Opinion
Civil Action No. 02-0387 (RMU), Document Nos. 35, 36.
October 25, 2004
I. INTRODUCTION
This matter comes before the court on the plaintiffs' motion for summary judgment and the defendants' motion for summary judgment or dismissal. The pro se plaintiffs, Stephen Freeman and Lorraine Fairchild, worked as criminal investigators with the Environmental Protection Agency ("EPA"). They bring suit against the EPA and the Department of Defense ("DOD") (collectively, "the defendants") under the Privacy Act for disclosing information related to the plaintiffs' drug tests. For the reasons that follow, the court grants the defendants' motion for summary judgment as to the plaintiffs' first, second, and fourth allegations; grants the defendants' motion to dismiss the plaintiffs' third allegation; and denies the plaintiffs' motion for summary judgment in its entirety.
II. BACKGROUND
The plaintiffs worked for the EPA in 2000 as criminal investigators. Compl. ¶ 9. During this time, the EPA followed a Drug-Free Workplace Plan ("DFWP"). DFWP required, among other things, random drug testing of certain EPA employees. Defs.' Statement of Material Facts ("Defs.' Statement") ¶¶ 1-5. As the defendants explain, "EPA's DFWP requires that fifteen percent of employees in `Testing-designated Positions' ("TDPs") be subject to random testing every year." Id. ¶ 5.In 2000, both of the plaintiffs worked as special agents in Office of the Inspector General ("OIG") at the EPA, positions that the EPA designated TDPs and subjected to random drug testing. Id. ¶ 6. On January 10, 2000, the database manager for EPA's personnel system selected Fairchild and ten others for drug testing. Id. ¶ 7. On February 8, 2000, the database manager selected Freeman and fifteen others for drug testing. Id. ¶ 9.
Fairchild learned on February 28, 2000 that she would be tested that day. Id. ¶ 11. The same day, the Deputy Assistant Inspector General at the EPA OIG, Emmett Dashiell, Jr., received a phone call from an OIG employee who wanted to meet with Dashiell. Id. ¶ 12. Dashiell met with the employee shortly after the call. Id. The employee stated to Dashiell that Fairchild
earlier that morning had approached that employee and another co-worker and had asked them if they would assist her in falsifying her drug test by giving plaintiff Fairchild their urine for her to use during the test. The employee also stated that plaintiff Fairchild had said that she knew that she would not pass the drug test at that time because she had "smoked marijuana the night before."Id. ¶ 13 (internal citation omitted).
Dashiell subsequently contacted Fairchild's supervisor, Allen Fallin (EPA Assistant Inspector General for Investigations), and Nikki Tinsley (EPA Inspector General), to discuss how to investigate the allegation regarding Fairchild. Id. ¶ 14. The EPA officials agreed that a separate federal OIG office should investigate the matter to avoid the appearance of any conflict of interest or partiality. Id. ¶¶ 14, 17. On or about February 28, 2000, Dashiell thus contacted John Keenan, Assistant Inspector General for Investigation, Defense Criminal Investigative Service ("DCIS") and requested the assistance of DCIS (a DOD entity). Id. ¶ 19. Although the EPA also determined that Fairchild should be supervised while giving her urine sample, apparently Fairchild gave the sample unsupervised and EPA therefore discarded it. Id. ¶ 15.
Fairchild provided a second sample on March 9, 2000, but the EPA discarded this sample because Fairchild provided an insufficient amount of urine. Defs.' Statement ¶¶ 27-28. Fairchild took a third test on or around March 23, 2000. Id. ¶ 25. The test was negative. Id. Freeman's March 13, 2000 test also provided a negative result. Id. ¶¶ 32, 34.
Sometime between February 28 and March 6, 2000, Annette Wright of DCIS contacted Dashiell and indicated that she had assigned a DCIS agent, Arthur Hymons, to assist with the investigation. Id. ¶ 24. Agent Hymons thus began the investigation briefed another EPA OIG official, John Jones, on a regular basis. Id. ¶ 26.
The defendants characterize Agent Hymons' investigation as "administrative." Id. ¶ 26. The plaintiffs dispute this characterization. See supra note 4. This dispute is immaterial.
