Mrs. Kelley as “the
other woman” in the Petraeus scandal and citing an AP source of “an unnamed senior military
official”); Michael Daly, Exclusive: Paula Broadwell’s Emails Revealed, The Daily Beast, Nov.
12, 2012, http://www.thedailybeast.com/articles/2012/11/12/exclusive-paula-broadwell-s-emails-
revealed.html (citing an anonymous source from “the highest levels of the intelligence
community” as describing the emails sent by Paula Broadwell to Jill Kelley as “kind of cat-fight
stuff,” and speculating that “Kelley likely assisted her 7-year-old daughter. . . in posting an
online photo album that includes a picture of the girl and her two sisters with Petraeus”); Emma
Brockes, Petraeus Scandal: Jill Kelley and the Tampa Society Set, The Guardian, Nov. 16, 2012,
http://www.guardian.co.uk/world/2012/nov/16/petraeus-scandal-jill-kelly-tampa-society.
21 Christina Ng, Martha Raddatz and Luis Martinez, ABC News, Nov. 13, 2012,
http://news.yahoo.com/petraeus-affair-jill-kelley-154817861--abc-news-topstories.html.

Business

23

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 24 of 54



misinformation about Mrs. Kelley’s personal correspondence with General Allen. The media

cited anonymous government sources for the proposition that Mrs. Kelley engaged in

communications with General Allen numbering in the tens of thousands, and that government

officials were conducting an investigation into inappropriate conduct between Mrs. Kelley and

General Allen. One government official went so far as to characterize certain email

communications as the “equivalent of phone sex over email.”22

85.

Once more, government leaks intentionally placed the Kelleys in the middle of

rampant speculation about the nature of Mrs. Kelley’s private relationships with men who were

not her husband—in this case, General Allen—resulting in lurid headlines placing Mrs. Kelley at

the “center” of a “sex scandal.”23

86.

The U.S. Department of State spokesperson Mark Toner answered questions


22 See, e.g., FoxNews.com, supra n. 3; Craig Whitlock and Rajiv Chandrasekaran, Petraeus
Investigation Ensnares Commander of U.S., NATO Troops in Afghanistan, Wash. Post, Nov. 13,
2012, available at http://www.washingtonpost.com/world/national-security/scandal-probe-
ensnares-commander-of-us-nato-troops-in-afghanistan/2012/11/13/a2a27232-2d7d-11e2-a99d-
5c4203af7b7a_story.html?hpid=z1 (“According to a senior U.S. defense official, the FBI has
uncovered between 20,000 and 30,000 pages of documents — most of them e-mails — that
contain “potentially inappropriate” communication between Allen and Jill Kelley.”).
23 See, e.g., Rachel Bletchly, Sex and the CIA: The Woman at the Centre of the Scandal with Top
US Generals, Mirror, Nov. 17, 2012, available at http://www.mirror.co.uk/news/world-news/jill-
kelley-woman-at-the-centre-of-the-scandal-1440530; The Other ... Other Woman: Florida
Socialite Emerges at Center of Petraeus Scandal, FoxNews.com, Nov. 13, 2012,
http://www.foxnews.com/politics/2012/11/13/florida-housewife-in-petraeus-scandal-reportedly-
never-spared-anything-for/; Carl Hiaasen, Jill Kelley, Mystery Vixen in Petraeus Scandal, Miami
Herald, Dec. 1, 2012, available at http://www.miamiherald.com/2012/12/01/3121422/jill-kelley-
mystery-vixen-in-petraeus.html; Phil Hands, Four Star General Hospital, Wisconsin State
Journal, Nov. 18, 2012, available at http://host.madison.com/hands-cartoon-four-star-general-
hospital/image_1f8b1b26-3000-11e2-a64d-001a4bcf887a.html (depicting Mrs. Kelley as being
involved in a soap opera with Generals Petraeus and Allen); In the Line of Booty, N.Y. Daily
at
News
http://www.tampabay.com/resources/images/blogs/media/61982.jpg.

available

story),

(cover

Nov.

18,

2012,

24

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 25 of 54



about Mrs. Kelley’s diplomatic status during press briefings on November 13, 201224 and again

on November 15, 2012.25 Mr. Toner disseminated inaccurate and incomplete information about

Mrs. Kelley’s having “no formal affiliation with the State Department” on November 13th and

15th 2012, mischaracterizing Mrs. Kelley as a poseur or fake. Mr. Toner’s false information

from State Department records contributed to the ruin of her professional reputation. He made

these statements despite the fact that Mrs. Kelley was an Honorary Consul vetted, registered and

recognized by the State Department, including being instructed by the State Department as to

appropriate procedures for her service as Honorary Consul for South Korea, and being issued a

State Department ID and State Department-approved diplomatic license plates.

87.

Indeed, Mr. Toner had an opportunity to correct his damaging statements two

days after his first statement, but instead took the opportunity to reiterate that she had “no formal

affiliation with the State Department” and that the State Department had “no direct role.” He

specifically and repeatedly omitted critical information needed to ensure that what he

disseminated was accurate and complete. What he did say on behalf of the State Department

was false, misleading and damaging. The correct and truthful information he failed to disclose

from State Department records was that Mrs. Kelley was officially recognized and credentialed

by the State Department, and that she was entitled to certain official privileges and immunities,

including “[p]rotection [of] the consular premises . . . [from] intrusion or damage . . . disturbance

of the peace . . . [and] impairment of its dignity”26 which the United States was obligated to

respect under the Vienna Convention on Consular Relations as implemented by official U.S.

State

State

See

See

Department


24
http://www.state.gov/r/pa/prs/dpb/2012/11/200477.htm.
25
http://www.state.gov/r/pa/prs/dpb/2012/11/200598.htm.
26 Vienna Convention on Consular Relations art. 59, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.
261.

Department

transcript,

transcript,

2012,

available

Nov.

