Paige v. Drug Enforcement Admin.

• Decision Date: 17 January 2012
• Docket Number: No. 11–5023.,11–5023.
• Citation: 398 U.S.App.D.C. 492,33 IER Cases 321,665 F.3d 1355
• Parties: Lee PAIGE, Appellant v. DRUG ENFORCEMENT ADMINISTRATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

33 IER Cases 321

398 U.S.App.D.C. 492

665 F.3d 1355

Lee PAIGE, Appellant

v.DRUG ENFORCEMENT ADMINISTRATION, Appellee.

No. 11–5023.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 12, 2011.Decided Jan. 17, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:06–cv–00644).Ward A. Meythaler argued the cause for the appellant.

Helen L. Gilbert, Attorney, United States Department of Justice, argued the cause for the appellee. Tony West, Assistant Attorney General, Ronald C. Machen Jr., United States Attorney, and Mark B. Stern, Attorney, were with her on brief. R. Craig Lawrence, Assistant United States Attorney, entered an appearance.

Before: HENDERSON, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Lee Paige (Paige) appeals the district court's grant of summary judgment to the United States Drug Enforcement Administration (DEA) on claims he brought under the Privacy Act, 5 U.S.C. § 552a, and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. For the reasons set forth below, we affirm the district court.

I. Facts

Paige is a special agent in the DEA's Orlando District Office. On Friday, April 9, 2004,¹ he spoke to a group of about fifty children and parents at a community center in Orlando, Florida. At the time, Paige was an undercover agent who also often spoke to schools and other organizations to educate the public about the dangers of illegal drugs. During the presentation, Paige displayed his DEA-issued firearm while discussing gun safety and telling the audience that firearms should be handled only by professionals like himself. His firearm accidentally discharged and he shot himself in the thigh.

With Paige's knowledge, one of the parents in attendance video-recorded Paige's presentation—including the accidental discharge—on a mini-DV cassette tape (Mini–DV). The video was over one hour long and was the only video-recording of Paige's presentation. The parent turned the Mini–DV over to the DEA agents who arrived on the scene that night. Later that night, Robert Patterson, another DEA special agent from the Orlando District Office, copied the Mini–DV onto a VHS tape.

The DEA Office of Inspections (IN), headquartered in Arlington, Virginia, is responsible for investigating all shooting incidents involving DEA personnel. Upon receiving notification of a shooting, IN determines whether to immediately dispatch inspectors from IN headquarters to investigate the shooting or to delegate the investigation to the local DEA office. On April 12, after receiving notice of the shooting involving Paige, IN informed Steve Collins, the Assistant Special Agent in Charge in the Orlando District Office, that it did not intend to send inspectors to Orlando. IN also asked Collins to send IN a copy of the video-recording. That same day, Collins gave the Mini–DV and the VHS to Peter Gruden, a DEA supervisor in the Orlando District Office. Collins instructed Gruden to mail the VHS to IN per its request; Gruden mailed the VHS to IN later that week. On April 14 or 15, IN decided to send two inspectors from headquarters to investigate the shooting because an agent had been injured and because of concern about adverse publicity resulting from the incident.

Sometime during the week of April 12, Gruden directed technical personnel at the Orlando District Office to make “a few” additional copies of the Mini–DV. Def.'s Mot. Summ. J., Ex. 11, Paige v. U.S. Drug Enforcement Admin., No. CV 01:06–644, at 114 (D.D.C. May 16, 2008).² The copies were made on compact discs (CDs). The video appearing on the CD was four minutes, nine seconds (4:09 video) in duration and it depicted only the accidental discharge portion of the Mini–DV. Gruden provided the 4:09 video to several individuals. He sent one copy to William Lutz, the head of the DEA Firearms Training Unit at Quantico, Virginia.³ Gruden also sent copies to two friends, DEA Special Agents Steven Derr and Rick Bendekovic. Gruden gave another copy to Kevin Scully, then a DEA agent in the Orlando District Office, but Scully returned the video to Gruden the same day Gruden gave it to him. ⁴ Finally, according to Gruden's deposition, at Collins's request, he sent a copy of the 4:09 video to the DEA Miami Field Division Management. ⁵

On April 16, an IN program analyst at IN headquarters opened a file for the Paige investigation (IN file). The file was retrievable by Paige's name. ⁶ It consisted of two parts: a correspondence file (maintained by the IN program analyst) and an investigative file. The investigative file included the evidence gathered by Gruden and the IN inspectors.