During Agent Hymons' investigation, an unnamed witness alleged to Agent Hymons that Freeman "had obtained marijuana for use by plaintiff Fairchild." Id. ¶ 29. On March 9, 2000, Agent Hymons briefed Jones and EPA counsel on this allegation, "[a]nd because the allegations pertaining to marijuana use by plaintiff Fairchild and possible distribution by plaintiff Freeman were criminal in nature, they also discussed presentation of this administrative investigation to the United States Attorney's Office prior to proceeding further with the investigation and the interviews of plaintiffs." Id. ¶ 29. A day later, Agent Hymons informed Assistant United States Attorney David Salem of the Southern District of Maryland ("AUSA Salem") about the investigation; AUSA Salem indicated "that he would hold his prosecutorial decision in abeyance pending the urinalysis results of both agents." Id. ¶ 30.
Between March 13 and March 20, the plaintiffs each had drug tests. Id. ¶¶ 32-34. The results came back negative for both plaintiffs. Id. ¶¶ 34, 35. Agent Hymons informed AUSA Salem of the results, and Salem "declined criminal prosecution." Id. ¶ 36. Agent Hymons nevertheless continued his investigation and interviewed Freeman on March 29, 2000. Id. ¶ 37. At the interview, Freeman denied that he obtained marijuana for Fairchild and declined to undergo a polygraph examination. Id. ¶ 38.
Agent Hymons provided his report of investigation to Jones on April 24, 2000. Id. ¶ 40. The report of investigation is contained in a DOD system of records and an EPA OIG system of records. Id. ¶ 40. The defendants maintain that the report is only retrievable by Fairchild's name, id., although the plaintiffs claim that the report is also retrievable by Freeman's name. Pls.' Mot. for Summ. J ("Pls.' Mot.") at 2.
Finally, in August 2000, Fairchild stated to Bialek that "information concerning her drug tests and investigation had been disclosed at a National Organization of Black Law Enforcement Executive (NOBLE) conference." Id. ¶ 42. Fairchild would not provide Bialek with additional information to substantiate this allegation, however, and Bialek apparently dropped the issue. Id. The defendants state that Agent Hymons and Dashiell later attended the NOBLE conference on July 9, 2000, and that Agent Hymons "did not discuss the investigation involving Fairchild or any other investigation" with Dashiell. Id. The plaintiffs counter that information was in fact disclosed at the NOBLE conference. Pls.' Mot. at 2.
III. ANALYSIS A. Legal Standard for Summary Judgment
Summary judgment is appropriate when "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 and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] 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." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
B. The Privacy Act
The plaintiffs bring their claims under the Privacy Act of 1974, 5 U.S.C. § 552a. The Privacy Act protects the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records. Doe v. Chao, 124 S. Ct. 1204, 1207 (2004); Henke v. United States Dep't of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996). The Act places substantive and procedural obligations on federal agencies that maintain a "system of records." Maydak v. United States, 363 F.3d 512, 515 (D.C. Cir. 2004); 5 U.S.C. § 552a(a)(5) (defining "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"); id. § 552a(a)(4) (defining "record" as "any item, collection, or grouping of information about an individual that is maintained by an agency . . . that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph"); id. § 552a(a)(3) (defining "maintain" as "maintain, collect, use, or disseminate").
The Act provides a cause of action for damages if the plaintiff can prove that (1) the agency disclosed information; (2) the information disclosed is a record contained within a system of records; (3) an adverse impact resulted from the disclosure; and (4) the agency's disclosure was wilful or intentional. Barry v. United States Dep't of Justice, 63 F. Supp. 2d 25, 27 (D.D.C. 1999). The Act contains certain exceptions relevant to this case, including an exception for agency disclosure to "those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties," 5 U.S.C. § 552a(b)(1), and an exception for "routine use," 5 U.S.C. § 552a(b)(3).
