United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2010 Decided June 22, 2010
No. 09-5172
WILLIAM H. ARMSTRONG,
APPELLANT
v.
TIMOTHY F. GEITHNER, SECRETARY OF THE TREASURY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01963-JR)
Kevin E. Byrnes argued the cause and filed the briefs for
appellant.
Andrea R. Tebbets, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief was
Steven K. Uejio, Attorney. Carol Barthel, Attorney, and R.
Craig Lawrence, Assistant U.S. Attorney, entered
appearances.
Before: GINSBURG and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: William Armstrong sued his
former employer, the Department of the Treasury, and several
individuals, alleging Treasury employees violated the Privacy
Act, 5 U.S.C. § 552a, by disclosing the details of an
investigation into his conduct. The district court entered
judgment for the defendants because “Armstrong failed to
establish that the information [disclosed] ... had been
retrieved from a record held in a system of records,” as
required in an action for damages under the Privacy Act. 610
F. Supp. 2d 66, 68 (2009). We agree and affirm the judgment
of the district court.
I. Background
In 2006 Karen Thompson, one of Armstrong’s coworkers
at the Office of the Treasury Inspector General for Tax
Administration (TIGTA), filed an anonymous complaint
against Armstrong. The complaint alleged Armstrong had
accessed an investigative database without authorization and
had disclosed confidential information he obtained there.
Thompson’s complaint triggered an internal
investigation, at the opening of which Armstrong was
relieved of his badge and law enforcement credentials, denied
the use of his government vehicle and computer, and escorted
out of the building and driven home. The next day he was
reassigned to the Technical and Firearms Support Division.
The investigators ultimately concluded Armstrong had
accessed not just the one database, which he admitted doing,
but also other databases, without authorization or an official
purpose. Because the TIGTA did not immediately close the
investigation and impose a sanction, Armstrong was able to
3
apply for a job at other agencies while still a TIGTA
employee.
In 2007 Armstrong applied for and accepted a position
within the Office of the Inspector General at the Department
of Agriculture; he was to start that September. In mid-August
one of Armstrong’s coworkers at the TIGTA circulated an
email message about a going-away party for him, which
alerted the rest of the office to his impending departure.
Shortly before Armstrong was to start his new job,
Thompson sent six USDA employees anonymous letters,
signed “A Very Concerned Person,” with information about
the TIGTA’s ongoing investigation of Armstrong. In three of
those letters, she said hiring Armstrong was “a grave error.”
Within days the USDA indefinitely postponed Armstrong’s
start date. He never worked there.*
Armstrong later brought this suit against the Secretary of
the Treasury, Armstrong’s former supervisor, and several
unnamed Treasury employees. He alleged various common
law torts and six violations of the Privacy Act, one for each
letter Thompson had sent to the USDA. When he filed his
complaint, however, Armstrong did not know who had
written the letters.
Shortly before trial Thompson admitted she had written
the letters as well as the anonymous complaint that had
*
In December 2007 Armstrong was removed from his position
at the TIGTA. He appealed the removal to the Merit Systems
Protection Board, settled for a 30-day suspension instead of
removal, and then challenged the settlement. See Armstrong v.
Dep’t of the Treasury, 591 F.3d 1358, 1359–61 (Fed. Cir. 2010).
4
caused the TIGTA to investigate Armstrong. 610 F. Supp. 2d
at 69. At trial she denied, however, getting the information in
the letters from any of the TIGTA supervisors involved in the
investigation or from records of the investigation; instead she
insisted she had based the letters upon independent sources —
the rumor mill, her original complaint, and her own
observations, assumptions, and speculation.
After trial the district court dismissed the claim against
Armstrong’s supervisor and entered judgment for the
defendants on all other claims. Armstrong appeals only the
Privacy Act claims, with respect to which the district court
held “Armstrong failed to establish that the information ... had
been retrieved from a record held in a system of records—the
necessary predicate of his Privacy Act claim.” Id. at 68.
II. Analysis
Subject to certain exceptions not relevant here, the
Privacy Act prohibits a federal agency from “disclos[ing] any
record which is contained in a system of records.” 5 U.S.C.