Nov.

2012,

available

13,

15,

at

at

25

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 26 of 54



policy. In fact, Mrs. Kelley’s State Department Consular Identification Card states on the back

that “[t]his person has been duly recognized by the Department of State…. The bearer shall be

treated with due respect.”

88. When the FBI finally did interview Dr. Kelley on or about December 3, 2012, he

demanded to know why he was being interviewed only after the government’s judgment not to

prosecute their stalker was publically announced. Dr. Kelley also demanded to know why his

and Mrs. Kelley’s emails had been read despite their express refusal to consent to such activity,

and why their names had been leaked to the press. Malone refused to give him much

information, but informed him that the leaks came from headquarters.

89.

On January 22, 2013, internal investigators cleared General Allen of all

wrongdoing, concluding he had not had an inappropriate relationship or inappropriate dealings

with Mrs. Kelley and that the allegations were unsubstantiated. Nevertheless, after the media

campaign to cast doubt about his fidelity with innuendo regarding Mrs. Kelley, General Allen

retired from the military on April 29, 2013.

90.

Upon information and belief, these malicious leaks originated with government

agents. Because the Kelleys’ case was a Sensitive Investigative Matter (“SIM”), access to their

case file was – or should have been – restricted. Upon information and belief, there is a list of

approximately 70 government employees who had unlimited access to the case file, including

individuals from the Tampa FBI office such as Agents Adam Malone, Kevin Eaton, and Steve

Ibison, individuals from FBI headquarters, including Deputy Director Sean Joyce, and

individuals from the Department of Justice. The individuals on that list would be the only people

with authorized access to the details of the investigation and the particulars of the Kelleys’

personal emails, and the only people authorized to access those emails.

26

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 27 of 54



91.

Upon information and belief, Mrs. Kelley’s emails and material from and about

the government’s investigation was provided by government officials directly to journalists,

including Douglas Frantz of then of the Washington Post. Mr. Frantz sent Mrs. Kelley a fax on

November 11, 2012 representing that he had “seen some of the harassing emails [Mrs.

Broadwell] sent to you.”

FBI’s Willful Determination to Withhold Victim Services


92.

The Kelleys were not treated like the victims they were. At no point did

Defendants officially apprise them of the rights to which victims are entitled by law and FBI

policy. At no point did an FBI victims’ representative officer contact them.

93.

In fact, Mrs. Kelley had asked FBI representatives repeatedly about victims’

assistance or victims’ rights, and each time she was told that they would get back to her.

94.

On or about November 7, 2012, in light of the fact that the FBI had not provided

the Kelleys with any concrete information since they reported the potential crime in early June

2012, other than being told that the FBI had potentially identified the sender in August 2012,

Mrs. Kelley contacted the FBI Victim Witness Assistance program coordinator office in Tampa

seeking information about her case. The websites for the United States Attorney’s Office for the

Middle District of Florida specifically includes information on victim witness assistance, stating

“[s]ervices provided to crime victims and witnesses by the U.S. Attorney’s Office include: notice

of case events; information concerning their rights; information about case proceedings and the

criminal justice system in general; referrals to medical and/or social service providers; assistance

with travel arrangements; and logistical information….”27


27 The United States Attorney’s Office Middle District of Florida, Victim Witness Assistance,
http://www.justice.gov/usao/flm/programs/vw/vwa.html.

27

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 28 of 54



95.

The FBI Victim Witness representative who answered the phone searched for her

case file, which she could not initially locate. After some difficulty, the FBI representative asked

Mrs. Kelley if her case was related to the Petraeus inquiry. Once Mrs. Kelley acknowledged that

her case was likely related, the representative told Mrs. Kelley her file had existed but had been

removed from the victim representatives’ list of cases, and that she had no further information.

Fallout and Aftermath

96.

Echoing the leaks of generally “unnamed” government officials, there are now

multitudes of headlines, videos, false information, and sexist innuendoes harming the Kelleys.

97.

No government official had any legal basis to release the Kelleys’ names, or to

publicly disclose, discuss, and adversely characterize their emails and other information.

98.

The Kelleys have suffered enormously as a result of the Defendants’ actions,

including potentially irreversible reputational harm, significant financial expenses, and current

and future financial losses and lost opportunities.

99.

On November 27, 2012, barely two weeks after the false and damaging

government leaks began, Mrs. Kelley found out that her Honorary Consulship was being revoked

through news reports.28 She received a letter formally informing her of the decision soon after.

100. Neither Dr. nor Mrs. Kelley has been accused of a crime, and to their knowledge,

they have not been investigated for one. Mrs. Kelley has not had an affair with anyone.

101. Mrs. Kelley’s reputation is indelibly tainted. She is consistently and falsely

referred to as the “center” of the “sex scandal” and is wrongly portrayed as the woman who

brought down two American generals. As a result, she (the victim and a participant in none of


28 See, e.g., NBC News and News Services, South Korea to Sack Tampa Socialite Jill Kelley as
Honorary Consul, Nov. 27, 2012, http://usnews.nbcnews.com/_news/2012/11/27/15484600-
south-korea-to-sack-tampa-socialite-jill-kelley-as-honorary-consul.

28

Case 1:13-cv-00825-ABJ Document 19 Filed 11/22/13 Page 29 of 54



the bad acts in the sex scandal) has unfairly shouldered the blame as the villain in the generals’

downfall despite the fact that she was trying to protect them.29

102. The vituperation directed toward the Kelleys forced them to increase their

security, to avoid public events they would otherwise attend, and to lose much of the value of

living in their Tampa community. It also prevented the Kelleys from attending their children’s

school functions, including school plays, family days, and other special occasions.

103. To understand their rights in the aftermath of the Defendants’ disclosures, the

Kelleys had to hire attorneys to help remediate the damage the government has caused them.

