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Krieger v. United States Dep't of Justice

January 7, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This case represents a decades-long dispute between Roy W. Krieger ("Krieger"), an attorney formerly employed by the Department of Justice ("DOJ"), and his former DOJ supervisors Kathlynn G. Fadely ("Fadely") and Gary W. Allen ("Allen"). Currently before the Court are Defendants' [83] Motion for Summary Judgment as to Plaintiff's Privacy Act claim (Count VII), Defendants' [96] Motion to Dismiss or, in the alternative, Motion for Summary Judgment as to Plaintiff's constitutional tort claim (Count VII), and Plaintiff's [72] Motion for Leave to Amend his Complaint to assert a claim under the Federal Torts Claims Act (Count IX). The Court has previously dismissed all other claims brought by Krieger. See [126] Mem. Op. and Order dated March 8, 2005. After a thorough review of the Parties' submissions and exhibits attached thereto, as well as consideration of all applicable case law and statutory authority, the Court shall GRANT IN PART Defendants' [83] Motion for Summary Judgment, holding the Motion in abeyance with respect to the claim brought under section 552a(e)(7) of the Privacy Act pending further briefing from the Parties, GRANT Defendants' [96] Motion to Dismiss, or in the alternative, Motion for Summary Judgment, and DENY Plaintiff's [72] Motion for Leave to Amend his Complaint, for the reasons that follow.


A. Factual Background

Krieger was employed as a trial attorney in the Aviation Section of the DOJ from November 1984 to March 1989.*fn1 See [86] Pl.'s Stmt. ¶ 1. In 1986, Krieger was assigned to a case involving the crash of Delta flight 191 (hereinafter, "Delta litigation"), eventually working under the supervision of Defendant Fadely. Id. ¶¶ 2, 7. As part of the litigation, Krieger was given primary responsibility for the development of a computer graphic reconstruction of the accident (hereinafter, "Delta video") that was later used as evidence during the Delta trial. Id. ¶ 8. Krieger and Fadely's working relationship was apparently quite strained. Id. ¶ 7. In December 1988, prior to the conclusion of the Delta litigation, Krieger informed Fadely and her supervisor, Defendant Allen, that he was leaving the DOJ to accept employment at a Washington D.C. law firm. Id. ¶¶ 9-12. The use of the Delta video and its related technology became an immediate and sustained point of contention between Krieger and his former supervisors Fadely and Allen.

The DOJ contracted with Z-Axis Corporation ("Z-Axis") to produce the Delta video, expending approximately $200,000 for its development. See [96] Pl.'s Stmt. ¶ 3. Although it was presented at the Delta trial in a video tape format, Z-Axis also produced the Delta video on laser discs, which required some additional programming to operate correctly.*fn2 Id. ¶ 3; [96] Defs' Stmt. ¶ 4. Shortly before his departure, Krieger wrote a memorandum to Allen wherein he asked to keep a copy of the Delta video on a laser disc. See [96] Defs.' Stmt. ¶ 5. Allen denied his request and indicated that the Delta video laser discs "were not generated for [his] personal use, nor [could he] accept them gratis from a government contractor." Id. On March 30, 1989, Krieger reasserted his request and indicated that he would obtain the Delta video laser disc from Z-Axis "without the consent of the Department." Id. On June 14, 1989, Allen advised Krieger by letter that he had no authority to release anything other than a video tape version of the Delta video. Id. ¶ 6. Two weeks later, Krieger submitted a Freedom of Information Act claim to obtain a copy of the Delta video on laser disc. Id. ¶ 7.

Allen communicated with Al Treibitz ("Treibitz"), President of Z-Axis, on January 22, 1990, concerning Krieger's request for a laser disc copy of the Delta video. Id. ¶ 8. Allen described the conversation in a subsequent email:

I've talked to [Treibitz] and after some discussions have concluded that I cannot instruct him not to make a video disc from a public-domain DL videotape if Al wants to do it. He [says] that the control program necessary to run the disc is a simple, non-proprietary one . . . . He claimed such programs are [] Basic programs which are easily obtainable on the open market. I told him that while I didn't like this, I could not think of a way to stop what [Krieger] was proposing to do so long as it was essentially the same as Fred Schmuck walking in with a FOIA-obtained videotape from the disc and saying, '[m]ake me a demo disc.' Treibitz claimed that's all it would be.

