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Richard G. Convertino v. United States Department of Justice

March 24, 2011


The opinion of the court was delivered by: Royce C. Lamberth Chief United States District Judge

Memorandum Opinion

This matter comes before the Court on defendant's Motion for Summary Judgment. Mot. Summ. J., July 12, 2010, ECF No. 176. Also before the Court is plaintiff's Motion for a Stay to Depose Key Witnesses Pursuant to Rule 56(f). Mot. Stay, Oct. 18, 2010, ECF No. 187; Fed. R. Civ. P. 56(f). Having carefully considered the Motions, the Oppositions, the Replies, the entire record in this case, and the applicable law, the Court will grant defendant's Motion for Summary Judgment and deny plaintiff's Motion for a Stay. A review of the background of the case, the governing law, the parties' arguments, and the Court's reasoning in resolving those arguments follows.


"In the aftermath of the Sept. 11, 2001, terrorist attacks, 2002 became the year of terrorist hunting."*fn1

Less than a week after 9/11, the Detroit Joint Terrorism Strike Force raided what it thought was the apartment of Nabil Al-Marabh, an individual on the FBI's watch list. Morford Report 6 (DA232)*fn2 ; Morford Decl. ¶ 2, June 4, 2004, ECF No. 176-15. AlMarabh's name was on the mailbox, but he was not living at the apartment at the time. Morford Report 6; Morford Decl. ¶ 2. Instead, agents found Kareem Koubriti and two others "living as apparent transients with little or no furniture." Morford Report 6; Morford Decl. ¶ 2. Agents arrested the three men and charged them with possession of false identity documents. Morford Report 6 (DA 232); Morford Decl. ¶ 2. Prosecution of the case was assigned to Assistant United States Attorney Richard G. Convertino, and what began as a simple document fraud prosecution soon escalated into a high-profile terrorism case-the first to proceed to trial after the 9/11 attacks. Morford Report 6.

To say the prosecution did not go as planned is an understatement. The Department of Justice alleges that Convertino, aided by a supporting cast of unsavory characters, broke an astonishing number of rules and DOJ policies during the prosecution. E.g., Opp'n Mot. Summ. J. Ex. 5 (OPR Referral Letter), Nov. 3, 2003,ECF No. 188-9. Suspicions of Convertino's misconduct led to investigations, and the investigations led to his referral to DOJ's Office of Professional Responsibility. Id. Information about the particulars of Convertino's OPR referral found its way into the hands of David Ashenfelter-a reporter for the Detroit Free Press-who wasted no time in translating it into a shocking news story. Opp'n Mot. Summ. J. Ex. 1 (Terror Case Prosecutor is Probed on Conduct), Jan. 17, 2004, ECF No. 188-5. Ashenfelter's article turned the tables on Convertino, shining a burning spotlight directly upon the terrorism prosecutor's alleged misdeeds. In the end, the suspected Detroit terrorists' convictions were overturned because of prosecutorial misconduct. United States v. Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004). Tales of this high-stakes terrorism case gone wrong filled headlines, leaving a broken reputation and this Privacy Act case in their wake.

Convertino contends that an unknown person or persons at DOJ disclosed details from his OPR referral to Ashenfelter. Compl. 28--29, Feb. 13, 2004, ECF No. 1. This anonymous DOJ employee (or employees), according to Convertino, knew the leak would destroy his reputation and was fueled by a desire to get back at him for criticizing the Department and for testifying before a congressional committee. E.g., id. at 10--16, 22--23, 24--25, 29. Based on these allegations, Convertino sued DOJ and others alleging violations of the Administrative Procedure Act, the First Amendment, the Lloyd-LaFollette Act, and the Privacy Act. Id. at 7, 25. This Court granted the defendants' Partial Motion to Dismiss, leaving DOJ as the sole remaining defendant and the Privacy Act allegation as the sole remaining count. Convertino v. U.S. Dep't of Justice, 393 F. Supp. 2d 42 (D.D.C. 2005).

As the above introduction shows, the facts of this case could occupy the imagination of a good fiction writer for some time, but very few of the more salacious details are actually relevant to the issues before the Court or to its analysis. Pared down to essentials, this case is the simple story of Richard G. Convertino's unsuccessful quest to unmask the leaker of his private information. Seven years of litigation have sapped the resources of more than one United States District Court, yet Convertino is no closer to answering the most basic question of all: Who done it? Lacking that vital information, Convertino is defenseless against DOJ's Motion for Summary Judgment. Accordingly, this Court must grant it. Before doing so, however, it reviews the relevant factual background.

