United States District Court, E.D. New York
Louis D. Stober, Jr., Esq. Albina Kataeva, Esq., Of Counsel Law Offices of Louis D. Stober, Jr., LLC Attorneys for the Plaintiff Garden City, NY.
Paul Bartels, Esq., Garden City, NY, Attorney for the Plaintiff.
Vincent Lipari, Assistant United States Attorney United States Attorney's Office, Eastern District of New York Attorneys, Central Islip, NY, for the Defendants.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, District Judge.
On December 3, 2012, the Plaintiff Sunil Walia (the "Plaintiff"), who at all relevant times has been a Special Agent ("SA") employed by the Defendant United States Department of Homeland Security ("DHS"), commenced an action under docket no. 12-cv-5944 against the Defendants the United States Department of Justice ("DOJ"); DHS; and the United States Attorneys' Office, Eastern District of New York ("EDNY Attorneys' Office")(collectively the "Defendants") for injunctive, declaratory, and monetary relief pursuant to the federal Privacy Act of 1974, 5 U.S.C. § 552a et seq. (the "Privacy Act") and the federal Declaratory Judgment Act, 28 U.S.C. § 2201.
On June 14, 2013, the Plaintiff filed an amended complaint. In the Plaintiff's first and second causes of action, he alleges that the Defendants violated his rights under the Privacy Act because, without his consent, various DHS agents disclosed to various Assistant U.S. Attorneys ("AUSAs") in the Eastern District of New York the substance of three incidents involving alleged deficiencies in his work performance. In the Plaintiff's third and fourth causes of action, he alleges violations of the Federal Tort Claims Act, 28 U.S.C. § 1346, et seq. (the "FTCA") for abuse of process and negligent infliction of emotional distress.
On October 7, 2013, this action was consolidated with a separate action brought by the Plaintiff, docket no. 11-cv-2512, against DHS. That case had proceeded to summary judgment, and the claims remaining in that action are (1) certain non-time-barred allegations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and (2) the Privacy Act claim.
There was also another case brought by the Plaintiff against a prior Secretary of DHS, Michael Chertoff. Walia v. Chertoff, 06-CV-6587 (JBW), 2008 WL 5246014 (E.D.N.Y. Dec. 17, 2008), which was settled in December 2008.
In the lead case under docket no. 12-cv-5944, presently pending before the Court is a motion by the Defendants pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56 for summary judgment dismissing the Privacy Act claims and, pursuant to Fed.R.Civ.P. 12(b)(6), dismissing the FTCA claims.
For the reasons set forth herein, the motion is granted.
Unless otherwise stated, the following facts are drawn from the parties' Rule 56.1 statements and the attached exhibits, and construed in a light most favorable to the non-moving party, the Plaintiff. Triable issues of fact are noted.
In 2008-2009, the Plaintiff worked as a Special Agent in the General Smuggling and Trade Enforcement Group as a Deputy Special Agent in Charge in the office at the John F. Kennedy International Airport ("JFK Airport"). During that time, his direct supervisor was Joseph Lestrange, who became the Supervisory Special Agent/Group Supervisor ("GS") of that group on June 1, 2008, after previously serving as the Acting GS beginning in January 2008.
A. The February 2008 Search
On February 12, 2008, the Plaintiff and DHS SA Brian Ferrante reported to GS Lestrange regarding an encounter that had occurred the previous day at the Manhattan office of a business, Speedy Transit. The Plaintiff and Ferrante apparently conducted a search of certain boxes in Speedy Transit's offices that resembled boxes which had been seized at JFK Airport, and which contained counterfeit items. While the Defendants assert that the Plaintiff and Ferrante lacked consent to conduct that search, the Plaintiff asserts that they had such consent.
B. The March-September 2008 Laptop Incident
On March 13, 2008, an individual suspected of downloading and/or distributing child pornography, Juan Bermudez ("Bermudez"), was returning on an inbound flight to JFK Airport when he was stopped by Customs and Border Patrol Officer ("CBPO") Wilson Olivencia. At that time, Bermudez was in possession of an Apple laptop computer and 21 CD/DVDs containing nude images. The Plaintiff, the JFK Airport Office duty agent that day, responded to CBPO Olivencia's request for assistance. Thereafter, the Plaintiff interviewed Bermudez and, with his written consent, retained the laptop computer and CD/DVDs for further inspection. With Bermudez's written consent, the Plaintiff then took the computer and CD/DVDs to his cubicle and locked them in his bottom desk drawer.
The Plaintiff did not tell anyone that he had custody of these items, including the case agent, Robert Raab, or GS Lestrange, because the Plaintiff forgot about the items. The Plaintiff maintains that CBPO Olivencia knew that the Plaintiff possessed these items and that he was not required to inform Raab or any other agent of this fact. SA Raab, through a review of the Treasury Enforcement Communication Systems ("TECS") records, an interview with Bermudez, and a discussion with CBPO Olivencia, eventually learned that the Plaintiff possessed the computer and CD/DVDs. Raab then informed Dennis J. McSweeney, the Group Supervisor ("GS") of the Child Exploitation Group in the NY Office. On September 30, 2008, GS McSweeney phoned Lestrange to complain that the Plaintiff had never notified Raab of the March 13, 2008 incident and of the seizure of the computer and CD/DVDs.
Lestrange then spoke in person to the Plaintiff, who initially claimed to have no recollection of the incident or the computer. However, ten minutes later, the Plaintiff returned with the computer and CD/DVDs in an unsealed plastic bag, claiming to have found them under his desk.
