                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   SHEILA CLOONAN,

                             Plaintiff,

                        v.                            Civil Action 08-00700 (HHK)

   ERIC H. HOLDER, Jr., Attorney
   General, et al.,

                             Defendants.


                             MEMORANDUM OPINION AND ORDER

       Sheila Cloonan, an employee of the United States Marshals Service, brings this action

against Eric H. Holder, Jr.,1 Attorney General of the United States; John F. Clark, Director of the

United States Marshals Service (“USMS”); David Barnes, a supervisor with the USMS

(collectively, the “federal defendants”), and Paul T. Stein, Barnes’s former attorney. Cloonan

brings defamation claims against Stein and Barnes in their personal capacities, and a claim

against Barnes, in his official capacity, alleging that he violated the Privacy Act, 5 U.S.C. § 552a.

       Before the court is Stein’s motion to dismiss [#11] and the federal defendants’ motion to

dismiss and for summary judgment [#12]. Upon consideration of the motions, the opposition

thereto, the argument of counsel at a hearing, and the record of this case, the court concludes that

Stein’s motion to dismiss should be denied, the federal defendants’ motion to dismiss Cloonan’s

defamation claim should be granted, and the federal defendants’ motion for summary judgment

on Cloonan’s Privacy Act claim should be denied without prejudice.




       1
           Attorney General Holder is substituted as a party pursuant to Fed. R. Civ. P. 25(d).
                                      I.   BACKGROUND

        Cloonan is a “long time employee” of the United States Marshals Service (“USMS”),

stationed in Georgia, where she resides. Compl. ¶¶ 7, 17.2 Barnes is one of Cloonan’s

supervisors at the USMS and works in Virginia. Federal Defs.’ Mot. to Dismiss and Summ. J.

[#12] at 14. Since 2006, Cloonan has filed several complaints “about the conduct and practices

used by Mr. Barnes,” ¶ 1, including an unsafe work environment due to Barnes’ misapplication

of funds, ¶ 22, and sex and age discrimination, ¶¶ 24, 27. On August 3, 2007, Cloonan filed an

administrative appeal against the USMS3 before the Merit Systems Protection Board (“MSPB”)

regarding her involuntary transfer and downgrade in June 2007, and named Barnes as a “possible

witness” to that action. ¶ 28.

        Cloonan’s claims in this case arise from a letter authored by Barnes’ attorney, Paul Stein,

on October 22, 2007. ¶¶ 32-37, Exh. 1 (Stein letter dated October 22, 2007) (“Letter”). The

Letter, which Cloonan alleges is defamatory, was addressed to Joseph M. Band, Senior Counsel

in the Office of General Counsel of the USMS, and copied to:

        Scott Bloch, Director of the United States Office of Special Counsel;
        Mr. Kevin Byrnes, Cloonan’s attorney;
        John F. Clark, Director of the USMS;
        Anthony W. Cummings, Merit Systems Protection Board Administrative Judge;
        JoAnn Grady, of the USMS Equal Opportunity Office, and
        Jacob A. Stein, Barnes’ attorney.




        2
            Unless otherwise noted, all “¶” numbers refer to paragraphs in Cloonan’s Complaint
[#1].
        3
         Cloonan’s complaint states that one of her administrative complaints and the
administrative appeal were filed against “the Agency,” ¶¶ 27-28, which the court assumes is the
USMS.

                                                 2
¶ 32, Exh. 1. In addition to her claim that the Letter is defamatory, Cloonan alleges that it

violated the Privacy Act because it contained information Barnes had collected from her

“employment record,” ¶ 36, and Equal Employment Opportunity (“EEO”) complaint records, ¶

27.

                                         II.   ANALYSIS

       Stein moves to dismiss Cloonan’s defamation claim against him on the grounds that the

Letter is protected by an absolute privilege, or alternatively, a qualified privilege. The federal

defendants move to dismiss Cloonan’s defamation claim contending that, because Barnes was

acting in the scope of his employment with the federal government when the allegedly

defamatory statements attributed to him were made, the United States must be substituted as the

sole defendant and the claim deemed an action brought under the Federal Tort Claims Act

(“FTCA”). So construed, the federal defendants argue, the defamation act must be dismissed

because the United States is immune from FTCA suits for defamation. Finally, the federal

defendants move for summary judgment on Cloonan’s Privacy Act claim, because Barnes did not

obtain the information in the Letter from Cloonan’s records. Each of these arguments will be

addressed in turn.

