Allen v. Brown

185 F.Supp.3d 1

Robert E. Allen, et al., Plaintiffs,

v.Jerry Brown, et al., Defendants.

Civil Action No. 15-0969 (ESH)

United States District Court, District of Columbia.

Signed May 6, 2016

William Stuart Heyman, Law Office of William S. Heyman, Baltimore, MD, Kenneth C. Gauvey, The Law Practice of Ken C. Gauvey, LLC, Columbia, MD, for Plaintiffs.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

ELLEN SEGAL HUVELLE, United States District Judge

Plaintiffs are twenty-four current or former police officers employed by the Department of Veterans' Affairs ("VA") at the VA Medical Center in Washington, D.C.¹ who object to the secret installation of audio and video surveillance devices at their place of employment. Claiming violations of federal and District of Columbia law, they filed suit against Jerry Brown, the Chief of the VA Police Service; Brian Hawkins, the Medical Director at the VA Medical Center; Johnson Controls, Inc. ("JCI"), an outside contractor; and Robert A. McDonald, in his official capacity as former Secretary of the VA. Before the Court is defendants' motion to dismiss or, in the alternative, for summary judgment. (See Defs.' Mot. to Dismiss or, In the Alternative, for Summary Judgment, Sept. 30, 2015 [ECF No. 16] ("Defs.' Mot.").) For the reasons stated herein, defendants' motion will be granted in part and denied in part.

BACKGROUND

I. FACTS

According to the facts as set forth in the complaint,² in October 2013, Chief Brown, who is stationed at the VA Medical Center, arranged for the secret installation of surveillance devices in at least three "private areas" of the VA Medical Center. (Compl. ¶ 33.) Chief Brown obtained the consent of Director Hawkins, but did not follow the VA Handbook's guidelines for audio surveillance. (See Compl. ¶¶ 49-53 (quoting VA Handbook §§ 6(b)(1)-(3)³ ).)

In November 2013 or thereafter, JCI, at Chief Brown's request, secretly installed audio and video recording devices in at least three locations within the VA Medical Center: the Police Control Operations Office ("Control Office"), the Police Report Writing Room ("Report Room"), and the Watch Commander's Office. (Compl. ¶¶ 34, 36.) The audio and video feeds from each of these devices were delivered on a real-time basis to Chief Brown's office where they were also recorded. (Compl. ¶ 48.)

On January 24, 2014, several VA police officers found "a camera with a microphone covertly mounted on a support bracket for the CCTV monitors with a microphone hidden behind the monitors" in the Control Room. (Compl. ¶ 39.) The LED lights on the device were lit, but covered with black electrical tape. (Compl. ¶ 39.) One of the officers "covered the microphone portion of the camera while the officers present discussed what to do about the camera and microphone." (Compl. ¶ 39.) In the midst of this discussion and immediately after the microphone was covered up, Chief Brown entered the room, demanded to know what the officers were doing, and "ordered all attending officers to draft statements regarding what was happening in the [C]ontrol [R]oom." (Compl. ¶¶ 40-41.)

Two months later, in March 2014, another hidden camera with an attached microphone was found in the Report Room, a room using by officers to write reports and as an alternate break room. (Compl. ¶¶ 42-43.) On March 22, 2014, Chief Brown used the recordings from this device to administer discipline against Officer Luis A. Rodriguez-Soto (a named plaintiff), which included a two-week suspension without pay. (Compl. ¶ 44.)

Then, in January 2015, a hidden camera with an attached microphone was found in the Watch Commander's Office, a room that is used on occasion as a changing room for both male and female officers. (Compl. ¶¶ 45-46.)

As far as plaintiffs are aware, all three devices remain in use. (Compl. ¶ 47.) In addition, plaintiffs suspect that there were additional recording devices secretly installed in the VA Medical Center. (Compl. ¶ 61.)

II. PROCEDURAL HISTORY

On June 22, 2015, plaintiffs, on their own behalf and on behalf of all others similarly situated,⁴ filed the above-captioned case, alleging that the secret surveillance devices installed at the VA Medical Center violate federal and state law and seeking injunctive relief and damages. The specific claims in the complaint are that: (1) Chief Brown, Director Hawkins and JCI's actions violated federal and state wiretapping statutes (Counts I and II) and constituted an unlawful civil conspiracy (Count III); (2) Chief Brown's actions violated plaintiffs' Fourth Amendment right not to be subjected to unreasonable searches and seizures (Count IV); and (3) Secretary McDonald is liable under the Federal Tort Claims Act ("FTCA") for Chief Brown's tortious acts and omissions (Count V).⁵ (Compl. ¶¶ 75-98.)

Plaintiffs subsequently voluntarily dismissed with prejudice all of their claims against JCI. (See Notice of Voluntary Dismissal with Prejudice, Sept. 28, 2015 [ECF No. 15].) The remaining claims against Chief Brown, Director Hawkins and Secretary McDonald are the subject of defendants' pending dispositive motion.

