Washington Metropolitan Area Transit Commission v. Reliable Limousine Service, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
TIMOTHY M. REED, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-1160 (ESH)
)
DEPARTMENT OF THE NAVY, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Timothy Reed has sued the Department of the Navy under the Privacy Act of
1974 (“Privacy Act”), 5 U.S.C. § 552a et seq. He alleges that defendant improperly disclosed
confidential records pertaining to him, which resulted in his constructive discharge by his
civilian employer, the Charleston Police Department (“CPD”). At trial, defendant presented a
variety of defenses in the alternative: that the disclosures were not covered by the Privacy Act;
that the disclosures were justified by certain exceptions to the Act’s general prohibition; that any
prohibited disclosures were not willful or intentional; that plaintiff was not constructively
discharged; and/or that his discharge was not caused by the Navy’s disclosures.
The case was tried before this Court on November 5-7, 2012. The Court heard live
testimony from six witnesses, including five Navy officers and plaintiff. In addition, the parties
entered into evidence by stipulation the deposition testimony of six employees of the CPD. The
parties also introduced exhibits, including the set of documents that the parties stipulated were
released by the Navy to the CPD in April 2009. Based on the evidence at trial, the applicable
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case law, and the entire record, the Court makes the following Findings of Fact and Conclusions
of Law.
FINDINGS OF FACT
A. Reed’s Background
1. Plaintiff Timothy Reed was enlisted in the United States Navy from November 1990
through January 1998, when he was honorably discharged. From March 1998 through May 18,
2009, he served in the Navy Reserve. His service included deployments to Guantánamo Bay,
Cuba, Crete, Kuwait, and Iraq. Plaintiff was simultaneously employed as a police officer by the
CPD from the spring of 2000 through May 2009. (Trial Transcript from November 6, 2012
(“11/6/12 Tr.”) at 42-47.)
B. January/February 2009
2. On December 31, 2008, plaintiff was mobilized to the Expeditionary Combat
Readiness Center (“ECRC”) in anticipation of being deployed to Iraq as part of a detainee guard
unit. (Def. Ex. 4 at Bates Number (“BN”) 100; 11/5/12 Tr. at 64-65; 11/6/12 Tr. at 52, 122-123.)
While in specialized training at Ft. Lewis, Washington, plaintiff allegedly engaged in various
acts of misconduct in the period January 5 through January 19, 2009. (Pl. Ex. 4 at BN 402090-
91; Def. Ex. 3 at BN 002-005.) Specifically, plaintiff was alleged to have pointed an M16 rifle at
two other trainees while ordering them to the ground; pointed a knife at another trainee and
threatened to cut him; disobeyed an order to wear Navy-issued boots; made a derogatory
statement about a female officer; and made inappropriate comments about using force against
Iraqis. (Pl. Ex. 4 at BN 402090-91; Def. Ex. 3 at BN 002-005.)
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3. On January 23, 2009, Senior Chief Prezant, a Navy Liaison Officer at Ft. Lewis,
informed ECRC about the allegations. (Def. Ex. 3 at BN 032.) On January 26, 2009, plaintiff
was given an “emergency command directed evaluation” or mental health exam. (Id. at BN 043-
044.) On January 27, 2009, a preliminary inquiry was completed at Ft. Lewis. (Id. at BN 039-
042.) On the same date, Navy Lieutenant Commander (“LCDR”) Aimee Cooper, a Staff Judge
Advocate (“JAG”) assigned to the ECRC Command, wrote a memo recommending that plaintiff
be placed in pretrial confinement because he was accused of offenses triable by court-martial and
because it was reasonable to believe that he might continue his alleged pattern of criminal
misconduct if left at liberty. (Id. at BN 032-036.)
4. Plaintiff left several phone messages for Lieutenant Kevin Boyd, his team
commander at the CPD, in January 2009. When they spoke, plaintiff told Boyd that he had
“some training issues” without providing specific details. (Testimony of Lieutenant Kevin Boyd
(“Boyd Test.”), Joint Ex. 1, at BN 004-006.) Boyd believed, based on his experience, that “if [an
officer] is away from the Department and they’re calling you, it’s probably not a good thing.”
(Id. at BN 042.) Boyd notified Captain Tillman, his supervisor, about the call. No action was
taken by the CPD at that time. (Id. at BN 006.) This was the first time that anyone at the CPD
learned of any issues arising during Reed’s deployment.
5. On January 27, 2009, plaintiff was transported back to ECRC in Norfolk, Virginia.
(11/6/12 Tr. at 124-125.) On January 30, 2009, the Navy conducted a Disciplinary Review
Board (“DRB”) hearing, presided over by Command Master Chief David Carter. (11/5/12 Tr. at
21-22.) As the senior enlisted advisor to Captain Jeffrey McKenzie, the Commanding Officer of
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the ECRC, Carter was responsible for all aspects of the disciplinary proceeding, including the
investigation. (Id. at 52-53.)
6. During the DRB hearing, plaintiff indicated that he was a police officer with the CPD.
(Id. at 23.) Because the DRB members were skeptical of plaintiff’s claim, Carter contacted the
CPD after the hearing in order to confirm plaintiff’s civilian employment. (11/5/12 Tr. at 59-60.)
Carter’s initial call was picked up by CPD Sergeant Robert F. Gamard. (Testimony of Sgt.
