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
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
Throughout the document, the plaintiff denied and contested all of OPM's
charges. Mandel also stated that he did not believe
that his experience
with the WCDPC was a work experience, because he was in a training class
for approximately two months; did not graduate from the Police Academy;
and was never certified as a Police Officer. In his response, the
plaintiff repeatedly asserted that his supervisors at NCDC, Sergeant Beh
and Garage, fabricated the incidents alleged in OPM's summary of charges
and that they orchestrated a plan to destroy his credibility.
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 dismissal." Mandel v.
OPM, 20 Fed. Appx. 901, 2001 U.S. App. LEXIS 23549, at *1 (Fed. Cir.
Oct. 17, 2001).
On November 11, 1999, Mandel commenced this action against the
defendants, alleging that they violated the Privacy Act by disclosing
confidential documents to his former supervisors, Garage and Sergeant
Beh. On April 12, 2002, the plaintiff filed a motion for summary
judgment seeking judgment in his favor. Mandel argues that, (1) OPM
disclosed certain information in violation of the Privacy Act; (2) such
information was contained within a system of records; (3) the disclosure
had an adverse ...