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TRIPP v. DEPARTMENT OF DEFENSE

March 30, 2002

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



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' motion.

BACKGROUND

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 administration.

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 center officials.
(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 earned $98,744.
(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 consideration.
(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 same position.

Id.

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 Center.

Prior to her termination from federal employment, on January 6, 2000, plaintiff's counsel had submitted letters to President Clinton, Attorney General Janet Reno, and DOD on plaintiff's behalf in the form of a "reverse FOIA" request. The letters requested that "no information be released to the news media directly or indirectly related to Mrs. Tripp, unless that information is properly requested under" the FOIA. The letter also noted plaintiffs objections under the Privacy Act to the dissemination of any information related to herself. Mrs. Tripp also requested permission to review any files related to herself prior to their release in response to a FOIA request.

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. Moran, Jr.

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;

• 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 the present;
• 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 Center;
• 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 Data Center;
• 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 Sandra Jontz;
• 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 Privacy Act."

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 fees.

DISCUSSION

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).

II. Privacy Act Claims

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 ...

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