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MITTLEMAN v. UNITED STATES

February 9, 1998

ELAINE MITTLEMAN, Plaintiff,
v.
UNITED STATES, Defendant. ELAINE MITTLEMAN, Plaintiff, v. UNITED STATES DEPARTMENT OF THE TREASURY, JAMES A. BAKER, UNITED STATES DEPARTMENT OF COMMERCE, BRUCE SMART, JAMES T. KING, UNITED STATES SECRET SERVICE, JOHN R. SIMPSON, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, CONSTANCE HORNER, PROTECTED SOURCE "A," PROTECTED SOURCE "B," UNITED STATES MERIT SYSTEMS PROTECTION BOARD, MARIA L. JOHNSON, OFFICE OF SPECIAL COUNSEL, MARY WIESEMAN, SHIGEKI J. SUGIYAMA, MICHAEL A. DRIGGS, ROGER C. ALTMAN, ANTHONY L. CONQUES, and BRUCE D. BOLANDER, Defendants. ELAINE MITTLEMAN, Plaintiff, v. JAMES B. KING, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, RONALD H. BROWN, and UNITED STATES DEPARTMENT OF COMMERCE, Defendants.



The opinion of the court was delivered by: HARRIS

 OPINION

 The following motions and memoranda are pending before the Court in these civil actions:

 (1) Plaintiff's motion to strike defendants' affirmative defenses in Civil Actions No. 86-1852, 92-1741, and 93-1869;

 (2) The parties' memoranda regarding the refinement of plaintiff's claims in Civil Actions No. 92-1741 and 86-1852;

 (3) Defendant Secret Service's further motion to dismiss or, in the alternative, for summary judgment in Civil Action No. 86-1852; *fn1"

 (4) Plaintiff's motion to amend her complaint in Civil Action No. 86-1852;

 (5) Plaintiff's motion for sanctions in Civil Action No. 86-1852;

 (6) Plaintiff's motion that the Declaration of Robert Anderson Be Withdrawn in Civil Action No. 86-1852;

 (7) Plaintiff's "Motion To Preclude the Defendants' Reliance Upon the November 19, 1980, Memorandum for the Truth of the Matter Asserted Therein" in Civil Action No. 86-1852;

 (8) Defendants' further motion to dismiss or, in the alternative, for summary judgment in Civil Action No. 93-1869; and

 (9) Plaintiff's motion to substitute Acting Secretary of Commerce Mary Good in her official capacity as a defendant in Civil Action No. 93-1869.

 Two of plaintiff's motions (Nos. 6 and 7) have not been fully briefed. However, after reviewing those motions and independently researching the issues raised, and in light of the abundance of briefs in this case, the Court has determined that it is able to rule on those motions without further briefing. Upon careful consideration of all the motions and memoranda filed by the parties, the motions hearing held on January 8, 1998, and the entire record, the Court grants summary judgment on the first five parts of plaintiff's Privacy Act claim in Civil Action No. 86-1856 and orders further briefing limited to the single remaining Privacy Act claim. The Court also grants defendants' motions to dismiss the remaining claims in Civil Actions No. 92-1741 and 93-1869. The Court denies plaintiff's motion to strike defendants' affirmative defenses in all three cases. The Court also denies plaintiff's motion to amend, motion for sanctions, motion to withdraw the Anderson declaration, and motion to preclude defendants' reliance on the November 19, 1980, document in Civil Action No. 86-1852. Finally, the Court denies plaintiff's motion to substitute defendant in Civil Action No. 93-1869.

 BACKGROUND

 These cases are the remainder of a series of lawsuits filed by plaintiff against the United States government over incidents occurring between 1980 and 1983. *fn2" The factual background has been set forth in great detail in the Court's three previous Opinions. See Mittleman v. United States Treasury, 773 F. Supp. 442 (D.D.C. 1991) (hereinafter Mittleman I); Mittleman v. United States Treasury, 919 F. Supp. 461 (D.D.C. 1995), rev'd in part, 322 U.S. App. D.C. 367, 104 F.3d 410 (D.C. Cir. 1997) (hereinafter Mittleman II); Mittleman v. King, No. 93-1869, slip op. at 2-7 (D.D.C. Nov. 4, 1997) (hereinafter Mittleman IV). *fn3" Nevertheless, the Court reviews the background.

 Plaintiff worked on the staff of the Chrysler Loan Guarantee Board ("CLGB") at the Department of the Treasury ("Treasury") between May 1980 and January 1981. During her tenure, plaintiff became concerned that Chrysler Corporation was providing Treasury with overly optimistic financial forecasts. She communicated her concerns to several Treasury officials, but generally received no response. Plaintiff eventually met with Roger Altman, the Assistant Secretary for Domestic Finance at Treasury who supervised the CLGB, to discuss her concerns. Altman told her to prepare a memorandum for further discussion. Plaintiff did so, but she and Altman never had further discussion on the matter.

 In December 1980, under the direction of Altman and other Treasury officials, plaintiff's supervisor, Michael Driggs, informed plaintiff that she was to be terminated, and that in the interim she was not going to be working on any Chrysler matters. Thus, from mid-December through January 30, 1981, plaintiff worked in the Washington Building, a building separate from the one in which the CLGB staff was located.

