UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RICHARD G. CONVERTINO, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 04-00236 (RCL) DEFENDANT UNITED STATES DEPARTMENT OF JUSTICE’S MOTION FOR SUMMARY JUDGMENT Defendant United States Department of Justice, by and through undersigned counsel, respectfully moves this Court pursuant to Federal Rule of Civil Procedure 56 for summary judgment. In support of this motion, the Court is respectfully referred to Defendant’s Memorandum in Support of Motion for Summary Judgment, Defendant’s Statement of Material Facts Not in Dispute, and Defendant’s Appendix. Dated: July 12, 2010. Respectfully submitted, TONY WEST Asistant Atorney Genral Civl Divsion ELIZABETH J.SHAPIRO Deputy Director Fedral Programs Branch _/s Jefrey M. Smith________________ JEFREY . SMITH JONATHAN E. ZIMMERMAN SCOT RISNER United States Department of Justice 20 Massachusetts Ave., N.W., Room 7144 Washington, D.C. 20001 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 1 of 93 2 Tel: (202) 514-5751 Fax: (202) 616-8202 Counsel for the United States Department of Justice Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 2 of 93 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RICHARD G. CONVERTINO, ) ) Plaintiff, ) Civil Action No. 04-00236 (RCL) ) v. ) ) UNITED STATES DEPARTMENT OF ) JUSTICE, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM IN SUPPORT OF THE UNITED STATES DEPARTMENT OF JUSTICE’S MOTION FOR SUMMARY JUDGMENT TONY WEST Assistant Attorney General Civil Division ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch JEFFREY M. SMITH JONATHAN E. ZIMMERMAN SCOTT RISNER United States Department of Justice 20 Massachusetts Ave., N.W., Room 7144 Washington, D.C. 20001 Tel: (202) 514-5751 Fax: (202) 616-8202 Counsel for the United States Department of Justice Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 3 of 93 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ....................................................................................................... iv STATEMENT ................................................................................................................................ 1 I. STATUTORY BACKGROUND ........................................................................... 2 II. FACTUAL BACKGROUND ................................................................................ 2 A. The Koubriti Prosecution ........................................................................... 5 B. Marwan Farhat ........................................................................................... 9 E. The Butch Jones Hearing ......................................................................... 23 F. The Ashenfelter Article ........................................................................... 25 i Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 4 of 93 G. Continuing Investigations ........................................................................ 29 1. The Morford-Led File Review Finds that Convertino Misled the Koubriti Defendants ................................................... 29 2. A Grand Jury Indicts Convertino for Obstruction of Justice ...................................................................................... 34 H. Convertino’s Post-DOJ Career ................................................................ 36 III. PROCEDURAL BACKGROUND ...................................................................... 37 A. The First Discovery Period ...................................................................... 37 B. The Second Discovery Period .................................................................. 38 C. Third-Party Discovery ............................................................................. 38 D. Expert Discovery ..................................................................................... 42 ARGUMENT ............................................................................................................................... 43 I. CONVERTINO’S DISCLOSURE CLAIM IS WITHOUT MERIT ................... 43 A. Convertino Has Not Established Any Agency Disclosure ...................... 44 B. Convertino Has Not Established that Any Disclosure Was “Willful and Intentional” ................................................................. 46 C. Convertino Has Not Established “Actual Retrieval” from a System of Records ................................................................................. 49 II. CONVERTINO’S ACCURACY CLAIM IS WITHOUT MERIT ..................... 52 A. Convertino Has Not Established a Dissemination by DOJ ...................... 52 B. DOJ Made Reasonable Efforts To Establish that the OPR Referral Documents Were Accurate, Complete, Timely, and Relevant for Agency Purposes ................................................................. 52 C. Convertino Has Not Established the “Intentional or Willful” Element ...................................................................................... 56 III. CONVERTINO’S FIRST AMENDMENT EXERCISE CLAIM IS WITHOUT MERIT ......................................................................................... 57 ii Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 5 of 93 IV. CONVERTINO’S SAFEGUARDS AND RULES OF CONDUCT CLAIMS ARE WITHOUT MERIT .................................................................... 58 V. CONVERTINO’S ACCOUNTING CLAIM IS WITHOUT MERIT ................. 59 VI. CONVERTINO HAS NOT ESTABLISHED “ACTUAL DAMAGES” ............ 61 A. Plaintiff Has Presented No Evidence of Any Pecuniary Damages .......... 61 B. Plaintiff Cannot Recover Non-Pecuniary Damages under the Privacy Act. ............................................................................................. 62 i Sovereign Immunity Requires the Narrowest Construction of the Ambiguous Term “Actual Damages.” ......... 65 ii The Privacy Act’s Legislative History Indicates That “Actual Damages” Was Meant to Refer Only to Out-Of-Pocket Losses. ................................................................. 69 C. Even if Non-Pecuniary Damages Were Recoverable, Convertino’s Claims of Non-Pecuniary Damages Would Still Fail Because He Has Not Advanced Evidence of Emotional or Reputational Injury that Was Proximately Caused by the Alleged Privacy Act Violation ......................................... 73 CONCLUSION ............................................................................................................................ 79 iii Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 6 of 93 TABLE OF AUTHORITIES CASES PAGE(s) Aiello v. Providian Fin. Corp., 239 F.3d 876 (7th Cir. 2001) .......................................................................................... 63, 67 Albright v. United States, 558 F. Supp. 260 (D.D.C. 1982) ........................................................................................... 64 Albright v. United States, 732 F2d 181 (D.C. Cir. 1984) ........................................................................................ passim Alexander v. FBI, 691 F. Supp. 2d 182 (D.D.C. 2010) ............................................................................... 43, 46 Alexander v. F.B.I., 971 F. Supp. 603 (D.D.C. 1997) ............................................................................... 45, 64, 65 Barnett v. Weinberger, 818 F.2d 953 (D.C. Cir. 1987) .............................................................................................. 71 Bartel v. FAA, 725 F.2d 1403 (D.C. Cir. 1984) ............................................................................................ 49 Beaven v. United States Dep't of Justice, 2007 WL 1032301 (E.D. Ky. March 30, 2007) .................................................................... 60 Bob Jones Univ. v. United States, 461 U.S. 574 (1983) .............................................................................................................. 72 Boyd v. Snow, 335 F. Supp. 2d 28 (D.D.C. 2004) ........................................................................................ 64 Brady v. Maryland, 373 U.S. 83 (1963) .......................................................................................................... 20, 25 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................................. 62 Convertino v. United States Dep't of Justice, 260 F.R.D. 678 (E.D. Mich. 2008) ................................................................................ passim Convertino v. United States Dep't of Justice, 393 F. Supp. 2d 42 (D.D.C. 2005) ........................................................................................ 37 iv Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 7 of 93 Convertino v. United States Dep't of Justice, 669 F. Supp. 2d 8 (D.D.C. 2009) .......................................................................................... 42 Convertino v. United States Dep't of Justice, 674 F. Supp. 2d 97 (D.D.C. 2009) ................................................................................. passim Convertino v. United States Dep't of Justice, 2007 WL 2782039 (E.D. Mich. Sept. 24, 2007) ................................................................... 40 Convertino v. United States Dep't of Justice, 2008 WL 4104347 (E.D. Mich. 2008) ............................................................................ 40, 42 Convertino v. United States Dep't of Justice, 2008 WL 4998369 (E.D. Mich. Nov. 21, 2008) ................................................................... 40 Convertino v. United States Dep't of Justice, 2009 WL 497400 (E.D. Mich. 2009) .................................................................................... 41 Convertino v. United States Dep't of Justice, 2009 WL 891701 (E.D. Mich. Mar. 31, 2009) ..................................................................... 41 Convertino v. United States Dep't of Justice, 2010 WL 523042 (E.D. Mich. Feb. 9, 2010) ................................................................. passim Cooper v. FAA, 596 F.3d 538 (9th Cir. 2010) ......................................................................................... passim Cudzich v. U.S. I.N.S., 886 F. Supp. 101 (D.D.C. 1995) ........................................................................................... 75 Cummings v. Dep't of the Navy, 279 F.3d 1051 (D.C. Cir. 2002) ............................................................................................ 46 In re: David Ashenfelter, No. 09-1443 (6th Cir. Apr. 16, 2009) ................................................................................... 41 Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999) .............................................................................................................. 65 Deters v. United States Parole Comm'n, 85 F.3d 655 (D.C. Cir. 1996) ................................................................................................ 56 DiMura v. Fed. Bureau of Investigation, 823 F. Supp. 45 (D. Mass. 1993) .......................................................................................... 66 v Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 8 of 93 Doe v. Chao, 306 F.3d 170 (4th Cir. 2002) ......................................................................................... passim Doe v. Chao, 540 U.S. 614 (2004) ....................................................................................................... passim Doe v. Dep't of Veterans Affairs, 519 F.3d 456 (8th Cir. 2008) .......................................................................................... 50, 51 Dong v. Smithsonian Inst., 943 F. Supp. 69 (D.D.C. 1996), rev'd on other grounds, 125 F.3d 877 (D.C. Cir. 1997) .............................................................................................................................. 64 England v. Comm'r of Internal Revenue, 728 F.2d 350 (9th Cir. 1986) ................................................................................................ 57 Fanin v. United States Dep't of Veterans Affairs, 572 F.3d 868 (11th Cir. 2009), cert. denied, 130 S. Ct. 1755 (2010) ................................... 63 Fisher v. NIH, 934 F. Supp. 464 (D.D.C. 1996), aff'd, 107 F.3d 922 (D.C. Cir. 1996) ............................... 49 Fitzpatrick v. Internal Revenue Serv., 665 F.2d 327 (11th Cir. 1982) .................................................................................. 63, 64, 72 Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461 (D.C. Cir. 1999) .............................................................................................. 65 Giglio v. United States, 405 U.S. 150 (1972) ........................................................................................................ 20, 25 Gleken v. Democratic Congressional Campaign Comm., 199 F.3d 1365 (D.C. Cir. 2000) ............................................................................................ 44 Guzman v. Western State Bank, 540 F.2d 948 (8th Cir. 1976) .......................................................................................... 63,67 Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429 (Fed. Cir. 1998) ............................................................................................ 45 Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) .................................................................................. 40, 48 vi Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 9 of 93 Hill v. United States Air Force, 795 F.2d 1067 (D.C. Cir. 1986) ............................................................................................ 48 Holloway v. Arkansas, 435 U.S. 475 (1978) .............................................................................................................. 24 Houston v. U.S. Dep't of Treas., 494 F. Supp. 24 (D.D.C. 1979) ................................................................................. 64, 70, 73 Hubbard v. EPA, 809 F.2d 1 (D.C. Cir. 1986) ............................................................................................ 73, 78 Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997) ....................................................................................... passim Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115 (D.D.C. 2002) ...................................................................................... 44 Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421 (1987) .............................................................................................................. 70 Jacobs v. Nat'l Drug Intel. Ctr., 548 F.3d 375 (5th Cir. 2003) .......................................................................................... 64, 66 Johnson v. Dep't of Treasury, Internal Revenue Serv., 700 F.2d 971 (5th Cir. 1983) ......................................................................................... passim In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475 (D.C. Cir. 1991) .............................................................................................. 4 Kostyu v. United States, 742 F. Supp. 413 (E.D. Mich. 1990) ..................................................................................... 58 Krieger v. Fadely, 199 F.R.D. 10 (D.D.C. 2001) ................................................................................................ 50 Krieger v. United States Dep't of Justice, 529 F. Supp. 2d 29 (D.D.C. 2008) ................................................................................... 50,59 Krieger v. Dep’t of Justice, 562 F. Supp. 2d 14 (D.D.C. 2008) .................................................................................. 77, 78 Lane v. Pena, 518 U.S. 187 (1996) .............................................................................................................. 69 vii Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 10 of 93 Laningham v. United States Navy, 813 F.2d 1236 (D.C. Cir. 1987) .................................................................................... passim Lee v. Department of Justice, 401 F.Supp.2d 123 (D.D.C. 2005) ........................................................................................ 47 Lee v. Department of Justice, 413 F.3d 53 (D.C. Cir. 2005) ................................................................................................ 47 Lehman v. Nakshian, 453 U.S. 156 (1981) .............................................................................................................. 65 McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006) .................................................................................................. 45 McCready v. Principi, 297 F. Supp. 2d 178 (D.D.C. 2003) ................................................................................ 47, 48 Mittleman v. United States Dep't of Treasury, 919 F. Supp. 461 (D.D.C. 1995) ........................................................................................... 50 Morehead v. Lewis, 432 F. Supp. 674 (D.C. Ill. 1977) ......................................................................................... 63 Moskiewicz v. United States Dep't of Agriculture, 791 F.2d 561 (7th Cir. 1986) ................................................................................................ 48 Nagle v. United States Dep't of Health Educ. & Welfare, 725 F.2d 1438 (D.C. Cir. 1984) ............................................................................................ 57 Nat'l Treasury Employees Union v. Fed. Labor Relations Auth., 691 F.2d 553 (D.C. Cir. 1982) .............................................................................................. 72 Nichols v. Pierce, 740 F.2d 1249 (D.C. Cir. 1984) ............................................................................................ 66 Olberding v. United States Dep't of Defense, 709 F.2d 621 (8th Cir. 1983) ................................................................................................ 50 Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997) ................................................................................................ 51 Pope v. Bond, 641 F. Supp. 489 (D.D.C. 1986) ........................................................................................... 64 viii Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 11 of 93 Rice v. United States, 211 F.R.D. 10 (D.D.C. 2002) ................................................................................................ 64 Rice v. United States, 245 F.R.D. 3 (D.D.C. 2007) .................................................................................................. 76 Ryan v. Foster & Marshall, 556 F.2d 460 (9th Cir. 1977) .......................................................................................... 63, 67 Savarese v. United States Dep't of Health, Educ., and Welfare, 479 F. Supp 304 (N.D. Ga. 1979), aff'd, 620 F.2d 298 (5th Cir. 1980) ................................ 51 Schmidt v. United States Dep't of Veterans Affairs, 222 F.R.D. 592 (E.D. Wisc. 2004) ........................................................................................ 66 Spotts v. United States, 562 F. Supp. 2d 46 (D.D.C. 2008) ........................................................................................ 44 Stokes v. Cross, 327 F.3d 1210 (D.C. Cir. 2003) ............................................................................................ 45 Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859 (D.C. Cir. 1989) .............................................................................................. 53 Sussman v. United States Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) ..................................................................................... passim Thompson v. Department of State, 400 F. Supp. 2d 1 (D.D.C. 2005) .......................................................................................... 60 Tijerina v. Walters, 821 F.2d 789 (D.C.Cir.1987) ............................................................................................... 