The opinion of the court was delivered by: James Robertson United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
William Armstrong is a former special agent for the Treasury Inspector General for Tax Administration (TIGTA). After a troubled period of his employment there, he applied for a new position in the Department of Agriculture. That application was torpedoed by anonymous letters that revealed to USDA that Armstrong had been under investigation within TIGTA. Armstrong sued the Secretary of the Treasury, his former supervisor Rodney Davis, and unnamed TIGTA employees, alleging that the letters and their revelations violated his rights under the Privacy Act, 5 U.S.C. § 522(a), and asserting various common law torts. These allegations were tried to the Court in two phases, on August 26, 2008, and on December 4, 2008. In that bench trial, Armstrong failed to establish that the information contained in the anonymous letters had been retrieved from a record held in a system of records - the necessary predicate of his Privacy Act claim. None of Armstrong's tort claims against Treasury or persons in their capacity as Treasury employees is cognizable under the Federal Tort Claims act. Judgment will accordingly be entered in favor of the defendants.
In October 2006, when Armstrong was still employed at TIGTA, someone sent an anonymous letter to the Inspector General's Office accusing him of unlawfully accessing various records and computer databases. Dkt. #31-5. That accusation triggered an internal TIGTA investigation, led by Rodney Davis.*fn1
Dkt. #34-2 (16:3-24); Pl. Aff. ¶23. Armstrong's badge and credentials were taken, his use of a government-owned car was revoked, Pl. Aff ¶25, he was escorted from the building, Dec. Tr. (34:9-13), and he was temporarily reassigned to the Technical Services and Firearms Division, Pl. Aff at ¶25.*fn2
Armstrong was not officially told of the reason for the investigation at first, but within the month a friend unaffiliated with the investigation advised him that it was for unauthorized access. Pl. Aff. ¶28. The record suggests that this information had become part of the gossip mill within TIGTA. Pl. Depo. 16:5-12; 19:16-24, 21:4-8; 22:12-23:23.*fn3
On February 7, 2007, the U.S. Attorney's Office declined to prosecute Armstrong, Pl. MJ at 9, but TIGTA continued its investigation. A few days later, Armstrong was interviewed by investigators and admitted to accessing the databases. Pl. Aff. ¶32. TIGTA did not immediately act on his admission because its investigation of the plaintiff was "lumped" together with other investigations. Pl. Aff ¶40. In March 2007, the plaintiff began looking for another job, id. at ¶33, and on August 15, 2007, he was offered employment within USDA, id. ¶41. His new job was scheduled to begin on September 2, 2007. Id.
From around August 23 to August 27, 2007, six anonymous letters were sent to various individuals at USDA, all of them disclosing information about TIGTA's investigation of Armstrong. Compl. Exs. 1-6. After receiving them, USDA apparently "stayed," and thus effectively terminated, the employment offer it had made to Armstrong. Pl. MJ p. 13. On September 4, 2007 a TIGTA official informed Armstrong that a proposed recommendation had been made regarding the internal investigation. Pl. Aff. ¶49.
The plaintiff agreed to a thirty day suspension and ultimately resigned from the agency. Id.
Armstrong then filed this action. His theory, until the first day of trial, was that a person or persons who had been involved in TIGTA's internal investigation must have written and sent the anonymous letters that unraveled his new job at USDA, and that, perforce, or perhaps res ipsa loquitur, the information must have come from a system of records within TIGTA. See, Compl. counts I-VI. It was revealed on the very eve of the trial, however, and confirmed by the perpetrator herself, who was called as the first witness at trial, that the sender of all the anonymous letters -- the first, accusatory letter to the TIGTA Inspector General and the six letters sent to hiring officials at USDA - was in fact Armstrong's fellow TIGTA investigator Karen Thompson. Aug. Tr. (20:6-7; 22:11-22). On the witness stand, Thompson categorically denied accessing any records and explained that she assembled the information in the letters from observation and surmise. Dec. Tr. (117:20:-25). I found her testimony to be generally "evasive, dissembling, and not credible," Aug. Tr. 120:4-8, suspended the trial, and allowed the plaintiff limited discovery to explore this new lead.
After three months, however, Armstrong had found no evidence that Thompson obtained her information from protected records. When the trial re-commenced, on December 4, 2008, he adduced the testimony of several subpoenaed witnesses, all TIGTA investigators, including Davis, Kelly Sopko, Davis' supervisor Michael Delgado, and Thompson's husband (and TIGTA agent) David Sutkus. Sutkus and Sopko, neither of whom were affiliated with the investigation of Armstrong, denied having accessed the files of TIGTA's internal investigation. Davis and Delgado denied divulging information about the investigation to Thompson or unauthorized third parties. The evidence also established that, because Armstrong was a supervisor, the records of his investigation, in order to protect them from unauthorized access, were not logged into the agency's database. Dec. Tr. (91:15-92:3). Thus, there was no trail or record of who, if anyone, may have accessed them.
Counts 1-6 of Armstrong's complaint deal with the six letters sent to USDA, alleging that each of them was a violation of § 552a of the Privacy Act.*fn4 Count 7 is a claim of libel, against Davis. Counts 8-12 allege that TIGTA is responsible under the Federal Tort Claims Act for the acts of its employees for intentional infliction of emotional distress, negligent infliction of emotional distress, ...