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Reed v. Department of Navy

United States District Court, District of Columbia

October 19, 2012

Timothy M. REED, Plaintiff,
DEPARTMENT OF the NAVY, Defendant.

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David Patrick Sheldon, Law Office of David P. Sheldon, Washington, DC, for Plaintiff.

John G. Interrante, U.S. Attorney's Office, Washington, DC, for Defendant.



Plaintiff Timothy Reed has sued the Department of the Navy, seeking monetary damages and injunctive relief for the allegedly improper disclosure of confidential records pertaining to plaintiff under the Privacy Act of 1974 (" Privacy Act" ), 5 U.S.C. § 552a et seq. Defendant now moves the Court to enter summary judgment in its favor. For the reasons set forth below, defendant's motion is denied.


Plaintiff Timothy Reed was enlisted in the United States Navy from November 1990 through January 1998, when he was honorably discharged. (Defendant's Statement of Material Facts (" Def. Facts" ) ¶ 1.) From March 1998 through May 18, 2009, he served in the Navy Reserve. ( Id. ) Plaintiff was simultaneously employed as a police officer bye the Charleston Police Department from the spring of 2000 through May 2009. ( Id. ¶ 2.)

In January 2009, plaintiff was mobilized to the Expeditionary Combat Readiness Center (" ECRC" ) in anticipation of being deployed to Iraq. ( Id. ¶ 3.) While in specialized training at Fort Lewis, Washington, plaintiff was alleged to have engaged in various acts of misconduct. ( Id. ¶ 4.) Defendant claimed that he pointed an M16 rifle at two other trainees while ordering them to the ground; pointed a knife at another trainee and threatened to cut him; disobeyed an order; made a derogatory

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statement about a female officer; and made inappropriate comments about using force against Iraqis. ( Id. ) The Navy commenced disciplinary proceedings, conducting a Disciplinary Review Board (" DRB" ) hearing on January 30, 2009, during which plaintiff indicated that he was a member of the Charleston Police Department (" CPD" ). ( Id. ¶ 6.) Following the hearing, Command Master Chief David Carter contacted the CPD to confirm plaintiff's civilian employment. ( Id. ¶ 7.) Over the course of three phone calls, CMC Carter made certain disclosures to the CPD regarding the pending allegations against plaintiff. ( Id. )

Sometime in January or February, plaintiff contacted Lieutenant Kevin Boyd, his team commander at the CPD, and mentioned, without providing specific details, that there were " issues in [his] training." (Deposition of Lt. Kevin Boyd (" Boyd Dep." ), Ex. E to Defendant's Motion for Summary Judgment (" Def. Mot." ), 4:13-17.) Boyd notified Captain Tillman, his supervisor, about the call. ( Id. ) Plaintiff also called Mark Bourdon, an attorney for the CPD, and described the allegations again in vague terms. (Def. Facts ¶ 8.) CPD Chief Mullen decided not to take any action against plaintiff until the Navy's investigation was completed. ( Id. ¶ 9.)

On March 12, 2009, plaintiff was found guilty at a " Captain's Mast" proceeding of having violated three provisions of the Uniform Code of Military Justice: disobeying a lawful order (UCMJ Art. 92), provoking speeches or gestures (UCMJ Art. 117), and assault (UCMJ Art. 128). ( Id. ¶ 11.) Captain McKenzie, Commanding Officer of the ECRC, imposed non judicial punishment (" NJP" ) on plaintiff, reducing his rank from First Class Petty Officer (E6) to Second Class Petty Officer (E5). ( Id. ) On April 13, 2009, plaintiff was demobilized ( id. ), and on May 18, 2009, he was honorably discharged from the USNR. (Complaint (" Compl." ) ¶ 23.)

On April 13, 2009, plaintiff indicated to the CPD that he intended to return to work as a police officer. ( Id. ¶ 12.) On the same date, Mark Bourdon contacted Navy Lieutenant Commander (" LCDR" ) Aimee Cooper to obtain information about the circumstances of Reed's separation from the Navy. ( Id. ¶ 13.) Cooper informed Bourdon about the details of the allegations against plaintiff, the fact that he had undergone a psychological exam, and the disciplinary actions that the Navy had taken against him. (Plaintiff's Statement of Genuine Issues (" Pl. Facts" ) ¶ 13.)

On April 15, 2009, Bourdon asked LCDR Cooper to treat his email as a Freedom of Information Act (" FOIA" ) request. (Def. Facts ¶ 13.) On April 17, 2009, LCDR Cooper sent by email to Bourdon records of the Navy's investigation and the results of plaintiff's NJP. (Pl. Facts ¶ 13.) Cooper stated in an email to Bourdon that she believed what she had released " should be [ok]," while conceding that her supervisors did " not think so." (Ex. F to Def. Mot.)

On April 24, 2009, plaintiff was reinstated to his former position and rank at the CPD. (Def. Facts ¶ 15.) On the same day, CPD Lieutenant Anita Craven began an internal affairs investigation into plaintiff's alleged misconduct at the Navy, which CPD considered relevant to plaintiff's " fitness for duty." ( Id. ¶ 13.) Plaintiff was placed on administrative leave with pay at that time. (Ex. 18 to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (" Pl. Opp." )) Lt. Craven interviewed plaintiff on April 24, 2009 and May 1, 2009. (Def. Facts ¶ 17.) Plaintiff told Lt. Craven that the weapons charges had been dropped. ( Id. ¶ 18.) Upon Lt. Craven's request, plaintiff provided documents reflecting the NJP punishment and his demotion

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in rank. ( Id. ) He did not provide documentation regarding the proceedings and findings of guilt. ( Id. ) Plaintiff declined to sign a waiver to allow Lt. Craven to obtain the NJP records directly from the Navy. ( Id. ¶ 18.) On May 1, 2009, plaintiff was put on administrative leave without pay. (Ex. 18 to Pl. Opp.)

On May 8, 2009, plaintiff submitted a letter of resignation to Lt. Boyd, which was accepted by Chief Mullen on May 11, 2009. (Def. Facts ¶ 20.) On May 21, 2009, the CPD completed its investigation with a finding that plaintiff had been untruthful during the course of the investigation and had acted to hinder the investigation. ...

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