46 Tomasello v. Rubin, 167 F.3d 612 (D.C. Cir. 1999) .............................................................................................. 66 Trout v. Sec'y of the Navy, 317 F.3d 286 (D.C. Cir. 2003) .............................................................................................. 66 United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) ................................................................................................................ 9 United States v. Convertino, 2008 WL 2008613 (E.D. Mich. May 8, 2008) ...................................................................... 36 ix Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 12 of 93 United States v. Koubriti, 297 F. Supp. 2d 955 (E.D. Mich. 2004) ......................................................................... passim United States v. Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004) .......................................................................... 32, 33 Webb v. Magaw, 880 F. Supp. 20 (D.D.C. 1995) ............................................................................................. 53 United States v. Nordic Village Inc., 503 U.S. 30 (1992) .......................................................................................................... 65, 69 White v. OPM, 840 F.2d 85 (D.C. Cir. 1988) ................................................................................................ 46 Wilderness Soc. v. Griles, 824 F.2d 4 (D.C. Cir. 1987) .................................................................................................. 62 Zanoni v. U.S. Dep't of Agriculture, 605 F. Supp. 2d 230 (D.D.C. 2009) ...................................................................................... 75 Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) ........................................................................................ 47, 48 STATUTES 5 U.S.C. § 552a .................................................................................................................... passim 15 U.S.C. § 1681 ......................................................................................................................... 68 15 U.S.C. § 1681o ....................................................................................................................... 68 18 U.S.C. § 3153 ................................................................................................................... 18, 22 RULES AND REGULATIONS 28 C.F.R. §§ 16.1, et seq .............................................................................................................. 59 Fed. R. Civ. P. 26 ......................................................................................................................... 40 Fed. R. Evid. 803 .......................................................................................................................... 4 x Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 13 of 93 LEGISLATIVE MATERIALS S. Rep. No. 93-1183, at 54 (1974) .............................................................................................. 58 120 Cong. Rec. 36,659 (Nov. 20, 1974) ..................................................................................... 71 120 Cong. Rec. 36,956 (Nov. 21, 1974) ..................................................................................... 70 156 Cong. Rec. S16151 (Dec. 9, 2003) ........................................................................................ 9 Hearing Before the S. Comm. on Finance, S. Hrg. 108-388, 108th Cong. (Sept. 9, 2003) .......... 9 MISCELLANEOUS Dan B. Dobbs, Law of Remedies (1st ed. 1973) ................................................................... 69, 70 2 Dan B. Dobbs, Dobbs Law of Remedies (2d ed. 1993) ............................................................. 73 Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission, at 530 (July 1977) ........................................................................................... 72 Restatement (Second) of Torts § 904 (1977) .............................................................................. 69 xi Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 14 of 93 STATEMENT The sole remaining count in this long-running litigation is Plaintiff Richard Convertino’s contention that the United States Department of Justice violated the Privacy Act, 5 U.S.C. § 552a, in connection with documents prepared for and received by the Department’s Office of Professional Responsibility (‘OPR”). The documents at issue described serious allegations of professional misconduct levied against Convertino by the United States Attorney’s Office in the Eastern District of Michigan, where Convertino worked as a prosecutor. Convertino alleges that an unknown person or persons, willfully and intentionally and without Convertino’s consent, disclosed details from this confidential OPR referral to a reporter from the Detroit Free Press. Convertino also alleges that, in violation of the Privacy Act, the Department of Justice willfully and intentionally maintained inaccurate records and inadequate safeguards, as well as violated other provisions of the Act. The unauthorized disclosure of confidential information pertaining to an investigation of attorney misconduct should never occur, and the government thoroughly condemns it. Convertino, however, presents no compelling evidence that this occurred here, or that the Department violated any section of the Privacy Act. To the contrary, Convertino fails to meet his burden of proof on each element of the Privacy Act violations alleged in his complaint. Convertino’s disclosure claim under 5 U.S.C. § 552a(b), for example, fails for at least four independent reasons. Specifically, Convertino presents no evidence of (1) an agency disclosure; (2) a “willful or intentional” mental state within the meaning of the Privacy Act; (3) actual retrieval from a system of records; and (4) “actual damages.” Similarly, Convertino’s “accuracy” claim under 5 U.S.C. § 552a(e)(6) fails for at least four independent reasons: Convertino presents no evidence of (1) a dissemination to a person outside an agency; (2) a failure to make reasonable efforts to ensure that a record about him was 1 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 15 of 93 accurate, complete, timely, or relevant; (3) a “willful or intentional” mental state; and (4) “actual damages.” Convertino’s other claims are similarly lacking in evidentiary support and merit. Accordingly, based on the undisputed facts developed after lengthy discovery, the Department is entitled to summary judgment on the sole remaining count of the complaint. I. STATUTORY BACKGROUND The Privacy Act of 1974 governs federal agencies’ acquisition, maintenance, and control of records containing information about individuals. As a threshold matter, the Act applies only to “records” maintained in a “system of records” by a federal “agency,” as each of those terms is defined by the statute and elaborated upon in case law, that are retrieved by the name or other identifying information of the individual. 5 U.S.C. § 552a(a) (definitions). The Act limits what information agencies may maintain about individuals, requires that agencies establish appropriate safeguards to ensure the confidentiality of records, and limits agencies’ authority to disclose records. Id. §§ 552a(b), (e)(1) & (e)(10). To recover damages under the Privacy Act, a plaintiff must establish that the defendant acted “willfully or intentionally,” as those terms are construed in the applicable case law. Moreover, if disclosed personal information does not originate in a record within a system of records, the disclosure is not covered by the Privacy Act. Because the Privacy Act constitutes a waiver of sovereign immunity, its terms must be construed narrowly, with any ambiguity resolved in favor of the sovereign. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1123 (D.C. Cir. 2007). II. FACTUAL BACKGROUND Convertino alleges that his office’s referral of professional misconduct to OPR, the subsequent OPR investigation, and the alleged violations of the Privacy Act that supposedly occurred 2 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 16 of 93 here, were part of a top-to-bottom conspiracy motivated solely by the Department’s desire to retaliate against him for criticizing the Department and/or testifying before a congressional committee. See, e.g., Compl. ¶¶ 34-50, 76-80, 86-89. Nothing could be further from the truth. In order to fully understand the fallacies underlying the complaint, and the true basis for the Department’s creation of the documents in question, one must look to the larger picture of what happened in the case of United States v. Koubriti, No. 01-CR-80778 (E.D. Mich.) and in other cases in the Eastern District of Michigan prosecuted by Convertino. Plaintiff Richard Convertino was an Assistant United States Attorney (“AUSA”) in the Office of the United States Attorney for the Eastern District of Michigan (“USAO”) from mid-1995 until 2005, when he resigned that office to open his own firm. See Deposition of Richard Convertino, at 19:14-17, 225:8-10 [DA 32, 59]. Shortly after assuming his position as an AUSA,1 Convertino was assigned to the Organized Crime Strike Force, a formerly independent unit that had been merged into the Criminal Division of the USAO a few years earlier. Id. at 20:9-21:18 [DA 32]. Although Strike Force Attorneys were required to report to the Office’s Criminal Chief, according to Convertino, the Strike Force Attorneys chafed at this supervision: “Strike Force mentality was still that it was not part of the U.S. Attorney’s Offices, and it was somewhat of a you know, a rivalry, if you will, between the attorneys in the Strike Force and the attorneys in the office.” Id. at 21:19-22:2 [DA 32-33]. Consistent with this feeling of independence, Convertino, by his own admission, kept ignorant of DOJ and USAO policies. See, e.g., id. at 24:16-25:10 [DA 33] (ignorance of reporting requirements); id. at 26:9-15, 28:22-29:9 [DA 34] (ignorance of USAO Notations of [DA ] denote the page(s) within Defendant’s Appendix at which the cited 1 materials may be found. 3 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 17 of 93 policies); id. at 30:4-7, 31:7-10 [DA 35] (ignorance of policies regarding downward departures). For example, although Convertino was aware of and had access to the U.S. Attorney’s Manual, he did not consult it to learn of DOJ policies, and was (and remains) almost entirely ignorant of what the Manual contains. Id. at 37:8-22 [DA 36]. From the fall of 2001 until September 2003, Convertino was assigned to the prosecution in United States v. Koubriti, No. 01-CR-80778 (E.D. Mich.), in which four Arab men were charged with providing material support to terrorists. During this trial, Convertino was supported by his supervisor, Keith Corbett, who served as second chair of the trial, his secretary/paralegal, Ana Bruni, and several FBI agents. In an extremely unusual arrangement, Convertino also received assistance from Marwan Farhat, a Lebanese national who was in the United States illegally, who pled guilty to a cocaine-related felony, and who, by his own admission, was involved in the severe beating and apparent extortion of an individual. Farhat spent many hours over many weeks summarizing Arab language tapes that had been found in the defendants’ apartment. Convertino Dep., at 64:18-65:9, 82:13-83:3, 84:12-16, 96:20-22, 102:7-15, 135:3-21 [DA 39, 43, 45, 47-48]; Morford Report, at 50 [DA 276].2 The Morford Report recounts the conclusions of a government investigation that, as described 2 in more detail infra, was ordered by United States District Judge Gerald Rosen. Craig Morford, an experienced prosecutor from outside the Detroit office, was appointed by Deputy Attorney General James Comey to lead the court-ordered government investigation. The Morford Report was publicly filed with the Eastern District of Michigan on August 31, 2004 with the caption “Government’s Consolidated Response Concurring in the Defendants’ Motions for a New Trial and Government’s Motion To Dismiss Count One Without Prejudice and Memorandum in Law in Support Thereof.” It is publicly known by the term “the Morford Report,” see, e.g., en.wikipedia.org/wiki/Craig S. Morford, and is referred to herein by that title. The Morford Report’s factual findings are admissible in this litigation pursuant to, inter alia, Fed. R. Evid. 803(8)(c). See In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1481-83 (D.C. Cir. 1991). 4 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 18 of 93 In exchange for this and other assistance rendered by Farhat, Convertino would, without the required approvals from either his supervisors or Main Justice, acquire for Farhat an extraordinarily lenient sentence in a process that would contribute to a grand jury indictment of Convertino for obstruction of justice. United States v. Convertino, Indictment Count IV, at 16-18 [DA 303-05]. A. The Koubriti Prosecution On September 17, 2001, less than a week after the attacks on the World Trade Center and the Pentagon, the Detroit Joint Terrorism Task Force raided an apartment in the greater Detroit area looking for Nabil Al-Marabh, an individual on the FBI watch list. Morford Report, at 6 [DA 232]; Morford Decl. ¶ 2 [DA 115]. Although Al-Marabh’s name was on the mailbox, he was not living at the apartment at that time. Morford Report, at 6 [DA 232]; Morford Decl. ¶ 2 [DA 115]. Instead, law enforcement agents found Kareem Koubriti and two other Arab individuals “living as apparent transients with little or no furniture.” Morford Report, at 6 [DA 232]; accord Morford Decl. ¶ 2 [DA 115]. The three men were, however, in possession of false identity documents. Morford Report, at 6 [DA 232]; Morford Decl. ¶ 2 [DA 115]. They were arrested and charged with possession of false documents and the case was assigned to Convertino to prosecute. Morford Report, at 6 [DA 232]. The case soon transformed from a simple document fraud case into a high profile terrorism prosecution. Convertino found a witness, Youssef Hmimssa, to testify that the three men, along with a fourth Arab man, constituted a terrorist cell affiliated with a radical Islamist international terrorist organization. See id. at 42 [DA 268] (“Youssef Hmimssa was virtually the only fact witness who testified that the defendants were involved in terrorist activities.”). Hmimssa was an accomplished identity thief who had duplicated hundreds of credit cards and who, evidence suggests, told 5 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 19 of 93 individuals that he hated the United States and planned to lie in favor of the prosecution in the Koubriti trial because of a grudge he held against the defendants. See id. Neither the evidence of Hmimssa’s animus toward the United States nor the evidence of his statements to third parties that he was going to lie for the government in the Koubriti trial was disclosed to defense attorneys prior to the trial. Id. at 43-45 [DA 269-71]. Convertino also utilized two crude drawings found in a day planner in the apartment. An FBI agent called to the stand by Convertino as an expert witness testified that these were terrorist casing sketches. Id. at 6-11 [DA 232-37]. In fact, evidence suggests that the sketches were doodles made by a mentally ill individual, Ali Ahmed, who had previously owned the day planner, had delusions of being a Yemeni general, and had committed suicide in May 2001. Id. at 53 [DA 279]. Evidence of Ahmed’s deluded beliefs was also omitted from the discovery Convertino provided to the defense. Id. at 52-55 [DA 278-81]. Convertino also used a videotape of Arab tourists visiting Las Vegas, contending that it was a terrorist casing video, without disclosing to the defense the conclusion of the Las Vegas FBI Field Office that it was not a terrorist casing video. See id. at 39-41 [DA 265-67]. During the Koubriti case, Convertino received assistance from Farhat who prepared summaries of Arabic language audiotapes that were found in the apartment where the three defendants were living. See id. at 49-51 [DA 275-77]. Convertino did not provide the defense with summaries of the tapes or even inform them that Farhat was working on the case, claiming that Farhat’s summaries had no value. See id. at 50-51 [DA 276-77]. Convertino, however, represented that the summaries had immense value when getting Farhat paid by the FBI for his work, and when getting Farhat an extraordinarily lenient sentence, in violation of Department policy. See id. 6 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 20 of 93 Convertino’s manner of handling the Koubriti case alienated the United States Attorney and other colleagues in Detroit, officials at DOJ’s Counter Terrorism Section in Washington (“CTS”), the defense lawyers on the case, and the Judge. Jonathan Tukel, First Assistant United States Attorney in the fall of 2003, testified that Convertino “had a reputation as being a polarizing figure.” Tukel Dep., at 134:15-20 [DA 102]. Convertino’s former secretary, who remains an admirer and is the godmother to his son, testified with regard to colleagues of Convertino that “they hated Rick.” Bruni Dep., at 37:9-17, 90:7-8 [DA 16-17]. Convertino refused to provide information to Washington-based officials even though he was repeatedly ordered to do so. As Jeffrey Collins, the United States Attorney at the time, testified: [T]here were numerous instructions, directives, orders if you will given to Mr. Convertino during the Koubriti trial that whenever something goes on pertaining to the case that he was to keep management informed, and the breakdown in the communication between our office and the counterterrorism section in Washington became so severe if you will that [Deputy Attorney General] Larry Thompson had to send [trial attorney] Joe Capone to the trial to sit in every day because there was no reliance or confidence that the information flow which was instructed to happen, it wasn’t happening . . . . Collins Dep., at 33:22-34:8 [DA 23-24].3 Convertino’s conduct culminated in an incident where, in a meeting attended by Deputy Assistant Attorney General Barry Sabin (from Main Justice) and United States Attorney Jeffrey Collins, Convertino responded to an inquiry from Sabin about where a particular theory of the case came from by telling Sabin that an AUSA “blew it out of his ass.” Id. at 105:11-24 [DA 29]; Capone described his role to Judge Rosen as follows: “[M]y role in the case was basically to 3 come out as a monitor to report to my superiors in Washington, the progress of the case and to assist, if asked. . . . I think in the beginning of the case, there was a lot of resistance to the Department of Justice oversight and so there was not a lot of free flowing communication between me and counsel. And so I basically fell into the role of monitoring the progress of the case, reporting to my supervisors.” United States v. Koubriti, Hearing Transcript, at 78:22-79:6 (Dec. 12, 2003) [DA 212-13]. 