104. The treatment of Mrs. Kelley in particular was also the product of sexual

discrimination and stereotyping by Defendants.

105. Mrs. Kelley’s prior excellent reputation was a critical factor in her professional

opportunities, including her Honorary Consulship, and the reputational backlash she suffered as a

result of the Defendants’ actions directly and proximately caused her appointment as an

Honorary Consul to be revoked. The revocation of her Honorary Consulship deprived her of her

annual stipend and years of significant public service, social and financial opportunities.

106. Prior to Defendants’ misconduct, Mrs. Kelley’s networking opportunities were

beginning to present significant business and philanthropic prospects. In the aftermath of the

government’s actions and the ensuing smear of the Kelleys’ personal and financial standings,

Mrs. Kelley has lost a critical element for success in these endeavors—credibility and financial

standing. Indeed, Mrs. Kelley has been made aware of opportunities that she may not participate


29 See, e.g., Sage Stossel, Petraeus Scandal: History Repeats Itself, Boston Globe, Nov. 24,
2012, available at http://www.bostonglobe.com/opinion/2012/11/24/petraeus-scandal-history-
repeats-itself/I6zGIU63qBEDIicrN0MZgN/story.html (cartoon depicting Mrs. Kelley as a
modern-day Helen of Troy).

29

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in, given the scandal. Additionally, the DOD revoked Mrs. Kelley’s access to the MacDill Air

Force Base, notwithstanding many years of voluntary service.

107. Dr. Kelley also suffered financial losses because of the Defendants’ misconduct.30

Federal Protections of Privacy

108. The Fourth Amendment of the U.S. Constitution recognizes the privacy interests

in electronic communications. Indeed, as the U.S. Court of Appeals wrote in United States v.

Warshak, 631 F.3d 266, 284 (6th Cir. 2010), that “an email account … provides an account of its

owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer

deeply into his activities. . . .”

109. The Privacy Act, 5 U.S.C. § 552a, was enacted in 1974 following the revelation

of the illegal surveillance and investigation of individuals by federal agencies during the

Watergate scandal. The Privacy Act seeks to protect individuals from unwarranted invasions of

privacy by federal agencies that maintain sensitive information about them.

110.

In passing the Act, Congress recognized that “the opportunities for an individual

to secure employment, insurance, and credit, and his right to due process, and other legal

protections are endangered by the misuse of certain information systems,” and that “the right to

privacy is a personal and fundamental right protected by the Constitution of the United States.”

5 U.S.C. § 552a note (Congressional findings for the Privacy Act of 1974).

111. Congress enacted

the amended Electronic Communications Privacy Act,

including the Stored Communications Act, 18 U.S.C. § 2701 et seq., in 1986 to protect

individuals from the “technological advances in surveillance devices and techniques” that


30 Due to concerns regarding the property and privacy interests involved, and the potential for
prejudice to the Kelleys from disclosure, those damages will be addressed in more detail under
seal or pursuant to an appropriate protective order.

30

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“ma[de] it possible for overzealous law enforcement agencies, industrial spies and private parties

to intercept the personal or proprietary communications of others.” S. Rep. No. 99-541, at 3

(1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557.

112. The FBI’s DIOG establishes policies for the agency’s conduct in investigations.

It also defines the circumstances in which the FBI may disseminate investigative information.31

The DIOG provides that, in addition to disclosures required by law, “[c]onsistent with the

Privacy Act…,” the FBI is permitted to share information with other agencies “if disclosure is

compatible with the purpose for which the information was collected and [ ] is related to their

responsibilities,” or if the dissemination is otherwise permitted by the Privacy Act.32 This

section accordingly requires use control and access limitations for disclosures to other agencies,

such as the DOD, as well as respect for the Privacy Act, and does not contain any provision

authorizing the FBI to share information with the media. The DIOG also requires FBI agents to

protect civil liberties and privacy throughout the investigative process, including specifications in

section 4.1.1. to “protect individual rights and to ensure that investigations are confined to

matters of legitimate government interest” and to “[o]nly investigate for a proper purpose.”33

This same section establishes that FBI agents should use the “least intrusive methods” to pursue

the FBI’s investigative goals, “particularly if there is the potential to ... damage someone’s

reputation, [or] intrude on privacy...).”34

FIRST CAUSE OF ACTION

AGAINST DEFENDANTS FBI AND DOD





PRIVACY ACT – UNAUTHORIZED DISCLOSURE


31 See DIOG, supra n. 13 at § 14.3.
32 Id. at § 14.3.1(B), (H).
33 See id., at § 4.1.1.
34 Id.

31

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113. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through

112 above, inclusive.

114.

Information regarding the Kelleys and their report to the FBI of threatening and

harassing cyberstalking is maintained within one or more Privacy Act systems of records

retrievable by use of the Kelleys’ names or by some identifying number, symbol or other

identifying particular assigned to Plaintiffs.

115. Pursuant to 5 U.S.C. § 552a(b), the FBI and DOD may not “disclose any record

which is contained in a system of records by any means of communication to any person, or to

another agency” unless certain exceptions apply.

116. At no time did Plaintiffs provide the government with either verbal or written

consent to disclose information concerning themselves to third parties, and indeed, they received

assurances that the FBI would preserve their privacy.