C. The Plaintiffs' Allegations
The plaintiffs bring four Privacy Act allegations against the defendants. First, the plaintiffs claim that the EPA OIG wrongfully released the plaintiffs' drug testing schedules and results to the DOD in March 2000. Compl. ¶ 11. Second, the plaintiffs claim that on or about March 13 and March 24, 2000, the DOD wrongfully released the plaintiffs' drug testing schedule and results to AUSA Salem. Compl. ¶ 12. Third, the plaintiffs claim that during July or August 2000, "various employees" of the DOD and the EPA attending a conference in Atlanta, Georgia, "openly discussed the ongoing investigation of plaintiffs and wrongfully released plaintiffs' private medical information concerning drug-testing results." Compl. ¶ 13. Finally, the plaintiffs claim that on or about April 24, 2000, the DOD wrongfully published and made available to Freeman's supervisors an investigative report indicating that Freeman refused to take a polygraph examination. Compl. ¶ 14. The court addresses each of these allegations in turn.
1. Release to DOD
As to the plaintiffs' claim that the EPA OIG wrongfully released the plaintiffs' records to Agent Hymons of DCIS, the defendants argue that the release falls under Privacy Act exception (b)(1), which allows disclosures by an agency "to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties." 5 U.S.C. § 552a(b)(1); Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 14-15. The court agrees with the defendants.
Although exception (b)(1) appears to speak only of intra-agency disclosure, the key here is that Agent Hymons' status as an EPA-hired investigator allows the court, for Privacy Act purposes, to treat Agent Hymons as a member of the DOD and the EPA. The court begins with the guidelines that implement the Privacy Act, see generally Office of Management and Budget Privacy Act Implementation: Guidelines and Responsibilities, 40 Fed. Reg. 28,948 et seq. (July 9, 1975) ("OMB Guidelines"), to which the D.C. Circuit has instructed that courts "owe deference." Maydak, 363 F.3d at 518; 5 U.S.C. § 552a(v)(1)-(2) (stating that "[t]he Office of Management and Budget shall . . . develop guidelines and regulations for the use of agencies in implementing the provisions of section 552a[.]" The OMB Guidelines state that:
the issue arises as to whether an entity or individual serving more than one agency may be considered an "employee" of each agency he services, for certain purposes. While this is not specifically addressed in the Act, it is reasonable to assume that members of temporary task forces, composed of personnel of several agencies, should usually be considered employees to the lead agency and of their own agency for purposes of access to information. Similarly, members of permanent "strike forces" and personnel crossdesignated to serve the functions of two or more agencies should usually be treated as employees of both the lead agency and their own employing agency[.]
OMB Guidelines, 40 Fed. Reg. 28,951. Thus, according to the OMB Guidelines, an agency that hires a member of another agency to serve in a temporary task force or similar, crossdesignated function can share otherwise protected information with that hired person and still satisfy exception (b)(1). Id.
See also OMB Guidelines, 40 Fed. Reg. 28,954 (stating that "[m]ovement of records between personnel of different agencies may in some instances be viewed as intra-agency disclosures if that movement is in connection with an inter-agency support agreement").
As the defendants state and the plaintiffs do not dispute, "Hymons was necessarily functioning for the Fairchild investigation in the stead of, and as if he were, an EPA employee who otherwise would perform his task." Defs.' Mot. at 15. The defendants sought help from another agency to avoid the appearance of partiality or conflict of interest. Id. DCIS, part of the DOD, provided Agent Hymons to "conduct an internal investigation of alleged wrongdoing" and to brief Jones on a regular basis regarding his investigation. Id. at 20. Given that the very purpose of Agent Hymons' investigation was to resolve allegations regarding Fairchild's drug test, the court determines that Fairchild's drug-testing information was necessary to Hymans' investigation, cf. Bigelow v. Department of Defense, 217 F.3d 875, 876-77 (D.C. Cir. 2000), and that the EPA properly provided this information to Hyman pursuant to exception (b)(1). Because there is no genuine issue of any material fact as to the plaintiffs' first allegation, and because defendants are entitled to judgment as a matter of law, the court therefore grants summary judgment in favor of the defendants as to the plaintiffs' first allegation.