Robert F. Gamard (“Gamard Test.”), Joint Ex. 2, at BN 009-012.) Carter asked Gamard if
plaintiff worked for the CPD. (Id. at BN 010.) Gamard explained to Carter how to verify
plaintiff’s employment officially, but also informed him that plaintiff worked on CPD Team 1 as
a police officer. (Id.) Carter then told Gamard that plaintiff had been involved in a “training
incident” that involved pointing a firearm at other trainees, and that there were allegations that he
had made ethnic and racial slurs as well. (Id.) According to Gamard, Carter asked him if he was
aware of plaintiff being involved in any similar incidents at the CPD. (Id. at BN 011.) Gamard
responded that plaintiff “didn’t work directly for [him], and it was not something that [he] would
have known” but he “directed him in the direction that he would need to go to find that
information out.” (Id.) Carter could not recall this conversation. (11/5/12 Tr. at 27-28, 93.) The
Court therefore credits Gamard’s recollection.
7. Gamard gave Boyd the message to return Carter’s call. (Gamard Test. at BN 012.)
When Boyd called, Carter asked if plaintiff worked for the CPD as a police officer, which Boyd
confirmed. (Boyd Test. at BN 006-007.) Carter then said that plaintiff was involved in “some
training issues” or “a situation.” (Id. at BN 007.) Boyd cut Carter off and suggested a
conference call with his supervisor, Captain Gary Tillman, to discuss the matter in full. (Id.)
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8. A conference call took place between Boyd and Tillman from the CPD (with Gamard
listening in briefly), and CMC Carter and LCDR Cooper from the Navy. (Boyd Test. at BN 008-
012; Gamard Test. at BN 014-015.) Carter had received Privacy Act training (11/5/12 Tr. at 48-
49), and Cooper, an attorney, was the FOIA and Privacy Act coordinator for ECRC at the time.
(Id. at 122-23.) Carter asked Cooper to participate in the call so that “if there’s anything that
needs to be addressed legally, she, being the expert, would be able to address it.” (Id. at 94.)
The conference call lasted about 5 minutes. (Boyd Test. at BN 011.) Carter again repeated what
he told Gamard, i.e., that the plaintiff was involved in a training scenario that involved pointing a
weapon and making derogatory statements or slurs. (Id. at BN 012.)
9. After the conference call, Tillman and Boyd informed CPD Attorney Mark Bourdon
and CPD Chief Gregory Mullen about the allegations against plaintiff. (Testimony of Mark
Bourdon (“Bourdon Test.”), Joint Ex. 4, at BN 010-011.) Chief Mullen indicated that he wanted
to wait until the Navy concluded its investigation before taking any action. (Id. at BN 010.)
10. Plaintiff called Gamard about a week after Carter had initially called. (Gamard Test.
at BN 012-013.) Plaintiff asked questions about what Carter had said to Gamard. (Id. at BN
013.) In addition, plaintiff asked Gamard if he would write a character reference, which Gamard
did not feel comfortable doing. (Id.) Plaintiff also called Boyd after the conference call and
asked him for a character reference. (Boyd Test. at BN 044.)
11. On February 2, 2009, plaintiff called Mark Bourdon, who, in addition to being an
attorney for the CPD, was a JAG Officer with the Marine Corps Reserve. (Bourdon Test. at BN
007,012-013.) Plaintiff told Bourdon that “all he [was] accused of doing was violat[ing]
[operational security]” and that “the allegations against him would not hold water.” (Id. at BN
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013-014.) Bourdon was already aware that there were alleged weapons violations, and so he did
not question plaintiff. (Id. at BN 014.)
C. March 2009
12. On March 12, 2009, plaintiff was found guilty at a “Captain’s Mast” proceeding of
having violated three provisions of the Uniform Code of Military Justice: disobeying a lawful
order (UCMJ Art. 92), provoking speeches or gestures (UCMJ Art. 117), and assault (UCMJ Art.
128). He was found not guilty of making false official statements (UCMJ Art. 107). (Def. Ex. 3
at BN 125-131.) Captain McKenzie imposed non-judicial punishment (“NJP”) on plaintiff,
reducing his rank from First Class Petty Officer (E6) to Second Class Petty Officer (E5). (Def.
Ex. 3 at BN 126; Def. Ex. 4 at BN 101; 11/6/12 Tr. at 9, 62, 237.) McKenzie read the charges
aloud to plaintiff at the beginning of the proceeding and had plaintiff sign the charge sheet.
(11/6/12 Tr. at 229.) At the conclusion of the Mast, according to McKenzie, he read aloud each
charge and whether plaintiff had been found guilty. (Id.) Although plaintiff disputes this, the
Court does not credit his testimony given McKenzie’s contrary testimony and the
contemporaneous documentation that was sent to the CPD in April, which had McKenzie’s
handwritten notes indicating guilty verdicts on three counts and a not guilty verdict on the charge
of making false official statements. (Ex. 3 to Bourdon Test. at BN 140-141.)
D. April 2009
13. On April 13, 2009, plaintiff was demobilized from ECRC. (Def. Ex. 4 at BN 100;
11/6/12 Tr. at 49-50, 161.)
14. On the same date, plaintiff indicated to the CPD that he intended to return to work as
a police officer. (11/6/12 Tr. at 54, 164.) Also on that date, Mark Bourdon contacted LCDR
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Cooper to obtain information about the circumstances of Reed’s separation from the Navy.