Defs.' Mot. to Dismiss or for Summ. J. Ex. B at 9 (Email from Allen to unknown recipient dated Jan. 22, 1990). That same day, Allen wrote to Krieger indicating that he was free to "create a laser disc for [his] own use, utilizing existing, publicly-available videotapes to be copied at your expense onto a disc," and that as long as Krieger did not use "any operating program to run the disc that was written for the original Delta disc(s)," Allen had no objection to Krieger's use of a laser disc version of the Delta video. [96] Defs' Stmt. ¶ 9.

Krieger was scheduled to appear as keynote speaker at the Aviation Insurance Association Biannual Reception in February 1990, where he planned to use the Delta video laser disc. See [96] Pl.'s Stmt. ¶ 8. Although Krieger had previously arranged to have Treibitz join him as a co-speaker, Treibitz later withdrew as a co-presenter and attended the reception as an observer only. Id. According to Krieger, Allen coerced Treibitz into withdrawing as a co-speaker. See Pl.'s Opp'n to Defs' Mot. to Dismiss or Mot. for Summ. J. at 19-23. It appears from the record that Krieger gave the keynote address as planned (and used the laser disc) despite Treibitz's absence. See [96] Pl.'s Stmt. ¶ 13.

In mid-1990, Krieger applied for positions at the Federal Programs Branch and the offices of the United States Attorney in Washington D.C. and Minneapolis, Minnesota. See [83] Pl.'s Stmt. ¶ 40. Krieger's applications were rejected. Id. ¶ 41. During discovery in the instant case, Krieger discovered that his DOJ performance evaluations (called "PARs") were missing from his official personnel file (called an "OPF"). Id. ¶ 42. Krieger surmises that the PARs must have been missing when he applied for these jobs, and that his applications must have been rejected because of the missing evaluations. Krieger attributes the loss of his PARs to Defendants. See Pl.'s Opp'n to Defs' Mot. for Summ. J. at 23-27.

In addition to the issues concerning the Delta video and Krieger's missing PARs, Krieger also alleges that Fadely improperly disclosed information about his DOJ employment to others, or otherwise disparaged him after he left the DOJ. Id. at 9-23. On September 1, 1989, the DOJ issued a Press Release that acknowledged the contributions of the attorneys who had worked on the Delta litigation, including Krieger, who was described as "formerly of the Justice Department" and "of counsel for the government for a portion of the proceedings." Defs' Mot. for Summ. J. Ex. B at 1-2 (DOJ Press Release). Fadely had a role in drafting this Press Release, which according to Krieger, improperly disclosed that Krieger had participated in the Delta litigation and left the DOJ, and improperly referred to his title as "of counsel" when it should have been "trial attorney." Id.; Pl.'s Opp'n to Defs' Mot. for Summ. J. at 10. In late 1989 and early 1990, Fadely wrote to the Editors of the ABA Journal and Business Insurance to clarify information contained in their respective articles about the Delta litigation. See Def.'s Mot. for Summ. J. Ex. C, D (Fadely's Letters). According to Krieger, these letters improperly disclosed that he had participated in the Delta litigation and subsequently left his position with the DOJ. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 12-13. In 1991, Krieger accepted a position with the Chicago-based law firm Adler, Kaplan & Begy ("AKB"). Second Am. Compl. ¶ 39. In mid-1991, Fadely called John Adler ("Adler"), a senior partner of AKB, and stated that she was "surprise[d] and disappoint[ed]" that AKB hired Krieger because "[s]he didn't have very high regard for . . . [Krieger's] efforts in connection with cases that she had worked on." She also indicated that Krieger's role in the Delta litigation was "limited," and he was primarily involved with the development of a "computer study for use as a trial exhibit" in that case. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. Ex. 1 (Tr. Hearing dated July 9, 1997, Krieger v. Adler, Kaplan & Begy (N.D. Ill.)). AKB terminated Krieger and, in subsequent litigation between Krieger and AKB, Adler allegedly indicated that Fadely's statements were a motivating factor in his decision to discharge Krieger. Id.

B. Procedural Background

Krieger filed a nine-count Complaint on July 8, 1998, against Fadely, the DOJ, and the United States. Counts I through VI raised common law tort claims; Count VII raised a constitutional tort claim; Count VIII asserted a violation of Krieger's rights under the Privacy Act; and Count IX asserted that the United States had acted in a negligent manner in violation of the Federal Tort Claims Act ("FTCA").