§ 552a(b). To be actionable, however, a disclosure generally
must be the result of someone having actually retrieved the
“record” from that “system of records”; the disclosure of
information is not ordinarily a violation “merely because the
information happens to be contained in the records.” Bartel v.
FAA, 725 F.2d 1403, 1408 (D.C. Cir. 1984).
Armstrong’s argument in the district court and on appeal
is in the form of the common law tort doctrine, res ipsa
loquitur; he reasons that information about the investigation
must have come from somewhere, could not have come from
an unprotected source, and so must have come from a
protected source. See 610 F. Supp. 2d at 70. Even assuming
the logic underlying the common law doctrine applies to the
Privacy Act, Armstrong cannot prevail because he cannot
5
eliminate “other responsible causes.” See Restatement
(Second) of Torts § 328D(1)(b).
We review the district court’s factual findings for clear
error and its legal conclusions de novo. See Massachusetts v.
Microsoft Corp., 373 F.3d 1199, 1207 (D.C. Cir. 2004). The
source of any particular bit of information is a question of
fact; whether that source is a “record which is contained in a
system of records,” 5 U.S.C. § 552a(b), is a question of law.
Armstrong bases his claims upon disclosures of two
sorts: (1) disclosures made by Thompson in the six letters she
sent to the USDA and (2) disclosures made by other TIGTA
employees that indirectly informed Thompson’s letters (a/k/a
the rumor mill). We review these in turn.*
*
Additionally, Armstrong claims Michael Delgado, a
supervisor involved in the investigation, disclosed information to a
supervisor at the USDA in violation of the Privacy Act. The
district court did not address these alleged disclosures because
“they go well beyond the allegations [in the] complaint.” 610 F.
Supp. 2d at 69 n.4. Armstrong does not deny that his complaint
alleges no wrongful disclosure by Delgado and that he never moved
to amend it to add such allegations. The district court had no
obligation to address a claim neither mentioned in nor the subject
of a motion to amend the complaint. See Belizan v. Hershon, 434
F.3d 579, 582 (D.C. Cir. 2006) (rule providing for leave to amend
“applies only when the plaintiff actually has moved for leave to
amend the complaint”).
Armstrong also suggests in a footnote the district court should
not have considered certain evidence when reviewing a motion for
partial judgment under Rule 52(c). We need not address an
argument raised only cursorily in a footnote. See Hutchins v.
District of Columbia, 188 F.3d 531, 539–40 n.3 (D.C. Cir. 1999)
(en banc).
6
A. The Six Letters
The district court held Thompson’s letters do not support
a claim under the Privacy Act because the information
contained in them had not been retrieved from a system of
records. We first consider the district court’s factual finding
concerning Thompson’s sources and then its legal conclusion
that no such source was a record retrieved from a system of
records.
1. What Were Thompson’s Sources?
The district court found Thompson composed the letters
based upon information obtained “from her own complaint,
from her own observations and speculation and those of
others, from the rumor-mill ... and from other non-covered
sources.” 610 F. Supp. 2d at 71. The following table pairs
the disclosures in three of Thompson’s letters and the sources
she identified for each; the other three letters contain
substantially the same information and need not be analyzed
separately.
Disclosure Source(s)
(1) The USDA hired Observation and speculation:
“Armstrong to work in the That Armstrong was going to
Office of Investigations.” the USDA was disclosed in an
email message about a going-
away luncheon. As for the
specific office, “I presumed
that Mr. Armstrong, who was a
law enforcement agent with
TIGTA, ... would have applied
for a position in the Office of
7
Investigations because that is
where law enforcement agents
are employed” at the USDA.
(2) Armstrong “was escorted Observation and speculation: “I
out of the building and was there the day that he was
forced to turn in his gun, removed. ... I heard him
badge, equipment, cell leave.” “I surmised that it was
phone, computer and reasonable to presume that Mr.
government car keys.” Armstrong was escorted out of
the building, because when
individuals are placed under
investigation and removed from
their position, they are escorted
out and driven home.” In
response to a question about his
gun, badge, and cell phone, “I
was present that day in the
office,” and “the office
manager, who sits ... outside of
Mr. Armstrong’s office, ... told
me that she saw Mr. Armstrong
retrieve his equipment and turn
it over.” Also, Armstrong
parked in the same garage as
did Thompson and she
observed his government car
“never left the parking space.”
