Krieger v. U.S Dept. of Justice

• Citation: 529 F.Supp.2d 29
• Decision Date: 07 January 2008
• Docket Number: Civil Action No. 98-1703 (CKK).
• Parties: Roy W. KRIEGER, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al, Defendant.
• Court: U.S. District Court — District of Columbia

529 F.Supp.2d 29

Roy W. KRIEGER, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al, Defendant.

Civil Action No. 98-1703 (CKK).

United States District Court, District of Columbia,

January 7, 2008.

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Roy W. Krieger, Paleos & Krieger, P.C., Washington, DC, pro se.

Mark S. Zaid, Mark S. Zaid, PC, Washington, DC, for Plaintiff.

Anne L. Weismann, Citizens, for Responsibility and Ethics in Washington, Alexander Kenneth Haas, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

This case represents a decades-long dispute between Roy W. Krieger ("Krieger"), an attorney formerly employed by the Department of Justice ("DOJ"), and his former DOJ supervisors Kathlynn G. Fadely ("Fadely") and Gary Allen ("Allen"). Currently before the Court are Defendants' [83] Motion for Summary Judgment as to Plaintiffs Privacy Act claim (Count VII), Defendants' [96] Motion to Dismiss or, in the alternative, Motion for Summary Judgment as to Plaintiffs constitutional tort claim (Count WI), and Plaintiffs [72] Motion for Leave to Amend his Complaint to assert a claim under the Federal Torts Claims Act (Count IX). The Court has previously dismissed all other claims brought by Krieger. See [126] Mem. Op. and Order dated March 8, 2005. After a thorough review of the Parties' submissions and exhibits attached thereto, as well as consideration of all applicable case law and statutory authority, the Court shall GRANT IN PART Defendants' [83] Motion for Summary Judgment, holding the Motion in abeyance with respect to the claim brought under section 552a(e)(7) of the Privacy Act pending further briefing from the Parties, GRANT Defendants' [96] Motion to Dismiss, or in the alternative, Motion for Summary Judgment, and DENY Plaintiffs [72] Motion for Leave to Amend his Complaint, for the reasons that follow.

I. BACKGROUND

A. Factual Background

Krieger was employed as a trial attorney in the Aviation Section of the DOJ from November 1984 to March 1989.¹ See [86] Pl.'s Stmt. ¶ 1. In 1986, Krieger was assigned to a case involving the crash of Delta flight 191 (hereinafter, "Delta litigation"), eventually working under the supervision of Defendant Fadely. Id. ¶¶ 2, 7. As part of the litigation, Krieger was given primary responsibility for the development of a computer graphic reconstruction of the accident (hereinafter, "Delta video") that was later used as evidence during the Delta trial. Id. ¶ 8. Krieger and Fadely's working relationship was apparently quite strained. Id. ¶ 7. In December 1988, prior to the conclusion of the Delta litigation, Krieger informed Fadely and her supervisor, Defendant Allen, that he was leaving the DOJ to accept employment at a Washington D.C. law firm. Id. ¶¶ 9-12. The use of the Delta video and its related technology became an immediate and sustained point of contention between Krieger and his former supervisors Fadely and Allen.

The DOJ contracted with Z-Axis Corporation ("Z-Axis") to produce the Delta video, expending approximately $200,000 for its development. See [96] PL's Stmt. ¶ 3. Although it was presented at the Delta trial in a video tape format, Z-Axis also produced the Delta video on laser discs, which required some additional programming to operate correctly.² Id. ¶ 3; [96] Defs' Stmt. ¶ 4. Shortly before his departure, Krieger wrote a memorandum to Allen wherein he asked to keep a copy of the Delta video on a laser disc. See [96] Defs' Stmt. ¶ 5. Allen denied his request and indicated that the Delta video laser discs "were not generated for [his] personal use, nor [could he] accept them gratis from a government contractor." Id. On March 30, 1989, Krieger reasserted his request and indicated that he would obtain the Delta video laser disc from Z-Axis "without the consent of the Department." Id. On June 14, 1989, Allen advised Krieger by letter that he had no authority to release anything other than a video tape version of the Delta video. Id. ¶ 6. Two weeks later, Krieger submitted a Freedom of Information Act claim to obtain a copy of the Delta video on laser disc. Id. ¶ 7.

Allen communicated with Al Treibitz ("Treibitz"), President of Z-Axis, on January 22, 1990, concerning Krieger's request for a laser disc copy of the Delta video. Id. ¶ 8. Allen described the conversation in a subsequent email:

I've talked to [Treibitz] and after some discussions have concluded that I cannot instruct him not to make a video disc from a public-domain DL videotape if Al wants to do it. He [says] that the control program necessary to run the disc is a simple, non-proprietary one.... He claimed such programs are [ ] Basic programs which are easily obtainable on the open market. I told him that while I didn't like this, I could not think of a way to stop what [Krieger] was proposing to do so long as it was essentially the same as Fred Schmuck walking in with a FOIA-obtained videotape from the disc and saying, `[m]ake me a demo disc.' Treibitz claimed that's all it would be.

