The Intern

The United States District Court for the District of Columbia (Judge Walton) dismissed a lawsuit against the DOJ and SEC alleging Privacy Act violations

The following facts are derived from the plaintiff’s Complaint unless otherwise specified. In the spring of 2018, the plaintiff was a second year law school student and “was employed as a law clerk intern in the United States Attorney’s Office in Miami, Florida [(]‘Miami USAO’ or ‘DOJ’) . . . [and b]ased on his academic background and prior work experience in finance, [the p]laintiff was placed in the Asset Forfeiture Division of that office.” Compl. ¶ 7. “Unbeknownst to [the p]laintiff . . . [and before he began his internship,] Vice.com, a national publication, had previously published an article[,]” id. ¶ 8, that was “extremely critical of the Miami USAO and its employees in connection with a failed criminal prosecution [of a money laundering case] by that prosecutor office . . . and discussed . . . certain allegations of misconduct and ethical violations of the Miami USAO[,]” id. ¶ 9. The plaintiff’s “father, E. Peter Mullane . . . [,] had served as lead counsel [in the successful defense of] the principal defendant in [the just referenced criminal money laundering] case[,]” id. ¶¶ 10–11, which included the involvement of that office’s “Asset Forfeiture Division, i.e., the same division in which [the p]laintiff was employed[,]” id. ¶ 14. Also, “unbeknownst to [the p]laintiff at the time he began his Miami USAO internship, [his father] had submitted certain filings in the [criminal money laundering] case accusing the Miami USAO and its employees of certain unlawful conduct and unethical behavior.” Id. ¶ 13.

Upon starting his internship with the Miami USAO, and apparently becoming aware soon thereafter of the money laundering case in which his father was involved, “[the plaintiff] questioned the ethical propriety of [the] decision that his supervisor, former AUSA Alison W. Lehr (‘Lehr’), had made by assigning him to cases which were[, in his view,] factually related to the [aforementioned criminal money laundering case.]” Id. ¶ 17. However, the plaintiff alleges that “Lehr summarily dismissed [his] expressed concerns.” Id. ¶ 18. Soon thereafter, the plaintiff alleges that “[he] inexplicably began being verbally abused by Adrienne Rosen of the Miami USAO’s Asset Forfeiture Division, a colleague and close friend of former AUSA Lehr.” Id. ¶ 19. “In response, [the p]laintiff followed USAO protocol and complained to Lehr, his direct supervisor—in writing—about the foregoing verbal abuse.” Id. ¶ 20. “Instead of properly and appropriately referring the matter to the Human Resources [D]epartment of the USAO . . . , Lehr instead informed [the plaintiff] that his written complaint was ‘inappropriate[.]” Id. ¶ 21. The plaintiff alleges that “Lehr misrepresented to [the p]laintiff that defense counsel would discover [his] written complaint ‘in discovery in asset forfeiture cases’ and that such a document could potentially be used against the [g]overnment.” Id. ¶ 22. “Shortly after [the p]laintiff began questioning his case assignments, the atmosphere of [the p]laintiff’s work environment . . . , which had [previously] been collegial and respectful, precipitously deteriorated[,]” id. ¶ 23,2 and thereafter, the Miami USAO requested that the “[p]laintiff ‘voluntarily’ terminate his internship early[,]” id. ¶ 24. The request for the plaintiff’s resignation “directly contradicted statements made by the Miami USAO’s [Human Resources] [(‘]HR[’)] department [informing] [the p]laintiff . . . that he could continue his internship through May 2018.” Id. ¶ 26. “Accordingly, in response, [the p]laintiff informed his Miami USAO supervisor that he did not wish to resign.” Id. ¶ 27.

“Shortly after [the plaintiff] announced his intention to decline the . . . request that he ‘voluntarily resign,’ [the p]laintiff [allegedly] received an ex parte telephone call on his personal cell phone from . . . United States District Judge Federico A. Moreno (‘Judge Moreno’)[,]” id. ¶ 28, “order[ing] [the p]laintiff to appear before him in federal court the following morning[,] id. ¶ 31. Complying with that order, “[o]n the morning of April 10, 2018,” id. ¶ 32, the plaintiff appeared before Judge Moreno, “who happened to be presiding over a personal civil proceeding relating to [the p]laintiff’s credit score, and to which [the p]laintiff was a party,” id. ¶¶ 29, “publicly accused [the p]laintiff of criminal conduct and unethical behavior, . . . [by having] corruptly abused his ‘status’ as a USAO intern by [ ] using his employment to request a certified copy of a record from a clerk in [the] civil action pertaining to his credit score[,]” id. ¶ 32. Among other things, Judge Moreno “in open court on April 10, 2018,” id. ¶ 37, allegedly “defamed and criticized [the p]laintiff’s father[,]” id. ¶ 34, and told the plaintiff directly: “I told the United States Attorney[ about your alleged misconduct, who had] called [Judge Moreno] on something else[,]” id. ¶ 40 (emphasis omitted). Judge Moreno also allegedly told “[the plaintiff that he will] never be able to work at the U.S. Attorney’s Office again[.]” Id. ¶ 41. According to the plaintiff, “[his] supervisor, . . . Lehr, deceptively offered to provide [him] additional legal advice on how best to handle the situation in response to Judge Moreno’s . . . allegations[,]” id ¶ 42, and “advised [the p]laintiff to order a copy of the April 10, 2018 hearing transcript[,]” id. ¶ 44, which he paid for and obtained, see id. ¶ 45.

“[O]nce [the p]laintiff received a copy of [the] transcript . . . [, he] immediately emailed Lehr a copy of the transcript.” Id. ¶ 46. “[S]everal days after [the p]laintiff provided Lehr the copy of the transcript[,] which she had requested, an article appeared in . . . a national online tabloid[,] . . . entitled ‘Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid’[.]” Id. ¶ 48. The “article contained the electronic PDF copy of the April 10, 2018 hearing transcript, id. ¶ 49, and the plaintiff contends that “[a]s of [the] date of publication of the. . . article, only Lehr had [ ] a copy of [the] transcript, and only Lehr could have transmitted the document to the media (and other third parties)[,]” id. ¶ 52. The plaintiff further contends that “Lehr and her Miami USAO colleagues [ ] forwarded the electronic PDF file containing the transcript to: (i) Elie Mystal, [at that time and now] former chief editor of the Above the Law tabloid in New York City, New York; (ii) the Law360 national legal publication; (iii) numerous individuals within the USAO; (iv) SEC employees such as Lisa T. Roberts; (v) the University of Miami School of Law; (vi) the Massachusetts Board of Bar
Examiners; and (vii) the Florida Board of Bar Examiners.” Id. ¶ 54. In total, “the personal information [allegedly] transmitted by the Miami USAO [included]: (i) [the p]laintiff’s DOJ personnel file and timesheet; (ii) the April 10, 2018 hearing transcript . . . ; [and] (iii) the subject [ ] news articles[.]” Id. ¶ 69.

According to the plaintiff, “[a]fter Judge Moreno publicly made the foregoing . . . accusations against [him] in open court on April 10, 2018, [the] DOJ and SEC used those [ ] allegations as [ ] justification to terminate [the p]laintiff’s Miami USAO and Miami SEC employment agreements.” Id. ¶ 37. The plaintiff contends that earlier, “[t]he Miami SEC had [ ] promised [him] full-time, remunerated employment in Washington, DC, within the agency if [he] were to agree to first work as an unpaid summer intern[.]” Id. ¶ 77 (emphasis omitted). However, following the April 10, 2018 hearing, the SEC “claimed that it needed to rescind [the p]laintiff’s SEC employment because [he] had [ ] failed the SEC’s employee background check[,]” id. ¶ 75, which earlier he “had, in fact, successfully passed[,]” id. ¶ 76. The plaintiff alleges that he “reasonably and detrimentally relied upon that promise of full-time, remunerated employment, and had given up numerous lucrative employment opportunities in the private sector.” Id. ¶ 78. The plaintiff further contends that he was also “denied admittance to the bar in both [Massachusetts and Florida,]” id. ¶ 82, and “[a]s a foreseeable consequence of [the d]efendants’ [actions], [he] has been unemployed for the past two (2) years—and [ ] remain[ed] unemployed [as of the date of the filing of his Complaint,]” id. ¶ 84..

Dismissal

Here, the defendants are correct that neither “the public hearing transcript, newspaper articles[,] . . . performance appraisal of [the plaintiff] as an intern[, nor his timesheet] can be found in a system of records.” Defs.’ Reply at 11. Moreover, the plaintiff fails to adequately allege that the information contained in these records, i.e., the hearing transcript and newspaper articles, were created by employees of either agency defendants and then disseminated as was the case in Bartel. See generally Compl.

The Court acknowledges again that the performance evaluation, see Compl. ¶¶ 64–66, conceivably could possibly have been created by the defendants, but the plaintiff’s explanation about the document is difficult to square with his other allegations. Specifically, the plaintiff notes that “the Miami USAO falsely represented [to the University of Miami School of Law] [ ] that [the p]laintiff’s legal writing and research abilities were not ‘up to par[.]’” Id. ¶ 65. However, the plaintiff merely contends that the performance evaluation was “defamatory and factually-erroneous[,]” id. ¶ 64, without any further indication about the record, whether it was or could have been maintained in a system of records, or how he was harmed by the alleged disclosure. Such an allegation is not sufficient to state a claim under the Privacy Act, as “[n]ot every nonconsensual disclosure of information contained in Privacy Act-protected records constitutes a violation of the Privacy Act[,]” U.S. Dep’t of Treasury, 706 F. Supp. 2d at 6, assuming the performance evaluation was even maintained in a system of records.

Furthermore, information such as the plaintiff’s “legal writing and research abilities[,]” Compl. ¶ 65, would appear to have come from “sources not covered by the Privacy Act, such as the disclosing official’s personal knowledge[,]” U.S. Dep’t of Treasury, 706 F. Supp. 2d at 7. This alleged disclosure does not implicate the Bartel exception because assuming that “[the] official disclose[d] h[er] personal recollection of an investigation[, or in this instance, the performance evaluation] that [s]he had instituted[,]” id. at 8 (quoting Pilon, 73 F.3d at 1118) there is no plausible showing that the “contents and conclusions[,]” id., of the evaluation “[we]re part of and were retrieved from any record which is contained in a system of records[,]” Armstrong, 608 F.3d at 860; see id. (holding that the Bartel exception did not apply where the alleged disclosure did not relate to information maintained in a system of records). Accordingly, the Court must find that the Bartel exception does not apply to this case.

Universal Hub covered the case before Judge Moreno and has links to other matters relating to Plaintiff

Last month, he sued the Massachusetts Board of Bar Examiners over its decision to deny him admission to the Massachusetts bar, even after passing the bar exam, allegedly because of the Miami issue, and, more specifically, he charged, as part of the overriding conspiracy. He charges the board won’t let him practice law because he had the nerve to sue a federal judge – the one in Miami – and he claims that the law firm it hired to investigate him is based in Miami, where it has numerous cases that come before the judge and has hired a number of his clerks as lawyers.

(Mike Frisch)