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MITTLEMAN v. BAKER

August 29, 1991

ELAINE MITTLEMAN, Plaintiff,
v.
UNITED STATES TREASURY, JAMES A BAKER, individually and in his official capacity as Secretary; UNITED STATES DEPARTMENT OF COMMERCE, MALCOLM A. BALDRIDGE, individually and in his official capacity as Secretary, JAMES T. KING, individually and in his official capacity as Personnel Officer of International Trade Administration; UNITED STATES SECRET SERVICE, JOHN R. SIMPSON, individually and in his official capacity as Director; UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, CONSTANCE HORNER, individually and in her official capacity as Director, PROTECTED SOURCE "A" in plaintiff's investigative file, individually and in his official capacity, PROTECTED SOURCE "B" in plaintiffs investigative file, individually and in his official capacity; UNITED STATES MERIT SYSTEMS PROTECTION BOARD, MARIA L. JOHNSON, individually and in her official capacity as Acting Chair, SHIGEKI J. SUGIYAMA, individually and in his official capacity as Associate General Counsel of the Office of Special Counsel; MICHAEL A. DRIGGS, individually and in his official capacity as a staff member of the Chrysler Loan Guarantee Board at the U.S. Treasury; ROGER C. ALTMAN, individually and in his official capacity as Assistant Secretary of the U.S. Treasury; and ANTHONY L. CONQUES, individually and in his official capacity as Administrative Officer at the U.S. Treasury, Defendants


Stanley S. Harris, United States District Judge.


The opinion of the court was delivered by: HARRIS

STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 Now before the Court is defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth below, defendants' motion is granted in part and denied in part. *fn1"

 Background

 The following facts have been taken from the amended complaint. *fn2" In May 1980, plaintiff was hired for a GS-13, Schedule A position on the Chrysler Loan Guarantee Board (CLGB) staff at the United States Department of the Treasury (Treasury). As part of her job, plaintiff kept track of the many reports the Chrysler Corporation was required to submit. Almost from the beginning of her employment, plaintiff became concerned that Chrysler was providing the CLGB with overly optimistic financial forecasts. In the summer and fall of 1980, Chrysler's financial situation was worsening, but the company was not submitting all of its required reports. Plaintiff communicated her concerns to several officials within Treasury, but generally received no response. On September 3, 1980, plaintiff met with defendant Roger Altman to discuss her concerns. Altman told her to prepare a memorandum for further discussion. Plaintiff prepared the memorandum, but it was returned to her, only to be used later as an example of plaintiff's doing work she was not supposed to do.

 Plaintiff began to communicate her concerns about Chrysler to staff members on Capitol Hill. In November 1980, she met with Representative David Stockman who then reported her concerns to a reporter with the Detroit News. Someone from a Congressional office then contacted Altman, who, in turn, asked plaintiff if she had been talking to the press. She replied that she had not. On the evening of November 3, 1980, after returning from Chrysler's offices in Detroit, plaintiff became determined to talk to Altman and went to look for him in his office. Crying from the desperation she was feeling, plaintiff enlisted the aid of a security guard. They went to Altman's office, but he was not there. *fn3"

 In December 1980, under the direction of Altman and other Treasury officials, defendant Michael Driggs told plaintiff that she was to be terminated. He offered her four weeks pay in return for her not taking any Chrysler documents home with her and for returning her government identification card and office key. He also informed her that she would no longer be working on Chrysler matters. Thus, from mid-December through January 30, 1981, plaintiff worked in the Washington Building, a different building than the one in which the CLGB staff was located. This coincided with a period of intense negotiations for Chrysler's third request for funds.

 On December 12, 1981, plaintiff expressed her concerns about the monitoring of Chrysler to the Treasury Inspector General (IG). At the IG's request, plaintiff prepared a written analysis of her complaint and again met with the IG on December 15, 1980. In addition, plaintiff approached the Office of Special Counsel (OSC) with her concerns about her termination. She met with attorneys at the OSC on December 15, 1980, and prepared a written report. In January 1981, OSC informed plaintiff that her complaint was being closed. At her request, the complaint was reopened on January 26, 1981.

 By letter dated January 29, 1981, plaintiff requested a copy of the IG report. She received a redacted version on or about February 12, 1981, along with a letter indicating that although the IG report was exempt from the access provisions of the Privacy Act, part of the report was being provided pursuant to the Freedom of Information Act (FOIA). The IG letter described the appeal process under the FOIA, and explained that plaintiff could not amend the report because it was exempt from the amendment provisions of the Privacy Act.

 About ten days after being terminated, plaintiff was stopped by the Secret Service when she returned to Treasury to receive her final paycheck. Under orders from the Assistant Secretary, plaintiff was not allowed to enter the building without permission.

 In February and March 1981, articles about plaintiff's termination and the IG investigation appeared in The New York Times, The Wall Street Journal, the Detroit News, and the Detroit Free Press. The article in the Detroit Free Press stated that although a Treasury spokesman would not permit reporters access to the IG report because of the Privacy Act, the spokesman did say that the report contained information about plaintiff that was "not flattering" and that she had been fired for "unsatisfactory work."

