Opinion
NO. CIV. 2:12-2466 WBS DAD
01-02-2014
GARY TAYLOR, Plaintiff, v. DEFENSE FINANCE & ACCOUNTING SERVICE; UNITED STATES OF AMERICA; DAVID S. BALDWIN; HARRY M. WYATT III; MARK GROVES; TERESA MCKAY; DOES ONE through TEN, Defendants.
MEMORANDUM AND ORDER RE: MOTIONS
FOR SUMMARY JUDGMENT
These motions for summary judgment come before the court on the following four claims: (1) a claim against defendant Defense Finance and Accounting Service ("DFAS") for violations of the Privacy Act, 5 U.S.C. § 552a; (2) a claim against defendants Major General David S. Baldwin, Lieutenant General Harry M. Wyatt III, Lieutenant Colonel Mark Groves, and Teresa McKay, the director of DFAS, for deprivation of due process in violation of 42 U.S.C. § 1983; (3) a Bivens claim against Wyatt and McKay; and (4) a claim against the United States of America for intentional infliction of emotional distress. Each of these claims arises from plaintiff Gary Taylor's allegations that defendants attempted to recoup over $140,000 in pay ("the overpay debt") that plaintiff lawfully earned as a colonel in the California Air National Guard ("CANG"). Although the court for the following reasons grants defendants' motions for summary judgment on the four claims at issue, it expresses no opinion with regard to the validity of the overpay debt itself, and enters this Order without prejudice to any subsequent claims, not disposed of in this Order, properly seeking an adjudication of the validity of the overpay debt.
I. Factual & Procedural History
In 2003, plaintiff took a leave of absence from his job as an airline pilot to serve as a full-time military technician for CANG. (First Amended Complaint ("FAC" ¶ 15 (Docket No. 21).) In 2009, plaintiff was promoted to Commander of the 144th Fighter Wing of the Fresno Air National Guard ("FANG"). (Id.) The Air Force required the 144th Fighter Wing to provide pilots to serve 4380 individual eight-hour alert duty periods each year. (Id. ¶ 29.) The 144th Fighter Wing attempted to fulfill this obligation by permitting aircraft technicians - including plaintiff - to serve alert duty periods and to collect dual compensation for doing so. (See id. ¶¶ 30-32.)
In May 2010, an audit team from the National Guard Bureau audited the 144th Fighter Wing and noted that some pilots "may have received pay twice in one day." (Pl.'s Ex. 16 (Docket No. 48-4).) Plaintiff then requested a legal review from CANG to determine whether the 144th Fighter Wing's practice of dual compensation had violated any military regulations. (Pl.'s Statement of Undisputed Facts ("PSUF") ¶ 10 (Docket No. 48-2).) Although Colonel Greg Strickland, the CANG Staff Judge Advocate, concluded that FANG had acted "reasonably and within their proper authority," (Pl.'s Ex. 10 (Docket No. 48-4)), plaintiff was removed from his position as the commander of the 144th Fighter Wing on July 28, 2 010. (FAC ¶ 36.)
In June 2010, Lieutenant General Harry M. Wyatt III, the director of the Air National Guard, attended a conference in Dallas, Texas at which plaintiff was present. (See Pl.'s Exs. 12, 12A (Docket No. 48-4).) Wyatt told an audience at the conference "that the pilots in Fresno were under investigation, that they were guilty, and that they would be court-martialed." (See PSUF ¶ 14.) A confidential informant averred that Wyatt also walked into a conference room at that event and stated that "one of you . . . made three times more than me and I'm a three star general" while staring directly at plaintiff. (Pl.'s Ex. 12.) Wyatt then told the audience that plaintiff had made approximately $350,000 and that "this guy might want to get a lawyer." (Pl.'s Ex. 12A.)
On August 31, 2010, the National Guard Bureau issued a preliminary draft report of its findings during the audit of the 144th Fighter Wing. (Pl.'s Ex. 16 (Docket No. 48-4).) Derrick E. Miller, the author of the report, stated in an attached memorandum that Wyatt had ordered the audit. (Id.) The report concluded that the 144th Fighter Wing had paid approximately $2,475,000 in improper dual compensation over the prior six years, and that "due to ineffective and inadequate internal controls . . . dual compensation risks could not be properly mitigated." (Id.) The report also recommended that the California National Guard "instate recoupment actions" for the money that was overpaid. (Id.)
In October 2010, Charles Piller, an investigative reporter for the Sacramento Bee, began to write a series of articles about alleged corruption in the California National Guard. (Pl.'s Ex. 54 (Docket No. 48-3).) On December 19, 2010, The Bee published a piece in which it was alleged that the pilots of the 144th Fighter Wing were "dozing for dollars" and improperly receiving dual compensation. (Pl.'s Ex. 55 (Docket No. 48-3).) The article noted that Taylor was relieved of his command of the 144th Fighter Wing, that he was "on pace to earn $316,000," and that "[a]uditors estimated that more than 40 percent of his recent income was improper." (Id.) The article quoted John Crocker, a Colonel in the California National Guard, who stated that "[t]here is a minimum an appearance that (commanders) self-enriched" and that Brigadier General Mary J. Kight, the Adjudant General of the California National Guard, "had lost full faith and confidence in Taylor's leadership skills." (Id.)
On March 10, 2011, The Bee published another piece which criticized the promotion of four of the accused pilots in the 144th Fighter Wing to command positions. (Pl.'s Ex. 57 (Docket No. 48-3).) This article quoted Wyatt, who commented that he had "great faith and confidence in the men and women of the 144th Fighter Wing" and that it was "unfortunate that the alleged actions of a few have brought discredit to those men and women." (Id.) During that month, Colonel Larry McKoane, a former commander of the 144th Fighter Wing, attended an Air National Guard Core Values Conference in Portland, OR, where he avers that Wyatt spent the majority of his presentations describing the alleged misconduct by the 144th Fighter Wing. (Pl.'s Ex. 69 (Docket No. 48-3).) Sabrella Bacon, an attendee at a May 2011 Executive Safety Summit in Orlando, FL, states that Wyatt devoted almost all of his presentation on "Ethics and Leadership" to discussing the alleged dual compensation violations. (Pl.'s Ex. 68 (Docket No. 48-3).) Bacon states that when she told another attendee that she was "embarrassed" by Wyatt's statements, that person responded that she "had heard it all before at a previous conference." (Id.)
