UNITED STAT ES DIS TRICT COURT

DISTRICT OF COLUMBIA

______________________________________________ REBECCA A. BRUNOTTE, P laintif f,
v. 1:08-CV -587 (F JS) MARTHA N. JOHNSON, Adm inis trat or of the Ge neral Service s Adm inis trat ion, Defendan t.

______________________________________________ AP P EARANCES OF COUNSEL P ASSMAN & K

AP LAN, P .C. JOSE P H V. KA P LAN, ESQ. 1828 LStreet, NW ANDREW J. P ERLMUTTER, ES Q. Suite 600 Washington, DC 20036 Attorney s for Plaintiff OF F ICE OF THE UNITED HEATHE R D. G RAHAM- OLIVER, AUSA STATE S ATTO RNEY 501 3rd Street Room 44808 Washington, DC 20530 Attorney s for De fenda

nt SCULLIN, S enior Judge

MEMORAN DUM- DECISION AND ORDER

I. INTRODUCTION Currently befor e the Court ar e Plaintiff Rebec ca A . Br unotte' s motion for partial summary judgme nt with respec t to her first and f ourth ca uses of a ction and De fenda nt Gener al Service s Administration's (" GSA") cross-motion for summar y judgme nt as to Plainti ff' s amende dcomplaint in its entirety
. II. BACKG ROUND Fr om J anuar

y 27, 2003, until November 26, 2006, GSA e mploy ed Plaintiff Rebec ca A
. Br unotte as the Dire ctor of I nformation Te chnology

(" I T" ) Ope rations. On Nove mber 3, 2005, Plaintiff contacte d the GSA Equal Employ ment Opportunity

(" EEO" ) off

ice to initiate counse ling for a complaint of g ender -base d discrimination and re taliation. In her EE O complaint, Plaintiff alleg ed that GSA discriminated a g ainst her by g iving he r a le vel 2, " partially meets expectations," perf ormanc e appr aisal and r etaliated a g ainst her by initiating a c riminal investigation into allege d discrepa ncies re g ardingher r equests for reimburse ment of trave l expenses and compensatory time. The instant case conce rns GSA' s alleg ed violations of the Privac y Act, 5 U.S.C. § 552a et seq. , stemming fr om GSA's r elea se of Plaintiff' s protecte d information. On August 8, 2005, due to issues conce rningalleg ed discre pancie s in Pl aintiff' s reque sts for tra vel expense re imbursements, her supe rvisor, Casey Coleman, filed a c omplaint with the GSA Offic e of the Inspector G ener al (" OI G" ). Ke rry Mannion, OI G Criminal Investig ator Special Ag ent, was a ssigne d the ca se and inve stigated the cha rg es ag ainst Plainti ff. F ollowing that investigation, OI G re fer red the case to the U.S. Attorney ' s Offic e for the Easter

n District of Virg inia. J oseph Wheatley , Special Assistant U.S. Attorney for the E astern D istrict of Virg inia, then cha rg ed Plaintiff with theft of g overnme nt property , 18 U.S.C. § 641, and false c laims, 18 U.S.C. § 287. As is further discussed be low, the cr iminal charg es ag ainst Plainti ff we re dismiss ed in J une 2006. On J anuar

y 4, 2006, the EEO issued a Counselor' s Report reg ardingPlaintiff's N ovember

-2-3, 2005 discrimination and re taliation complaint, which containe d, amongother thing s, a

summary of Plaintiff' s alleg ations ag ainst GSA in her EEO c omplaint. Plaintiff now alleg es 1 that, in violation of the Privacy Act, her supervisor, Case y

