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May 28, 1992

ROGER PILON, Plaintiff,


The opinion of the court was delivered by: HAROLD H. GREENE

This case involves one of the more disturbing phenomena of the Washington scene -- the leaking *fn1" of false information to damage the reputation or livelihood of an official. The events revealed by this case *fn2" are particularly egregious for several reasons.

 First, although it was officially determined several times that the target of the leaks had done nothing wrong, the false leaks began anew after every such determination, and even after a formal settlement agreement of no wrongdoing had been reached between that target and the government. Second, those providing the leaks were personnel of the Department of Justice. By virtue of their employment at an agency at the heart of the administration of justice, these individuals were under a special duty to be careful not to violate the rights of individuals. *fn3" Third, in actions reminiscent of Franz Kafka's novel The Trial, Department of Justice officials leaked confidential information concerning plaintiff with considerable abandon (see Section I, infra),4 while at the same time plaintiff was told that he could not be allowed access to the facts underlying the investigation the government had conducted of him (see note 5, infra).


 In January 1988, while plaintiff Roger Pilon held the position of Director of the Asylum Policy and Review Unit of the Department of Justice, and while his wife was under investigation for clearance in connection with her then-pending nomination as Assistant Secretary for Territorial and International Affairs in the Department of the Interior, FBI agents accused Pilon of having provided a classified State Department document on South Africa to his wife, and Mrs. Pilon of having given this document to South African government officials. *fn5" In June 1988, the Pilons were advised by a Justice Department official that Mr. Pilon was to resign his position or be fired. Shortly thereafter, Mr. Pilon's attorney was allowed a limited review of the classified investigation *fn6" on the curious conditions that he not disclose any of the information to his client and that he end his representation of the Pilons after drafting an analysis of the allegations for the consideration of the Attorney General.

 Eventually, following a review by Pilon's lawyer, the Attorney General ordered a de novo investigation of the entire matter. Following that investigation, Principal Associate Deputy Attorney General Dee V. Benson, with the approval of the then Acting Deputy Attorney General, wrote to Pilon fully clearing him of any wrongdoing and informing him that no implication adverse to him should be taken from the investigation. *fn7" Pilon was also unconditionally reinstated in his former position and his top secret security clearance was restored.

 Notwithstanding this reinstatement, the Office of Professional Responsibility (OPR) (which was responsible for the initial investigation of Pilon) in its 1988 Annual Report to the Attorney General provided a description of the Pilon investigation, concluding (1) that the investigation had discovered sufficient cause for the termination of Pilon's political appointment, and (2) that Pilon had resigned prior to the initiation of the removal proceedings. *fn8" Both of these conclusions were false, and they were contrary to the determination made by the Principal Associate Deputy Attorney General.

 Upon entreaties by Pilon's attorney, Deputy Attorney General Donald Ayer, too, undertook an investigation of the matter, and on March 16, 1990, he, too, wrote to Pilon that there was no basis for his dismissal from his position, *fn9" and that, in fact, he had been invited to return to his post unconditionally. *fn10"

 On July 12, 1990, Pilon and the Department of Justice entered into a stipulation for a compromise settlement to resolve Pilon's claims against the Department. The settlement was accompanied by a check to Pilon for $ 25,000 and a public letter of apology to him which stated that Pilon's resignation was self-initiated and not caused by any contemplated removal proceedings. *fn11"

 Unfortunately, the settlement did not end the controversy. To the contrary; the leaks by Justice Department personnel damaging to Pilon's reputation continued.

 On October 5, 1990, Pilon and his attorney were separately contacted by telephone by James Rowley, a reporter who covered the Department of Justice for the Associated Press. Mr. Rowley stated that he had been given several internal classified Department of Justice records pertaining to Pilon, *fn12" one of which was a memorandum from Deputy Attorney General Ayer to Attorney General Thornburgh, in which Mr. Ayer was reported to have stated that a senior career Department attorney had concluded that there was sufficient evidence to justify Pilon's firing. The Associated Press story based on Rowley's information also revealed that several Department lawyers had allegedly found that Pilon had been reinstated despite sufficient evidence to justify his dismissal. The article also cited "several top officials" *fn13" of the Department for additional information regarding the Pilon resignation.

 Pilon brought this damages action after he left the Department, *fn14" claiming substantial adverse effects, and the Department moved to dismiss or in the alternative for summary judgment. It is that motion that is now before the Court.


 The principal argument advanced in the Department's motion for summary judgment is that Pilon's Privacy Act claim concerning the Fall 1990 disclosures is barred by ...

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