On November 18, 2011, plaintiff retired from military service and received an honorable discharge. (See FAC ¶ 66; U.S. & DFAS Statement of Undisputed Facts ¶ 66 (Docket No. 40-1).) On December 12, 2011, Colonel Mark Groves, the Comptroller of the 144th Fighter Wing, informed plaintiff that he would submit the debt that plaintiff was allegedly overpaid (the "overpay debt") to DFAS for recoupment and provided him with a sample letter of indebtedness. (Pl.'s Ex. 30 (Docket No. 48-4).) That letter informed plaintiff that if he disagreed with the overpay debt, he could appeal the validity of the debt, request a waiver of the debt, or apply to the Air Force Board for Correction of Military Records, which was authorized to correct the record of the debt. (Id.) Plaintiff's attorney then attempted to obtain his military records from Groves, who instructed him that he would need to contact DFAS in order to obtain those records. (See Pl.'s Exs. 31-32 (Docket No. 48-4).)
On May 17, 2012, plaintiff received a letter from DFAS informing him that the overpay debt amounted to $142,698.58 and instructing him to repay the debt by June 16, 2012. (Pl.'s Ex. 33 (Docket No. 48-4).) On June 6, 2012, plaintiff's wife was denied credit while shopping for a refrigerator at Sears. (See Pl.'s Ex. 35 (Docket No. 48-4).) Plaintiff then obtained a copy of his credit report from Experian, which stated that plaintiff was past due on the overpay debt, that the account had been closed and referred for collection, and that plaintiff was more than 120 days past due on the account. (See Pl.'s Ex. 36 (Docket No. 48-4).) On July 12, 2012, the Treasury Department contacted plaintiff's mother, sought to ascertain his whereabouts, and asked for his phone number. (See Pl.'s Ex. 39 (Docket No. 484).) On July 24, 2012, plaintiff received a letter from the Treasury Department stating that his account had been referred for collection, that he now owed $182,956.29, and that he would incur additional penalties if he did not repay the debt within ten days. (Pl.'s Ex. 40 (Docket No. 48-4).)
After DFAS instructed him to repay the overpay debt, plaintiff's attorney wrote a series of letters to DFAS (Pl.'s Ex. 38 (Docket No. 48-4)), to the Treasury Department, (Pl.'s Ex. 41 (Docket No. 48-4)), and to Baldwin, McKay, and Colonel Sami Said, the commander of the 144th Fighter Wing, (Pl.'s Ex. 42 (Docket No. 48-4)), requesting plaintiff's records and an administrative hearing. The National Guard Bureau responded on September 20, 2012, and stated that it had forwarded plaintiff's requests for processing by the appropriate agencies. (Pl.'s Ex. 43 (Docket No. 48-4).)
In December 2010, DFAS determined that it had erroneously referred plaintiff's debt for collection and ordered the Treasury Department to stop collections and recall the account. (Pl.'s Ex. 45 (Docket No. 48-4). DFAS then contacted Taylor and informed him that his debt was prematurely forwarded to the Treasury Department for collections, that it had requested removal of his debt account from the credit bureaus, and that it had removed all interest and fees associated with the overpay debt. (Pl.'s Exs. 46-47 (Docket No. 48-4.) Although DFAS maintained that the overpay debt remained valid, it assured plaintiff that it would suspend collection efforts until plaintiff's legal challenges to the validity of the debt were resolved. (Pl.'s Ex. 46.)
Plaintiff initiated this action on September 28, 2012 (Docket No. 1), and filed an amended complaint on January 29, 2013 against CANG, FANG, the California National Guard ("CNG"), DFAS, Wyatt, Baldwin, Groves, McKay, and Colonel Sami S. Said. The court dismissed plaintiff's claims against CANG, FANG, and CNG for lack of subject-matter jurisdiction, (Docket No. 26), dismissed plaintiff's claims against Said for failure to effect service, (Docket No. 36), and substituted the United States for Wyatt on plaintiff's intentional infliction of emotional distress claim pursuant to the Westfall Act, 28 U.S.C § 2679(d)(1) (Docket No. 31). Plaintiff brings four remaining claims: (1) a claim for damages and injunctive relief under the Privacy Act, 5 U.S.C. § 552a, against DFAS; (2) a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq., for intentional infliction of emotional distress against the United States; (3) a Bivens claim against McKay and Wyatt; and (4) a claim under 42 U.S.C. § 1983 against Wyatt, Baldwin, Groves, and McKay. Defendants now move for summary judgment on each of plaintiff's remaining claims. (Docket Nos. 39-40.)
Defendants style these motions as "motions for dismissal and summary judgment" and argue both that plaintiff fails to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and that plaintiff has not provided evidence sufficient to withstand summary judgment under Federal Rule of Civil Procedure 56. (See generally Federal Individuals' Mot. for Dismissal & Summ. J. ("Indiv. Mot.") (Docket No. 39); U.S. & DFAS Mot. for Dismissal & Summ. J. ("U.S. Mot.") (Docket No. 40).)
Because all parties submit and rely upon materials outside the pleadings and had a "reasonable opportunity to present all the material pertinent to the motion," the court must construe these motions as motions for summary judgment. Fed. R. Civ. P. 12(d); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996) ("A motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6) must be treated as a motion for summary judgment under Federal Rule of Civil Procedure 56 if either party to the motion to dismiss submits materials outside the pleadings in support or opposition to the motion, and if the district court relies on those materials." (citations omitted)).
II. Discussion
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.
On a motion for summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "[T]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (quoting Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)) (internal quotation marks omitted). Even if the non-moving party's evidence is presented in a form that is currently inadmissible, such evidence may be evaluated on a motion for summary judgment so long as the moving party's objections could be cured at trial. See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006) (Shubb, J.).
Plaintiff objects to several of the defendants' statements of undisputed fact on the basis that they are vague, rely on personal knowledge, or call for speculation. (See Pl.'s Objections & Resp. to U.S.'s Statement of Undisputed Facts (Docket No. 471).) These objections are all duplicative of the summary judgment standard itself, and the court will overrule them. See Burch, 433 F. Supp. 2d at 111920. Further, for the edification of the parties, this court pays no attention to the parties' statements of undisputed facts in ruling on a motion for summary judgment. Instead, the court looks to the evidence itself (whether in the declarations, depositions, or discovery responses) referenced in the moving or opposing papers to determine whether there are disputed issues of material fact.
