United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2004 Decided January 4, 2005
Reissued February 22, 2005
No. 03-5303
MARTHA HUTCHINSON,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY AND
PORTER J. GOSS, DIRECTOR, CENTRAL INTELLIGENCE
AGENCY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 99cv03118)
Roy W. Krieger argued the cause and filed the briefs for
appellant.
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellees. On the brief were Peter
D. Keisler, Assistant Attorney General, Kenneth L. Wainstein,
U.S. Attorney, and Mark B. Stern and Catherine Y. Hancock,
Attorneys.
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Before: GINSBURG, Chief Judge, and TATEL and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: The Central Intelligence Agency
fired appellant Martha Hutchinson following three years of poor
performance ratings. Convinced she didn’t get a fair shake,
Hutchinson seeks relief on two grounds: under the Privacy Act,
5 U.S.C. § 552a(g)(1)(C), based on an alleged omission from her
file during an internal appeal; and under the Fifth Amendment
for alleged due process violations. Finding no error in the
district court’s grant of summary judgment in favor of
defendants, we affirm.
I.
In 1988, having received a B.A. in geography with
distinction from George Mason University, appellant Martha
Hutchinson became an imagery analyst at the CIA’s National
Photographic Interpretation Center. In CIA-speak, Hutchinson’s
job was to prepare “baselines” of “targeting components” or
“TCOMs.” In plain English, she analyzed satellite photos of
intelligence-worthy locations, identifying typical features in
order to detect changes over time. After she corrected a
deficient baseline for a key location, Hutchinson alleges, she
suffered from a practice she says is “known colloquially as
‘flipping TCOMs.’” (Appellant’s Br. at 12.) Again, to translate,
her supervisors moved her rapidly from one assignment to
another, seeking—she claims—to mar her performance.
On her next annual performance review, Hutchinson
received a lackluster three out of seven. She earned the same
score the following year, and the year after that her rating sank
to two, indicating “marginal” performance. After she received
a second two on a special review just three months later, the
Special Activities Staff of the CIA’s Office of Personnel
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Security informed her that a “Personnel Evaluation Board”
would convene nine days later “to discuss your performance and
suitability for continued employment.”
An SAS officer explained to Hutchinson that although she
could not appear before the board in person, she could submit
written comments and materials. Hutchinson did so, but the
board nonetheless reached a “consensus” decision to terminate
her for poor performance. Given a choice either to resign and
accept a thirty-day contract or to appeal the PEB decision to the
CIA’s Executive Director Nora Slatkin—known as the
“EXDIR”—Hutchinson chose the latter course. When Slatkin
affirmed the PEB, Hutchinson appealed to the Director of
Central Intelligence (“DCI”), and he, too, affirmed.
Alleging emotional and economic harm due to her firing,
Hutchinson sued the CIA and several officials. Although
Hutchinson asserted various theories of relief, and sought to add
further claims and parties in an amended complaint, the district
court, responding to defense motions, whittled the suit down to
two counts: a Privacy Act claim against the CIA and a due
process claim against George Tenet, then the DCI, in his official
capacity. See Hutchinson v. Tenet, No. 99-3118 (D.D.C. Mar.
20, 2002); Hutchinson v. Tenet, No. 99-3118 (D.D.C. Jan. 28,
2003). Following limited discovery, the district court granted
summary judgment for the defendants on both claims. See
Hutchinson v. Tenet, No. 99-3118 (D.D.C. Aug. 28, 2003).
Hutchinson now appeals the summary judgment ruling.
Our review is de novo. See, e.g., Maydak v. United States, 363
F.3d 512, 515 (D.C. Cir. 2004).
II.
Hutchinson’s Privacy Act claim relates to an alleged
omission from the file reviewed by EXDIR Slatkin. In an Equal
Employment Opportunity proceeding unrelated to this case,
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Hutchinson submitted an affidavit alleging that the correction of
an analytic “remark” she prepared—one justification for her
second rating of two—contradicted previous guidance
Hutchinson had received and was “rife with referent errors.”
Because the CIA maintains separate records for PEB and EEO
proceedings, the PEB never considered this affidavit.