The Attorney General certified that Fadely had acted within the scope of her employment with respect to Counts I through VI, and moved to substitute the United States for Fadely as a defendant. See 28 U.S.C. § 2679(d)(1). On October 7, 1998, the Court issued an order directing the substitution. Defendants subsequently filed a Motion to Dismiss all of Krieger's claims, which the Court granted on August 9, 1999, resulting in the dismissal of Krieger's lawsuit in its entirety.

Krieger appealed the Court's decision to the United States Court of Appeals for the District of Columbia Circuit. On May 5, 2000, the D.C. Circuit issued an opinion affirming the dismissal of eight of the counts, but reversing with respect to Count VIII, the claim arising under the Privacy Act. See Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000). That single claim was reinstated and the matter was referred back to this Court for resolution. Id. With respect to the common law tort claims against Fadely, the Court of Appeals held that, although Plaintiff should have had the opportunity to challenge the substitution of the United States for Fadely, Plaintiff had waived his opportunity by failing to raise any objection to Fadely's certification prior to the dismissal of his suit. Id. at 135.

On July 7, 2000, this Court issued a scheduling order which required Defendants to file an answer to the reinstated portion of Plaintiff's complaint no later than July 21, 2000. That same Order initiated the discovery period in the case. Id. Just four days later, however, Krieger filed a nine-count Amended Complaint that was almost identical to the original. See [27] Am. Compl. While some of the factual allegations were different, the Amended Complaint raised the same six common-law and constitutional tort claims against Fadely. See id. ¶¶ 44-91.

On November 17, 2000, this Court denied Krieger's Motion to Amend. The Court held that Krieger's renewed tort claims were barred because the District Court had already considered the question of whether the United States could properly be substituted for Fadely, and the Circuit Court had affirmed its decision. See Krieger, 211 F.3d at 136. The Court also denied Plaintiff's attempt to amend his FTCA claim (Count IX) against the United States, and dismissed his Motion for Reconsideration of the Court's dismissal of his constitutional tort claim (Count VII). The Court did, however, permit Krieger to amend his Privacy Act claim (Count VIII). At that point, Krieger's Privacy Act claim against Fadely was the only surviving claim.

Krieger filed another Motion to Amend his Complaint the following March, this time to allegedly conform his Complaint to the information produced during discovery (although the Second Amended Complaint relies on largely the same factual predicates for each of the legal claims). See [72] Mot. to Am. Compl. & Ex. 1 (Second Am. Compl.). With this Second Amended Complaint, Krieger sought to add Allen as a Defendant in Counts II, V, and VII, and also sought to amend both his Privacy Act (Count VIII) and FTCA (Count IX) claims. Defendants did not object to allowing Krieger to amend his Privacy Act claims, but did object to the other proposed amendments. See [74] Defs.' Resp. to Pl.'s Mot. to Amend. On March 30, 2002, the Court held that it would dismiss Counts II and V if Allen received certification from the Attorney General that he had acted within the scope of his employment. See [92] Mem. Op. and Order dated March 30, 2002 at 9. The Court further held that Krieger could not add a First Amendment claim against Fadely, but that Plaintiff could Amend his Complaint to assert the claim against Allen (Count VII). Id. Finally, the Court declined to rule on the Krieger's FTCA claim (Count IX) until after the Attorney General's certification decision. Id. On July 1, 2002, Defendants notified the Court that Allen had received certification, see [95] Def.'s Resp. to Court's Order, and consistent with the Court's March 30, 2002 Order, Counts II and V were dismissed.

On October 7, 2002, Krieger filed a Motion asking the Court to reconsider its March 30, 2002 Order in two respects. See [106] Pl.'s Mot. to Reconsider. Krieger sought permission to amend Counts II and V, and to challenge the Attorney General's certification of Allen. The Court ruled that Krieger could challenge Allen's certification, and if certification were ultimately deemed proper, Krieger would not be permitted to amend Counts II and V. See [112] Order dated Mar. 31, 2004. On April 15, 2004, Krieger filed a Motion, opposed by Defendants, asking the Court to allow additional discovery with respect to the certification. See Pl.'s [114] Mot. to Stay Briefing Schedule; Defs' [115] Opp'n. to Pl.'s Mot. to Stay Briefing Schedule. On May 13, 2004, the Court amended the briefing schedule to allow Plaintiff more time to assemble his arguments against Allen's certification, but denied Plaintiff the opportunity to conduct additional discovery. See [116] Order dated May 13, 2004. In doing so, the Court found that "Plaintiff has already had ample time for discovery in this suit, and was well aware of the management hierarchy of his former employer during that discovery process." Id.