A. Privacy Act
The Privacy Act, 5 U.S.C. § 552a, seeks to "protect the privacy of individuals through regulation of the collection, maintenance, use, and dissemination of information by federal agencies." Rouse v. U.S. Dep't of State, 567 F.3d 408, 413 (9th Cir. 2008) (citations and internal quotation marks omitted). The Privacy Act does so in part by authorizing "civil relief to individuals aggrieved by failures on the Government's part to comply with [its] requirements." Doe v. Chao, 540 U.S. 614, 618 (2004).
Plaintiff's Privacy Act claim against DFAS is premised on four separate statutory provisions: (a) 5 U.S.C. § 552a(d)(2), which permits any individual "to request amendment of a record pertaining to him"; (b) 5 U.S.C. § 552a(d)(1), which requires federal agencies to permit any individual access to a "record or to any information pertaining to him which is contained in the system"; (c) 5 U.S.C. § 552a(g)(1)(c), which prohibits an agency from "fail[ing] to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness" as is necessary to assure that individual is treated fairly; and (d) 5 U.S.C. § 552a(b) (12), which prohibits a federal agency from disclosing any individual's record to a consumer reporting agency without his or her consent. (FAC ¶¶ 78-82.)
1. Record Access
The Privacy Act permits a civil claim for a denial of access to records only when an agency "refuses to comply with a request under subsection (d)(1) of this section." 5 U.S.C. § 552a(g)(1)(B). Subsection (d)(1), in turn, requires an agency to furnish access to records "upon request by any individual." 5 U.S.C. § 552a(d)(1). A number of courts, including those in this district, have held that this language requires a plaintiff to exhaust administrative remedies as a precondition to bringing a claim under Section 552a(d)(1). See, e.g., Tangirala v. Potter, Civ. No. 2:06-384 FCD GGH PS, 2008 WL 2633239, at *18 (E.D. Cal. Jun. 25, 2008) ("Challenges to access, accuracy or amendment of federal agency records must be administratively exhausted before they may be pursued in federal court." (citations omitted)); Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990) ("The first two causes of action for amendment of records and for access to records incorporate exhaustion requirements."); Sterrett v. Dep't of Navy, No. 09-CV-2083-IEG (POR), 2010 WL 330086, at *4 (S.D. Cal. Jan. 20, 2010) ("[T]here is no doubt the exhaustion of administrative remedies is a prerequisite before a federal court can review a Privacy Act claim seeking access to documents."). And "[a]lthough the Ninth Circuit has not explicitly held" that administrative exhaustion is a prerequisite to bringing a claim under the Privacy Act's record-access provisions, id., it has held that identical statutory language - requiring a "request" and "refusal" - in the Freedom of Information Act incorporates an exhaustion requirement. In re Steele, 799 F.2d 461, 465-66 (9th Cir. 1986).
In order to request records under the Privacy Act, an individual must "address requests for access to records to the appropriate Privacy Act Officer," 32 C.F.R. § 324.10, and must describe the record "well enough to enable it to be located with a reasonable amount of effort on the part of an employee familiar with the file," 32 C.F.R. § 310.18(b)(1)(i). Plaintiff contends that he "sent a request for production of all records and documents" on June 15, 2012, and a second request on August 27, 2012. (FAC ¶ 70; Pl.'s Exs. 38, 42.) Plaintiff addressed his June 14, 2012 request for records to "DFAS-Indianapolis" and requested "an opportunity to inspect and review all documents supporting [DFAS's] claim against [plaintiff]." (See Pl.'s Ex. 38.) Plaintiff then addressed his August 27, 2012 request to Baldwin, McKay, and Said, rather than the appropriate Privacy Act officer. (See Pl's Ex. 42.) And while that letter requested 18 separate documents, (see id.), DFAS found that those requests were frequently "too vague . . . to understand," were not intelligible, and asked for information that DFAS did not possess. (Outlaw Decl. ¶ 20; Outlaw Decl. Ex. 6.) In short, neither letter complied with the requirements for a "request" under the Privacy Act.
In spite of these deficiencies, DFAS routed these letters to Gregory Outlaw, the Privacy Act officer for DFAS, who "coordinated a search for records responsive to Mr. Taylor's debt in accordance with his request." (Outlaw Decl. ¶ 13.) The DFAS Claims and Debts office was able to locate 41 pages of documents that were responsive to his requests, (id. ¶ 14), and Outlaw sent these documents to plaintiff on March 28, 2013 along with a letter explaining the reasons that he had denied some of plaintiff's record-access and record-amendment requests (id. ¶ 20; Outlaw Decl. Ex. 6.) That letter specifically apprised plaintiff of his right to appeal that denial, informed plaintiff of how to file that appeal, and notified plaintiff that he had sixty days to do so. (Outlaw Decl. Ex. 6.) Plaintiff did not file that appeal, (see Outlaw Decl. ¶ 22), and he has therefore not exhausted his administrative remedies.
Plaintiff argues that it would have been inappropriate to file an appeal directly with Outlaw, as this appeal would have violated the California Rules of Professional Conduct's prohibition on communicating directly with an adverse party who is represented by counsel. (Pl.'s Opp'n to U.S. Mot. at 18:23-19:2.) The court finds this argument to be pretextual. California Rule of Professional Conduct 2-100(C)(1) contains a specific exception for "[c]ommunications with a public officer, board, committee, or body," such as the appeal that Outlaw invited plaintiff to file. (See Outlaw Decl. Ex. 6.) In addition, plaintiff could have contacted the United States Attorney, who represented DFAS at this time and who would have consented to filing the appeal with Outlaw. (See Himel Decl. ¶ 5.) As a result, plaintiff's alleged concern with the propriety of filing an appeal with Outlaw does not excuse his failure to exhaust his administrative remedies.
Nor would it have been futile for plaintiff to appeal the denial of his records request. The Ninth Circuit has recognized that "exhaustion of administrative remedies is not required where exhaustion would have been futile." Leorna v. U.S. Dep't of State, 105 F.3d 548, 552 (9th Cir. 1997) (citing United Farm Workers of Am. v. Ariz. Agr. Emp't Relations Bd., 6 69 F.2d 1249, 1253 (9th Cir. 1982)). But, as plaintiff concedes, "[t]he futility exception applies only when there is a certainty of an adverse decision or further pursuit of administrative remedies would be clearly useless." (Pl.'s Opp'n to U.S. Mot. at 20:11-12 (citing M.K. v. Tenet, 99 F. Supp. 2d 12, 21 (D.D.C. 2000).)