A.     Stein’s Motion to Dismiss Defamation Claim

       Stein, who formerly served as counsel to Barnes, contends that the court should dismiss

Cloonan’s defamation claim against him on the grounds that the Letter is absolutely privileged.

He claims the Letter is protected by the judicial proceedings privilege because it was sent to

individuals involved in quasi-judicial proceedings filed by Cloonan in which Barnes “was

identified as a witness and/or a party.” Memo. in Support of Stein’s Mot. Dismiss [#11] at 6


                                                  3
(“Stein’s Mot. Dismiss”). Alternatively, Stein argues that the Letter is protected by a qualified

privilege because he sent it to parties with a corresponding interest.

       The judicial proceedings privilege Stein invokes “is well-settled in District of Columbia

law.”4 Messina v. Krakower, 439 F.3d 755, 760 (D.C. Cir. 2006). The District of Columbia has

adopted the articulation of the privilege as set forth in the Restatement (Second) or Torts:

       An attorney at law is absolutely privileged to publish defamatory matter concerning
       another in communications preliminary to a proposed judicial proceeding, or in the
       institution of, or during the course and as a part of, a judicial proceeding in which he
       participates as counsel, if it has some relation to the proceeding.

Id. (quoting Restatement (Second) of Torts 586); see also Finkelstein, Thompson & Loughran v.

Hemispherx Biopharma, Inc., 774 A.2d 332, 338 (D.C. 2001). Thus, for the privilege to apply,

“(1) the statement must have been made in the course of, or preliminary to a judicial proceeding;

and (2) the statement must be related in some way to the underlying proceeding.” Messina, 439

F.3d at 760 (quoting Arneja v. Gildar, 541 A.2d 621 (D.C. 1988)).5 Accordingly, the privilege

does not apply “under circumstances where the defamatory statements, though ostensibly in the



       4
           Regarding choice of law, the D.C. Circuit has held that “the law to be applied is that of
the place where the plaintiff suffered injury by reason of his loss of reputation.” Mastro v.
Potomac Elec. Power Co., 447 F.3d 843, 857 (D.C. Cir. 2006) (internal quotation omitted).
Although Cloonan’s opposition to Stein’s motion to dismiss states that she “believes that either
the law of Maryland (where the letter originated) or the law of the District of Columbia (where
the letter was addressed) applies to this defamation count,” Opp’n to Stein’s Mot. to Dismiss
[#16] at 5, her complaint specifically alleges that “the acts complained of were directed toward
and caused harm to Plaintiff in District of Columbia.” ¶ 16. Because Stein does not dispute the
application of D.C. law, that is the law the court will apply.
       5
         “[W]hile the communication, to trigger the privilege, must have some relation to the
proceeding, it need not be relevant in the legal sense; it suffices that it has enough appearance of
connection with the case . . . so that a reasonable man might think [it] relevant.” Hobley v. KFC
U.S. Properties, Inc., 2006 WL 249981, at *5 (D.D.C. Jan. 31, 2006) (quoting United States v.
Hurt, 543 F.2d 162, 167 (D.C. Cir. 1976)).

                                                  4
course of pertinent investigation or preparation, were published to persons not having an interest

or connection to the litigation, or where the defamatory statements did not have a sufficient

relation to the subject matter of the litigation.” Finkelstein, 774 A.2d at 342 (internal quotation

omitted).6 If the privilege does apply, it is absolute, protecting the attorney from liability in a

defamation action regardless of “‘his purpose in publishing the defamatory matter, his belief in

its truth, or even his knowledge of its falsity.’” Messina, 439 F.3d at 760 (quoting Finkelstein,

774 A.2d at 338).

       The District of Columbia Court of Appeals has “signaled that trial courts should rule as

early as possible on the existence of an absolute privilege.” See, e.g., Finkelstein, 774 A.2d at

340-41; see also Marsh v. Hollander, 339 F. Supp. 2d 1, 6 (D.D.C. 2004). Addressing the

privilege as early as possible in the proceedings helps protect attorneys “not only from civil

liability but also from the danger of even an unsuccessful civil action.” Marsh, 339 F. Supp. 2d at

7 (internal quotation omitted). In deciding a motion to dismiss a defamation claim on the basis

of privilege like this one, the court must “make a preliminary determination of whether the

statement is protected as a matter of law by a privilege such that the case must be dismissed at

this stage, assuming all of the facts alleged by Plaintiff to be true and resolving all ambiguities

and doubts in Plaintiff's favor.” Id.