7 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 21 of 93 Convertino Dep., at 167:9-171:3 [DA 50-51]. As Convertino describes his own behavior: “It was intemperate, it was inappropriate . . . . [T]here was no question it was inappropriate and unprofessional.” Id., at 170:9-11, 171:2-3 [DA 51]. Convertino’s conduct toward Main Justice during his handling of the Koubriti prosecution led Collins to give Convertino a verbal reprimand. Collins Dep., at 105:21-24 [DA 29]; Convertino Dep., at 165:20-166:18 [DA 49-50]. Convertino’s response to the reprimand from the United States Attorney showed a lack of respect for authority. He testified: “I didn’t take [it] very seriously.” Id. In late August of 2003, more than three months after convictions were entered against three of the four defendants, see Morford Report, at 1-2 [DA 227-28] (describing the June 3, 2003 jury verdict), Criminal Chief Gershel informed Collins that Convertino was meeting with Senate investigators to discuss the Koubriti case, and that the investigators were also meeting with Hmimssa, the principal prosecution witness. Collins Dep., at 32:25-33:17 [DA 23]; see also Convertino Dep., at 176:5-19 [DA 52]; Compl. ¶¶ 37, 40-41. Collins was frustrated because, despite Collins’ instructions, Convertino had not informed management of the meeting with Senate investigators: “It was another example of Mr. Convertino not keeping everybody in the loop.” Collins Dep., at 34:15-35:5 [DA 24] (“Mr. Gershel was frustrated and I was frustrated.”). Collins’ patience with Convertino had finally expired. See id. at 39:2-3 [DA 25] (“[I]t was almost [as if] you had an unmanageable employee.”). On September 4, 2003, U.S. Attorney Collins removed Convertino from the Koubriti case, a decision that he reached after consulting with Criminal Chief Alan Gershel. Id. at 38:10-15 [DA 25]; cf. Compl. ¶ 49. Collins assigned AUSA Eric Straus, then4 Four days after being removed from the Koubriti case, Convertino flew to Washington, D.C. for 4 the purpose of testifying before the Senate Finance Committee. Compl. ¶ 67. Convertino did so even though he had been informed by DOJ that any testimony or contact with the Senate or Senate staff should 8 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 22 of 93 the Deputy Chief of the Counterterrorism Unit, to take over the case for purposes of post-trial motions and sentencing. Collins Dep., at 72:5-11 [DA 27]; Straus Dep., at 71:19-72:11 [DA 89]. B. Marwan Farhat Even before the Koubriti trial, Convertino had developed a close working relationship with Marwan Farhat. Farhat was an FBI informant who was paid by the government over an extended period of time to provide information on criminal activity by others. Convertino Dep., at 73:13-22 [DA 40]; Morford Report, at 50 [DA 276]. Farhat was well placed for this work because he himself was a criminal “who had a history of violence and drug related criminal convictions and was involved with individuals known to associate with Hizballah.” Morford Report, at 50 [DA 276]. As Convertino described one particular incident: “Farhat [was] the person who perpetrated a crime against a doctor, Dr. Fayad, a Dearborn physician . . . . Farhat was tasked to beat the doctor. Farhat be coordinated with DOJ’s Office of Legislative Affairs (“OLA”), and that Convertino did not have permission from OLA to testify. Id. ¶ 47. On September 9, 2003, Convertino testified before the committee during a hearing on document fraud, identity theft, and social security number misuse, although he still did not have the requisite permission. The Alias Among Us: The Homeland Security and Terrorism Threat from Document Fraud, Identity Theft, and Social Security Number Misuse: Hearing Before the S. Comm. on Finance, S. Hrg. 108-388, 108th Cong. (Sept. 9, 2003), at 7-17 [DA 183-93]. Hmimssa also testified before the committee. See id. at 17-24 [DA 193-200]. While Convertino notes that he was subpoenaed by the committee, the law is clear that agency employees subpoenaed in their official capacity are not required to respond when the agency instructs them not to. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (holding that a DOJ employee could not be held in contempt for disobeying a subpoena that conflicted with DOJ’s valid regulations). Convertino’s breach of protocol further irritated Collins. See Collins Dep., at 41:23-42:2 [DA 25-26] (“I could care less if Rick went and testified in front of that committee, only thing I wanted to make sure is that he followed protocol in doing so, that’s all.”). Subsequent to Convertino’s testimony, Senator Grassley’s office sought to have DOJ detail Convertino to work on Sen. Grassley’s staff. See Deposition of Jeffrey Taylor, at 21:10-13, 22:12-20 [DA 94-95]. Sen. Grassley put a “hold” on the then-pending nomination of James Comey to be Deputy Attorney General, using a Senatorial privilege to prevent Comey’s nomination from coming to a vote in the Senate, until the issue was resolved. Id. Ultimately, the issue was worked out. Comey was confirmed by the Senate on December 9, 2003. 156 Cong. Rec. S16151 (Dec. 9, 2003). Convertino went on a detail to Grassley’s office in January 2004. See Convertino Dep., at 219:17-220:3 [DA 58]. 9 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 23 of 93 did. Farhat, Nageeb Harari, and a third person whose name I can’t recall now, beat the doctor. . . . [T]he person who gave [us] the information about the doctor beating was Marwan Farhat.” Convertino Dep. at 134:22-135:19 [DA 48]. Farhat came to the attention of both Convertino and AUSA Robert Cares, then the chief of the office’s Counterterrorism Unit. Convertino and Cares came to very different conclusions about Farhat and his conduct. Convertino found Farhat useful, and, in addition to using him as an informant, he assigned Farhat to summarize Arabic language tapes for the Koubriti case (a case that Farhat was not otherwise involved in). Convertino also acted as a liaison for Farhat’s lucrative work for a private company even receiving Farhat’s pay in checks written out to him (Convertino). Convertino Dep., at 94:4-6, 95:5-10 [DA 45]; Convertino even attempted, unsuccessfully, to parlay his role in providing Farhat’s services5 to the company into a position for himself, Convertino Dep., at 95:11-18 [DA 45]; Convertino contends that he promised Farhat that Farhat would not have to testify and he “assumes” that the FBI Farhat also engaged in a variety of activities designed to help Convertino land high profile 5 prosecutions. For example, Farhat would, according to Convertino, frequent bars in an effort to obtain information. Convertino Dep., at 73:3-6 [DA 40]. When he learned of this years later, then-Criminal Chief Eric Straus found Farhat’s activity in this regard to be concerning: “It’s actually a troubling fact because it suggests that this guy’s out of control, so I assume no, they [DOJ] would not want that fact that we [the USAO] have so-called cooperating witnesses frequenting bars.” Straus Dep., at 94:24-95:11 [DA 90]. 10 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 24 of 93 made a similar promise. Convertino Dep., at 78:7-12, 79:5-11 [DA 42]. Around mid-September 2003, the judgment and commitment order in Farhat’s case was mistakenly delivered to Cares’ deputy, Eric Straus (Straus was handling the case of an unrelated defendant also named Farhat and it appears that the office mailroom mistakenly sent the Marwan Farhat judgment to Straus rather than Convertino). Straus Dep., at 19:2-14, 26:22-27:5 [DA 84, 86]. Straus and Cares were shocked to see that, despite a sentencing guidelines range of 108-135 months, Farhat had received a sentence of time served and three months supervised release. Cares Decl. ¶ 11 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 25 of 93 8 [DA 384]; Straus Dep., at 19:11-14 [DA 84] see also Straus Dep., at 27:13-28:1 [DA 86] (“[T]he office policy concerning downward departures generally is about maximum about 50 percent, in this case this was like 99 percent so it raised some significant, troubling issues.”). In the words of Straus: “[T]he circumstances concerning how Marwan Farhat was dealt with, the fact that nobody seemed to know that this sentencing had taken place certainly raised some eyebrows as to whether this thing had been approved . . . . I think it struck myself and a lot of people as improper conduct.” Straus Dep., at 28:7-18 [DA 86]. Cares and Straus sent someone to the courthouse to retrieve the transcript of Farhat’s 6 sentencing hearing, but he could not, as Convertino had had the hearing transcript sealed. Straus Dep., at 22:9-18 [DA 85]. 12 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 26 of 93 Id., Ex. C [DA 389]. Tukel is a career AUSA who served a detail in Washington, D.C. as Associate Deputy Attorney7 General from July 7, 2003 until September 15, 2003, when he returned to the Detroit USAO as First Assistant United States Attorney. Tukel Decl. ¶ 2 [DA 399]. Tukel thus was not at the USAO at the time of the Koubriti trial or at the time that Collins removed Convertino from the Koubriti case (Gershel was both First Assistant and Criminal Chief at that time) and had no role in that decision. Id. Tukel is currently the chief of the office’s National Security Unit which is the successor to the Counterterrorism Unit that was headed by Cares. Id. ¶ 1 [DA 399]. 13 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 27 of 93 14 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 28 of 93 15 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 29 of 93 16 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 30 of 93 17 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 31 of 93 Information obtained in the course of performing pretrial services is generally confidential, but8 is shared with the case prosecutor and defense counsel for the purposes of bail determination. See 18 U.S.C. § 3153. 18 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 32 of 93 19 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 33 of 93 See Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972). 9 20 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 34 of 93 21 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 35 of 93 Before the letter was finalized, a draft copy was shown to Criminal Chief Gershel to review for10 accuracy and comments. Gershel Dep., at 48:6-20 [DA 66]. To the best of his recollection, Gershel offered no suggestions. Id. 22 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 36 of 93 E. The Butch Jones Hearing In the meantime, revelations about Convertino’s handling of the Koubriti prosecution continued to unfold, and they spilled fully into the public domain with a contentious court hearing on December 12, 2003. See Hearing before the Hon. Gerald Rosen in United States v. Koubriti (Dec. 12, 2003) [DA 201]. Judge Gerald E. Rosen, who had presided over the Koubriti trial, opened the hearing by stating: “I have scheduled this emergency hearing to address issues raised by the disclosure of evidence, which is arguably evidence that should have been disclosed prior to the trial, 23 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 37 of 93 or at the very latest, prior to the close of the trial.” Id. at 6:20-24 [DA 203]. The evidence to which Judge Rosen referred included a letter written by an inmate named Milton Butch Jones, in which Jones contended that key prosecution witness Youssef Hmimssa told him (while the two men resided in adjacent prison cells) that he (Hmimssa) planned to lie in order to help the prosecution in Koubriti. Id. at 39:23-24, 40:2-41:13, 58:11-25, 59:10-19 [DA 206-10]. The letter was turned over to the defense only after Convertino was removed from the case and succeeding prosecutor Eric Straus discovered it. Id. at 72:4-17, 94:2-23 [DA 211, 221]. At the hearing, then-Criminal Chief Gershel told Judge Rosen that it was a “no brainer” that the letter should have been disclosed to the defense, and that he had given explicit instructions for the prosecutors to do so. Id. at 83:3-84:22 [DA 216-17]. Convertino admitted that he had become aware of the letter in February of 2003 when AUSA Joe Allen gave it to him. Id. at 87:19-25, 89:8- 11 [DA 218, 220]. Convertino further admitted that he did not disclose the letter to the court or to the defense. See id. at 94:14-23 [DA 221]. Judge Rosen scolded Convertino for his failure to turn11 over the document: “On its face, the letter contains exculpatory information on its face. It may be wildly incredible, but that’s not a decision that a prosecutor can make unilaterally. It’s a decision that the defense, first, in the first instance, gets to make. And if there’s a question in your mind, it comes to the Court.” Id. at 100:1-12 [DA 222]. Convertino conceded the correctness of Judge Rosen’s conclusion, responding, “I don’t disagree with that one bit.” Id. Unsatisfied with Convertino’s response, Judge Rosen ordered the government to conduct a “thorough review of every Judge Rosen did not place Gershel, Convertino or other attorneys under oath, but told them 11 that he viewed “their statements that they make to the Court as tantamount to being under oath.” Hrg. Tr. 8:9-21 [DA 205] (citing ABA Model Rule of Prof. Conduct Rule 3.3; Holloway v. Arkansas, 435 U.S. 475, 486 (1978)) 24 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 38 of 93 document in this case.” Id. at 162:12-24 [DA 223]. He ordered that the government turn over to the defense any documents “that are even close to being arguably Brady or Giglio material.” Id. at 162:25-163:9 [DA 223-24]. He further ordered: And if there are any documents that touch on Youssef Hmimssa’s credibility or the substance of his testimony, I want those turned over to the Court or turned over to defense counsel. I’m going to get to the bottom of this and I don’t want this to be a thousand cuts. I want it done. This should have been done a year ago. Id. Judge Rosen indicated that this was “the most unpleasant task that I’ve had in almost 14 years as a judge.” Id. at 166:4-6 [DA 225]. Judge Rosen’s rebuke of Convertino for his failure to turn over evidence was featured in the next day’s paper. See David Ashenfelter, Terror Prosecutors Scolded, Detroit Free Press, at 3A (December 13, 2003). A month later, after Judge Rosen published an opinion recounting the hearing, see United States v. Koubriti, 297 F. Supp. 2d 955, 964-65 (E.D. Mich. 2004), the Detroit Free Press once again noted Judge Rosen’s public scolding of Convertino for his conduct. See David Ashenfelter, Note Could Aid 3 Convicted in Terrorism Trial, Detroit Free Press, at 3B (January 13, 2004) (“Rosen rebuked Assistant U.S. Attorneys Richard Convertino and Keith Corbett for failing to turn over Jones’ letter and notes.”). F. The Ashenfelter Article Talk that Convertino might be the subject of an OPR referral had circulated in the Detroit legal community in the fall of 2003. According to Convertino’s testimony, in approximately October of 2003 an FBI agent told Convertino that he had heard from a defense attorney that Convertino “‘is going to get OPR’d.’” Convertino Dep., at 197:5-21 [DA 55]. Whether this was based on 25 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 39 of 93 speculation or fact or some combination is unknown. What is known is that after the Butch Jones12 hearing put into the public domain that the high profile terrorism convictions in the Koubriti case could be in jeopardy, David Ashenfelter, who covered the federal court and the U.S. Attorneys’ Office for the Detroit Free Press, put together an article about an OPR investigation of Convertino. Ashenfelter has refused to testify about how he acquired information for this article, contending that such testimony could implicate him in criminal activity. First Deposition of David Ashenfelter, at 7:7-8:5, 23:22-24:1, 24:17-25 [DA 4-5]; Second Deposition of David Ashenfelter, at 80:23-81:12, 84:16-19 [DA 9-10]; Convertino v. U.S. Dep’t of Justice, 2010 WL 523042, at *4-*5 (E.D. Mich. Feb. 9, 2010) (noting that on April 21, 2009, at Ashenfelter’s second deposition, the Court had sustained Ashenfelter’s invocation of the Fifth Amendment in response to questions regarding how he obtained information for his January 17, 2004 article, and denying Convertino’s motion to reconsider that earlier ruling). In the week before the publication of the article, Ashenfelter called officials at the Detroit USAO, telling them that he was planning an article about an OPR referral, and citing allegations against Convertino, several of which were in the OPR referral and two of which were neither in the OPR referral nor founded on fact. See Collins Dep., at 23:16-25:1 [DA 21]; Gershel Dep., at 31:7-24 [DA 65]. These latter two were that Convertino had taken unauthorized trips to Jordan and that 12 See, e.g., Sauget Dep., at 65:3-17, 65:25-66:5 [DA 78-79] (testifying that after Gershel asked him a question about the Makalda matter, Sauget “had reason to believe that they were probably taking a look at Mr. Convertino’s activities in the office” and “[g]iven the nature of that inquiry and the seriousness of those activities, Rule 35s and 5Ks, I felt that an OPR could result”). While Sauget was not a source for Ashenfelter, id. at 45:8-9, 65:25-66:15 [DA 74, 78-79], another individual or individuals, whether inside or outside of DOJ, could have come to the same conclusion. 26 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 40 of 93 Convertino had been removed from the Koubriti case for testifying before a Senate committee. Collins Dep., at 28:8-17 [DA 22]. In an effort to prevent Ashenfelter from reporting untrue negative allegations about Convertino, Collins told Ashenfelter that Convertino did not take unauthorized trips to Jordan, nor was he removed from the Koubriti case as a result of Congressional testimony. Id. Collins did not comment about the allegations in the OPR. See id. Criminal Chief Gershel, also wanting to prevent any untrue negative stories about Convertino, similarly told Ashenfelter that the trips that Convertino had taken were authorized. Gershel Dep., at 32:6-33:1 [DA 65]. Gershel did not say anything to Ashenfelter about the OPR referral. Id. at 33:2-9 [DA 65]. Final confirmation of the existence of the OPR referral appears to have come from Convertino, himself. On Friday, January 16, 2004, Ashenfelter called Convertino and left a voice13 mail message informing Convertino that he would be publishing an article about a purported OPR investigation of Convertino, and listing topics that, according to Ashenfelter’s information, were subjects of the investigation. Convertino Dep., at 186:18-187:3 [DA 53]. Convertino and his attorney, William Sullivan, called Ashenfelter and stated that Convertino had defenses to the Cf. Straus Dep., at 53:18-25 [DA 87] (“I’ve always thought that either Keith Corbett or Rick 13 Convertino or both of them, either intentionally, which is less likely, or unwittingly confirmed the story based on information Ashenfelter received, not necessarily from people who were directly aware from this, but second, third-tier people who heard it either on the street or from others as scuttlebutt stories.”); id. at 54:9-12 [DA 88] (“I don’t think you can discount the fact that there were court personnel that were aware of this and also FBI agents who were aware of this as well.”). Straus’ opinion on this matter cannot be considered direct evidence of how Ashenfelter obtained information for his article, but does underscore the fact that one highly plausible scenario is that no one deliberately leaked confidential information to Ashenfelter, but that Ashenfelter put together an article based on rumor combined with inadvertent “confirmations.” See also id. at 108:12-22 [DA 91] (“[Convertino’s misconduct regarding the Farhat plea] was pretty widely known. I don’t know how much it was known outside the office, but the Dearborn Police Department was upset that Rick had not followed through with his promise to include their – those violent acts in a RICO charge against Marwan Farhat, which was why they agreed to dismiss the charges [against Farhat] in Wayne County, so there was a little bit of a larger univers[e] of people who knew about that . . . .”). 