This case arises from an alleged violation of the Privacy Act, 5 U.S.C. § 522a, by an official in the United States Marshals Service ("USMS"), a component of the Department of Justice ("DOJ"). The Privacy Act governs information contained in federal agencies' records by creating guidelines for the collection, maintenance and dissemination of such records. Plaintiff Sheila Cloonan, a current USMS employee, alleges that defendant David Barnes, her former supervisor, improperly disclosed information contained in USMS records to his attorney, and then sent a letter through that attorney to several federal officials repeating the disclosed information.*fn1 Ms. Cloonan maintains that this letter contains information found within her protected records, and thus that Mr. Barnes-in preparing the letter-revealed personal information without her consent in violation of the Privacy Act's disclosure provisions. 5 U.S.C. § 522a(b). Before the Court is the motion for judgment on the pleadings or summary judgment by the USMS, the DOJ, and Mr. Barnes (collectively, "defendants").
Plaintiff is an employee of the USMS, and through June 2007 she held a GS-13 position with the agency in Atlanta, Georgia. Statement of Material Facts Not in Genuine Dispute ¶ 1, attached as Ex. 5 to Motion to Dismiss and for Summary Judgment, July 2, 2008 [12-5] ("Ds.' Stmt."). The USMS, as an employer and agency subject to the Privacy Act, maintains records concerning Ms. Cloonan. See Response to Plaintiff's First Set of Interrogatories Response #5 at 12, attached as Ex. 1 to Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment, June 28, 2010 [45-1] (describing various records that contain information relating to Ms. Cloonan) ("Ds.' Inter. Resp."). From the start of Ms. Cloonan's employment until October 2006, defendant David Barnes was the Chief of the Central Courthouse Management Group of the USMS, and was stationed in Arlington, Virginia. Declaration of Dave Barnes ¶ 2, attached as Ex. 4 to Motion to Dismiss and for Summary Judgment, July 2, 2008 [12-4] ("Barnes 1st Decl."). In this capacity, Mr. Barnes was plaintiff's second-level supervisor until October 2006, id. at ¶ 4; Ds.' Inter. Resp. #1 at 4, at which time he became the Chief of the Office of Management and Administration for the Judicial Security Division of the USMS. Barnes 1st Decl. at ¶ 1.
For a number of years prior to this suit, Ms. Cloonan and Mr. Barnes were involved in several interagency complaints and proceedings, many of which involved allegations or testimony by plaintiff against Mr. Barnes. See Complaint ¶¶ 19--24, 27, Apr. 24, 2008 ; see also Answer ¶ 19, Mar. 20, 2009  (admitting "that, since 2004, Plaintiff and other U.S. Marshals Service employees have made complaints that involve allegations of wrongdoing on the part of Mr. Barnes"); Ds.' Inter. Resp. #1 at 4 (noting several "complaints that Ms. Cloonan had previously filed against [Mr. Barnes]"). For example, between 2004 and 2006, plaintiff acted as a witness against Mr. Barnes in alleging misuse of congressionally targeted funds and brought a complaint before the Occupational Safety and Health Administration alleging that Mr. Barnes' misapplication of funds had created an unsafe work environment. Complaint at ¶¶ 20-- 22; see also Oct. 22, 2007 Letter from Paul T. Stein to Joseph M. Band et al. 2, attached as Ex. 1 to Complaint, Apr. 24, 2008 [1-1] (noting that plaintiff brought complaints against Mr. Barnes before, inter alia, his supervisors and OSHA) ("Stein Letter"). A few years later, in 2007, plaintiff filed a complaint with the U.S. Office of Special Counsel in which she "alleged that Mr. Barnes had misused funds." Answer at ¶ 23. As Ms. Cloonan's supervisor and the target of many of her actions, Mr. Barnes was aware of a number of the complaints in which plaintiff was involved, and had opinions as to their merit. Ds.' Inter. Resp. #1 at 5. According to Ms. Cloonan, the contentious disputes constituted a "lengthy history of animus" between herself and Mr. Barnes. Memorandum in Opposition to Defendants' Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment 9, Sep. 2, 2010  ("P's Opp.").
In June 2007, following the numerous incidents and disputes between plaintiff and Mr. Barnes, Ms. Cloonan received a signed Memorandum titled "Offer of a Lower Graded Position in Lieu of Reduction in Force." Memorandum re: Involuntary Demotion, attached as Ex. 1 to Motion to Dismiss and for Summary Judgment, July 2, 2008 [12-1]. The Memo informed Ms. Cloonan that she was being offered a position-at a lower grade than her current position-as a Management Analyst as the USMS Training Academy in Brunswick, Georgia. Id. at 1. If Ms. Cloonan declined this offer, the Memo stated that she would be "separated through [Reduction in Force] procedures"; in other words, Ms. Cloonan would be terminated, but would be given preference if she applied for other DOJ employment in the future. Id. at 1--2. The Memo did not discuss any of Ms. Cloonan's earlier complaints at the USMS, nor did it suggest that the offer was in response to dissatisfaction with her performance. See generally id. at 1--3. Instead, the Memo stated that the proposed changes were part of "an ongoing reorganization of Judicial Security Division resources" that called for the elimination of Ms. Cloonan's prior position. Id. at 1; see also Ds.' Stmt. ¶ 3 (stating that elimination was "due to a reorganization of USMS resources"). Ms. Cloonan eventually accepted the USMS's offer. Ds.' Stmt. ¶ 3.
