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Tripp v. Department of Defense

November 30, 2001

LINDA R. TRIPP PLAINTIFF
v.
DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Date Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Linda Tripp filed this lawsuit against several federal defendants seeking declaratory and injunctive relief for violations of the Privacy Act, 5 U.S.C. §552a et seq. She also seeks damages from two individual defendants, Kenneth H. Bacon, the former Assistant Secretary of Defense, and Clifford Bernath, the former Principal Deputy Assistant Secretary of Defense, for conspiring to violate plaintiff's civil rights in violation of clause 2 of the Civil Rights Act of 1871 and 42 U.S.C. § 1985(2), and for the torts of invasion of privacy and civil conspiracy.

This case comes before the Court on defendants Bacon and Bernath's motion for summary judgment. Upon consideration of that motion, the response and reply thereto, the oral argument of counsel at the motions hearing held on October 10, 2001, and the applicable statutory and case law, the Court holds that these two defendants are entitled to qualified immunity and therefore will GRANT defendants' motion for summary judgment.

BACKGROUND

Plaintiff alleges that she was the victim of a pattern of intentional and wrongful disclosures by various federal agencies of confidential information contained in government files for the purpose of embarrassing her and retaliating against her. At the heart of plaintiff's claim is the alleged release of information by individuals at the Department of Defense (DOD) to Jane Mayer, a reporter from The New Yorker magazine. Plaintiff alleges the following: On March 12, 1998, Mayer contacted Kenneth Bacon, the Assistant Secretary of State for Public Affairs. Mayer indicated that she was writing a story on plaintiff and had uncovered information suggesting that plaintiff had been arrested in 1969. Mayer wanted to know whether plaintiff had disclosed any prior arrests on her security clearance application. Bacon then enlisted his deputy, Bernath, to obtain the information Mayer requested. The next day Bernath contacted Mayer and informed her that plaintiff had denied having an arrest record on her clearance application. Later that same day, The New Yorker magazine published Mayer's article, entitled "Portrait of a Whistleblower," which included the information from plaintiff's file.

The original complaint in this case was filed on September 27, 1999, and named as defendants the Executive Office of the President (EOP), the DOD, Kenneth Bacon, Clifford Bernath, and Jane and John Doe numbers 1 through 99. In January of 2000, plaintiff amended her complaint to allege claims against the Federal Bureau of Investigations (FBI). On April 5, 2001, the Court ruled on several pending motions to dismiss, granting in part and denying in part those motions. See Civ. Action No. 99-2554, Order of 4/5/01. The Court granted the EOP's motion to dismiss with respect to the Privacy Act claim in Count I. The Court dismissed without prejudice Count II against the FBI, pending the resolution of class certification in Alexander v. FBI, No. 96-2123. The Court dismissed in part Count IV against defendants Bacon and Bernath with respect to plaintiff's claim pursuant to § 1985(1) and the Civil Rights Act of 1871. The Court granted the government's motion to strike defendants Jane and John Does 1 through 99 from the caption of the case without prejudice.

The Court allowed the following claims to proceed: Count III against DOD pursuant to the Privacy Act, Count IV against the individual defendants pursuant to § 1985(2), and Count V against the individual defendants pursuant to common law tort claims pending the resolution of the government's motion to substitute the United States as the proper defendant.

On October 10, 2001, the Court heard arguments on pending motions in this case. In an Order dated October 10, 2001, the Court ordered that with respect to Count V, the United States was substituted for the individual defendants as the proper defendant pursuant to 28 U.S.C. § 2679, and the common law tort claims were replaced by a Federal Torts Claim Act (FTCA), 28 U.S.C. § 1346(b), 2671-80, claim against the United States. The Count V common law tort claims against the individual defendants were therefore dismissed with prejudice and the FTCA claim against the United States was dismissed with prejudice for failure to exhaust administrative remedies. The Court then took under advisement counsel's arguments with respect to the individual defendants' qualified immunity defense to the sole remaining claim against them, the Count IV claim pursuant to § 1985(2).

DISCUSSION

I. Standard of Review

Summary judgment should be granted only if the moving party has shown that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548 (1986); AKA v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C. Cir. 1997). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986).

II. Qualified Immunity

Plaintiff alleges that defendants Bacon and Bernath conspired to punish her for her testimony or potential testimony in several ongoing lawsuits and Office of the Independent Counsel (OIC) investigations, including Jones v. Clinton, Alexander v. FBI, the OIC's investigation into the "filegate" scandal, and the OIC's investigation into the Monica Lewinsky scandal. Plaintiff alleges that Bacon and Bernath conspired with others to punish her and deter others from testifying or participating in those investigations.

Defendants argue that their actions are protected by the qualified immunity that applies to government officials. Because defendants' actions did not constitute a clearly established violation of ...


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