(3) “He was removed from all Observation and speculation:
managerial and law Armstrong was Thompson’s
enforcement duties and supervisor “one day and he was
sent to another office.” not the next day.”
(4) He “was under internal Her own complaint and
investigation for accessing speculation: “I made the initial
sensitive law enforcement anonymous complaint to
information through TIGTA regarding Mr.
8
various databases.” Armstrong, and shortly
thereafter Mr. Armstrong was
my supervisor on one day and
on the very next day he was no
longer my supervisor. I was
able to conclude that Mr.
Armstrong was likely under
investigation for the allegations
that I had made.”
(5) “He admitted to looking up Speculation: “In my experience
information on his as a federal agent, most people
subordinates, co-workers, admit to wrongdoing when they
etc.” are caught.”
(6) “At the time the USDA Speculation: “a sufficient
offered [Armstrong] a job, amount of time had passed for
the investigation on him me to reasonably conclude that
had been completed and the investigation had been
the allegations ... were completed.” “I believe from
proven to be true.” my experience working there at
TIGTA that had the allegations
been disproven, he would have
been returned as my supervisor.
But he never came back.”
(7) “At the time, the Treasury Speculation: “Based on the
Inspector General for Tax seriousness of the allegations
Administration was contained in the initial
deciding what disciplinary anonymous complaint that I
action (I believe made to TIGTA, it was my
termination was being presumption that an agency
considered) to take against would consider termination.
him.” Termination is always a
consideration as a disciplinary
action.”
9
The district court credited Thompson’s testimony
regarding her sources and, because Thompson identified a
reasonable source for each bit of information, we see no clear
error in the district court’s findings. Although the district
court characterized her as an evasive and unreliable witness, it
found no “evidence that Thompson accessed relevant
protected records ... or that anyone who did have access
disclosed information to her from those records.” 610 F.
Supp. 2d at 71. Thompson expressly denied having “see[n]
any portion of the investigation” or discussed the matter with
various supervisors involved in the investigation.
In keeping with his variation of the res ipsa theme,
Armstrong argues Thompson must have had another source of
information, either the agency’s “Investigation Records or []
one of the five senior [TIGTA] officials tasked with
conducting and safeguarding the report of investigation.” We
disagree; Armstrong does no more than speculate about
another source, whereas each piece of information disclosed
in the six letters can be traced back to one of the sources
Thompson identified, including plausible inferences she drew
from her experience, to the satisfaction of the district court.
2. Was any Source a Record Under the Act?
We now turn to whether any of the sources Thompson
named qualifies as a “record which is contained in a system
of records.” 5 U.S.C. § 552a(b). The first source,
Thompson’s own complaint, presents the closest question
because it became part of the agency’s record of the
investigation. The district court, however, found she did not
retrieve her complaint from the agency’s system of records
when composing her letters to the USDA.
Relying upon our opinion in Bartel v. FAA, 725 F.2d
1403 (1984), Armstrong argues once Thompson’s complaint
10
became an agency record the Privacy Act prohibited her from
repeating its contents. But for the cited decision, this
argument might seem far-fetched.
In that case one Bartel, an employee of the Federal
Aviation Administration, had apparently accessed agency
records improperly, prompting Vincent, another employee, to
investigate Bartel’s conduct. Vincent collected documents
and created a Report of Investigation. Several months later,
after learning Bartel was seeking reemployment within the
agency, Vincent sent letters to the persons whose files Bartel
had accessed, advising them of the investigation and of its
findings. 725 F.2d at 1405–06. Bartel sued the FAA under
the Privacy Act, arguing the letters disclosed a “record,” viz.,
the Report of Investigation, “contained in a system of
records.” 5 U.S.C. § 552a(b). The evidence in the case was
“entirely silent as to whether Vincent ever examined” — and
therefore, actually retrieved — the Report of Investigation
before he composed the letters. 725 F.2d at 1408.