2. Release to AUSA Salem
The plaintiffs next challenge Agent Hymons' release of the drug testing information to AUSA Salem. Compl. ¶ 12. Several disclosures are at issue: Agent Hymons' briefing to AUSA Salem on or around March 10, 2000 regarding Agent Hymons' investigation, see Defs.' Statement ¶ 30, and Agent Hymons' discussion with AUSA Salem on March 24, 2000 regarding the negative test results of both plaintiffs, see id. ¶ 36; Defs.' Mot. at 21-22. The plaintiffs argue that Agent Hymons lacked authority to release the information because the information was not in a system of records that Agent Hymons had authority to access. Pls.' Mot. at 1. As the defendants demonstrate in their affidavits, however, the DOD and EPA OIG offices have their own systems of records that contain the information in question. Defs.' Supp. Statement at 11 (citing Hymons Decl. ¶ 14; Bialek Decl. ¶ 3). Furthermore, the defendants maintain that the disclosure of the information in question is acceptable pursuant to Privacy Act exception (b)(3). Defs.' Mot. at 22. The court agrees with the defendants.
Privacy Act exception (b)(3) allows agencies to disclose information "for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section." 5 U.S.C. § 552a(b)(3). Subsection (a)(7) rather tautologically defines "routine use" as "with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected." 5 U.S.C. § 552a(a)(7). Subsection (e)(4)(D) states that agencies shall "publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include . . . each routine use of the records contained in the system, including the categories of users and the purpose of such use." Id. at § 552a(e)(4)(D). Ultimately, therefore, to state a "routine use" under exception (b)(3), the government must demonstrate "compatibility" and publication in the Federal Register. See Dep't of the Air Force v. Fed. Labor Relations Auth., 104 F.3d 1396, 1401-02 (D.C. Cir. 1997) (indicating that an agency's interpretation of its published routine uses, if such an interpretation exists, is entitled to "great deference"); United States Postal Serv. v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 9 F.3d 138, 143 (D.C. Cir. 1993) (stating that "the routine use exception to the Privacy Act, assuming the proposed use is compatible with the purpose for which the information is collected, is in the control of the government agency. The agency has a measure of discretion in publishing routine uses which determine whether information collected from employees is turned over to a third party").
In this case, the defendants cite to two publications in the Federal Register of routine uses: first, the publication regarding DOD routine use:
BLANKET ROUTINE USES
Certain "blanket routine uses" of the records have been established that are applicable to every record system maintained within the Department of Defense unless specifically stated otherwise within a particular record system. These additional blanket routine uses of the records are published below only once in the interest of simplicity, economy and to avoid redundancy.
LAW ENFORCEMENT ROUTINE USE
In the event that a system of records maintained by this component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether Federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation or order issued pursuant thereto.58 Fed. Reg. 10,213 (Feb. 22, 1993) (emphasis added). Second, the publication regarding EPA routine use:
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals and entities who are or have been the subjects of OIG investigations (including present and former EPA employees; present and former EPA assistance recipients, consultants, contractors, and subcontractors, and their employees; and other individuals and entities doing business with EPA); individuals and entities who are or have been complainants in OIG investigations; and individuals and entities who are or have been important witnesses interviewed during OIG investigations.
* * *
PURPOSE(S):
The records contained in the systems are used by the OIG in furtherance of the responsibilities of the Inspector General under the Inspector General Act of 1978, as amended, to conduct and supervise investigations relating to programs and operations of the EPA; to promote economy, efficiency, and effectiveness in the administration of such programs and operations; and to prevent and detect fraud and abuse in such programs and operations. The records are used in investigating individuals and entities suspected of having committed illegal or unethical acts. The records are used in criminal prosecutions, civil proceedings, and administrative actions, including procurement and nonprocurement debarment and suspension proceedings, taken as a result of the findings of the investigation. The records are also used in conducting investigations of employees, consultants, contractors, subcontractors, and applicants in connection with personnel security determinations.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:
A record from the system of records may be disclosed, as a routine use:
a. To any source, private or public, to the extent necessary to secure from such source information relevant to a legitimate EPA investigation, audit, or other inquiry.
b. To the appropriate Federal, State, local, foreign, or international agency, if the record indicates, either by itself or in combination with other information, a violation or potential violation of law, whether criminal, civil, or regulatory in nature, and whether arising by general statute or particular program statute, or by rule, regulation, or order issued pursuant thereto, when that agency is charged with the responsibility of investigating or prosecuting a violation, or of enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto.62 Fed. Reg. 46,968 (Sep. 5, 1997). Accordingly, the defendants have demonstrated that the EPA and DOD published routine uses of records relevant to this case. 5 U.S.C. § 552a(e)(4)(D).
