Plaintiff claims that Mr. Kippenberger's Reemployment Recommendation is inaccurate, because it states that Mr. Webb "was unable to complete the basics of investigations and report writing" and was incapable of "performing any duties without constant guidance and supervision" during Mr. Webb's entire eight and one half year career with the Secret Service. He argues that Mr. Kippenberger could not make such an evaluation based on his supervision of Mr. Webb for only eleven months. In addition, plaintiff maintains that the agency failed to verify the facts behind Mr. Kippenberger's statements and that it was required to verify how plaintiff performed during his first seven and one half years of employment at the Secret Service by examining his past performance appraisals or by contacting Mr. Webb's previous supervisors.
Given the context in which Mr. Kippenberger provided his negative evaluation and the language he used in drafting it, the Court concludes that the Reemployment Recommendation admits to only one reasonable interpretation: It was Mr. Kippenberger's opinion, formed in the course of supervising and observing Mr. Webb for eleven months, that Mr. Webb was a below average employee and that he would not recommend that Mr. Webb be reemployed by the agency. His observation was that Mr. Webb was unable to comprehend the basics of investigations and report writing despite having had eight and one half years of experience with the Service. The form expressly states that Mr. Kippenberger supervised Mr. Webb only from July 16, 1978, to June 3, 1979, and the form's questions are asked in such a manner as to make clear they are eliciting the opinion of the supervisor answering the question. Mr. Kippenberger did not write that Mr. Webb's performance was unsatisfactory for his entire period of employment with the Secret Service.
Mr. Kippenberger offered his opinion that Mr. Webb was unreliable, irresponsible, inconsistent, and that he lacks good judgment, and that Mr. Webb was "incapable [of] performing any duties without constant guidance and supervision." In these comments, he did not mention the eight and one half year period of Mr. Webb's employment. In addition, Mr. Kippenberger had a sufficient basis for these opinions on Mr. Webb's performance. At his deposition, Mr. Kippenberger related two incidents that he said were but two examples of Mr. Webb's performance that led to his negative appraisal. Mr. Webb had left a surveillance without informing a superior and had failed to follow up on questioning a witness with respect to an assassination threat. Deposition of Jack Kippenberger ("Kippenberger Dep.") at 77-84. Mr. Webb provided a different view of one of the incidents and stated that he did not remember the other incident. But Mr. Webb's explanations do not undermine the fact that Mr. Kippenberger could reasonably have formed his opinion that these incidents reflected unfavorably on Mr. Webb's performance.
Mr. Kippenberger's comment regarding Mr. Webb's investigation and report writing abilities did include the disputed language regarding Webb's eight and one half years of employment. Although perhaps inartfully written, this comment merely indicates Mr. Kippenberger's opinion that despite eight and one half years of experience, Mr. Webb did not comprehend the basics of investigations or report writing. Mr. Kippenberger testified at his deposition that he did not intend this statement to mean that Mr. Webb's performance was poor for all of Mr. Webb's eight and one half years of employment at the Service. Kippenberger Dep. at 86-87. Indeed, as indicated in the HUD report of its investigation of Mr. Webb, HUD's understanding of Mr. Kippenberger's statement comported with Kippenberger's intended meaning: that Mr. Webb did not possess the investigative and report writing abilities of an agent of eight and one half years experience. Pl. Mot. Attach. 20.
Counsel for plaintiff conceded in open court that if the Court were to read Mr. Kippenberger's statement in this manner, as limited to the eleven month period when Mr. Kippenberger supervised Mr. Webb, then Mr. Kippenberger's statements were not verifiably false and there would be no Privacy Act violation. The Court does read the statement this way and finds that Mr. Kippenberger's statements did not address Mr. Webb's performance for the full eight and one half years of his employment at the Secret Service. Furthermore, there is no evidence that Mr. Kippenberger ever told anyone that Mr. Webb had deficiencies for eight and one half years. Kippenberger Dep. at 86-87. The Court concludes that Mr. Kippenberger was permitted to express his negative personal opinion and subjective evaluation of plaintiff's performance based on his observation and supervision of plaintiff over an eleven month period. See Hewitt v. Grabicki, 794 F.2d 1373, 1378 (9th Cir. 1986).