Though she accepted the GS-12 position following the elimination of her GS-13 position, plaintiff took steps to fight the change. Ms. Cloonan first filed a complaint with the USMS's Equal Employment Opportunity ("EEO") Office on June 29, 2007 in which she asserted that the agency's actions were discriminatory. Answer at ¶ 27. A month later, Ms. Cloonan instituted an appeal with the Merit Systems Protection Board ("MSPB") challenging the decision to eliminate her prior employment. Ds.' Stmt. ¶ 4; Declaration of Joseph Band ¶ 3, attached as Ex. 3 to Motion to Dismiss and for Summary Judgment, July 2, 2008 [12-3] ("Band Decl."). In her appeal, Ms. Cloonan identified Mr. Barnes as a witness and asserted that he was responsible for her being forced to accept a lower-grade position. Answer at ¶ 29; Ds.' Stmt. ¶ 4. Joseph Band, an Associate General Counsel in the USMS's Office of General Counsel, was assigned to represent the agency in the MSPB appeal. Band Decl. ¶¶ 1, 4. Shortly after discovery in that action, Ms. Cloonan's attorney contacted Mr. Band to request Mr. Barnes' deposition. Id. at ¶ 6.
After speaking with plaintiff's attorney, Mr. Band contacted Mr. Barnes and informed him of Ms. Cloonan's request. Ds.' Inter. Resp. #3 at 10; Second Declaration of Dave Barnes ¶ 2, Sep. 8, 2008 [20-1] ("Barnes 2d Decl."); Band Decl. ¶ 7. Mr. Band has subsequently stated that, during this first call, he told Mr. Barnes that (1) Ms. Cloonan had filed an MSPB appeal challenging her demotion, (2) she identified Mr. Barnes as the agency official responsible for the challenged agency action, and (3) Ms. Cloonan's counsel wished to depose Mr. Barnes. Band Decl. ¶ 7; see also Barnes 1st Dec. ¶ 5 (providing identical testimony). Mr. Band then asked for any information that Mr. Barnes believed necessary in defending against Ms. Cloonan's appeal, to which Mr. Barnes replied that he had no role in the decision to either eliminate Ms. Cloonan's previous position or to offer her a lower-grade position. Band Decl. ¶ 7; Barnes 1st Decl. ¶ 6.
After he received word that Ms. Cloonan was seeking a deposition, Mr. Barnes contacted his attorney, Paul Stein. Ds.' Inter. Resp. #3 at 10. According to Mr. Barnes, he informed Mr. Stein that he had no role in the USMS's decision and he provided information relating to Ms. Cloonan that he believed was pertinent to a defense of her MSPB appeal. Barnes 2d Decl. ¶ 2. The two then collaborated to create the letter (hereinafter "Stein Letter") that led to this suit.*fn2
The Stein Letter purports to inform USMS officials that Mr. Barnes is represented in connection with Ms. Cloonan's MSPB appeal, and then sets forth a lengthy criticism of Ms. Cloonan's performance as an employee of the USMS and overall character. See generally Stein Letter at 1-- 4. Among the various accusations are the following:
* "Ms. Cloonan has evidently been involved in an orchestrated campaign with other staff to repeatedly file unfounded, false, allegations [sic] against Mr. Barnes . . . . Ms. Cloonan has not prevailed in any complaints that she has filed against Mr. Barnes in the past few years." Id. at 1.
* "Evidently, Ms. Cloonan has been involved in filing multiple, false [sic] complaints for the past several years with various entities" including the USMS EEO Office, the U.S. Office of Special Counsel, the USMS Office of Internal Affairs, the DOJ Office of Inspector General, and OSHA. Id. at 2.
* "The overall USMS employment record for Ms. Cloonan will evidently depict an employee that has been very disruptive to government operations for years." Id.
* "It appears from the record that Cloonan could not even get along with staff in the Atlanta USMS office." Id.
* "[Ms. Cloonan] had multiple concerns and complaints filed by operational District staff in Atlanta against her for constant, documented, as they said [sic] "unstable fits of rage." Id.
* "[I]t is documented in writing that Ms. Cloonan entered an elevator in the Atlanta Federal Building and Courthouse and started talking to staff that her boss was going to jail, naming Mr. Barnes." Id. at 2--3.
* "Ms. Cloonan's angry outbursts and vulgar language toward supervisors was threatening and her constant threats to file complaints against managers were attempts to get her way." Id. at 3.
* "Ms. Cloonan evidently claims to be a Whistleblower which in all probability caused the agency not to take personnel ...