The two IN inspectors traveled to Orlando on April 19 and returned to IN headquarters on April 21. While in Orlando, the IN inspectors obtained the Mini–DV from Gruden. At some point after returning to IN headquarters, they also received the VHS Patterson made the night of the shooting. One of the IN inspectors also had additional copies of the Mini–DV made on digital video discs (DVDs) after returning to IN headquarters. The DVDs were 23 minutes, 34 seconds in length and were included in the IN file. One of the IN inspectors also had a copy of the Mini–DV made with the accidental discharge portion excised; it was given to the parent who had made the original video-recording of Paige's presentation.

In late April and early May, Paige's accidental discharge was reported in the press. The reports stated that a DEA agent had shot himself in the leg but Paige was not identified by name. A version of the 4:09 video began to appear on internet websites and on the DEA's internal e-mail system (known as Firebird) at some point between April 2004 and early March 2005. The DEA Office of Professional Review (OPR) conducted a one year long investigation into the release of the 4:09 video on the internet and on Firebird but was unable to determine who released it.⁷

Paige filed suit against the DEA in April 2006, alleging the disclosure of the 4:09 video violated the Privacy Act and the FTCA. After completing discovery, Paige moved for partial summary judgment and the DEA moved for summary judgment on all claims. On December 29, 2010, the district court granted summary judgment to the DEA. Paige v. U.S. Drug Enforcement Admin., No. CV 1:06–644, 818 F.Supp.2d 4, 2010 WL 7758769 (D.D.C. Dec. 29, 2010). The court held that Paige failed to establish the elements of his Privacy Act claim—specifically, that the 4:09 video was retrieved from a system of records and that the disclosure was intentional or willful. Id. at 8–16, 2010 WL 7758769 at *2–*9. The court also concluded that Paige's FTCA claim failed because he did not establish all of the elements under Florida law for the tort of invasion of privacy by public disclosure of a private fact. Id. at 15–17, 2010 WL 7758769 at *9–*11. Paige timely appealed.

II. Analysis

We review the district court's grant of summary judgment de novo. Maydak v. United States, 630 F.3d 166, 174 (D.C.Cir.2010). “Summary judgment is appropriate only where there is ‘no genuine issue as to any material fact’ and, viewing the evidence in the light most favorable to the nonmoving party, ‘the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (summary judgment is required “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial”). A dispute is “genuine” if the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” McCready, 465 F.3d at 7 (internal quotation marks omitted).

A. Privacy Act

Under the Privacy Act, “[an] individual may bring a civil action against [any] agency” that “fails to comply with any ... provision of [the Privacy Act] ... in such a way as to have an adverse effect on [the] individual.” 5 U.S.C. § 552a(g)(1)(D). To state a claim for relief, a plaintiff must establish that “(1) the agency violated a provision of the [Privacy] Act, (2) the violation was ‘intentional or willful,’ 5 U.S.C. § 552a(g)(4), and (3) the violation had an ‘adverse effect’ on the plaintiff, 5 U.S.C. § 552a(g)(1)(D).” Maydak, 630 F.3d at 178. Based on the record before us, Paige's Privacy Act claim fails because it lacks the first element.

Subject to exceptions not relevant here, the Privacy Act prohibits a federal agency ⁸ from “disclos[ing] any record which is contained in a system of records by any means of communication to any person.” 5 U.S.C. § 552a(b). The parties agree that the Mini–DV, the VHS, the 4:09 video and the DVDs are all “record[s]” ⁹ and that the relevant “system of records” is the IN file of the investigation of Paige's accidental discharge (designated IN–GB–04–032S/SA Lee Paige). The parties also agree that the version of the video of Paige's accidental discharge that was disclosed on the internet and on Firebird is the 4:09 video made at Gruden's request from the Mini–DV sometime during the week of April 12, 2004. The parties do not agree, however, that the 4:09 video is a “record ... contained in a system of records” under section 552a(b).

The Privacy Act defines a “system of records” as:

a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual[.]

5 U.S.C. § 552a(a)(5). “A system of records exists only if the information contained within the body of material is both retrievable by personal identifier and actually retrieved by personal identifier.” Maydak, 630 F.3d at 178 (emphasis in original; internal quotation marks omitted...