Coleman, disclosed the c ontents of her EEO Counselor' s interview to GSA employees G ary Drug ley , J ohn Geist, and Cec elia B rown, as 2 well as to Coleman' s husband, Steve B olster. Wit h respe ct to the cr iminal charg es pending ag ainst Plainti ff r eg ardingher tra vel expense reimburse ment reque sts, in J une 2006 , Plaintiff signe d a pre trial diversion agree ment under which all cr iminal charg es ag ainst her we re dismissed. OI G, howeve r, maintains that it continued its investigation because the servic ing a g ency (GSA' s Chief Information Of fice r) ha d not y et made a

final disposition of the criminal ca se ag ainst Plainti ff. Not until Dec ember 12, 2006, when OI G re ceive d the final disposition report closingthe ca se, did OI G forma lly close the
case . On J une 20, 2006, Plaintiff submitted an application for employ ment to the Gover

nment Printing Off

ice ( "G PO") for a

n I T Specialist position. S he re ceive d a tentative of fer for employ ment on October

5, 2006, which wa s subject to her suc cessf ul completion of a Questionnaire for Non- Sensitive Posi tions (Form SF- 85) and a Dec laration of Fe dera l Employ ment (F orm OF -306). In the Dec laration of Fe dera l Employ ment application for

m, questions nine and twelve , which ar e fully set forth be low, perta ined to whether Plaintiff had eve r

On J anuar

y 25, 2006, Plaintiff filed a for mal EEO complaint of g ender -base d 1 discrimination and re taliation ag ainst GSA, which GSA ac cepte d for investig ation on Fe bruar y 2, 2006. Cece lia Br own has since marrie d and is ref ere nced in c erta in filings as Cec elia B rown 2 L ane. T he Court will refe r to her a s either Cec elia B rown or B rown. -3-been punishe d criminally or whe ther she ha d left any job involuntarily . Plaintiff answer ed both questions in the neg ative. As stated, a lthough the c riminal case ag ainst Plainti ff ha d been disposed of in J une 2006, OI G contends that it continued to investigate Plaintiff until December 2006; and, on Octobe r 12, 2006 — af ter Plaintiff had submitted her completed e mploy

ment application for

ms for the GPO position for which she was a pplying — Ca sey

Coleman sent Plaintiff a letter pr oposing he r re moval from GSA. On Octobe r 25, 2006, Plaintiff met with persons at GPO to re view her application for

ms and to complete a

drugtest. Plainti ff a lso met with Ri char d L eeds, he r would-be supervisor a t GPO, who informed he r that her first day of work w ould be Novembe r 26, 2006. On Novembe r 3 2, 2006, GPO sent Plaintiff a " Final Appointment L etter" cong ratulatingher on he r selec tion for the position at GPO. 4 On Novembe r 20, 2006, six day s befor e her eff ective sta rt date at GPO, Plainti ff a nd GSA enter ed into a settlement a g ree ment with respec t to her EEO c omplaint. Under the te rms of that ag ree ment, amongother thing s, (1) Plaintiff agree d to resig n from her position at GSA eff ective N ovember

25, 2006; (2) GSA agree d to rescind Plaintiff' s "pr oposed re moval action dated Oc tober 12, 2006, a nd that [she] had a c lear

rec ord while e mploy ed at GSA" ; (3) GSA ag ree d to raise Plaintiff' s "pe rfor mance appra isal for the pe rfor mance period e nding Septe mber 30, 2005, from a le vel 2 to a leve l 3, with no comments by November

25, 2006"; a

nd (4) GSA ag ree d to provide Plaintiff' s prospec tive employ ers " only a neutr al re fer ence , and shall only state Plaintiff alleg es that she r equeste d leave on November 26 and Nove mber 27 a

nd that 3 L eeds a pproved he r re quested lea ve. Amongother thing s, the letter include d Plaintiff's job title, pay rate , and set he r ef

fec tive 4 start date f

or Nove mber 26, 2006. -4-[P laintiff' s] dates of employ ment with GSA, her job title at the time of her resig nation, that she resig ned her

employ ment or transf

err ed to another

Fe dera l Ag ency , information about her salary , and her last perf ormanc e rating." Finally , the settlement agree ment provided that, " [i ]f [ Plaintiff] finds employ