As to compatibility, the defendants argue that each of the above statements of routine use, although worded differently, essentially "allow[s] for the same type of disclosure — the disclosure of a record that indicates a violation or potential violation of law to the appropriate agency charged with the responsibility of investigating or prosecuting such violation or charged with enforcing such law." Defs.' Mot. at 24. Moreover, as the defendants state and the plaintiffs do not dispute, "because the allegations pertaining to marijuana use by plaintiff Fairchild and possible distribution by plaintiff Freeman were criminal in nature, [Agent Hymons, Jones, and EPA counsel] discussed presentation of [the] . . . investigation to the United States Attorney's Office prior to proceeding further with the investigation and the interviews of plaintiffs." Defs.' Statement ¶ 29; see also id. ¶ 30 (stating that, "[b]ased on the information developed regarding drug use and possible distribution, Mr. Hymons determined that there were `reasonable grounds to believe that there had been a violation of Federal criminal law.' Accordingly, he arranged to present the matter to the Department of Justice for a prosecutive decision"). Ultimately, therefore, Agent Hymons' disclosure of the plaintiffs' records concerning drug testing schedules and test results to AUSA Salem for the purposes of Salem's investigation of potentially criminal activity is a disclosure that is "compatible with the purpose for which [those records were] collected." 5 U.S.C. § 552a(a)(7). The defendants thus satisfy exception (b)(3).
To summarize, the defendants have satisfied the "routine use" exception to the Privacy Act and the plaintiffs have offered no facts to indicate otherwise. The court therefore determines that there is no genuine issue of any material fact and that the defendants are entitled to judgment as a matter of law with respect to the plaintiffs' second allegation. Accordingly, the court grants summary judgment in favor of the defendants on this allegation.
3. Atlanta Conference
In their third allegation, the plaintiffs claim that "various employees of defendants DOD and EPA" wrongfully released medical information concerning the plaintiffs' drug-testing results at a conference in Atlanta during July or August 2000. Compl. ¶ 13. For the reasons that follow, the court determines that plaintiffs failed to bring this claim within the Privacy Act's two-year statute of limitations and that no exception to the statute applies.
The Privacy Act contains a statute of limitations that requires claimants to bring actions "to enforce any liability" under the Act within two years from the date on which the cause of action arises, unless the claimant can demonstrate that an agency has "materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual[.]" 5 U.S.C. § 552a(g)(5). The plaintiffs claim that the alleged disclosure occurred in July or August 2000. The plaintiffs became aware of the disclosure on August 4, 2000. Fairchild Dec. ¶¶ 7-10. Thus, the plaintiffs needed to bring a claim on this disclosure on or before August 4, 2002. 5 U.S.C. § 552a(g)(5).
The nine counts of the plaintiffs' original complaint from February 2002 make no mention of the Atlanta conference. See generally Orig. Compl. The plaintiffs filed their amended complaint in September 2003. Because the plaintiffs do not allege any willful misrepresentation affecting the statute of limitations, the court must determine whether (a) the plaintiffs' amended complaint relates back to the original complaint or (b) whether to apply a tolling doctrine. If neither (a) nor (b) applies, the plaintiffs fail to state a claim.
a. The Amended Complaint Does Not Relate Back
Under Federal Rule of Civil Procedure 15(c), an amended complaint "relates back" for statute of limitations purposes to the filing of the original complaint when, among other things, "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." FED. R. CIV. P. 15(c); United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (discussing the relation-back doctrine). Typically, amendments that build on previously alleged facts will relate back to the original complaint. Hicks, 283 F.3d at 388. But "those [amendments] that significantly alter the nature of a proceeding by injecting new and unanticipated claims are treated far more cautiously." Id. To determine whether amendments should relate back, courts look to see whether the complaint gave the opposing party notice of the new claim. 6A Wright, Miller Kane, FED. PRAC. PROC. CIV. 2d § 1497. If the alteration is "so substantial that it cannot be said that defendant was given adequate notice . . . then the amendment will not relate back and will be time barred if the limitations period has expired." Id.