27 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 41 of 93 allegations. Id. at 187:12-15 [DA 53]. Convertino and Sullivan also told Ashenfelter that he should not publish Marwan Farhat’s name because it would compromise the security of a law enforcement source. Id. at 192:13-15 [DA 54]. Ashenfelter told them that he would check on that, but the Detroit Free Press ultimately decided to publish Farhat’s name in the article. Id. at 190:8-11 [DA 54]. On Saturday, January 17, 2004, the Detroit Free Press published an article entitled “Terror case prosecutor is probed on conduct.” See David Ashenfelter, Detroit Free Press, at 1A (Jan. 17, 2004) [DA 146]. The article began: The U.S. Justice Department is investigating possible misconduct by the lead prosecutor in last year’s terrorism trial in Detroit, a development that could force a new trial. Department officials told the Free Press this week that U.S. Attorney Jeffrey Collins requested the investigation in November after discovering possible ethical violations involving the prosecutor, Assistant U.S. Attorney Richard Convertino. The inquiry is being conducted by the Justice Department’s Office of Professional Responsibility (OPR), according to the officials, who spoke on condition of anonymity, fearing repercussions. Id. The article went on to provide brief, although not entirely accurate, summaries of several issues that were discussed in the November 3, 2003 OPR referral. See id. The article then published responses from Convertino and his attorney William Sullivan to the allegations. See id. Ashenfelter’s article went on to provide what appears to be original reporting about Convertino based on on-the-record sources: People who know Convertino describe him as a tough, no-nonsense, competitive prosecutor who is well-liked by federal agents. Defense lawyers say his determination to win has caused him to break court rules. “I do not believe anyone in the United States Attorney’s Office is attempting to ruin his reputation I think he’s well on the road to accomplishing that himself,” said Detroit lawyer Robert Morgan, a former federal prosecutor who won the only acquittal in the Detroit terrorism trial. 28 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 42 of 93 Morgan said Convertino’s conduct “is in no sense representative of the other prosecutors in his office, who conduct themselves in a manner consistent with the highest professional standards.” Detroit criminal lawyer Steve Fishman added: “Nothing that comes out about his conduct surprises me because he believes in trial by ambush.” Id. Later on, the article went into some detail about the Makalda incident. Id. This discussion of the Makalda matter contains information that is not in any of the OPR referral materials and which is riddled with errors. See Sauget Dep., at 46:9-48:21, 54:4-17 [DA 75-76]. The information that is accurate would have been available from court documents. Id. at 70:5-71:21 [DA 80]. Tukel, who had invested significant work in preparing the OPR referral was unhappy that its existence had been publicly disclosed, as he “thought it set back the work [he] had been doing on the OPR referral.” Tukel Dep., at 256:9-19 [DA 107]. G. Continuing Investigations The OPR investigation of Convertino, which had begun with the referral from U.S. Attorney Collins, was halted by request of DOJ’s Public Integrity Section so that OPR would not inadvertently interfere with an ongoing criminal investigation of Convertino. Brown Decl. ¶ 18 [DA 370]. In the meantime, the file review of the Koubriti case ordered by Judge Rosen began. See Morford Decl. ¶¶ 1, 6 [DA 115, 118]. 1. The Morford-Led File Review Finds that Convertino Misled the Koubriti Defendants On December 19, 2003, one week after the hearing at which Judge Rosen publicly scolded Convertino and ordered the government to conduct a page by page file review of the Koubriti case, Deputy Attorney General James Comey asked Craig Morford, a respected AUSA from the Northern District of Ohio known for the prosecution of Congressman James Traficant, to lead the review. 29 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 43 of 93 Morford Decl. ¶ 6 [DA 118]. Morford led “an extensive review of documents from Koubriti-related files of several agencies in several districts.” Id. The review found “numerous instances of failure to turn material over” to the defense. Straus Dep., at 51:22-25 [DA 87]. On August 31, 2004, the government publicly filed the Morford Report in the Eastern District of Michigan. See Morford Report [DA 226-86]. The Report concluded, inter alia, that “the prosecution failed to disclose matters which, viewed collectively, were ‘material’ to the defense” and that “the prosecution allowed an incomplete and, at times, misleading record to be presented regarding several important issues.” Id. at 3-4 [DA 229-30]. The Report found: “In its best light, the record would show that the prosecution committed a pattern of mistakes and oversights that deprived the defendants of discoverable evidence (including impeachment material) and created a record filled with misleading inferences that such material did not exist.” Id. at 5 [DA 231]. The public filing of this report earned Convertino more negative press. The Detroit News published a front page article that began: “The once-vaunted investigation of a suspected Detroit terror cell was flawed from its very first days, according to a Justice Department review.” Terror Cell Case Flawed from Day 1, Feds Claim: Government Report Says Convertino Was Bent on Convictions, Detroit News, at A1 (Sept. 2, 2004). The article continued: Soon after the initial arrests of four North African men in a Detroit apartment, assistant U.S. attorney Richard G. Convertino asked an FBI agent to change a summary of a Sept. 18, 2001, interview with defendant Ahmed Hannan, according to the government’s report. He asked the agent to write that Hannan admitted documents found at the home were false even though the agent didn’t hear Hannan say so and the FBI has no notes to suggest he ever did. So began the investigation that has raised serious questions about the conduct of Convertino, a 14-year veteran who also is now under investigation, and the Justice Department’s war on terrorism. At best, the prosecution’s “pattern of mistakes” deprived the defendants of a fair trial, the government admits. 30 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 44 of 93 At worst? “They lied, lied, lied and lied,” said William Swor, a lawyer for one of the men who could be acquitted this week of aiding terrorists. Id. The article then went into detail about conclusions that Convertino withheld key information from the defense, instructed agents not to take notes during 20 to 30 hours of meetings with Hmimssa, and put on testimony that he did not in fact give those instructions. Id. Similarly, in the Detroit Free Press, coverage of the Morford Report publicly exposed Convertino to reporting that “Convertino allowed an Air Force colonel to mislead the jury;” that “[CIA official William] McNair told investigators Convertino seemed to be shopping for an opinion that agreed with his own;” and that Convertino was “faulted . . . for directing FBI agents to keep no notes of his interviews with star witness Youssef Hmimssa and allowing lead FBI Agent Michael Thomas to testify that there was nothing unusual about the procedure.” David Ashenfelter, Experts: Terrorism Trial Full of Errors, Detroit Free Press, at 1B (Sept. 2, 2004). The Detroit Free Press reported that Convertino’s co-counsel on the case (and supervisor) Keith Corbett “told investigators that [Corbett] wouldn’t have participated in the case had he known that information had been withheld [by Convertino] and [Corbett] agreed that the defendants deserved a new trial.” Id. A column published in the Detroit News the next day noted that the Morford Report “effectively accuses the government’s lead prosecutor, Richard Convertino, of conspiring with several key government witnesses to railroad Karim Koubriti, Ahmed Hannan and Abdel-Ilah Elmardoudi.” Brian Dickerson, Bosses Share Blame in Terror Case, Detroit Free Press, at 1B (Sept. 3, 2004). It further compared Convertino’s handling of the prosecution to “the Pentagon’s Abu Ghraib prison scandal,” called the prosecution “Rotten to the core,” and reported that “[i]n 31 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 45 of 93 breathtaking detail, the [Morford Report] explains how virtually every facet of the government’s case against Koubriti and Elmardoudi is contradicted by evidence prosecutors withheld from the defendants’ lawyers.” Id. (reporting, inter alia, that “Convertino . . . concealed evidence that would have discredited [Hmimssa’s] testimony”). And, similar to the previous day’s article, the column noted that “Keith Corbett, Convertino’s immediate boss and co-counsel, told investigators he would have quit the case if he’d known what his subordinate was up to.” Id. On September 2, 2004, Judge Rosen dismissed the convictions in an opinion which praised the government for the file review and Morford Report while excoriating the conduct of the 14 prosecution. United States v. Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004). Noting that prosecutors “must not act outside the Constitution,” Judge Rosen found that “that is precisely what has occurred in the course of this case.” Id. at 680. Judge Rosen described how, “at critical junctures and on critical issues essential to a fair determination by the jury,” the Koubriti prosecution “failed in its obligation” to disclose “many documents and other information . . . which were clearly and materially exculpatory of the Defendants as to the charges against them.” Id. at 680-81. He found that “the prosecution materially misled the Court, the jury and the defense as to the nature, character and complexion of critical evidence.” Id. at 681. Judge Rosen noted that “these failures Judge Rosen observed that Morford-led team had completed a “searching and comprehensive 14 review” of the evidence; that “the Government team pursuing the review , led by Mr. Morford,” acted “with the highest level of professionalism and commitment to the justice system;” and that the team had “followed the evidence impartially and objectively and allowed the facts to lead where they may.” 336 F. Supp. 2d, at 679. Judge Rosen further observed that the Morford Report’s conclusion “is in the highest and best tradition of Department of Justice attorneys” and “it is the right decision.” Id. Judge Rosen’s conclusions were not based on a simple review of the Morford Report, but on his own observation and involvement: “[T]he Court’s own involvement in the review , which has been ongoing, intensive and exhaustive and has included a thorough review of all documents and information not provided to the defense, both classified and non-classified, fully supports the Government’s conclusions and positions.” Id. at 681. 32 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 46 of 93 by the prosecution were not sporadic or isolated,” but rather “were of such a magnitude, and were so prevalent and pervasive as to constitute a pattern of conduct.” Id. Judge Rosen went further, concluding that “the prosecution early on in the case developed and became invested in a view of the case . . . and then simply ignored or avoided any evidence or information which contradicted or undermined that view” and “abandoned any objectivity or impartiality that any professional prosecutor must bring to his work.” Id. Judge Rosen found that the prosecution had not lived up to its “obligations to the justice system and the rule of law.” Id. Judge Rosen also noted that there were ongoing “internal Justice Department investigations by the Office of Professional Responsibility and the Office of Professional Integrity into the conduct of the original prosecution team.” Id. at 678 n.2. Judge Rosen’s public findings led to more negative press for Convertino. For example, the Detroit News reported Judge Rosen’s finding of “widespread prosecutorial misconduct in the [Koubriti] case” and reported that “[t]he lead prosecutor, Richard Convertino, is the subject of criminal and internal disciplinary investigations for his conduct during the trial.” Judge Rips Feds in Terror Case, Detroit News, at D1 (Sept. 3, 2004); see also David Ashenfelter, Judge Dismisses Terrorism Charges: Federal Prosecutors Accused of Deceiving Court, Jury, Defense, Detroit Free Press, at 1B; Danny Hakim, Judge Reverses Convictions in Detroit Terrorism Case, N.Y. Times, at A12 (Sept. 3, 2004) (“The judge’s comments echoed the Justice Department’s sharp rebuke of Mr. Convertino, who was removed from the case late last year and is being investigated for possible misconduct. The department said in its filing that Mr. Convertino withheld a substantial amount of evidence from the court that undermined every critical aspect of his terrorism case.”); Terror in the 33 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 47 of 93 Courtroom, Boston Globe, at A14 (Sept. 6, 2004) (“Most to blame for this misconduct is the chief prosecutor, Richard C. [sic] Convertino.”) 2. A Grand Jury Indicts Convertino for Obstruction of Justice In early 2004, Judge Rosen, after being presented with evidence of potential criminal misconduct uncovered during Morford’s then-ongoing file review, requested that DOJ’s Inspector General or similar entity conduct a factual investigation including interviews of witnesses. Hillman Decl. ¶ 2 [DA 108-09]. On or about February 6, 2004, DOJ’s Public Integrity Section began a criminal investigation into possible prosecutorial and agency misconduct relating to the Koubriti prosecution. Id. Then-Section Chief Noel Hillman decided to open the criminal investigation in part because he was informed “that Judge Rosen considered the potential misconduct suggested by the documents [uncovered during Morford’s review] to be extremely serious, and that such misconduct, if true, not only undermined the fairness and integrity of the Koubriti convictions but could also be crimes in and of themselves.” Id. ¶ 5 [DA 110-11]. On or about March 11, 2004, Hillman and other DOJ officials met with Judge Rosen to discuss the criminal investigation and assure Judge Rosen that DOJ took his concerns seriously. Id. ¶ 6 [DA 111].15 On March 29, 2006, a grand jury indicted Convertino on four felony counts. United States v. Convertino, Indictment [DA 287]. Count four of the indictment addressed the lenient sentence for Marwan Farhat that had initially sparked the Cares memo and the internal investigation that led to the OPR referral. Id. at 16-18 [DA 303-05]. The grand jury charged that Convertino “did corruptly Hillman requested that the then-ongoing OPR investigation of Convertino, which had begun 15 with the referral from U.S. Attorney Collins, be suspended so that OPR would not inadvertently interfere with the ongoing criminal investigation of Convertino. Hillman Decl. ¶ 12 [DA 113]. OPR thus never completed an investigation of Convertino. Brown Decl. ¶ 18 [DA 370]. 34 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 48 of 93 influence, obstruct and impede the due administration of justice in [Farhat’s sentencing], by presenting and permitting to be presented false or misleading evidence to the Court in the sentencing of [Farhat].” Id. at 17 [DA 304]. The next day, reports of Convertino’s alleged misconduct again made headlines. See, e.g., David Ashenfelter, Terrorism Prosecutor Is Charged with Lying, Detroit Free Press, at A1 (Mar. 30, 2006) (reporting that Convertino “is accused of misleading U.S. District Judge Julian Cook in July 2003 about the extent of co-operation that drug suspect Marwan Farhat provided to the government” and reporting additional allegations “that Convertino engineered other huge sentencing reductions on behalf of drug dealers who assisted the government, then had the proceedings sealed to hide what he had done”); Terrorism Prosecutor Indicted, Detroit News, at A1 (Mar. 30, 2006) (reporting that Convertino “was formally indicted Wednesday on charges that he built [the Koubriti] case on perjury and deception” and that “[t]he indictment also charges Convertino with obstructing justice by lying about a generous sentencing agreement with Marwan Farhat, a convicted drug dealer”); Other Convertino Cases Likely To Be Scrutinized, Detroit News, at A6 (Mar. 30, 2006) (observing that the “indictment of former assistant U.S. Attorney Richard Convertino puts a thicker tarnish on what was once a bright star of the Detroit office”). The first three counts of the indictment, which alleged misconduct relating to testimony during the Koubriti trial by a State Department agent examined by Convertino conduct that was not uncovered in the preparation of the OPR referral and which is not otherwise discussed herein were tried to a jury in October 2007. See United States v. Convertino, 2:06-cr-20173, Doc. ## 212- 24. Judge Rosen declined to testify, the government’s key eyewitness (a Jordanian named Samir Jarandogha) committed perjury the week before the trial thus seriously undermining his own credibility, and the government was unable to prove its case beyond a reasonable doubt, leading to 35 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 49 of 93 Convertino’s acquittal. See id. On December 7, 2007, the government moved to voluntarily dismiss count four, obstruction of justice relating to Farhat’s sentencing, in part because Farhat’s sentencing judge refused to testify. See Government’s Motion To Dismiss Count Four of the Indictment, United States v. Convertino, No. 06-CR-20173, Doc. # 199 (Dec. 7, 2007) [DA 307]. In a post-trial opinion, Judge Tarnow, who presided over Convertino’s criminal trial, rejected Convertino’s claim that the criminal charges were vindictive, finding that “the charges had merit,” and that there was significant evidence to support the charges. United States v. Convertino, 2008 WL 2008613, at *4 (E.D. Mich. May 8, 2008). This too was reported in the press. See, e.g., Paul Egan, Convertino Request Is Denied, Detroit News, at B5 (May 9, 2008) (noting also allegations that Convertino “repeatedly lied about his credentials on applications, such as for college and law school and to become a federal judge”). H. Convertino’s Post-DOJ Career After serving one year as a detailee to the staff of Senator Charles Grassley, see supra note 4, Convertino voluntarily left his employment with DOJ to start his own law practice focusing on criminal defense. He continues to engage in high profile work, and he continues to receive press,16 Convertino tells the following story of his departure from DOJ on the website of the law firm16 Convertino & Associates, of which he is the sole principal: Richard Convertino started the firm in 2005 after a very successful career as a federal prosecutor. Throughout his career, there were times when Convertino questioned the tactics and power of the Department of Justice as well as prosecutorial advantages. After much deliberation, he made the transition to defense work in response to the case of Jay Morningstar. Morningstar is a Michigan state trooper who was the first such trooper to be charged with second degree murder for shots fired in the line of duty. After review ing the case, Convertino was shocked that such charges had been brought against Trooper Morningstar. He resigned his federal position and immediately began working on the Morningstar case. www.convertino.net/id9.html (last visited July 9, 2010). 