Mulhern v. Gates
| Decision Date | 04 December 2007 |
| Docket Number | Civil Action No. 05-2036 (PLF). |
| Parties | Michael G. MULHERN, Plaintiff, v. Robert M. GATES,<SMALL><SUP>1</SUP></SMALL> Secretary, United States Department of Defense, Defendant. |
| Court | U.S. District Court — District of Columbia |
F. Douglas Hartnett, Elitok & Hartnett, at-law, LLC, Washington, DC, for Plaintiff.
Steven M. Ranieri, U.S. Attorney's Office, Washington, DC, for Defendant.
This matter is before the Court on defendant's motion for summary judgment pursuant to Rule 56, of the Federal Rules of Civil Procedure.2 Plaintiff alleges that his former employer, the National Reconnaissance Office, an agency within the Department of Defense, disclosed information about him without his consent and failed to provide access to records upon request in violation of the Privacy Act of 1974, 5 U.S.C. § 552a et seq. Upon consideration of the motion, the opposition, the reply and the entire record in this case, the Court will grant defendant's motion for summary judgment with respect to the first claim and dismiss the second claim.
Plaintiff Michael Mulhern, a polygraph examiner, was employed as a civilian security specialist at the National Reconnaissance Office ("NRO") of the United States Air Force from January 2001 until he resigned on December 3, 2004. See. Complaint ("Compl.") ¶ 2; id. ¶ 4. Robert Shaheen, now retired, supervised plaintiff during the time period relevant to this suit. See id. ¶ 5; Robert Shaheen Declaration ("Shaheen Decl.") ¶ 1. During his employment at NRO, plaintiff received "outstanding performance reviews including a mid-year performance review of `excellent' in January 2004." Compl. ¶ 5.
In January of 2004, Mr. Shaheen telephoned plaintiff to tell him that Quality Assurance staff in the Polygraph Management Branch ("PMB") at NRO headquarters in Chantilly, Virginia had expressed concern about some of plaintiff's polygraph examinations. See Shaheen Decl. ¶ 6.3 Specifically, Quality Assurance officers were "concerned Plaintiff was altering the results of his polygraph examinations" contrary to standard procedures. Id. In February 2004, Mr. Shaheen was instructed by his superiors to tell plaintiff to stop conducting polygraph examinations until an investigation into the matter could be completed.4 At this time, Mr. Shaheen's knowledge of the investigation was limited to what he had been told by Quality Assurance staff. See id. ¶ 11. Mr. Shaheen did not have access to the Polygraph Assessment' Database, where Quality Assurance technical assessments were stored, and he did not have access to the PMB headquarter files. See id. ¶ 8. The only record concerning plaintiff to which Mr. Shaheen had access was Mr. Shaheen's supervisory file, which contained nothing but favorable information about plaintiff. See id.
In early March 2004, Mr. Shaheen contacted Steven Olson, then a security officer for Lockheed Martin in California.5 From 1999 until 2001, when he and plaintiff worked for the same intelligence agency, Mr. Olson was plaintiff's supervisor. See Shaheen Decl. ¶ 10; Steven Breen Olson Declaration ("Olson Decl.") ¶ 1. In that telephone conversation, Mr. Shaheen asked Mr. Olson if he had ever experienced problems with the quality of plaintiff's work. See Shaheen Decl. ¶ 10.6 Mr. Olson said that plaintiff had been a good examiner. See Olson Decl. ¶ 5. When Mr. Olson asked Mr. Shaheen why he wanted to know, Mr. Shaheen said that there was "a quality control issue with Plaintiffs polygraph examinations" and that plaintiff had been barred from conducting further examinations pending an internal investigation. Id.; see also Def.'s Mot. at 5; Michael G. Mulhern Decl. ("Mulhern Decl.") ¶¶ 2-3. Mr. Shaheen did not access any database or system of records in preparation for this conversation with Mr. Olson. See Shaheen Decl. ¶ 10. Mr. Olson did not relay the information he learned from Mr. Shaheen to any other Lockheed Martin employee. See Olson Decl. ¶ 6; Def.'s Reply at 2 ().
In late March 2004, after he had called Mr. Olson, Mr. Shaheen was summoned to PMB headquarters for a full briefing regarding the internal investigation of plaintiff. See Shaheen Decl. ¶ 11. Beyond the telephone calls he received from Quality Assurance staff, Mr. Shaheen's participation in the investigation was limited to this late March briefing. Mr. Shaheen was not kept informed of the status of the investigation prior to or after the briefing, and he did not have conversations about plaintiff with any non-NRO employees at or after this time. See id.