117. Upon information and belief, on one or more occasions since the Kelleys first

reported the threatening and criminal actions of the cyber stalker, the FBI shared records on the

Kelleys with the DOD, and both shared these records and information contained therein with the

media. The FBI and DOD leaks by, for example, “law enforcement officials,”35 a “senior U.S.

military official,”36 “an unnamed military official,”37 an anonymous source from “the highest


35 See, e.g., Horwitz and Miller, supra n. 17 (“The woman who received the emails [from Paula
Broadwell] was Jill Kelley in Tampa, Fla., according to law enforcement officials. The nature of
her relationship with Petraeus is unknown.”).
36 Politico, supra n. 17(“A senior U.S. military official . . . says 37-year-old Jill Kelley in Tampa,
Fla., received the emails from Petraeus biographer Paula Broadwell that triggered an FBI
investigation.”); see also Leger, supra n. 17(“A senior U.S. military official identified the woman
who allegedly received the harassing e-mails from Paula Broadwell as Jill Kelley, 37, of
Tampa.”).
37 See, e.g., Blodget and Bhasin, supra n. 20 (characterizing Mrs. Kelley as “the other woman”
in the Petraeus scandal and citing an AP source of “an unnamed military official”).

32

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levels of the intelligence community,”38 and “a senior U.S. defense official who is traveling with

Defense Secretary Leon Panetta,”39 were widely reported. The New York Times reported

specifically that the leaker of Mrs. Kelley name and involvement was Secretary Panetta himself,

as well as other officials travelling with the Secretary.40 CBS reported that a “Pentagon

spokesman told reporters traveling with Defense Secretary Leon Panetta to Australia Monday

that America’s top commander in Afghanistan was also being investigated for ‘potentially

inappropriate’ communications with Kelley.”41 The next sentence in the same article reveals that

“Pentagon press secretary George Little” explained that the FBI referred the matter to the DOD.

118. Upon information and belief, the DOD did not have a need for the Kelleys’

records in the performance of their duties, and no lawful exception authorized the disclosure of

the Kelleys’’ records to the DOD.

119. Upon information and belief, on one or more occasions since the Kelleys first

reported the threatening and criminal actions of the cyber stalker, numerous employees of the

FBI and the DOD unlawfully and recklessly disseminated inaccurate, derogatory, and irrelevant

information obtained from a protected system of records to media members and other third

parties who were not authorized to receive such information.


38 Daly, supra n. 20 (citing an anonymous source from “the highest levels of the intelligence
community” as describing the emails sent by Paula Broadwell to Jill Kelley as “kind of cat-fight
stuff,” and speculating that “Kelley likely assisted her 7-year-old daughter, . . . , in posting an
online photo album that includes a picture of the girl and her two sisters with Petraeus”).
39 Ng, Raddatz and Martinez, supra n. 21 (“The FBI has now uncovered ‘potentially
inappropriate’ emails between Gen. Allen and Kelley, according to a senior U.S. defense official
who is traveling with Defense Secretary Leon Panetta. The department is reviewing between
20,000 and 30,000 documents connected to this matter, the official said. The email exchanges
between Kelley and Allen took place from 2010 to 2012.”).
40 See Schmitt and Bumiller, supra n.2.
41 Details of Petraeus Affair Emerge as Scandal Engulfs Gen. John Allen, CBS, Nov. 13, 2012,
available at http://www.cbsnews.com/8301-505266_162-57548836/details-of-petraeus-affair-
emerge-as-scandal-engulfs-gen-john-allen/.

33

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120. No lawful exception authorized such damaging media disclosures.
121. The unauthorized disclosures by the FBI and DOD violated 5 U.S.C. § 552a(b),

and directly and proximately caused adverse effect to the Kelleys, giving rise to a claim pursuant

to 5 U.S.C. §552a(g)(1)(D). Further, the law enforcement exceptions do not permit the FBI or

DOD to shirk the prohibitions against disclosures.42

122. Upon information and belief, the FBI and DOD, as well as their employees and

officers, knew or should have known that their actions were improper, unlawful and/or in

violation of the Privacy Act. Indeed, in the multitude of ensuing media coverage, few sources

were identified by name; instead appearing to have spoken to media only on condition of

anonymity given the prohibited nature of leaking such protected and damaging information to

the national press.

123. Upon information and belief, the FBI, the DOD, and their employees and officers

acted intentionally and/or willfully in violation of the Kelleys’ privacy rights.

124. As a direct and proximate result of Defendants’ violations of the Privacy Act,

Plaintiffs have suffered grave injury, including but not limited to emotional trauma, loss of

reputation, revocation of a consular appointment, lost or jeopardized present and future financial

opportunities, public relations and attorneys fees, costs associated with threats to their personal

security, and permanent association with a national sex scandal based on an affair involving

neither Dr. nor Mrs. Kelley.

SECOND CAUSE OF ACTION

AGAINST DEFENDANTS FBI AND DOD





PRIVACY ACT – FAILURE TO MAINTAIN IN RECORDS ONLY INFORMATION
RELEVANT AND NECESSARY TO ACCOMPLISH A PURPOSE OF THE AGENCY


42 See Tijerina v. Walters, 821 F.2d 789 (D.C. Cir. 1987).

34

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125. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through

124 above, inclusive.

126. Pursuant to 5 U.S.C. § 552a(e)(1), the FBI and the DOD must “maintain in its

records only such information about an individual as is relevant and necessary to accomplish a

purpose of the agency required to be accomplished by statute or by executive order of the

President.”

127. Upon information and belief, Defendants maintained private information about

the Kelleys,

including

their personal relationships, financial dealings, and personal

communications, that were not relevant to the Kelleys’ cyberstalking report nor to the

investigation of any other criminal activity, present or national security concern, or any other

legitimate purpose of the FBI or the DOD.

128. Upon information and belief, Defendants maintained and may still maintain

information in their records that is irrelevant and unnecessary to the purposes of their agencies.
129. Upon information and belief, the maintenance of irrelevant and unnecessary

information in their records expanded the intrusion into the Kelleys’ privacy without

justification, painted the Kelleys in a damaging false light, created a larger set of information

subject to compromise from government leaks and other misuse, and led to significant emotional

and financial injury to the Kelleys.

130. Upon information and belief, the maintenance of irrelevant and unnecessary

information violated 5 U.S.C. § 552a(e)(1) and caused adverse effect to the Kelleys, and gives

rise to a claim pursuant to 5 U.S.C. §552a(g)(1)(D).