Defs' Mot. to Dismiss or for Summ. J. Ex. B at 9 (Email from Allen to unknown recipient dated Jan. 22, 1990). That same day, Allen wrote to Krieger indicating that he was free to "create a laser disc for [his] own use, utilizing existing, publicly-available videotapes to be copied at your expense onto a disc," and that as long as Krieger did not use "any operating program to run the disc that was written for the original Delta disc(s)," Allen had no objection to Krieger's use of a laser disc version of the Delta video. [96] Defs' Stmt. ¶ 9.

Krieger was scheduled to appear as keynote speaker at the Aviation Insurance Association Biannual Reception in February 1990, where he planned to use the Delta video laser disc. See [96] Pl.'s Stmt. ¶ 8. Although Krieger had previously arranged to have Treibitz join him as a co-speaker, Treibitz later withdrew as a co-presenter and attended the reception as an observer only. Id. According to Krieger, Allen coerced Treibitz into withdrawing as a co-speaker. See Pl.'s Opp'n to Defs' Mot. to Dismiss or Mot. for Summ. J. at 19-23. It appears from the record that Krieger gave the keynote address as planned (and used the laser disc) despite Treibitz's absence. See [96] Pl.'s Stmt. ¶ 13.

In mid-1990, Krieger applied for positions at the Federal Programs Branch and the offices of the United States Attorney in Washington D.C. and Minneapolis, Minnesota. See [83] Pl.'s Stmt. ¶ 40. Krieger's applications were rejected. Id. ¶ 41. During discovery in the instant case, Krieger discovered that his DOJ performance evaluations (called "PARs") were missing from his official personnel file (called an "OPF"). Id. ¶ 42. Krieger surmises that the PARs must have been missing when he applied for these jobs, and that his applications must have been rejected because of the missing evaluations. Krieger attributes the loss of his PARs to Defendants. See Pl.'s Opp'n to Defs' Mot for Summ. J. at 23-27.

In addition to the issues concerning the Delta video and Krieger's missing PARs, Krieger also alleges that Fadely improperly disclosed information about his DOJ employment to others, or otherwise disparaged him after he left the DOJ. Id. at 9-23. On September 1, 1989, the DOJ issued a Press Release that acknowledged the contributions of the attorneys who had worked on the Delta litigation, including Krieger, who was described as "formerly of the Justice Department" and "of counsel for the government for a portion of the proceedings." Defs' Mot. for Summ. J. Ex. B at 1-2 (DOJ Press Release). Fadely had a role in drafting this Press Release, which according to Krieger, improperly disclosed that Krieger had participated in the Delta litigation and left the DOJ, and improperly referred to his title as "of counsel" when it should have been "trial attorney." Id.; Pl.'s Opp'n to Defs' Mot. for Summ. J. at 10. In late 1989 and early 1990, Fadely wrote to the Editors of the ABA Journal and Business Insurance to clarify information contained in their respective articles about the Delta litigation. See Defs' Mot. for Summ. J. Ex. C, D (Fadely's Letters). According to Krieger, these letters improperly disclosed that he had participated in the Delta litigation and subsequently left his position with the DOJ. See Pl.'s Opp'n to Defs' Mot. for Summ. J. at 12-13. In 1991, Krieger accepted a position with the Chicago-based law firm Adler, Kaplan & Begy ("AKB"). Second Am. Compl. ¶ 39. In mid-1991, Fadely called John Adler ("Adler"), a senior partner of AKB, and stated that she was "surprise[d] and disappoint[ed]" that AKB hired Krieger because "[s]he didn't have very high regard for ... [Krieger's] efforts in connection with cases that she had worked on." She also indicated that Krieger's role in the Delta litigation was "limited," and he was primarily involved with the development of a "computer study for use as a trial exhibit" in that case. See Pl.'s Opp'n to Defs' Mot. for Summ. J. Ex. 1 (Tr. Hearing dated July 9, 1997, Krieger v. Adler, Kaplan & Begy (N.D.Ill.)). AKB terminated Krieger and, in subsequent litigation between Krieger and AKB, Adler allegedly indicated that Fadely's statements were a motivating factor in his decision to discharge Krieger. Id.

B. Procedural Background

Krieger filed a nine-count Complaint on July 8, 1998, against Fadely, the DOJ, and the United States. Counts I through VI raised common law tort claims; Count VII raised a constitutional tort claim; Count VIII asserted a violation of Krieger's rights under the Privacy Act; and Count IX asserted that the United States had acted in a negligent manner in violation of the Federal Tort Claims Act ("FTCA").

The Attorney General certified that Fadely had acted within the scope of her employment with respect to Counts I through VI, and moved to substitute the United States for Fadely as a defendant. See 28 U.S.C. § 2679(d)(...