The opinion of the court was delivered by: Sullivan, District Judge.
MEMORANDUM OPINION AND ORDER
The case comes before this Court on defendants' original and
supplemental Motions to Dismiss and for Summary Judgment. Having
considered defendants' motion and supplemental motion, and the
oppositions and replies thereto, as well as the applicable statutory and
case law, the Court hereby GRANTS IN PART and DENIES IN PART defendants'
Plaintiff Linda Tripp is a former employee of the federal government,
with over 21 years of service in a variety of agencies and positions.
Plaintiff's allegations in this case arise out of her pursuit of
employment at DOD's George Marshall Center in Germany.*fn1 At the time
she applied for a position at the Marshall Center, plaintiff was employed
with the Office of Public Affairs at DOD in a non-career, Schedule C
political appointee position. Plaintiff's federal salary level in that
position was at the GS-15 level. At the end of the administration of
President Bill Clinton, on January 20, 2001, plaintiff was terminated.
Plaintiff was terminated after she refused to tender her resignation, as
is customary for political appointees to do at the end of an
Prior to her termination, plaintiff applied for the position of Deputy
Director of the Conference Center at the Marshall Center. Plaintiff
alleges that in October of 2000, she searched the OPM's website and
discovered the Deputy Director opening, which was a career service
position. She submitted a written application for that position,
including the requisite forms and her resume. Plaintiff was notified a
few months later by DOD that she had been certified as one of the top
qualified applicants for the position. Plaintiff contacted the Marshall
Center by telephone to inquire as to the job application process.
Plaintiff admits that she spoke by phone to Mr. Robert Kennedy, the
Marshall Center Director. In that conversation, plaintiff admits that
she informed Mr. Kennedy that she was certified as one of the top
qualified applicants, and asked questions regarding the selection
process. Mr. Kennedy contends that he is not generally involved in the
hiring for these positions, and that Mrs. Tripp's phone call was the
first he had heard that she was an applicant. Plaintiff contends that
during that conversation she did not give Mr. Kennedy or anyone else the
authority to disclose to any third parties information related to her job
application. Mrs. Tripp received authorization from DOD to travel to
Germany to interview for the position in person. Her travel orders were
issued on January 11, 2001, and she
was scheduled for leave for January
18 through 26, 2001. On January 23, 2001, plaintiff arrived at the
Marshal Center to interview for the Deputy Director position. When she
arrived she was handed a copy of that day's Stars and Stripes newspaper.
Stars and Stripes is affiliated with DOD and is overseen by the Director
of the American Forces Information Service.*fn2 The paper featured an
article about plaintiff with the headline: "Linda Tripp up for Job at
Marshall Center: Controversial figure 1 or [sic] 4 candidates
interviewing at security, defense institute in Germany." See Plfs' Opp.
to Defs' Mot., Ex. 2. The article included the following statements
about which plaintiff complains:
(1) Linda R. Tripp, who secretly tape-recorded
information that nearly brought down a president, could
land a senior-level government job in Germany.
(2) Tripp, who was fired Friday from her Pentagon job, is
one of four candidates applying for the conference center
deputy director post at the George C. Marshall European
Center for Security Studies in Gamusch, Germany, said
(3) "She's being considered along with fellow candidates
for the job," center Director Robert Kennedy said Monday.
"I got a call from Ms. Tripp that she was applying, and
she wanted to make sure the application was received and
to find out where we were in the process."
(4) Kennedy, who could not remember when the telephone
conversation took place, said it was before Friday's
announcement that she lost her high-paying Pentagon job.
(5) Tripp was fired from her GS-15 position in the public
affairs office at the Pentagon, where she reportedly
(6) The deputy director's position in Germany for which
she is applying is a GS-14.
(7) However, under "save pay" rules, Tripp might not have
to give up the higher salary for at least two years, a
Pentagon spokeswoman said.
(8) Kennedy, who will not be involved in the interviewing
process for the position, declared the historical
brouhaha surrounding Tripp would not be factored into the
(9) Tripp left Washington, D.C., on Thursday for the
interview, scheduled to take place on Monday.
(10) Sources close to the Center said three other people,
all retired military officers, are also vying for the
Plaintiff contends that this article was published in the European and
Pacific print editions of Stars and Stripes, the on-line edition of the
European edition of Stars and Stripes, and in the electronic "Early Bird"
on-line and e-mail publication distributed by DOD. It is undisputed that
plaintiff was not selected for the Deputy Director position at the Marshal
On January 25, 2001, plaintiff filed this lawsuit, alleging that DOD
officials violated her Privacy Act rights by disclosing information to
Stars and Stripes that was contained in a Privacy Act system of records.
