UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAM H. ARMSTRONG, : : Plaintiff, : : v. : Civil Action No. 07-1963 (JR) : TIMOTHY GEITHNER, et al., : : Defendants. :

FINDINGS OF FACT AND CONCLUSIONS OF LAW

William Armstrong is a former special agent for the

Treasury Inspector General for Tax Administration (TIGTA). After

a troubled period of his employment there, he applied for a new

position in the Department of Agriculture. That application was

torpedoed by anonymous letters that revealed to USDA that

Armstrong had been under investigation within TIGTA. Armstrong

sued the Secretary of the Treasury, his former supervisor Rodney

Davis, and unnamed TIGTA employees, alleging that the letters and

their revelations violated his rights under the Privacy Act,

(a), and asserting various common law torts. These

allegations were tried to the Court in two phases, on August 26,

2008, and on December 4, 2008. In that bench trial, Armstrong

failed to establish that the information contained in the

anonymous letters had been retrieved from a record held in a

system of records - the necessary predicate of his Privacy Act

claim. None of Armstrong’s tort claims against Treasury or

persons in their capacity as Treasury employees is cognizable under the Federal Tort Claims act. Judgment will accordingly be

entered in favor of the defendants.

Background

In October 2006, when Armstrong was still employed at

TIGTA, someone sent an anonymous letter to the Inspector

General’s Office accusing him of unlawfully accessing various

records and computer databases. Dkt. #31-5. That accusation

triggered an internal TIGTA investigation, led by Rodney Davis.1

Dkt. #34-2 (16:3-24); Pl. Aff. ¶23. Armstrong’s badge and

credentials were taken, his use of a government-owned car was

revoked, Pl. Aff ¶25, he was escorted from the building, Dec. Tr.

(34:9-13), and he was temporarily reassigned to the Technical

Services and Firearms Division, Pl. Aff at ¶25.2

Armstrong was not officially told of the reason for the

investigation at first, but within the month a friend

unaffiliated with the investigation advised him that it was for

unauthorized access. Pl. Aff. ¶28. The record suggests that

1 In 2003 the plaintiff conducted an internal investigation on Davis in connection with an incident where Davis lost his official credentials. Pl. Aff. ¶3. When Davis later became his supervisor, the plaintiff complained about Davis’s managerial style and accused him of sleeping on duty. Dec. Tr. (95:14-16). Given this and other history between the two, the decision to assign Davis to investigate the plaintiff was odd. 2 Although the assignment was ostensibly temporary, because of the events described in this memorandum, the plaintiff did not return to work as a supervisor at TIGTA. Dec. Tr. (89:25-902).

- 2 - this information had become part of the gossip mill within TIGTA.

Pl. Depo. 16:5-12; 19:16-24, 21:4-8; 22:12-23:23.3

On February 7, 2007, the U.S. Attorney’s Office

declined to prosecute Armstrong, Pl. MJ at 9, but TIGTA continued

its investigation. A few days later, Armstrong was interviewed

by investigators and admitted to accessing the databases. Pl.

Aff. ¶32. TIGTA did not immediately act on his admission because

its investigation of the plaintiff was “lumped” together with

other investigations. Pl. Aff ¶40. In March 2007, the plaintiff

began looking for another job,

, and on August 15,

2007, he was offered employment within USDA,

. His new

job was scheduled to begin on September 2, 2007.

From around August 23 to August 27, 2007, six anonymous

letters were sent to various individuals at USDA, all of them

disclosing information about TIGTA’s investigation of Armstrong.

Compl. Exs. 1-6. After receiving them, USDA apparently “stayed,”

and thus effectively terminated, the employment offer it had made

to Armstrong. Pl. MJ p. 13. On September 4, 2007 a TIGTA

official informed Armstrong that a proposed recommendation had

been made regarding the internal investigation. Pl. Aff. ¶49.

3 There are numerous other references in the record about the existence of such a rumor mill, and about TIGTA employees, and others, possessing knowledge about the investigation derived from unknown sources. See, e.g., Dec. Tr. 8:23-9:23; 39:17-41:5; Compl. ¶34; Silvis Dep. (125:6-126:2).

- 3 - The plaintiff agreed to a thirty day suspension and ultimately

resigned from the agency.