(Bourdon Test. at BN 021.) Cooper informed Bourdon about the details of the allegations
against plaintiff, the fact that he had undergone a mental health exam, and the disciplinary
actions that the Navy had taken against him. (Id. at BN 022-026.) Bourdon took detailed notes
of the conversation. (Pl. Ex. 3 at BN 407008-407022.) Given the fact that these notes were
taken contemporaneously by Bourdon and that Cooper’s recollection of this conversation was
limited (see 11/5/12 Tr. at 128-130), the Court concludes that the notes accurately reflect the
substance of Cooper’s disclosures.
15. On April 14, 2009, plaintiff was verbally notified by Captain Gregory Whitaker that
he was being placed on administrative leave without pay. (11/6/12 Tr. at 70-71.) Plaintiff
contacted the Department of Labor (“DOL”) to report that the CPD was violating the Uniformed
Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq.
(Id. at 72-7, 199.) A DOL representative was sent to mediate. (Id. at 199.)
16. On April 15, 2009, Bourdon asked Cooper to treat his email as a Freedom of
Information Act (“FOIA”) request. (Pl. Ex. 2 at BN 008.) On April 17, 2009, Cooper sent by
email to Bourdon records of the Navy’s investigation and the results of plaintiff’s NJP. (Id. at
BN 002; Bourdon Test. at BN 039.) Among the documents released by Cooper were several
documents summarizing the allegations, documents reflecting the disposition of the charges,
and sworn statements by nine witnesses to the alleged incidents at Ft. Lewis. (Ex. 3 to Bourdon
Test. at BN 135-172 (all of the documents that Cooper released to Bourdon).) Cooper did not
release numerous other documents contained in the Navy’s case file, including, most notably,
the January 26, 2009 mental health exam report and several documents that mentioned
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plaintiff’s “mental status” and the mental health exam. (Def. Ex. 3 at BN 001-162 (entire NJP
case file).) Cooper also did not release Reed’s statements to the Navy, various letters of support
on his behalf, a record of counseling, and other administrative documents that pertained to the
case. (Id.)
17. After making verbal disclosures to Bourdon, but prior to releasing the documents,
Cooper conducted research into FOIA and the Privacy Act, concluding that she could legally
release documents to the CPD under the Navy SORN N01070-3 and the Department of Defense
routine use law enforcement exception to the Privacy Act. Cooper also relied upon
SECNAVINST 5211.5E, which provides guidance regarding the Navy’s Privacy Program.
(11/5/12 Tr. at 137-38; Def. Ex. 2 at BN 001-063.) In the process of conducting her research,
Cooper consulted with LCDR Kelly Armstrong; Lieutenant Jamrozy, an attorney formerly with
ECRC who Cooper knew to have experience in this area of law; and a Privacy Act and FOIA
Instructor (probably Lieutenant Elizabeth Rosso) from the Naval Justice School in Newport,
Rhode Island. (11/5/12 Tr. at 144-148, 160.) The record of Cooper’s research was lost or
destroyed at some point between 2009 and the commencement of this litigation (id. at 142-143),
but her testimony was confirmed by Armstrong (id. at 179-182), by the email exchange between
Cooper and Bourdon (Pl. Ex. 2), and by some notations made by Cooper at the time. (Def. Ex. 3
at BN 0140.)
18. On April 17, 2009, Cooper stated in an email to Bourdon that she believed what she
had released “should be [okay],” while conceding that her Immediate Superior-in-Command
(“ISIC”), Armstrong, did “not think so.” (Pl. Ex. 2 at BN 002.) However, Armstrong only had a
preliminary opinion about whether the documents could be released based on incomplete
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information and never instructed Cooper not to release the information. (11/5/12 Tr. at 180.)
Since Cooper had FOIA release authority for ECRC, she did not need the approval of her
superiors to release documents, only to withhold documents. (Id. at 149, 179-182.)
19. On April 23, 2009, plaintiff was reinstated to his former position and rank at the CPD.
(Pl. Ex. 9.) On April 24, 2009, plaintiff was given written notification that he was being placed
on administrative leave with pay. (Pl. Ex. 8.) While on leave, plaintiff was prohibited from
“[o]perating a city of Charleston vehicle,” “[c]onducting any law enforcement activities,”
“[e]xecuting any police powers,” or “[w]orking any off-duty assignments related to law
enforcement.” (Id.; Pl. Ex. 11; see also 11/6/12 Tr. at 73.)
20. On April 23, 2009, CPD Lieutenant Anita Craven began an internal affairs
investigation into plaintiff’s alleged misconduct at the Navy, which CPD considered relevant to
plaintiff’s “fitness for duty.” (Testimony of Lt. Anita Craven (“Craven Test.”), Joint Ex. 6, at
BN 014-015; Ex. 4 to id. at 402003-402004.) Craven interviewed plaintiff on April 24, 2009 and
May 1, 2009. (Ex. 2 to Craven Test.; Ex. 3 to Craven Test.) Plaintiff told Craven that the assault
charges had been dropped. (Ex. 2 to Craven Test. at BN 043-044.) Upon Craven’s request,
plaintiff provided documents reflecting the NJP punishment and his demotion in rank. (11/6/12
Tr. at 131-133; Craven Test. at BN 040-041.) He did not provide documentation regarding the
proceedings and findings of guilt. (Craven Test. at BN 043.) Plaintiff refused to sign a waiver to
allow Craven to obtain the NJP records directly from the Navy. (11/6/12 Tr. at 68, 178; Craven
Test. at BN 039-040.) At trial, plaintiff offered no explanation for his refusal.
