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Tran v. Department of Treasury

United States District Court, District of Columbia

January 15, 2019

DINH TRAN, Plaintiff,


          TREVOR N. MCFADDEN, U.S.D.J.

         Plaintiff Dinh Tran, a former employee of the U.S. Department of the Treasury, alleges that it disclosed her annual performance appraisal in violation of the Privacy Act, 5 U.S.C. § 552a.[1]The Treasury admits that it disclosed Ms. Tran's performance appraisal, a protected record. But the Treasury argues that the Privacy Act's “routine use” exception, id. § 552a(b)(3), and “need-to-know” exception, id. § 552a(b)(1), permit the disclosure. So the Treasury has moved for summary judgment. The “routine use” exception does not apply, but the Treasury's motion will be granted because the “need-to-know” exception applies.


         Dinh Tran was an Attorney-Advisory in the Office of Professional Responsibility (“OPR”) within the Internal Revenue Service (“IRS”).[2] She applied for a six-month detail with the Washington, D.C., field office of Division Counsel, Small Business/Self-Employed (“SB/SE”). SB/SE is within the Office of the Chief Counsel (“OCC”) for the IRS, and it provides legal advice to various components within the Treasury.

         There are two types of detail requests: office-initiated and employee-initiated. Office-initiated details occur if an office determines that it needs to detail an employee into an office unit to meet organizational needs. Def. SUMF, ECF # 30-1 ¶ 3. Employee-initiated details, however, are based on an employee's desire to work outside her usual office, not organizational needs. Id. Ms. Tran's request was employee-initiated. Compl, ECF # 1 ¶ 7.

         When considering an employee-initiated detail request from an IRS employee, SB/SE's practice is to evaluate the requesting employee's knowledge, skills, and experience to determine whether the detail would benefit SB/SE and the requesting employee. Def. SUMF, ECF # 30-1 ¶ 6. SB/SE also confirms that the requesting employee has completed her probation period and has a rating of “fully successful.”[3] Id. ¶¶ 4, 6-7. SB/SE therefore requests the employee's resume and most recent performance appraisal. Id. ¶ 6.[4] SB/SE then recommends whether to approve the detail to the Office of Associate Chief Counsel (Finance and Management) (“F&M”), which has final approval authority. See Meneely Dep., ECF # 32-13 p. 25: 2-19; Chief Counsel Directives Manual[5]

         Debra Moe, then Division Counsel for SB/SE, emailed Patricia Manasevit in F&M, stating that Ms. Tran was interested in a detail to SB/SE's D.C. field office. Ms. Moe included Bruce Meneely on the email. At the time, Mr. Meneely was Ms. Moe's deputy. In that role, Mr. Meneely oversaw the field operations for SB/SE, including the nine Area Counsel offices. See Def. SUMF, ECF # 30-1 ¶12. Ms. Moe asked that Ms. Tran's supervisor contact Mr. Meneely, and she stated that SB/SE would be seeking information about Ms. Tran's qualifications and performance history. Meneely Aff., ECF # 30-3, Ex. B.

         Ms. Manasevit forwarded a copy of Ms. Tran's resume to Mr. Meneely. Def. SUMF, ECF # 30-1, ¶ 14. Mr. Meneely then contacted Ms. Tran's supervisor, OPR Director Stephen Whitlock, to ensure that Mr. Whitlock was aware of and would approve Ms. Tran's detail request. Id. ¶ 15. Mr. Whitlock supported the detail, and Mr. Meneely requested a copy of Ms. Tran's most recent performance appraisal, which Mr. Whitlock provided. Id. ¶¶ 15-16. Mr. Meneely provided copies of Ms. Tran's performance appraisal and resume to Area Counsel Nancy Romano and Deputy Area Counsel Thomas Rath, who were responsible for management oversight for SB/SE's D.C. field office. Id. ¶ 17. He asked them to evaluate Ms. Tran's qualifications and recommend whether to approve her detail request. Id.

         Ms. Romano spoke with Mr. Meneely about processing Ms. Tran's detail request, including whether front-line managers could be involved and whether the Division Counsel's office had any preference about the detail request. Meneely Dep., ECF # 32-13 pp. 37: 16-38: 18. Mr. Meneely told Ms. Romano that she could engage the front-line managers in the D.C. field office and they could interview Ms. Tran if they chose. Id. at p. 38: 10-18. He also told her that the Division Counsel's office had no preconceived view on the detail request. Id.

         The Area Counsel's office then emailed Ms. Tran's information to three front-line managers who were SB/SE Associate Area Counsels for the D.C. field office. They interviewed Ms. Tran and ultimately recommended against approving her request. Def. SUMF, ECF # 30-1 ¶ 20. They did not believe that she had the requisite litigation skillset to work in the D.C. field office. Id. And they were concerned about Ms. Tran's difficult relationship with her OPR manager. Id.

         Mr. Meneely reviewed the recommendation and then forwarded a copy of Ms. Tran's information to Ms. Moe. Meneely Dep., ECF #32-13 p. 49: 3-18. He informed her that the frontline managers recommended against approving Ms. Tran's detail request and asked to speak with her about Division Counsel's ultimate recommendation. Id. Ms. Moe then asked Mr. Meneely to tell F&M that SB/SE recommended against approving Ms. Tran's detail request. Mr. Meneely did so and learned that Ms. Tran had accepted a detail with another division. Meneely Dep., ECF # 32-13, p. 37: 7-19.

         Ms. Tran sued, alleging that disclosure of her performance appraisal violated the Privacy Act, 5 U.S.C. § 552a. The Treasury concedes that the Privacy Act protects employees' performance appraisals, the Treasury disclosed the record, and it did not get Ms. Tran's consent beforehand. But the Treasury argues that the disclosure was permissible under the Privacy Act's “routine use” exception, id. § 552a(b)(3), and its “need-to-know” exception, id. § 552a(b)(1). The Treasury thus moves for summary judgment.


         Summary judgment is appropriate when the pleadings and the evidence establish that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility to “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made an adequate showing that a fact is not in dispute, the burden shifts to the party opposing summary judgment to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

         In determining whether there is a genuine dispute of material fact, a court must “assume the truth of all statements proffered by the party opposing summary judgment” and construe all evidence in favor of the non-moving party. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). A non-movant, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” id. at 249-50. And unsupported, conclusory assertions offered with no evidentiary support do not establish a genuine issue for trial. See ...

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