MEMORANDUM OPINION
Plaintiff Eric Feldman, the former Inspector General of the National Reconnaissance Office (“NRO”), brought this action against his employer, the Central Intelligence Agency, for alleged violations of the Privacy Act of 1974, the law that governs how federal agencies must treat records containing personal information. Feldman, a CIA employee, was detailed to the NRO as Inspector General. The NRO is a U.S. government intelligence agency that operates spy satellites. During Feldman’s detail as NRO Inspector General, the CIA’s Inspector General began investigating Feldman for purported improprieties in his claims for reimbursement of travel expenses. As a result of the investigation, the CIA ultimately reprimanded Feldman and reassigned him to a different position. Feldman alleges that the investigation was motivated by personal grievances against him, and that the CIA violated the Privacy Act by leaking details of the pending investigation to unauthorized NRO and CIA employees and to a Congressional staffer. Feldman also alleges the CIA maintained inaccurate records about him. The CIA has moved to dismiss the Complaint or, in the alternative, for summary judgment. For the reasons explained below, the CIA’s motion is granted in part and denied in part. 1
I. BACKGROUND
The Complaint alleges the following facts which the Court assumes to be true
Plaintiff Eric Feldman joined the Office of the Inspector General of the CIA in 1998. Compl. ¶ 5. In 2003, the CIA detailed Feldman to the NRO to serve as its Inspector General (“NRO IG”). Id. Although Feldman was detailed to the NRO, the CIA continued to serve as his official employer. Id. ¶ 4.
Feldman’s Relocation
In March 2006, the NRO director determined that Feldman would be relocated from the Washington, D.C. area to Los Angeles in June 2006. 2 Id. ¶ 6. Feldman subsequently sought and obtained permission to accelerate his move date — or Permanent Change of Station (“PCS”) in agency parlance — to May 21, 2006 based on the availability date of the house he intended to rent in California. Id. ¶ 7.
Prior to May 21, 2006, NRO approved travel expenses for Feldman’s family to cover their temporary living expenses related to the relocation. Id. ¶ 11. These travel expenses are known as Temporary Quarters Subsistence Expenses (“TQSE”) and are calculated according to methods specified in 41 C.F.R. § 302-6.200-6.304. Id. ¶ 10. In addition to TQSE payments for his family, Feldman also received approval for TQSE payments to cover the cost of his own temporary quarters in California. Id. ¶ 12.
From May 30, 2006 to July 25, 2006, Feldman was on a combination of authorized vacation time, known as “annual leave,” and authorized work time away from his primary work location, known as “Temporary Duty Yonder,” or “TDY.” Id. ¶ 13. TDYs — i.e., work travel expenses— represent a different category of reimbursable expenses from TQSE relocation expenses. While Feldman’s personal relocation occurred on May 21, 2006, his family did not complete their move to California until July 27, 2006. See id. ¶ 14. Thus, Feldman’s TDY expenses from late May through July 2006 apparently arose from his need to travel back to the Washington, D.C. area during that period, despite his recent permanent change of station. According to the plaintiff, all expenditures related to Feldman’s move and his TDY were authorized in advance and ultimately approved by senior NRO officials funded with NRO, not CIA, resources. Id. ¶ 15.
The CIA Inspector General’s Investigation
Around August 2006, the CIA Office of the Inspector General (“CIA OIG”) opened an investigation into Feldman’s conduct. Id. ¶ 16. The investigation was triggered by an accusation from a “senior NRO source” whom the plaintiff believes to be a former Deputy NRO IG who was fired from the NRO for cause. Id. The plaintiff also believes that the CIA OIG’s investigation relied upon anonymous allegations arising from a January 2007 audit survey. Id. The apparent focus of the investigation was whether Feldman had sought double recompense for certain expenses by submitting them for reimbursement under both the TDY and TQSE reimbursement frameworks. See id. ¶ 19.
On May 17, 2007, the CIA OIG referred its investigation, which was not yet complete, to the Department of Justice’s Pub-
In the fall of 2007, a senior staff member of the House Permanent Select Committee on Intelligence called Feldman and advised him that he had heard Feldman was under criminal investigation by the CIA OIG. Id. ¶ 42; Declaration of Eric R. Feldman, dated December 2, 2010 (“Feldman Decl.”) ¶ 6. 3 This senior staffer told Feldman that “he received this information from Donald Stone, a professional [Senate Select Committee on Intelligence] staff member, who was a former employee of the CIA OIG and had unsuccessfully competed against Feldman in 2003 for the NRO IG position.” Compl. ¶ 42.