35

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131. Upon information and belief, the FBI, the DOD, and their employees and officers

knew or should have known that their actions were improper, unlawful and/or in violation of the

Privacy Act.
132.

The FBI, the DOD, and their employees and officers acted intentionally and/or

willfully in violation of the Kelleys’ privacy rights.

133. As a direct and proximate result of Defendants’ violations of the Privacy Act,

Plaintiffs have suffered grave injury.

THIRD CAUSE OF ACTION

AGAINST DEFENDANTS FBI AND DOD





FAIRNESS

PRIVACY ACT – FAILURE TO MAINTAIN RECORDS WITH SUCH ACCURACY,

RELEVANCE, TIMELINESS AND COMPLETENESS AS IS NECESSARY TO ASSURE


134. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

133 above, inclusive.

135. The Privacy Act, §552a(g)(1)(C), provides a cause of action against any agency

that “fails to maintain any record concerning any individual with such accuracy, relevance,

timeliness, and completeness as is necessary to assure fairness in any determination relating to

the qualifications, character, rights, or opportunities of, or benefits to the individual that may be

made on the basis of such record….”

136. Upon information and belief, Defendants did not maintain records regarding the

Kelleys with a degree of accuracy, relevance and completeness as necessary to ensure fairness,

including an overbroad and irrelevant collection of the Kelleys’ emails, records regarding their

personal lives and social connections, plainly inaccurate descriptions and summaries of Mrs.

Kelley’s communications with General Allen, and indeed, FBI Defendants dissuaded an FBI

36

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agent from providing a complete and accurate record on Mrs. Kelley when Defendants asked that

the agent eliminate information in the record accurately describing the nature of his relationship

with Mrs. Kelley.

137. Upon information and belief, these records were relied upon to proximately cause

unfair and adverse determinations to revoke access to opportunities and benefits from victim

assistance programs, withhold from the Kelleys critical information about their case, convert the

Kelleys into the subjects of an aggressive, intimidating and intrusive investigation, revoke base

privileges, and deny them the confidentiality typically given to victims’ identities.

138. The FBI and DOD actions give rise to a claim pursuant to §552a(g)(1)(c)

regardless of whether the information is maintained in a system of records.

139. The FBI and DOD, as well as their employees and officers knew or should have

known that their actions were improper, unlawful and/or in violation of the Privacy Act.

140. The FBI, DOD, as well as their employees and officers acted intentionally and/or

willfully in violation of the Kelleys’ privacy rights.

141. As a direct and proximate result of Defendants’ violations of the Privacy Act,

Plaintiffs have suffered grave injury.

FOURTH CAUSE OF ACTION

AGAINST DEFENDANTS FBI AND DOD





PRIVACY ACT – MAINTAINING RECORDS DESCRIBING EXERCISE OF RIGHTS

GUARANTEED BY THE FIRST AMENDMENT


142. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

141 above, inclusive.

143. Upon information and belief, Defendants FBI and DOD maintained records

regarding the Kelleys’ personal communications, associations and friendships, which are

37

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activities protected under the First Amendment’s guarantee of freedom of speech and rights of

association. These records were not pertinent to, and were outside of the scope of, authorized law

enforcement activity, and no statute expressly authorized them to be maintained.

144. As a result of the maintenance of records regarding the Kelleys’ exercise of First

Amendment rights, the Kelleys suffered adverse effects as detailed above

145. The actions of the government violated § 552a(e)(7) and caused adverse effects to

the Kelleys, which gives rise to claims pursuant to §552a(g)(1)(D).

146. The FBI and DOD, as well as their employees and officers, knew or should have

known that their actions were improper, unlawful and/or in violation of the Privacy Act.

147. The FBI, DOD, as well as their employees and officers, acted intentionally and/or

willfully in violation of the Kelleys’ privacy rights.

148. As a direct and proximate result of Defendants’ violations of the Privacy Act,

Plaintiffs have suffered grave injury.

AGAINST DEFENDANTS FBI, DOD AND STATE DEPARTMENT

FIFTH CAUSE OF ACTION





PRIVACY ACT – FAILURE TO MAKE REASONABLE EFFORTS TO ASSURE
RECORDS ARE ACCURATE, COMPLETE AND RELEVANT FOR AGENCY

PURPOSES PRIOR TO DISSEMINATION


149. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

148 above, inclusive.

150. The Privacy Act at § 552a(e)(6) requires that the FBI, DOD and State Department

“make reasonable efforts to assure that such records are accurate, complete, timely, and relevant

for agency purposes” prior to disseminating such records to any person other than an agency.

151. Upon information and belief, prior to disseminating protected information, the

38

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FBI, DOD and State Department failed to take reasonable efforts to assure records regarding the

Kelleys were accurate, complete, and relevant for agency purposes.

152. Upon information and belief, FBI Defendants dissuaded an FBI agent from

providing a complete and accurate record on Mrs. Kelley when Defendants asked that the agent

eliminate information in the record accurately describing the nature of his relationship with Mrs.

Kelley. They also collected and maintained a vast amount of personal information and

communications on the Kelleys that was irrelevant to their investigation or any authorized

purpose.

153. Several of the government leaks attributed to law enforcement and defense

department officials included gross speculation, misstatements and intentionally salacious

hyperbole without regard to the truth or relevancy of the leaks.

154. State Department spokesperson Mark Toner disseminated inaccurate and

incomplete information about Mrs. Kelley’s having no “formal affiliation with the State

Department” on November 13, 2012 and again on November 15, 2012, repeatedly omitting

critical information needed to ensure what he disseminated was accurate and complete, thereby

intentionally misleading the press about the nature of Honorary Consuls and Mrs. Kelley’s

professional integrity.