ment with another F eder al ag ency prior to the ef

fec tive date of

her r esignation she will transfer

to that ag ency

eff ective N ovember

26, 2006." GSA OI G Criminal I nvestig ator Mannion subseque ntly called N athan B rown, a

specia l ag ent for the GPO OI G, and told him that he was involved in investig atinga cr iminal case involving Plaintiff and that he had re ason to believe her G PO application might have included false statements. On Nove mber 21, 2006, a fter the criminal ca se ag ainst Plainti ff ha d been disposed of in J une 2006 but prior to GSA OI G' s alleg ed for mal closingof the c ase in De cembe r 2006, Mannion, from GSA, sent a fax to Brown, at GPO, with Pl aintiff' s OI G cr iminal investigation report. B rown then infor med his supervisor, Ronald Koc h, Assistant I nspector Gene ral for

Investig ations at GPO OI G, about the f ax and its contents. GPO OI G took issue with Plainti ff' s responses to que stions nine and twelve in her completed De clar ation of F eder al Employ ment application for

m. Question nine asked, " During the last 10 y ear s, have you been c onvicted, bee n imprisoned, been on pr obation, or bee n on parole ? " Plaintiff a

nswere d, "N o," to that que stion. Question twelve aske d, "D uringthe last 5 y ear s, have you been f

ired fr om any

job for any

rea son, did y ou quit after be ing told that you would be fire d, did y ou leave any job by mutual ag ree ment beca

use of spe cific pr oblems, or wer e y ou disbarre d from F eder al employ ment by the Off ice of Personnel Mana g ement or a ny other Fe dera l Ag ency ? " Plaintiff a lso answer ed, " No," to that question. The employ ment application form also provide d that, "if you are selec ted, bef

ore you are appointed you will be asked to
-5-update your re sponses on this form and on other materia ls submit ted duringthe application proce ss and then to re cer

tify that y our answe rs ar e true ." On Novembe r 28, 2006, whe n Plaintiff arrive d for he r first day of work a

t GPO, Vickie Ba rber , GPO Direc tor of Human Ca pital Operations, refused to a llow her to beg in work and advised he r to retur

n to GSA. On November 30, 2006, Ba

rber submitt ed to GSA a " Request for Preliminary

Employ ment Data" to determine a ny outstanding issues be fore allowingPlaintiff to beg in her ne w job at GPO. GSA re sponded to GPO' s reque st by stating that Plainti ff ha d a leve l 2 (rather than le vel 3) pe rfor mance revie w; that, in response to a question reg ardingwhether any unfavor able infor

mation reg ardingPlaintiff's e mploy ment at GSA exist ed, GSA answ ere d, "D on' t Know" ; and GSA stated that Plaintiff' s most rece nt perfor mance evaluation ratingwas "Satisfa ctory ." Soon ther eaf ter, in a notice dated Dec ember 7, 2006, GPO withdrew Plaintiff' s job offer
. In her a mended c omplaint, Pl aintiff asse rts the followingfour c auses of action ag ainst GSA: (1) for

the unauthorized disclosure of private doc uments pursuant to the Privacy Act, 5 U.S.C. § 552a et seq. , by

sendingvia email the c ontents of Plaintiff' s EEO counse lor' s repor t to GSA employ ees; (2) for the una uthorized disclosure of private documents pursua nt to the Privacy Act, 5 U.S.C. § 552a et seq. , by failingto provide a " neutra l" e mploy ment ref ere nce to GPO a s the terms of the EEO settlement a g ree ment require d and for disclosing r elated pr otected documents to GPO; (3) for failingto maintain acc urate rec ords pursuant to the Privac y Act, 5 U.S.C. § 552a(e) (5), by

failingto expunge unf

avora ble data f rom Plaintiff' s rec ords as the te rms of the EEO settlement ag ree ment require d; and (4) f or fa iling to comply

with the require ment to collect infor

mation from Plaintiff direc tly , pursuant to the Privac y Act, 5 U.S.C. § 552a(e )(2) , by
-6-failingto collect information directly from Plaintiff re g ardingher a pplication to work at GPO befor e re questingsuch information from GPO. The Court hea