36 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 50 of 93 not all positive. For example, an article from earlier this year reported that United States District Judge Battani told Convertino in open court: “‘You’re just either a con artist or plain stupid.’” Paul Egan, Judge Critical of Convertino in Waters Case, Detroit News, at A5 (Apr. 16, 2010). III. PROCEDURAL BACKGROUND On February 13, 2004, Convertino filed the complaint in this case alleging violations of the Administrative Procedure Act (“APA”), the First Amendment, and the Lloyd-LaFollette Act, by DOJ, then-Attorney General Ashcroft, Collins, Tukel, Gershel, and Jarrett, and a violation of the Privacy Act by DOJ. See Compl., at 7, 25. Because of the ongoing investigation of Convertino in criminal matters described above, this Court entered a limited stay allowing the parties to proceed on a motion to dismiss the claim based on the APA, First Amendment, and Lloyd-LaFollette Act, while staying all proceedings relating to the Privacy Act claim. See Doc. # 23. On October 19, 2005, this Court granted defendants’ partial motion to dismiss, leaving DOJ as the only defendant, and the Privacy Act count as the only remaining cause of action. See Doc. # 30; Convertino v. U.S. Dep’t of Justice, 393 F. Supp. 2d 42 (D.D.C. 2005). At that time, the criminal investigation of Convertino was still ongoing, and thus, this Court denied Convertino’s motion to lift the stay. See Doc. # 38. A. The First Discovery Period On February 15, 2006, DOJ notified the Court that the criminal investigation of Convertino had advanced sufficiently so as to allow the stay to be lifted. See Doc. # 39. On February 22, 2006, the Court dissolved the stay. See Doc. # 40. On April 10, 2006, the parties filed their meet and confer statement, agreeing that discovery should commence immediately and last for a duration of 37 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 51 of 93 six months, and that each party should have the right to take up to ten depositions. See Doc. # 42. Over the ensuing months, the parties served written discovery; Convertino, however, refused to provide meaningful discovery responses and refused to appear for a deposition, leading DOJ to file a motion to compel on November 13, 2006. See Doc. # 51. Convertino responded by moving to bifurcate discovery or, in the alternative, for a stay, contending that he could not respond to discovery while his criminal case was pending. See Doc. # 56. On August 8, 2007, the Court denied Convertino’s motion to bifurcate and granted his motion for a stay until the conclusion of his criminal case. See Doc. # 66. B. The Second Discovery Period On December 14, 2007, Convertino notified the Court that the criminal proceedings had terminated and thus, by its own terms, the stay had dissolved. See Doc. # 77; see also Doc. # 78 (Court’s meet and confer Order). On December 19, 2007, the parties filed a proposed scheduling order which the Court entered the next day. See Doc. ## 78, 80. The parties conducted additional discovery. Plaintiff deposed nine current and former DOJ employees: former United States Attorney Jeffrey Collins, former Criminal Chief Alan Gershel, AUSAs Eric Straus, Jonathan Tukel, and William Sauget, USAO support staff Gina Balaya and Ana Bruni, former Counselor to the Attorney General Jeffrey Taylor, and Julie Grohovsky, formerly a counsel in DOJ’s Office of the Inspector General. DOJ deposed one fact witness: plaintiff Richard Convertino. Fact discovery closed on June 1, 2009. See Doc. # 118. C. Third-Party Discovery Throughout both discovery periods, Convertino made occasional attempts to obtain discovery from the Detroit Free Press and reporter David Ashenfelter on how Ashenfelter acquired information for his January 17, 2004 article. These attempts were ultimately unsuccessful. 38 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 52 of 93 On July 11, 2006, before taking any depositions in this case, Convertino issued (from this Court) a subpoena for documents and deposition to Gannett Co., the corporate parent of the Detroit Free Press. See Ashenfelter v. Convertino, 2:06-cv-14016, Doc. # 1 Ex. G. This subpoena sought to have Gannett designate, pursuant to Federal Rule 30(b)(6), “‘one or more officers, directors, or managing agents, or other persons’” to “‘testify on behalf’ of its newspapers concerning the source of the article by David Ashenfelter entitled ‘Terror Case Prosecutor is Probed on Conduct.’” Id. (quoting Fed. Rule 30(b)(6)). On September 12, 2006, David Ashenfelter filed suit against Convertino, contending, inter alia, that Convertino’s attempt to obtain Ashenfelter’s confidential source information from Gannet without giving Ashenfelter an opportunity to protect his asserted reporter’s privilege “violate[d] Ashenfelter’s rights under the First and Fifth Amendments of the United States Constitution.” Ashenfelter v. Convertino, 2:06-cv-14016 (E.D. Mich.), Doc. # 1, ¶ 49. After Convertino failed to appear within the time period allotted by the Federal Rules, Ashenfelter filed a motion for a default judgment. See id., Doc. # 3. Convertino then appeared, representing himself, and moved to dismiss Ashenfelter’s complaint, contending that the court lacked subject matter jurisdiction, that venue was improper, and that the complaint failed to state a claim on which relief may be granted. See id., Doc. # 4. After the parties exchanged briefing on the motion, Convertino withdrew the subpoena and Ashenfelter dismissed the case on May 17, 2007. See id., Doc # 14. In the meantime, Convertino served subpoenas issued from the Eastern District of Michigan on Ashenfelter and the Detroit Free Press seeking both depositions and documents. See Convertino v. U.S. Dep’t of Justice, 2007 WL 2782039, at *1 (E.D. Mich. Sept. 24, 2007). On July 6, 2007, after Ashenfelter and the Detroit Free Press refused to comply with the subpoenas, Convertino 39 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 53 of 93 opened a miscellaneous action in the Eastern District of Michigan, and filed a motion to compel production from Ashenfelter and the Detroit Free Press. See Convertino v. U.S. Dep’t of Justice, 2:07-cv-13842 (E.D. Mich.), Doc. # 1. On August 31, 2007, Ashenfelter and the Detroit Free Press filed a motion to quash the subpoenas. See id. Doc. # 2. On September 5, 2007, Convertino filed a motion to stay the proceedings. See id. Doc. # 3. On September 24, 2007, the court granted Convertino’s motion for a stay. See Convertino v. U.S. Dep’t of Justice, 2007 WL 2782039, at *2 (E.D. Mich. 2007). On February 21, 2008, the court lifted the stay and reinstated Convertino’s motion to compel. See Convertino v. U.S. Dep’t of Justice, 2:07-cv-13842 (E.D. Mich.), Doc. # 15. On August 28, 2008, the court granted Convertino’s motion to compel Ashenfelter’s compliance with the subpoena finding (in agreement with the position advanced by Convertino) that identification of Ashenfelter’s source or sources of information was necessary for Convertino to have any chance of prevailing in his Privacy Act suit against DOJ. See Convertino v. U.S. Dep’t of Justice, 2008 WL 4104347, at *7 (E.D. Mich. 2008) (“To establish that the DOJ committed a willful or intentional violation, [Convertino] must present evidence of the disclosing person’s state of mind, which requires him to identify and question those who perpetrated the allegedly improper disclosure.” (citing Hatfill v. Gonzales, 505 F. Supp. 2d 33, 42-43 (D.D.C. 2007))). The court denied Convertino’s motion to compel compliance by the Detroit Free Press finding that it was “‘unreasonably cumulative [and] duplicative.’” Id. at *9 (quoting Fed. R. Civ. P. 26(b)(2)(C)(i)) (alteration in original); see also Convertino v. U.S. Dep’t of Justice, 2008 WL 4998369 (E.D. Mich. Nov. 21, 2008) (denying Ashenfelter’s motion for reconsideration). Ashenfelter made further requests for protection from the Eastern District of Michigan and from this Court, both of which were denied. See Convertino 40 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 54 of 93 v. U.S. Dep’t of Justice, 260 F.R.D. 678 (E.D. Mich. 2008); Doc. # 107 (this Court’s Order denying Ashenfelter’s motions for protective order and stay). On December 8, 2008, Ashenfelter was deposed for the first time in this case. See First Ashenfelter Dep. [DA 1]. Ashenfelter refused to substantively answer any questions other than giving his name. See id. at 7:7-8:5 [DA 4]. Instead, in response to all other questions, Ashenfelter refused to answer, citing, inter alia, the Fifth Amendment. See id. On December 23, 2008, Convertino filed motions seeking contempt and sanctions against Ashenfelter. See Convertino v. U.S. Dep’t of Justice, 2:07-cv-13842 (E.D. Mich.), Doc. ## 39-40. On February 26, 2009, the court denied Convertino’s motion seeking contempt, but ordered Ashenfelter to appear at a second deposition to be held at the federal courthouse in Detroit. Convertino v. U.S. Dep’t of Justice, 2009 WL 497400 (E.D. Mich. 2009); see also Convertino v. U.S. Dep’t of Justice, 2009 WL 891701 (E.D. Mich. Mar. 31, 2009) (denying Ashenfelter’s motion to certify for interlocutory appeal); In re: David Ashenfelter, No. 09-1443 (6th Cir. Apr. 16, 2009) (denying Ashenfelter’s petition for a writ of mandamus). On April 21, 2009, counsel for the parties gathered in Judge Cleland’s jury room for the second deposition of David Ashenfelter. See Second Ashenfelter Dep. [DA 6]. At this deposition, Ashenfelter substantively answered some questions, but refused to answer any questions about how he obtained information for the January 17, 2004 article. See, e.g., id. at 80:23-81:12, 84:16-19 [DA 9-10]. After an ex parte discussion with Ashenfelter’s attorney, regarding an ex parte filing by Ashenfelter, Judge Cleland sustained Ashenfelter’s assertion of the Fifth Amendment privilege with regard to questions about how Ashenfelter obtained the relevant information. See id. at 105:8-21 [DA 12]. Rather than appeal this decision, Convertino filed a motion for reconsideration. See 41 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 55 of 93 Convertino v. U.S. Dep’t of Justice, 2:07-cv-13842 (E.D. Mich.), Doc. # 66. In this motion, Convertino argued for the first time that Ashenfelter had waived his Fifth Amendment rights by submitting a declaration in March of 2008 in support of his claimed reporters’ privilege. See id. However, because new arguments generally may not be advanced on motions for reconsideration, Convertino’s motion for reconsideration was denied. See Convertino v. U.S. Dep’t of Justice. 2010 WL 523042, at *5-*6 (E.D. Mich. Feb. 9, 2010) (“In the interest of finality of litigation, the court declines to consider an entirely new legal argument as presented in Plaintiff’s motion for reconsideration.”). Convertino has not appealed this ruling.17 D. Expert Discovery After the Court ordered Convertino to submit to an Independent Medical Examination under reasonable conditions, see Convertino v. U.S. Dep’t of Justice, 669 F. Supp. 2d 8 (D.D.C. 2009), expert discovery proceeded. The parties exchanged expert reports, Expert discovery closed on May 10, 2010. See Doc. # 163, at 2. The only motion currently pending before the court in the Eastern District is a motion which 17 Convertino styled as a “Renewed Motion To Compel Production from Non-Party Corporation Detriot [sic] Free Press.” See Convertino v. U.S. Dep’t of Justice, 2:07-cv-13842 (E.D. Mich.), Doc. #65. This motion is more correctly understood as a motion for reconsideration of the court’s August 28, 2008 order denying Convertino’s earlier motion to compel compliance from the Detroit Free Press. See Convertino v. U.S. Dep’t of Justice, 2008 WL 4104347, at *9 (E.D. Mich. 2008) . Convertino did not appeal that earlier adverse ruling. In opposing Convertino’s “renewed” motion, the Detroit Free Press contends that Ashenfelter is the only person who knows the relevant source information and, since he has a Fifth Amendment right against providing that information, any 30(b)(6) deposition would be futile. See Convertino v. U.S. Dep’t of Justice, 2:07-cv-13842 (E.D. Mich.), Doc. #75, at 8-12. 42 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 56 of 93 ARGUMENT18 CONVERTINO HAS NOT ESTABLISHED A VIOLATION OF THE PRIVACY ACT I. CONVERTINO’S DISCLOSURE CLAIM IS WITHOUT MERIT In order to prevail on a money damages claim for an alleged disclosure in violation of the Privacy Act, a plaintiff must establish four elements. First, the plaintiff must demonstrate that there was a disclosure made by an “agency” without the plaintiff’s consent. 5 U.S.C. § 552a(b). Second, he must demonstrate that the disclosure was “willful and intentional,” which means that it was “‘so patently egregious and unlawful that anyone undertaking the conduct should have known it was unlawful.’” Convertino v. U.S. Dep’t of Justice, 674 F. Supp. 2d 97, 101 (D.D.C. 2009) (quoting Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987)). Third, he must demonstrate that the disclosure was of a “record” retrieved from a “system of records” as those terms are defined in the Privacy Act. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1123 (D.C. Cir. 2007) (holding that disclosure of investigative information would not lead to Privacy Act liability unless the plaintiff could “present evidence that materials from records about him, which [the agency] retrieved by his name, were improperly disclosed” (emphasis in original)). And, fourth, he must establish that he suffered “actual damages” as a result. Doe v. Chao, 540 U.S. 614, 627 (2004).19 The familiar standard for granting a motion for summary judgment is recited in Alexander v.18 FBI, 691 F. Supp. 2d 182, 187-88 (D.D.C. 2010) (Lamberth, C.J.). As explained more fully in Doe v. Chao, “actual damages” is greater than mere “adverse 19 effect.” A plaintiff must establish “adverse effect” in any Privacy Act case whether it be for money damages or equitable relief. When a plaintiff seeks money damages, however, he must also meet the more stringent element of “actual damages.” The actual damages prong is discussed infra Part VI. The other three prongs are discussed in this part. 43 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 57 of 93 Although he needs to establish all four prongs in order to prevail, Convertino has failed to present evidence sufficient to carry his burden as to any of them. A. Convertino Has Not Established Any Agency Disclosure The first element of an unlawful disclosure claim under the Privacy Act, is proof that an agency made a disclosure. Plaintiff has offered no evidence of any disclosure by DOJ. Indeed, plaintiff offers no evidence as to how reporter David Ashenfelter obtained information for his story. The article’s vague reference to “DOJ officials” is of no support, as statements in newspapers are inadmissible hearsay when offered for the truth of their contents. E.g., Spotts v. United States, 562 F. Supp. 2d 46, 54-55 (D.D.C. 2008); Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 123 (D.D.C. 2002) (Lamberth, J.). DOJ’s Office of Inspector General (“OIG”) conducted what Convertino described as “a complete and thorough investigation,” see Convertino v. Dep’t of Justice, 674 F. Supp. 2d 97, 106 (D.D.C. 2009) (quoting a memorandum of points and authorities filed by Convertino), and OIG concluded that it “was unable to determine by a preponderance of the evidence the source of the information about Convertino and Farhat that was published in the Detroit Free Press on January 17, 2004.” OIG, Report of Investigation of a Leak of Confidential Information to the Detroit Free Press (Dec. 15, 2004), at 16 [DA 160]. Ashenfelter has refused to testify about how he obtained his information, see Second Ashenfelter Dep., at 80:23-81:12, 84:16-19 [DA 9-10],20 and Convertino has conducted no other discovery that has unearthed evidence of how Ashenfelter Because Ashenfelter is refusing to testify in this case, the declaration that he submitted in the20 Eastern District of Michigan proceedings is inadmissible here. Declarations are not admissible at trial, but may be used in summary judgment so long as they are “capable of being converted into admissible evidence” – generally live testimony by the same witness. See Gleken v. Democratic Congressional Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000). As Ashenfelter is refusing to give substantive testimony in this case, his declaration is not capable of being converted into evidence admissible at trial. 44 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 58 of 93 obtained information suggesting that Convertino was the subject of an OPR investigation. As such, Convertino’s disclosure claim must fail. Convertino, moreover, does not seem to believe that there was a disclosure by DOJ. In his own words: I don’t think that the Department of Justice did anything to me that was wrong. I think that the Department of Justice is one of the finest institutions in the world, whose principles and ideals are to be lauded and followed. And it’s the greatest place an attorney can work. So I don’t think anyone or the Department of Justice did anything to me. Convertino Dep. at 59:13-20 [DA 38]. Rather, Convertino surmises that individuals acting in their individual capacity leaked information to injure him. Id. at 60-64 [DA 38-39]. Convertino, of course, has no evidence of this. Even if he did, this would not appear sufficient to meet the requirement of proof of an agency disclosure. See Alexander v. F.B.I., 971 F. Supp. 603, 610 (D.D.C. 1997) (Lamberth, J.) (holding that where actions “were taken by the [government employees] as individuals outside the scope of their employment” then “the Privacy Act does not provide a remedy”); see also McCready v. Nicholson, 465 F.3d 1, 13 (D.C. Cir. 2006) (“The Privacy Act constrains agencies regarding their records and imposes obligations on agencies when they use such records.” (emphases in original)); Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1432 (Fed. Cir. 1998) (“It is well established that the government is not bound by the acts of its agents beyond the scope of their actual authority.”); cf. Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir. 2003) (noting that an employer is not responsible for “actions committed solely for the servant’s own purposes” (alteration and quotation omitted)). In short, Convertino’s failure to identify an alleged “leaker” is itself fatal to his disclosure claim. 45 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 59 of 93 B. Convertino Has Not Established that Any Disclosure Was “Willful and Intentional” The Privacy Act allows for damages only when there is an “intentional or willful” violation. 5 U.S.C. § 552a(g)(4). “[T]he words ‘intentional’ and ‘willful’ in § 552a(g)(4) do not have their vernacular meanings; instead, they are terms of art.” White v. OPM, 840 F.2d 85, 87 (D.C. Cir. 1988) (per curiam). As the Court has held in this very case, the “intentional or willful” standard requires a plaintiff to prove that the conduct at issue was “‘so patently egregious and unlawful that anyone undertaking the conduct should have known it was unlawful.’” Convert ino v . U.S. Dep’t of Justice, 674 F. Supp. 2d 97, 101 (D.D.C. 2009) (quoting Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987)); see also Albright, 732 F.2d at 189 (holding that a plaintiff can only prevail “when the agency acts in violation of the Act in a willful or intentional manner, either by committing the act without grounds for believing it to be lawful, or by flagrantly disregarding others’ rights under the Act.”); Tijerina v. Walters, 821 F.2d 789, 799 (D.C.Cir.1987) (“Something greater than gross negligence” must be shown for Privacy Act liability to attach.); Alexander v. FBI, 691 F. Supp. 2d 182, 190 (D.D.C. 2010) (“Summary judgment cannot be avoided merely by presenting evidence that the government handled a matter in a disjointed or confused manner, or that the government acted inadvertently to contravene the Act.” (quotation omitted)). A claim for damages thus turns upon “a party’s state of mind.” Laningham, 813 F.2d at 1241 n.6. In determining intent, the Court must examine (1) the “purpose” for which the disclosure was made; (2) “the source of the idea to” make the disclosure; and (3) other “circumstances” surrounding the disclosure. Albright, 732 F.2d at 189. This requires the Court to dig “deep into the breach’s context.” Cummings v. Dep’t of the Navy, 279 F.3d 1051, 1060 (D.C. Cir. 2002). 46 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 60 of 93 To establish the requisite intent, Convertino must introduce evidence concerning the state of mind of the particular individual(s) who actually disclosed the information: “[I]t is the decision of the individual(s) who leaked the information that is at issue and without knowing whom that individual is we cannot look at their intent.” Convertino, 674 F. Supp. 2d at 102; accord McCready v. Principi, 297 F. Supp. 2d 178, 197 (D.D.C. 2003), rev’d on other grounds, McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006). And, of course, an essential predicate for establishing this individual’s state of mind is to identify that individual. The D.C. Circuit observed this in Lee v.21 Department of Justice, 413 F.3d 53 (D.C. Cir. 2005), which involved alleged “leaks” of investigative information. The plaintiff in Lee sought and was granted the right by the trial court to depose reporters regarding the names of government sources. In upholding that order, the D.C. Circuit recognized that the threshold piece of “relevant information is the identity of the individuals[.]” Lee, 413 F.3d at 60. Without the names of the sources, the court recognized that plaintiff’s “ability to show the other elements of [his lawsuit], such as willfulness and intent, will be compromised.” Id.; see also Lee v. Department of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (“without obtaining truthful testimony from journalists concerning the identities of the Government sources who allegedly leaked information to the press, [plaintiff] cannot proceed with this lawsuit”); Zerilli v. Convertino has conceded this point earlier in this litigation in order to obtain a favorable order21 in collateral discovery litigation, and he is thus estopped from taking a contrary position here. See Convertino v. U.S. Dep’t of Justice, Pl’s Reply to Non-Party Media Respondents’ Response to Pl’s Motion to Compel Production, 2:07-cv-13842-RHC-RSW (E.D. Mich.), Doc. # 25, at 11 (Apr. 18, 2008) [DA 323] (conceding that “without the name of the source of the alleged disclosure, plaintiff Convertino cannot sustain his burden of proof on any of the threshold elements necessary for him to prove a Privacy Act violation”); Convertino, Dep’t of Justice Surreply in Opp’n to Pl.’s Mot. to Compel, 04-cv-00236- RCL (D.D.C.), Doc. # 149 (Nov. 3, 2009), at 9-12; cf . Convertino v. Dep’t of Justice, 674 F.Supp.2d 97, 106-07 (E.D. Mich. 2009). 