Chambers v. U.S. Dept. of Interior

• Decision Date: 16 June 2009
• Docket Number: No. 08-5165.,08-5165.
• Citation: 568 F.3d 998
• Parties: Teresa C. CHAMBERS, Appellant v. UNITED STATES DEPARTMENT OF the INTERIOR, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

568 F.3d 998

Teresa C. CHAMBERS, Appellant v. UNITED STATES DEPARTMENT OF the INTERIOR, Appellee.

No. 08-5165.

United States Court of Appeals, District of Columbia Circuit.

Argued May 8, 2009.

Decided June 16, 2009.

Appeal from the United States District Court for the District of Columbia (No. 1:05-cv-00380-JR).

Paula Dinerstein argued the cause for the appellant.

Beverly M. Russell, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant United States Attorney, were on brief.

Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Teresa C. Chambers, former Chief of the United States Park Police, brought this action against the Department of the Interior (Interior) under the Privacy Act, 5 U.S.C. § 552a, alleging that Interior violated the Privacy Act by (1) failing to provide her access to an appraisal of her job performance allegedly prepared by National Park Service (NPS) Deputy Director Donald W. Murphy in 2003 (Count I) and (2) failing to maintain and safeguard the appraisal (Count II). The district court granted summary judgment in Interior's favor on Count I and dismissed Count II for failure to state a claim. We reverse the summary judgment on Count I because the record, viewed most favorably to Chambers, presents a genuine issue of material fact regarding whether Interior intentionally destroyed the appraisal after Chambers requested access to it. We similarly affirm the court's denial of summary judgment to Chambers on Count I based on the same triable issue of fact. We affirm the court's dismissal of Count II because Chambers does not point to any adverse agency determination she experienced because of Interior's alleged failure to maintain the appraisal.

I.

On a motion for summary judgment, we view the facts in the light most favorable to the nonmoving party. Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C.Cir.2007). So viewed, the record establishes the following facts. On February 10, 2002, Chambers assumed her duties as Chief of the United States Park Police, a unit of NPS, which is in turn a bureau within Interior. On September 22, 2003, Murphy, Chambers's supervisor, informed her by e-mail that he had prepared her performance appraisal and that his secretary would contact her to set up a meeting to review it; he also informed her in person that he had completed the appraisal, adding "Don't worry. It's a good one." Compl. ¶ 6, Chambers v. Dep't of Interior, No. 05CV00380 (D.D.C. Feb. 24, 2005) (Compl.); Second Affidavit of Teresa C. Chambers ¶¶ 6-7 (June 20, 2007), (Joint Appendix (JA) A174). No meeting ever occurred.

On December 2, 2003, the Washington Post published an article quoting from an interview with Chambers in which she expressed "concerns about budget limitations and the potential impacts on protection of national icons and persons visiting the parks." Compl. ¶ 8. The same day she expressed similar concerns in an e-mail to "a high-ranking" congressional staff member, the substance of which "was shared with [Chambers's] superiors, including Mr. Murphy." Id. ¶ 9.

On December 5, 2003, Chambers was placed on administrative leave. One week later, she was informed she could return to her duty post if she agreed to certain "stipulations," including that she obtain prior approval from Murphy or his designee before contacting the media or a member of the Congress or its staff. Id. ¶¶ 11-12. Chambers declined the reinstatement terms and on December 17, 2003, Murphy proposed that Chambers be removed from federal service. Id. ¶¶ 13-14.

On January 29, 2004, Chambers filed a complaint with the Office of Special Counsel (OSC) under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8)(WPA). When the OSC failed to act on the complaint, she filed an appeal to the Merit Systems Protection Board (MSPB). On July 9, 2004, Interior issued a decision removing Chambers from federal service, which Chambers also appealed to the MSPB. The WPA claim remains before the MSPB.¹

During his deposition in the MSPB appeal, Murphy testified that in late summer 2003, he prepared a written "narrative" "appraisal" of Chambers's performance over the previous fiscal year (2002-2003) which was "in final form." Dep. of Donald W. Murphy at 18-20 (Aug. 11, 2004) (JA A34-36) (8/11/04 Murphy Dep.). He also noted then that Terrie Fajardo, retired NPS Chief of Human Resources, had seen the appraisal. Id. at 22-23 (JA A38-39). After she was "denied access" to the appraisal in the MSPB proceeding, Compl. ¶ 20, Chambers, through counsel, submitted a request pursuant to the Privacy Act and the Freedom of Information Act, 5 U.S.C. § 552, (FOIA) seeking the following documents:

1. A draft employee evaluation written by Deputy Director Donald Murphy concerning Chief Teresa Chambers during the time period covering 2002 and/or 2003.

2. All routings or transmittal documents indicating what officials received copies of the draft evaluation referred to in 1.

