The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
This matter is before the Court on defendant's motion for summary
judgment and plaintiff's motion for leave to conduct discovery. In this
action, plaintiff claims that defendant, the Department of the Navy,
violated the Privacy Act, 5 U.S.C. § 552a, when the Navy released
information about plaintiff, Commander Daniel W. Chang, to the media and
to individual members of Congress. Upon consideration of the parties'
arguments and the entire record, the Court grants defendant's motion for
summary judgment and denies plaintiff's motion for leave to conduct
On October 22, 1998, Commander Daniel W. Chang assumed command of the
USS Arthur W. Radford. See Compl. ¶ 9; Defendant Dept. of Navy's
Statement of Material Facts Not in Dispute ("Def.'s SMF") ¶ 2. On
February 4, 1999, plaintiff's vessel was involved in a maritime collision
with the M/V Saudi Riyadh. See Compl. ¶ 18; Def.'s SMF ¶ 3. Although remaining on active duty, Commander Chang was relieved of his command of
the Radford and was charged with negligent dereliction of duty under
Article 92 of the Uniform Code of Military Justice ("UCMJ"). See Compl.
¶¶ 20-23; Def.'s SMF ¶¶ 7-8. The Commander, Naval Surface Forces, U.S.
Atlantic Fleet offered plaintiff the opportunity either to have the
charges adjudicated administratively by way of a non-judicial punishment
("NJP") hearing or to proceed by court-martial. See Compl. ¶ 22.
Plaintiff opted for a NJP hearing, after which plaintiff received a
punitive letter of reprimand. See Compl. ¶¶ 22-25; Def.'s SMF ¶¶ 8-9.
Commander Chang contends that the Navy subsequently violated his rights
under the Privacy Act, 5 U.S.C. § 552a, by disclosing details of the NJP
hearing and the punitive letter of reprimand (1) to the media in the form
of a press release ("Press Release") and query responses ("Query
Responses") prepared to answer press inquiries, and (2) to members of
Congress in the form of an information paper ("Information Paper"). See
Compl. ¶¶ 38-50.*fn1 Specifically, plaintiff alleges that officers in the
Department of the Navy willfully and intentionally improperly released
the results of his NJP hearing to the press through press releases and
telephone briefings, and that he did not consent to this release of
information. See id. ¶¶ 26-27. Plaintiff further alleges that the
Department of the Navy willfully, intentionally and improperly disclosed
information regarding the NJP hearing in the Information Paper, which was
released to members of Congress acting in their individual capacities
rather than in their official capacities as committee members. See id. ¶¶
29-31. Plaintiff seeks an award of damages in excess of $2,350,000 for actual damages (loss of income and attorneys'
fees to develop a media plan) and non-pecuniary injury and damages
(damage to reputation, mental distress, loss of employment opportunities
outside the Navy, embarrassment and severe emotional trauma). See id. at
On July 28, 2000, the Department of the Navy filed a Rule 12(b)(6)
motion to dismiss for failure to state a claim or, in the alternative, a
motion for summary judgment. Defendant argued that plaintiff has not
asserted a cognizable claim under the Privacy Act because the documents
objected to the Press Release, the Query Responses and the Information
are not maintained in a "system of records" as required by the
Privacy Act. See Defendant Department of the Navy's Motion to Dismiss
or, In the Alternative, Motion for Summary Judgment at 10. Defendant
further argued that plaintiff seeks damages that are not compensable
under the Act. See id. at 12. Finally, defendant argued that even if the
information disclosed was protected by the Privacy Act, the disclosure
was permissible under the Act and the implementing agency regulations.
See id. at 14.
Plaintiff filed an opposition to defendant's motion. On that same day,
plaintiff also filed a Rule 56(f) motion for leave to conduct discovery,
alleging that factually inaccurate and/or misleading statements were
propounded by defendant's employees in declarations and that discovery was
necessary to obtain information known only to the defendant or third
parties. See Memorandum in Support of Plaintiff's Motion for Leave to
Conduct Discovery at 1.