 In the Spring of 1981, plaintiff had a job interview with the Office of Management and Budget (OMB). When she told them that she had been fired from Treasury, OMB informed her that she could not be hired. On November 12, 1981, plaintiff received a letter stating that her OSC case was being closed. Defendant Shigeki Sugiyama told her that her case had been closed because "nothing happened." When plaintiff replied that she had been fired, Sugiyama responded: "We consider that nothing." Because plaintiff was a Schedule A employee, she had no appeal rights to the Merit Systems Protection Board. Instead, plaintiff expressed her dissatisfaction with OSC to members of Congress.

 In April 1982, plaintiff began a series of interviews for a Schedule C position at the Department of Commerce in the International Trade Administration Section (Commerce). She was selected for the job and was told to report for work in November 1982. However, because plaintiff did not have a security clearance, the Office of Personnel Management (OPM) was required to do an investigation into plaintiff's background. On November 18, 1982, plaintiff signed a release form so that the OPM investigator could perform his task. On February 8, 1983, the investigator requested that plaintiff sign a release form specifically for the IG report. She agreed to sign the release, but because she knew that the report was "confusing and incorrect," she stated that she wanted to meet with and explain the report to the person who reviewed it. The investigator stated that it would be no problem because persons who are investigated always have the opportunity to review the file and make comments and corrections. However, plaintiff was never afforded that opportunity. After she ultimately was denied employment with Commerce, plaintiff met with defendant James King to discuss the results of the OPM investigation. King informed her that in order to obtain the OPM report, she would have to submit a written request to OPM. Thus, on May 17, 1983, plaintiff wrote a letter to OPM requesting a copy of the report.

 On July 6, 1983, plaintiff received a redacted copy of the OPM report, with Protected Source A and Protected Source B almost completely redacted. It was then that she learned of the accusations against her. OPM indicated that the file would be retained for 15 years and would be available for federal agencies and departments for a variety of purposes, including employment matters. The letter from OPM set forth the procedure for seeking a Privacy Act amendment. In addition, by referral letters, OPM requested that Treasury and the Secret Service send plaintiff the records that originated in those agencies.

 By letter dated August 29, 1983, the Treasury IG responded to the OPM referral letter and denied the request, indicating that the IG report previously had been released to plaintiff. However, plaintiff persisted in trying to receive the IG report subsequent to its having been released to OPM and Commerce. By letter dated October 9, 1985, the IG again refused plaintiff's request, citing no FOIA or Privacy Act exemption or rationale. The IG did provide a list of those to whom the report had been distributed, but the list was incomplete. A subsequent request for the IG report was denied on October 9, 1986. After plaintiff called Treasury to explain that she did not have the complete IG report, she was sent another, more heavily redacted copy. Plaintiff attempted to learn whether the IG report was sent with or without redaction to OPM and Commerce, but was unable to do so.

 The OPM report contained statements which allegedly were "inaccurate, irrelevant, extremely derogatory and defamatory, and almost ludicrous in their exaggeration." Plaintiff believes that those statements were made intentionally and maliciously, and with knowledge of their falsity. *fn4" Under cover of a letter dated May 28, 1985, and in response to a FOIA/Privacy Act request by plaintiff, plaintiff received documents from Commerce concerning her personnel and security records. Included in the response was a Commerce letter transmitting the OPM report to King. The letter stated, "In the event adverse action is taken against Subject based on the attached information, she must first be afforded the opportunity to comment thereon." However, plaintiff was not afforded that opportunity.

 On December 9, 1986, plaintiff requested an unredacted copy of the OPM report, including the identities of Protected Sources A and B. She also requested that many of the erroneous portions be deleted. Plaintiff then received several follow-up letters which stated that OPM was in the process of reviewing the request and would advise her of the decision as soon as possible. By letter to OPM dated April 7, 1987, plaintiff stated, "I will consider that my request for amendment has been denied, unless I receive a response by close of business on April 10, 1987." Plaintiff received no further response.

 On May 21, 1986, columnist Jack Anderson published an article in which he quoted an OSC spokesman about the circumstances of plaintiff's case. This was done without plaintiff's knowledge or permission. Then, in March 1987, John Donahue, one of the authors of New Deals, the Chrysler Revival and the American System, told plaintiff that defendant Driggs had told him in an interview that plaintiff had leaked sensitive information about Chrysler's financial situation to the press. Driggs went on to say that his job on the CLGB was made much tougher by the fact that he had to do much of the work by himself (insinuating, the Court assumes, that plaintiff was not much help).

 On December 16, 1986, in a letter to plaintiff, the Secret Service informed her that because her file was maintained in a system of records that was exempt from compliance with the contest provisions of the Privacy Act, they were not required to amend her file. Likewise, on December 23, 1986, the Treasury IG informed plaintiff that her file was maintained in a system of records that was exempt from the Privacy Act provisions pertaining to amendment of records. They informed her of her right to appeal the decision. On February 18, 1987, plaintiff's appeal was denied.

 On June 23, 1987, Senator David Pryor requested from Treasury a copy of the IG report and information in the IG files relating to plaintiff. On July 8, 1987, Treasury sent the information, including an unredacted copy of the IG report, to Senator Pryor. In July and August 1987, plaintiff was able to review the entire IG report. Prominent in the report were allegations that in November 1980, plaintiff had been found by the Treasury Security Force in Altman's office going through papers on his desk. Also included with the documents given to Senator Pryor was a "Briefing Paper on Inspector General's Investigation Involving the Chrysler Loan Guarantee Board." However, the Briefing ...


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