Armstrong then filed this action. His theory, until

the first day of trial, was that a person or persons who had been

involved in TIGTA’s internal investigation must have written and

sent the anonymous letters that unraveled his new job at USDA,

and that, perforce, or perhaps res ipsa loquitur, the information

must have come from a system of records within TIGTA. See,

Compl. counts I-VI. It was revealed on the very eve of the

trial, however, and confirmed by the perpetrator herself, who was

called as the first witness at trial, that the sender of all the

anonymous letters – the first, accusatory letter to the TIGTA

Inspector General and the six letters sent to hiring officials at

USDA - was in fact Armstrong’s fellow TIGTA investigator Karen

Thompson. Aug. Tr. (20:6-7; 22:11-22). On the witness stand,

Thompson categorically denied accessing any records and explained

that she assembled the information in the letters from

observation and surmise. Dec. Tr. (117:20:-25). I found her

testimony to be generally “evasive, dissembling, and not

credible,” Aug. Tr. 120:4-8, suspended the trial, and allowed the

plaintiff limited discovery to explore this new lead.

After three months, however, Armstrong had found no

evidence that Thompson obtained her information from protected

records. When the trial re-commenced, on December 4, 2008, he

- 4 - adduced the testimony of several subpoenaed witnesses, all TIGTA

investigators, including Davis, Kelly Sopko, Davis’ supervisor

Michael Delgado, and Thompson’s husband (and TIGTA agent) David

Sutkus. Sutkus and Sopko, neither of whom were affiliated with

the investigation of Armstrong, denied having accessed the files

of TIGTA’s internal investigation. Davis and Delgado denied

divulging information about the investigation to Thompson or

unauthorized third parties. The evidence also established that,

because Armstrong was a supervisor, the records of his

investigation, in order to protect them from unauthorized access,

were not logged into the agency’s database. Dec. Tr. (91:15-

92:3). Thus, there was no trail or record of who, if anyone, may

have accessed them.

Analysis

Counts 1-6 of Armstrong’s complaint deal with the six

letters sent to USDA, alleging that each of them was a violation

of § 552a of the Privacy Act.4 Count 7 is a claim of libel,

against Davis. Counts 8-12 allege that TIGTA is responsible

under the Federal Tort Claims Act for the acts of its employees

4 In his brief, Armstrong advances a number of arguments under the Privacy Act that go well beyond the allegations of his complaint, among them that the manner in which TIGTA stored the record of his investigation violated § 552a(g)(1)(D) of the Privacy Act and that, after Thompson sent her six letters to USDA, Delgado made prohibited disclosures when he spoke with a Ms. Horsley at the USDA and later sent a letter to her. These arguments are not germane to the matters before me and are not addressed in this memorandum.

- 5 - for intentional infliction of emotional distress, negligent

infliction of emotional distress, false light, invasion of

privacy, and intentional interference with prospective

contractual relationships.

1. The Privacy Act Claims

Subject to exceptions that are not implicated here,

under 5 U.S.C. § 552a(b) “[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.” To

succeed on a damages suit for unlawful disclosure a plaintiff

must therefore show that: “(1) the information in question is a

‘record’ contained within ‘a system of records;’ (2) the agency

improperly ‘disclosed’ the information; (3) an adverse impact

resulted from the disclosure; and (4) the agency's disclosure was

willful or intentional.” Krieger v. U.S. Dept. of Justice,

(D.D.C. 2008). In general, “liability for

nonconsensual disclosures is limited by the ‘rule of retrieval,’

which requires that the information disclosed be ‘directly or

indirectly retrieved from a system of records.’”

at 47

(quoting Fisher v. Nat'l Inst. of Health, et al.,

(D.D.C. 1996), aff'd without opinion,

,

(D.C. Cir. 1996)). “‘[I]nformation derived solely from

- 6 - independent sources is not prohibited by the statute even though

identical information may be contained in an agency system of

records.’”

(quoting Fisher,

(quoting

Thomas v. United States Dep't of Energy,

(10th

Cir. 1983)).

Armstrong adduced no evidence that the information in

the letters came directly from records contained within a system

of records. As a result, the theory of the plaintiff’s case is

essentially: (1) that Thompson’s written anonymous complaint to

TIGTA became a protected record once she sent it, so that she

herself was prohibited from revealing its contents; and, (2) that

the information in the letters was so detailed and specific that

Thompson must have obtained it - perforce, res ipsa loquitur –

from protected records.