Around December 2007, Feldman’s deputy IG learned from an NRO contractor that Feldman was under investigation by the CIA OIG. Id. ¶ 43.
On January 28, 2008, the CIA OIG formally notified Feldman that it was investigating discrepancies in his travel expenses. Id. ¶ 18. Three days later, on January 31, two CIA OIG agents interviewed Feldman. Id. ¶ 19. The agents told Feldman they were undertaking a criminal investigation into his relocation expenses and they told him that he had been accused of intentionally claiming lodging expenses twice, both under TDY and TQSE, when he stayed at a Residence Inn hotel in Chantilly, Virginia. Id. The plaintiff believes that, despite the agents’ claim, their investigation was not criminal, but rather administrative, since the CIA OIG is not a law enforcement agency. Id.
The plaintiff alleges that around January or February 2008, the CIA IG, John L. Helgerson, personally briefed the NRO director and told him that Feldman should be fired and that an ethics conference Feldman was coordinating should be can-celled for fear of embarrassment. Id. ¶ 17.
Generally, the plaintiff alleges that the CIA OIG investigation was motivated by personal grievances against him. See id., Preamble (“Senior officials within the CIA, to include the former Inspector General John L. Helgerson ... and others within his office, intentionally conspired to undermine confidence in Feldman based on personal bias, factual distortions and manipulated analysis ... [and] sought to repeatedly publicly defame Feldman and spread false and/or privacy protected information ... ”).
By February 2008, Feldman, with the assistance of counsel, began requesting documents and policies related to the investigation from the CIA OIG, and identified purported conflicts of interest regarding the investigation. Id. ¶¶ 22-35.
From April to December 2008, several NRO and CIA employees with no official connection to the CIA OIG investigation learned that Feldman was under investigation. Id. ¶¶ 44-50. Several of these employees allegedly learned of the investigation from an NRO employee named Hannah Marter, who the plaintiff claims “alluded to an unnamed source or sources in the CIA’s OIG.” Id. ¶¶ 44-49.
On May 7, 2008, the Department of Justice (“DOJ”) declined to pursue prosecution of Feldman. Id. ¶ 17.
The CIA OIG’s investigation of Feldman’s conduct resulted in a report of investigation entitled “Travel-Related Fraud and Waste: Eric R. Feldman” (the “ROI”).
Id.
¶ 34. The conclusions of the ROI were that (1) the CIA director should determine the appropriate administrative action in Feldman’s case; (2) the CIA director should be aware of certain previous
On June 10, 2008, Feldman and his counsel reviewed a draft version of the ROI at a CIA facility and, on June 18, 2008, the plaintiff “submitted a written response to the draft ROI” challenging its findings. Id. ¶¶ 24-25.
Subsequently, the CIA OIG produced a final version of the ROI that incorporated responses to Feldman’s comments on the draft version. Id. ¶ 34. Feldman contends that the final ROI only responded to his comments in a very superficial way. Id.
On September 19, 2008, CIA IG Helgerson disclosed the final ROI to the Senate Select Committee on Intelligence (the “SSCI”). Id. ¶ 36. Feldman believes that, through this disclosure to the SSCI, the CIA IG “intentionally politicized” the investigation based on a “personal feud.” Id.
Feldman and his counsel had the opportunity to review the final ROI around the same time that the CIA IG sent it to the SSCI, on September 18 and 19, 2008. Id. ¶ 34. Feldman then submitted a detailed, written response to the final ROI on September 25, 2008. Id. ¶ 35.
In an October 8, 2008 letter to the NRO director, Senator John D. Rockefeller, the Chairman of the SSCI, called for Feldman to be removed from his position. Id. ¶ 36. Feldman’s counsel subsequently sent Senator Rockefeller a copy of the written response to the ROI, and the plaintiff alleges that the SSCI and Senator Rockefeller then “completely removed themselves from the dispute.” Id. ¶ 37.