a.The Ashenfelter Article

On January 17, 2004, the front page of the Detroit Free Press featured an article by David Ashenfelter entitled Terror Case Prosecutor is Probed on Conduct. Opp'n Mot. Summ. J. Ex. 1, Jan. 17, 2004, ECF No. 188-5. Ashenfelter's article reported confidential information regarding Convertino's OPR referral and the allegations of misconduct that led to it. Id. It sourced this information to "[Justice] Department officials" who spoke on condition of anonymity because they "fear[ed] repercussions." Id. Ashenfelter also signed a sworn affidavit confirming that his source(s) were DOJ employees. Ashenfelter Decl. ¶ 4, Mar. 26, 2008, ECF No. 188-6.

b.The Office of the Inspector General Investigation into the Source(s) of the Leak

DOJ's Office of the Inspector General conducted an investigation to determine who leaked information to the Detroit Free Press. Opp'n Mot. Summ J. Ex. 4 at 1 (OIG Report), Aug. 9, 2004, ECF No. 188-8. OIG is a DOJ office tasked with "conduct[ing] independent investigations . . . of United States Department of Justice personnel and programs to detect and deter waste, fraud, abuse, and misconduct, and to promote integrity, economy, efficiency, and effectiveness in Department of Justice operations." USDOJ-The Office of the Inspector General, Thus, OIG "focused its investigation" on "approximately 30 DOJ employees" who had access to the materials related to Convertino's OPR referral. Opp'n Mot Summ. J. Ex. 4 at 5 (OIG Report). It "interviewed 10 employees in the Detroit USAO, some of them several times." Id. It "also interviewed 20 Department of Justice officials in Washington, D.C." Id. After a thorough investigation, "The OIG was unable to determine by a preponderance of the evidence the source of the information about Convertino . . . that was published in the Detroit Free Press on January 17, 2004." Id. at 16.

c.Convertino's Unsuccessful Quest to Identify the Source(s) of the Leak

Realizing that "the identity of Mr. Ashenfelter's source(s) rest at the heart of [his] case," Convertino has dedicated much time and energy into his own quest to identify them. Pl's Reply to Non-Party Media Respondents' Response to Pl's Motion to Compel Production at 10--11, Convertino v. U.S. Dep't of Justice, 2:07-cv-13842-RHC-RSW (E.D. Mich. Apr. 18, 2008), ECF No. 25 (DA 322--23) (internal quotation marks omitted). Despite seven years of dedicated effort, Convertino is no closer to identifying the source(s) of the leak today than he was when this litigation commenced. To illustrate the extent of Convertino's efforts in this regard, the Court describes Convertino's unsuccessful search.

Convertino issued a subpoena from this Court to Gannett Co., the corporate parent of the Detroit Free Press. Subpoena, Ashenfelter v. Convertino, 2:06-cv-14016, ECF No. 1 Ex. G. The subpoena sought to have Gannett designate "'one or more officers, directors, or managing agents, or other persons'" to "'testify on behalf' of its newspapers concerning the source of the article by David Ashenfelter entitled 'Terror Case Prosecutor is Probed on Conduct.'" Id. (quoting Fed. R. Civ. P. 30(b)(6)). On September 12, 2006, Ashenfelter filed suit against Convertino, contending that Convertino's attempt to obtain his confidential source information from Gannett without giving him an opportunity to protect his asserted reporters' privilege "violate[d] Ashenfelter's rights under the First and Fifth Amendments of the United States Constitution." Complaint ¶ 49, Ashenfelter v. Convertino, 2:06-cv-14016 (E.D. Mich.), ECF No. 1. Convertino moved to dismiss Ashenfelter's complaint. Id. at ECF No. 4. After the parties exchanged briefing on the motion, Convertino withdrew the subpoena, and Ashenfelter dismissed the case on May 17, 2007. Id. at ECF No. 14.

In the meantime, Convertino served subpoenas issued from the Eastern District of Michigan on Ashenfelter and the Detroit Free Press, seeking both depositions and documents. Convertino v. U.S. Dep't of Justice, No. 07-CV-13842, 2007 WL 2782039, at *1 (E.D. Mich. Sept. 24, 2007). On July 6, 2007, after Ashenfelter and the Detroit Free Press refused to comply with the subpoenas, Convertino opened a miscellaneous action in the Eastern District of Michigan and filed a motion to compel production from Ashenfelter and the Detroit Free Press. Convertino v. U.S. Dep't of Justice, 2:07-cv-13842 (E.D. Mich.), ECF No. 1.

