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Lee v. Geren

March 29, 2007

WILLIAM TODD LEE, PLAINTIFF,
v.
PETE GEREN*FN1 ACTING SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Colonel (ret.) William Todd Lee ("Colonel Lee") brings this action against defendant Pete Geren, Acting Secretary of the Army ("Army"), alleging that the Army has failed to maintain his records with the level of accuracy required by the Privacy Act, 5 U.S.C. § 552a (2000). He now seeks the amendment of his records and an award of damages for an adverse determination allegedly caused by the Army's reliance on those records. The Court views this lawsuit as an attempt to challenge a minor personnel action that would not otherwise be susceptible to judicial, or even administrative, review. For the reasons stated in this Memorandum Opinion, the Court grants defendant's motion to dismiss or in the alternative for summary judgment.

BACKGROUND

In December 2003, the Army instituted an investigation into allegations that plaintiff had committed misconduct during the course of his duties as a civilian Army employee. Compl. ¶ 27. In accordance with Army regulations, an investigating officer was appointed to conduct the investigation and document her findings and recommendations in a Form 1574 Report of Proceedings, otherwise referred to as a Report of Investigation ("ROI"). Id. ¶ 28. The officer investigating Colonel Lee issued an ROI on February 25, 2004, in which she found by a preponderance of the evidence that plaintiff had, among other things, falsified the resume he submitted to obtain his position as a civilian employee at the GS-15 grade level and misused his government-issued cell phone. Id. ¶ 29.

On March 16, 2004, Brigadier General James Kelley issued a notice proposing the termination of plaintiff's employment ("March 16 notice"). Id. ¶ 30. In that notice, BG Kelley cited plaintiff's resume falsification and misuse of government property as the reasons for the proposed termination. Id. ¶ 31. The notice also informed plaintiff that he had the right to file a reply and supporting evidence in his defense. AR 533. After plaintiff requested an extension of time to file his reply, BG Kelley withdrew the March 16 notice and replaced it with a second, essentially identical notice of proposed removal dated March 29, 2004 ("March 29 notice"). Compl. ¶ 32.

Plaintiff filed his administrative reply along with fifteen exhibits on April 13, 2004. Id. ¶¶ 35, 36. A week later, BG Kelley issued his decision ("notice of decision"). Id. ¶¶ 37, 38. The notice of decision stated that BG Kelley, after reviewing the facts and circumstances of plaintiff's case, including plaintiff's reply, determined that two charges of misconduct (resume falsification and misuse of government property) were supported by a preponderance of the evidence. Id. ¶ 37; AR 595. BG Kelley decided, however, that these findings did not warrant plaintiff's removal from service. Compl. ¶ 37. Instead, BG Kelley proposed a fourteen-day suspension without pay and notified plaintiff that a Standard Form 50 documenting the suspension would be filed in his personnel folder. Id. ¶ 38. A Standard Form 50 was later issued that indicates plaintiff was suspended from May 2 to May 15, 2004, and lists "[f]alsification of information in your job application and misuse of Government resources" as the "[r]eason for suspension." AR 597.

The notice of decision had also informed plaintiff that he had the right to request review of the decision under the Department of Defense Administrative Grievance System. AR 595. There is no indication that plaintiff filed such a grievance. Plaintiff did, however, institute an administrative complaint alleging that his suspension constituted age, race, sex, and disability discrimination. Pl.'s Opp'n to Def.'s Mot. to Dismiss/Mot. for Summ. J. ("Pl.'s Opp'n") at 7-8; AR 698-704. That complaint was dismissed in March 2005. Pl.'s Opp'n at 7; AR 725. Plaintiff then filed a Privacy Act amendment request with the Army on September 15, 2005. AR 728. The request asked for the following amendments to Colonel Lee's records:

1) the AR 15-6 Report of Investigation ("ROI") be amended to show that the allegations addressed here were unsubstantiated; 2) the proposed termination of COL Lee's employment, issued by MG Kelley, be amended to show that such action was not taken; 3) the notice of suspension of employment be amended to show that such action was not taken; 4) the standard Form 50 reflecting his 14-day suspension of employment and the reasons therefore be amended to show that such action did not occur; and 5) any and all other documents associated with or generated by the AR 15-6 investigation be amended to show that the allegations were unsubstantiated.

Compl. ¶ 47. Plaintiff submitted three affidavits with his amendment request that he argued demonstrated the inaccuracy of BG Kelley's finding that he had falsified his resume. Id. ¶¶ 40-43; see AR 735-38 (describing affidavits). The Army denied plaintiff's amendment request on February 14, 2006. Compl. ¶ 49.

This civil action followed. Plaintiff has renewed his amendment request in its entirety. Id. Prayer for Relief ¶ a. In addition, he requests unspecified damages and other equitable relief resulting from adverse determinations that were allegedly taken against him based on his allegedly inaccurate records. Id. ¶¶ 56-57, Prayer for Relief ¶¶ b, c. Defendant has moved to dismiss the complaint for failure to state a claim, and alternatively asks for summary judgment.

STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure will not be granted 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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley, 355 U.S. at 47). "Given the Federal Rules' simplified standard for pleading, '[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

Under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Domen v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Summary judgment is appropriate when the pleadings and the evidence 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." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

ANALYSIS

The Privacy Act "regulate[s] the collection, maintenance, use, and dissemination of information" about individuals by federal agencies. Privacy Act of 1974, Pub. L. No. 93-579, ยง 2(a)(5), 88 Stat. 1896, 1896. "The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on ...


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