In late April 2004, plaintiff told Mr. Shaheen that he was considering leaving NRO and that he intended to contact his former supervisor, Mr. Olson, as a potential employer and reference. See Mulhern Deel, ¶¶ 2-3. Mr. Shaheen told plaintiff that he had already spoken to Mr. Olson and told, him "everything" he had known before his March 2004 briefing — in other words, that plaintiff was being investigated for possible quality control issues and had been barred from conducting polygraph examinations. See id. ¶ 3; Olson Decl. 115; Def.'s Mot. at 5. Plaintiff subsequently called Mr. Olson.7 In that telephone conversation, plaintiff said that he was not happy with his situation at NRO, but he did not say that he was under investigation. See id. ¶ 4. Plaintiff did not mention the investigation to Mr. Olson because he "knew that Mr. Shaheen had already disclosed the information to [Mr. Olson] without [his] consent, but [he] was not sure of what details [Mr. Olson] had been told, and did [not] want to discuss or confirm any of the details with [Mr. Olson], because [he] did not want him to know about it." Id. (emphasis in original).
Between April 2004 and December 2004, plaintiff repeatedly asked Mr. Shaheen for information about NRO's internal investigation. He received "no report ... or other resolution of the allegations" against him. Compl. ¶ 10. In June 2004, plaintiff retained attorney Michelle Perry to inquire into the status of the investigation. See id. ¶ 17. Ms. Perry contacted the NRO's Office of General Counsel but received no response, See id.
In or about February of 2004, plaintiff applied for a position with Lockheed Martin in Arizona. See Compl. ¶ 20; Daniel J. Engle Declaration ("Engle Decl.") ¶ 4. On July 6, 2004, he was interviewed by Daniel Engle, a senior security manager for Lockheed Martin. See Engle Decl. ¶ 4. Lockheed Martin offered plaintiff a position in late October 2004, and plaintiff accepted it on November 1, 2004.See id. 116. The position required up-to-date government-sponsored security clearances. See id. Plaintiff had already informed Mr. Engle at their July interview that plaintiffs clearances were partially outdated and would have to be reinstated. See id. ¶ 4. As the United States employed plaintiff at the time, Mr. Engle assumed that the government would update and reinstate plaintiffs clearances prior to plaintiffs start date. See id. 116. On November 14, 2004, plaintiff submitted paperwork to obtain the required security clearances. See id. Plaintiff started work at Lockheed Martin in December 2004 while awaiting reinstatement of his clearance. See id. ¶ 7.
In January 2005, Mr. Engle contacted NRO to determine why plaintiffs clearances had not yet been processed. See Engle Decl. ¶ 9. He was told that "[p]laintiff s Periodic Review was out-of-scope, that [plaintiff] had failed to complete his SF-86 during his NRO employment, and that there were issues which were being closely held by NRO Personnel Security." Id. Based on this information, Mr. Engle decided to let the security processing "run its course." Id. In February or March 2005, Mr. Engle again inquired as to the status of plaintiffs security processing, at which point he was advised that additional information was needed prior to a "final adjudication" of the request. Id. ¶ 10. Plaintiff apparently was unaware of the delay and the reasons for it. See Compl. ¶ 23.
In April 2005, Mr. Engle consulted with his supervisor in Colorado regarding the need to fill plaintiffs position with a properly cleared individual. See Engle Decl. ¶ 11. At that time, according to Mr. Engle, Lockheed decided to terminate plaintiff because of his failure to obtain the required clearance within a reasonable period of time. See id. Plaintiff was officially terminated on or about April 15, 2005. See id. ¶ 12.
On October 17, 2005, plaintiff brought suit, alleging two discrete violations of the Privacy Act. First, plaintiff contended that defendant violated Section. 552a(b) of the Act because Mr. Shaheen improperly disclosed protected information to Mr. Olson without plaintiffs consent. See Compl. at 9.8 Second, plaintiff claimed that defendant violated § 552a(d) of the Act by refusing to release information and documents' pertaining to NRO's internal investigation despite plaintiffs and plaintiffs counsel's repeated requests, for access. See id.9 Defendant filed a motion for summary judgment on November 6, 2006, arguing that plaintiff could not make out a prima facie case of improper disclosure under the Privacy Act because Mr. Shaheen did not disclose "record" information retrieved from a "system of records" as required by the Act, and because Mr. Shaheen's disclosures, even if improper, did not give rise to any actual damages. See Def.'s Mot. at 6-8. Defendant further argued that plaintiff's improper withholding claim must fail because plaintiff did not exhaust administrative remedies as required by the Act and applicable regulations. See id. at 8-9.
Summary judgment may be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...
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