There is no evidence that an appeal would have been futile. Plaintiff claims that when he attempted to dispute the debt with the DFAS Protest Audit department, they refused to speak with him over the phone and did not respond to his written communications. (PSUF ¶ 65; Pl.'s Ex. 41.) Whatever difficulties plaintiff experienced in communicating with the Protest Audit department are immaterial to whether plaintiff's appeal to Outlaw, who was the designated Privacy Act officer rather than a member of the Protest Audit department, would have been futile. In fact, the letter that Outlaw sent plaintiff specifically notes that Outlaw could not fulfill all of plaintiff's requests because plaintiff had not submitted the enclosures that his earlier requests had mentioned. (Outlaw Decl. Ex. 6.) Had plaintiff simply sent those enclosures alongside his appeal, it is entirely possible that Outlaw could have fulfilled some or all of plaintiff's requests for records. (See Outlaw Decl. ¶¶ 18-19 (noting that Outlaw denied plaintiff's records request in part because he failed to provide sufficient "documentary evidence" supporting that request).) Whether or not it is likely that an appeal would have been fruitful, plaintiff has not shown a certainty of an adverse decision and therefore cannot show that exhaustion of his administrative remedies would have been futile. See M.K., 99 F. Supp. 2d at 21.
Nor does equitable estoppel relieve plaintiff from the burden of exhausting his administrative remedies. The Ninth Circuit has held that administrative exhaustion requirements are "akin to a statute of limitations" and are therefore subject to equitable estoppel. Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (citations omitted). Equitable estoppel relieves a plaintiff of the exhaustion requirement only when "the defendant's wrongful actions prevent[ed] the plaintiff from asserting his claim." Id. at 1123 (citing Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000)).
Although plaintiff contends that DFAS "misled" him about how to protest the debt itself, this is immaterial to the question of whether DFAS prevented him from filing a request for records under the Privacy Act. Nor does plaintiff's extensive reliance on Liguori v. Alexander, 495 F. Supp. 641 (S.D.N.Y. 1980), (see Opp'n to U.S. Mot. at 21-25), establish that estoppel is appropriate. There, a civilian employee at West Point made an oral request to amend his records under the Privacy Act, which Army regulations allowed at that time. Id. at 64 6. An employee relations officer incorrectly advised the plaintiff to pursue his Privacy Act request through the Army's grievance procedure, rather than through its established Privacy Act procedure. Id. at 646-47. Although defendants then attempted to argue that the plaintiff had not exhausted his administrative remedies, the court held that the defendants were estopped from arguing that plaintiff had failed to exhaust, as the plaintiff had initiated a valid Privacy Act request and failed to pursue his administrative remedies only because he relied on the Army's incorrect advice. Id. at 647.
As discussed above, plaintiff's claim is unlike that of the plaintiff's in Liguori because he failed to comply with applicable Privacy Act regulations. (See Pl.'s Exs. 38, 42.) Nor is there any evidence that DFAS obstructed plaintiff's Privacy Act request. Indeed, despite plaintiff's failure to address his records requests to the Privacy Act officer or to specify the records he sought to access, DFAS went out of its way to re-rout those requests to Outlaw, coordinate a search for all potentially responsive records, provide those records to plaintiff, inform plaintiff of the reasons it could not provide him with other records, and invite him to appeal. (See Outlaw Decl. Ex. 6.) Because plaintiff has not shown that DFAS's actions prevented him from pursuing his request for records under the Privacy Act, DFAS is not estopped from asserting that plaintiff has failed to exhaust his administrative remedies. See Leong, 347 F.3d at 1122. Accordingly, the court must grant defendants' motion for summary judgment on plaintiff's record access claim.
2. Record Amendment & Record Defect
Two of plaintiff's Privacy Act claims are premised on the theory that DFAS violated Section 552a(g)(1)(c) by inaccurately maintaining that plaintiff owed the overpay debt, and that DFAS violated Section 552a(d)(2) by failing to permit plaintiff to amend this record of the overpay debt. (See FAC ¶¶ 80, 82.) But while "[t]he Privacy Act allows for the amendment of factual or historical errors[,] [i]t is not . . . a vehicle for amending the judgments of federal officials or of other parties as those judgments are reflected in records maintained by federal agencies." Rogers v. U.S. Dep't of Labor, 607 F. Supp. 697, 699 (N.D. Cal. 1985) (citing Blevins v. Plummer, 613 F.2d 767, 768 (9th Cir. 1980) (per curiam)); see also, e.g., Rosen v. Walters, 719 F.2d 1422, 1425 (9th Cir. 1983) (holding that the Privacy Act cannot be used to "open the back door to judicial review" of agency decisions).
Here, plaintiff claims that DFAS's record of the overpay debt is inaccurate because "military regulations and federal law . . . specifically allow[] for any and all pay earned by plaintiff." (FAC ¶ 51; see also Pl.'s Exs. 1-11 (detailing regulations relating to dual compensation)). Even if this were so, plaintiff cannot prevail on his record amendment and record defect claims because the determination that plaintiff owed the overpay debt is "not subject to collateral attack" under the Privacy Act. Rogers, 607 F. Supp. at 700.
Douglas v. Agricultural Conservation & Stabilization Service, although not binding here, is particularly instructive. 33 F.3d 784 (7th Cir. 1994). There, a federal agency offered the plaintiff a land conservation contract for 4.2 acres of land, even though plaintiff maintained that she owned six acres of eligible property. Id. at 784. The plaintiff then brought a Privacy Act claim and asked the district court to order the defendant to correct its records to show that she owned six acres of eligible land. Id. The court held that the plaintiff could not obtain such an order because "the Privacy Act does not permit relitigation of the substance of agency decisions." Id. at 785. Although the court conceded that the data on which the agency relied was "contestable" and that another agency had concluded that the plaintiff owned six acres of eligible land, it nonetheless held that the plaintiff could not use the Privacy Act to amend the defendant's record that the plaintiff owned only 4.2 acres of eligible land because that record "accurately reflect[ed] an administrative action." Id.
