United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
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.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.
Tran was an Attorney-Advisory in the Office of Professional
Responsibility (“OPR”) within the Internal
Revenue Service (“IRS”). 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.
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.
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.” Id. ¶¶ 4, 6-7. SB/SE
therefore requests the employee's resume and most recent
performance appraisal. Id. ¶ 6. 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 126.96.36.199.2(5).
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.
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.
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
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.
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.
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.
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).
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 ...