21. After Craven first interviewed plaintiff on April 24, plaintiff contacted Cooper by
phone. (11/6/12 Tr. at 208.) With respect to this conversation, plaintiff testified: “I explained to
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Commander Cooper that I had an evaluation that had two charges on there. That was the only
charges I had been found guilty of. I said, ‘However, the Charleston Police Department is saying
there’s this charge of assault. I don’t have nothing to prove this . . . . There’s no record of it in
my service record.’” (11/6/12 Tr. at 145.) Plaintiff testified, “Commander Cooper’s response to
me was, ‘It was my mistake. The paperwork was not put into your service record.’ And she said,
‘In fact, you were found guilty of the assault charge.’” (Id. at 145-146.)
22. When Craven interviewed plaintiff for a second time on May 1, plaintiff not only
failed to convey this information to her, he continued to adamantly deny that he had been
convicted of the assault charge, even when Craven informed him that she had his NJP paperwork
and it reflected that he was found guilty of assault. (Def. Ex. 4 at BN 084-85.) Plaintiff
continued to insist that the only paperwork he received at the Mast proceeding reflected
convictions on two charges and he continued to insist that McKenzie had dismissed the assault
charge at the Mast. (Id.)
23. At trial, plaintiff explained that he continued to deny to Craven that he had an assault
conviction because he believed that Cooper was wrong. (11/6/12 Tr. at 147-148.) He testified,
“I had paperwork contradicting what Commander Cooper had said . . . . I didn’t believe her . . . .
[b]ased upon the fact that I had documentation in my hand that said I had been found guilty of
two charges. It was an evaluation signed by Captain McKenzie. I was there when he signed the
evaluation. There was two charges on there.” (Id.) Plaintiff maintained that he was informed of
some, but not all, of the offenses he was convicted of at the Mast, and that he did not receive a
complete copy of the Mast paperwork until July or August of 2009. (Id. at 142.) As previously
noted, the Court finds this testimony to be not credible in view of McKenzie’s testimony. (See
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Finding of Fact ¶ 12.) In addition, the Court notes that plaintiff contradicted himself on this
point during his cross-examination when he explained that he did not tell Craven what he learned
because “I had already felt that my credibility would be at stake . . . going through an internal
affairs investigation. Based upon information that the Navy had possibly already released to
CPD, my concern was if I go back in there and tell Craven, ‘Hey I stand corrected. Commander
Cooper told me I been found guilty of assault.’ Then they would have to retract what I’ve said
from the first interview, and at that point they could still hold me liable for untruthfulness.”
(11/6/12 Tr. at 208.)
E. May 2009
24. On May 4, 2009, plaintiff was put on administrative leave without pay. (11/6/12 Tr.
at 74; Pl. Ex. 11.) On May 5, 2009, Lt. Craven concluded her investigation and issued a report,
which noted the discrepancies between plaintiff’s representations and the paperwork
documenting the Navy’s findings against him, which Craven had obtained from Bourdon. (Pl.
Ex. 13; Craven Test. at BN 029, 033-034.)
25. On May 8, 2009, plaintiff submitted a letter of resignation to Lt. Boyd, which was
accepted by Chief Mullen on May 11, 2009. (Testimony of Chief Gregory G. Mullen (“Mullen
Test.”), Joint Ex. 3, at BN 141; Boyd Test. at BN 034-035.) Plaintiff has given varying
explanations of why he submitted the letter of resignation. When he was deposed, he stated
“When I received my second letter or third letter of being placed on administrative leave without
pay from the Charleston Police Department, in the nine years that I have been at CPD nobody
goes on administrative leave without pay or more or less administrative leave with pay and is
going to stay there.” (11/6/12 Tr. at 196.) At trial, plaintiff stated “I resigned for fear of being
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terminated from my job” (id.), and “I feared for my employment back in January when I received
phone calls from members of the Charleston Police Department after the Navy supposedly
released information.” (Id. at 198.)
26. On May 21, 2009, the CPD completed its investigation with a finding that plaintiff
had been untruthful during the course of the investigation and had acted to hinder the
investigation. (Ex. 1 to Mullen Test. at BN 129.) No action was taken against plaintiff since he
had already resigned. (Id.)
27. On August 17, 2009, plaintiff began working at the Naval Weapons Station in
Charleston, SC, which is now a joint base operating under the Air Force. (11/5/12 Tr. at 75-77.)
Aside from two weeks of accumulated annual leave that plaintiff was allowed to take, he
remained unemployed from May 11, 2009, the date his resignation took effect, until August 17,
2009. (Id. at 77.) Prior to his resignation, plaintiff earned an annual salary of $42,000 as a CPD
officer. (Id. at 78.) When he began working at the Weapons Station, he earned $29,000, and he
currently earns $38,000. (Id. at 77-78.)
