United States District Court, District of Columbia
For MAUREEN HILL, Plaintiff: Ari Micha Wilkenfeld, LEAD ATTORNEY, Gary M. Gilbert, Kevin Lee Owen, LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, MD.
For ROBERT M. GATES, Secretary of Defense, MIKE MULLEN, ADMIRAL, Chairman of the Joint Chiefs, WILLIAM J. KANE, in his personal capacity, ERICA LANGERMAN, in her personal capacity, LESLIE SPANHEIMER, COLONEL, in his personal capacity, DEPARTMENT OF DEFENSE, Defendants: Susan K. Ullman, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, United States District Judge.
Plaintiff Maureen Hill, a former employee of the Department of Defense (" DoD" ), brings this suit against the DoD  alleging that it violated the Privacy Act, 5 U.S.C. § 552a et seq., by accessing and distributing her personnel records, medical information, security file, and leave requests on eleven occasions. The DoD has filed a motion to dismiss and argues in the alternative for summary judgment. The DoD is entitled to summary judgment on Count One, because the disclosure alleged in that count falls within the need-to-know exception to the Privacy Act, and on Counts Ten and Eleven, because the violations alleged are time-barred. Genuine issues of material fact exist, however, regarding the timeliness of Counts Two through Nine, precluding summary judgment on those counts. The DoD's motion therefore will be granted in part and denied in part.
Hill served as a technical information specialist in the records management and directive branch/unit of the Office of the Chairman of the Joint Chiefs of Staff, an entity within the DoD, until her employment was terminated on August 10, 2007. Compl. ¶ ¶ 9, 11. William Kane directly supervised Hill from October 17, 2005 to April 25, 2007. Id. ¶ 12. Commander Leslie Spanheimer succeeded Kane and directly supervised Hill from April 30, 2007 to until Hill's termination. Id. ¶ 13. Erica Langerman served as the Director of Security for the Joints Chiefs of Staff (" JCOS" ) at all relevant times. Id. ¶ 14. Hill's complaint alleges that actions taken
by Kane, Spanheimer, and Langerman, which occurred during discussions regarding Hill's use of leave and regarding Hill's proposed removal violated the Privacy Act on multiple occasions. Each of the eleven counts in the complaint alleges an intentional disclosure of specific protected information without Hill's consent.
In 2006, Langerman asked a JCOS employee to retrieve Hill's security file from the agency's filing system. Id. ¶ 18. The employee retrieved the file and provided it to Langerman, who in turn contacted Kane, Hill's supervisor at the time, to inform him that the file was " available for his review if he would like to access it." Id. ¶ ¶ 19-20. Count One alleges that the DoD violated the Privacy Act " when Langerman invited Kane to read through Ms. Hill's security file . . . without reason or knowledge of what Kane would do with the information." Id. ¶ 66.
Hill's removal was proposed on April 20, 2007, and Hill submitted a response to that proposal. Id. ¶ ¶ 23, 44. On April 30, 2007, Spanheimer, having just replaced Kane as Hill's supervisor, sent a memorandum to Hill " outlining and clarifying restrictions on [Hill's] use of leave." Id. ¶ 25. The same day, Hill submitted to her employer a memorandum, dated April 26, 2007, from her treating medical providers verifying Hill's medical diagnosis and treatment and restricting Hill to working part-time, along with a letter from Hill requesting that work hours that had previously been classified as absent without leave (" AWOL" ) be converted to leave without pay under the Family and Medical Leave Act of 1993 (" FMLA" ), 29 U.S.C. § 2601 et seq. Id. ¶ ¶ 26-27. Hill submitted a follow-up letter on May 1 " clarifying the part-time working hours recommended by her doctor." Id. ¶ 28. Spanheimer notified Hill in writing that Hill would be required to " submit additional medical documentation to support her part-time working hours recommendation from her doctor." Id. ¶ 29. The next day, Spanheimer issued a memorandum denying Hill's request to convert AWOL hours to leave without pay. Id. ¶ 30. On May 11, 2007, Hill submitted two more requests to have previous AWOL leave converted to leave without pay. Id. ¶ 31.