       In this case, resolving doubt in the plaintiff’s favor, as the court must, id. at 7, Stein has

not met his burden to demonstrate that his Letter is entitled to either absolute or qualified



       6
         The District of Columbia has extended the privilege “to encompass quasi-judicial
proceedings conducted by administrative bodies and private arbitration proceedings.” White v.
Fraternal Order of Police, 909 F.2d 512, 524 (D.C. Cir. 1990) (citing Mazanderan v.
McGranery, 490 A.2d 180, 181-182 (D.C. 1984)).

                                                   5
privilege. Specifically, Stein has not demonstrated the “proceeding” to which the Letter relates;7

whether Stein participated in the proceeding as counsel; and whether the Letter’s recipients had

an interest in or connection to the proceeding.

       As to the proceeding or proceedings to which the Letter relates, the circumstances are far

from clear. Stein argues that plaintiff “interjected Mr. Barnes into the administrative

proceedings that she had initiated before the Merit Systems Protection Board (‘MSPB’) by

identifying him as a witness to the action.” Stein Mot. to Dismiss at 5 (citing ¶31)(emphasis

added). Yet Stein also contends that the Letter was “sent in connection with a number of

pending and potential proceedings involving Mr. Barnes and Ms. Cloonan.” Reply in Support of

Stein’s Mot. to Dismiss [#18] at 3 (emphasis added). For her part, Cloonan maintains that at the

time the Letter was sent, there was no proceeding to which Cloonan was a party in which Scott J.

Bloch, the Director of the Office of Special Counsel; John F. Clark, the Director of the Marshals

Service; or JoAnn Grady, the Chief EEO Officer of the Marshals Service had any interest or

connection. Cloonan also asserts that the Office of Special Counsel had no active investigation

or proceeding involving Cloonan as of October 22, 2007, the date of the Letter, as evidenced by a

letter she attaches to her opposition to Stein’s motion to dismiss dated either August 31, 2007, or

September 6, 2007. Opp’n to Stein’s Mot. to Dismiss Exh. 2 (Sheth Letter to Cloonan).

       Further, Stein’s Letter refers to Cloonan’s appeal before the Merit Systems Protection

Board (“MSPB”), which Cloonan alleges she filed on August 3, 2007, ¶ 28:


       7
           In order to be eligible for the judicial proceedings privilege, the Letter must relate only
to “a proceeding” — it need not relate the particular proceeding to which Stein contends it
relates. Nevertheless, the identification of the proceeding at issue is critical because Stein is
entitled to immunity only if he participated in that particular proceeding as counsel and only if
the recipients of the Letter were sufficiently related to that proceeding.

                                                   6
        Evidently, Ms. Cloonan has been involved in multiple, false complaints for the past
        several years with various entities that include the USMS Equal Employment Opportunity
        Office; the U.S. Office of Special Counsel; the USMS Office of Internal Affairs; and the
        Department of Justice (DOJ), Office of Inspector General, the federal Occupational
        Safety and Health Administration, and Mr. Barnes’ supervisors. It appears that Ms.
        Cloonan’s latest attempts to villify Mr. Barnes now lays at the doorstep of the Merit
        Systems Protection Board (MSPB) in an attempt to obfuscate the facts of her case.”

Stein writes that “[i]f necessary we intend to enter a brief with the MSPB Administrative Judge

to ensure that the record in this matter is set straight . . . ,” Letter at 2.

        Despite these references to the MSPB appeal, the first paragraph of the Letter suggests

that it has another purpose:

        Mr. Barnes will shortly have legal matters before the Department of Justice, which may
        conflict with other cases, including those involving specific USMS employees such as
        Mr. Sheila Cloonan. Mr. Barnes therefore, has asserted his right to representation by
        Counsel, and demands reimbursement of lawyer fees for any contacts made of him by
        Ms. Cloonan’s lawyer because of her continued harassment.

Letter at 1 (emphasis added).

        In addition, rather than defending against claims by Cloonan, the Letter goes on to focus

on Barnes’ complaints of a hostile work environment created by her. Id (Barnes was not

“privileged” to a “work place safe and free from harassment, intimidation and threats” due to Ms.