155. As a result of the failure to ensure accurate, complete, and relevant records prior

to disclosure, the Kelleys suffered further adverse effects in addition to those that resulted from

the improper leak of their identities.

156. The actions of the government violated § 552a(e)(6) and caused adverse effects to

the Kelleys, which gives rise to claims pursuant to §§552a(g)(1)(D).

39

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157. Upon information and belief, the FBI, DOD, and State Department as well as their

employees and officers, knew or should have known that their actions were improper, unlawful

and/or in violation of the Privacy Act.

158. Upon information and belief, the FBI, DOD, and State Department, as well as

their employees and officers, acted intentionally and/or willfully in violation of the Kelleys’

privacy rights.

159. As a direct and proximate result of Defendants’ violations of the Privacy Act,

Plaintiffs have suffered grave injury.

SIXTH CAUSE OF ACTION

AGAINST DEFENDANTS FBI AND DOD





PRIVACY ACT – FAILURE TO ESTABLISH APPROPRIATE SAFEGUARDS TO

ENSURE THE SECURITY AND CONFIDENTIALITY OF RECORDS WHICH

RESULTED IN SUBSTANTIAL HARM AND EMBARRASSMENT


160. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

159 above, inclusive.

161. Upon information and belief, the FBI and DOD sources compromised the security

and confidentiality of information held in records related to the Kelleys, their report of

cyberstalking, and other information naming individuals in relation to an investigation into

adulterous activity by a high-profile national figure by providing the information in these reports

to the media.

162. Upon information and belief, and as demonstrated by the multiple leaks from

several government sources, the FBI and DOD failed to establish appropriate administrative,

technical, and physical safeguards to ensure the security and confidentiality of records and to

protect against anticipated threats or hazards to their security or integrity—and indeed failed to

40

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prevent further leaks after the first leak. This widespread permissive attitude aggravated the

systematic failure to establish safeguards and ensure confidentiality.

163. The compromise of the security and confidentiality of records containing

information related to the Kelleys’ report of cyberstalking and resulting investigation, as well as

naming individuals in relation to investigations into adulterous activity by a high profile national

figures, reasonably and foreseeably can result, and indeed did directly and proximately result, in

substantial harm, embarrassment, inconvenience, and/or unfairness to the Kelleys.

164.

As a direct and proximate result of the Defendants’ failure to establish the

necessary safeguards, the Kelleys were denied access to victim assistance programs, had critical

information about their case withheld from them, were targeted as the subject of an aggressive,

intimidating and intrusive investigation, had base privileges revoked, had personal information

and communications from their records disclosed to media members, and had to endure

allegations from unnamed government officials about marital infidelity.

165. The Defendants’ failure to establish safeguards to ensure the security and

confidentiality of the records and protect against anticipated threats or hazards to their security or

integrity inflicted such direct and proximate damage on the Kelleys as expanding the intrusion

into the Kelleys’ privacy; painting the Kelleys in a damaging false light; making Mrs. Jill Kelley

an object of ridicule, moral opprobrium, scorn, and derision, causing her, her husband, and her

three young children shame, public notoriety, egregious loss of privacy, and security; costing

Mrs. Kelley public respect, positions of trust and responsibility, and significant lost financial,

business, and investment opportunities; and also costing Dr. Kelley extensive financial losses.

41

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166. The actions of the FBI and DOD, as well as their employees and officers, violated

§ 552a(e)(10), causing adverse effects to the Kelleys and giving rise to claims pursuant to

§552a(g)(1)(D).

167. Upon information and belief, the FBI and DOD, as well as their employees and

officers knew or should have known that their actions were improper, unlawful, and/or in

violation of the Privacy Act.

168. Upon information and belief, the FBI and DOD, as well as their employees and

officers, acted intentionally and/or willfully in violation of the Kelleys’ privacy rights.

169. As a direct and proximate result of Defendants’ violations of the Privacy Act,

Plaintiffs have suffered grave injury.

SEVENTH CAUSE OF ACTION

AGAINST DEFENDANT UNITED STATES





STORED COMMUNICATIONS ACT – IMPROPER DISCLOSURES


170. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

169 above, inclusive.

171. Upon information and belief, records held by federal law enforcement,

intelligence and defense officials related to the Kelleys included information from the Kelleys’

stored electronic communications obtained by the FBI and/or other officers, agents or employees

of the United States through an investigative or law enforcement officer, or a governmental

entity, pursuant to 18 U.S.C. § 2703, or from a device installed pursuant to 18 U.S.C. § 3123 or

18 U.S.C. § 3125 or by other legal authority or without legal authority.

172. Leaks of personal correspondence to the press are not disclosures made pursuant

to the proper performance of governmental entity or officers official functions.

42

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173. The actions of the United States and its employees and officers violate the Stored

Communications Act under 18 U.S.C. § 2707(g), which prohibits willful disclosure of a record

obtained by an investigative or law enforcement officer where such disclosure is not made in the

proper performance of official functions.

174. Upon information and belief, the United States and its employees and officers

acted willfully in violation of the Kelleys’ privacy rights.

175. As a direct and proximate result of Defendants’ violations of the Stored

Communications Act, Plaintiffs have suffered grave, ongoing injury.

EIGHTH CAUSE OF ACTION

AGAINST DEFENDANT UNITED STATES







STORED COMMUNICATIONS ACT – FAILURE OF NOTICE

176. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

175 above, inclusive.

177. Under the Stored Communications Act, prior notice to the subscriber is required

for any disclosures made pursuant to court order or subpoena, and the Stored Communications

Act does not prohibit either prior notice or delayed notice to the customer or subscriber for

disclosures obtained pursuant to search warrant. See 18 U.S.C. § 2703. Moreover, as reflected

in 18 U.S.C. § 2518(8)(d), the government must ensure that notice of interception of electronic

communications is provided to the parties whose communications were obtained.

