United States District Court, E.D. New York
February 15, 2003
MICHAEL MANDEL, Plaintiff,
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, JOSEPH (JAY) McCANN, and JOHN H. CRANDELL, Defendants.
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
[244 F. Supp.2d 148]
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.
[244 F. Supp.2d 149]
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 effect on the plaintiff resulting in emotional distress
and pecuniary loss; and (4) OPM's disclosure was willful or intentional.
On April 29, 2002, the defendants filed a cross-motion for summary
judgment seeking to dismiss the complaint. The defendants argue that,
(1) Mandel waived any Privacy Act protection by initiating the MSPB
Proceeding, or, even if no waiver is established, the plaintiff's rights
under the Privacy Act were not violated because the disclosure of the
records fall within the "routine use" exception; (2) no causal connection
exists between the disclosure of the documents and Mandel's emotional
distress and pecuniary loss; and (3) no individual liability exists under
the Privacy Act.
A. Standard of Review
A motion for summary judgment under Fed.R.Civ.P. 56 should be granted
only when "there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 2550 (1986). The moving party bears the burden of
establishing the absence of a genuine issue of material fact. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514
(1986). "When a movant demonstrates through competent evidence that no
material facts are genuinely in dispute, the non-movant `must set forth
specific facts showing that there is a genuine issue for trial.'" Western
World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)
(quoting Fed.R.Civ.P. 56(e)). "The non-movant cannot escape summary
judgment merely by vaguely asserting the existence of some unspecified
disputed material facts, or defeat the motion through mere speculation or
[244 F. Supp.2d 150]
(internal quotations and citations omitted); see Scotto
v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
In deciding a motion for summary judgment, the Court must view the
evidence in the light most favorable to the non-moving party and must
draw all permissible inferences from the submitted affidavits, exhibits,
interrogatory answers, and depositions in favor of that party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 106 S.Ct. 2505,
2513-14 (1986); Van v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.
1995). Disputed facts that are not material to the issue at hand will
not defeat summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. at
2610. "Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of judgment."
Id. A dispute about a material fact is genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party."
Id. If there is evidence in the record, including affidavits, exhibits,
interrogatory answers, and depositions, as to any material fact from
which an inference could be drawn in favor of the non-movant, summary
judgment is unavailable. See Lane v. New York State Electric & Gas
Corp., 18 F.3d 172, 176 (2d Cir. 1994).
Notably, "the trial court's task at the summary judgment motion state
of litigation is carefully limited to discerning whether there is are
genuine issues of material fact to be tried, not to decide them. Its
duty, in short, is confined at this point to issue-finding, it does not
extend to issue resolution." Gallo v. Prudential Residential Servs.
Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994); see Donohue v. Windsor Locks
Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir. 1987 (holding that
on a motion for summary judgment, the court "cannot try issues of fact;
it can only determine whether there are issues to be tried").
B. Privacy Act
The Privacy Act provides, in part, that "no agency shall disclose any
record which is contained in a system of records . . . 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.
. . ." The term "system of records" is defined 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."
5 U.S.C. § 552a(a)(5).
Under the Privacy Act, a plaintiff may recover monetary damages if the
government has disclosed information regarding the individual. To
prevail, the plaintiff must prove: "(1) the information is covered by the
Act as a `record' contained in a `system of records'; (2) the agency
`disclosed the information'; (3) the disclosure had an `adverse effect'
on the plaintiff (an element which separates itself into two components:
(a) an adverse effect standing requirement and (b) a causal nexus between
the disclosure and the adverse effect); and (4) the disclosure was
willful or intentional." Germosen v. Cox, No. 98 CV 1294, 1999 U.S.
Dist. LEXIS 17400, at *55 (S.D.N.Y. Oct. 29, 1999) (quoting Quinn v.
Stone, 978 F.2d 126, 131 (3rd Cir. 1992)).