In some instances, circumstantial evidence alone can

support a finding that a disclosure came from a record. For

example, in Doe v. U.S. Postal Service,

(D.C. Cir. 2003), the panel found enough evidence to survive

summary judgment in plaintiff’s showing (I) that highly personal

information included on a FLMA form was spread around shortly

after the plaintiff submitted the form, and (ii) that the alleged

disclosing party routinely reviewed such forms. The D.C. Circuit

has also treated the retrieval rule more flexibly when the record

in question was created by the party who disclosed it. Thus, the

- 7 - Privacy Act can be violated in the “peculiar” circumstance of

“disclosure by an agency official of his official determination

made on the basis of an investigation which generated a protected

personnel record” even when it was unclear whether the disclosed

“information [was] directly retrieved from a tangible recording.”

Bartel v. Federal Aviation Administration, et al.,

(D.C. Cir. 1984),

The Bartel panel, however, carefully limited its

holding to the facts of that case, Bartel,

, and

the facts of the instant case are easily distinguished:

Thompson’s complaint initiated the investigation but was not the

product of it; Thompson was never a member of the investigatory

team; and her complaint was not a “determination” by a

supervising official. Bartel does not render Thompson’s

disclosure of information in her complaint a Privacy Act

violation (if, indeed, that is what she did).

The record of this case establishes nothing more than

that Thompson collated what she knew from her own complaint, from

her own observations and speculation and those of others, from

the rumor-mill that apparently goes virtually unchecked at TIGTA,

and from other non-covered sources. Thompson denies having

accessed or viewed any of the plaintiff’s personnel documents or

records connected to his investigation documents and claims to

have gleaned the information in her letters from observation and

- 8 - surmise. See generally, Aug. Tr. Her general evasiveness and

unreliability as a witness does not operate as proof of the

propositions that she denies, in the absence of any evidence that

Thompson accessed relevant protected records, that it was a part

of her duties to do so, or that anyone who did have access

disclosed information to her from those records.

Even the most troubling and specific reference in

Thompson’s letter - that Armstrong had made an admission to

investigators - more likely came from an unprotected source than

from a record contained in a system of records. The individuals

who investigated Armstrong may have inadvertently disclosed this

information, or been overheard discussing the matter. Thompson,

as she claimed, may have guessed that the plaintiff would admit

improper access when confronted with the evidence against him,

such as access logs. Or this could be a situation “where

information was inadvertently leaked from a record, became part

of general office knowledge, and some time later was disclosed

purportedly as a matter within the discloser's personal

knowledge.” Bartel,

. The circumstantial

evidence is simply too tenuous to provide the preponderance

necessary to prove a Privacy Act violation.

2. The Tort Claims

Armstrong’s libel claim became moot with Davis’s

dismissal. His other tort claims - even assuming that they are

- 9 - procedurally in order and that Thompson and others were acting

within the scope of their employment (the defendant has not

meaningfully contested those propositions) - are either barred by

(h) or unsupported by the evidence.

The negligent infliction of emotional distress count

was correctly withdrawn by the plaintiff as unsupported by the

facts. False light claims have been generally recognized as

“barred by the libel and slander exception” of §2680(h). Edmonds

v. U.S.,

(D.D.C. 2006) (citing Johnson v.

Sawyer,

, 732 n. 34 (5th Cir. 1995); Metz v. United

States,

(11th Cir. 1986)). The plaintiff

rightly concedes that the prospective interference with a

contractual relationship claim is also barred. Art Metal-U.S.A.,

Inc. v. U.S.,

(D.C. Cir. 1985). Although

intentional infliction of emotional distress is not explicitly

excluded from the FTCA, the IIED claim stemming from Thompson’s

acts cannot be sustained because it arises out of libel and

interference with prospective contractual relationship claims.

(barring “[a]ny claim arising out of . . . libel,

slander, . . . or interference with contract rights.”); Kugel v.

U.S.,

(D.C. Cir. 1991) (“In assessing the nature of

[a] claim . . . we must scrutinize the alleged cause of his

injury.”); see, Majano v. U.S.,

(D.D.C.

2008). To the extent that the plaintiff still alleges IIED based

- 10 - on a theory that TIGTA’s investigation into the letters was

designed to harm him through the dissemination of information, I

find there is insufficient evidence to support either the

requisite level of intent or extreme conduct, regardless of

whether the relevant acts were employment related. See, Kassem

v. Washington Hosp. Center,

(D.C. Cir.

2008). Last, the plaintiff has not articulated a coherent legal

theory of liability for invasion of his seclusion that is

supported by the evidence or case law and that isn’t barred by

§2608(h).

* * *

By an order separate from these findings and

conclusions, the Clerk will be directed to enter judgment for the

defendant.

JAMES ROBERTSON United States District Judge

- 11 -