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Tripp v. Department of Defense

August 28, 2002

LINDA R. TRIPP PLAINTIFF,
v.
DEPARTMENT OF DEFENSE, DEFENDANT.



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. The remaining defendant, the Department of Defense ("DOD"), has moved to dismiss Tripp's Second Amended Complaint, or in the alternative, has moved for summary judgment.

Upon consideration of defendant's motion, the response and reply thereto, as well as the applicable statutory and case law, this Court denies the motion to dismiss.

BACKGROUND

Plaintiff filed her initial Complaint on September 27, 1999. In that initial Complaint, the plaintiff alleged willful and intentional violations of the Privacy Act of 1974 against several defendants including her former employer, DOD. Plaintiff specifically alleged that DOD personnel improperly disclosed her answer to a question concerning her arrest record on a security clearance form to a reporter for The New Yorker, Ms. Jane Mayer, in mid-March 1998. See Complaint of September 27, 1999, ¶¶ 54-70.

The plaintiff alleged violations of the Privacy Act of 1974 by the defendant, namely 5 U.S.C. § 552a(e)(6), (e)(7), (e)(9), and (e)(10). See Complaint of September 27, 1999, ¶¶ 71-78. On January 14, 2000, plaintiff filed her First Amended Complaint. The First Amended Complaint largely contains the factual allegations and claims made against defendant DOD that were included in her initial complaint. The detailed factual allegations with respect to the Privacy Act violation pertained to the improper disclosure of plaintiff's confidential personnel information to The New Yorker journalist.

DOD subsequently conceded liability for the particular disclosure to The New Yorker journalist as a violation of the anti-disclosure provision of the Privacy Act, 5 U.S.C. § 552a(b). See DOD's Mem. in Support of Mot. to Dismiss of February 1, 2002, ¶ 1. After DOD made this concession, a dispute arose between the parties as to whether plaintiff's claims against DOD pursuant to the Privacy Act were broader than this one violation. Defendant maintained that their concession resolved any remaining issue of liability and the Court should proceed to a hearing on damages. Plaintiff contended that she had raised other Privacy Act claims in her original Complaint and First Amended Complaint beyond those arising out of the disclosure to the New Yorker. At a hearing before the Court held on January 10, 2002, it became clear to the Court that this dispute over the scope of the First Amended Complaint and DOD's concession of liability must be resolved in order to determine the scope of discovery in this case. The Court granted plaintiff permission to file a Second Amended Complaint to allege all her claims with detailed particularity.

Plaintiff filed a Second Amended Complaint on January 18, 2002. In that Second Amended Complaint, plaintiff repeated all of her earlier claims under the Privacy Act, and added a claim under 5 U.S.C. § 552a(c), alleging that DOD failed to make the required accounting for disclosures of the Privacy Act protected information. In addition, plaintiff detailed the following factual allegations that were not mentioned in either of her previous two complaints:

1. DOD improperly disclosed, between January 1998 and March 15, 1998, to journalists and/or other "third persons," that plaintiff had applied, and been placed on a "certified list" of eligible finalists, for a position as a government liaison to the 2002 Winter Olympic Games in Salt Lake City. This information was later reported by The New York Post on February 22, 1998, and in The New York Times on March 15, 1998. See Plaintiff's Second Amended Complaint ¶¶ 30-36.

2. Deputy Assistant Secretary of Defense Clifford Bernath improperly disclosed, on or about March 13, 1998, information contained on Plaintiff's Department of Defense Form 398 "Personal Security Questionnaires" [hereinafter DD Form 398] to Mr. Aaron Retica, a fact- checker employed by The New Yorker, pursuant to the aforementioned article written by Ms. Jane Mayer. See Plaintiff's Second Amended Complaint ¶¶ 53 and ¶¶ 40- 57.

3. DOD improperly disclosed, on or about March 13 or 14, 1998, plaintiff's confidential personnel information to Elaine Sciolino, a journalist for The New York Times. These improper disclosures allegedly included information contained on Plaintiff's DD Form 398 and the fact that an DOD had commenced an official investigation of plaintiff. See Plaintiff's Second Amended Complaint ¶ 62.

4. During a March 15, 1998 appearance on CNN's Late Edition with Wolf Blitzer, former Secretary of Defense William Cohen allegedly made "additional, unauthorized disclosures of" information protected by the Privacy Act, "including disclosures pertaining to an investigation of the Plaintiff for being untruthful." See Plaintiff's Second Amended Complaint ¶ 63.

5. DOD made several improper disclosures over the weekend of March 14-15, 1998, including disclosures made by an employee of the DOD Office of Public Affairs, Lt. Comdr. James Graybeal to the Associated Press and The Washington Post concerning information contained on Plaintiff's DD Form 398, and other disclosures that the plaintiff was under investigation and could be subject to serious consequences for lying on her security clearance form. See Plaintiff's Second Amended Complaint ¶ 63.

6. DOD improperly included in documents created by DOD spokespersons the manner in which plaintiff exercised her First Amendment rights as a witness in separate court cases and proceedings before the Office of the Independent Counsel. See Plaintiff's Second Amended Complaint ¶ 66.

7. Pentagon spokesperson Dick Bridges improperly disclosed confidential information about plaintiff and the existence of a DOD investigation of plaintiff during several press briefings from March 16 to March 20, 1998. See Plaintiff's Second Amended Complaint ¶ 68.

8. Former Secretary Cohen improperly disclosed confidential information from Plaintiff's DD Form 398 on or about March 17, 1998 at a press briefing. See Plaintiff's Second Amended Complaint ¶ 70.

9. Pentagon spokesperson Tom Surface improperly disclosed confidential information about plaintiff and/or the existence of a DOD investigation of plaintiff by on or about March 18, 1998. See Plaintiff's Second Amended Complaint ¶ 71.

10. DOD willfully and intentionally disclosed information contained in plaintiff's confidential records to unspecified third parties between January 1998 and January 2000. See ...


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