1. Routine Use Exception
The defendants argue that Mandel waived any Privacy Act protection by
initiating the MSPB Proceeding, or, even if no waiver is established, the
plaintiff's rights under the Privacy Act were not violated because of the
"routine use" exception. The Privacy Act permits disclosure of an
[244 F. Supp.2d 151]
otherwise protected record without consent whenever such disclosure is
"for a routine use." 5 U.S.C. § 552a(b)(3). "Routine use" is defined
as "the use of such records for a purpose which is compatible with the
purpose for which it was collected." 5 U.S.C. § 552a(a)(7). The
Privacy Act requires the agency to enter the list of its "systems of
records" in the Federal Register and include therein "each routine use of
the records contained in the system, including the categories of users
and purpose of such use." 5 U.S.C. § 552a(e)(4)(D). Thus, to fall
within the routine use exception: (1) notice of the routine use must be
published in the Federal Register pursuant to 5 U.S.C. § 552a(e)(4);
and (2) the use must be compatible with the purpose for which the
information was collected. Shannon v. General Elec. Co., 812 F. Supp. 308,
316 (N.D.N.Y. 1993) (citing Britt v. Naval Investigative Serv.,
886 F.2d 544, 547 (3d Cir. 1989).
The defendants claim that the disclosure of the information pertaining
to the plaintiff was authorized as a "routine use." In particular, the
defendants argue that the records disclosed to Sergeant Beh and Garage
related to the plaintiff's appeal to the MSPB of OPM's negative
suitability determination and the records therefore fall within
OPM/CENTRAL-7. The "system of records" under OPM/CENTRAL-7 contains,
among other things, "administrative appeals; investigative reports;
retirement records; official personnel records; documentation of
litigation including complaints, answers, motions, briefs, orders, and
decisions . . . ." 60 Fed. Reg. 63075-63084 (1995). The stated purpose
of maintaining these records is "to defend OPM against lawsuits and to
settle administrative claims brought against OPM or OPM employees." 60
Fed. Reg. 63084. Furthermore, the Federal Register provides that
OPM/CENTRAL-7 records are subject to the following routine uses:
Routine uses 1 through 10 of the Prefatory Statement
at the beginning of OPM's system notices apply to the
records maintained within this system. The routine
uses listed below are specific to this system of
a. To any source where necessary to obtain information
relevant to an OPM decision or action involved in one
of the purposes for maintenance of the system.
60 Fed. Reg. 63084.
Mandel contends that the purpose for which the records were collected
was to determine his suitability for federal employment. As such, Mandel
asserts that the records in question did not fall within OPM/CENTRAL-7,
but within OPM/CENTRAL 9. He argues that the defendants' use of the
records did not constitute a "routine use" under OPM/CENTRAL 9. The
defendants respond by arguing that regardless of whether the records fall
within either OPM/CENTRAL-7 or OPM/CENTRAL-9, the release was compatible
with, and the routine use was applicable to, both OPM/CENTRAL-7 records
and OPM/CENTRAL-9 records. The Court agrees.
In OPM/CENTRAL-9, the "system of records"contains, among other things:
investigative information regarding an individual's
character, conduct, and behavior in the community
where he or she lives or lived . . . . reports of
interviews with the subject of the investigation and
with the present and former supervisors, co-workers,
associates, educators, etc.; reports about the
qualifications of an individual for a specific
position and correspondence relating to the
adjudication matters; reports of inquiries with law
[244 F. Supp.2d 152]
enforcement agencies, employers, educational
58 Fed. Reg. 19184 (1993).
The purpose of maintaining OPM/CENTRAL-9 include:
a. To provide investigatory information for
determination concerning compliance with Federal
personnel regulations and for individual personnel
determinations including suitability and fitness for
Federal employment . . . .
b. To document such determinations[.]
58 Fed. Reg. 49573-49573. OPM/CENTRAL-9 records are subject to routine
uses 4 through 10 of the Prefatory Statement at the beginning of OPM's
system of notices. 60 Fed. Reg. 63084.
Routine use 7 of the Prefatory Statement at the beginning of OPM's
system notices applies to both OPM/CENTRAL-7 and OPM/CENTRAL-9 records.
60 Fed. Reg. 63084. It provides:
7. For Litigation To disclose information.
. . . in a proceeding before a court, adjudicative
body, or other administrative body before which OPM is
authorized to appear, when:
1. OPM, or any component thereof;
is a party to litigation or has an interest in such
litigation, and the use of such records by . . .
OPM is deemed by OPM to be relevant and necessary to
the litigation provided, however, that the disclosure
is compatible with the purpose for which records were
60 Fed. Reg. 63077.
The Court finds that both these exceptions cover the situation in this
case. The records were disclosed to Sergeant Beh and Garage only after
the plaintiff filed an appeal with the MSPB. Crandell, the chief of the
division, which provides paralegal support to OPM, faxed subpoenas to
Sergeant Beh and Garage, Mandel's former supervisors at NCDC. McCann,
OPM's attorney, provided Sergeant Beh and Garage with three documents
which contained (1) the summary of charges and supporting information and
Mandel's response; (2) a copy of OPM's report of investigation, in
addition to Mandel's responses to incidents raised during the
investigation, and personnel documents relating to his prior employment
with NCDC and WCDPS; and (3) the plaintiff's response to the charges.