Defendants seek dismissal or summary judgment as to all of plaintiffs' claims. No discovery has taken place, but defendants' motion for summary judgment is supported by extensive declarations from Chief Brown and Frank Giorno, the VA's Regional Counsel for the District of Columbia, along with excerpts of sworn testimony from Chief Brown, Director Hawkins, Deputy Chief of Police Cleveland Walls, and Officer Rodriguez-Soto, all of which were taken in April 2014 in the VA Medical Center's Administrative Investigation Board's inquiry into a hostile work environment claim brought by plaintiffs against Chief Brown. Plaintiffs filed an opposition to defendants' motion that is supported by declarations from ten of the named plaintiffs, along with a Rule 56(d) declaration from counsel⁶ that asks the Court to deny defendants' motion for summary judgment pending the completion of discovery. (See Pls.' Opp'n to Defs.' Mot., Dec. 4, 2015 [ECF No. 20].) Defendants filed a reply, submitting additional testimony from the Board investigation from several of the plaintiff officers, the VA Associate Director Bryan Matthews, and a JCI employee, Mark Bradford, along with a declaration from defendants' counsel, Mark Nebeker. (See Defs.' Reply, Feb. 8, 2016 [ECF No. 24.) Plaintiffs sought leave to file a surreply to respond to the Nebeker Declaration (see Pls.' Mot. to File Limited Surreply, Feb. 29, 2016 [ECF No. 27] ), and defendants filed a response to the motion which included their response to the surreply (see Defs.' Resp. to Pls.' Motion to File Limited Surreply, Mar. 1, 2016 [ECF No 28] ). The Court will grant plaintiffs' motion and consider both plaintiffs' surreply and defendants' response in ruling on defendants' dispositive motion.

ANALYSIS

I. WIRETAPPING STATUTES (COUNTS I & II)

In Counts I and II, plaintiffs claim that by secretly installing surveillance equipment in the VA Medical Center, Chief Brown and Director Hawkins violated the federal wiretapping statute, see 18 U.S.C. §§ 2510 et seq. , and the District of Columbia's wiretapping law, see D.C. Code § 23–542(b).⁷ Defendants argue that Counts I and II are not viable claims because neither statute applies to video surveillance and it is undisputed that no audio surveillance ever took place.⁸ Plaintiffs appear to concede that neither statute applies to video surveillance, but they contend that they should be allowed to pursue Counts I and II because it is a disputed fact whether audio surveillance occurred, especially given that plaintiffs have not yet had the opportunity to take discovery. The Court agrees.

Defendants rely on the following evidence to argue that it is undisputed that no audio surveillance took place: (1) Chief Brown's statement in his declaration that: "There was no request for audio surveillance or audio recording; nor to my knowledge was audio surveillance or audio recording approved or conducted at the VA Medical Center." (Brown Decl. ¶ 10 (emphasis added)); (2) an October 23, 2013 memorandum from Chief Brown to Director Hawkins seeking authorization to install two video recording devices (see Brown Decl. Ex. A (emphasis added)); (3) Director Hawkins' negative response to the question "[w]as there any audio involved in the recordings" that he "[d]id not authorize any audio" (Hawkins Tr. at 14); (4) JCI employee Bradford's testimony that although he did not participate in the actual installation of any devices, he was there when the installing technician "tied back the audio cables and taped them" and that the technician "told him" that he never connected the audio (Bradford Tr. at 8); (5) Associate Director Matthews' testimony about the surveillance device in the Control Room that "to [his] knowledge, it did not have audio" (Matthews Tr. at 6); and (6) defendants' counsel's declaration that he had the Office of the AUSA purchase a camera bearing the description "MiNi CCD" camera that he believed was similar to the camera pictured in plaintiffs' exhibits, and that he tested the camera and discovered that the red LED light was lit when the power was on even when the audio and video feeds were not connected (Nebeker Decl. ¶¶ 2-3, 7-8).

The declarations submitted by plaintiffs to respond to defendants' evidence state that several officers saw a microphone attached to the camera in the Control Room, that the microphone was installed at a height that corresponded to where people would be having conversations, and that the LED lights on the device were lit. (SeeRego Decl. ¶¶ 3-7 & Ex. 1; Boozer Decl. ¶¶ 3-4; Jeter Decl. ¶¶ 3-7; Holder Decl. ¶¶ 3-4; Allen Decl. ¶¶ 4-7; Rodriguez-Soto Decl. ¶¶ 3-5; Smallwood Decl. ¶¶ 3-6; Starleper Decl. ¶¶ 3-6; Singleton Decl. ¶¶ 3-6.) Plaintiffs' declarations also describe one occasion when officers in the Control Room were talking about the camera and microphone they had found and then, after the officers...