court concludes that the Privacy Act does not preempt the common law invasion of privacy tort.
VII. The United States' Motion to Dismiss Count III for Failure to Exhaust Administrative Remedies and Plaintiffs' Objection to the United States' Substitution for Defendants Nussbaum, Livingstone, and Marceca
The United States filed a notice of substitution for defendants Nussbaum, Livingstone, and Marceca on February 18, 1997, and simultaneously filed a motion to dismiss Count III as asserted against the United States for failure to exhaust administrative remedies. In response, plaintiffs have challenged the validity of the substitution, and have asked the court to find that the individual defendants were acting outside the scope of their employment.
Although a certification by the Attorney General's designee is prima facie evidence that an employee was acting in the scope of his or her employment, the certification, when challenged, is entitled to de novo review by this court. Kimbro v. Velten, 308 U.S. App. D.C. 134, 30 F.3d 1501, 1509 (D.C. Cir. 1994). Having raised a genuine issue of material fact that the conduct was performed outside the scope of employment, plaintiffs are entitled to discovery before this court reaches the merits of the certification. For this reason, the motion to dismiss for failure to exhaust administrative remedies must be deferred.
The court must note that it expressly rejects the argument advanced by the United States that because the defendants were political appointees, it was within the scope of their employment to gather these FBI files for partisan political purposes, as plaintiffs allege. Such alleged conduct is not acting in the interest of the United States as employer. It may well be that discovery will disclose that these files were gathered through bureaucratic bungling, and not for improper partisan political purposes. The court cannot conclude, however, at this stage, that plaintiffs' allegations are too conclusory or that they have no basis. The circumstantial evidence cited by plaintiffs is clearly sufficient to give them an opportunity to discover the true facts in this case.
IX. Government Defendants' Motion to Strike Class Action Allegations and Plaintiffs' Motion for Class Certification
Government defendants, joined by Hillary Clinton, have moved this court to strike the class allegations contained in the complaint. Defendants argue first that any motion to certify would be untimely and second that a class action would necessarily be inappropriate in this case. In response, plaintiffs filed an opposition to the motion as well as a motion for class certification. The court will withhold ruling on plaintiffs' motion pending discovery to determine if a class and possibly subclasses can be properly defined to meet the class action requirements of Rule 23, Fed. R. Civ. P.
Initially, the court will deny defendants' motion to strike the class action allegations and reject defendants' argument that the motion to certify is untimely. During the relevant time period, the court had stayed the case at the request of the government. It was reasonable for plaintiffs to think that the time was tolled for the filing of the motion until the defendants were required to respond to the complaint.
Plaintiffs have moved to certify the class under Rule 23(b)(3). To successfully certify the class under Rule 23(b)(3), plaintiffs must show that common questions of law and fact predominate in addition to meeting the requirements of Rule 23(a): commonality, numerosity, typicality of claims, and adequacy of representation.
Defendants have raised several issues that challenge the ability of a class to be successfully defined in this case. Initially, defendants question whether a class action would ever be appropriate in a suit under the Privacy Act because of the need for each plaintiff to show an adverse effect from the alleged violations of the Act. The court has similar concerns about the common law tort of invasion of privacy because as just held earlier, each plaintiff must have had an expectation that the information provided to the FBI was only to be used for a very limited purpose in order to pursue a cause of action under the intrustion into seclusion tort. Additionally, the suggested class definition provided by plaintiffs does not provide any relevant time frame, and thus would not limit the class to those who have typical complaints as the named plaintiffs. Furthermore, the proposed definition suggests that the class include all whose files were improperly acquired by the White House. However, whether the files were improperly acquired is a contested issue in this case and not a proper way to determine the class.
Despite these possible problems, the court concludes that plaintiffs should have the chance to take discovery to determine if the class can be properly defined and if subclasses could be used for the maintenance of a class action. It is clear that there are common issues of law and fact that exist and plaintiffs should have the opportunity to separate the noncommon issues.
A final cut-off date for discovery on the class issues as well as a further briefing schedule will be set at a further status conference in this case.
X. Other Motions
Plaintiffs have moved for attorneys' fees and costs against the government defendants and their counsel for needlessly delaying this case and for seeking stays of discovery. the government and their counsel did nothing improper in seeking to first have the court decide a number of threshhold legal issues. Plaintiffs' motion for sanctions will therefore be denied.
Defendant Mrs. Clinton moved for a temporary stay of discovery pending disposition of her dispositive motion, and the government defendants thereafter joined and requested that discovery be stayed until all pending dispositive motions are resolved. Mrs. Clinton's motion will be denied as moot. The government defendants' motion is denied in light of the plaintiffs' demonstrated need for discovery.
A report from the Senate Committee on Government Operations which recommended passage of the Privacy Act states:
The purpose of S. 3418 [the Privacy Act], as amended, is to promote governmental respect for the privacy of citizens by requiring all departments and agencies of the executive branch and their employees to observe certain constitutional rules in the computerization, collection, management, use, and disclosure of personal information about individuals. . . .
It is designed to prevent the kind of illegal, unwise, overbroad, [sic] investigation and record surveillance of law-abiding citizens produced in recent years from actions of some over-zealous investigators, and the curiosity of some government administrators, or the wrongful disclosure and use, in some cases, of personal files held by Federal agencies. . . .