The disclosure was made for the limited purpose of helping prepare
Sergeant Beh and Garage to testify at the MSPB hearing with regard to the
circumstances surrounding the plaintiff's employment with NCDC. In
addition, the records were revealed in anticipation of Mandel's testimony
that Sergeant Beh and Garage had falsely accused him of misconduct and
unfairly forced him to resign. The Court finds that the disclosure was
compatible with the purposes of maintaining both OPM/CENTRAL-7 records
(i.e., "defend OPM against lawsuits and to settle administrative claims
brought against OPM"), see 60 Fed. Reg. 63084, and OPM/CENTRAL-9 records
(i.e., "To provide investigatory information for determination concerning
compliance with Federal personnel regulations and for individual
personnel determinations including suitability and fitness for Federal
employment"), see 58 Fed. Reg. 19154.
The language under both exceptions explicitly authorized the disclosure
of the plaintiff's records to Sergeant Beh and Garage in conjunction with
the MSPB hearing. In addition, the plaintiff does not contend that his
records were disclosed for any other purpose. Accordingly, the Court
finds that the disclosure of the records in question fall within the
"routine use" exception under the Privacy Act.
[244 F. Supp.2d 153]
Because the Court finds
that Mandel's rights were not violated under the Privacy Act, the Court
need not address whether the plaintiff waived any Privacy Act protection
in the documents.
2. Adverse Effect
Even if the disclosure did not fall within the routine use exception,
the defendants correctly assert that the disclosure had no adverse effect
on the plaintiff. Mandel's assertion that he suffered emotional distress
and pecuniary loss, standing alone, cannot sustain an award of damages.
As discussed above, in order to recover monetary damages under the
Privacy Act, Mandel has the burden of establishing a causal connection
between the agency violation and the alleged adverse effect. Germosen v.
Cox, No. 98 CV 1294, 1999 U.S. Dist. LEXIS 17400, at *55 (S.D.N.Y. Oct.
The MSPB and the United States Court of Appeals for the Federal Circuit
in Mandel v. OPM, 20 Fed. Appx. 901, 2001 WL 1246615 (Fed. Cir. Oct. 17,
2001), found that Mandel falsified federal employment records by not
disclosing that he had resigned in lieu of terminations from WCDPS and
NCDC. In particular, the ALJ asserted, "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 reckless
disregard for the truth." Thus, the ALJ determined that the plaintiff's
falsification, in and of itself, was sufficient to support OPM's
unsuitability determination. As such, the Court finds that Mandel's acts
of omissions and falsifications caused him to suffer emotional distress
and pecuniary loss, not the disclosure. Accordingly, the Court finds
that the plaintiff has failed to establish the causal connection between
the disclosures made and the adverse effect.
3. Individual Liability
The Court notes that the plaintiff fails to state a cognizable claim
for individual liability against McCann and Crandell. It is
well-established that under the Privacy Act, a plaintiff may file a suit
against an agency, and not an individual. See U.S.C. § 552a(g).
Courts have held that individual officers are not proper parties to a
Privacy Act action. Bavido v. Apfel, 215 F.3d 743, 747 (7th Cir. 2000);
Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1216 (5th Cir.
1989); Brown-Bey v. United States, 720 F.2d 467, 469 (7th Cir. 1983).
Thus, "because Congress has created no cause of action against individual
government officials for violating the Privacy Act, these defendants are
exposed to no liability for which they might assert an immunity defense."
Connelly, 876 F.2d at 1216 (citing Noyola v. Texas Dept. of Human
Resources, 846 F.2d 1021, 1024 (5th Cir. 1988)). Accordingly, the claims
against McCann and Crandell must be dismissed.
Based on the foregoing, it is hereby
ORDERED, that the plaintiff's motion for summary judgment is DENIED;
and it is further
ORDERED, that the defendants' cross-motion for summary judgment is
GRANTED and the plaintiff's complaint is dismissed in its entirety; and
it is further
ORDERED, that the Clerk of the Court is directed to close this case.
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