On December 29, 2000, the Court denied plaintiffs motion for leave to
conduct discovery. See Chang v. Dep't of the Navy, Civil Action No.
00-0783, Order (D.D.C. Dec. 29, 2000). On May 17, 2001, the Court granted
defendant's motion to dismiss for the reasons articulated by Judge Joyce Hens Green in an analogous case. See Chang v.
Dep't of the Navy, Civil Action No. 00-0783, Memorandum Opinion at 3
(D.D.C. May 17, 2001) (citing Cummings v. Dep't of the Navy,
116 F. Supp.2d 76, 82 (D.D.C. 2000) (holding that active duty military
members are barred by Feres v. United States, 340 U.S. 135 (1950), from
filing actions against the government for Privacy Act violations that are
"incident to service")). Plaintiff appealed this Court's decision. On
July 8, 2002, the court of appeals remanded the case to this Court after
reversing Judge Green's decision in Cummings. See Chang v. Dep't of the
Navy, No. 01-5240, Order (D.C. Cir. Jul. 8, 2002) (citing Cummings v.
Dep't of the Navy, 279 F.3d 1051 (D.C. Cir. 2002)).
Defendant filed a renewed motion for summary judgment on November 22,
2002, again arguing that plaintiff cannot make out a prima facie case
under the Privacy Act and cannot demonstrate any actual damages as a
result of the offending disclosures. See Memorandum in Support of
Defendant's Renewed Motion for Summary Judgment ("Def.'s Mem."). On
January 3, 2003, plaintiff filed an opposition to defendant's motion,
asserting that portions of his Official Military Personnel File were
intentionally and willfully released without his consent and that he has
suffered compensable damages. See Plaintiff's Opposition to Defendant,
The Department of the Navy's Renewed Motion for Summary Judgment ("Pl.'s
Opp.") at 1. Plaintiff also filed a second Rule 56(f) motion for leave to
conduct discovery. The Court denied that motion by Order of September
30, 2003. II. DISCUSSION
A. Standard of Review for Summary Judgment
Summary judgment shall be granted if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the
affidavits or declarations, if any, demonstrate that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See FED. R. Civ. P. 56(c). Material facts
are those that "might affect the outcome of the suit under the governing
law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When considering a summary judgment motion, "the evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor." Id. at 255; see also Washington Post Co. v. United
States Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir.
The non-moving party's opposition, however, must consist of more than
mere unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. See FED. R. Civ. P.
56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving
party is "required to provide evidence that would permit a reasonable jury
to find" in her favor. Laningham v. United States Navy, 813 F.2d 1236,
1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable"
or "not significantly probative," summary judgment may be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. To defeat summary
judgment, a plaintiff must have more than "a scintilla of evidence to
support his claims." Freedman v. MCI Telecommunications Corp.,
255 F.3d 840, 845 (D.C. Cir. 2001); see also Ben-Kotel v. Howard
University, 319 F.3d 532, 536 (D.C. Cir. 2003). B. Privacy Act Overview
The Privacy Act "safeguards the public from unwarranted collection,
maintenance, use and dissemination of personal information contained in
agency records . . . by allowing an individual to participate in ensuring
that his records are accurate and properly used." Bartel v. Federal
Aviation Administration, 725 F.2d 1403, 1407 (D.C. Cir. 1984). To
that end, the Privacy Act prohibits disclosure of any individual's
"record" that is contained in a "system of records" to another person
without the individual's consent, subject to certain exceptions.
See 5 U.S.C.
§ 552a(b). Section 552a(b) of the Privacy Act delineates permissible
nonconsensual disclosures, which include disclosures required under the
Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552, and disclosures made to either house of Congress, or its
committees or subcommittees, for matters within those committees'
jurisdiction. See 5 U.S.C. § 552a(b)(2), (b)(9). If an agency improperly
discloses Privacy Act protected information in such a way as to have an
"adverse effect" on an ...