47 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 61 of 93 Smith, 656 F.2d 705, 714 (D.C. Cir. 1981) (“The success of [appellants’] Privacy Act and Fourth Amendment claims may depend on the identities of the individuals who leaked the wiretap logs”). In McCready v. Principi, 297 F. Supp. 2d 178, 197 (D.D.C. 2003), rev’d on other grounds, McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006), the court rejected a claim under the Privacy Act where no one could identify the individual who “leaked” the document. The court observed that, “[w]ithout more evidence of the perpetrator of the alleged ‘leak’ and that the ‘leak’ was intentional and willful, no violation of the Privacy Act can be determined.” Id.; accord Hatfill v. Gonzales, 505 F. Supp. 2d 33, 43 (D.D.C. 2007) (holding that “the identity of DOJ and FBI sources will be an integral component of the plaintiff's attempt to prove the requisite agency mens rea”). Indeed, “a wealth of case law suggests that in order to prove that a violation of the Privacy Act has occurred, the actual source of the information must be identified.” Hatfill v. Gonzales, C.A. 03-1793, Order at 2 (D.D.C. March 30, 2007) [DA 335]. This Court’s earlier opinion in this case is yet another confirmation of this settled legal principle. See Convertino, 674 F. Supp. 2d at 102-03. Thus, because Convertino clearly bears the “burden of proof on the issue of intent,” Albright, 732 F.2d at 190, his claim fails as a matter of law. Speculation regarding intent is insufficient to carry this burden. Id. Summary judgment should be entered for the government because Convertino has failed to offer proof that the agency acted willfully or intentionally. Hill v. U.S. Air Force, 795 F.2d 1067 (D.C. Cir. 1986); see also Moskiewicz v. U.S. Dep’t of Agriculture, 791 F.2d 561, 564 (7th Cir. 1986) (finding that plaintiff must advance “evidence of conduct which would meet a greater than gross negligence standard, focusing on evidence of reckless behavior and/or knowing violations of the Act on the part of the accused”). 48 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 62 of 93 C. Convertino Has Not Established “Actual Retrieval” from a System of Records The Privacy Act applies only to “records” maintained in a “system of records” by a federal agency that are “retrieved” by the name or other identifying information of the individual. 5 U.S.C. §§ 552a(a). In the wake of Watergate, and recognizing that the government was developing ever more “sophisticated new systems of information gathering and retention[,]” Congress enacted the Privacy Act to prevent the misuse of records. Legislative History of the Privacy Act of 1974, Introductory Remarks of Sen. Sam J. Ervin, Sponsor of S. 3418, at 5 [hereinafter “Source Book on Privacy”] [DA 345]. Upon the implementation of the Act, the President noted the ever increasing data-collection technology and noted that the Act was intended to prevent disclosures of information that was “retrieved” from such a system. Statement by the President on the Implementation of the Privacy Act of 1974, at 1002 (reprinted version) (copy attached at DA 349). The disclosure provision in Section 552a(b) thus prohibits an agency from disclosing any “record” which is contained in a system of records, 5 U.S.C. § 552a(b), unless the action is done with the consent of the individual or pursuant to an articulated exception, such as a routine use. The case law likewise recognizes that the Act prohibits only “nonconsensual disclosure of any information that has been retrieved from a protected record.” Bartel v. FAA, 725 F.2d 1403, 1408 (D.C. Cir. 1984) (emphasis in original); accord Sussman v. U.S. Marshals Serv., 494 F.3d22 Bartel recognized a narrow exception to the rule of retrieval applicable to “the peculiar 22 circumstances of [that] case.” 725 F.2d at 1408. Indeed, the opinion itself notes on six occasions that it is based on the peculiar facts before that case. See Fisher v. NIH, 934 F. Supp. 464, 474 (D.D.C. 1996) (“It is important to note two things about the Bartel decision. First, the Court of Appeals repeatedly, on six occasions, stated that its ruling was based on the particular facts of that case. Second, the Court of Appeals did not reject the retrieval rule for use in other scenarios.”), aff’d, 107 F.3d 922 (D.C. Cir. 1996). In any event, in the absence of any evidence as to how Ashenfelter obtained the information for his story, Convertino cannot credibly contend that the narrow Bartel exception applies here. 49 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 63 of 93 1106, 1123 (D.C. Cir. 2007) (holding that disclosure of investigative information would not lead to Privacy Act liability unless the plaintiff could “present evidence that materials from records about him, which [the agency] retrieved by his name, were improperly disclosed” (emphasis in original)). Under the Privacy Act, “there is a rule of retrieval, not a rule of coincidence. If there is information in a record, and a federal employee gained that same information from the use of her own senses, the employee’s telling others what she saw or heard does not violate the Privacy Act[.]” Krieger v . Fadely, 199 F.R.D. 10, 13 (D.D.C. 2001); see also Doe v. Dep’t of Veterans Affairs, 519 F.3d 456, 461 (8th Cir. 2008) (“[T]he only disclosure actionable under section 552a(b) is one resulting from the retrieval of the information initially and directly from the record contained in the system of records.”) (quotation omitted); Hudson v. Reno, 130 F.3d 1193, 1205 (6th Cir. 1997) (holding that23 “the Privacy Act only prohibits the disclosure of information that has been retrieved from a system of records” and does not apply to the “‘spreading of rumor’” or “office gossip”), abrogated on other grounds by Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001); Krieger v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 44-46 (D.D.C. 2008) (no actual retrieval where employee identified documents by reviewing them, rather than through a name or identifier based retrieval system); Mittleman v. U.S. Dep’t of Treasury, 919 F. Supp. 461, 469 (D.D.C. 1995) (no actual retrieval, and hence no Privacy Act violation, where statement was “derived [by agency employee] from conversations with his superiors”). In Doe, the court followed its own precedent of Olberding v. U.S. Dep’t of Defense, where it 23 had found that “[t]he interpretation contended for by plaintiff – that section 552a(b) [of the Privacy Act] is violated if agency personnel disclose information they possess by means other than retrieval from a system of records – would create an intolerable burden and would expand the Privacy Act beyond the limits of its purpose.” 709 F.2d 621, 622 (8th Cir. 1983) (quotation omitted). 50 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 64 of 93 A recent application of the actual retrieval rule is found in Doe v. Department of Veterans Affairs, 519 F.3d 456 (8th Cir. 2008). That case concerned the alleged disclosure of the plaintiff’s HIV-positive status and his use of marijuana by a government-employed doctor. See id. at 459. Both the HIV status and the use of marijuana were contained in Privacy Act-protected records (within the plaintiff’s medical files), including in notes taken by the doctor while providing medical services to the plaintiff at a VA facility. See id. Nevertheless, the doctor’s disclosure could not be a Privacy Act violation because he had made his statements from “[p]ersonal knowledge and memories,” not from his notes or any other document, and thus the actual retrieval standard could not be met. Id. at 463. Caselaw in this Circuit and others thus makes it clear that proof of actual24 retrieval of a Privacy Act-protected record is a requirement for liability to attach. In the instant case, Convertino lacks any evidence that any information about him was actually retrieved from a system of records. For this reason, his disclosure claim must be dismissed. * * * For at least the three independent reasons described above because Convertino has no evidence of a disclosure by DOJ, because Plaintiff has no evidence of the requisite intent, and because Convertino has no evidence of actual retrieval from a system of records summary judgment should be granted to DOJ on Plaintiff’s disclosure claim. Accord Pippinger v. Rubin, 129 F.3d 519, 531 (10th Cir. 1997) (The Privacy Act “does not 24 prevent federal employees or officials from talking – or even gossiping – about anything of which they have non-record based knowledge.”); Savarese v. U.S. Dep’t of Health, Educ., and Welfare, 479 F. Supp 304, 308 (N.D. Ga. 1979) (“It is evident from the matters before the court that at least a portion of the information which Dr. Reich communicated to third persons was contained in a system of records . . . . The uncontradicted evidence shows, however, that Dr. Reich at no time referred to or otherwise utilized information retrieved from that system of records.”), aff’d, 620 F.2d 298 (5th Cir. 1980). 51 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 65 of 93 II. CONVERTINO’S ACCURACY CLAIM IS WITHOUT MERIT Convertino’s claim pursuant to § 552a(e)(6) of the Privacy Act is similarly without merit. That section requires that “prior to disseminating any record about an individual to any person other than an agency . . . [the agency shall] make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes.” 5 U.S.C. § 552a(e)(6). Thus, for liability to attach, a plaintiff must show: (1) that there has been an agency dissemination of a record, (2) that at the time of dissemination, the agency had not made reasonable efforts to assure that the record is accurate, complete, timely, and relevant for agency purposes, (3) that the agency’s failure to make such reasonable efforts was “intentional or willful” (i.e., good faith mistakes are not actionable) and (4) that the failure to make such reasonable efforts caused the plaintiff to suffer “actual damages.” Convertino has failed to establish each of these elements and thus for four separate and independent reasons, his accuracy claim is meritless. A. Convertino Has Not Established a Dissemination by DOJ In order to establish liability under § 552a(e)(6), Plaintiff must first establish a dissemination of a record by DOJ “to a person other than an agency.” 5 U.S.C. § 552a(e)(6). As noted above, he cannot do so. See supra Argument Part I.A. Plaintiff thus fails the first prong of his accuracy claim. B. DOJ Made Reasonable Efforts To Establish that the OPR Referral Documents Were Accurate, Complete, Timely, and Relevant for Agency Purposes Even where there is proof of a dissemination, a plaintiff cannot prevail on an accuracy claim unless he can show that the agency failed to make reasonable efforts to establish that a particular record was accurate, complete, timely, or relevant. While section (e)(6) requires a dissemination of a record as a predicate, that subsection creates a cause of action based on the accuracy of records, 52 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 66 of 93 not the accuracy of disclosures. Moreover, to prevail, a plaintiff must establish an inaccuracy as to facts that are “capable of being verified,” and not simply statements of opinion or subjective evaluations. E.g., Webb v. Magaw, 880 F. Supp. 20, 25 (D.D.C. 1995); accord Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 866 (D.C. Cir. 1989) (information at issue must be “susceptible to proof”). As an initial matter, it is clear that DOJ undertook reasonable efforts to ensure that the OPR referral was accurate, complete, and timely. After receiving which detailed evidence of apparent misconduct by Convertino, First Assistant United States Attorney Jonathan Tukel engaged in an extensive investigation to determine the facts surrounding “[e]vidence and non- frivolous allegations of serious misconduct by [Convertino].” U.S. Atty’s Man. § 1-4.100(B) [DA 164-65]. The USAO leadership had a clear obligation to report such information to OPR and the Executive Office for United States Attorneys (“EOUSA”). See id. (“The supervisor shall evaluate whether the misconduct at issue is serious, and if so shall report the evidence of non-frivolous allegations to the Office of the Inspector General (“OIG”) or to the Office of Professional Responsibility (“OPR”), and to EOUSA.”). 53 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 67 of 93 54 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 68 of 93 It should be noted that DOJ policy provides that the “[r]eporting [of] an allegation [to OPR] 25 raises no inference that the allegation is well-founded.” U.S. Atty’s Man. § 1-4.100 [DA 164-65]. To the 55 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 69 of 93 C. Convertino Has Not Established the “Intentional or Willful” Element Finally, even if Convertino could establish that the OPR referral contained some inaccuracy or incompleteness and he cannot he would not be able to show that any inaccuracy or incompleteness was the result of “intentional or willful” conduct. As noted above, this requires a plaintiff to prove that the conduct was “‘so patently egregious and unlawful that anyone undertaking the conduct should have known it was unlawful.’” Convertino v. U.S. Dep’t of Justice, 674 F. Supp. 2d 97, 101 (D.D.C. 2009) (quoting Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987)). In fact, DOJ’s conduct in compiling the OPR referral was both entirely appropriate, indeed required, and painstaking in its completeness and accuracy. Thus, even if Convertino could identify a factual error he has no evidence that such an error was sufficiently “‘patently egregious and unlawful” to support monetary relief. See, e.g., Deters v. U.S. Parole Comm’n, 85 F.3d 655, 660 (D.C. Cir. 1996) (holding that “[e]ven if the Commission inadvertently or negligently violated extent that the Ashenfelter article suggests otherwise, that is due to the misleading nature of the article and not to any inaccuracy in DOJ’s records. 56 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 70 of 93 [plaintiff’s] Privacy Act rights by not examining the accuracy of the [source document] before preparing a [subsequent document,] such a violation (if any) could in no sense be deemed ‘patently egregious and unlawful’” (citations omitted)). III. CONVERTINO’S FIRST AMENDMENT EXERCISE CLAIM IS WITHOUT MERIT While all of Convertino’s claims are without merit, his claim that DOJ maintained records on his First Amendment activities in violation of 5 U.S.C. § 552a(e)(7) appears to be especially frivolous. See Compl. ¶ 136. Convertino has not identified any First Amendment activity, and Convertino has not identified any record that improperly records his First Amendment activity. For example, as described above, the OPR referral sets forth evidence and allegations regarding conduct that Convertino undertook as an employee of DOJ. As such, the maintenance of the record (or of other records derived from it) cannot violate Section 552a(e)(7). Nagle v. U.S. Dep’t of Health Educ. & Welfare, 725 F.2d 1438, 1441 (D.C. Cir. 1984) (“A federal agency does not violate the Act if it records, for evaluative or disciplinary purposes, statements made by employees while at work.”).26 Convertino’s First Amendment claim is without merit. To the extent that Convertino is counting his September 9, 2003 testimony before the Senate 26 Finance Committee to be the relevant first amendment activity, his claim is similarly untenable. First, the testimony was done in his capacity as an Assistant United States Attorney and not in his individual capacity, and thus any record of it would be lawful and appropriate. Nagle, 725 F.2d at 1441. Second, there is no evidence that DOJ maintained a record of the content of his testimony (which is publicly available and entirely uncontroversial) as opposed to the fact that he testified, see England v. Comm’r of Internal Revenue, 798 F.2d 350, 352-53 (9th Cir. 1986) (records concerning conduct do not implicate Section 552a(e)(7) if the content of the speech is not recorded), – indeed, there is no evidence that DOJ maintained a record, as that term is defined in the Privacy Act, even of the fact of Convertino’s testimony. And third, there is no evidence that the maintenance of any DOJ record concerning Convertino’s testimony caused any adverse effect on Convertino. 57 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 71 of 93 IV. CONVERTINO’S SAFEGUARDS AND RULES OF CONDUCT CLAIMS ARE WITHOUT MERIT The burden of establishing violation of Sections (e)(9) and (e)(10) of the Privacy Act is a particularly high one. “The Privacy Act does not make administrative agencies guarantors of the integrity and security of the materials which they generate,” or “authorize the federal courts to act as micro-managers of the records practices of the administrative agencies.” Kostyu v. United States, 742 F. Supp. 413, 417 (E.D. Mich. 1990). Instead, “the agencies are to decide for themselves how to manage their record security problems, within the broad parameters set out by the Act.” Id. In doing so, “the agencies have broad discretion to [choose] among alternative methods of securing their records commensurate with their needs, objectives, procedures, and resources.” Id. And, “it is clear that Congress intended to reserve civil liability only for those lapses which constituted an extraordinary departure from standards of reasonable conduct.” Id. These provisions of the Privacy Act were never intended to place an onerous burden on agencies. When the Privacy Act was enacted, Congress refrained from prescribing “in this subsection or in this Act a general set of specific technical standards for security of systems.” S. Rep. No. 93-1183, at 54 (1974), reprinted in 1974 U.S.C.C.A.N. 6916, 6969. Instead, it directed each agency “merely . . . to establish those administrative and technical safeguards which it determines appropriate and finds technologically feasible for the adequate protection of the confidentiality of the particular information it keeps.” Id. Endorsing the notion that “the term ‘appropriate safeguards’ should incorporate a standard of reasonableness,” Congress enacted a statute that “thus provides reasonable leeway for agency allotment of resources to implement this subsection. At the agency level, it allows for a certain amount of ‘risk management’ whereby 58 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 72 of 93 administrators weigh the importance and likelihood of the threats against the availability of security measures and the consideration of cost.” S. Rep. No. 93-1183, at 54, 55 (1974), reprinted in 1974 U.S.C.C.A.N. 6916, 6969. DOJ has “promulgated extensive regulations codified at 28 C.F.R. §§ 16.1, et seq,, that safeguard its Privacy Act-protected records.” Krieger, 529 F. Supp. 2d at 54-55; see also 28 C.F.R. §§ 16.40-16.55. As Judge Kollar-Kotelly of this Court found, these “extensive regulations” are sufficient as a matter of law to meet DOJ’s obligations under Sections (e)(9) and (e)(10). Krieger, 529 F. Supp. 2d at 54-55. Indeed, Convertino fails to offer any DOJ policy or practice regarding safeguards or rules of conduct that is inadequate, let alone one whose inadequacy was the result of conduct “‘so patently egregious and unlawful that anyone undertaking the conduct should have known it was unlawful.’” Convertino, 674 F. Supp. 2d at 101 (quoting Laningham, 813 F.2d at 1242). Moreover, Convertino offers no evidence that would link any DOJ policy or practice regarding rules of conduct or safeguards to any injury suffered by him. Convertino’s safeguards and rules of conduct claims thus fail as a matter of law. V. CONVERTINO’S ACCOUNTING CLAIM IS WITHOUT MERIT The Privacy Act requires agencies to “keep an accurate accounting of [certain information regarding] each disclosure of a record to any person or to another agency made under subsection (b) of this section.” 