Mittleman v. US Dept. of Treasury, Civil Action No. 86-1852

• Decision Date: 28 August 1995
• Docket Number: Civil Action No. 86-1852,92-1741.
• Citation: 919 F. Supp. 461
• Parties: Elaine MITTLEMAN, Plaintiff, v. UNITED STATES DEPARTMENT OF the TREASURY, et al., Defendants. Elaine MITTLEMAN, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. District Court — District of Columbia

919 F. Supp. 461

Elaine MITTLEMAN, Plaintiff, v. UNITED STATES DEPARTMENT OF the TREASURY, et al., Defendants.

Elaine MITTLEMAN, Plaintiff, v. UNITED STATES, Defendant.

Civil Action Nos. 86-1852, 92-1741.

United States District Court, D. Columbia.

August 28, 1995.

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Elaine Mittleman, Falls Church, VA, pro se.

Thomas S. Rees, Mark E. Nagle, Asst. U.S. Attys., U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

HARRIS, District Judge.

The following motions are pending before the Court in Civil Action No. 86-1852:¹

1. Defendant United States' Motion To Dismiss the Amended Complaint;

2. Defendant Secret Service's Motion To Dismiss or, in the Alternative, for Summary Judgment;

3. Defendant Office of Special Counsel's Motion for Partial Summary Judgment;

4. Defendant Treasury's Motion To Dismiss in Part or, in the Alternative, for Partial Summary Judgment;

5. Plaintiff's Motion To Show Cause Why the Secret Service Has Not Produced the Original Versions of the Documents At Issue and Why the Secret Service Is Without Knowledge of the Existence or Location of the Original Versions;

6. Plaintiff's Motion for a Declaratory Judgment that the Creation, Maintenance, and Reliance upon the November 19, 1980, Secret Service Memorandum Are Violations of Her Fifth Amendment Rights;

7. Plaintiff's Motion for a Declaratory Judgment that Her First and Fifth Amendment Rights Were Violated in Light of the Supreme Court Decision in Waters v. Churchill;

8. Plaintiff's Motion for a Declaratory Judgment that the Passage of the Whistleblower Protection Act of 1989 Shows Congressional Intent that Whistleblowers Receive Protection;

9. Plaintiff's Motion for Declaratory Judgment that the Actions of the Office of Special Counsel Not Be Preclusive of Plaintiff's Claims;

10. Plaintiff's Motion for Declaratory Judgment that Defendants Failed to Comply with Procedures and Regulations in Performing the OPM Background Investigation;

11. Plaintiff's Motion for Reconsideration of the 1991 Ruling that the Privacy Act Precludes Review under the Constitution and the Administrative Procedure Act;

12. Plaintiff's Motion for Reconsideration of the Bivens Claim against Roger C. Altman in light of the Treasury Inspector General's Report and Developments Since the 1991 Opinion;

13. Plaintiff's Motion for Reconsideration Concerning the 1986 Privacy Act Amendment Request to the OPM;

14. Plaintiff's Motion for Reconsideration of Ruling that Privacy Act Amendment of the Treasury Inspector General Report Is Barred by the Statute of Limitations;

15. Plaintiff's Motion for Sanctions; and

16. Defendant's Motion for a Stay of All Proceedings on Plaintiff's Motions for Reconsideration and Motions for Declaratory Judgment.

Three of plaintiff's motion for declaratory judgments have not been fully briefed (Nos. 8, 9, and 10), and plaintiff's motions for reconsideration also have not been fully briefed. However, after reviewing those motions and independently researching the issues raised, and in light of the abundance of briefs in this case, the Court has determined that it is able to rule on those motions without further briefing.

Also pending before the Court in Civil Action No. 92-1741 is defendant United States' motion to dismiss. Civil Action No. 92-1741 and 86-1852 arise out of the same facts, and raise substantially the same legal claims against defendant United States. Not surprisingly, the United States' motion to dismiss is also substantially the same. Accordingly, the Court resolves the motion to dismiss in No. 92-1741 in this Opinion.

Upon consideration of the entire record, the Court grants the United States' motions to dismiss; grants the OSC's motion for partial summary judgment; and grants the Treasury's motion for partial summary judgment. The Court denies the Secret Service's motion to dismiss or, in the alternative, for summary judgment; denies plaintiff's motion to show cause regarding the Secret Service documents; denies plaintiff's motion for declaratory judgment against the Secret Service; and denies plaintiff's motion for sanctions against the Secret Service. The Court also denies plaintiff's other motions for declaratory judgment and plaintiff's motions for reconsideration. Accordingly, defendants' motion for a stay of proceedings (which was filed due to the voluminous nature of plaintiff's motions) is denied as moot. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its analysis. See Fed.R.Civ.P. 52(a).