Letter from Richard Condit, General Counsel, Public Employees for Envt'l Responsibility, to Diane Cooke, FOIA Officer, NPS Headquarters (Oct. 26, 2004) (JA A43). In response to the request, Murphy searched his e-mails for the appraisal and instructed his assistant, Janice Brooks, to search his files. Brooks discovered "a draft performance plan" for Chambers entitled "Senior Executive Service Performance Plan" (SES Plan). Dep. of Donald W. Murphy, at 24-25 (Nov. 21, 2005) (11/21/05 Murphy Dep.); see Decl. of Diane Cooke ¶¶ 4-5 (June 15, 2007) (JA A163) (Cooke Decl.). The SES Plan, dated February 11, 2003, sets out various performance standards for Chambers to meet but contains no narrative appraisal of her performance. See SES Plan (JA A28-30). Brooks forwarded the SES Plan, along with a copy of Chambers's request, to Steve Krutz, an Employee Relations Specialist in NPS's Division of Labor and Employee Relations. Krutz "did not consider the SES Plan to be responsive" but nonetheless forwarded a copy to NPS FOIA Officer Diane Cooke. Cooke Decl. ¶¶ 5-6 (JA A163-64). Interior's Office of the Solicitor also reviewed the SES Plan and determined it was not responsive to Chambers's request.

In a January 18, 2005 letter to Chambers's counsel, NPS stated it had searched its files and "did not find any documents responsive to [her] request." Letter from Alfred J. Poole III, Acting Associate Director, Administration, Business Practices, and Workforce Development, NPS, Department of Interior to Richard Condit at 1 (Jan. 18, 2005) (JA A46). In response, Chambers's counsel informed Cooke he found NPS's response to the document request "not credible" and attached an excerpt from Murphy's MSPB deposition describing the "narrative" appraisal he said he had prepared. Letter from Richard Condit at 1-2 (Jan. 26, 2005) (JA A48-49). In the letter and a follow-up e-mail, Chambers asked that NPS search further for the appraisal. Accordingly, Cooke asked Murphy to search his files again. Murphy responded to Cooke in a hand-written note that "the Performance Appraisal" he referred to in his MSPB deposition was "the same as the document already reviewed," meaning the non-narrative SES Plan. Note from Donald W. Murphy to Diane M. Cooke (rec'd Feb. 15, 2005) (JA A53) (Murphy Note); see also Decl. of Donald W. Murphy ¶ 3 (Apr. 13, 2005) (JA A59) (Murphy Decl.). He also characterized the document as a prospective appraisal plan to assess Chambers's performance in fiscal year 2003-04. Id. On March 14, 2005, NPS wrote Chambers that it had "found one document that [was] potentially responsive to [her] request," namely, the SES Plan, which was enclosed. Letter from Alfred J. Poole III to Richard Condit at 1 (Mar. 14, 2005) (JA A56).

Meanwhile, Chambers filed this action on February 24, 2005, asserting two claims: (1) Interior's "willful refusal to provide the records requested violates the Privacy Act," Compl. ¶ 35 (citing 5 U.S.C. § 552a(d)) (Count I); and (2) Interior "failed to establish and maintain physical safeguards to ensure the security and confidentiality of records in its possession in violation of the Privacy Act and [Interior]'s regulations," id. ¶ 42 (citing 5 U.S.C. § 552a(e)(9), (10); 43 C.F.R. § 2.51) (Count II). Chambers asked that the court either (1) declare that Interior "violated the Privacy Act by withholding the requested records" and order Interior "to immediately make the requested records available to [Chambers]" or (2) declare that Interior "violated the Privacy Act by failing to safeguard records pertaining to [Chambers]" and award Chambers "damages for all lost income, benefits, and/or other adverse impacts." Id. ¶ 44. Chambers also requested that the court award her "all costs and attorneys' fees pursuant to 5 U.S.C. § 552a(g)(2)." Id.

After the suit was filed, Stephanie Yu, an Attorney-Advisor in Interior's Office of the Solicitor, contacted retired NPS Human Resources Chief Fajardo about the appraisal and Fajardo affirmed that she had created a performance appraisal of Chambers. Fajardo later testified that she and Murphy had prepared the appraisal together, she had given Chambers a "satisfactory" evaluation and she had delivered the "[f]inal" appraisal to Murphy "personally." Dep. of Terrie Fajardo at 20-22 (Oct. 7, 2005) (JA A69-71) (10/7/05 Fajardo Dep.). She also testified that she was "sure" she had retained a copy of the appraisal on her computer, describing the electronic file's likely location on the hard drive, id. at 27 (JA A76), that she believed she stored it on a floppy disk as was her normal practice, id. at 35-36 (JA A84-85), and that she had filed a hard copy inside a filing cabinet in her office, id. at 47 (JA A95). Yu met with Fajardo in August 2005 to search for the appraisal in NPS Human Resources records. Fajardo...