On October 1, 2008, SA Raab and SA Kristen Wilson-Rivera met the Plaintiff at the JFK Airport office and took custody of the computer and CD/DVDs. On October 2, 2008, SA Raab gave the computer and CD/DVDs to SA Christopher Doyle, a Certified Forensic Analyst ("CFA"). Doyle conducted a forensic analysis and found that there were 111 images of child pornography on the computer and that 3 of the CD/DVDS contained child pornography videos. The Plaintiff notes that the forensic analysis also revealed that the computer had not been accessed since February 2006, almost 2 years prior to Bermudez's encounter with CBPO Olivencia at the JFK Airport.
C. The August 2008 Interrogation Incident
The Defendants assert that, on August 26, 2008, Special Agent Herbert Kostron came to the office of GS Lestrange to report his concern over the Plaintiff's interrogation, then in progress, of a subject with the surname Field ("Field"), who had allegedly arrived at the JFK Airport to pick up counterfeit items. According to Lestrange, Kostron told him that the Plaintiff, the lead agent on the case, was questioning Field without advising him of his Miranda rights. The Plaintiff characterizes as hearsay Lestrange's recounting of Kostron's statements to him.
D. The October 2008 Performance Appraisal and its Disclosure
On October 21, 2008, Lestrange provided the Plaintiff with his 2008 annual Performance Appraisal. In that appraisal, Lestrange criticized the Plaintiff's performance with regard to the three above-mentioned incidents.
The Plaintiff notes that, in his mid-year performance appraisal dated June 4, 2008, Lestrange stated that there were no deficiencies noted with respect to the Plaintiff's work performance, even though the February 2008 incident occurred prior to the date of the appraisal.
E. The Chertoff Action
On November 6, 2008, the Plaintiff filed an application, by order to show cause, in the Chertoff action, to hold DHS in contempt, alleging that GS Lestrange issued the 2008 Performance Appraisal in retaliation against the Plaintiff for filing a discrimination complaint and an internal grievance. The internal grievance alleged that GS Lestrange had lied and falsified the Plaintiff's October 2008 Performance Appraisal.
In moving by order to show cause, the Plaintiff did not redact, seek to file under seal, or otherwise claim that the 2008 Performance Appraisal, or the discussion of the three incidents, was confidential. Instead, he submitted a declaration in which he disputed the illegality of the search and that he failed to give Miranda warnings to Field, but did not mention the March/September 2008 laptop incident.
According to the Plaintiff, "the parties [in the Chertoff action] were acting under a belief that the documents submitted would remain confidential, as the parties... entered into and work[ed] under a Confidentiality [A]greement." (Pl's Rule 56.1 Counter-Statement, ¶ 32.)
On November 13, 2008, the Plaintiff's application was denied.
F. The Field Criminal Action
At some point, Field was arrested and charged with federal crimes arising from a conspiracy to use and the use of counterfeit credit cards. In a complaint sworn to on March 24, 2008 by the Plaintiff, the lead agent on the case, Field had been arrested and read his Miranda rights, but had waived them and agreed to speak without an attorney.
By motion dated September 5, 2008, Field moved to suppress his post-arrest statements on the ground that he had not been read his Miranda rights until well after he was arrested and questioned. The motion did not implicate the Plaintiff personally. However, in connection with the Plaintiff's anticipated testimony in the suppression hearing scheduled for December 1, 2008, Lestrange advised AUSA Seth DuCharme of the three above-mentioned incidents.
Thereafter, Field entered into a plea agreement before the scheduled December 1, 2008 suppression hearing. On December 1, Field allocuted to the chargea. Field was sentenced in May 2009.
G. The November 24, 2008 Memorandum
On November 17, 2008, SA Raab and GS McSweeney presented the case for the prosecution of Bermudez for possession of child pornography to Eastern District of New York AUSA Judy Philips, Chief of Intake and Arraignments. However, AUSA Philips declined to accept the case for prosecution because she was told of the Plaintiff's alleged mishandling of the evidence. The Plaintiff notes that, at this time, certain information was withheld from AUSA Philips, including the fact that forensic evidence revealed that the computer had not been accessed since February 2006.
Subsequently, at the direction of ASUA Peter Fox, GS McSweeney authored a memorandum, dated November 24, 2008, informing the Special Agent In-Charge ("SAC") of the New York Office, Peter Smith, of the facts and circumstances leading to the investigation and declination of prosecution of Bermudez, including the Plaintiff's alleged mishandling of evidence. GS McSweeney obtained the information set forth in the November 24, 2008 memorandum from SA Raab. However, not only does the Plaintiff disputes the truth of the contents of the November 24, 2008 memorandum, he alleges that GS McSweeney failed to independently verify the information contained in the memorandum.
H. The Administrative Inquiry
Through a January 7, 2009 memorandum, SAC Smith referred the matter outlined in the November 24, 2008 memorandum to the Joint Intake Center, a DHS operations center which investigates allegations of misconduct. The Plaintiff adds that, as of December 30, 2008, DHS agreed as part of the Chertoff action to "purge" the October 2008 Performance Appraisal from its system of records.
The matter was later referred to DHS's Discipline and Adverse Actions Panel ("DAAP"), which, by notice dated April 20, 2010, proposed that the Plaintiff be removed from federal service due to a failure to ...