Hutchinson, however, could submit the affidavit to the EXDIR,
and she alleges she did so—but thinks the document may never
have arrived.
Pointing to correspondence indicating that EXDIR Slatkin
had received no “additional information for me to review on
your behalf” save a memorandum “stat[ing] that you do want to
appeal the PEB decision,” Hutchinson maintains that “the record
is at best ambiguous” as to whether Slatkin actually considered
the affidavit. (Appellant’s Br. at 23.) Hutchinson makes this
claim even though the CIA’s file now includes that document
and even though when she wrote back that she had sent
correspondence “[o]n five (5) separate occasions,” Slatkin
responded, “I can understand your anxiety, and I want to
reassure you that the information you sent to me did arrive.”
According to Hutchinson, the alleged omission of the affidavit
breached the CIA’s duty to “maintain all records which are used
by the agency in making any determination about any individual
with such accuracy, relevance, timeliness, and completeness as
is reasonably necessary to assure fairness to the individual in the
determination,” 5 U.S.C. § 552a(e)(5), entitling her to relief
under the Privacy Act, id. § 552a(g)(1)(C).
We agree with the district court that Hutchinson’s Privacy
Act claim founders on at least two grounds. First, the record
fails to support the claim’s factual premise, namely, the absence
of the affidavit from the EXDIR’s file. Although we must draw
reasonable inferences in favor of Hutchinson, the non-moving
party at summary judgment, see, e.g., Beckett v. Air Line Pilots
Ass’n, 59 F.3d 1276, 1279 (D.C. Cir. 1995), we think it
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unreasonable to suppose, absent evidence to the contrary, that
EXDIR Slatkin did not mean what she said when she wrote,
“[T]he information you sent to me did arrive.” Citing an OPS
date stamp on the letter advising Slatkin of the prior mailings,
Hutchinson asserts that the OPS “was intercepting and perhaps
filtering all of Appellant’s efforts to communicate with the
EXDIR.” (Appellant’s Br. at 24.) Yet because the letter bearing
the stamp clearly made it to the EXDIR—after all, Slatkin
responded to it—the stamp suggests no such thing. Nor does
Slatkin’s failure to list the documents she received cast doubt on
whether the affidavit arrived: Hutchinson’s letter referred
specifically to the mailing that included the affidavit, making it
illogical to suppose that the EXDIR would have responded as
she did—“I want to reassure you that the information you sent
to me did arrive”—had she not received that document. In
short, Hutchinson’s claim rests on speculation, and as the district
court concluded, “Plaintiff’s speculation does not create a
genuine issue of material fact as to whether the account of the
false correction was properly maintained in her personnel
records.”
Shifting focus, Hutchinson argues in her reply brief that
even if EXDIR Slatkin reviewed the documents Hutchinson
sent, the EXDIR likely failed to consider twenty classified pages
from the affidavit. Whereas Hutchinson submitted five
unclassified pages—two of which discuss the correction—her
cover memo to the EXDIR stated, “Pages six through 25 of my
sworn statement are classified evidence, hence I can only refer
you to CIA/OEEO [Office of Equal Employment Opportunity]
to procure these pages.” Though now claiming that these twenty
pages were critical, Hutchinson has forfeited this argument, for
she raised it neither in her opening brief nor, as far as we can
tell, in the district court. See, e.g., United States v. Hylton, 294
F.3d 130, 135-36 (D.C. Cir. 2002) (“For decades, we have
emphasized that an argument not made in the lower tribunal is
deemed forfeited and will not be entertained absent exceptional
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circumstances.” (internal quotation marks omitted)); Chedick v.
Nash, 151 F.3d 1077, 1084-85 (D.C. Cir. 1998) (“Because
[plaintiff] made this argument for the first time in her reply
brief, it is forfeited.”).
The second flaw in Hutchinson’s claim is that the record
fails to show proximate cause—a vital element of a section
552a(g)(1)(C) claim. See Deters v. U.S. Parole Comm’n, 85
F.3d 655, 657 (D.C. Cir. 1996) (listing elements). Asserting that
the correction of her remark caused the off-cycle evaluation,
which, in turn, triggered the PEB proceedings, Hutchinson
argues that “[l]ittle could be more conclusive of probable
cause.” (Appellant’s Br. at 26.) This analysis connects the
wrong dots. To state a Privacy Act claim, Hutchinson must
show not that the correction led to her termination, but rather
that the omission of her affidavit regarding the correction caused
the EXDIR and DCI to affirm where otherwise they might not
have done so.
Hutchinson cannot make that showing because both
decision-makers focused on her overall poor performance, rather
than any one incident. The OPS memo on which EXDIR
Slatkin based her decision, for example, referred to
Hutchinson’s “sustained poor performance despite intensive
counseling, encouragement, mentoring, and detailed Advance
Work Plan (AWP) over a two-to-three year period.” It then
listed five examples—without ever mentioning the correction of
her remark. Even the off-cycle evaluation, to which Hutchinson
attributes her termination, devoted only a few lines to the
correction amid a discussion of performance problems extending
for three single-spaced pages. True enough, the affidavit might
have bolstered Hutchinson’s claim that her supervisors were out
to get her. Yet while neither EXDIR Slatkin nor the DCI
blocked Hutchinson’s firing, both were aware of her account
switches: Hutchinson told the PEB—in a document she does
not dispute was forwarded to Slatkin—that she “was . . .
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averaging a new account every five to six months,” and her
memo to the DCI asserted, “I had an account for any time from
two weeks to one year,” creating “the near continual condition
that all targets were unfamiliar.” If the account changes failed
to explain Hutchinson’s poor performance, as EXDIR Slatkin
and the DCI evidently concluded, then her supervisors’ motives
for “flipping TCOMs” were irrelevant.
Given the powerful evidence of long-term performance
deficiencies and the EXDIR’s and DCI’s rejection of
Hutchinson’s account-switching theory, no reasonable fact-
finder could conclude, even viewing the record in Hutchinson’s
favor, that the alleged withholding of the EEO affidavit caused
the EXDIR and DCI to uphold her termination. We therefore
agree with the district court that the record provides no basis for
relief under the Privacy Act.
III.
As to her second claim, Hutchinson correctly points out that
a government employee may be deprived of liberty without due
process if the employing agency combines adverse job action
with “official defamation” or “a stigma or other disability that
foreclosed the plaintiff’s freedom to take advantage of other
employment opportunities.” O’Donnell v. Barry, 148 F.3d
1126, 1140 (D.C. Cir. 1998) (internal quotation marks and
brackets omitted); see also Bd. of Regents v. Roth, 408 U.S. 564,
573 (1972). Alleging that her termination forced her to abandon
her chosen career in geography analysis, and emphasizing that
a summary of the PEB proceedings listed “cognitive skills
deficit, limited insight, and grandiose self view” among “major
topics discussed,” Hutchinson argues that defendants violated
this standard.
As the district court observed, however, the record shows
neither “that the CIA disparaged [Hutchinson] to potential
private sector employers,” nor that she suffered “a stigmatic
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injury, aside from the stigma associated with being fired for
poor performance,” nor even that “the CIA has disclosed or will
disclose to anyone the reasons for the plaintiff’s termination.”
In fact, Hutchinson herself accuses the CIA only of discharging
her for “purported deficient performance and publicizing this
fact.” (Amended Compl. ¶ 47.) As we explained in Harrison v.
Bowen, 815 F.2d 1505, 1518 (D.C. Cir. 1987), unsatisfactory job
performance “does not carry with it the sort of opprobrium
sufficient to constitute a deprivation of liberty.” Thus, even
assuming that the characteristics discussed by the PEB factored
in its decision, and even assuming that such attributes could be
stigmatizing if publicized, Hutchinson has failed to establish
injury to any constitutionally protected interests. Absent such
injury, we need not consider whether, as Hutchinson claims, the
notice she received and certain other aspects of her termination
violated procedural due process standards. See O’Donnell, 148
F.3d at 1141-42 (affirming summary judgment where plaintiff
failed to establish injury to a protected interest).
IV.
Because neither of Hutchinson’s claims afford any basis for
relief, we affirm the district court’s grant of summary judgment.
So ordered.