On June 24, 2004, Krieger filed a Motion to Decertify Defendant Allen, arguing that Allen was not acting within the scope of his employment when he worked on the DOJ Press Release described above and when he communicated with Treibitz in 1990 regarding Krieger's request for a Delta video laser disc. See Pl.'s [118] Mot. to Decertify. The Court denied Krieger's Motion on March 8, 2005, finding that his position was "untenable," and that "[i]n light of the fact that Allen had 'national supervisory authority over all aviation and admiralty related FTCA litigation, Allen's work on an agency press release addressing a judicial determination that the United States was not liable for a plane crash clearly meets the relevant criteria." [126] Mem. Op. at 12 (citation omitted). The Court further found that there was no "evidence in Plaintiff's factual assertions that would indicate that any actions undertaken by Defendant Allen with respect to the use of a computer animation, paid for and developed in the course of government litigation for which Allen was responsible, would fall outside of the scope of Allen's employment." Id. at 13. The Court also noted that, following this ruling, there remained just three outstanding issues in the case -- the three Motions addressed in the instant Order and accompanying Memorandum Opinion. Id. at 14 n.3.


A. Motion to Dismiss

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), a court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). While a court must construe the Complaint in the plaintiff's favor, it "need not accept inferences drawn by the plaintiff[] if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Comm'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994).

B. Summary Judgment

A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, the moving party "bears the initial responsibility of 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." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the opposing party must "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials of the adverse party's pleading are not enough to prevent the issuance of summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original).

C. Motion for Leave to Amend Complaint

Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter of course at any time before a responsive pleading is served. See Fed. R. Civ. P. 15(a). Additionally, Rule 15(a) allows a party to amend its pleading to add a new party. Id.; Wiggins v. Dist. Cablevision, Inc., 853 F. Supp. 484, 499 (D.D.C. 1994). Once a responsive pleading is served, however, a party may amend its complaint only by leave of the court or by written consent of the adverse party. Id.; Foman v. Davis, 371 U.S. 178, 182 (1962). The grant or denial of leave to amend is committed to the sound discretion of the district court. See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). The court must, however, heed Rule 15's mandate that leave is to be "freely given when justice so requires." Id.; Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1083 (D.C. Cir. 1998). Indeed, "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman, 371 U.S. at 182.

Accordingly, "[a]lthough the grant or denial of leave to amend is committed to a district court's discretion, it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as 'undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by [previous] amendments . . . [or] futility of amendment.'" Firestone, 76 F.3d at 1208 (quoting Foman, 371 U.S. at 182); see also Caribbean Broad. Sys., 148 F.3d at 1084 (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (holding that a district court's discretion to grant leave to amend is "severely restricted" by Rule 15's command that such leave "be freely given"). Moreover, "'Rule 15(a) does not prescribe any time limit within which a party may apply to the court for leave to amend . . . . In most cases[,] delay alone is not a sufficient reason for denying leave . . . . If no prejudice [to the non-moving party] is found, the amendment will be allowed.'" Caribbean Broad. Sys., 148 F.3d at 1084 (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 2d § 1488, at 652, 659, 662-69 (1990 & Supp. 1997)). However, the Court may deny as futile a motion to amend a complaint when the proposed complaint would not survive a motion to dismiss. James Madison, Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996); see also 3 Moore's Federal Practice § 15.15[3] (3d ed. 2000) ("An amendment is futile if it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.").


A. Privacy Act Claim (Count VIII)

The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of an individual's personal information by agencies located within the federal government. See 5 U.S.C. § 552a(e). The Act "gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements." Doe v. Chao, 540 U.S. 614, 618 (2004). A plaintiff in an action under the Privacy Act bears the burden of proof for each element of his claim. See Mervin v. FTC, 591 F.2d 821, 827 ...

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