5 U.S.C. § 552a(c)(1)(A). Subsection (b) in turn states twelve categories of permissible disclosure. 5 U.S.C. § 552a(b). The accounting requirement in the Privacy Act thus2 7 Two of the twelve categories – (1) disclosures within the agency and (2) disclosures required 27 by the Freedom of Information Act – are excluded from the accounting requirement by another portion of Section 552a(c)(1). 59 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 73 of 93 applies only where there has been an antecedent disclosure of a record that was made pursuant to Section 552a(b). Convertino has not established any disclosure pursuant to 5 U.S.C. § 552a(b). Indeed, the heart of his theory of this case (which is unsupported by evidence) is that there were disclosures that were not made pursuant to Section 552a(b). E.g., Compl. ¶ 133. Any disclosures that were not made pursuant to 552a(b) would not trigger the accounting requirement. See Beaven v. U.S. Dep’t of Justice, 2007 WL 1032301, at *23 (E.D. Ky. March 30, 2007) (“The plaintiffs’ complaint is that the defendants failed to make an accounting of the alleged unauthorized disclosure, and the accounting requirement of the Privacy Act, § 552a(c), is therefore inapplicable.” (emphasis in original)). In addition to the fact that no accounting was required here, Convertino’s accounting claim lacks merit because the absence of an accounting did not cause either “adverse effects” or “actual damages” to him, both of which are elements of a Privacy Act cause of action. E.g., Albright v. United States, 732 F.2d 181, 184 (D.C. Cir. 1984); Thompson v. Department of State, 400 F. Supp. 2d 1, 85 (D.D.C. 2005). Plaintiff’s supposed damages stem from the reporting of information in the January 17, 2004 Ashenfelter article. But neither this article nor the claimed damages stem from whether or not DOJ created a log of disclosures. Finally, given that DOJ was not aware of any “disclosure of a record” pertaining to Convertino and still is not, see supra Part I.A the lack of an accounting of such disclosures could hardly be “willful and intentional.” 60 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 74 of 93 VI. CONVERTINO HAS NOT ESTABLISHED “ACTUAL DAMAGES” All of Convertino’s various Privacy Act claims also fail because he is unable to show “actual damages,” see 5 U.S.C. § 552a(g)(4)(A), which, as the Supreme Court has held, is an element of liability under the Privacy Act. See Doe v. Chao, 540 U.S. 614, 618 (2004). As discussed below, Convertino has not presented any evidence of pecuniary damages. Moreover, the non-pecuniary damages that he claims are not recoverable under the Privacy Act, and, in any event, plaintiff is unable to show the requisite causal link between his claimed damages and the alleged disclosure at issue in this case. A. Plaintiff Has Presented No Evidence of Any Pecuniary Damages While Convertino alleges that he incurred “out-of-pocket pecuniary losses,” Compl. ¶ 142, he has produced no evidence of such losses sufficient to withstand a motion for summary judgment. First, he has disclaimed any damages as a result of lost income, stating in interrogatory responses: “Plaintiff is not seeking damages for loss of income or any wage based losses.” Convertino Second Supp. Int. Resp., at 4 (Jan. 25, 2008) [DA 127]. Second, when asked under oath at his deposition whether there are “pecuniary costs that you’re seeking remuneration for,” he was unable to articulate any pecuniary damages other than the alleged loss of income that he had already waived. Convertino Dep., at 222:18-223:5 [DA 59]. As Convertino put it: “I can’t enumerate them for you now. I mean, there are expenses that were incurred. There’s a tremendous loss of income and potential income that I’ll never regain. There’s economic costs that I haven’t thought about or tabulated because I don’t know what they might be.” Id. In addition to being unable, in testimony, to identify any pecuniary losses, he has not produced a single receipt for any out of pocket expense proximately caused by the alleged Privacy Act violation. 61 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 75 of 93 Plaintiff’s non-specific and vague assertion of pecuniary damage is insufficient to survive summary judgment. “[W]hile a motion to dismiss may be decided on the pleadings alone, construed liberally in favor of the plaintiff, a motion for summary judgment by definition entails an opportunity for a supplementation of the record, and accordingly a greater showing is demanded of the plaintiff.” Wilderness Soc. v. Griles, 824 F.2d 4, 16 (D.C. Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322) (“Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”). Having failed to offer any evidence of pecuniary damages incurred as a result of the alleged disclosure, Convertino is left with only claims of non-pecuniary damages, which cannot be recovered in a Privacy Act suit. B. Plaintiff Cannot Recover Non-Pecuniary Damages under the Privacy Act. The Privacy Act limits civil damages recoveries to only “actual damages.” See 5 U.S.C. § 552a(g)(4)(A). While the meaning of “actual damages” is ambiguous that is, it is susceptible to two different constructions both sovereign immunity principles and the Privacy Act’s legislative history make clear that the use of “actual damages” in the Privacy Act refers to only pecuniary losses, and excludes non-pecuniary damages such as claimed emotional harm. Convertino thus cannot establish the required damages element by claiming injuries for which he suffered no pecuniary loss, such as anxiety, embarrassment, or loss of reputation. The term “actual damages” is not defined in the Privacy Act, and the courts of appeals have agreed that it is ambiguous. See Cooper v. FAA, 596 F.3d 538, 545 (9th Cir. 2010) (observing that “there is no plain meaning to the term actual damages”); Hudson v. Reno, 130 F.3d 1193, 1207 n.11 62 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 76 of 93 (6th Cir. 1997) (“[T]he term ‘actual damages’ has no plain meaning or consistent legal interpretation.”), abrogated on other grounds by Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001); Johnson v. Dep’t of Treasury, Internal Revenue Serv., 700 F.2d 971, 974 (5th Cir. 1983) (“[T]his Court concludes that the term ‘actual damages’ has no plain meaning or consistent legal interpretation.”); Fitzpatrick v. Internal Revenue Serv., 665 F.2d 327, 329 (11th Cir. 1982) (“‘[A]ctual damages’ has no ‘plain meaning’ in legal lexicon.”). Depending on the statutory context, the term “actual damages” can be construed as having either of two distinct meanings. See Doe v. Chao, 540 U.S. at 627 n.12. The first treats “actual damages” as synonymous with compensatory damages: i.e., damages distinct from either nominal or punitive damages. See, e.g., Morehead v. Lewis, 432 F. Supp. 674, 678 (D.C. Ill. 1977). This broad interpretation encompasses compensatory damages for emotional distress. The second, more restrictive construction includes only pecuniary losses. See, e.g., Aiello v. Providian Fin. Corp., 239 F.3d 876, 878, 880 (7th Cir. 2001) (“actual damages” require “financial loss”); Ryan v. Foster & Marshall, 556 F.2d 460, 464 (9th Cir. 1977) (“Actual damages mean some form of economic loss.”); Guzman v . Western State Bank, 540 F.2d 948, 953 (8th Cir. 1976) (“actual damages” encompass “out-of-the-pocket pecuniary loss” but not “emotional and mental” damage). Neither the Supreme Court nor the D.C. Circuit has resolved the meaning of the phrase “actual damages” as it is used in the Privacy Act. See Doe v. Chao, 540 U.S. at 627 n.12.; Albright v . United States, 732 F.2d 181, 186 (D.C. Cir. 1984) (declining to address district court’s holding that there were no “actual damages” absent out-of-pocket expenses). Of the circuits to address the issue, the Sixth and Eleventh have concluded that “actual damages” refers only to pecuniary expenses. See Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 872-73 (11th Cir. 2009) 63 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 77 of 93 (“‘[A]ctual damages’ as used in the Privacy Act permits recovery only for proven pecuniary losses and not for generalized mental injuries, loss of reputation, embarrassment or other non-quantifiable injuries.” (quotation omitted)), cert. denied, 130 S. Ct. 1755 (2010); Hudson, 130 F.3d at 1207 (“[T]he weight of authority suggests that actual damages under the Privacy Act do not include recovery for ‘mental injuries, loss of reputation, embarrassment or other non-quantifiable injuries.’”); Fitzpatrick, 665 F.2d at 329-31 (relying on legislative history to conclude that the Privacy Act does not permit recovery of non-pecuniary injuries). The Fifth and the Ninth Circuits reached a contrary conclusion. See Cooper, 596 F.3d at 544-51 (relying on Ninth Circuit precedent interpreting the Fair Credit Reporting Act); Johnson, 700 F.2d at 974-83 (relying on legislative history to conclude that the Privacy Act allows recovery of non-pecuniary losses); see also Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375 (5th Cir. 2003). Among the courts in this District, there is a similar level of disagreement. Some courts have limited “actual damages” to only pecuniary expenses, while other courts have provided a more28 expansive interpretation. Amidst this split, there is one certainty the term “actual damages” is29 See Pope v. Bond, 641 F. Supp. 489, 501 (D.D.C. 1986) (“‘[A]ctual damages’ does not 28 include damages for emotional trauma, anger, fright, or fear.”); Albright v. United States, 558 F. Supp. 260, 264 (D.D.C. 1982) (“Actual damages under the Privacy Act are limited to ‘out-of-pocket’ expenses and do not include damages for emotional trauma, anger, fright or fear”); aff’d 732 F.2d 181 (D.C. Cir. 1984); Houston v. U.S. Dep’t of Treas., 494 F. Supp. 24, 30 (D.D.C. 1979) (relying on legislative history to conclude that “Congress, concerned about the drain on the treasury created by a rash of Privacy Act suits, indicated its intention to limit ‘actual damages’ to ‘out-of-pocket’ expenses”). See Alexander v. Fed. Bureau of Investigation, 971 F. Supp. 603, 607 (D.D.C. 1997) (relying 29 on the Johnson legislative history analysis without consideration of sovereign immunity principles); Dong v. Smithsonian Inst., 943 F. Supp. 69, 74 (D.D.C. 1996) (same), rev’d on other grounds, 125 F.3d 877 (D.C. Cir. 1997); see also Boyd v. Snow, 335 F. Supp. 2d 28, 39 (D.D.C. 2004) (permitting evidence of emotional injury without consideration of sovereign immunity principles); Rice v. United States, 211 F.R.D. 10, 14 (D.D.C. 2002) (relying on the Fourth Circuit’s decision in Doe v. Chao, 306 F.3d 170, 177 (4th Cir. 2002), before the Supreme Court decided the case and reversed the Fourth Circuit, see 540 U.S. 614). 64 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 78 of 93 ambiguous. And while the Court previously addressed this question in Alexander, the Court should reconsider the issue in light of intervening case law construing the Constitutional doctrine of sovereign immunity. Most notably, in the recent decision in Sussman v. U.S. Marshals Service, (discussed at greater length below) the D.C. Circuit held that principles of sovereign immunity require courts to give provisions of the Privacy Act relating to the scope of the Government’s potential liability the narrowest possible construction. 494 F.3d 1106, 1123 (D.C. Cir. 2007). The doctrine of sovereign immunity dictates that any statutory ambiguity be construed in favor of the sovereign, and given that it is indisputable that the term “actual damages” is open to at least two possible constructions, the narrower construction meaning only pecuniary losses must be applied. Moreover, as explained below, the Privacy Act’s legislative history suggests that Congress intended to limit “actual damages” to only pecuniary losses. 1. Sovereign Immunity Requires the Narrowest Construction of the Ambiguous Term “Actual Damages.” It is well settled that any ambiguity in a statutory waiver of sovereign immunity must be construed strictly in favor of the sovereign. See Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (“[A] waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign.”); Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461, 464 (D.C. Cir. 1999) (same); see also Sussman, 494 F.3d at 1123 (construing narrowly the Privacy Act’s waiver of sovereign immunity). Indeed, a waiver of sovereign immunity must be “unequivocally expressed” and its conditions must be “strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981)); see also United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). And, “any doubts about the scope of a waiver [must] be resolved in 65 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 79 of 93 favor of the narrower governmental liability.” Nichols v. Pierce, 740 F.2d 1249, 1257 (D.C. Cir. 1984); see also Trout v. Sec’y of the Navy, 317 F.3d 286, 290 (D.C. Cir. 2003). The Privacy Act contains a waiver of the United States’ sovereign immunity, and that waiver contains the ambiguous term “actual damages.” See 5 U.S.C. § 552a(g)(4); Tomasello v. Rubin, 167 F.3d 612, 618 (D.C. Cir. 1999). As explained above, the term “actual damages” may be read (a) to expose the sovereign to liability for pecuniary and non-pecuniary losses, or (b) to limit the sovereign’s liability to only out-of-pocket, pecuniary losses. See Doe, 540 U.S. at 627 n.12. In such a situation, sovereign immunity principles require the narrower construction that “actual damages” refers only to pecuniary losses. See Blue Fox, 525 U.S. at 261; Galvan, 199 F.3d at 464. With the exception of the Ninth Circuit, courts that have squarely applied sovereign immunity principles in interpreting the meaning of “actual damages” have concluded that “actual damages” refers only to out-of-pocket losses. See, e.g., Hudson, 130 F.3d at 1207 n.11; Schmidt v. U.S. Dep’t of Veterans Affairs, 222 F.R.D. 592, 594 (E.D. Wisc. 2004); DiMura v. Fed. Bureau of Investigation, 823 F. Supp. 45, 47-48 (D. Mass. 1993) (because the Privacy Act is a waiver of sovereign immunity and it is “plausible” to read the term “actual damages” to refer only to pecuniary damages, this reading must be adopted). The Ninth Circuit decision in Cooper, which is the outlier among courts applying sovereign immunity principles, is logically flawed and based on an inapposite comparison with the very different Fair Credit Reporting Act (“FCRA”).30 The Fifth Circuit reexamined its conclusion from Johnson, 700 F.2d 971, in Jacobs, 548 F.3d 30 375, but the analysis did not involve determining whether Johnson was correct. Rather, the Fifth Circuit examined only whether there had been an intervening change in the law that would vitiate the binding nature of Johnson. The Circuit found that there had not been an intervening change in law , and thus that Johnson was binding. See Jacobs, 548 F.3d at 378 (“We need not decide, however, whether a present- day analysis of damages recoverable under the Privacy Act would differ from Johnson, because, again, there is no intervening change in law to permit our doing so.”). 66 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 80 of 93 In Cooper, the Ninth Circuit began by concluding, as every other circuit to consider the matter had found, that “there is no ordinary or plain meaning of the term ‘actual damages’ because it is a term of legal art.” Cooper, 596 F.3d at 544. The panel next found that the Privacy Act’s legislative history “is not a reliable source for the meaning of actual damages because both sides of the argument can readily find support for their respective positions in that history.” Id. at 547. The panel then acknowledged that “if actual damages is susceptible of two plausible interpretations, then the sovereign immunity canon requires the court to construe the term narrowly in favor of the Government, holding that nonpecuniary damages are not covered.” Id. at 549-50. Given the panel’s finding that the term “actual damages” is subject to different constructions, and its recognition that sovereign immunity principles require a court to select the more narrow construction, the panel was required to construe the term “actual damages” in the Privacy Act in its narrowest sense. The panel did not do so, however, instead relying on what it called an “extrinsic source” Circuit precedent interpreting the term “actual damages” in the FCRA. See id. at 547-49. The panel noted that the Ninth Circuit and two other circuits had construed the term “actual damages” in the FCRA to include non-pecuniary damages. See id. at 548. The fact that courts have construed the term “actual damages” in the FCRA to include non-pecuniary damages is unremarkable because it is indisputable, as discussed above, that the statutory term “actual damages” has two different meanings, depending on the statute, and can either include or exclude non- pecuniary damages; the FCRA is an example of the former, while the statues interpreted in Aiello, Ryan, and Guzman (all cited above) are examples of the latter. However, neither the FCRA nor judicial constructions of it can supply or enlarge a waiver of sovereign immunity in the Privacy Act. Indeed, sovereign immunity principles have no place in interpreting the FCRA because the FCRA 67 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 81 of 93 applies to private consumer reporting agencies, not to government agencies. See 15 U.S.C. § 1681. 31 Thus, whatever the meaning of “actual damages” in any given statute authorizing suits against private actors, it is clear that “the term ‘actual damages’ has no plain meaning or consistent legal interpretation, [and] thus when it is being applied against the government it must be narrowly interpreted here that requires finding that actual damages only mean out-of-pocket losses, not emotional distress.” Hudson, 130 F.3d at 1207 n.11 (emphasis supplied). Such analysis is further strengthened by the D.C. Circuit’s application of sovereign immunity principles in limiting the scope of the Privacy Act waiver in the recent case of Sussman v . U.S. Marshals Service, 494 F.3d at 1123. In considering whether the Privacy Act authorizes suit by an adversely affected individual for the improper disclosure of another person’s records, the D.C. Circuit concluded that because the Privacy Act is susceptible to competing interpretations on this question, “we must construe [the Privacy Act’s] waiver of sovereign immunity narrowly.” Id. at 1123. That is the proper course here as well, and the ambiguity associated with “actual damages” should be resolved in favor of the sovereign to limit the term to only out-of-pocket losses. This is so even without resort to legislative history because, “[a] statute’s legislative history cannot supply a waiver that does not appear clearly in the statutory text; ‘the ‘unequivocal expression’ of Moreover, the Privacy Act, which was passed four years after the FCRA by a different 31 Congress, is premised on a different mix of policy determinations by Congress. As described more fully in Part VI.B.2, infra, the Privacy Act represents a balance between the desire to incentivize government agencies to protect private information on the one hand, and a desire to limit exposure of the public fisc to judgments, on the other hand. For this reason, for example, Congress, in the Privacy Act limited monetary liability to cases of “w illful or intentional” violation, denying damages when there is a negligent violation. See infra note 33. In the FCRA, Congress had no interest in limiting judgments because the public fisc is not involved; Congress’ only interest was ensuring that “consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy.” 15 U.S.C. § 1681(a)(4). Thus, for example, the FCRA, unlike the Privacy Act allows recovery based on a negligent violation. See 15 U.S.C. § 1681o(a). 