Plaintiff's claim, like that of the plaintiff in Douglas, does not dispute DFAS's record of the overpay debt so much as its underlying determination that he owed the debt. But the Privacy Act presupposes "a distinction between 'records' and ^decisions'", id., and plaintiff cannot use his record-amendment claim as a "skeleton key for reopening consideration" of the determination that plaintiff owed the overpay debt. Rogers, 607 F. Supp. at 699. Accordingly, the court must grant defendants' motion for summary judgment on plaintiff's record amendment and record defect claims.
While plaintiff's record amendment and record defect claims collaterally attack the validity of the overpay debt, plaintiff has not sought to cancel the overpay debt or to challenge its validity directly at any point in this action. The court therefore need not, cannot, and does not, reach the question of whether the overpay debt itself is valid.
3. Wrongful Disclosure
Plaintiff's final Privacy Act claim alleges that DFAS wrongfully disclosed its record of the overpay debt to credit reporting agencies in violation of Section 552a(b)(12). (FAC ¶ 78.) In order to prevail on this claim, the Privacy Act requires plaintiff to show that one or more employees of DFAS "acted in a manner which was intentional or willful" in disclosing these records. 5 U.S.C. § 552a(g)(4); Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990); see Swisher v. Collins, 409 Fed. App'x 139, 141 (9th Cir. 2011) (holding that the district court properly granted summary judgment when plaintiff failed to adduce proof that defendants willfully violated the Privacy Act).
Intentional or willful agency conduct "is that amounting to more than gross negligence." Wilborn v. Dep't of Health and Human Servs., 49 F.3d 597, 602 (9th Cir. 1995), abrogated on other grounds by Doe, 540 U.S. at 618 (citing Rose, 905 F.2d at 1260). "An agency acts in a willful or intentional manner 'either by committing the act without grounds for believing it to be lawful, or flagrantly disregarding others' rights under the Act." Id. (citing Covert v. Harrington, 876 F.2d 751, 757 (9th Cir. 1989)).
Although no party disputes that DFAS erroneously disclosed plaintiff's debt to a consumer credit agency, DFAS contends that this disclosure occurred as a result of a programming error, rather than as a result of willful or intentional conduct. Phillip Tincher, the director of Accounts Receivable for DFAS, avers that DFAS conducted a diagnostic review of its computer systems after plaintiff initiated this action and discovered that an automated debt management system had identified plaintiff's debt as delinquent and automatically referred the debt to the credit bureaus. (Tincher Decl. ¶¶ 12-13.) Once DFAS identified this error, it recalled the debt from the credit bureau and the Treasury Department, waived all interest, penalties, and administrative fees on the debt, and "correct[ed] the programming issue." (Id. ¶¶ 14-15.) Although this programming error may have been negligent, there is no evidence that it was willful or intentional. Cf. Alexander v. FBI, 541 F. Supp. 2d 274, 277 (D.D.C. 2008) (holding that a "coding error" in Lotus Notes resulting in nondisclosure of emails during discovery did not constitute evidence of deliberate misconduct).
Plaintiff contends that DFAS's conduct was intentional because it "was on notice the records were false," (Opp'n to U.S. Mot. at 19:23), and because "[s]omewhere in this, human beings were involved" (id. at 27:11). Read very charitably, these statements appear to assert a theory akin to res ipsa loquitur: that is, that DFAS had a record of plaintiff's debt; that DFAS knew the records were false; that an individual person was involved in the disclosure of the records; and that this unidentified person must have acted willfully at some point in this process. But while res ipsa loquitur is a viable theory of negligence, it cannot be used to prove intentional or willful conduct. Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987) ("refus[ing] . . . to extend the doctrine to prove an intentional tort"); see also Paige v. U.S. Drug Enforcement Admin., 818 F. Supp. 2d 4, 15 (D.D.C. 2010) ("To the extent Plaintiff relies on the common law tort doctrine of res ipsa loquitur to support a Privacy Act violation, courts have long held such arguments to be meritless."). Absent specific evidence of willful or intentional conduct, plaintiff cannot survive summary judgment on his wrongful disclosure claim. See Wilborn, 49 F.3d at 602. Accordingly, the court must grant defendant's motion for summary judgment on this claim.
Although plaintiff belatedly now contends that he is entitled to conduct further discovery to obtain evidence of willfulness, (see Pl.'s Opp'n to U.S. Mot. at 27:15), his request for further discovery is unavailing because plaintiff has not "identified with greater particularity" the evidence he believes he would obtain in discovery. Ohno v. Yasuma, 723 F.3d 984, 1013 n.29 (9th Cir. 2013) . Plaintiff's case for discovery is premised principally on his assertion that "there were human beings involved," (Pl.'s Opp'n to U.S. Mot. at 27:15), which fails to specify what facts plaintiff hopes to find or how those facts will constitute evidence of willfulness sufficient to defeat summary judgment. See California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (noting that a request for further discovery under Fed. R. Civ. P. 56(d) must show "that the facts sought exist" and "that these sought-after facts are 'essential' to resist the summary judgment motion"). Because the evidence of willfulness plaintiff seeks is "almost certainly nonexistent or is the object of pure speculation," id. at 779-80 (citation omitted), the court will not permit plaintiff to reopen these proceedings in order to conduct further discovery on the issue of willfulness.
B. Bivens Claim
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971), the Supreme Court held that a violation of the Fourth Amendment by a federal agent while acting under the color of his federal authority gives rise to a cause of action for damages. The court has subsequently extended the Bivens cause of action to apply to violations of the Fifth Amendment as well. Davis v. Passman, 442 U.S. 228, 248 (1979).
The decision to extend a Bivens cause of action to other factual and legal contexts depends on a two-part inquiry. First, the court must determine "whether any alternative, existing process" is capable of vindicating the Constitutional right at issue. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The Court has explained that "[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies." Schweiker v. Chillicky, 487 U.S. 412, 423 (1988). The existence of an alternative remedial process therefore "amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Wilkie, 551 U.S. at 550.
Second, even if no such process exists, the court must determine whether any "special factors counseling hesitation" militate against recognizing a Bivens cause of action. Id. (citing Bush v. Lucas, 462 U.S. 367, 378 (1983)). "Even where Congress has given plaintiffs no damages remedy for a constitutional violation, the Court has declined to create a right of action under Bivens when doing so 'would be plainly inconsistent with Congress's authority in the field.'" W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009) (quoting Chappell v. Wallace, 462 U.S. 296, 304 (1983)).