On May 14, 2007, Spanheimer e-mailed Kane the series of agency memoranda and responses from Hill described above. Id. ¶ 41. Counts Two through Nine are each based on the disclosure of a separate document attached to the May 14 e-mail: the agency's April 30, 2007 Leave Restriction Memorandum (Count Two, id. ¶ 76), Hill's April 26, 2007 medical memorandum requesting FMLA leave (Count Three, id. ¶ 88), Hill's April 30, 2007 leave request to convert AWOL time to FMLA leave (Count Four, id. ¶ 99), Hill's May 1, 2007 Work Schedule Memorandum clarifying her doctor's working hours recommendation (Count Five, id. ¶ 111), the agency's May 1, 2007 memorandum denying Hill's request to work part-time (Count Six, id. ¶ 123), the agency's May 2, 2007 denial of Hill's request to convert AWOL time to FMLA leave (Count Seven, id. ¶ 135), Hill's first May 11, 2007 request for accrued annual and sick leave (Count Eight, id. ¶ 147), and Hill's second May 11, 2007 request for accrued annual and sick leave (Count Nine, id. ¶ 159).
On May 23, 2007 and June 11, 2007, Spanheimer sent Kane other documents relating to Hill. Count Ten is based on the disclosure of Hill's response to the agency's first proposed removal, which was attached to Spanheimer's May 23 e-mail to Kane. Id. ¶ 171. Count Eleven is based on the disclosure of the agency's second proposed removal of Hill, which was attached to Spanheimer's June 11 e-mail to Kane. Id. ¶ 183.
Hill and the DoD were involved in separate litigation and, in connection with that litigation, Hill received discovery and conducted depositions regarding the events surrounding the termination of her employment. Id. ¶ ¶ 50, 52. In the course of the separate litigation, Hill received a Report of Investigation (" ROI" ) concerning a discrimination claim filed by Hill against the agency which included copies of the May 23, 2007 and June 11, 2007 emails. Defs.' Mem. at 4-5; Defs.' Mot., Attach. B, ROI at 307-308. The ROI was delivered to Hill and her counsel by commercial mail on June 16, 2008. Defs.' Mot., Attach. B, ROI transmittal letter; Pl.'s Am. Mem. and Points of Law in Opp'n (" Pl.'s Opp'n" ) at 13, 15. On February 27, 2009, Hill received additional copies of e-mails Spanheimer sent to Kane attaching the documents underlying Counts Two through Ten. Compl. ¶ 50. Hill's counsel deposed Kane on February 11, 2009 and again on May 27, 2009, and deposed Spanheimer on January 7, 2009. Defs.' Mot., Attach. A; Pl.'s Opp'n, Ex. 1; Defs.' Reply, Attachs. C, D. Hill alleges that she learned of the disclosure underlying Count One through Kane's testimony on May 27 that " he had accessed and read her security file through the actions of Langerman." Compl. ¶ 52. 
This action, docketed on February 14, 2011,  alleges that the DoD's disclosures violated the Privacy Act and caused Hill mental distress, emotional trauma, embarrassment, humiliation and jeopardized her future financial and employment opportunities. Id. ¶ 53. The DoD moved to dismiss or, in the alternative, for summary judgment, arguing that Count One falls within the Privacy Act's need-to-know exception and that Counts Two through Eleven are time-barred.
The Privacy Act prohibits an agency from disclosing " any record which is contained in a system of records by any means of communication to any person, or to another agency, except . . . with the prior written consent of . . . the individual to whom the record pertains" and provides a cause of action for parties aggrieved by such an unauthorized disclosure. 5 U.S.C. § § 552a(b), (g)(1)(D). " Privacy Act claims for monetary damages based on improper disclosure . . . have four elements: '1) the disclosed information is a record contained within a system of records; 2) the agency improperly disclosed the information; 3) the disclosure was willful or intentional; and 4) the disclosure adversely affected the plaintiff.'" Doe v. U.S. Dep't of Justice,660 F.Supp.2d 31, 44-45 (D.D.C. 2009) (quoting Logan v. Dep't ...