The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
This action was commenced by Michael Mandel ("Mandel" or the "plaintiff") against the United States Office of Personal Management ("OPM"), Joseph Jay McCann ("McCann"), and John H. Crandell ("Crandell") (collectively, the "defendants") for violations of the Privacy Act, 5 U.S.C. § 552 ("Privacy Act"). Presently before the Court are two motions: (1) the plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."); and (2) the defendants' cross-motion for summary judgment.
The following facts are undisputed unless otherwise indicated. On March 16, 1997, the Immigration Naturalization Service ("INS") appointed the plaintiff as a Detention Enforcement Officer. By a letter dated May 1, 1997, OPM advised Mandel that the results of a standard background investigation "raised a serious question as to [his] current suitability for competitive Federal employment." Attached to the letter was a summary of charges and supporting information, which claimed that when he applied for his position as Detention Enforcement Officer, he failed to disclose his resignations, after notification of termination, from his employment as a corrections officer for the Nassau County Department of Corrections ("NCDC") and as a police officer for the Westchester County Department of Public Safety (WCDPC").
The summary revealed that the plaintiff received unsatisfactory performance ratings during his employment with NCDC, which resulted in his resignation. The summary stated that he was involved in several incidents at NCDC indicating misconduct or negligence. Such incidents included, among others, (1) publicly unloading his firearm in violation of firearms policy; and (2) losing a spray container of mace at NCDC's gymnasium. The summary noted that the plaintiff's supervisors at NCDC, Dorothy Garage ("Garage") and Sergeant Richard Beh ("Sergeant Beh") reported that they considered Mandel a danger to himself and to other officers.
In an undated document, the plaintiff submitted a detailed response to OPM's summary, which contained several exhibits, and stated:
Several of the misrepresentations were intentional in
the sense that there were several incidents in my work
history that "on paper," without explanation,
reflected poorly on my character. Unfortunately, I
had to make an instant decision whether to disclose
what I knew in my heart to be false, misleading and
ultimately fatal to my job prospects with the INS.
I also knew that given the opportunity to explain the
story behind the work history, I would be able to put
my best foot forward and do an honest and good job for
INS. For better or for worse I came to the conclusion
that if I made the disclosures, that I would not be
given the opportunity to explain my prior work history
(especially with the Nassau County Correction
Department). Consequently, I decided not to disclose
In a letter dated October 8, 1997, OPM issued a negative suitability determination and directed the INS to remove the plaintiff from the position of Detention Enforcement Officer for (1) misconduct and/or negligence in prior employment; and (2) falsifying federal documents. Mandel appealed OPM's unsuitability finding to the Merit Systems Protection Board ("MSPB"). At the plaintiff's request, a hearing was held on March 19, 1998 and April 3, 1998, before an administrative law judge ("ALJ"), in which McCann represented OPM as its attorney.
Prior to the hearing, Crandell, who is OPM's chief of oversight and technical support division, which provides paralegal support to OPM for administrative hearings, faxed to Garage three subpoenas issued by the MSPB administrative judge for NCDC employees Garage, Sergeant Beh, and Lieutenant Philip Carucci, to obtain their testimony at the hearing.
To prepare Garage and Sergeant Beh to testify at the hearing with regard to the plaintiff's employment with NCDC and to rebut the plaintiff's anticipated testimony, McCann transmitted to them three facsimiles. The facsimiles contained (1) the summary of charges and supporting information and Mandel's response; (2) a copy of OPM's report of investigation, together with Mandel's response to the incidents raised during the investigation, and personnel documents relating to his prior employment with NCDC and WCDPS; and (3) Mandel's undated response to the charges. The defendants did not seek the plaintiff's permission prior to releasing the records in question.
On March 19, 1998 and April 3, 1998, Sergeant Beh and Garage testified before the ALJ on behalf of OPM and were cross-examined by the plaintiff's counsel. In a decision dated June 15, 1999, the ALJ sustained OPM's unsuitability findings on the grounds that, (1) Mandel's unsatisfactory performance ratings at NCDC constituted negligence in prior employment; (2) Mandel engaged in misconduct when he lost a can of mace at the NCDC's gymnasium; and (3) Mandel falsified federal documents by not disclosing his employment with, and resignation in lieu of termination from, WCDPS and NCDC.
Furthermore, the ALJ determined that the plaintiff's falsification of federal documents was sufficient to show unsuitability:
[Mandel] obtained federal employment twice without
disclosing his complete employment history. The
information [he] failed to disclose went to the
heart of his suitability for federal employment
since both matters he failed to disclose involved
his conduct and performance in a law enforcement
position . . . .
[T]he [MSPB] Board has reaffirmed its view that
falsification of employment documents is a serious
offense that warrants removal and debarment in most
cases . . . .
I find that Mandel committed deliberate acts of
omission that materially undermines his credibility
and evidences his unsuitability for the federal
position sought. [His] acts of omission were
deliberate and calculated, and show a reckless
disregard for the truth.
At the hearing, [Mandel] showed no remorse for his
actions, choosing instead to blame others for putting
him in the position of having to obfuscate the truth
to achieve his ends. Regardless of his subjective
perceptions, the [plaintiff's] conduct exhibits a
pattern of deception that is inconsistent with the
qualities needed to be an effective law enforcement
officer. While I recognized the zeal with which the
[plaintiff] performed his duties, and his passion for
law enforcement, it is clear from this record that the
[plaintiff's] Machiavellian approach to truth has
colored his judgment, thus making him unsuitable for
federal employment at this time.
Upon Mandel's appeal, the United States Court of Appeals for the Federal Circuit affirmed the MSPB's decision and held, "we discern no basis for overturning the finding that Mr. Mandel's failure to report his employment with both the Nassau County Department of Corrections and Westchester County Department of Safety, on several employment forms and during his personal interviews, was grounds for ...