Here, plaintiff premises his Bivens claim on the allegation that Wyatt and McKay violated plaintiff's Fifth Amendment rights by seeking to deprive him of money that he lawfully earned. (See Pl.'s Opp'n to Indiv. Mot. at 3-7.) This claim is unavailing because plaintiff could dispute the overpayment notice by filing a claim with the Air Force Board for the Correction of Military Records ("Correction Board"). The Correction Board is authorized by statute to "correct any military record," 10 U.S.C. § 1552(a), including any pay claim, 10 U.S.C. § 1552(c)(1). The Supreme Court has explicitly held that a military Correction Board is an alternative remedial process that militates against recognizing a Bivens cause of action. Chappell, 462 U.S. at 303 (holding that the remedial process set forth by the Uniform Code of Military Justice, including the establishment of a Correction Board, "provides for the review and remedy of complaints and grievances" by members of the military).
If plaintiff did not prevail before the Correction Board, he would also be entitled to seek judicial review under the Administrative Procedure Act ("APA"). 5 U.S.C. § 7 02; Clinton v. Goldsmith, 526 U.S. 529, 539 (1999) (holding that a member of the military "may challenge a [Correction Board's] decision . . . as final agency action under the Administrative Procedure Act"). The APA "expressly declares itself to be a comprehensive remedial scheme" for Bivens purposes, and the availability of review under the APA "where no other adequate alternative remedy exists further indicates Congress's intent that courts should not devise additional, judicially crafted default remedies." W. Radio Servs., 578 F.3d at 1122-23 (citations omitted).
Plaintiff contends that the availability of review by the Correction Board and under the APA is inadequate because Air Force Instruction 36-2603 required plaintiff to exhaust other administrative remedies prior to submitting his claim to the Correction Board. (Pl.'s Opp'n to Indiv. Mot. at 9.) But the Supreme Court has held that an administrative exhaustion requirement does not render the administrative process inadequate such as to justify a Bivens cause of action. See Schweiker, 487 U.S. at 424 (holding that the procedure established by the Social Security Act, which requires administrative exhaustion prior to seeking judicial review, was an adequate process that foreclosed recognition of a Bivens remedy). And even if plaintiff were correct that he could not exhaust his administrative remedies because he never received the service records he requested, this would not entitle him to a Bivens cause of action. See, e.g., Mollnow v. Carlton, 716 F.2d 627, 629 (9th Cir. 1983) (holding that plaintiff could not sustain a Bivens claim even when he alleged that his complaints were "ignored by every officer up through the chain of command, thus preventing his access to proper UCMJ review").
In short, even if plaintiff were correct in his assertion that his administrative remedies "do not provide complete relief," Bush, 462 U.S. at 388, the availability of administrative review by the Air Force Correction Board and judicial review under the APA constitute an alternative remedial scheme that forecloses plaintiff's Bivens claim. See Wilkie, 551 U.S. at 537. Accordingly, the court must grant defendants' motion for summary judgment on this claim.
In relevant part, § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress . . . .42 U.S.C. § 1983. While § 1983 is not itself a source of substantive rights, it provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights or limited federal statutory rights. Id.; Graham v. Connor, 490 U.S. 386, 393-94 (1989).
Here, plaintiff contends that Baldwin, Groves, McKay, and Wyatt deprived him of due process in two distinct ways. First, plaintiff alleges that Wyatt, McKay, Groves, and Baldwin injured his reputation and that they damaged his credit score by referring the overpay debt to the Treasury Department for collection. (FAC ¶ 92.) Second, plaintiff alleges that he was deprived of procedural due process because he never received a hearing or an opportunity to challenge the validity of the overpay debt. (Id. ¶ 93.) In order to prevail on either claim, plaintiff must first show that he was deprived of "a liberty or property interest protected by the Constitution." Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)).
Plaintiff contends that defendants "deprive[d] [him] of his constitutional rights under the Fifth Amendment." (FAC. ¶ 92.) But because § 1983 applies only to action under color of state law, his claim actually arises under the Fourteenth Amendment, which proscribes state action that deprives an individual of life, liberty, or property without due process of law. See U.S. Const, amend. XIV, § 1.
At various points in his Opposition, plaintiff also contends that Wyatt "made sure that everyone in the military heard his version [of] the facts" about plaintiff's conduct, thereby ensuring that "had plaintiff been subject to court martial, he could have never received a fair trial." (Opp'n to Indiv. Mot. at 7:5-6, 12:6-8.) This assertion cannot give rise to a § 1983 claim because plaintiff was never subject to court martial or to any proceeding in which he could have been deprived of liberty or property. See Raduga USA Corp. v. U.S. Dep't of State, 284 Fed. App'x 404, 405 (9th Cir. 2008) ("The requirements of procedural due process . . . attach only to the deprivation of constitutionally protected liberty and property interests.") (citing Roth, 408 U.S. at 569). In fact, there is no evidence that the military took any disciplinary action against plaintiff, and plaintiff does not dispute that he received an honorable discharge in 2011. Accordingly, to the extent that plaintiff's § 1983 claim is based on this allegation, the court must grant defendant's motion for summary judgment.
1. Plaintiff's Reputation & Credit Rating
Although plaintiff claims to have a constitutionally protected interest in his reputation, both the Supreme Court and Ninth Circuit have repeatedly held that injury to one's reputation alone does not constitute a deprivation of liberty or property. See, e.g., Paul v. Davis, 424 U.S. 693, 701 (1976) (denying that "reputation alone, apart from some more tangible interests such as employment, is either 'liberty' or 'property' sufficient to invoke the procedural protection of the Due Process Clause"); WMX Techs., Inc. v. Miller, 197 F.3d 367, 376 (9th Cir. 1999) (en banc) (noting that "reputation alone is not an interest protected by the Constitution"). While plaintiff cites several passages from the dissent in Siegert v. Gilley, 500 U.S. 226 (1991), in order to argue that he has a protected interest in his reputation, (see Pl.'s Opp'n to Indiv. Mot. 10-11), the Supreme Court held the exact opposite: that Siegert's interest in his reputation, like plaintiff's interest, "lack[s] any constitutional protection." Id. at 234.