178. Dr. and Mrs. Kelley never received prior or delayed notice under the Stored

Communications Act, even after specifically requesting such notice from counsel for Defendants

on Wednesday, September 11, 2013 via email. The actions of the United States and its

43

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employees and officers gives rise to a violation of the Stored Communications Act under 18

U.S.C. § 2707(a).

179. Upon information and belief, the United States and its employees and officers

acted willfully in violation of the Kelleys’ privacy rights.

180. As a direct and proximate result of Defendants’ violations of the Stored

Communications Act, Plaintiffs have suffered grave, ongoing injury.

AGAINST DEFEENDANTS JOYCE, MALONE, IBISON AND DOE DEFENDANTS

NINTH CAUSE OF ACTION





BIVENS CLAIM FOR VIOLATION OF FOURTH AMENDMENT RIGHTS

PROHIBITING UNREASONABLE SEARCHES


181. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

180 above, inclusive.

182. Upon information and belief, Defendants accessed, searched and seized the

Kelleys’ emails beyond the scope for which the government had probable cause or proper

judicial approval to search.

183. The Kelleys had a reasonable expectation of privacy in their personal emails that

is protected by the U.S. Constitution’s Fourth Amendment guarantee of “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches.”

184. Defendants’ search of the Kelleys’ emails beyond the scope of what the

government had probable cause or proper judicial approval to search was not reasonable, and the

Kelleys’ right to be free of such unreasonable searches was sufficiently established such that

Defendants knew or should have known that such a search, that was admittedly “not germane to

Kelley’s complaint,” would violate the Kelleys’ constitutional rights. Defendants’ conduct

44

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“violate[d] clearly established statutory or constitutional rights of which a reasonable person

would have known.”43

185. Defendants’ misconduct was undertaken under color of federal law.
186. Defendants acted intentionally and/or willfully in violation of the Kelleys’ rights.
187. Defendants’ search of the Kelleys’ emails beyond the scope for which the

government had probable cause or judicial approval to search violated their Fourth Amendment

rights, and gives rise to a claim under the U.S. Constitution pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), permitting plaintiffs to

bring a civil rights suit against federal officials in their individual capacities for damages directly

and proximately caused by constitutional torts under color of their authority.

188. As a result of Defendants’ violations of the Kelleys’ Fourth Amendment rights

against unreasonable searches, Plaintiffs have suffered grave injury.

TENTH CAUSE OF ACTION







AGAINST DEFEENDANTS JOYCE, MALONE, IBISON AND DOE DEFENDANTS

BIVENS CLAIM FOR VIOLATION OF FIFTH AMENDMENT RIGHTS TO DUE

PROCESS, INLUDING EQUAL PROTECTION UNDER THE LAW

189. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

188 above, inclusive.

190. Defendants treated Mrs. Kelley differently than male victims in investigating her

reports of threatening and criminal actions of the cyberstalker by failing to provide her with

victims’ assistance service, withholding critical information about the case, and engaging in a

“blame the victim” strategy to turn her into the subject of an aggressive, intimidating, and

intrusive investigation.

43 Pearson, 555 U.S. at 231 (quoting Harlow, 457 U.S. at 818).

45

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191. As part of this “blame the victim” strategy, Defendants maliciously and

intentionally characterized Mrs. Kelley as the sexualized “other woman,” and failed to protect,

and indeed violated, her privacy rights as they focused their investigation on her in search of

salacious information. Further, although the government eventually publically cleared Gen.

Allen of wrongdoing, and some government officials even defended him in the press, the

government has never defended Mrs. Kelley, corrected its untrue sensationalist leaks, or

apologized for its behavior.

192. Defendants’ misconduct was undertaken under color of federal law.
193. Defendants acted with purpose and intent to discriminate against Mrs. Kelley on

the basis of sex.

194. Defendants’ actions to discriminate against Mrs. Kelley on the basis of sex were

not reasonable, and Mrs. Kelley’s right to be free of sex discrimination was sufficiently

established that Defendants knew or should have known that their conduct would violate Mrs.

Kelley’s constitutional rights. Their conduct “violated clearly established statutory or

constitutional rights of which a reasonable person would have known.”44

195. Defendants acted intentionally and/or willfully in violation of Mrs. Kelley’s Fifth

Amendment right to equal protection of the law.

196. Defendants’ discrimination against Mrs. Kelley on the basis of sex violated her

Fifth Amendment rights to due process, which include equal protection of the laws,45 and gives

rise to a claim under the U.S. Constitution pursuant to Bivens, 403 U.S. 388, permitting plaintiffs

to bring a civil rights suit against federal officials in their individual capacity for damages


44 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)).
45 Bolling v. Sharpe, 347 U.S. 497 (1954).

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directly and proximately caused by constitutional torts committed under color of their

authority.46

197. As a result of Defendants’ violations of Mrs. Kelley’s Fifth Amendment rights,

Mrs. Kelley has suffered grave injury.

ELEVENTH CAUSE OF ACTION

AGAINST DEFEENDANTS PANETTA, LITTLE AND DOE DEFENDANTS





DEFAMATION

198. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

197 above, inclusive.

199. Defendants made false and defamatory statements concerning the Kelleys,

including false statements to paint Mrs. Kelley as unfaithful in her marriage.

200. Upon information and belief, such statements were made without privilege to a

third party.

201. As evidenced by their actions to preserve anonymity as they leaked the false and

defamatory statements, and upon information and belief, Defendants acted intentionally and/or

willfully, but at least with negligence, in making such false and defamatory statements.

202. Upon information and belief, to the extent that these false and defamatory leaks

were not authorized by the agencies such that the Defendants were acting outside the scope of

their authority, the actions of Defendants give rise to a claim for common law defamation.

203. As a direct and proximate result of Defendants’ making and causing to be

published such false and defamatory statements, Plaintiffs have suffered grave injury.