On August 28, 2008, the court granted Convertino's motion to compel Ashenfelter's compliance with the subpoena finding that identification of Ashenfelter's source or sources was necessary for Convertino to have any chance of prevailing in his Privacy Act suit against DOJ. Convertino v. U.S. Dep't of Justice, No. 07-CV-13842, 2008 WL 4104347, at *7 (E.D. Mich. Aug. 28, 2008) ("To establish that the DOJ committed a willful or intentional violation, [Convertino] must present evidence of the disclosing person's state of mind, which requires him to identify and question those who perpetrated the allegedly improper disclosure.") (citing Hatfill v. Gonzales, 505 F. Supp. 2d 33, 42--43 (D.D.C. 2007)). The court denied Convertino's motion to compel compliance by the Detroit Free Press, finding that it was "'unreasonably cumulative [and] duplicative.'" Id. at *9 (quoting Fed. R. Civ. P. 26(b)(2)(C)(i)) (alteration in original); see also Convertino v. U.S. Dep't of Justice, No. 07-CV-13842, 2008 WL 4998369 (E.D. Mich. Nov. 21, 2008) (denying Ashenfelter's motion for reconsideration). Ashenfelter made further requests for protection from the Eastern District of Michigan and from this Court, both of which were denied. Convertino v. U.S. Dep't of Justice, 260 F.R.D. 678 (E.D. Mich. 2008); Order, Dec. 4, 2008, ECF No. 107 (this Court's Order denying Ashenfelter's motions for protective order and stay).

On December 8, 2008, Convertino deposed Ashenfelter for the first time in this case. Mot Summ. J. Ex. 4 (First Ashenfelter Dep.), ECF No. 176-4. Ashenfelter invoked his Fifth Amendment privilege and refused to substantively answer any questions. Id. at 7--8. On December 23, 2008, Convertino filed motions seeking contempt and sanctions against Ashenfelter. Convertino v. U.S. Dep't of Justice, 2:07-cv-13842 (E.D. Mich.), ECF Nos. 39--40. On February 26, 2009, the court denied Convertino's motion seeking contempt, but ordered Ashenfelter to appear at a second deposition to be held at the federal courthouse in Detroit. Convertino v. U.S. Dep't of Justice, No. 07-CV-13842, 2009 WL 497400 (E.D. Mich.); see also Convertino v. U.S. Dep't of Justice, No. 07-CV-13842, 2009 WL 891701 (E.D. Mich. Mar. 31, 2009) (denying Ashenfelter's motion to certify for interlocutory appeal); In re: David Ashenfelter, No. 09-1443 (6th Cir. Apr. 16, 2009) (denying Ashenfelter's petition for a writ of mandamus).

On April 21, 2009, counsel for the parties congregated in Judge Cleland's jury room for Ashenfelter's second deposition. Mot. Summ. J. Ex. 5 (Second Ashenfelter Dep.), Apr. 21, 2009, ECF No. 176-5. This time, Ashenfelter substantively answered some questions but refused to answer any about how he had obtained information for the article. Id. at 80--81, 84. Judge Cleland eventually sustained Ashenfelter's assertion of the Fifth Amendment privilege with regard to questions about how he had obtained the relevant information. Id. at 105.

In sum, Convertino has made a monumental effort to identify Ashenfelter's source(s) and has had absolutely no success. Moreover, OIG conducted its own extensive investigation into the identity of the source(s) and was equally unsuccessful. After seven years of litigation, then, Convertino cannot answer the question that lies at the heart of [his] case." Plaintiff's Reply to Non-Party Media Respondents' Response to Pl's Motion to Compel Production at 10--11, Convertino v. U.S. Dep't of Justice, 2:07- cv-13842-RHC-RSW (E.D. Mich. Apr. 18, 2008), ECF No. 25 (internal quotation marks omitted).

II.Legal Standard

A.Summary Judgment

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard requires more than the mere existence of some factual dispute between the parties to defeat an otherwise properly supported motion for summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (emphasis in original). A material fact is one that, under the substantive law applicable to the case, is capable of affecting the outcome of the litigation. Id. An issue is genuine where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," as opposed to evidence that is "so one-sided that one party must prevail as a matter of law." Id. at 248, 252. The nonmoving party's evidence is to be believed, and all reasonable inferences from the record are to be drawn in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255 (1986).


Convertino brings several claims under the Privacy Act, which governs federal agencies' acquisition, maintenance, and control of records containing information about individuals. 5 U.S.C. § 552a. The Act applies only to "records" maintained in a "system of records" by a federal "agency," as each of those terms is defined by the statute and elaborated upon in case law, that are retrieved by the name or other identifying information of the individual. 5 U.S.C. § 552a(a). It limits what information agencies may maintain about individuals, requires that agencies establish appropriate safeguards to ensure the confidentiality of records, and limits agencies' authority to disclose records.Id. §§ 552a(b), (e)(1), & (e)10.

Convertino raises separate claims under the Privacy Act's disclosure, accuracy, rules of conduct, and accounting provisions, but because a common fault hampers them all, the Court need not consider them each individually.*fn3 Instead, the Court first explains why Convertino's failure to produce any evidence that DOJ acted intentionally or willfully is fatal to all of his claims. Next, it goes on to provide additional analysis of certain problems that apply particularly to his rules of conduct and accounting claims. Finally, the Court explains its reasons for denying Convertino's 56(f) Motion.

1.Each of Convertino's Privacy Act claims fails because he produces no evidence upon which a reasonable fact-finder could conclude that ...

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