Cloonan’s allegedly “unfounded, false, [sic] allegations against Mr. Barnes.”); id. at 2 (Ms.

Cloonan’s “actions have created and perpetuated a hostile work environment that violated

[Barnes’] privacy rights, as Mr. Barnes has literally been stalked by Ms. Cloonan by her filing

multiple, unsubstantiated false complaints, and overt threats.”); id. at 3 (Ms. Cloonan “repeatedly

threatened this manager, continually filing complaints and gossiping, which subsequently created

a hostile work environment for Mr. Barnes”). Indeed, the Letter states that “Chief Barnes alleges

that Ms. Cloonan’s behavior in harassing and filing numerous false complaints and EEO’s


                                                      7
against Mr. Barnes constitute misconduct as specified in the Department of Justice Standard

Schedule of Disciplinary Offenses and Penalties.” Exh. 1 at 3. Further,

        The information provided herein provides a clear and convincing demonstration that this
        employee’s goal was to contribute toward the removal of a manager in her chain of
        command that tried to hold Cloonan accountable for her work and disruptive behavior on
        the job, and the employee repeatedly threatened this manager, continually filing
        complaints and gossiping, which subsequently created a hostile work environment for Mr.
        Barnes . . .

Letter at 3.

        In his reply in support of his motion to dismiss, Stein contends that the Letter “was sent in

defense of Mr. Barnes to the agencies where allegations had been made against him by Ms.

Cloonan.” If the proceeding at issue was Cloonan’s MSPB appeal, in which Barnes was merely

named as a “potential witness,” however, the detail the Letter provides hardly seems necessary.

On the other hand, if the proceeding at issue is the “legal matters” Barnes was to “shortly

have . . . before the Department of Justice,” Letter at 1, the court has no information regarding

the individuals who did or did not have an interest in these proceedings.

        Morever, even assuming that the proceeding at issue in the Letter is Cloonan’s MSPB

appeal, Stein must demonstrate that he was acting as counsel in that proceeding and that the

recipients of the Letter had an interest in or connection to it. Stein fails to do so.

        It is unclear whether Stein participated in the proceeding as counsel, as is required to

claim the privilege. See Oparaugo v. Watts, 884 A.2d 63, 81 (D.C. 2005) (“[M]erely acting as an

attorney is insufficient; the attorney must participate as counsel in the relevant proceeding.”);

Restatement (Second) of Torts 586 (An attorney is only afforded absolute privilege in the context

of a proceeding “in which he participates as counsel.”). Although Stein’s motion to dismiss



                                                   8
identifies Barnes as his client, Stein’s Mot. Dismiss at 1, and states that Jacob Stein is his “other

attorney,” id. at 3, the court reads the Letter to inform the recipients that Jacob Stein, not

defendant Stein, is counsel to Mr. Barnes. The letter in pertinent part reads

       Please be advised that Dave Barnes, who is a management official at the United States
       Marshals Service (USMS), is represented by Jacob A. Stein, of the Law Offices of Stein,
       Mitchell and Mezines in Washington, DC. Any requests for interviews or depositions for
       any case or action must be coordinated through Mr. Stein. . . . [P]lease refer all
       correspondence to Mr. Jacob Stein regarding any case, action or matter than involves Mr.
       Barnes.

Letter at 1, 4. It is therefore unclear from the Letter, and not clarified by Stein’s motion, in which

proceedings Paul Stein participated as counsel and those in which Jacob Stein participated. See

Oparaugo, 884 A.2d at 81 (“Since appellees failed to show that [attorney] was participating as

counsel in the . . . proceeding, it cannot be determined on this record that she is entitled to claim

absolute privilege.”).

       Finally, even assuming that the MSPB appeal is the “proceeding” at issue, Stein fails to

demonstrate how each of the individuals to whom the Letter is addressed or copied have an

interest in or connection to the proceeding. See Messina, 439 F.3d at 761-62 (“[A]s a corollary

of the relatedness requirement, the privilege has been ‘held to be inapplicable when it is

published to persons not having an interest [in] or connection to the litigation.” ) (quoting

Finkelstein, 774 A.2d at 342 (internal quotation omitted)).