46 See also Davis v. Passman, 442 U.S. 228 (1979) (extending Bivens suits for damages to the
Fifth Amendment in the context of gender discrimination).

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AGAINST DEFEENDANTS PANETTA, LITTLE, AND DOE DEFENDANTS

TWELVTH CAUSE OF ACTION





FALSE LIGHT

204. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

203 above, inclusive.

205. Upon information and belief, Defendants published, publicized or otherwise gave

publicity to false statements, representations or imputations of or concerning the Kelleys by

anonymously leaking such information to media members or other third parties.

206. Plaintiffs did not consent

to

the publication of such false statements,

representations or imputations about themselves.

207. The publication of such false statements, representations or imputations placed

the Kelleys in a false light that would be offensive to an ordinary, reasonable person.

208. Upon information and belief, Defendants intentionally and/or willfully placed the

Kelleys in a false light.

209. Upon information and belief, to the extent that such actions were not authorized

by the agencies such that the Defendants were acting outside the scope of their authority, the

actions of Defendants give rise to a claim for the common law tort of false light.

210. As a direct and proximate result of Defendants’ placing Plaintiffs in a false light,

Plaintiffs have suffered grave injury.

THIRTEENTH CAUSE OF ACTION

AGAINST DEFEENDANTS JOYCE, MALONE, IBISON AND DOE DEFENDANTS



INTRUSION UPON SECLUSION



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211. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

210 above, inclusive.

212. Upon information and belief, Defendants used some form of investigation or

examination to physically intrude into the Kelley’s private or secret concerns, including personal

communications, financial, business and family affairs, and personal relationships that were not

in any way relevant to the investigation of the Kelleys’ cyber stalker report, or of any other

appropriate or legally authorized investigation or examination.

213. Plaintiffs did not consent to this intrusion, indeed Dr. and Mrs. Kelley only

authorized access to one email.

214. The investigation or examination into the Kelleys’ private or secret concerns

would be highly offensive to an ordinary, reasonable person.

215. Upon information and belief, Defendants intentionally and/or willfully violated

the Kelleys’ privacy rights.

216. Upon information and belief, to the extent that such actions were not authorized

by the agencies such that the Defendants were acting outside the scope of their authority, the

actions of Defendants give rise to a claim for the common law tort of intrusion upon seclusion.

217. As a direct and proximate result of Defendant’s violations of the Plaintiffs’

privacy, Plaintiffs have suffered grave injury.

FOURTEENTH CAUSE OF ACTION, IN THE ALTERNATIVE

AGAINST DEFEENDANTS PANETTA, LITTLE AND DOE DEFENDANTS



PUBLICATION OF PRIVATE FACTS


218. Plaintiffs repeat and reallege the allegations continued in paragraphs 1 through

217 above, inclusive.

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219. Defendants published, publicized or otherwise gave publicity to Plaintiffs’ private

lives by anonymously leaking private facts, such as Plaintiffs’ personal contact information,

personal correspondence, personal relationships, personal financial concerns, family matters and

confidential information about their victimization by a cyberstalker to the media or other third

parties so that they would be substantially certain to become public knowledge.

220. Plaintiffs did not consent to the publication of these private facts.

221. The publication of facts about the Kelleys’ private lives would be highly offensive

to an ordinary, reasonable person.

222. The publication of facts about the Kelleys’ private lives that were not relevant to

the investigation of criminal activity, nor of any relevance to a national sex scandal based on an

affair involving neither Dr. nor Mrs. Kelley, are not of legitimate concern to the public.

223. Defendants intentionally and/or willfully violated the Kelleys’ privacy rights.

224. Upon information and belief, to the extent that such actions were not authorized

by the agencies such that the Defendants were acting outside the scope of their authority, the

actions of Defendants give rise to a claim for the common law tort of publication of private facts.

225. As a direct and proximate result of Defendants’ violations of the Plaintiffs’

privacy, Plaintiffs have suffered grave injury.

JURY DEMAND



Plaintiffs request trial by jury on all counts that may be heard by a jury.

REQUESTED RELIEF

WHEREFORE, Plaintiffs respectfully pray that this Court grant the following relief:

A.

order Defendants to issue a formal apology to Dr. and Mrs. Kelley for the

violations of their privacy and dignity;

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B.

award damages equal to actual and statutory damages sustained by the Kelleys

under the Privacy Act pursuant to § 552a(g)(4)(a);

C.

D.

award Plaintiffs compensatory and consequential damages as proven at trial;

award Plaintiffs punitive and exemplary damages as the Court may deem just and

proper to deter such future egregious conduct;

E.

order preliminary and permanent injunctive relief as appropriate to prevent further

violations of Plaintiffs’ rights under the Fourth and Fifth Amendments to the U.S. Constitution;

F.

at the conclusion of this action, order that Defendants provide the Kelleys with a

specific accounting of all information gathered about them – whether or not stored in a system of

records – and the dissemination and use of each such piece of information within and outside of

the government, as well as a statement that any such information that was gathered without legal

authority or which is now no longer needed for a legitimate governmental purpose be destroyed;

G.

direct that all officers, employees, and agents of government agencies or

departments who have violated the Privacy Act with respect to this matter be referred for

appropriate military, professional and/or administrative discipline;

H.

order injunctive, equitable and declaratory relief as may be appropriate, including

a declaration of violations of

the notice and disclosure prohibitions of

the Stored

Communications Act, and order the Attorney General, the Director of the FBI, and Secretary of

Defense to promptly initiate a proceeding to determine whether disciplinary action against the

officer or employee is warranted pursuant to 18 U.S.C. § 2707(d), and to provide Plaintiffs with

all notice required by law under the Act;

I.

award Plaintiffs their costs and reasonable attorneys fees incurred in this action as

provided by 5 U.S.C. § 552(a)(4)(E) and 28 U.S.C. § 2412; and

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