CONCLUSIONS OF LAW
A. The Privacy Act
1. The Privacy Act of 1974, Pub. L. No. 93-579, § 2(a)(5), 88 Stat. 1896, provides
agencies with “detailed instructions for managing their records and provides for various sorts of
civil relief to individuals aggrieved by failures on the Government’s part to comply with the
requirements.” Doe v. Chao, 540 U.S. 614, 618 (2004). Section 552a (g)(1)(D) of the Act
creates a cause of action for any “adverse effect” from a “failure [by the agency] to hew to the
terms of the Act.” Doe v. Chao, 540 U.S. at 619 (citing 5 U.S.C. § 552a(g)(1)(D)). In actions
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brought under (g)(1)(D), the government will only be liable for “actual damages sustained by the
individual as a result of the refusal or failure.” 5 U.S.C. § 552a(g)(4). Privacy Act claims for
monetary damages based on improper disclosure, which arise under § 552a(g)(1)(D), have four
elements: “1) the disclosed information is a ‘record’ contained within a ‘system of records’; 2)
the agency improperly disclosed the information; 3) the disclosure was willful or intentional; and
4) the disclosure adversely affected the plaintiff.” Logan v. Dep’t of Veterans Affairs, 357 F.
Supp. 2d 149, 154 (D.D.C. 2004). “The burden of proof lies with the plaintiff.” Cacho v.
Chertoff, 2006 WL 3422548, at *4 (D.D.C. 2006) (citing Reuber v. United States, 829 F.2d 133,
141 (D.C. Cir. 1987)).
B. Disclosed Information Is a “Record”
2. Under the statute, a “system of records” is “a group of any records under the control
of any agency from which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C.
§ 552a(a)(5) (emphasis added). Courts have derived from this definition the so-called “retrieval
rule,” which holds that “the Privacy Act only covers disclosures of information which was either
directly or indirectly retrieved from a system of records.” Cloonan v. Holder, 768 F. Supp. 2d
154, 164 (D.D.C. 2011) (quoting Doe v. Dep’t of Treasury, 706 F. Supp. 2d 1, 6 (D.D.C. 2009)).
3. Defendant argued that Carter’s disclosures were based on his personal knowledge,
and therefore, the Privacy Act’s “retrieval rule” was not satisfied. That argument is belied by the
evidence. Carter disclosed to the CPD information about incidents that allegedly occurred at Ft.
Lewis in Washington State, while Carter was stationed in Virginia. Carter did not personally
witness any of the alleged incidents, nor did he disclose information gleaned from the “rumor
mill,” which courts have held is not protected information under the Privacy Act. See Cloonan,
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768 F. Supp. 2d at 164. Carter first learned about the allegations of misconduct from a verbal
report with “general,” “non-specific information.” (11/5/12 Tr. at 19.) He subsequently received
a written report from Ft. Lewis – the preliminary inquiry report dated January 27, 2009 – which
detailed the allegations against plaintiff. (Def. Ex. 3 at BN 039-042.) Carter’s disclosures to the
CPD were based on that report and other written documents that became part of the investigative
case file, such as first-person sworn statements repeating and substantiating the same factual
allegations. (See Def. Ex. 3 at BN 001-0162 (entire NJP case file).) Thus, Carter’s disclosures
were clearly derived from “records” within the meaning of the Privacy Act.
4. Defendant argued further that, to the extent that Carter’s disclosures were based on
information in the preliminary investigative file, they were not derived from a record that existed
within a “system of records.” Defendant contended that the preliminary investigative file was
developed during the course of the investigation and did not “result[] in a system of records”
until the Captain’s Mast proceeding was completed. (11/6/12 Tr. at 17.) This argument elevates
form over substance, and it conflicts with the purposes of the Privacy Act. Defendant’s position
would lead to the absurd result that any sort of personal information could be disclosed up until
the moment when the governmental entity completes its internal recordkeeping procedures, at
which point it suddenly becomes protected. The Court declines to adopt this interpretation of the
Privacy Act, for which defendant has presented no legal support, and instead, it concludes that
the information that Carter disclosed was derived from a “record” within a “system of records”
under the Privacy Act.
C. Carter’s Disclosures Did Not Violate Privacy Act
5. “[T]he Privacy Act generally prohibits government agencies from disclosing
personnel files” without the consent of the individual. Bigelow v. Dep’t of Defense, 217 F.3d
14875, 876 (D.C. Cir. 2000). However, an agency may properly disclose a protected record if one
of a number of exemptions applies. 5 U.S.C. § 552a(b) (listing twelve exemptions). If plaintiff
cannot establish that disclosure was improper, he cannot, as a matter of law, succeed under the
Privacy Act. The Privacy Act allows disclosure of records “for a routine use as defined in
subsection (a)(7) . . . and described under subsection (e)(4)(D) . . . .” 5 U.S.C. § 552a(b)(3).
Section 552a(a)(7) defines a “routine use” as use “for a purpose which is compatible with the
purpose for which [the record] was collected.”
6. Defendant has argued that Carter’s disclosures were authorized by the DoD’s
“requesting information” blanket routine use exception to the Privacy Act’s prohibitions on
disclosure, as well as Navy System of Records Notice (“SORN”) N01070-3. The “requesting
information” exception provides that a record may be “disclosed as a routine use to a federal,
state, or local agency maintaining civil, criminal, or other relevant enforcement information . . .
if necessary to obtain information relevant to a Component decision concerning the hiring or
retention of an employee[.]” 52 Fed. Reg. 11051-01, 11067 (April 7, 1987) (routine use
exceptions incorporated by reference at 32 C.F.R. § 701.112). SORN N01070-3 authorizes
disclosures to “law enforcement” agencies “in connection with litigation, law enforcement, or
other matters under the jurisdiction of such agencies.” 75 Fed. Reg. 19627, 19629 (April 15,
2010).