 Plaintiff complained to the Treasury Inspector General ("IG") about the Chrysler issues and approached the Office of Special Counsel ("OSC") with her concerns about her termination. The ensuing IG investigation led to a report (the "IG report") which included interviews with Altman and Driggs insinuating that plaintiff may have gone through papers on Altman's desk and leaked various stories to the press. 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.

 Plaintiff was terminated on January 30, 1981. About ten days after being terminated, plaintiff was stopped by the Secret Service when she returned to Treasury to get her final paycheck. She was not allowed to enter the building without permission.

 In the spring of 1982, plaintiff applied for the position of Special Assistant to Gary Horlick, a Schedule C position at the Department of Commerce ("Commerce"). Because plaintiff did not have a security clearance, the Office of Personnel Management ("OPM") did a background investigation. The investigator requested that plaintiff sign a release for the IG report. Plaintiff agreed to sign the release, but because she knew it was "confusing and incorrect," she stated that she wanted to meet with and explain the report to whomever reviewed it. Plaintiff alleges that the investigator assured her that persons who are investigated always have the opportunity to review their file and make comments and corrections, but plaintiff was never afforded that opportunity. Later that spring, plaintiff was informed that she did not get the Commerce job. She alleges that the decision not to hire her was based on false information contained in the report prepared by the OPM as a consequence of its investigation (the "OPM report"). *fn6"

 On May 17, 1983, plaintiff wrote a letter to the OPM requesting a copy of its report. She received a redacted copy on July 6, 1983. It was then that she learned of the accusations against her. The OPM report contained statements which plaintiff alleges were "inaccurate, irrelevant, extremely derogatory and defamatory, and almost ludicrous in their exaggeration." She believed that the statements were made intentionally and maliciously, and with knowledge of their falsity. Over the next several years, plaintiff continued to request amendment of the OPM and IG reports and to attempt to get unredacted copies of both reports (she finally received an unredacted copy of the IG report in 1987). Ultimately, plaintiff filed the three above-captioned lawsuits in an attempt to gain compensation, both monetary and through amendment of her files, for damage to her career, her reputation, and her family as a result of the government's alleged statutory, constitutional, and tortious violations.

 STANDARDS OF REVIEW

 A motion to dismiss should not be granted "unless plaintiff [] can prove no set of facts in support of [her] claim which would entitle [her] to relief." Kowal v. MCI Communic. Corp., 305 U.S. App. D.C. 60, 16 F.3d 1271, 1276 (D.C. Cir. 1994); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). All factual doubts must be resolved and all inferences made in favor of the plaintiff. Tele-Communications of Key West, Inc. v. United States, 244 U.S. App. D.C. 335, 757 F.2d 1330, 1334-35 (D.C. Cir. 1985). Further, disposition must be made based on the face of the complaint and matters of general public record only. See id.; Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 969 (D.C. Cir. 1979).

 In the event matters outside the pleadings are presented to and not excluded by the court, and the court assures itself that such treatment would be fair to both parties, a motion to dismiss may be treated as one for summary judgment and disposed of as provided in Federal Rule of Civil Procedure 56. Fed. R. Civ. P. 12(b); Americable Int'l Inc. v. Department of the Navy, 327 U.S. App. D.C. 159, 129 F.3d 1271, 1274 n.5 (D.C. Cir. 1997); Marshall County Health Care Auth. v. Shalala, 300 U.S. App. D.C. 263, 988 F.2d 1221, 1227 (D.C. Cir. 1993); Tele-Communications, 757 F.2d at 1334. Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Mere allegations in the pleadings, however, are not sufficient to defeat a summary judgment motion; if the moving party shows that there is an absence of evidence to support the nonmoving party's case, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 DISCUSSION

 I. Plaintiff's Motion To Strike Defendants' Affirmative Defenses

 Plaintiff's first contention in all three cases is that defendants' affirmative defenses, including the statute of limitations, estoppel, qualified immunity, res judicata, and laches, have been waived because they were not raised in an answer before being presented in motions to dismiss. Plaintiff relies entirely on our Court of Appeals' recent decision in Harris v. Secretary, U.S. Dep't of Veterans Affairs, 326 U.S. App. D.C. 362, 126 F.3d 339 (D.C. Cir. 1997).

 The Court initially notes that plaintiff most likely has waived any objection to defendants' raising a statute of limitations defense in their motions to dismiss or, in the alternative, for summary judgment, as this issue already has been litigated both in this Court and in the Court of Appeals without objection by plaintiff. See Mittleman v. United States, 322 U.S. App. D.C. 367, 104 F.3d 410 (D.C. Cir. 1997) (Mittleman III); Mittleman I, 773 F. Supp. at 450-51. In addition, the Court does not agree with plaintiff's argument that Harris controls this case. The Court of Appeals in Harris held that in order to raise an affirmative defense in a motion for summary judgment, a defendant must have pled the defense in his answer. See Harris, 326 U.S. App. D.C. 362, 126 F.3d 339 at 342-345. Though the Court realizes that the Court of Appeals generically referred to "dispositive motions" in Harris, the court's reasoning reflects concerns which are relevant only when considering a motion for summary judgment. See, e.g., 126 F.3d at 343, 345. Moreover, the Court of Appeals cannot have intended its holding to apply to motions to dismiss, since Federal Rule of Civil Procedure 12 provides that a defendant need not file an answer until ten days after a motion to dismiss has been denied. Fed. R. Civ. P. 12(a)(4). If the Court were to accept plaintiff's reading of Harris, the Court would ...


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