On December 3, 2008, the CIA director issued a decision regarding Feldman’s conduct. Id. ¶ 38. While the director did not accept all of the ROI’s conclusions, he did find that Feldman had a pattern of seeking reimbursements that were “in excess of what was reasonably necessary” to conduct official travel. Id. The CIA director wrote: “I have concluded that the manner in which you arranged and conducted your official travel, and the reimbursements you sought as a result of your travel, show that you were more interested in maximizing your personal financial gain than prudently using official travel funds.” Id. Accordingly, he issued a letter of reprimand, suspended Feldman for five days, and removed him from his position as NRO IG. Id. The CIA and NRO reassigned Feldman to serve as Senior Adviser for Procurement Integrity for the NRO director. Id. ¶ 39.
The Plaintiff’s Causes of Action
Feldman’s claims for violation of the Privacy Act fall into two basic categories. First, Feldman alleges in Count I that the CIA OIG committed various improper disclosures of Privacy Act-protected personal information by leaking details of the OIG investigation to unauthorized third parties. Id. ¶¶ 55-63. Second, Feldman alleges in Counts II, III, and IV that the CIA faded to maintain and disclose accurate records about him. Id. ¶¶ 64-83. These inaccurate recordkeeping claims are premised on Feldman’s rejection of the findings of the ROI, which is itself a record. See id. Feldman seeks monetary damages, a declaration that CIA officials violated the Privacy Act, referral of those officials for prosecution for their Privacy Act violations, and reimbursement of costs. Id. ¶ 83.
On August 12, 2010, the CIA filed a motion to dismiss the Complaint pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, or, in the alternative, a motion for summary judgment
The defendant’s motion is now before the Court.
II. LEGAL STANDARDS AND STATUTORY FRAMEWORK
A. Motion to Dismiss Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims across the line from conceivable to plausible.”
Bell Atl. Corp. v. Twombly,
B. Motion for Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” based upon the pleadings, depositions, and affidavits and other factual materials in the record. Fed.R.Civ.P. 56(a), (c);
Tao v. Freeh,
C. The Privacy Act
The Privacy Act, 5 U.S.C. § 552a, “safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records ... by allowing an individual to participate in ensuring that his records are accurate and properly used.”
Cloonan v. Holder,
Section (g)(1) of the Privacy Act establishes the circumstances in which a plaintiff may seek civil remedies. 5 U.S.C. § 552a(g)(l). Section (g)(1) recognizes “a civil action for agency misconduct fitting within any of four categories ... and then makes separate provision for the redress of each.”
Chao,
In this case, plaintiff has pled four Privacy Act causes of action based on the CIA’s handling of the OIG Report about him. The plaintiffs claim in Count I is for unlawful disclosure of records under Subsection (g)(1)(D). The remaining three claims all fall under Subsection (g)(1)(C). The second claim is for failure to maintain accurate records pursuant to Section (g)(1)(C) generally. The third claim is also for failure to maintain accurate records, but it specifically invokes Subsection (e)(5), which requires an agency to “maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). Finally, the fourth claim is for failure to take reasonable efforts to ensure records are accurate before disseminating them. This claim is brought pursuant to Subsection (g)(1)(C) and Subsection (e)(6), which provides that an agency “make reasonable efforts to assure that [ ] records are accurate, complete, timely, and relevant for agency purposes” prior to disseminating such records. 5 U.S.C. § 552a(e)(6).
III. DISCUSSION
As explained more fully below, the Court finds that the plaintiff has stated a claim in Count I for unlawful disclosure under the Privacy Act and is entitled to discovery on that claim. The Court finds that the remaining claims in Counts II, III, and IV — premised on the failure to maintain accurate records — should be dismissed.
A. The plaintiff has stated a claim for unlawful disclosure in violation of the Privacy Act.
As noted above, the first cause of action alleges that unlawful disclosures of Privacy Act-protected information occurred when information regarding the investigation of the plaintiff leaked to unauthorized third parties. Specifically, the plaintiff alleges that various NRO and CIA employees and a staffer on the Senate Select Committee on Intelligence learned of the investigation despite having no official connection to it, and he alleges that these facts suggest that unauthorized disclosures occurred. The defendant argues that the plaintiffs
To prevail on a Privacy Act claim for unlawful disclosure, “a plaintiff must show that (1) the disclosed information is a ‘record’ contained within a ‘system of records’; (2) the agency improperly disclosed the information; (3) the disclosure was willful or intentional; and (4) the disclosure adversely affected the plaintiff.”