7. Plaintiff argued at trial that the disclosures made by CMC Carter were the “but for”
cause of his constructive discharge from the CPD. (11/7/12 Tr. at 28-31.) In fact, in closing,
plaintiff’s counsel suggested that plaintiff was constructively discharged as of the date of
Carter’s first call because he “was in fear [of being fired] at that time.” (Id. at 33.) Plaintiff
nonetheless conceded that Carter was justified in calling the CPD to verify plaintiff’s
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employment, and even conceded that if Carter had been looking for information about plaintiff’s
disciplinary record at the CPD, then “arguably [his disclosures] fall[] within the blanket use.”
(Id. at 17.) However, plaintiff contested this version of events. He suggested that Carter’s only
motivation for calling the CPD was to verify plaintiff’s employment, and, therefore, he disclosed
more than was necessary to obtain the information he sought in violation of the Privacy Act.
(Id.) Plaintiff argued further that defendant engaged in post hoc rationalization when it
suggested that Carter called the CPD to obtain information about plaintiff’s CPD disciplinary
history and to aid in the Navy’s decision about placing plaintiff while the disciplinary matter was
pending. (Id. at 6-7.) As an alternative argument, plaintiff maintained that even if Carter did ask
and was justified in asking about plaintiff’s disciplinary history with the CPD, he was not
justified in disclosing the Navy’s allegations against plaintiff. (Id. at 60-61.)
8. Plaintiff takes an overly narrow view of the investigation. At the time that Carter
called the CPD, he was in the process of investigating the allegations against plaintiff. The DRB
suspected that plaintiff was not being truthful when he stated that he was a police officer, so
Carter called the CPD believing that he would catch him in a lie. (11/5/12 Tr. at 59-60.) But the
investigation was not limited to the verification of a single fact, or to the assessment of plaintiff’s
credibility on a single issue. Rather, the Navy was investigating multiple allegations of military
code violations and possible criminal acts. As in any investigation of this nature, the Navy had
reason to assess plaintiff’s credibility, but also his mental stability; whether he had a propensity
for violence or for the use of abusive language; and whether he had a history of disobeying
orders. Furthermore, the Navy had multiple decisions to make, based on the results of the
investigation: whether plaintiff should be assigned to a detainee guard unit in Iraq as planned or
given a less sensitive assignment; whether he should be demobilized; whether he should be
16
discharged from the Navy Reserve and if so, under what conditions. (11/5/12 Tr. at 52-54.)
Whether Carter articulated these additional considerations as initial motivations for his call is not
dispositive, since the Court has found that Carter did make inquiry of the CPD about Reed’s
performance as a police officer, thereby supporting the inference that Carter was in fact
investigating both the existence of Reed’s prior employment and whether he had had similar
problems while there.
9. An investigation is naturally a fluid process. How one question is answered can lead
down different paths of subsequent questioning. If Gamard had informed Carter that plaintiff
was not in fact a police officer with the CPD, which was the answer that Carter expected, then
that would have been the end of Carter’s questions. Instead, Gamard confirmed that plaintiff
was an officer at the CPD. Carter then posed a natural follow-up question to Gamard: whether
plaintiff had a disciplinary history at the CPD. Insofar as Carter was seeking information
relevant to the Navy’s investigation, his limited disclosure of two of the Ft. Lewis allegations
against plaintiff as a means of indicating the kinds of past behavior that he was interested in
knowing about did not violate the Act.
10. If Gamard had indicated to Carter that the plaintiff had a history of disciplinary
problems at the CPD, that information could well have been relevant to the Navy’s decisions
regarding plaintiff’s future. Instead, Gamard answered that he was not in a position to know
about any disciplinary history. (Gamard Test. at BN 011.) Plaintiff emphasized that there was
no evidence that Carter asked about plaintiff’s disciplinary history in his second and third calls
with the CPD, suggesting that even if the initial disclosures to Gamard were covered by the
“requesting information” exception, the subsequent disclosures were not. (11/7/12 Tr. at 25-26.)
However, Boyd cut Carter off during the second phone call, so Carter did not have the chance to
17
ask any questions about plaintiff’s disciplinary history. (Boyd Test. at BN 007.) Meanwhile,
Carter testified that he learned about plaintiff’s assignment to a homeless shelter during the
conference call, which indicates that the call included some discussion of plaintiff’s role and
performance at the CPD. (11/5/12 Tr. at 79.) Thus, even if Carter did not make specific inquiry
about plaintiff’s prior disciplinary record after the initial call with Gamard, it is clear that Reed’s
performance as a police officer was of interest and that Carter was circumspect in disclosing no
more about plaintiff’s problems while at Ft. Lewis than he reasonably believed was necessary to
elicit the information he sought.
11. Furthermore, since plaintiff relies on the premise that the first call was the “but for”
cause of his discharge, it is irrelevant whether the information disclosed during the second and
third calls – which was essentially the same information disclosed during the first call – precisely
mimicked the request for information or not.
12. The Court therefore finds that Carter’s modest disclosures were justified by the
“requesting information” routine use exception. However, even if the disclosures extended
beyond what was strictly necessary in order to obtain the information he sought, plaintiff has
failed to meet his burden of demonstrating that the violations were willful or intentional.
“[P]roof of intent or willfulness is a necessary element of [plaintiff’s] claims, and failure to
provide supporting evidence would lead to summary judgment in favor of the [government].”
