The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge
MEMORANDUM OPINION AND ORDER
Presently pending in the above-captioned case is defendant's May 6, 2002 motion for reconsideration of this Court's March 31, 2002 Order denying in part defendant's motion to dismiss for failure to state a claim. Upon initial review of the pleadings, the Court requested additional briefing from the parties with respect to specific questions of District of Columbia tort law raised by defendant's motion. Upon consideration of all of the parties' submissions, and for the following reasons, defendant's motion is hereby GRANTED IN PART AND DENIED IN PART.
Plaintiff commenced this action against the United States of America pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 (b), 2671-2680, alleging several common law torts arising out of an alleged invasion of her privacy by federal officials who disclosed private information to the New Yorker magazine and other news organizations. Specifically, plaintiff alleged that federal officials committed the following five torts: 1) intrusion upon seclusion; 2) publication of private facts; 3) portrayal of plaintiff in a false light; 4) appropriation of likeness; and 5) negligent disclosure of information. The March 31, 2002 Memorandum Opinion and Order defendant asks this Court to reconsider held that plaintiff had stated claims under the FTCA and D.C. law for the torts of appropriation of likeness and negligent disclosure of private information only, and dismissed the remainder of plaintiff's claims.
The circumstances surrounding this case are generally known, and are recited in detail in this Court's March 31, 2002 Memorandum Opinion and Order. Familiarity with the facts is therefore presumed, and only those relevant to plaintiff's remaining claims are outlined here.
As a condition of her federal employment, Ms. Tripp was required to fill out an application for security clearance, including a DOD Personnel Security Questionnaire and the Standard Form 171. In March of 1998, Jane Mayer, a reporter with the New Yorker magazine, spoke with Mr. Kenneth Bacon, an Assistant Secretary of Defense, and asked whether Ms. Tripp had answered "no" to the question "have you ever been arrested?" posed on her security clearance application forms. Compl. at ¶ 15. According to plaintiff, Mr. Bacon, with the assistance of Mr. Clifford Bernath, a Deputy Assistant Secretary of Defense, located a copy of Ms. Tripp's application for security clearance. Compl. at ¶ 18. On March 13, 1998 Mr. Bacon telephoned Ms. Mayer at her office, and informed her that Ms. Tripp had reported on her security clearance application form that she had not previously been arrested. Compl. at ¶¶ 21-22. Plaintiff further alleges that later the same day Mr. Bernath disclosed the same information to a fact-checker from the New Yorker named Aaron Retica. Compl. at ¶ 21. On March 13, 1998, the New Yorker published an article, stating, inter alia, that Ms. Tripp had been arrested when she was 19 for grand larceny, but had declared that she had never been arrested on her DOD application for security clearance. Compl. at ¶ 23. Finally, Ms. Tripp alleges that other DOD personnel, including Secretary of Defense William Cohen, made additional disclosures of private information to the press by suggesting on several different occasions that an investigation had been initiated into Ms. Tripp's responses on her security clearance application forms, and if Ms. Tripp was found to have completed the forms as reported, serious consequences would ensue. Compl. at ¶¶ 25-28. Plaintiff maintains that she did not, at any time, authorize anyone to release private information contained in her security clearance application forms to the public. Compl. at ¶ 29.
In its March 31, 2002 Memorandum Opinion and Order, the Court denied defendant's motion to dismiss for failure to state a claim with respect to the misappropriation of likeness and negligence claims. The Court concluded that the government had not met its burden of demonstrating, as a matter of law, why the alleged use of plaintiff's name for the political advantage of federal officials and for the benefit of their political allies, through disclosure of information in her security clearance application forms which could discredit her while she was a key witness before the Independent Counsel on the Clinton/Lewinsky matter, was insufficient to state a claim under a misappropriation of name or likeness theory. The Court also found that the government had not proven as a matter of law that plaintiff could not rely on a duty created by federal law, such as the Privacy Act, to establish her negligence claim.
The Court remains convinced that plaintiff has duly stated a claim for misappropriation of her name. However, it is now persuaded, based on the parties' submissions addressing the pending motion, that the government has now met its burden of establishing that plaintiff has failed to state a claim for negligence under the Federal Tort Claims Act ("FTCA") and the law of the District of Columbia.
II. Invasion of Privacy-Appropriation of Name or Likeness
Plaintiff contends that defendant unlawfully used her name to their benefit, thereby committing the common law tort of appropriation of likeness. Specifically, she alleges that Mr. Bacon and Mr. Bernath's statements to the New Yorker and New York Times benefitted the defendant, an agency of the Clinton Administration, by, inter alia, discrediting her and thus hampering her cooperation with the independent counsel's office and her participation in ongoing litigation relating to the Clinton/Lewinsky matter. The Complaint states, in relevant part:
46. By singling out the Plaintiff, a witness against
the White House and the President, DOD employees
appropriated the Plaintiff's name, discrediting her
and making her a scapegoat, in order to take advantage
of the value associated with Plaintiff's name as a
result of her sudden high profile status as a key
witness in investigations into White House and/or
47. DOD employees' appropriation of Plaintiff's name,
without license, for personal gain, violates the common
law of the District of Columbia and its prohibition
against appropriation of one's likeness or name.
Compl. at ¶¶ 46-47.
In its March 31, 2002 Memorandum Opinion and Order, this Court concluded that
[r]ead in the light most favorable to plaintiff, while
these pleadings are less than clear, it does appear
that plaintiff has stated a claim. Defendant has not
met its burden of demonstrating as a matter of law why
the alleged use of plaintiff's likeness for the
political advantage of federal officials is
insufficient to state a claim. Plaintiff's inartfully
drafted allegations that DOD officials used her name
for their own political benefit and for the benefit of
their political allies is therefore sufficient.
Defendant's motion to dismiss this claim must be
Tripp v. United States, Civ. A. No. 01-506, slip op. at 38 (D.D.C. March 31, 2002). The Court reached this conclusion based on the parties' minimal briefing of the law of the District of Columbia, which the Court held, in its March 31, 2002 Memorandum Opinion and Order, governs this action, contrary to defendant's assertion that choice of law principles required the application of the law of Virginia. Based on the parties' submissions addressing defendant's motion for reconsideration, which more thoroughly brief the law of the District of Columbia describing and applying the common law tort of appropriation, the Court remains persuaded that defendant has failed to meet its burden of demonstrating that plaintiff has failed to state a claim for appropriation as a matter of law.
In its submissions in support of the motion for reconsideration, defendant argues, based on its review of relevant authorities, that, in order for plaintiff to state a claim for appropriation as defined by District of Columbia courts, she must allege that defendant used her name or likeness for its "positive" effect, as would be the case if it had implied or represented that plaintiff supported a product or position in a manner that benefits defendant. Plaintiff counters that there is nothing in the cases cited that requires that a person's name have a positive value for liability to arise for appropriation. It appears that, although defendant's arguments describe the more common circumstances under which the tort of misappropriation arises, a careful reading of the language of relevant authorities suggests that a plaintiff asserting a cause of action for misappropriation of name or likeness need not allege or prove that a defendant relied on the positive aspects of plaintiff's name or reputation. Rather, the Restatement (Second) of Torts, ...