Doe v. U.S. Dept. of Treasury,
1. The alleged disclosures to Senate Select Intelligence Committee staff are insufficient to state a claim for relief.
The plaintiff has alleged “[i]n or around Fall 2007, John Stopher, a senior staff member of the House Permanent Select Committee on Intelligence, called Feldman and advised him that he had heard Feldman was under criminal investigation by the CIA OIG.” Compl. ¶ 42. Stopher told Feldman that “he received this information from Donald Stone, a professional SSCI staff member, who was a former employee of CIA OIG and had unsuccessfully competed against Feldman in 2003 for the NRO IG position.” 5 Id. These allegations are insufficient to state a plausible claim that the CIA violated the Privacy Act because the CIA is legally authorized and, indeed, required to keep Congressional oversight committees informed of significant investigations and activities, and disclosures in that context do not violate the Privacy Act.
The Privacy Act permits the disclosure of records for a “routine use.” 5 U.S.C. § 552a(b)(3). A routine use means “the
The plaintiff concedes that there is a routine use exception for the CIA to provide information to its Congressional oversight committees, but suggests that “unofficial” disclosures may not be covered by the exception. Pl.’s Mem. at 16. While the Court does not discount the possibility of situations in which a disclosure to a committee staffer would be improper because the disclosure occurred beyond the scope of the staffer’s employment, the plaintiff has not alleged specific facts that suggest that Stone learned of the Feldman investigation through inappropriate channels.
6
As such, the plaintiffs allegation involving Stone presents a claim for violation of the Privacy Act that is potentially conceivable, but which has not inched “across the line from conceivable to plausible” as it must to survive a motion to dismiss.
Twombly,
The CIA also asserts that the plaintiff has failed to state a Privacy Act claim based on the plaintiffs allegations that several NRO and CIA OIG employees learned of the Feldman investigation despite having no official connection to it. According to the defendant, the plaintiff has not adequately alleged that any disclosures to these employees resulted from records that were “actually retrieved” from a Privacy Act-protected source as opposed to originating from the employees’ independent knowledge.
See
Def.’s Mem. at 17-18. As noted above, “[t]he disclosure of information derived solely from independent sources is not prohibited by the statute even though identical information may be contained in [a] system of records.”
Doe v. U.S. Dept. of Treasury,
Relying heavily on the D.C. Circuit’s recent ruling in
Armstrong v. Geithner,
the CIA argues that “mere ‘observations and speculation’ or information from office ‘rumor-mills’ do not constitute Privacy Act violations.”
Id.
at 19 (quoting
Geithner,
Armstrong involved a plaintiff whose attempt to obtain employment at the USDA was sabotaged after six USDA employees received anonymous letters disclosing that the plaintiff was the subject of an on-going investigation at the Treasury Inspector General for Tax Administration’s office, where he had been employed.608 F.3d at 856 . Without knowing who wrote the letters, the plaintiff sued his former office, alleging that information about the investigation in the letters was drawn from his records at the agency, and thus the disclosures were in violation of the Privacy Act. Id. at 857. Immediately prior to trial, it was disclosed that the letters had been written by the plaintiff’s coworker at his old office. Id. At trial, however, the co-worker denied “getting the information in the letters from anyof the ... supervisors involved in the investigation or from records of the investigation,” and insisted that she “based the letters upon independent sources — the rumor mill, her original complaint, and her own observations, assumptions and speculations.” Id. Based on this testimony, the district court dismissed the plaintiffs claims. Id.
Cloonan,
On appeal, the plaintiff in
Armstrong
argued,
inter alia,
that a Privacy Act claim could be proven on the merits by relying on a
res ipsa loquitur
inference that protected information circulating in the office ‘rumor mill’ “must have come from somewhere, could not have come from an unprotected source, and so must have come from a protected source.”
To survive a motion to dismiss, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims across the line from conceivable to plausible.”
Twombly,
3. The plaintiff has adequately alleged intent at this stage of the litigation.
The defendant also argues that the Court should dismiss the plaintiffs unlawful disclosure claim because the plaintiff has not adequately alleged that the defendant intentionally and willfully violated the
The Court disagrees. The plaintiff
has
alleged that the “CIA, its employees and officers, acted intentionally and/or willfully in violation of Feldman’s privacy rights.” Compl. ¶¶ 62. The CIA argues that this allegation is merely conclusory and not supported by sufficiently specific factual allegations. Def.’s Mem. at 28. Viewing the plaintiffs allegations in the light most favorable to the plaintiff, however, the Court finds that the totality of the plaintiffs allegations do adequately allege intentional or willful conduct. The thrust of the plaintiffs Complaint is that his rivals within the CIA and NRO persecuted him by ginning up a misconduct investigation against him and then leaking details of that investigation in violation of the Privacy Act.