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007). In this Circuit,
intentional or willful means “so ‘patently egregious and unlawful’ that anyone undertaking the
conduct should have known it ‘unlawful.’” Laningham v. United States Navy, 813 F.2d 1236,
1242 (D.C. Cir. 1987) (quoting Wisdom v. Dep’t of Hous. & Urban Dev., 713 F.2d 422, 425 (8th
Cir. 1983)); see also Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) (“intentional or
18
willful” conduct is “somewhat greater than gross negligence,” demonstrating a “flagrant
disregard” for rights the Act protects) (internal quotation omitted). Plaintiff has alleged that
“what Command Master Chief Carter was trying to do was to get Petty Officer Reed fired and
that’s why he made the phone call” (11/7/12 Tr. at 22-23), but the record is devoid of evidence
that Carter harbored an animus toward plaintiff or a desire to get him fired. On the contrary,
there is no question that Carter was seeking information as part of a legitimate investigation, and
if he made any disclosures that crossed the line, the evidence does not support a conclusion that
he acted with “flagrant disregard” for the Act. 1
D. Cooper’s Disclosures Did Not Violate Privacy Act
13. During closing argument, plaintiff effectively conceded the legitimacy of Cooper’s
disclosures (id. at 4), and the Court agrees, for her disclosures were proper under the “law
enforcement” routine use exception and SORN N01070-3. The “law enforcement” exception
states that where a record ‘indicates a violation or potential violation of law, whether civil,
criminal, or regulatory in nature … the relevant records in the system of records may be referred,
as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with
the responsibility of investigating or prosecuting such [a] violation.’” 52 Fed. Reg. 11051-01,
11067. As stated above, SORN N01070-3 authorizes disclosures to “law enforcement” agencies
“in connection with litigation, law enforcement, or other matters under the jurisdiction of such
agencies.” 75 Fed. Reg. 19627, 19629.
1
It is also noteworthy in this regard that Carter was trained in the Privacy Act, was well aware of
his duties under the Act, and asked Cooper to be present during the conference call with the CPD
to be sure that he did not inadvertently violate the Privacy Act. (See Findings of Fact ¶ 8.)
19
14. While it is debatable whether the DOD’s “law enforcement” routine use exception
applies in this instance, as the CPD would not be “charged with the responsibility of
investigating or prosecuting” plaintiff’s military code violations or criminal acts committed in
Washington State, the Court need not resolve this issue since the language of the SORN N01070-
3 is sufficiently broad to encompass Cooper’s disclosures. The CPD is without a doubt a law
enforcement agency. The disclosures were made “in connection with” the CPD’s investigation
into the allegations against plaintiff and his truthfulness about those allegations. The purpose of
that investigation was to assess plaintiff’s fitness for duty as a police officer, which easily
qualifies as a “matter[] under the jurisdiction of [the] agenc[y].”
15. In addition, any alleged violation of the Privacy Act with respect to these written
disclosures was not willful or intentional. It is evident that Cooper did her due diligence before
releasing the documents to Bourdon. She believed, based on her legal research and consultation
with colleagues experienced in the field of FOIA and Privacy Act issues, that the disclosures
were justified, as is evidenced in her email correspondence with Bourdon. (Pl. Ex. 2.)
Furthermore, an examination of the documents that were released and those that were withheld
reveals that she acted judiciously in deciding what to release. Most notably, Cooper decided not
to release any records regarding the mental health exam that plaintiff underwent or any
discussion of his mental health status.
16. Cooper’s verbal disclosures were also justified under the SORN, for the same reason:
the disclosures were made in connection with the CPD’s investigation into plaintiff’s fitness for
duty. Although Cooper acted somewhat less judiciously by verbally communicating to Bourdon
that plaintiff had undergone a mental health exam, this information was relevant to the CPD’s
assessment of plaintiff’s fitness for duty, and was thus justified under the SORN. Even if
20
Cooper’s verbal disclosures were not justified, they cannot be considered flagrant violations of
the Act, as it was reasonable to believe that the SORN justified the disclosures.
E. Disclosures Did Not Cause Plaintiff To Be “Constructively Discharged”
17. Plaintiff has also failed to meet his burden of demonstrating that any of the
disclosures caused him to be constructively discharged. Plaintiff is entitled to civil remedies
under § 552a(b) only if the violation had an “adverse effect” on him. 5 U.S.C. § 552a(g)(1)(D).
The plaintiff must allege “actual damages” connected to the adverse effect to “qualify” under the
Act. Doe v. Chao, 540 U.S. at 620-27; Mandel v. U.S. Office of Pers. Mgmt., 244 F. Supp. 2d
146, 153 (E.D.N.Y. 2003) (holding that plaintiff must establish a “causal connection” between
agency violation and adverse effect). Thus, plaintiff “must establish not only that he was
‘adversely affected’ by the improper disclosure, but also that he suffered ‘some harm for which
damages can reasonably be assessed.’” Mulhern v. Gates, 525 F. Supp. 2d 174, 181-82 (D.D.C.
2007) (quoting Doe v. Chao, 540 U.S. at 621).