As indicated above, the plaintiffs made no mention in their original complaint of disclosure of information at an Atlanta conference in July or August 2000. Indeed, the chronology in the original complaint ends well before July 2000, except to mention that Freeman transferred out of the EPA in July 2000. Orig. Compl. ¶ 33. The plaintiffs point to the fact that the court allowed them (in an order dated August 11, 2003) to amend their complaint. Pls.' Supp. Mem. at 10. But allowing the plaintiffs to amend their complaint for the sake of clarity is not the same as allowing an amended complaint to present a totally new claim outside the limitations period. The plaintiffs also argue that "[t]he core allegations have not changed, the defendants' [sic] have not changed, the conduct has not changed and the timeframe of the violations is within a two month time period." Pls.' Mot. at 6. From the counts in the original complaint, however — and setting aside the fact that the new claim is similar in that it also involves disclosure of information, as would virtually any Privacy Act claim — it is hardly conceivable that the defendants would have had notice regarding the new Atlanta-conference claim. Nor does the new claim build on facts the plaintiffs previously alleged other than the very general factual context of the case (the parties, the fact that information disclosure is at issue, and the year of the disclosure) that the plaintiffs set forth in the original complaint. The claim therefore fails to relate back under Rule 15(c). Cf. Safir v. Blackwell, 579 F.2d 742, 745 (2d Cir. 1978) (refusing to allow relation back of a "completely new" claim); United States ex. rel. Ortega v. Columbia Healthcare, Inc., 240 F. Supp. 2d 8, 14-15 (D.D.C. 2003) (refusing to allow relation back of kickback claims to existing false certification claims because the certification claims "involve[d] distinct facts and allegations from the kickback claims").
b. The Statute of Limitations is not Tolled
In its decision holding that the presumption of equitable tolling applies to the Privacy Act, the D.C. Circuit noted the distinction between the two tolling doctrines of equitable estoppel and equitable tolling. Chung v. Dep't of Justice, 333 F.3d 273, 278 (D.C. Cir. 2003). As to the former, the court explained that "[e]quitable estoppel precludes a defendant, because of his own inequitable conduct — such as promising not to raise the statute of limitations defense — from invoking the statute of limitations." Id. (internal citations and quotations omitted). Equitable tolling, however, "applies most commonly when the plaintiff despite all due diligence . . . is unable to obtain vital information bearing on the existence of his claim." Id. (internal quotations omitted). Thus, the former doctrine involves a defendant's conduct, and the latter involves a plaintiff's conduct. Id. at 278-79.
Charitably construing the plaintiffs' submissions, the best argument the plaintiffs set forth for equitable estoppel or equitable tolling is their claim that "[a]bsent [d]iscovery, plaintiffs' [sic] have not had the opportunity to gather further evidence to support this allegation." Pls.' Supp. Mem. at 10. However, it is not totally clear what "this allegation" refers to, and citing the need for discovery is insufficient justification for this court to countenance any equitable adjustment to the statute of limitations. The court therefore deems time-barred the plaintiffs' third allegation. Furthermore, because the plaintiffs' claim is time-barred, the court need not determine whether the plaintiffs' allegations regarding the Atlanta disclosure state a claim under the Privacy Act. Accordingly, the court determines that the plaintiffs' third allegation fails to state a claim on which relief can be granted.
The defendants seek dismissal for lack of subject-matter jurisdiction. Defs.' Mot. at 28. The court prefers to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Harris v. F.A.A., 353 F.3d 1006, 1013 n. 7 (D.C. Cir. 2004) (discussing distinction between dismissal for failure to state a claim or for lack of subject-matter jurisdiction when a claim against the government is time-barred and affirming a lower court's dismissal on 12(b)(6) grounds but leaving unresolved the issue as to whether Rule 12(b)(1) or Rule 12(b)(6) should control).