See
Compl., Preamble (“Senior officials within the CIA, to include the former Inspector General John L. Helgerson ... and others within his office, intentionally conspired to undermine confidence in Feldman based on personal bias, factual distortions, and manipulated analysis ... [and] sought to repeatedly defame Feldman and spread false and/or privacy protected information ... ”). Therefore, the Court concludes that the plaintiff has adequately alleged intentional or willful conduct at this stage of the litigation.
8
See Doe P v. Goss,
No. 04-2122,
Accordingly, for the reasons stated above, the plaintiff has stated a claim for unlawful disclosure in violation of the Privacy Act and the defendant’s motion to dismiss this claim is denied.
4. Defendant’s Motion for a More Definite Statement or Summary Judgment on Count I is denied.
The defendant has requested, pursuant to Rule 12(e), that the Court require the plaintiff to provide a more definite statement of his claims in the event that the Court denies the motion to dismiss. Pursuant to Rule 12(e), the Court may order a more definite statement of a pleading where the pleading is “so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). “[C]ourts are reluctant to compel a more definite statement pursuant to Rule 12(e) .... [and] [t]o prevent Rule 12(e) from becoming a substitute for discovery, courts will generally deny a motion for a more definite statement where the information sought may be obtained in discovery.”
Hilska v. Jones,
The defendant’s motion, in the alternative, for summary judgment on Count I is also denied because the plaintiff is entitled to discovery. The plaintiff has requested discovery pursuant to former Rule 56(f) — recently amended as Rule 56(d) — of the Federal Rules of Civil Procedure.
See
Fed.R.Civ.P. 56(d); Advisory Committee’s Note, 2010 Amendments (“Subdivision (d) carries forward without substantial change the provisions of former subdivision (f).”). Under Rule 56(d), a court may deny a motion for summary judgment, order discovery, or “issue any other appropriate order” if the non-moving party shows that it cannot present the facts needed to oppose the motion. Fed. R.Civ.P. 56(d). A non-moving party invoking Rule 56(d) “must state by affidavit the reasons why he is unable to present the necessary opposing material.”
McWay,
The plaintiff has submitted a declaration identifying areas of discovery that would be relevant to establishing his unlawful disclosure claim. See Pl.’s Mem., Ex. 2., Rule 56(f) Declaration of Mark S. Zaid, Esq. (“Zaid Discovery Decl.”). The plaintiff seeks discovery that would, among other things, establish how the agency employees mentioned in the Complaint learned about the Feldman investigation. See id. ¶ 8.
The Court agrees that the plaintiff is entitled to conduct discovery before being required to oppose the defendant’s motion for summary judgment.
10
See McWay,
B. The plaintiff has not stated an inaccuracy claim under the Privacy Act.
Counts II, III, and IV allege that the CIA violated subsections (g)(1)(C), (e)(5) and (e)(6) of the Privacy Act by failing to keep accurate records. Compl. ¶¶ 64-83. Subsection (g)(1)(C) provides a Privacy Act cause of action “[w]henever any agency ... fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.” 5 U.S.C. § 552a(g)(l)(C). Subsections (e)(5) and (e)(6) impose accuracy obligations that address certain specific situations. Subsection (e)(5) requires an agency to “maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). Subsection (e)(6) provides that an agency “make reasonable efforts to assure that [ ] records are accurate, complete, timely, and relevant for agency purposes” prior to disseminating such records. 5 U.S.C. § 552a(e)(6).
To state a claim for relief under these sections, a plaintiff must show that “(1) he has been aggrieved by an adverse determination; (2) the [agency] failed to maintain his records with the degree of accuracy necessary to assure fairness in the determination; (3) the [agency’s] reliance on the inaccurate records was the proximate cause of the adverse determination; and (4) the [agency] acted intentionally or willfully in failing to maintain accurate records.”
Chambers v. U.S. Dep’t of Interior,
The plaintiffs inaccuracy claims allege that “The CIA OIG completed a ROI entitled ‘Travel-Related Fraud and Waste: Eric R. Feldman (2006-84690IG)’ that was not maintained with a degree of accuracy necessary to ensure fairness and it was relied upon to proximately cause an adverse determination.” Compl. ¶¶ 65, 71, 77. The defendant asserts that the inaccuracy claims should be dismissed because Feldman has not adequately alleged any erroneous facts that were maintained in his files and relied upon to cause an adverse determination and because the Privacy Act does not provide any remedy to correct subjective agency judgments or statements of opinion in an employee’s files. See Def.’s Mem. at 31-34.
