Allen v. Brown

435 F.Supp.3d 16

Robert E. ALLEN, et al., Plaintiffs,

v.Jerry BROWN, et al., Defendants.

Civil Action No. 17-1951 (ESH)

United States District Court, District of Columbia.

Signed January 24, 2020

David A. Branch, Law Offices of David A. Branch & Associates, PLLC, Washington, DC, for Plaintiffs.

William Mark Nebeker, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN S. HUVELLE, United States District Judge

Plaintiffs, twenty-three federal police officers stationed at the Veterans Affairs ("VA") Medical Center in Washington, D.C., bring this action against the Chief of Police at the VA Medical Center, Jerry Brown, and the VA Medical Center Director, Brian Hawkins. They allege that defendants secretly installed audio and video recording devices at several non-public locations within the VA Medical Center, in violation of the federal wiretapping statute and the Fourth Amendment. Before the Court is defendants' renewed motion for summary judgment. For the reasons stated herein, the Court will grant that motion.

BACKGROUND

I. FACTS¹

Unless otherwise stated, the following facts are not in dispute. On October 23, 2013, Brown sought and was granted authorization from Hawkins and the VA Medical Center Associate Director to install covert surveillance cameras in two rooms used by the police force under his command: the Control Room and the Report Writing Room. (Defs.' Statement of Facts ¶¶ 1–2, ECF No. 32 ("Defs.' Facts").) In his request for authorization, Brown stated that he sought installation of the devices to investigate what he had observed as "suspicious activity" that "may be illegal" in both rooms. (Defs.' Ex. A ¶¶ 1–2, ECF No. 10-1.)

The Control Room is a workspace with no windows, where the 911 system and closed circuit monitors are located, and where all alarms are routed—essentially "a first response area, where [officers] answer phones and things of that nature." (Pls.' Ex. 14, at 43:25–44:12, ECF No. 32-15 ("Thompson Dep.").) According to plaintiffs, "the Control Room is also a place for social interaction where officers meet to engage in conversation." (Pls.' Opp. to Defs.' Renewed Mot. for Summ. J. at 27, ECF No. 35 ("Pls.' Opp.").) The Report Writing Room is used by officers to write reports; to "conduct police interviews, interrogations, online training, [and] processing;" to temporarily store evidence; and to eat lunch. (Defs.' Ex. B at 1, ECF No. 10-2.) Neither room was open to the public, but both rooms were accessible to all officers at all times, for all officers had keys to each room. (Defs.' Ex. J ¶ 5, ECF No. 10-10 ("Brown Decl.").) Plaintiffs further describe both rooms as places where "individuals ... could stop talking when other individuals entered the rooms," where "doors could be closed to prevent individuals from outside the office from overhearing conversations," and where officers could "vent and criticize their employers."² (Pls.' Opp. at 7, 21.)

In November 2013, Johnson Controls, Inc., installed a camera in each room. (Defs.' Facts ¶¶ 4, 15; Defs.' Ex. Q ¶ 4, ECF No. 32-1 ("Johnston Decl.").) Although the cameras were capable of recording audio, the representatives from Johnson Controls did not connect the audio wires on either camera and programmed the settings on the digital video recorder ("DVR") so that the feedback from the cameras did not include audio. (Johnston Decl. ¶¶ 6–7.) The parties dispute whether the settings were later changed to record audio. (Defs.' Facts ¶ 14; Pls.' Resp. to Defs.' Statement of Undisputed Material Facts ¶ 16, ECF No. 35-1 ("Pls.' Facts").) The parties also dispute whether a third camera was installed in the Watch Commander's Office, which plaintiffs claim is used by at least one female officer as a changing area. (Pls.' Facts ¶¶ 17–18.)

In January 2014, officers discovered the hidden camera and microphone in the Control Room. (See, e.g. , Pls.' Ex. 1 ¶ 3, ECF No. 35-2 ("Rego Decl."); Pls.' Ex. 3 ¶ 3, ECF No. 35-4 ("Jeter Decl."); Pls.' Ex. 4 ¶ 3, ECF No. 35-5 ("Holder Decl.").) An LED light attached to the unit indicated that it was operating when it was discovered. (See, e.g. , Rego Decl. ¶¶ 5–6; Jeter Decl. ¶ 4; Holder Decl. ¶ 4.) It was removed soon thereafter, although by whom is unknown. (Defs.' Facts ¶ 6; Pls.' Facts ¶ 6.) According to defendants, the camera in the Report Writing Room was never discovered and was shut down on March 23, 2014. (Defs.' Facts ¶ 7.) Plaintiffs maintain, though, that this camera was still operating when it was discovered by plaintiff Thomas Rego on December 31, 2014, and that it remained in place and operational until either August 2015 (Pls.' Facts ¶ 7) or March 2016. (Pls.' Opp. at 2.)