       All of Stein’s statements regarding the Letter’s recipients are conclusory, providing no

information about the role each individual played in the proceeding. See, e.g., Stein’s Mot. to

Dismiss at 11 (“The letter sent by Mr. Stein was sent only to parties who were involved in, or

connected with, the various complaints that had been filed by Ms. Cloonan naming Mr. Barnes,



                                                   9
either as an alleged offender or as a witness ”); id. at 12 (arguing that the Letter is entitled to the

common interest privilege: “Mr. Stein’s communication was addressed to people involved or

otherwise interested in those allegations and/or proceedings involving his client.); Reply in

Support of Stein’s Mot. to Dismiss at 4 (“[T]he letter at issue was sent only to those agencies

which were addressing or handling Ms. Cloonan’s various complaints, all of which are alleged to

have contained allegations against Mr. Barnes. A copy of the letter was also sent to the Director

of the United States Marshals Service. . . , the employer of both Ms. Cloonan and Mr. Barnes.”).

Although the court may be able to surmise how some of the individuals might relate to the

MSPB, it is Stein’s burden as the movant to do so. Because he fails to explain why they had an

interest in the proceeding to which the Letter relates, the court cannot conclude that the Letter is

entitled to absolute immunity under the judicial proceedings privilege.8




        8
             For the same reason, the court rejects Stein’s alternate argument that the Letter is
entitled to a common interest privilege, which “protects otherwise defamatory statements made
‘(1) . . . in good faith, (2) on a subject in which the party communicating has an interest, or in
reference to which he has, or honestly believes he has, a duty to a person having a corresponding
interest or duty, (3) to a person who has such a corresponding interest.’” Mastro, 447 F.3d at 858
(quoting Moss v. Stockard, 580 A.2d 1011, 1024 (D.C. 1990)). The defendant bears the burden
of proving the elements of the common interest privilege. Id. Because Stein fails to identify
what interests the Letter’s recipients have, the court cannot find that the Letter is protected by the
common interest privilege.

                                                   10
B.     Federal Defendant’s Motion to Dismiss Defamation Claim

       The federal defendants move to dismiss Cloonan’s defamation claim against Barnes in his

personal capacity, arguing that the United States should be substituted for Barnes because

Barnes’s actions in connection with the Letter were within the scope of his employment.

Defendants assert that once the United States is the sole defendant, the court will lack subject-

matter jurisdiction because the United States has not waived its sovereign immunity as to

defamation claims under the Federal Tort Claims Act. Cloonan responds that Barnes “was

clearly not acting within the scope of employment, as a matter of law, when he published through

his attorney a defamatory letter which also violated the Privacy Act.” Cloonan’s Opp’n to

Federal Defs.’s Mot. to Dismiss and Summ. J. [#17] at 12. “In any event,” Cloonan maintains,

“the issue should at the very least be determined by the trier of fact under either District of

Columbia or Virginia law.” Id.9 The federal defendants’ position has merit.




       9
           Although Cloonan argues that District of Columbia law should apply because the Letter
was mailed to D.C., Virginia law applies to the scope-of-employment issue because Barnes was
employed in Virginia. Majano v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006) (“Scope of
employment questions are governed by the law of the place where the employment relationship
exists.”). Specifically, Virginia courts hold that an act is within the scope of employment
        if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the
        business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to
        further the employer's interest, or from some impulse or emotion that was the natural
        consequence of an attempt to do the employer's business, “and did not arise wholly from
        some external, independent, and personal motive on the part of the [employee] to do the
        act upon his own account.”
Heckenlaible v. Virginia Peninsula Regi’l Jail Auth., 491 F. Supp. 2d 544, 549 (E.D. Va. 2007)
(quoting Kensington Assocs. v. West, 234 Va. 430, 432, 362 S.E.2d 900, 901 (1987)).

                                                  11
       1. Substitution of the United States as the Sole Defendant

       The Westfall Act, 28 U.S.C. § 2679, immunizes federal employees from liability for torts

committed within the scope of their employment. The Act provides that, upon certification by

the U.S. Attorney General or his designee that an employee acted within the scope of her

employment at the time of an allegedly tortious incident, the United States will be substituted as

the defendant. 28 U.S.C. § 2679(d)(1). The Attorney General’s designee, Rudolph Contreras, the

Chief of the Civil Division of the United States Attorney’s Office for the District of Columbia,

has certified that Barnes’ actions in connection with the Letter were within the scope of his

employment. Federal Defs.’s Mot. to Dismiss and Summ. J. Exh. 2. (“Scope of Employment

Certification”). The Attorney General’s certification establishes a presumption that Barnes acted

within the scope of his employment when the allegedly defamatory statements were made.

