Gamble v. Department of Army

567 F.Supp.2d 150

Frederick M. GAMBLE, Plaintiff, v. DEPARTMENT OF the ARMY, Alaska Department of Military and Veterans Affairs, Alaska Army National Guard, and the Alaska National Guard Youth Corps, Defendants.

Civil Action No. 08-207 (ESH).

United States District Court, District of Columbia.

July 23, 2008.

COPYRIGHT MATERIAL OMITTED

Frederick M. Gamble, Fort Still, OK, pro se.

Lanny James Acosta, Jr., U.S. Attorney's Office, Washington, DC, Rebecca H. Cain, State of Alaska, Department of Law, Anchorage, AK, for Defendant Department of the Army.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff has sued defendants for alleged violations of the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. § 552a. In a Memorandum Opinion dated June 4, 2008, the Court granted a motion to dismiss with respect to the State of Alaska defendants (the Alaska Department of Military and Veterans Affairs, Alaska Army National Guard, and the Alaska National Guard Youth Corps). See Gamble v. Dep't of the Army, 557 F.Supp.2d 151, 152-53 (D.D.C. 2008). Plaintiff has now moved to amend his complaint to include claims based on the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., and he also asks the Court to reconsider its Memorandum Opinion. Because the Court's Memorandum Opinion was based in part on an error, the Court grants plaintiffs motion for reconsideration and vacates its prior Memorandum Opinion. The Court also grants plaintiffs motion to amend and it will consider his FOIA claims. However, because the Court ultimately concludes that plaintiff has no viable claim against any defendant, it will grant defendants' motions to dismiss and deny plaintiffs motion for summary judgment.

BACKGROUND

I. FACTUAL BACKGROUND

Plaintiff joined the Alaska Army National Guard as a part-time member in 1992. (Orig. Compl. at 3.)¹ In 1994, he was serving as a Team Leader in the Alaska National Guard Youth Corps when he was fired after being accused of some unspecified improprieties. (Id.) However, plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission ("EEOC"), and he was ultimately reinstated to his position. (Id.) According to plaintiff, the Chief of Staff of the Alaska Army National Guard told him that a file containing information about these allegations would be destroyed by the Alaska Army National Guard (and by extension the Alaska National Guard Youth Corps) as long as plaintiff was not involved in any further incidents for at least one year. (Id.) Plaintiff left the Alaska National Guard Youth Corps later in 1994, but he maintained his ties to the Alaska Army National Guard and became a full-time participant in 1997. (Id.)

In 2006, plaintiff's guard unit was stationed in Afghanistan. (Id. at 2.) During this tour of duty plaintiff was accused of sexual misconduct, including allegations by his own subordinates, and the Army investigated the charges under Regulation 15-6. (Id. at 1-2, 19-20.) During the investigation plaintiff claims that his commanding officer, Col. R. Stephen Williams, told him that "he had heard the plaintiff did similar things like this in the past." (Id. at 20.) According to plaintiff, Col. Williams also said that the Alaska National Guard Youth Corps was sending a file detailing the 1994 investigation to the Alaska Army National Guard, which would then provide it to Col. Williams. (Id.) Upon receiving the file, Col. Williams allegedly turned it over to Lt. Col. Thomas, the officer overseeing the Regulation 15-6 investigation.² (Id.) Plaintiff offered his resignation in lieu of a court-martial (Id., Attach. 13), but the Army refused his offer. (Id. at 5.) During the court-martial proceedings, a military judge suppressed information from the 1994 incident. (Id. at 4.) However, according to plaintiff, Col. Williams disclosed information about the 1994 incident to those in his command at various "town hall meetings." (Id. at 59-60.) Additionally, several military officers testified about plaintiffs disciplinary history, with one witness allegedly saying that "he knew of a sexual harassment investigation back in Alaska." (Id. at 85-88.) Plaintiff was convicted³ and sentenced to confinement for two years, forfeiture of pay, and dismissal from the service. (Id., Attach. 4.) Plaintiff is currently serving his sentence at a military facility in Oklahoma. (Id. at 1.)