rd ora l argument in support of and in opposition to the pending motions on August 28, 2012. At that tim e, the Court dismissed Plainti ff' s third cause of ac tion as abandone d based on Plaintiff' s failure to addre ss that claim in her memora ndum of law in opposition to GSA' s motion for summary judgme nt. SeeMinute Entry dated August 28, 2012. The Court also denied Plaintiff' s motion t o strike a leg al ar gument GSA alleg edly raised f or the fir st tim e in its reply to Plainti ff' s opposition t o GSA' s motion for summary judgme nt for the r easons state d on the re cord. See id. The Court re serve d decision with respe ct to Plaintiff's motion for pa rtial summary judgme nt and Def

endant' s cross-motion. The f ollowing c onstitut es the Court' s resolution of those re maining issues.
III. DISCUSS ION A. Stand ard of review Summary judgme nt is warra

nted " if the movant shows that there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law." Fe d. R. Civ. P
. 56(a) ; see Ande rson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). A f act is " materia l" if it might af fec t the outcome of the litigation, Holcomb v . Powell , 433 F.3d 889, 895 ( D.C. Cir. 2006), and a

n issue is "g enuine" if the " evidenc e is such that a r easona ble jury could re turn a verdic t for the nonmovingparty ," Anderson , 477 U.S. at 248. In decidinga motion for summary judgme nt, the court must view all fa cts and dra w all re asonable infere nces in fa vor of the nonmoving pa

rty
. See id. at 255 (c itation omit ted).

-7-B. Cross-m otions f or sum m ary judgm ent as to P laintif f' s fi rst c ause of action f or unau thorize d di sclosure under the P rivacy Ac t with respect t o the EEO coun selor's report "T o preva il on a Privacy

Act cla im for unlawf

ul disclosure, ' a plaintiff must show that (1) the disclosed information is a "re cord" contained w ithin a "sy stem of re cords" ; (2) the a g ency improperly

disclosed the information; (3) the disclosure w as willful or intentional; and (4) the disclosure a dverse ly

aff ecte d the plaintiff.' " Feldman v . Cent. IntelligenceAgenc y , Civ. 797 F. Supp. 2d 29, 38 (D.D.C. 2011) (quotation omitted). The pla intiff must additionally have suf fer ed

"' actua l damag es' " a s a re sult of the disclosure. See id. (citation omitted). Plaintiff complains about a disclosure that her supe rvisor at GSA, Case y Coleman, made when, in an e mail dated De cembe r 15, 2005, she disclosed the contents of Plaintiff' s EEO counselor' s interview to John Geist, Gary Drug ley , Cece lia Br own, and Steven B olster. Plaintiff 5 claims that this disclosure violated the Privac y Act, which pr ovides that " [n] o ag ency shall disclose any

rec ord . . . to any

person, or

to another a g ency , except pursuant to a wr itten reque st by , or with the prior written consent of , the individual to whom the rec ord per tains," subjec t to
cer tain exceptions. 5 U.S.C. § 552a(b). Plaintiff alleg es that, as a result of this disclosure, she has suffe red e motional dist ress a nd actua l damag es. To be timely , a plaintiff must bringher c laim under the Privac y Act " within two y ear s from the date on which the c ause of action ar ises[.] " 5 U .S.C. § 552a(g )(5) . A ca use of a ction Plaintiff complained about two se parate disclosures in her amende d complaint, the first 5 of which w as made on Dec ember 13, 2005, when GSA disclosed the summary of Plaintiff' s interview w ith the EEO counse lor to Casey Coleman. Duringthe August 28, 2012 moti on argument, howeve r, Plaintiff made c lear that she no long er c halleng es this initi al disclosure a s violative of the Privac y