Background

Plaintiff is an attorney who is proceeding pro se. The factual background of the case, as alleged by plaintiff, is set forth in the earlier Opinion issued in Civil Action No. 86-1852. See Mittleman v. United States Treasury, 773 F.Supp. 442 (D.D.C.1991) (hereinafter Mittleman I). To briefly review, plaintiff, a former government employee, was terminated from her employment with the Department of the Treasury's Chrysler Loan Guarantee Board in mid-December of 1980, effective the following January. Shortly after the notification of termination, plaintiff asked the Treasury Inspector General's office to investigate concerns she had about Treasury's monitoring of the Chrysler Corporation. She also filed a complaint about her termination, which plaintiff believed to be retaliatory, with the Office of Special Counsel. The IG's office ultimately generated a report which did not support plaintiff's concerns and, to plaintiff's surprise, cast plaintiff in a negative light. The OSC closed out plaintiff's case on November 12, 1981, finding no improprieties in Treasury's termination of plaintiff.

In 1982, plaintiff applied for a job with the Department of Commerce in the International Trade Administration Section. Although plaintiff was selected for the job, she ultimately was denied the position because a background investigation conducted by the OPM resulted in the denial of a security clearance, which was necessary for the position. The denial appeared to be caused, at least in part, by allegations of misconduct and incompetence concerning plaintiff in the IG's report. Plaintiff learned of the accusations against her, at the latest, on July 6, 1983, when she received a redacted copy of the OPM's investigative report. Plaintiff commenced her first lawsuit on June 30, 1986.

By Opinion dated August 29, 1991 ("1991 Opinion"), the Court dismissed most of the claims raised in plaintiff's complaint and first amended complaint. Mittleman I, 773 F.Supp. 442. The Court, inter alia, dismissed plaintiff's tort claims against the United States for lack of jurisdiction because plaintiff had failed to exhaust her administrative remedies. The only claims remaining were plaintiff's Privacy Act claims arising out of:

(1) the 1985 IG report distribution list which plaintiff alleges was incomplete, (2) the alleged disclosures to columnist Jack Anderson, (3) the alleged 1986 disclosures to author John Donahue, and (4) the Secret Service's exemption of plaintiff's file from the Privacy Act provisions.

Mittleman I, 773 F.Supp. at 454. Subsequently, plaintiff exhausted her administrative remedies under the Federal Tort Claims Act ("FTCA") and requested leave to file an amended complaint reasserting her tort claims, which was granted as unopposed on August 27, 1992.² Contemporaneously, plaintiff filed a separate civil action raising substantially the same claims against the United States, apparently out of an abundance of caution in seeking to protect all of her tort claims. Each of plaintiff's Privacy Act claims as well as her FTCA claims are now the subject of a dispositive motion. Additionally, plaintiff has filed several motions for declaratory judgment and motions for reconsideration in an apparent attempt to evade the impact of the Court's 1991 rulings and revive the claims which were dismissed.

Discussion

I. The Federal Tort Claims Act

In No. 86-1852, plaintiff characterizes her tort claims as "breach of an implied covenant of good faith and fair dealing and a wrongful discharge, denial of employment, and other acts in violation of public policy ... and intentional interference with plaintiff's pursuit of her legal career and profession, and intentional interference with plaintiff's pursuit of a particular job, and professional and business associations and relationships." Amended Complaint ¶¶ 121-22. In No. 92-1741, plaintiff characterizes her tort claims — based on the same set of facts — as intentional infliction of emotional distress, false light invasion of privacy, and negligence.

Plaintiff's claims are barred by the two-year limitations period applicable to claims brought under the FTCA. Section 2401(b) states:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues....

28 U.S.C. § 2401(b). Plaintiff's claim accrued, at the latest, on July 6, 1983, when she received a copy of the OPM's background report. Plaintiff did not file her first complaint until June 30, 1986 — almost three years later.

Plaintiff's contention that the applicable statute of limitations is the three-year limitations period under D.C.Code § 12-301(8) is baseless. The federal two-year limitations period prevails over local law. See Miller v. United States, 932 F.2d 301, 303 (4th Cir.1991) ("state law determines whether there is an underlying cause of action; but federal law defines the limitations period."); see also United States v. Kubrick, 444 U.S. 111, 115-19, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979) (discussing the FTCA's two-year limitations period).

Plaintiff's attempt to save her untimely claims in No. 92-1741 by invoking 28 U.S.C. § 2679(d) is unavailing. This provision essentially is "a relation-back provision applicable where the Government ... substitutes itself for an...