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CHANG v. DEPARTMENT OF THE NAVY

April 22, 2004.

COMMANDER DANIEL W. CHANG, UNITED STATES NAVY, Plaintiff,
v.
DEPARTMENT OF THE NAVY, et al., Defendants



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

OPINION

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 discovery.

I. BACKGROUND

  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 14.

  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 Paper

  — 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. 1989).

  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 ...


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