In Paul v. Davis, the Supreme Court recognized a narrow exception to this rule -- namely, that reputational injury, combined with "depriv[ation] . . . of a right previously held under state law," an "alteration of legal status," or a similar infringement of a protected liberty interest, is cognizable under § 1983. 424 U.S. at 708-09. Plaintiff relies on this "stigma-plus" exception to argue that, as a result of his reputational injuries, he was unable to obtain future government employment or to obtain credit. But as the Court has clarified, impairment of "future employment opportunities," "out-of-pocket loss," or other sorts of incidental damage that "flows from the injury to . . . reputation" do not constitute deprivations of liberty or property. Siegert, 500 U.S. at 234.
For instance, in Krainski v. Nevada, the plaintiff alleged that her university had "tarnish[ed] her educational transcript and record" by finding that she had violated the student conduct code. 616 F.3d 963, 971 (9th Cir. 2010). The court acknowledged that, had the university suspended or expelled her for her conduct and thereby caused damaged for her reputation, she would have suffered a deprivation of liberty or property. Id. By contrast, the court held that the alleged "loss of future income" and "psychological trauma" that she suffered as a result of this reputational injury were "materially indistinguishable" from the injuries at issue in Paul v. Davis and were not sufficient to satisfy the "stigma-plus" exception. Id.
Likewise, even if plaintiff were correct that he had suffered consequential harm to his future employment opportunities and credit as a result of the alleged injury to his reputation, that harm would not be cognizable under § 1983. And while plaintiff contends that defendants acted with malice when they tarnished his reputation, it is well-established that their state of mind is irrelevant to the stigma-plus inquiry. Siegert, 500 U.S. at 234 (denying that plaintiff could satisfy the stigma-plus test if "the defendant acted with malice" because the "decision in Paul v. Davis did not turn . . . on the state of mind of the defendant"). To the extent that plaintiff's § 1983 claim relies on damage to his reputation, defendants are entitled to summary judgment.
Insofar as plaintiff's alleged injury to his credit rating is distinct from injuries to his reputation, that injury is also not cognizable under § 1983. Plaintiff has not cited, and the court cannot identify, a single case from the Supreme Court or the Ninth Circuit stating that an individual has a constitutionally protected interest in his credit rating. The closest the Supreme Court comes to reaching this conclusion is in Connecticut v. Doehr, where the Court held that a Connecticut statute permitting pre-judgment attachment of real property without notice or hearing unconstitutionally deprived individuals of property in part because of the potential harm to their credit rating. 501 U.S. 1, 11-12 (1991); see also Tri-State Dev. Ltd. v. Johnston, 160 F.3d 528, 533 (9th Cir. 1998) (applying Doehr to invalidate Washington's attachment statute and noting the effect of pre-judgment attachment on individuals' credit ratings). But this concern with the effect of attachment on one's credit rating is distinct from recognizing a freestanding property interest in one's credit rating.
General Electric Company v. Jackson, 610 F.3d 110 (D.C. Cir. 2010), is instructive. There, General Electric ("GE") argued that a unilateral administrative order by the EPA directing GE to clean up hazardous waste constituted an unlawful deprivation of property because it would imperil GE's credit rating and ability to raise capital. 610 F.3d at 119. The court held that GE had no protected interest in its credit rating. It first rejected GE's contention that Doehr had recognized a property interest in one's credit rating, and held that while Doehr recognized that "partial impairments of property rights may well warrant due process safeguards," Doehr did not recognize that injury to one's credit score, "standing alone, merit[s] due process protection." Id. at 120. The court then held that "stripped of its reliance on Doehr," the injury that GE claimed to its credit rating was essentially a reputational injury that "is foreclosed by Paul v. Davis." Id.
As in Jackson, plaintiff has not demonstrated that any injury he suffered to his credit score because of the referral of the overpay debt to the Treasury Department and to the credit bureaus constituted a deprivation of a protected property or liberty interest. To the extent that plaintiff's § 1983 claim is premised on injury to his credit score, the court must grant defendants' motion for summary judgment.
2. Procedural Due Process
"A procedural due process claim has two elements: deprivation of a constitutionally protected liberty or property interest and denial of adequate procedural protection." Krainski, 616 F.3d at 970 (citing Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998)). Here, plaintiff contends that he was denied procedural due process because he was deprived of a hearing or an equivalent opportunity to challenge the validity of the overpay debt before defendants attempted to recoup the debt.
Although the overpay debt constitutes a protected property interest, see Schwarm v. Craighead, 552 F. Supp. 2d 1056, 1083 (E.D. Cal. 2008) (Shubb, J.) (noting that "it is undisputed that money constitutes a property interest protected by the Fourteenth Amendment" (citation omitted)), plaintiff has not shown that he has been deprived of any sum of money. To the contrary, plaintiff has not repaid any portion of the overpay debt. In contrast to "cases where the government garnishes a plaintiff's wages or levies the plaintiff's bank account," Schwarm, 552 F. Supp. 2d at 1084, defendants have not yet forced plaintiff to repay the overpay debt; in fact, DFAS specifically ordered the Treasury Department to cease any efforts to collect the debt. (See Pl.'s Ex. 45.)
Nor does the mere notification that plaintiff owed the overpay debt constitute a deprivation of property. See, e.g., Schwarm, 552 F. Supp. 2d at 1083-84 (holding that letters to individuals accused of writing bad checks that they must pay the amount of the bad check, a "bad check fee," and a "diversion fee" or face criminal prosecution did not constitute a deprivation of property); cf. Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 984 (9th Cir. 2011) (holding that a county's notification to a church that it had violated local zoning ordinances did not constitute a deprivation or liberty or property absent any action by the county to enforce those violations in court).
Plaintiff contends that he was deprived of the overpay debt because defendants initiated recoupment efforts and referred his debt to the Treasury Department for collection. (Pl.'s Opp'n to Indiv. Mot. at 10:1-8.) In particular, plaintiff presents evidence that Groves referred his debt to DFAS for collection, (see Pl.'s Ex. 44), that the Treasury Department sent plaintiff a letter demanding repayment of the debt, along with interest and penalties, within ten days (see Pl.'s Ex. 40), and that the Treasury Department called plaintiff's mother in order to determine his whereabouts (see Pl.'s Ex. 39).