The plaintiffs Complaint presents a tension that arises frequently in the context of Privacy Act litigation. While the Privacy Act allows for correction of factual errors, the Act does not provide a legal mechanism for federal employees to second-guess the judgments or conclusions of federal officials regarding adverse personnel decisions.
See Lee v. Geren,
In the Civil Service Reform Act of 1978 (“CSRA”), codified as amended in scattered sections of Title 5 of the United States Code, Congress “established an elaborate new framework for evaluating adverse personnel actions [taken] against certain categories of federal employees.”
Peter B. v. United States,
The D.C. Circuit has held that the Privacy Act must not be used to circumvent the CSRA’s framework for the review of adverse personnel actions.
Kleiman v. Dep’t of Energy,
With this legal framework in mind, the Court now turns to an evaluation of the plaintiffs factual allegations in support of his Privacy Act inaccuracy claims. As instructed by the D.C. Circuit, the Court will “carefully analyze the asserted causation link” between any alleged inaccuracies and the alleged adverse determination.
The first element that the plaintiff must show to state a claim under subsection (g)(1)(C) of the Privacy Act is that “he has been aggrieved by an adverse determination.”
Chambers,
The second element the plaintiff must show is that the agency failed to maintain his records with the degree of accuracy necessary to assure fairness in the CIA director’s determination. The Complaint itself does not point to any specific facts contained in the ROI that are alleged to be inaccurate or erroneous. Rather, the plaintiff contends that “[m]ost of the facts that are in dispute from the ROI are identified in the submissions that Feldman made internally to the CIA, which obviously means that the CIA is well aware of the actual issues at stake here in the litigation.” Pl.’s Mem. at 31 n. 16. The plaintiffs method of pleading “most of the facts” underlying his claim by making oblique references to internal agency submissions does not satisfy the federal pleading standard, which requires that “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Iqbal,
The Court assumes, however, that the internal submissions the plaintiff is primarily referring to are his responses to the draft and final versions of the ROI. Even if the Court were to rely on these documents for a statement of the facts that Feldman challenges as inaccurate and decide this issue as a motion for summary judgment, Feldman’s claim would fail.
12
On June 10, 2008, Feldman and his counsel reviewed the draft ROI at a CIA facility and, on June 18, 2008, “submitted a written response to the draft ROI disproving each and every allegation against him.” Compl. ¶¶ 24-25. Feldman acknowledges that the final ROI took these responses into account, although he contends that the report did so only in a very superficial way.
Id.
¶ 34. Feldman further acknowledges that he and his counsel “submitted a detailed 54-page written response to the [final ROI] on September 25, 2008, that substantially refuted the allegations and OIG conclusions.”
Id.
¶ 35. In characterizing his written refutation of the ROI in the Complaint, Feldman did not cite any factual errors or discrepancies, but rather
The Court has reviewed Feldman’s internal agency submissions in response to the ROI and finds that they overwhelmingly consist of legal arguments and arguments about the interpretation of certain facts. The Privacy Act does not provide a cause of action for amending the judgment of federal officials regarding such issues.
See Lee,
In any event, Feldman does not allege that his written response to the ROI was not taken into account in the CIA director’s actual disciplinary determination. To the contrary, the allegations in the Complaint and the CIA director’s memorandum to Feldman issued on December 3, 2008 make clear that Feldman’s responses were indeed considered in the determination. The CIA director’s memorandum to Feldman stated:
I have carefully considered the ROI (which mentions the Department of Justice’s declination of prosecution in this case) and the information provided by you and your attorney. While I do not concur with all of the ROI’s conclusions, I find that the ROI describes a consistent pattern of your seeking reimbursements from the Government that were in excess of what was reasonably necessary to conduct your official travel. I have concluded that the manner in which you arranged and conducted your official travel, and the reimbursements you sought as a result of your travel, show that you were more interested in maximizing your personal financial gain than prudently using official travel funds.