II. PROCEDURAL HISTORY

On June 22, 2015, twenty-four VA Medical Center police officers brought suit against Brown, Hawkins, and the Secretary of the VA, claiming that their use of the covert recording devices in the Control Room, the Report Writing Room, and the Watch Commander's Office violated federal and state law (the "2015 Litigation"). (See Compl., Allen v. Brown , No. 15-cv-0969 (D.D.C. June 22, 2015), ECF No. 1.) Defendants' motion to dismiss was granted in part and denied in part, Allen v. Brown , 185 F. Supp. 3d 1, 3 (D.D.C. 2016), but then, before discovery could be completed, plaintiffs' counsel withdrew, and the case was dismissed without prejudice for failure to prosecute. (Order, Allen v. Brown , No. 15-cv-0969 (Sept. 17, 2016), ECF No. 42.)

Almost two years after that dismissal, on September 22, 2017, twenty-three VA Medical Center officers—including 21 from the 2015 Litigation—initiated the current action. (See Compl., ECF No. 1.) The complaint named the same defendants and included the same four counts as the 2015 Litigation. The complaint alleged that: Brown and Hawkins violated the federal wiretapping statute, see 18 U.S.C. §§ 2510, et seq. (Count 1); Brown and Hawkins violated the District of Columbia wiretapping statute, see D.C. Code §§ 23-542, et seq. (Count 2); Brown and Hawkins engaged in an unlawful civil conspiracy, in violation of D.C. law, to violate federal and state wiretapping statutes (Count 3); and Brown violated plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures (Count 4). (See Am. Compl. ¶¶ 59–78, ECF No. 5.)

On January 17, 2018, defendants filed a motion to dismiss or, in the alternative, for summary judgment, which the Court granted in part and denied in part. See Allen v. Brown , 320 F. Supp. 3d 16 (D.D.C. 2018). The Court dismissed without prejudice Counts 2 and 3, which had been converted into Federal Tort Claims Act ("FTCA") claims against the United States, for failure to comply with the FTCA's exhaustion requirement. Id. at 34. The Court also dismissed the Secretary of the VA from the suit, as he was not named as a defendant in any count. Id. at 42. The Court allowed Counts 1 and 4 to proceed to discovery. Id.

After the parties completed discovery,³ defendants renewed their motion for summary judgment on August 8, 2019. (See Defs.' Renewed Mot. for Summ. J., ECF No. 32 ("Defs.' Mot.").) Plaintiffs filed an opposition on September 13, 2019, and defendants filed a reply on September 27, 2019. (See Pls.' Opp.; Defs.' Reply, ECF No. 36.)⁴

ANALYSIS

I. LEGAL STANDARD

A court will grant summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is ‘material’ if a dispute over it might affect the outcome of the suit under governing law," and "a dispute is ‘genuine’ if the evidence is such that ‘a reasonable jury could return a verdict for the nonmoving party.’ " Gilmore v. Palestinian Interim Self-Gov't Auth. , 53 F. Supp. 3d 191, 200 (D.D.C. 2014) (quoting Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006) ), aff'd , 843 F.3d 958 (D.C. Cir. 2016).

The moving party bears the burden of showing that there is a lack of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party then must present "evidence showing that there is a triable issue as to [each] element essential to that party's claim." Arrington v. United States , 473 F.3d 329, 335 (D.C. Cir. 2006). A party's assertion that a fact is or is not disputed "must support the assertion by ... citing to particular parts of ... the record ...; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The evidence presented must be admissible at trial or at least "capable of being converted into admissible evidence." Gleklen v. Democratic Cong. Campaign Comm., Inc. , 199 F.3d 1365, 1369 (D.C. Cir. 2000) ; see also Fed. R. Civ. P. 56(c). To the extent the parties rely on affidavits or declarations, those documents also "must be made on personal knowledge." Fed. R. Civ. P. 56(c)(4).

In evaluating a motion for summary judgment, the Court views the admissible evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in its favor. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). It does not, however, make credibility determinations or weigh the evidence. Id. If the nonmoving party presents competent evidence upon which a reasonable jury could decide in its favor on each element of its claim, a court will deny summary judgment. Gilmore , 53 F. Supp. 3d at 201. But, if there is only "a scintilla of evidence in support of the plaintiff's position," or "[i]f the evidence is merely colorable, or is not significantly probative," a court may grant summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). "The possibility that a jury...