Even if all this were so, these actions would not give rise to a procedural due process claim because plaintiff was not "finally deprived of a property interest" in the overpay debt. Brewster, 149 F.3d at 985-86 (citations and internal quotation marks omitted); accord Parratt v. Taylor, 451 U.S. 527, 540 (1981) (noting that "some kind of hearing is required at some time before a state finally deprives a person of his property interests"), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986) . Rather, the evidence establishes that DFAS recalled plaintiff's debt account from the Treasury Department, (see Pl.'s Ex. 45), ordered that recoupment efforts cease (see id.), reversed all interest and collection fees (see Pl.'s Ex. 46; see also Tincher Decl. ¶ 14), and requested that the credit bureaus delete his delinquent debt account (see Pl.'s Ex. 47). To the extent that plaintiff was deprived of any interest in the overpay debt, that deprivation was temporary and was remedied promptly once it was discovered. See, e.g., Gearhart v. Thorne, 768 F.2d 1072, 1073-74 (9th Cir. 1985)
(holding that an employee who was reinstated with back pay after being demoted suffered no final deprivation of a property interest). Because plaintiff has not been deprived of the overpay debt or any other property interest, the Due Process Clause does not entitle him to a hearing or any additional procedural protections. Brewster, 149 F.3d at 982; see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 764 (2005) (holding that an "entitlement to nothing but procedure" does not constitute a constitutionally protected interest). Accordingly, the court must grant defendants' motion for summary judgment on his procedural due process claim.
D. Intentional Infliction of Emotional Distress
In Feres v. United States, the Supreme Court held that the Federal Tort Claims Act does not permit members of the military to recover for "injuries which arise out of or are in the course of activity incident to service." 340 U.S. 135, 146 (1950) (emphasis added). Although the contours of the term "incident to service" are imprecise, see McConnell v. United States, 478 F.3d 1092, 1095 (9th Cir. 2007), the meaning of the "arise out of" prong is far clearer: it "encompass[es], at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military . . . ." Estate of McAllister v. United States, 942 F.2d 1473, 1479-80 (9th Cir. 1991) (citing Major v. United States, 835 F.2d 641, 644-45 (6th Cir. 1987)).
This limitation applies to claims brought by National Guard members in the same way that it applies to any member of the armed services. See, e.g., Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673 (1973); Jackson v. United States, 110 F.3d 1484, 1487 (9th Cir. 1997) ("Members of the National Guard and the Reserves are service members under Feres." (citation omitted)).
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Plaintiff's intentional infliction of emotional distress claim alleges that General Wyatt and his subordinates publicly made "false and malicious statements" about plaintiff in June 2010, December 2010, and March 2011 (FAC ¶¶ 54, 55, 57; PSUF ¶¶ 14-16, 31-33, 43), and that Wyatt and his subordinates "reported that plaintiff . . . owed money for work he did not perform," and "destroyed his reputation and his credit rating" (id. ¶ 133). This conduct directly related to plaintiff's service in the Air National Guard and his disputed claim that he was entitled to dual compensation. For instance, plaintiff asserts that Wyatt told an audience at a conference in June 2010 that plaintiff and other FANG pilots "were under investigation, that they were guilty, and that they would be court-martialed." (PSUF ¶ 14.) Likewise, Colonel Crocker met in 2010 with Charles Piller, an investigative reporter with the Sacramento Bee, and told Piller that Brigadier General Kight "had lost full faith and credit in Taylor's leadership skills" and the 144th Fighter Wing received dual compensation only because of inaccurate "guidance from [Colonel] Taylor." (See Pl.'s Ex. 55.)
Moreover, insofar as plaintiff's evidence shows that Wyatt was personally involved in efforts to recover the overpay debt, that evidence shows that Wyatt initiated the audit of plaintiff's service in May 2010, while plaintiff was still on active duty and collecting military pay. (Pl.'s Ex. 16.) In fact, plaintiff concedes that he attempted to pursue an identical intentional infliction of emotional distress claim against Wyatt with the California Victim Compensation and Government Claims Board in April 2011, while plaintiff was still on active duty. (Pl.'s Exs. 28-29.) To the extent that Wyatt's conduct and that of his subordinates arose out of and concerned plaintiff's status as a member of the Air National Guard, plaintiff's intentional infliction of emotional distress claim is barred by Feres. See Estate of McAllister, 942 F.2d at 1479-80.
The fact that plaintiff is currently retired does not affect this result. While Feres does not bar claims by retired service members for injuries that occurred after their service had concluded, it does bar a claim if the "injured person was a member of the armed forces . . . at the time the injury was sustained." McGowan v. Scoggins, 890 F.2d 128, 132 (9th Cir. 1989). While plaintiff contends that the "injury . . . occurred on or about June 11, 2012," when he discovered that DFAS had reported that the overpay debt was past due, (see Pl.'s Opp'n to U.S. Mot. at 14:3-5), this assertion appears to conflate the injury plaintiff allegedly suffered as a result of Privacy Act violations -- which occurred after plaintiff retired -- and the emotional distress and resulting injury he allegedly experienced as a result of Wyatt's conduct, which occurred while plaintiff was still on active duty and which arose from his military service.
Even if plaintiff were correct that he continued to suffer harm from Wyatt's conduct after his retirement, that harm would be insufficient to overcome Feres so long as Wyatt's tortious conduct took place before plaintiff retired. See Monaco v. United States, 661 F.2d 129, 133 (9th Cir. 1981) (holding that Feres bars claims for "post-service injury resulting from in-service negligence"). Accordingly, because plaintiff's intentional infliction of emotional distress claim "arose out of" his military service, see Feres, 340 U.S. at 146, the court must grant defendants' motion for summary judgment on this claim.
The court notes, in conclusion, that although it must grant summary judgment on each of plaintiff's four remaining claims, none of those claims require the court to adjudicate the underlying question of whether the overpay debt, or any portion thereof, is valid. Accordingly, the court does not decide that issue today, and enters this Order without prejudice to a subsequent claim directly challenging the validity of the overpay debt or any other claim not otherwise disposed of in this Order.
IT IS THEREFORE ORDERED that defendants' motions for summary judgment on each of plaintiff's remaining claims be, and the same hereby are, GRANTED. If plaintiff wishes to bring any additional claims, not disposed of in this Order, he shall do so in a separate action.
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WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE