Appeal from the United States District Court for the District of Columbia. (No. 1:05-cv-00380-JR).
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Teresa C. Chambers, former Chief of the United States Park Police, brought this action against the Department of the Interior (Interior) under the Privacy Act, 5 U.S.C. § 552a, alleging that Interior violated the Privacy Act by (1) failing to provide her access to an appraisal of her job performance allegedly prepared by National Park Service (NPS) Deputy Director Donald W. Murphy in 2003 (Count I) and (2) failing to maintain and safeguard the appraisal (Count II). The district court granted summary judgment in Interior's favor on Count I and dismissed Count II for failure to state a claim. We reverse the summary judgment on Count I because the record, viewed most favorably to Chambers, presents a genuine issue of material fact regarding whether Interior intentionally destroyed the appraisal after Chambers requested access to it. We similarly affirm the court's denial of summary judgment to Chambers on Count I based on the same triable issue of fact. We affirm the court's dismissal of Count II because Chambers does not point to any adverse agency determination she experienced because of Interior's alleged failure to maintain the appraisal.
On a motion for summary judgment, we view the facts in the light most favorable to the nonmoving party. Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007). So viewed, the record establishes the following facts. On February 10, 2002, Chambers assumed her duties as Chief of the United States Park Police, a unit of NPS, which is in turn a bureau within Interior. On September 22, 2003, Murphy, Chambers's supervisor, informed her by e-mail that he had prepared her performance appraisal and that his secretary would contact her to set up a meeting to review it; he also informed her in person that he had completed the appraisal, adding "Don't worry. It's a good one." Compl. ¶ 6, Chambers v. Dep't of Interior, No. 05CV00380 (D.D.C. Feb. 24, 2005) (Compl.); Second Affidavit of Teresa C. Chambers ¶¶ 6-7 (June 20, 2007), (Joint Appendix (JA) A174). No meeting ever occurred.
On December 2, 2003, the Washington Post published an article quoting from an interview with Chambers in which she expressed "concerns about budget limitations and the potential impacts on protection of national icons and persons visiting the parks." Compl. ¶ 8. The same day she expressed similar concerns in an e-mail to "a high-ranking" congressional staff member, the substance of which "was shared with [Chambers's] superiors, including Mr. Murphy." Id. ¶ 9.
On December 5, 2003, Chambers was placed on administrative leave. One week later, she was informed she could return to her duty post if she agreed to certain "stipulations," including that she obtain prior approval from Murphy or his designee before contacting the media or a member of the Congress or its staff. Id. ¶¶ 11-12. Chambers declined the reinstatement terms and on December 17, 2003, Murphy proposed that Chambers be removed from federal service. Id. ¶¶ 13-14.
On January 29, 2004, Chambers filed a complaint with the Office of Special Counsel (OSC) under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (WPA). When the OSC failed to act on the complaint, she filed an appeal to the Merit Systems Protection Board (MSPB). On July 9, 2004, Interior issued a decision removing Chambers from federal service, which Chambers also appealed to the MSPB. The WPA claim remains before the MSPB.*fn1
During his deposition in the MSPB appeal, Murphy testified that in late summer 2003, he prepared a written "narrative" "appraisal" of Chambers's performance over the previous fiscal year (2002-2003) which was "in final form." Dep. of Donald W. Murphy at 18-20 (Aug. 11, 2004) (JA A34-36) (8/11/04 Murphy Dep.). He also noted then that Terrie Fajardo, retired NPS Chief of Human Resources, had seen the appraisal. Id. at 22-23 (JA A38-39). After she was "denied access" to the appraisal in the MSPB proceeding, Compl. ¶ 20, Chambers, through counsel, submitted a request pursuant to the Privacy Act and the Freedom of Information Act, 5 U.S.C. § 552, (FOIA) seeking the following documents:
1. A draft employee evaluation written by Deputy Director Donald Murphy concerning Chief Teresa Chambers during the time period covering 2002 and/or 2003.
2. All routings or transmittal documents indicating what officials received copies of the draft evaluation referred to in 1.
Letter from Richard Condit, General Counsel, Public Employees for Envt'l Responsibility, to Diane Cooke, FOIA Officer, NPS Headquarters (Oct. 26, 2004) (JA A43). In response to the request, Murphy searched his e-mails for the appraisal and instructed his assistant, Janice Brooks, to search his files. Brooks discovered "a draft performance plan" for Chambers entitled "Senior Executive Service Performance Plan" (SES Plan). Dep. of Donald W. Murphy, at 24-25 (Nov. 21, 2005) (11/21/05 Murphy Dep.); see Decl. of Diane Cooke ¶¶ 4-5 (June 15, 2007) (JA A163) (Cooke Decl.). The SES Plan, dated February 11, 2003, sets out various performance standards for Chambers to meet but contains no narrative appraisal of her performance. See SES Plan (JA A28-30). Brooks forwarded the SES Plan, along with a copy of Chambers's request, to Steve Krutz, an Employee Relations ...