Reed v. Dep't of the NAVY

899 F.Supp.2d 25

Timothy M. REED, Plaintiff,

v.DEPARTMENT OF the NAVY, Defendant.

Civil Action No. 10–1160 (ESH).

United States District Court, District of Columbia.

Oct. 19, 2012.

David Patrick Sheldon, Law Office of David P. Sheldon, Washington, DC, for Plaintiff.

John G. Interrante, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Timothy Reed has sued the Department of the Navy, seeking monetary damages and injunctive relief for the allegedly improper disclosure of confidential records pertaining to plaintiff under the Privacy Act of 1974 (“Privacy Act”), 5 U.S.C. § 552a et seq. Defendant now moves the Court to enter summary judgment in its favor. For the reasons set forth below, defendant's motion is denied.

FACTUAL BACKGROUND

Plaintiff Timothy Reed was enlisted in the United States Navy from November 1990 through January 1998, when he was honorably discharged. (Defendant's Statement of Material Facts (“Def. Facts”) ¶ 1.) From March 1998 through May 18, 2009, he served in the Navy Reserve. ( Id.) Plaintiff was simultaneously employed as a police officer by the Charleston Police Department from the spring of 2000 through May 2009. ( Id. ¶ 2.)

In January 2009, plaintiff was mobilized to the Expeditionary Combat Readiness Center (“ECRC”) in anticipation of being deployed to Iraq. ( Id. ¶ 3.) While in specialized training at Fort Lewis, Washington, plaintiff was alleged to have engaged in various acts of misconduct. ( Id. ¶ 4.) Defendant claimed that he 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; made a derogatory statement about a female officer; and made inappropriate comments about using force against Iraqis. ( Id.) The Navy commenced disciplinary proceedings, conducting a Disciplinary Review Board (“DRB”) hearing on January 30, 2009, during which plaintiff indicated that he was a member of the Charleston Police Department (“CPD”). ( Id. ¶ 6.) Following the hearing, Command Master Chief David Carter contacted the CPD to confirm plaintiff's civilian employment. ( Id. ¶ 7.) Over the course of three phone calls, CMC Carter made certain disclosures to the CPD regarding the pending allegations against plaintiff. ( Id.)

Sometime in January or February, plaintiff contacted Lieutenant Kevin Boyd, his team commander at the CPD, and mentioned, without providing specific details, that there were “issues in [his] training.” (Deposition of Lt. Kevin Boyd (“Boyd Dep.”), Ex. E to Defendant's Motion for Summary Judgment (“Def. Mot.”), 4:13–17.) Boyd notified Captain Tillman, his supervisor, about the call. ( Id.) Plaintiff also called Mark Bourdon, an attorney for the CPD, and described the allegations again in vague terms. (Def. Facts ¶ 8.) CPD Chief Mullen decided not to take any action against plaintiff until the Navy's investigation was completed. ( Id. ¶ 9.)

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). ( Id. ¶ 11.) Captain McKenzie, Commanding Officer of the ECRC, imposed non judicial punishment (“NJP”) on plaintiff, reducing his rank from First Class Petty Officer (E6) to Second Class Petty Officer (E5). ( Id.) On April 13, 2009, plaintiff was demobilized ( id.), and on May 18, 2009, he was honorably discharged from the USNR. (Complaint (“Compl.”) ¶ 23.)

On April 13, 2009, plaintiff indicated to the CPD that he intended to return to work as a police officer. ( Id. ¶ 12.) On the same date, Mark Bourdon contacted Navy Lieutenant Commander (“LCDR”) Aimee Cooper to obtain information about the circumstances of Reed's separation from the Navy. ( Id. ¶ 13.) Cooper informed Bourdon about the details of the allegations against plaintiff, the fact that he had undergone a psychological exam, and the disciplinary actions that the Navy had taken against him. (Plaintiff's Statement of Genuine Issues (“Pl. Facts”) ¶ 13.)

On April 15, 2009, Bourdon asked LCDR Cooper to treat his email as a Freedom of Information Act (“FOIA”) request. (Def. Facts ¶ 13.) On April 17, 2009, LCDR Cooper sent by email to Bourdon records of the Navy's investigation and the results of plaintiff's NJP. (Pl. Facts ¶ 13.) Cooper stated in an email to Bourdon that she believed what she had released “should be [ok],” while conceding that her supervisors did “not think so.” (Ex. F to Def. Mot.)

On April 24, 2009, plaintiff was reinstated to his former position and rank at the CPD. (Def. Facts ¶ 15.) On the same day, 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.” ( Id. ¶ 13.) Plaintiff was placed on administrative leave with pay at that time. (Ex. 18 to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (“Pl. Opp.”)) Lt. Craven interviewed plaintiff on April 24, 2009 and May 1, 2009. (Def. Facts ¶ 17.) Plaintiff told Lt. Craven that the weapons charges had been dropped. ( Id. ¶ 18.) Upon Lt. Craven's request, plaintiff provided documents reflecting the NJP punishment and his demotionin rank. ( Id.) He did not provide documentation regarding the proceedings and findings of guilt. ( Id.) Plaintiff declined to sign a waiver to allow Lt. Craven to obtain the NJP records directly from the Navy. ( Id. ¶ 18.) On May 1, 2009, plaintiff was put on administrative leave without pay. (Ex. 18 to Pl. Opp.)

On May 8, 2009, plaintiff submitted a letter of resignation to Lt. Boyd, which was accepted by Chief Mullen on May 11, 2009. (Def. Facts ¶ 20.) 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. ( Id.) No action was taken against plaintiff since he had already resigned. ( Id.)

Plaintiff filed suit against the Navy, alleging violations of the Privacy Act, 5 U.S.C. § 552a et seq. He also sued the City of Charleston in federal court in South Carolina, alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301 et seq. On June 8, 2012, on the eve of trial in the USERRA case, plaintiff stipulated to a voluntary dismissal with prejudice. ( Id. ¶ 19).

STANDARD OF REVIEW

I. SUMMARY JUDGMENT

“Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 335 (D.C.Cir.2011); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” and precludes summary judgment only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505.

When considering a motion for summary judgment, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Still, when the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). It may not rely on “mere allegations or denials,” but rather “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (internal quotation marks and citation omitted). “[W]holly conclusory statements for which no supporting evidence is offered” will not suffice. Carter v. Greenspan, 304 F.Supp.2d 13, 21 (D.D.C.2004) (citing Greene v. Dalton, 164 F.3d 671, 674–75 (D.C.Cir.1999)). A moving party is entitled to summary judgment if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II. PRIVACY ACT

When it passed the Privacy Act, Congress declared that “in order to protect the privacy of individuals identified in information systems maintained by federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance,use, and dissemination of information by such agencies.” Privacy Act of 1974, Pub. L. No. 93–579, § 2(a)(5), 88 Stat. 1896. The Act 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, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004). These detailed instructions and provisions for relief “protect[ ] individuals from injury that can result from the bureaucratic habit of collecting and retaining information, however dated, prejudicial, or false.” Dickson v. Office of Pers. Mgmt., 828 F.2d 32, 38 (D.C.Cir.1987). “Put simply, the Act ‘safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records ... by allowing an individual to ... ensur[e] that his records are accurate and properly used.’ ” McCready v. Nicholson, 465 F.3d 1, 7–8 (D.C.Cir.2006) (quoting Bartel v. Fed. Aviation Admin., 725 F.2d 1403, 1407 (D.C.Cir.1984)).

Section 552a(g)(1)(D) of the Act creates a cause of action for any “adverse...