The Court also finds that the Reemployment Recommendation form contained justified statements of opinion, not fact. Consequently, they were not "capable of being verified" as false and cannot be considered inaccurate statements. Sellers v. Bureau of Prisons, 959 F.2d at 312 see Doe v. United States, 261 U.S. App. D.C. 206, 821 F.2d 694, 699 (D.C. Cir. 1987). The allegedly false statements made by Mr. Coggins and those made orally by Mr. Kippenberger were repetitions or paraphrases of the statements in the Reemployment Recommendation form prepared by Mr. Kippenberger and therefore also are statements of opinion that are not verifiably false or inaccurate. The Court concludes that the Secret Service's records regarding Mr. Webb were not based on a demonstrably false premise, but rather were based on Mr. Kippenberger's subjective evaluation that was "based on a multitude of factors [for which] there are various ways of characterizing some of the underlying events. . . ." White v. Office of Personnel Management, 252 U.S. App. D.C. 104, 787 F.2d 660, 662 (D.C. Cir.), cert. denied, 479 U.S. 885, 93 L. Ed. 2d 252, 107 S. Ct. 276 (1986). As such the Secret Service may retain and rely upon the statements in Mr. Webb's personnel file. Id. Accordingly, the agency need not amend the records pursuant to 5 U.S.C. § 552a (d)(2) and the defendants are not liable under 5 U.S.C. § 552a(e)(6) for damages for the dissemination of the information to HUD or to the three nonfederal entities. Plaintiff's Privacy Act Claims therefore are dismissed.
Even if the Court had found that the Secret Service violated the Privacy Act, it would still conclude that plaintiff cannot show that he is entitled to damages. An agency is liable for damages under the Privacy Act only if the agency "acted in a manner which was intentional or willful." 5 U.S.C. § 552a(g)(4); See Albright v. United States, 235 U.S. App. D.C. 295, 732 F.2d 181 (D.C. Cir. 1984). In this Circuit, to defeat summary judgment a Privacy Act plaintiff must provide evidence that would permit a reasonable jury to find that the Secret Service acted "without grounds for believing its actions lawful" or had "flagrantly disregarded" his rights under the Act. Laningham v. U.S. Navy, 813 F.2d at 1242. Even if one were to read Mr. Kippenberger's statements as suggesting that Mr. Webb's performance was unsatisfactory for the entire previous eight and one half year period, at worst Mr. Kippenberger's miscommunication would only amount to negligence in the writing of his answers to the form's questions and would not amount to willful, intentional or even reckless disregard of Mr. Webb's rights. The violation alleged here was not so "'patently egregious and unlawful'" that anyone undertaking the conduct "should have known it 'unlawful.'" Id., at 1242-43 (citations omitted); Thee Albright v. United States, 235 U.S. App. D.C. 295, 732 F.2d 181, 189 (D.C. Cir. 1984).
C. Plaintiff's Claims For Intentional Infliction Of Emotional Distress And For Defamation Must Be Dismissed.
As certified by the Attorney General's designee, the individual defendants were acting within the scope of their employment. 28 U.S.C. § 2679(d)(1). Consequently, to maintain his tort claims, plaintiff had to sue the United States under the Federal Tort Claims Act. 28 U.S.C. §§ 2679(b), (d)(1), (d)(4). Plaintiff failed to invoke the FTCA as a basis of jurisdiction and failed to exhaust his administrative remedies under the FTCA. 28 U.S.C. § 2675(a). At oral argument, plaintiff acceded to dismissal of Counts II and III of his complaint on this basis. Accordingly, Counts II and III are dismissed.
For the forgoing reasons, defendants' motion for summary judgment is GRANTED and plaintiff's motion for summary judgment is DENIED. An Order consistent with this Opinion is entered this same day.
PAUL L. FRIEDMAN
United States District Judge
This case comes before the Court on Plaintiff's Motion For Summary Judgment and Defendants' Motion For Summary Judgment. Upon consideration of the motions, the supporting and opposing papers, the record in this case, and the arguments of counsel in open court, and for the reasons stated in the Court's accompanying Opinion, the Court finds that there are no genuine issues as to any material facts and that Defendants are entitled to judgment as a matter of law. Accordingly, it is hereby
ORDERED that Defendants' Motion For Summary Judgment is GRANTED; it is
FURTHER ORDERED that Plaintiff's Motion For Summary Judgment is DENIED; it is
FURTHER ORDERED that Counts II and III of the Amended Complaint are DISMISSED; and it is
FURTHER ORDERED that judgment is entered in favor of all Defendants on Count I.
PAUL L. FRIEDMAN
United States District Judge
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