4. Refusal to Take a Polygraph Exam
In their fourth allegation, the plaintiffs claim that DOD's publication of Freeman's polygraph results (in the form of an investigative report made available to Freeman's supervisors) violated DOD privacy directives. Compl. ¶ 14. In response to the defendants' argument that the United States has not waived immunity for such a claim, see Defs.' Mot. at 43, the plaintiffs restyle their allegation as a claim under the Privacy Act. Pls.' Mot. at 6 (stating that "[a]lthough plaintiffs cited the DOD Privacy Directives, those directives were issued under and in accordance with the Privacy Act"). Giving the pro se plaintiffs the benefit of the doubt, the court proceeds under the rubric of the Privacy Act rather than dismissing their allegations on immunity grounds.The defendants argue that the plaintiffs' fourth allegation fails to state a claim under the Privacy Act because Freeman's polygraph results are not retrievable under Freeman's name. Defs.' Mot at 44. As the Privacy Act states, "[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains[.]" 5 U.S.C. § 552a(b) (emphasis added). The Act defines "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." Id. § 552a(a)(5) (emphasis added). Thus, "the determination that a system of records exists triggers virtually all of the other substantive provisions of the Privacy Act." Henke v. United States Dep't of Commerce, 83 F.3d 1453, 1459-62 (D.C. Cir. 1996) (remanding to district court to enter summary judgment in favor of the government where the government did not maintain a "system of records" with respect to the claimant for purposes of the Privacy Act).
Finally, when a court seeks to determine "whether an agency maintains a system of records keyed to individuals, the court should view the entirety of the situation, including the agency's function, the purpose for which the information was gathered, and the agency's actual retrieval practice and policies." Id. at 1461. "[R]etrieval capability is not sufficient to create a system of records." Id. at 1460.
The plaintiffs dispute "[a]ny suggestion that records related to the investigation of the [p]laintiffs are not retrievable in [p]laintiff Freeman's name or personal identifier." Pls.' Reply ¶ 3. For support, the plaintiffs cite two Freedom of Information Act requests that Freeman allegedly made in October 2000. Pls.' Mot. at 5. As a preliminary matter, the court notes that the defendants' affidavits make clear that DOD only received one request from Freeman. Defs.' Opp'n Ex. A. The plaintiffs have not produced any evidence to contradict the defendants in this regard, and because the court is not required to accept unsupported allegations, Anderson, 477 U.S. at 252, the court will only consider Freeman's October 3, 2000 FOIA request.
In his October 3, 2000 FOIA request, Freeman "ask[ed] for information pertaining to himself, identified by [f]irst and [l]ast [n]ame only." Defs.' Opp'n Ex. A. EPA did in fact locate information in response to Freeman's FOIA request, but it redacted certain information because it contained confidential materials regarding other persons. Pls.' Mot. Ex. C (letter dated Feb. 2, 2001, from DOD OIG to Stephen Freeman).
The defendants respond that the report of the investigation "is indexed only by plaintiff Fairchild's name and is neither retrieved nor retrievable by plaintiff Freeman's name or personal identity." Defs.' Opp'n at 25 (citing Hymons Decl. ¶ 14 and Bialek Decl. ¶ 3). Some confusion exists here because Freeman is using a FOIA request and the responses thereto as evidence to satisfy a term of art in the Privacy Act. Nevertheless, the court must determine if there is a genuine issue as to any material fact. FED. R. CIV. P. 56(c). Clearly the question of whether the defendants maintain a "system of records" retrievable by Freeman's name is a material fact. See Henke, 83 F.3d at 1459 (stating that "the determination that a system of records exists triggers virtually all of the other substantive provisions of the Privacy Act").
As indicated above, the plaintiffs' burden is not severe: the court draws all justifiable inferences in the nonmoving party's favor and accepts the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. But the plaintiffs must establish with more than "the mere existence of a scintilla of evidence" that the defendants maintain a "system of records" retrievable by Freeman's name, id. at 252, and the plaintiffs must present specific facts that would enable a reasonable jury to find in their favor, Greene, 164 F.3d at 675.
Plaintiffs have not met this threshold showing. They claim that the fact that the EPA retrieved a report "in response to Mr. Freeman's FOIA request indicates some level of retreivability" and that the defendants "have provided no information about how and from what source Mr. Bialek retrieved the report." Pls.' Supp. Mem. at 11. "Some level of retreivability" or lack of information about sources is not the test, however, especially when one considers the breadth of Freeman's FOIA request. Defs.' Supp. Statement, Aaron Decl. Ex. B (indicating that Freeman requested "copies of all documents and records pertaining to any allegation which name or make reference to me as a participant, defendant or suspect in any issue of misconduct whether administrative, civil or criminal"); id. Ex C at 3 (Supp. Decl. Bialek) (indicating that "[a] FOIA request that seeks documents relating to misconduct of the requester, such as the one here, suggests that such documents exist. Because the agency has the duty to make a reasonable search for records, such a request will normally trigger a search beyond the narrow confines of a Privacy Act system of records search"). Instead, the proper test is whether the plaintiffs can provide more than a scintilla of evidence that the defendants disclosed information contained in "a group of any records" from which information is retrieved by Freeman's name or some "other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5).