Defi’s Mem., Ex. 6, Letter of Reprimand, dated December 3, 2008; see also Compl. ¶ 38. It is this fully informed judgment of the CIA director that, at bottom, the plaintiffs Privacy Act claim attempts to challenge. The plaintiffs Complaint has not identified any discrete factual inaccuracies that this decision relied upon, and it is clear from the director’s memorandum that his judgment took into account Feldman’s detailed submissions and assertions in response to the ROI before in rendering his decision. Thus, the plaintiffs inaccuracy claims, at their core, attempt to attack the judgment of a federal official, rather than to correct a factual or historical error in an official record that proximately caused an adverse determination. In these circumstances, the plaintiff has not set forth specific facts showing any genuine issue for trial on the question of whether any contested factual statements in the ROI proximately caused his reprimand. Therefore, the Court will dismiss Counts II, III, and IV of the Complaint. 13
For the reasons stated above, the defendant’s motion to dismiss or, in the alternative, for summary judgment is GRANTED in part and DENIED in part. The motion to dismiss Counts II, III, and TV is granted. The motion to dismiss is denied for Count I and the case shall proceed to discovery on that count. Within twenty (20) days of this Memorandum Opinion and the accompanying Order, the parties are directed to meet and confer and to file a joint report with the Court that complies with Local Civil Rule 16.3 and Paragraph 8 of the Court’s Standing Order. The Court will then schedule a status conference if necessary.
Notes
. The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 because this case arises under a federal law- — the Privacy Act — and “the district courts ... have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the Unit
. The location of Feldman’s relocation was redacted from the Complaint at the request of the CIA, but the CIA subsequently decided that the location could be made public. See, e.g., Compl. ¶¶ 11-15; Def.’s Mem. at 19 n. 8.
. In his declaration, the plaintiff states that the date of the conversation with the senior staffer was in the fall of 2006, rather than the fall of 2007. Feldman Decl. ¶ 6.
. This case was re-assigned, on January 20, 2011, to the presiding judge.
. The plaintiff does not challenge the disclosure of the completed ROI to Sen. Rockefeller, the Chairman of the SSCI, on September 19, 2008 as an unauthorized disclosure. See Pl.’s Mem. at 16 n. 6. The plaintiff also concedes that it is “possible" that the disclosure to Stone occurred outside the statute of limitations period, although the plaintiff suggests that tolling may apply if that were the case. See Pl.’s Mem. at 27 n. 14. The Court need not reach the statute of limitations issue because the alleged disclosure to Stone fails to state a Privacy Act claim for the reasons described below.
. The plaintiff has alleged that "[ajccording to the ROI itself, no one outside of the CIA OIG was privy to the information in 2006-07.” Pl.'s Mem. at 16 (citing Compl. ¶ 40). The Court, however, is not convinced that the ROI necessarily intended to account for the potential awareness of the Congressional intelligence committees. In addition, as the plaintiff concedes, if the Senate staffer himself subsequently shared information about Feldman with anyone, those disclosures are not covered by the Privacy Act, which does not apply to Congress. See Pl.'s Mem. at 17 n. 7.
. The plaintiff also suggests that disclosures to committee staffers, as opposed to members of Congress themselves, may not be covered by the routine use exception to the Privacy Act. Pl.'s Mem. at 16. This distinction, for which the plaintiff presents no clear authority, does not persuade the Court because Congressional committees necessarily rely on their staff to carry out their functions.
See Gravel v. United States,
. The parties have not directly addressed "the legal question of whether intent or willfulness must be pled in the Complaint or merely proven at trial.”
York,
. The Court adds that a more definite statement regarding the plaintiffs allegations of "actual damages” resulting from the unlawful disclosure, as requested by the defendant, is not warranted before discovery in this case. As noted above, a showing of "actual damages” is necessary to recover for a Privacy Act unlawful disclosure claim.
See Chao,
. The Court does not find that the plaintiff is necessarily entitled to all the discovery sought in his declaration, but simply that the plaintiff may seek relevant discovery to which he is entitled pursuant to the Federal Rules of Civil Procedure before being required to respond to the defendant’s motion for summary judgment.
See McWay,
. The CSRA does not provide for judicial review of the adverse determination resulting in the plaintiff's five-day suspension in this case. Under the CSRA, there is no opportunity for either administrative or judicial review of suspensions of fourteen days or less.
See Lee,
. Feldman did not submit these documents to the Court, but the defendant has attached them as exhibits to its motion.
. The plaintiffs Rule 56(d) declaration primarily identifies areas of discovery that are relevant to the unlawful disclosure claim under Count I of the Complaint.
See
Zaid Dis