Plaintiff also alleges that DOD failed to take necessary efforts to
ensure the accuracy of the released information, to establish adequate
rules for personnel with respect to the Privacy Act, and to establish
sufficient safeguards to prevent unauthorized disclosures. Plaintiff
also alleges a violation of the APA as a result of the violation of her
reverse FOIA request to DOD. On March 26, 2001, defendant filed its
Motion to Dismiss and for Summary Judgment.
On May 22, 2001, plaintiff filed an Amended Complaint. In that Amended
Complaint, plaintiff included several new factual allegations. In
particular, on February 11, 2000, the Washington Post published an article
entitled "No Low Profile, Linda Tripp's $98,744 Salary, Perks Draw
Attention." Plaintiff argues that this article contained information
about plaintiff's job performance, time, attendance, and approved leave
that was protected by the Privacy Act. Plaintiff also alleges that after
receiving the January 6, 2000 letter from plaintiff's counsel, DOD
released Privacy-Act protected information to Representative James P.
The Amended Complaint also includes a new claim under FOIA and the
Privacy Act based on plaintiff's request for documents from DOD and OPM.
Plaintiff alleges that on January 25, 2001 she requested by letter
addressed to Donald Rumsfeld, Secretary of Defense, pursuant to FOIA and
the Privacy Act, records related to the following:
• plaintiff's status as a federal employee;
• all communications between the Department of
Defense and the White House directly or indirectly
related to plaintiff between January 6, 2000 and
• all documents directly or indirectly related to any
Privacy Act violations concerning plaintiff;
• all documents directly or indirectly related to
plaintiff and/or her employment status for the time
period of January 15, 2001 to the present;
• all documents directly or indirectly related to the
plaintiff's application for employment with the
Marshall Center and/or her interview with the
Marshall Center and/or her travel to the Marshall
• all documents directly or indirectly related to the
release of information concerning plaintiff in
January 2001 to Stars and Stripes, the Early Bird,
the Armed Forces Information Service, Sandra Jontz
of the Washington Bureau of Stars and Stripes,
and/or any other person outside the DOD Manpower
• all documents that are in the possession or control
of DOD, Sandra Jontz, Stars and Stripes, the Early
Bird, AFIS, Mr. Clifford Bernath, Rear Admiral Craig
Quigley, the Office of the Secretary of Defense, and
or the Office of Public Affairs that relate directly
or indirectly to plaintiff and/or the release of
information concerning plaintiff in January 2001 to
Stars and Stripes, the Early Bird, the AFIS and/or
• all documents directly or indirectly related to
implementation of the Memorandum of Director
Administration & Management from Secretary William
Cohen dated May 25, 2000 regarding "Training on the
That letter also requested a waiver of fees and expedited processing. By
letter of January 31, 2001, DOD denied plaintiff's request for a fee
waiver and expedited processing and stated that DOD was discontinuing the
processing of plaintiff's request because she had not demonstrated a
willingness to pay the fees. Plaintiff filed an administrative appeal by
letter dated February 15, 2001. DOD notified plaintiff on February 25,
2001 that it would resume processing her request. In March 2001,
plaintiff appealed the constructive denial of her FOIA and Privacy Act
requests, the request for expedited processing, and the fee waiver. On
March 21, 2001, DOD responded with an estimate of $1,253.15 for records
within the Office of the Secretary of Defense. On March 28, 2001,
plaintiff requested an appeal by OPM of the denial of her request. OPM
denied that appeal on April 10, 2001. On April 11, 2001 DOD responded
that plaintiff had been provided all responsive records from any Privacy
Act systems, and thus the Privacy Act portion of plaintiff's request was
complete. On May 1, 2002, DOD notified plaintiff that her request was
"closed" because of plaintiff's failure to pay fees. Plaintiff alleges
that both DOD and OPM have denied her FOIA and Privacy Act requests, her
request for expedited processing, and her request for a fee waiver. She
asks the Court to issue declaratory relief with respect to the illegality
of the agency action, and injunctive relief ordering expedited processing
and enjoining the withholding of responsive records and from charging
I. Standard of Review for Motions to Dismiss and for Summary Judgment
The Court will not grant a motion to dismiss for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994). Accordingly, at this stage in the proceedings, the
Court accepts as true all of the Complaint's factual allegations. See
Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir.
1985). Plaintiff is entitled to "the benefit of all inferences that can
be derived from the facts alleged." Kowal, 16 F.3d at 1276.
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 judgement 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).
Plaintiff's original and Amended Complaints together raise several
different claims under the Privacy Act. The defendants have either moved
to dismiss or moved for ...