68 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 82 of 93 elimination of sovereign immunity that we insist upon is an expression in the statutory text.’” Lane v. Pena, 518 U.S. 187, 192 (1996) (quoting Nordic Village, 503 U.S. at 37). Without a clear textual waiver of sovereign immunity for non-pecuniary damages, the Privacy Act does not expose the sovereign to such liability. And in light of the Sussman ruling confirming the application of sovereign immunity principles to the Privacy Act, this Court should construe the waiver of sovereign immunity more narrowly and hold that the term “actual damages” is limited to pecuniary losses. 2. The Privacy Act’s Legislative History Indicates That “Actual Damages” Was Meant to Refer Only to Out-Of-Pocket Losses. If the Court were to look to the legislative history of the Privacy Act (which, as discussed above, is unnecessary in light of sovereign immunity principles), it would find compelling evidence that Congress intended the term “actual damages” in the Act to refer to only pecuniary losses. First, it is noteworthy that early drafts of the Privacy Act would have permitted recovery for both “actual damages” and “general damages,” and that Congress consciously narrowed the Act by deleting “general damages” from the scope of recoverable damages. See S. 3418, 93d Cong. § 303(c)(1) (2d Sess. Nov. 21, 1974) (reprinted in Source Book on Privacy at 371) ; Doe v. Chao,32 540 U.S. at 622-23 (explaining the deletion of the term “general damages” from the final version of the Privacy Act). As used at common law, “[g]eneral damages . . . are damages that courts believe ‘generally’ flow from the kind of substantive wrong done by the defendant.” Dan B. Dobbs, Law of Remedies § 3.2, at 138 (1st ed. 1973); see also Restatement (Second) of Torts § 904 (1977) (“‘General damages’ are compensatory damages for a harm so frequently resulting from the tort that is the basis An electronic version of the Source Book on Privacy is available online from a link at32 http://www.loc.gov/rr/frd/Military Law/LH privacy act-1974.html. 69 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 83 of 93 of the action that the existence of the damages is normally to be anticipated. . . .”). In the context of “dignitary invasions, such as . . . invasions of privacy,” such “general damages” refer to “damages awarded for the affront to the plaintiff’s dignity and the emotional harm done” by the tort itself, but they do not include damages for “actual economic harm.” Law of Remedies § 3.2 at 139. Thus, through their reference to “general damages,” the initial drafts of the Privacy Act would have permitted recovery for reputational and emotional harm. Significantly, the final, codified version of the Privacy Act does not permit recovery for “general damages.” See 5 U.S.C. § 552a(g)(4)(A). This deletion of “general damages” is compelling evidence that recovery for non-pecuniary losses was not an intended form of relief. As the Supreme Court has explained, “[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Immigration & Naturalizat ion Serv. v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) (quotation omitted). Second, the only floor statement on the issue indicates an understanding that the Privacy Act’s private right of action would be limited to out-of-pocket damages, and no legislator opposed this statement. In a debate regarding the mental state requirement for civil recovery, Representative Robert Eckhardt from Texas stated: “There is nothing in this [proposal] that would provide for any damages beyond [a potential plaintiff’s] actual out-of-pocket expenses because of the flaw.” 120 Cong. Rec. 36,956 (Nov. 21, 1974) (statement of Rep. Eckhardt) (reprinted in Source Book on Privacy at 926). This characterization of the relief permitted by the “actual damages” provision went unchallenged for the remainder of the debates. See Houston, 494 F. Supp. at 30 n.13 (“Eckhardt’s ‘out-of-pocket’ characterization went unchallenged.”). Such unchallenged statements by legislators 70 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 84 of 93 are significant indicators of congressional intent. See Barnett v. Weinberger, 818 F.2d 953, 966-67 (D.C. Cir. 1987). Third, the legislative history evidences Congress’s intent to balance the protection of privacy with the potential drain on the public fisc. It is not only the “general damages” language that was excised from the final text of the Privacy Act. Other proposals, such as those allowing punitive damages or imposing a negligence standard for liability, would have likewise increased the exposure of treasury funds. But, those other liability-increasing proposals were all rejected by Congress out of concern for the public fisc. As with these other liability-enhancing proposals, recovery of33 “general damages” was excised from the final version of the Act. Fourth, the Privacy Act resulted in the creation of a Privacy Protection Study Commission (the “Commission”), which after study and hearings determined that “actual damages” referred only to pecuniary expenses. See The Privacy Act of 1974, Pub. L. No. 93-579 § 5(b), 88 Stat. 1896, 1905 (1974) (creating the Commission) (reprinted in Source Book on Privacy at 510). The Commission’s mission was to study government safeguards on personal privacy and then make recommendations to the President and Congress. See id. 88 Stat. at 1906 (reprinted in Source Book on Privacy at 511). The Commission also had the specific task of examining whether the government should be liable for “general damages.” See id. 88 Stat. at 1907 (reprinted in Source Book on Privacy at 512). After two years of study and comprehensive hearings, the Commission concluded that “[t]he legislative history and language of the Act suggest that Congress meant to restrict recovery to specific pecuniary See, e.g., 120 Cong. Rec. 36,659 (Nov. 20, 1974) (statement of Rep. McCloskey) (opposing a33 punitive damages provision in an effort to “protect the Government from undue liability”) (reprinted in Source Book on Privacy at 922); Id. at 36,956 (Nov. 21, 1974) (statement of Rep. Erlenborn) (opposing a strict liability or a negligence standard because that would “expose the Government to undue liability” which “[w]e just cannot afford”) (reprinted in Source Book on Privacy at 927). 71 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 85 of 93 losses until the Commission could weigh the propriety of extending the standard of recovery.” Personal Privacy in an Information Society: The Report of the Privacy Protect ion Study Commission, at 530 (July 1977). Based on that conclusion, the Commission recommended that Congress amend the Privacy Act to authorize recovery of “general damages,” but to cap those “general damages” at $10,000. Id.; see also Fitzpatrick, 665 F.2d at 329-31 (detailing the Commission’s findings and recommendations). Despite the Commission’s findings and recommendations, Congress did not amend the civil remedy provisions of the Act. Such subsequent legislative inaction is indicative of congressional intent, especially in the context of important matters within Congress’s actual knowledge. See Bob Jones Univ. v. United States, 461 U.S. 574, 599-601 (1983) (finding legislative inaction as evidence of congressional agreement with IRS rulings denying tax-exempt status to racially-discriminatory educational institutions). Here, where Congress did not dispute the Commission’s findings that non-pecuniary damages are not recoverable, and also did not adopt the Commission’s recommendation to make such damages recoverable, Congress signaled its agreement with the Commission’s conclusion as to the meaning of “actual damages.” See Fitzpatrick, 665 F.2d at 331 (concluding that the Commission’s findings “are persuasive authority that ‘actual damages’ in the Act encompasses only pecuniary losses”). Finally, the only support for a broader reading of “actual damages” are general statements of purpose, which must be treated with caution. While statements of legislative purpose are part of the legislative history, the D.C. Circuit has cautioned against reading these statements in isolation. See Nat’l Treasury Employees Union v. Fed. Labor Relations Auth., 691 F.2d 553, 560 (D.C. Cir. 1982). Moreover, the broader statements of legislative purpose can be harmonized with a reading 72 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 86 of 93 that only out-of-pocket expenses are recoverable. Both Congressional goals of guarding privacy rights and protecting the public fisc are achieved by reading the Privacy Act to authorize civil suits for out-of-pocket expenses. Individuals have civil redress for damages, while the public fisc is protected by permitting recoveries only for out-of-pocket expenses. See Houston, 494 F. Supp. at 30 (“Congress, concerned about the drain on the treasury created by a rash of Privacy Act suits, indicated its intention to limit ‘actual damages’ to ‘out-of-pocket’ expenses.”). For all these reasons, the best reading of the Privacy Act’s legislative history is that Congress limited “actual damages” to only out-of-pocket expenses. C. Even if Non-Pecuniary Damages Were Recoverable, Convertino’s Claims of Non-Pecuniary Damages Would Still Fail Because He Has Not Advanced Evidence of Emotional or Reputational Injury that Was Proximately Caused by the Alleged Privacy Act Violation In addition to a violation of law, which Convertino cannot show, and recoverable damages, which Convertino also cannot show, a plaintiff must show that his alleged harm would not have occurred “but for” the alleged violation. Hubbard v . EPA, 809 F.2d 1, 6 (D.C. Cir. 1986). Convertino cannot do so. As discussed, Convertino has not shown any evidence of pecuniary damages. This leaves him with only his claimed nonpecuniary damages which fall into two categories reputational damage and emotional harm. See Compl. ¶¶ 142-43. He has already admitted that he is not claiming pecuniary damages for loss of income, see Convertino’s Second Supp. Int. Resp., at 4 [DA 127], so to the extent he is seeking damages based on loss of reputation they must be merely another aspect of his emotional damages claim (i.e., he has suffered emotional damages based on his alleged loss of reputation). See 2 Dan B. Dobbs, Dobbs Law of Remedies, at 275-76 (2d ed. 1993). Even if 73 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 87 of 93 Convertino could advance a Privacy Act claim on the basis of emotional damages alone, which he cannot, his claim would still fail as he has not been able to show that his alleged emotional damages were directly caused by the supposed disclosure. Given the numerous negative press articles about plaintiff, the very public disparaging of his work in connection with the Koubriti case, and the dissolution of his career as a prosecutor, plaintiff’s attempt to claim that all harm he has suffered is the result of a single supposed disclosure belies the evidence. As explained in the factual discussion above, as a result of his conduct during the Koubriti trial, Convertino was publicly rebuked by Judge Rosen. Following Judge Rosen’s comments, and ordered case review, the United States Attorney’s Office filed the Morford Report, further detailing Convertino’s actions. This was followed quickly by a public opinion by Judge Rosen excoriating the prosecution tactics. A series of negative newspaper articles detailing the Morford Report and Convertino’s conduct followed these events. See supra Background Part II.G. Then, in later 2004 a criminal investigation into Convertino’s conduct began, followed by his indictment in March 2006. On top of these events, Convertino’s career as an AUSA publicly collapsed in the aftermath of the Koubriti case. In light of these significant and public events, Convertino’s allegation that his purported emotional damage stems proximately from the alleged disclosure of the fact of an OPR investigation to David Ashenfelter is incredible and unsupportable. 74 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 88 of 93 Whatever its merits as a policy matter, any disclosure of Marwan Farhat’s identity would not34 be an actionable Privacy Act violation. For one thing, Convertino has no standing to assert a claim based on alleged disclosures about another person. See Zanoni v. U.S. Dep’t of Agriculture, 605 F. Supp. 2d 230, 235-36 (D.D.C. 2009) (allowing a party to claim that “rights guaranteed to other individuals may have been violated contradicts the purpose of the” Privacy Act, which is “to give individuals whose personal information is stored by federal agencies the ability to protect the collection, maintenance and dissemination of their information”). Moreover, Farhat, as a non-U.S. citizen without lawful status, has no right to bring a claim under the Privacy Act. See 5 U.S.C. § 552a(a)(2); Cudzich v. U.S. I.N.S., 886 F. Supp. 101, 105 (D.D.C. 1995). Of course, the major disclosures of information about Convertino’s participation in the 35 Koubriti case came from (1) the December 12, 2003 hearing before Judge Rosen; (2) the Morford Report; and (3) Judge Rosen’s published opinions. None of these is alleged to be a Privacy Act violation. 75 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 89 of 93 Convertino’s failure to provide any evidence of actual damages and his unsupported allegations that his alleged emotional damages stem entirely from a single disclosure places him in a very similar position to the plaintiffs in Albright v. United States, 732 F.2d 181 (D.C. Cir. 1984). This conclusion is especially notable since material produced only after the deposition (and 36 long after they were sought in a document request), indicates that Mr. Convertino’s attorneys actually explained to Dr. Shiener before his deposition that their “cause of action for emotional damages requires [them] to prove that Mr. Convertino suffered injury from the leak, so focusing the discussion/conclusions more tightly on that subject would be greatly appreciated.” See E-mail, E. Snyder to G. Shiener, March 8, 2010, 3:18pm [DA 144]. Nor has Convertino provided any evidence of the extent of his alleged damages. He has been 37 utterly unable to describe what emotional harms he has suffered. When asked at his deposition whether he is “claiming damages for any diagnosable emotional condition as a result of the [January 2004 Ashenfelter article]” he responded: “I have no idea what diagnosable emotional harm may have been done.” Convertino Dep., at 232:16-20 [DA 60]. And he has admitted that he has not sought psychological therapy to address these supposed emotional damages. See id. at 232:21-233:3. In this regard his position is similar to that of the plaintiffs in Rice v. United States, 245 F.R.D. 3, 6-7 (D.D.C. 2007), and Doe v. Chao, in which the courts rejected similarly unsubstantiated claims of emotional harm. 76 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 90 of 93 In Albright, a group of Social Security Administration (“SSA”) employees filed suit under the Privacy Act claiming that SSA’s videotaping of a meeting held between management and the plaintiff-appellant group to discuss the downgrade of the civil service rating of their positions caused the plaintiff-appellants’ “various types of emotional injury due to the videotaping, such as anger, frustration, embarrassment, suspicion towards management, loss of self esteem, and stigmatization as a malcontent or troublemaker.” Id. at 185. Upholding the district court’s findings, the Circuit held that the plaintiff-appellants failed to show that the videotaping of a meeting they attended was the actual cause of their claimed harm. Id. at 186. The D.C. Circuit found that even assuming appellants’ claims of emotional harm were true, “[t]here is a separate, more logical, and much more probable explanation for the emotional trauma suffered by appellants: they were upset at the administrative downgrade and freeze of their expected promotions. . .Their shock, trauma, and emotional outrage were more likely the result of the substance of the meeting and the manner in which it was conducted, and not the recording of the meeting on videotape.” Id. at 187. The Circuit went on to find that “[n]ot only was there a more logical cause of the emotional injury, the appellants gave such exaggerated claims as to the impact of the videotape alone on their personal and private, lives, that their whole case was unbelievable.” Id. (emphasis in original). A court of this district has since followed Albright in granting summary judgment for DOJ in a Privacy Act case where the plaintiff was, like Convertino, similarly unable to show “but for” causation. In Krieger v. Dep’t of Justice, the district court dismissed the plaintiff’s claims that his emotional damages were caused by the Department of Justice having kept records of his first amendment activities, noting: “Krieger fails to make any showing that these damages were caused 77 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 91 of 93 by his knowledge that the DOJ maintained these three documents as opposed to any other possible influences.” 562 F. Supp. 2d 14, 18 (D.D.C. 2008) (emphasis in the original). Convertino’s allegations of damages suffer from the same defect as the other plaintiffs in this line of precedent. Given the circumstances surrounding the dissolution of his career as a prosecutor, he cannot credibly blame a single alleged disclosure for his claimed emotional damages. As in Albright, “there is a separate, more logical, and much more probable explanation,” 732 F.3d at 187, namely that any emotional harm Convertino suffered, he suffered as a result of the “cascade of events” which led to the end of his career as a prosecutor. As the D.C. Circuit found in regards to the plaintiffs in Albright, the claim that despite the numerous negative media reports, being publicly chastised by a federal judge on more than one occasion, having the Morford Report detail his misdeeds, being criminally indicted, suffering from an extremely bad working relationship with the management of the Detroit USAO, and the dissolution of his career as an AUSA, Convertino’s claimed damages were actually caused only by a single newspaper article stating that he had been referred to the Office of Professional Responsibility “is itself incredible.” Albright, 732 F.2d at 188. Given the torrent of bad publicity that Convertino has received publicity which was, in large part, if not in its entirety, resultant from Convertino’s own conduct and entirely independent of any alleged Privacy Act violation Convertino cannot present evidence from which a reasonable person could conclude that the allegedly leaked information about the OPR referral was a “but for” cause of any injury. Hubbard, 809 F.2d at 6. Because Convertino can provide no evidence from which a reasonable fact finder could find that the alleged Privacy Act violation was the proximate cause of his supposed damages, his Privacy Act claims must be dismissed. 78 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 92 of 93 CONCLUSION For the reasons stated above, summary judgment should be granted to the Department of Justice. Dated: July 12, 2010 Respectfully submitted, TONY WEST Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Branch Director /s/ Jeffrey M. Smith JEFFREY M. SMITH (D.C. Bar No. 467936) JONATHAN E. ZIMMERMAN (MA Bar No. 654255) SCOTT RISNER (MI Bar No. P70762) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel.: (202) 514-2395 / Fax: (202) 616-8470 Attorneys for Defendant 79 Case 1:04-cv-00236-RCL Document 176 Filed 07/12/10 Page 93 of 93