Act. -8-arises a nd the statute of limitations beg ins to run when " the plaintiff knows or should know of the alleg ed violation." Tijerina v. W alters , 821 F.2d 789, 798 ( D.C. Cir. 1987) (citation omitted). Her e, Plaintiff filed he r fe dera l complaint on March 28, 2008. Plaintiff c oncede s that, on Marc h 10, 2006, she bec ame a

war e of the disclosure to Ge ist and Drug ley and, thus, filed her

complaint eig hteen da

y s beyond the limitations period with re spect to the disclosure to Geist and Drug ley
. Plaintiff, however , argues that she did not know about the disc losure to B rown a nd Bolster until August 2006, there by makingher c laim timely with respec t to them. Pl aintiff contends that, in examining this claim for timeliness purpose s, the Court should "look sepa rate ly , alleg ed violation by

alleg ed violation, to see whe n the plaintiff lea rned of the disclosure; the courts will not presume that lea rningof one violation plac es the plaintiff [on notice] of other violations, even if similar." SeeDkt. No. 64 at 17 (c iting Cirals ky [ v. Cent. Intelligenc e Age ncy ,] 689 F. Supp. 2d [141,] 158 [(D.D.C. 2010)] (other citation omitted)). 6 On the other

hand, GSA conte nds that Plainti ff' s failure to file her f eder al complaint within two y ear s of havinglear ned of the alleg edly

improper singular disclosure bars he r fr om
asser ting this ca

use of a ction in its entirety
. The Court must essentially decide whether

Plaintiff's Privac y

Act cla im concer

ning

Although a

court may

equitably toll the statute of limit ations in certa in case s, "most 6 commonly

when the pla intiff ' despite all due dilig ence . . . is unable to obtain vital information bear ing on the exis tence of his claim[,] ' " Chung v. United States Dep't of Justice , 333 F.3d 273, 278 (D.C. Cir. 2003) (quotation omitted), a Privac y Act cla im is nottolled by continuing violations, see Ciralsky v . Cent. IntelligenceAgenc y , 689 F. Supp. 2d 141, 153-54 (D .D.C. 2010) (quotation and other

citation omitted), and " [a] new c ause of action does not a

rise ea ch time an adver se dete rmination is made base d on the alleg edly err oneous re cords[,]" Allmon v. Fed. Bureau of Prisons , 605 F. Supp. 2d 1, 4 (D.D .C. 2009) (citations omitted). -9-GSA' s email disclosure of the contents of he r EEO c ounselor' s repor t to Brown a

nd Bolster can

7 be divided into separ ate disclosure s. Coleman' s email to Geist, Drug ley , Br own, and B olster constituted a sing le, discre te ac t, givingrise to one a lleg ed Privac y Act violation. Plaintiff relies
on Cirals ky

to support her proposition that the Court should essentially divide this cause of action into multipl e disclosure s to eac h individual email rec ipient; and, for timeliness purposes, the two-year

statute of limitations shoul d only beg in to run when Plaintiff knewor should have known that ea ch ema il recipient wa s made privy to her prote cted infor

mation. Cirals ky , howeve r, is distinguishable f rom the ca se at ba

r. Wherea s the plaintiff in Cirals ky had alleg ed multipl e Privac y

Act violations stemming fr om discrete disc losures, see Ciralsky , 689 F. Supp. 2d at 157-58, Plaintiff has at all times pursued this claim as a standa lone ca use of a ction based on
one ema il sent to four (or thre e) individuals. On Marc h 10, 2006, Plaintiff became awa re of the email disclosure ; and, re g ardle ss of whether she knewor should have known that the email wa s disseminated to Bolster a nd/or Br own in addition to Geist and Drug ley , Plaintiff attained the ne cessa ry knowledg e of a

n alleg ed Privacy Act violation on that date. See Ciralsky , 689 F. Supp. 2d at 158. The ref ore, the Court finds that the statute of limitations was trig g ere d on Marc h 10, 2006, when Plaintiff first be came
awa re of the email. Plaintiff waited until Marc h 28, 2008, to assert this claim, which is more than two y ear s after