We proposed an exception to the general rule requiring
the plaintiff to prove a record was actually retrieved,
suggesting Vincent may have violated the Privacy Act even if
he recalled from memory the contents of the report he had
created for inclusion in the agency’s record. We narrowly
tethered the exception, however, to the facts of that case, in
which the disclosing agency employee had “ordered the
investigation which resulted in the [report], made a putative
determination of wrongdoing based on the investigation, and
disclosed that putative determination in letters purporting to
report an official agency determination.” 725 F.2d at 1411.
We also explained that,
in contrast to disclosures of general office knowledge, it
would hardly seem an “intolerable burden” to restrict an
11
agency official’s discretion to disclose information in a
record that he may not have read but that he had a
primary role in creating and using, where it was because
of that record-related role that he acquired the
information in the first place.
Id. Cf. Doe v. Dep’t of Veterans Affairs, 519 F.3d 456, 460–
63 (8th Cir. 2008) (distinguishing Bartel because doctor who
disclosed information in plaintiff’s medical record had
“learned the information directly from” plaintiff and not from
government system for collecting information).
The exception we suggested in Bartel does not extend to
this case, in which Thompson neither acquired the
information contained in her initial complaint in any way
related to a record, as an investigator might have done, nor
used the record in her work for the agency. Because
Armstrong has not shown that Thompson retrieved the record
containing her complaint before composing the letters to the
USDA, Thompson’s disclosure in the letters of information
she had also included in her complaint did not violate the
Privacy Act.
Nor does a disclosure from any of the other identified
sources constitute a violation. There is no evidence
Thompson’s “observations and speculation” or “those of
others,” or information “from the rumor-mill,” 610 F. Supp.
2d at 71, are part of and were retrieved from any “record
which is contained in a system of records.”
B. The Rumor Mill
Concerning the rumor mill, Armstrong states, “The initial
disclosure of the information from protected Investigation
Records had to start with someone.” Drawing upon the
district court’s observation that the rumor mill “apparently
12
goes virtually unchecked at TIGTA,” 610 F. Supp. 2d at 71;
see also id. at 68 n.3, Armstrong argues that TIGTA
employees with information from the investigation must have
unlawfully disclosed that information to other TIGTA
employees, effectively feeding the rumor mill. To be sure, a
person who fed the rumor mill the contents of a record that
had been retrieved from a system of records may have
violated the Privacy Act. In order to establish such a
violation, however, Armstrong must prove someone disclosed
information from a “record,” which he has not done.
The Tenth Circuit explained as follows the central
difficulty in allegations concerning office rumor mills:
[T]he mere fact that information ... was well-known in
[the] workplace does not give rise to an inference that
such knowledge was widespread because of a disclosure.
... [T]he Privacy Act does not prohibit disclosure of
information or knowledge obtained from sources other
than ‘records.’ In particular, it does not prevent federal
employees or officials from talking—even gossiping—
about anything of which they have non-record-based
knowledge.
Pippinger v. Rubin, 129 F.3d 519, 530–31 (1997) (citing
Thomas v. Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.
1983)).
Again invoking a version of res ipsa, Armstrong argues
someone must have violated the Privacy Act because others
somehow found out information contained in a covered
record. But his conclusion does not follow logically from his
premise. First, Armstrong points to no information in the
rumor mill that is not found in Thompson’s letters to the
USDA and, as we have seen, Thompson identified non-
covered sources for all the information in those letters.
13
Although she did identify the rumor mill as one source of
information, she also identified another source for each bit of
information. Because Thompson got all the information she
disclosed from a lawful source other than the rumor mill,
Armstrong’s argument fails.
Second, Armstrong admitted he himself disclosed some
details of the investigation to others. In addition to his wife,
he identified five coworkers at the TIGTA and two persons
outside the TIGTA with whom he spoke about the
investigation.
Armstrong’s disclosures to seven professional contacts
could easily account for certain details finding their way into
the TIGTA rumor mill. Cf. Lior Jacob Strahilevitz, A Social
Networks Theory of Privacy, 72 U. CHI. L. REV. 919 (2005)
(explaining why information disclosed to a coworker
circulates more widely). Armstrong’s mere assertion that the
disclosures must have come from a record are not compelling
in view of the sources Thompson identified and his own
spilling of the beans.
III. Conclusion
For the foregoing reasons the judgment of the district
court is
Affirmed.