The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Sheila Cloonan, an employee of the United States Marshals Service, brings this action against Eric H. Holder, Jr.,*fn1 Attorney General of the United States; John F. Clark, Director of the United States Marshals Service ("USMS"); David Barnes, a supervisor with the USMS (collectively, the "federal defendants"), and Paul T. Stein, Barnes's former attorney. Cloonan brings defamation claims against Stein and Barnes in their personal capacities, and a claim against Barnes, in his official capacity, alleging that he violated the Privacy Act, 5 U.S.C. § 552a.
Before the court is Stein's motion to dismiss [#11] and the federal defendants' motion to dismiss and for summary judgment [#12]. Upon consideration of the motions, the opposition thereto, the argument of counsel at a hearing, and the record of this case, the court concludes that Stein's motion to dismiss should be denied, the federal defendants' motion to dismiss Cloonan's defamation claim should be granted, and the federal defendants' motion for summary judgment on Cloonan's Privacy Act claim should be denied without prejudice.
Cloonan is a "long time employee" of the United States Marshals Service ("USMS"), stationed in Georgia, where she resides. Compl. ¶¶ 7, 17.*fn2 Barnes is one of Cloonan's supervisors at the USMS and works in Virginia. Federal Defs.' Mot. to Dismiss and Summ. J. [#12] at 14. Since 2006, Cloonan has filed several complaints "about the conduct and practices used by Mr. Barnes," ¶ 1, including an unsafe work environment due to Barnes' misapplication of funds, ¶ 22, and sex and age discrimination, ¶¶ 24, 27. On August 3, 2007, Cloonan filed an administrative appeal against the USMS*fn3 before the Merit Systems Protection Board ("MSPB") regarding her involuntary transfer and downgrade in June 2007, and named Barnes as a "possible witness" to that action. ¶ 28.
Cloonan's claims in this case arise from a letter authored by Barnes' attorney, Paul Stein, on October 22, 2007. ¶¶ 32-37, Exh. 1 (Stein letter dated October 22, 2007) ("Letter"). The Letter, which Cloonan alleges is defamatory, was addressedto Joseph M. Band, Senior Counsel in the Office of General Counsel of the USMS, and copied to:
Scott Bloch, Director of the United States Office of Special Counsel; Mr. Kevin Byrnes, Cloonan's attorney; John F. Clark, Director of the USMS; Anthony W. Cummings, Merit Systems Protection Board Administrative Judge; JoAnn Grady, of the USMS Equal Opportunity Office, and Jacob A. Stein, Barnes' attorney.
¶ 32, Exh. 1. In addition to her claim that the Letter is defamatory, Cloonan alleges that it violated the Privacy Act because it contained information Barnes had collected from her "employment record," ¶ 36, and Equal Employment Opportunity ("EEO") complaint records, ¶ 27.
Stein moves to dismiss Cloonan's defamation claim against him on the grounds that the Letter is protected by an absolute privilege, or alternatively, a qualified privilege. The federal defendants move to dismiss Cloonan's defamation claim contending that, because Barnes was acting in the scope of his employment with the federal government when the allegedly defamatory statements attributed to him were made, the United States must be substituted as the sole defendant and the claim deemed an action brought under the Federal Tort Claims Act ("FTCA"). So construed, the federal defendants argue, the defamation act must be dismissed because the United States is immune from FTCA suits for defamation. Finally, the federal defendants move for summary judgment on Cloonan's Privacy Act claim, because Barnes did not obtain the information in the Letter from Cloonan's records. Each of these arguments will be addressed in turn.
A. Stein's Motion to Dismiss Defamation Claim
Stein, who formerly served as counsel to Barnes, contends that the court should dismiss Cloonan's defamation claim against him on the grounds that the Letter is absolutely privileged. He claims the Letter is protected by the judicial proceedings privilege because it was sent to individuals involved in quasi-judicial proceedings filed by Cloonan in which Barnes "was identified as a witness and/or a party." Memo. in Support of Stein's Mot. Dismiss [#11] at 6 ("Stein's Mot. Dismiss"). Alternatively, Stein argues that the Letter is protected by a qualified privilege because he sent it to parties with a corresponding interest.
The judicial proceedings privilege Stein invokes "is well-settled in District of Columbia law."*fn4 Messina v. Krakower, 439 F.3d 755, 760 (D.C. Cir. 2006). The District of Columbia has adopted the articulation of the privilege as set forth in the Restatement (Second) or Torts:
An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.
Id. (quoting Restatement (Second) of Torts 586); see also Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 338 (D.C. 2001). Thus, for the privilege to apply, "(1) the statement must have been made in the course of, or preliminary to a judicial proceeding; and (2) the statement must be related in some way to the underlying proceeding."Messina, 439 F.3d at 760 (quoting Arneja v. Gildar, 541 A.2d 621 (D.C. 1988)).*fn5 Accordingly, the privilege does not apply "under circumstances where the defamatory statements, though ostensibly in the course of pertinent investigation or preparation, were published to persons not having an interest or connection to the litigation, or where the defamatory statements did not have a sufficient relation to the subject matter of the litigation." Finkelstein, 774 A.2d at 342 (internal quotation omitted).*fn6 If the privilege does apply, it is absolute, protecting the ...