the statute of limitations was trig g ere d on Marc h 10, 2006. As such, the Court finds that the statute of limitations bars this P rivac y Act cla im in it s entirety ; and, thus, the
J ohn Geist, Gar

y Drug ley , and Cec elia B rown we re the only persons to whom Coleman 7 addre ssed the De cembe r 15, 2005 ema il. Col eman did not ac tually email B olster, who is Coleman' s husband; rathe r, in her e mail messag e, Coleman stated, " Good work, G ary [Drugle y ]. Steve [Bolster] applauds you." SeeDkt. No. 53-11. This ambiguous comment indicates that Coleman may

have disc losed information to Bolster reg ardingPlaintiff's EE O alleg ations. -10-Court denies Plaintiff' s motion for summary judgme nt with respec t to her first ca use of a ction and g rants GSA' s cross-motion for summar y judgme nt on this claim.
C. GSA's cr oss-m otion f or sum m ary judgm ent as to P laintif f' s second cause of action for un authorized disclosu re under the P rivacy Ac t Plaintiff alleg es that GSA violated the Privac y Act by failingto provide a " neutra l" employ ment ref ere nce to GPO a s the terms of he r EEO se ttlement ag ree ment require d. GPO sent
a re quest to GSA to complete a SF -75 F orm, which is a form that is used to obtain preemploy ment information from a

g overnme nt job applicant. Plaintiff alleg es that, in completing that form, GSA submitted cer tain err oneous and da

mag ing inf

ormation to GPO, in violation of the Privacy

Act. Mannion at GSA disclosed Plaintiff' s criminal investig ative file to B rown at GPO. At the time of their disclosure , the investig ative re cords that Ma nnion disclosed constituted a " rec ord" contained w ithin a "sy stem of re cords" within the meaningof the Privac y Act. See5 U.S.C. § 552a(a )(5)
. Mannion made two se parate disclosures to B rown — fir st via telephone a nd then 8 a follow-up disc losure via f ax. 9 GSA seeks to invoke one of the twe lve exceptions to the g ener al rule pr ohibiting such disclosures under

the so-ca lled "r outine use" exception, which allows for the disclosure of
In fac t, the documents that Mannion sent a dvised Br own [the recipient] "that this report 8 is from a sy stem of re cords known a s GSA/ADM 24, Investig ation Case F iles," which is subject to the provisions of the Privacy Act of 1974. Conseque ntly , this report may be disclosed to appropr iate GSA off

icials pursuant to routine use ." At oral a rgument, the Court raised the issue of whe ther the or al communication of 9 information containe d within a rec ord would violate the Privac y Act. Plaintiff ar gued that it would. Case law a

ppear s to support Pl aintiff' s position. See, e .g., Jacobs v . Nat'l Drug IntelligenceCtr. , 423 F.3d 512, 520- 21 n.10 (5th Cir. 2010) (c iting ca ses). -11-rec ords " for a routine use . . . ." 5 U.S.C. § 552a(b)(3) . Routine use means " the use of suc h
rec ord for a purpose which is compatible with the purpose for whic h it was collec ted[.] " 5 U.S.C. § 552a(a) (7). Ea ch fe dera l ag ency is require d to publish i n the Fe dera l Reg ister a notice reg ardingthe sy stem of re cords it maintains, alongwith an explanation reg ardingthe routine uses of such infor

mation. See 5 U.S.C. § 552a(e) (4)( D). The ag ency must demonstrate both compatibility

and publication in orde r to invoke the routine use exception. See R adack v . United States Dep't of Justice , 402 F. Supp. 2d 99, 104-05 (D .D.C. 2005). Wit h reg ard to the r equisite published notice, GSA OI G maintains investiga tive rec ords in acc ordanc e with the Privac y Act Sy stem of Recor ds Notice GSA/ADM- 24, Investig ation Case Files (" ADM-24" ). ADM- 24 listed fourtee n routine uses, including , amongother thing s, submissi ons "[t] o a fe dera l ag ency in connec tion with the hiring or r etention of a n employ ee . . . ." SeeDkt. No. 56-21; 68 F ed. Reg . 16798, 16799-800 (Apr . 7, 2003). GSA has, thus, satisfied the publication re quirement a s applied to the disclosure to GPO. Howeve r, an " ag ency