All the plaintiffs have demonstrated is that a FOIA request revealed information regarding Freeman. Cf. Henke, 83 F.3d at 1456 (rejecting the district court's determination that "retrieval capability was sufficient to create a system of records keyed to individuals") (emphasis in original). The plaintiffs point to a letter from Patricia Cirino, Chief of the FOIA and Privacy Act Branch at the Inspector General's office (DOD) dated February 8, 2001, in which Ms. Cirino informs Freeman that the information he requested "is maintained in a system of records exempt from the mandatory disclosure requirements of the Privacy Act of 1974, 5 U.S.C. § 552a(j)(2). To provide you with the maximum amount of releasable information, we processed your request solely under the provision of the FOIA, 5 U.S.C. § 552." Pls.' Supp. Mem. Ex. C. The defendants respond with an affidavit from Darryl Aaron, who now holds Ms. Cirino's position at the DOD. See Defs.' Opp'n Ex. A. In that affidavit, Mr. Aaron states that Ms. Cirino's letter "was an administrative error by Ms. Cirino, in that it mistakenly included standard Privacy Act language that was not applicable to Mr. Freeman's request because no records were retrieved or retrievable by Freeman's name in the OIG systems of records." Id. Mr. Aaron further states that
Section 552a(j)(2) allows the head of an agency to exempt a system of records from certain Privacy Act requirements, including records maintained for criminal law enforcement purposes. 5 U.S.C. § 552a(j)(2).
[o]n August 17, 2004, for purposes of this litigation I asked DCIS to search for any records retrievable under Mr. Freeman's name. DCIS determined that it did not have any records retrievable under Mr. Freeman's name or personal identifier. In fact, the records sent to Mr. Freeman through the EPA referral are not retrievable, and were not retrieved, by Mr. Freeman's name or personal identifier.Id.
The plaintiffs proffer no evidence in response to the defendants' affidavits. They simply argue that the "ambiguous nature of defendant EPA's FOIA process, coupled with defendant DOD's so-called administrative error" makes it "presumptuous to conclude that plaintiff Freeman's record was not retrievable four years ago." Pls.' Supp. Mem. at 10. While the court cannot resolve a summary judgment motion by making determinations of credibility or resolving factual disputes, Anderson, 477 U.S. at 255, a nonmovant must do more than articulate a "plausible scenario" in response to a movant's direct evidence. Swanson v. Leggett Platt, Inc., 154 F.3d 730, 733 (7th Cir. 1998); see also Exxon Corp. v. F.T.C., 663 F.2d 120, 128 (D.C. Cir. 1980) ("[i]t is not the intent of Rule 56 to preserve purely speculative issues of fact for trial"). Thus, the court determines that there are no reasonable inferences for the court to make in favor of the plaintiffs that would save their fourth allegation. The defendants have come forward with affidavits explicitly indicating that no system of records exists that is searchable by Freeman's name or a linked identifier. The best the plaintiffs can offer in response is speculation that, because a FOIA request yielded information regarding Freeman, some system of records searchable by Freeman's name might exist out there in the world of government records the release of which violated the Privacy Act. But such speculation will not defeat a motion for summary judgment — or, indeed, convince the court to grant the plaintiffs' motion. See Exxon, 663 F.2d at 128. Accordingly, the court grants the defendants' motion for summary judgment on the plaintiffs' fourth allegation.
IV. CONCLUSION
For the foregoing reasons the court grants the defendants' motion for summary judgment as to the plaintiffs' first, second, and fourth allegations; grants the defendants' motion to dismiss as to the plaintiffs' third allegation; and denies the plaintiffs' motion for summary judgment in its entirety. An order consistent with this Memorandum Opinion is separately and contemporaneously issued on this 25th day of October, 2004.