United States District Court, D. Columbia.
For MALCOLM BRUCE WESTCOTT, Colonel, USAR (ret.), Plaintiff: Raymond J. Toney, LEAD ATTORNEY, THE LAW OFFICE OF RAYMOND J. TONEY, Woodland, CA; David Patrick Sheldon, LAW OFFICES OF DAVID P. SHELDON, P.L.L.C., Washington, DC.
For JOHN M. MCHUGH, The Honorable, Secretary of the Army, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.
REGGIE B. WALTON, United States District Judge.
The plaintiff, Malcolm B. Westcott, asserts claims under the Privacy Act, 5 U.S.C. § 552a(g)(1) (2006), and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706 (2006), against John M. McHugh, in his official capacity as Secretary of the Army, seeking the removal or revision of a General Officer Memorandum of Reprimand contained in his official military records. Second Amended Complaint (" Am. Compl." ) at ¶ ¶ 198, 206, 217. The defendant's motion to dismiss, or in the alternative, for summary judgment, and the plaintiff's cross-motion for summary judgment are currently before the Court. After carefully considering the parties' submissions, the Court concludes for the reasons that follow that it must deny the defendant's
motion to dismiss, grant in part and deny in part the defendant's motion for summary judgment, and deny the plaintiff's motion for summary judgment.
The plaintiff served thirty-five years in the United States Army, retiring in 2003 at the rank of Colonel. Pl.'s Facts ¶ A1; Def.'s Facts at 1 ¶ 1. fro 1997 until his retirement, he served in the Office of the Chief of Army Reserve. Pl.'s Facts ¶ A2; Def.'s Facts at 1 ¶ 2. In February 2001, the Department of the Army Inspector General (" Inspector General" ) initiated an investigation into allegations regarding the plaintiff's role in securing and monitoring " a $100,000 'task order' addition to an existing contract between the Army and SY Technologies, Inc. (" SY Tech" ), a private defense contractor." Pl.'s Facts ¶ ¶ A3, B5; Def.'s Facts at 1-2 ¶ 3; Def.'s Reply Facts ¶ 5. The Inspector General subsequently issued a report " substantiat[ing] the allegation that [Colonel] Westcott had negligently performed his duties as a contracting officer's technical representative [(" Technical Representative" )]" with respect to the $100,000 task order addition to the SY Tech contract with the Army. Pl.'s Facts ¶ B8; Def.'s Reply Facts ¶ 8.
On October 19, 2001, General John M. Keane, then Vice Chief of Staff of the Army Reserve, issued a General Officer Memorandum of Reprimand (" Reprimand" ) to the plaintiff. A.R. at 000019-20; see also Pl.'s Facts ¶ 4; Def.'s Facts at 2 ¶ 4. The Reprimand stated in pertinent part:
You are reprimanded for your negligence, which gave rise to an appearance that your personal interests clouded your professional diligence and judgment.
You and your former Chief . . . had a long-standing professional and personal relationship. . . . In the last months of the [Chief's] assignment to active duty, you worked as the [Technical Representative] for SY TECH . . . . In early 1998, the [Chief] identified a need for senior officer training. Only days before the [Chief] left active duty, you were instrumental in obtaining approximately $100,000 for a task order to SY TECH for general [Army Reserve] force development support. Within the first week of the former [Chief] beginning employment with SY TECH, you were involved in approving a plan and coordinating funding for SY TECH's projected fiscal year contract support that, for the first time, included the senior officer training. You were thus in charge of monitoring the task order for the project that was the initiative of your former boss and from which he would ultimately profit as the contractor's employee.
Your perfunctory approach to your duties gave rise to the appearance that your loyalties lay less with the U.S. Army and more with your former boss. Specifically you did not adequately monitor a SY TECH billing that did not properly reflect the significant hours that your former boss had worked on the project. You failed to note in your January 1997  quarterly performance evaluation a senior leadership training seminar--a key aspect of the task order--that your former boss developed and presented. Finally, and most troubling, you allowed SY TECH representatives to prepare and submit their own evaluations. Because these evaluations affected their payments under the task
order, you effectively allowed SY TECH to write its own check.
As a senior officer you are expected to pursue all of your duties with the utmost diligence. Your performance as a [Technical Representative] fell far short of this standard. Moreover, your failure to perform your [Technical Representative] duties may have resulted in the award of fees that did not accurately reflect the contractor's performance and created a perception of impropriety and misdirected loyalty. Your casual attitude toward your duties demonstrates--at best--a troubling disregard for the special trust and confidence expected of an officer of your grade and position.
A.R. at 000019. The Reprimand indicated that General Keane " intend[ed] to file this reprimand permanently in [the plaintiff's] official military personnel file" and advised the plaintiff that he would consider any materials the plaintiff wished to submit in response before making a final decision. A.R. at 000020.
The plaintiff submitted a rebuttal to General Keane which included affidavits from various individuals involved in the underlying events. See A.R. at 000021-49; see also Def.'s Facts at 6 ¶ 17. On May 31, 2002, after " carefully consider[ing] the nature of [the plaintiff's] misconduct and [his] rebuttal to the [Reprimand]," General Keane approved the placement of the Reprimand in the plaintiff's personnel file. A.R. at 000050; see also Def.'s Facts at 6 ¶ 18; Pl.'s Facts ¶ B25.
The plaintiff subsequently filed appeals with the Department of the Army Suitability Evaluation Board and the Army Board for the Correction of Military Records (" ABCMR" ) seeking the removal of the Reprimand, both of which were denied. Def.'s Facts at 7 ¶ 23, 8 ¶ ¶ 26-27; see also Pl.'s Facts ¶ B26; Am. Compl. ¶ ¶ 7-8. The plaintiff then commenced the current litigation. After the ABCMR again denied the plaintiff's appeal upon remand by this Court, Pl.'s Facts ¶ ¶ A5-6; Def.'s Facts at 2 ¶ ¶ 5-6, the parties filed cross-motions for summary judgment. The Court rejected the defendant's argument that de novo review of the plaintiff's Privacy Act claim was inappropriate, ECF No. 32 at 4 n.2, and held that numerous disputes of material fact precluded entry of summary judgment on the plaintiff's Privacy Act claim, id. at 6-7. In the interest of judicial economy, the Court held the plaintiff's APA claim in abeyance pending resolution of the Privacy Act claim. Id. at 7.
The defendant moved for reconsideration of the Court's decision, arguing that the plaintiff could not seek to challenge his Reprimand through the Privacy Act and that even if he could, he had failed to exhaust his administrative remedies as to this claim. See ECF No. 45 at 3-4, 5-6. The Court reiterated its belief that " the Privacy Act is an appropriate vehicle for the plaintiff to pursue his claims for the amendment of the Memorandum of Reprimand" but found that the plaintiff had not exhausted his administrative remedies. Id. at 4-6. The Court again held the ...