cannot, by

the mere publication of broa d routine use pur poses, evade the statutory

require ment that disclosure must be compatible with the purpose for which the mater ial was c ollected." Britt v. Naval Investigative Se rv. , 886 F.2d 544, 550 ( 3d Cir. 1989). In order to establish "c ompatibilit y ," the ag ency' s purpose in disclosingthe information must have be en compatible with its purpose in collec ting it. See D oe v. U nited States Dep't of Justice , 660 F. Supp. 2d 31, 48 (D.D .C. 2009). GSA asser ts that the rec ord it compiled for the purpose of investigating Plaintiff' s alleg ed tra vel re imbursement infra ctions was compatible with the rea son for its disclosure to GPO, a pr ospective e mploy er, be cause (1) Plaintiff' s prior potentially fra udulent conduct indicated a lac k of integ rity or fitness for

employ ment at GPO and ( 2)
-12-Mannion, in the course of his investigation, wanted to see if Plaintiff had per petrated another fra ud by submitt ing f

alse e mploy

ment application information to GPO, thereby impactinghis own investig ation. I t is unclear on the curr ent re cord whether Mannion' s disclosures to Br own wer e compatible with the purpose for whic h the information wa s collecte d. I ssues of fa ct re main reg ardingMannion' s motives in subm itting Plaintiff' s criminal investig ation information to GPO and whe ther these submissi ons can be said to have be en compa tible with GSA's purpose for collectingit in the first instance. Ac cording ly , the Court finds that GSA is not entitl ed to judgme nt as a matter

of law pur suant to the " routine use" exception at this stage of the litigation and, thus, denies GSA' s cross-motion for summar y judgme nt with respec t to Pl aintiff' s second
cause of ac tion. 1 0
D. Cross-m otions f

or sum m ary judgm ent as to P laintif f' s fou rth cause of action und er the P rivacy Ac t for fai lure to c ollect inform ation di rec tly from P laintif f concerning her application to w ork at G P O Section 552a(e )(2) of the Privac y Act re quires fe dera l ag encie s to "c ollect information to the g reatest ext ent pra cticable direc tly from the subjec t individual when the information may result in adver se dete rminations about an individual' s rights, benefits, and privilege s under Fe dera l prog rams[.] " 5 U .S.C. § 552a(e)( 2). " This section ' was de signe d to discourag e the collection of pe rsonal information from third party source s and there fore to encour ag e the
acc urac y of F eder al data g ather ing.' " Augustus v. McH ugh , 825 F. Supp. 2d 245, 257 (D.D .C.
As the Court made c lear

at ora l argument, beca

use it appea

rs that the investig ation was 1 0 ong oing at the time of the disclosures, the re is some que stion whether this use of the rec ord would fall within the " routine use" exception. Howeve r, bec ause the re a re material issues of f

act that must resolved in order to answer

this question, sum mary

judgme nt is inappropriate. -13-2011) (quotation omitted). In order to rec over unde r this provision, a plaintiff must establish that "( 1) the a g ency

did not obtain information from her ' to the greatest ext ent pra cticable ,' (2) this violation resulted in an adve rse e ffe ct on her (as oppose d to an adve rse de termination), and ( 3) the ag ency' s conduct wa s ' intentional or willful.'" Velikonja v. M ueller, 362 F. Supp. 2d 1, 19 (D.D.C. 2004), abrogated on other grounds , Doe v . Chao , 540 U.S. 614 (2004) (quotation omitted). Plaintiff alleg es that GSA violated § 552a (e) (2) whe n Mannion (fr om GSA) contac ted Br own (a t GPO) in an ef

fort to collec t information reg ardingPlaintiff's G PO job application. Rather than c ontactingBr own, Plaintiff contends that Mannion should have contac ted her direc tly to reque st a copy