18. First, the causal link between the disclosures and plaintiff’s separation from the CPD
is broken by intervening events. Carter’s initial call – identified by plaintiff as the “but for”
cause of his discharge – was predated by plaintiff’s own call to Boyd, during which he referred
in somewhat vague terms to the allegations. Plaintiff suggested that this call would not have
raised any flags because of the vagueness of his statements, but the Court cannot agree, since it
raised more questions than it answered. As Boyd testified: “if [an officer] is away from the
Department and they’re calling you, it’s probably not a good thing.” (Boyd Test. at BN 042.)
That is especially true when considered with the fact that plaintiff returned from what was
expected to be a nine-month deployment after only four months. (Ex. 4 to Craven Test. at BN
402007.) While plaintiff argues that reservists return early from deployments for all sorts of
21
reasons (11/7/12 Tr. at 28), Bourdon testified: “Mr. Reed apparently had notified the department
that he was coming back to work and at that point knowing that he had been mobilized, I
assumed that . . . there must have been some reason to send him back and to terminate his orders
early[.]” (Bourdon Test. at BN 021-022.) It is therefore reasonable to infer that the combination
of plaintiff’s calls to Boyd and Gamard, as well as plaintiff’s early return from deployment,
would have caused the CPD leadership to look into what transpired, even in the absence of
Carter’s calls.
19. Second, the Court finds that plaintiff was not constructively discharged because he
voluntarily resigned. Although this Circuit has not opined on this issue, numerous other circuits
have made clear that facing the possibility of termination for cause does not render a resignation
involuntary.
[R]esignations can be voluntary even where the only alternative to
resignation is facing possible termination for cause or criminal
charges. Resignations obtained in cases where an employee is
faced with such unpleasant alternatives are nevertheless voluntary
because ‘the fact remains that plaintiff had a choice. [Plaintiff]
could stand pat and fight.’ The one exception to this rule is where
the employer actually lacked good cause to believe that grounds
for the termination and the criminal charges existed.
Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995) (quoting Christie v. United
States, 518 F.2d 584, 587 (Ct. Cl. 1975), and citing Pitt v. United States, 420 F.2d 1028 (Ct. Cl.
1970); Stone v. University of Maryland Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir. 1988); and
Schultz v. United States Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987)). See also Parker v.
Board of Regents of Tulsa Jr. Coll., 981 F.2d 1159, 1162 (10th Cir. 1992).
20. Plaintiff testified at trial that he resigned because “I feared that I was already going to
be terminated based upon the actions of the agency. They had already taken my credential card,
22
they had already taken my badge. I was never reissued my gun upon my return to CPD.”
(11/6/12 Tr. at 198.) But the “actions of the agency” that plaintiff refers to are privileges of his
position that were suspended pending the CPD’s investigation. Those actions were taken as
precautions by the CPD while investigating serious allegations; they were not taken in order to
push plaintiff out of the job. In short, this is not a situation in which “the employer deliberately
made working conditions intolerable and drove the employee out.” Mungin v. Katten Muchin &
Zavis, 116 F.3d 1549, 1558 (D.C. Cir. 1997) (internal quotation and citation omitted).
21. Plaintiff testified that he also believed he was going to be fired based on Craven
commenting off-the-record: “It doesn’t look good for you, Timmy.” (11/6/12 Tr. at 75.) Craven
denied that she made such a statement, however, explaining that “after the second interview on
May 1 . . . after the recorder was off, he asked me, ‘what’s going to happen?’ And my response
to him was, ‘I don’t know what’s going to happen, because I don’t know what’s going to happen.
That has nothing to do with my office.’” (Craven Test. at BN 019-020.) The Court credits
Craven’s testimony and notes additionally that even if Craven did make such a comment, it falls
far short of proof that the CPD “deliberately made [plaintiff’s] working conditions intolerable.”
22. Furthermore, to the extent that plaintiff’s termination was inevitable, that was because
the CPD had good cause to terminate him – for untruthfulness and acting to hinder the
investigation – as he conceded through counsel during closing argument. (11/7/12 Tr. at 34. See
also Bourdon Test. at BN 087-088 (testifying that plaintiff could have been terminated based
solely on his “refus[al] to provide information requested during the investigation.”)) Plaintiff
knew that he was likely to be terminated for cause, and opted to resign rather than fight to save
23
his job. Given this evidence, the Court concludes that his resignation was voluntary. See Aliotta
v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010). 2
CONCLUSION
For the reasons set forth above, the Court concludes that there is insufficient evidence to
conclude that defendant violated the Privacy Act, or that plaintiff was constructively discharged
as a result of any Privacy Act violations. Accordingly, judgment is entered for defendant and the
complaint is dismissed with prejudice.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: December 18, 2012
2
Finally, even if one were to find liability, plaintiff failed to meet his burden of proving
damages. For the first time, plaintiff at trial came up with a damages figure of $137,000 without
any explanation of the underlying facts and figures. (11/6/12 Tr. at 79.) While he claims a
$4,000 differential between his prior $42,000 salary as a CDP officer and his current salary of
$38,000 at the Naval Weapons Station in Charleston, and he claims that he would have worked
another 18 or 19 years at the CPD, that still does not explain how he arrived at a figure of
$137,000. Furthermore, despite his reference to multiplying by 4%, plaintiff failed to explain
why he chose 4% and what figure he was multiplying by 4%. He also made no attempt to reduce
his claim of future loss earnings to present value. Finally, in violation of his disclosure
obligations, plaintiff failed to provide defendant with any information about his damages claim.
Therefore, for all of these reasons, the plaintiff would not have been entitled to an award of
future damages.
24