II. PROCEDURAL HISTORY

After pursuing various appeals in the military courts, plaintiff filed a pro se complaint⁴ on February 5, 2008. The complaint, which is a rambling 124-page document with 103 pages of attachments, is difficult to follow and contains extraneous information about his court-martial proceedings. However, plaintiff's basic argument appears to be that the Alaska Army National Guard and the Alaska National Guard Youth Corps have maintained a "secret file" containing false information about the 1994 allegations against him, and that defendants' improper use of this information resulted in his conviction. (Id. at 3-4.) Specifically, plaintiff contends that defendants disclosed information in violation of the Privacy Act, 5 U.S.C. § 552a(b), and that they failed to maintain his personal information in accordance with § 552a(g)(1)(C).⁵ (Pl.'s Supp. at 2.)⁶

On April 25, 2008, plaintiff filed a summary judgment motion where for the first time he raised issues under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Defendants filed separate motions to dismiss claiming a lack of subject matter jurisdiction and a failure to state a claim upon which relief can be granted. Fed R. Civ. P. 12(b)(1), (6). On June 4, 2008, this Court issued a Memorandum Opinion and Order dismissing plaintiffs claims against the State defendants. There were two bases for the Court's Memorandum Opinion: 1) to the extent the Alaska defendants were acting as state agencies, plaintiffs claims against them are barred by the Eleventh Amendment; and 2) to the extent that they were acting in federal capacities, plaintiff's claims are barred by the Feres doctrine. See Gamble, 557 F.Supp.2d at 152-53. Having concluded that plaintiff's claims fail regardless of whether the Alaska defendants are characterized as state or federal entities, the Court dismissed the claims against these defendants, and the only defendant still remaining was the Department of the Army.

In a motion dated June 11, 2008, plaintiff moved to amend his complaint to include claims under FOIA, and he asked the Court to reconsider its Memorandum Opinion and Order. Also before the Court are the Department of the Army's motion to dismiss and plaintiffs motion for summary judgment. As explained herein, the Court will reconsider its prior Memorandum Opinion and will vacate it, it will permit plaintiff to assert claims under FOIA, but for the reasons set forth herein, it will dismiss all claims against all defendants.

ANALYSIS

I. ALASKA DEFENDANTS OPERATING AS STATE AGENCIES

The Alaska defendants cannot be sued for their state-related activities under the Privacy Act or FOIA for two reasons. First, both statutes are limited to entities deriving their authority from the federal government. See 5 U.S.C. § 551(1). See also Brown v. Kelly, No. 93-5222, 1994 WL 36144, at *1 (D.C.Cir. Jan. 27, 1994) ("Freedom of Information Act and Privacy Act do not apply to state agencies") (internal citation omitted).

Second, plaintiff's claims relating to the Alaska defendants' state-related activities are barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Therefore, the Eleventh Amendment protects the Alaska defendants' state-related activities unless Congress abrogated state sovereign immunity or Alaska waived its immunity.

Neither abrogation nor waiver has occurred in this case. Abrogation requires an "unequivocal expression of congressional intent." Pennhurst, 465 U.S. at 99, 104 S.Ct. 900. Courts have already determined that neither the Privacy Act nor FOIA manifest any such intent. See, e.g., Lawson v. Shelby County, 211 F.3d 331, 335 (6th Cir.2000) ("Congress never expressly abrogated state sovereign immunity under the Privacy Act."); Proctor v. Higher Educ. Assistance Found., No. 2:07-cv-839, 2008 WL 2390790, at *4 (S.D.Ohio June 9, 2008) (with respect to FOIA, "there would be no reason for Congress to attempt to abrogate Eleventh Amendment immunity"). Likewise, waiver requires either "the most express language" or "overwhelming implications from the text as [will] leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (internal quotations and citations omitted).

In response, plaintiff argues that Alaska waived its sovereign immunity when it "willfully participated as a federal agency" in his court-martial. (Pl.'s Opp'n 11.) However, a state's cooperation in a federal proceeding does not constitute a waiver of its sovereign immunity. See Edelman, 415 U.S. at 673, 94 S.Ct. 1347. Therefore, plaintiffs claims against the Alaska defendants are not viable to the extent that such claims are based on state-related activities.

II. THE ARMY AND THE ALASKA DEFENDANTS' FEDERAL ACTIVITIES

Although plaintiff cannot sue the Alaska defendants for incidents relating to their state activities, he can sue the department of the army, which is a federal entity, and arguably, he can sue the Alaska Army National Guard when it is engaged in federal activities.⁷ The Alaska Army National Guard is a state agency under the control of the governor when it is not on active duty. See ALASKA STAT. § 26.05.060. However, when the Alaska Army National Guard is activated, it becomes part of the Department of the Army. See 10 U.S.C. § 10106. Accordingly, plaintiffs claims against the Alaska Army National Guard are limited to those times when it was on active duty. During the relevant period in this case, plaintiffs...