of her GPO application and/or

to discuss information reg ardingher application, as it would have been pr actica ble for Ma

nnion to have done so. GSA contends that it could not have prac ticably procur ed the infor

mation from Plaintiff beca use, amongother re asons, Mannion suspec ted that Plaintiff had fa lsified aspec ts of her G PO job application. Howe ver, " the fa ct that plaintiff wa s suspected of false sta tements does not excuse the [ag ency] from seekinginformation from he r direc tly ." Velikonja, 362 F. Supp. 2d at 22 (citation omitted). Moreove r, " the subjective thought proce sses . . . are irrele vant to the g overnme nt's le g al obligation under sec tion (e)( 2); the ' prac ticability ' standard of that provision require s the g overnme nt to act in a par ticular wa y , not to eng ag e in a pa

rticular thought proce ss." Brune v. I

nternal Reve nue Serv

. , 861 F.2d 1284, 1288 ( D.C. Cir. 1988). Although c ourts have not articulate d clea

rly when it bec omes " impractica ble" to seek infor

mation from the subjec t individual, the fac t that GSA had re ason to doubt Plainti ff' s cre dibilit y does not nec essar ily

mean that seekinginformation from he r wa s impractica ble under the Privacy

Act. See V

elikonja , 362
-14-F. Supp. 2d at 19 (c itation omit ted). The Court finds that issues of fac t remain a s to whether

GSA obtained information from Plaintiff to the gr eate st ex tent prac ticable, whe ther a ny such violation was intentional or willful, and whe ther GSA's conduct (not GPO' s) re sulted in, or proxi mately

cause d, some adve rse e ffe ct on Plaintiff. 1 1 Acc ording ly , beca

use Plaintiff has cr eate d g enuine issues for trial, the Court denies the parties' cross-motions for summar y judgme nt with respec t to Pl aintiff' s fourth ca use of a ction.
IV. CONCLUSION Havingcar efully

revie wed the e ntire re cord in this matter, the pa rties' submissi ons and oral a rguments, and the a

pplicable law , and for

the above -stated r easons, the Court he reby ORDERS that Plaintiff's third c ause of action is DISMISSE D as aband oned ; and the Court further ORDERS that Plaintiff's motion for pa rtial summary

judgme nt is DENIED ; and the Court further ORDERS that Def

endant GSA' s cross-motion for summar y judgme nt is GR

ANTED with respec t to Pl aintiff' s first cause of ac tion and DENIED in all other re spects; and the Court further
The re cord indicates that Mannion contac ted B rown to collec t information about

1 1 Plaintiff's G PO job application based at least in part on his belief that Plainti ff ha d falsified aspec ts of her G PO job application. This indicates that Mannion mig ht have intentionally and willfully cause d injury

to Plainti ff in the f

orm of her

job prospects at GPO. I f not intentional and willful, a rea sonable jury

could find that Mannion' s actions wer e cle arly violative of Plaintiff' s Privacy Act rights, which is sufficient to pre clude summary judgme nt. See Laningham v. U nited States Navy , 813 F.2d 1236, 1242- 43 (D.C. Cir. 1987). F urthermor e, the r ecor d indicates that GPO only beg an to consider

resc inding Plaintiff' s job offer afte r Mannion conta cted B rown. Thus, it can re asonably

be infe rre d that Mannion' s actions could have been the proxi mate ca use of GPO' s revoc ation of Plaintiff' s job offer and other alleg edly resultinginjuries. -15-ORDERS that Plaintiff's c ounsel shall initiate a telephone confe renc e, usinga

profe ssional telephone c onfer encingservice , with the Court and opposingcounsel on October 17, 2012 , at 9:30 a.m . to schedule the trial of this matter. Onc e all counse l have be en conne cted to the call, the c onfer ence service shall contac t the Court at the followingtelephone numbe r: 315- 234-8560
. IT IS SO ORDERED. Dated: Septembe r 25, 2012 Sy rac use, Ne w York

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