Accordingly, the burden shifts to Cloonan to rebut this presumption with evidence that Barnes

acted outside the scope of his employment. Gutierrez de Martinez v. Drug Enforcement Admin,

111 F.3d 1148, 1155 (4th Cir. 1997) (“[T]he scope-of-employment certification is prima facie

evidence that the defendant federal employee acted within the scope of his employment, thereby

placing the burden on the plaintiff to prove otherwise. If the plaintiff does not come forward

with any evidence, the certification is conclusive.”); see also Council on American Islamic

Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (“A plaintiff challenging the

government’s scope-of-employment certification bears the burden of coming forward with

specific facts rebutting the certification.”) (internal quotation omitted).




                                                  12
       Cloonan does not allege any facts to rebut the Attorney General’s certification that Barnes

was acting within the scope of his employment.10 To the contrary, Cloonan states that Barnes’

actions took place during regular duty hours, Opp’n to Federal Defs.’ Mot. to Dismiss and

Summ. J. at 10; and that the Letter “relied upon information obtained by David Barnes in his

official capacity as a supervisory employee of the Agency.” ¶ 34 (emphasis added). Cloonan’s

allegations in her opposition are not facts that rebut the certification but rather are conclusory

assertions that Barnes’ conduct must have been outside the scope of his employment because he

both violated the Privacy Act and defamed her. Cloonan’s argument is both circular and entirely

misplaced because the court’s ultimate determination of the merits of Cloonan’s cause of action

is unrelated to whether Barnes’ actions were in the scope of his employment. See, e.g., Gutierrez

de Martinez, 111 F.3d at 1156 (“For the most part, Virginia courts take a fairly broad view of

scope of employment, and hold that even intentional torts may be within the scope of

employment.”). Rather than whether the conduct in question was tortious or wrongful, the

inquiry of whether an employment acts within the scope of his employment “focus[es] chiefly on

whether the tortious or intentional wrongful conduct was sufficiently related in time, place, and




       10
            At oral argument, for the first time, plaintiff’s counsel argued that discovery is
necessary to determine whether Barnes acted in the scope of his employment. As an initial
matter, Fed. R. Civ. P. 56(f)(2) makes clear that “[i]f a party opposing the motion shows by
affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the
court may . . . order a continuance to enable affidavits to be obtained, depositions to be taken, or
other discovery to be undertaken.” Plaintiff’s counsel submitted no such affidavit. In addition to
failing to follow the appropriate procedure to obtain discovery, plaintiff has not plead sufficient
facts to show that discovery is necessary. Compare Stokes v. Cross, 327 F.3d 1210, 1216 (D.C.
Cir. 2003) (holding that plaintiff was entitled to discovery because he “plead sufficient facts that,
if true, would rebut the [Attorney General’s] certification.”).

                                                  13
causation to the employee’s duties to be attributable to the employer’s business.” Gulf

Underwriters Insurance Co. v. KSI Servs., Inc., 416 F. Supp. 2d 417, 421 (E.D. Va. 2006).

       Because Cloonan does not rebut the Attorney General’s certification, the court finds that

the certification is conclusive and that Barnes acted within the scope of his employment.

Accordingly, the United States is the proper defendant for Cloonan’s defamation claim.

       2. Sovereign Immunity

       Having determined that the United States is the proper defendant for Cloonan’s

defamation claim, the court turns to the federal defendants’ argument that this court lacks subject

matter jurisdiction due to the sovereign immunity of the United States.

       The Federal Tort Claims Act (“FTCA”) waives the sovereign immunity of the United

States with respect to some, but not all, torts. Those torts for which the United States retains

immunity are enumerated in 28 U.S.C. § 2680(h). Among such claims are those for slander and

libel. As a result, Cloonan’s claim of defamation cannot survive the federal defendants’ motion

to dismiss. See, e.g, Klugel v. Small, 519 F. Supp. 2d 66, 73-75 (D.D.C. 2007).

C.     Federal Defendants’ Motion for Summary Judgment on Cloonan’s Privacy Act
       Claim

       The federal defendants move for summary judgment on Cloonan’s Privacy Act claim

because the information Barnes disclosed to Stein — which Stein then incorporated into the

Letter — was obtained not from Cloonan’s employment records but rather from Barnes’ “own

personal experiences with [Cloonan] and from his communications from others who had also

interacted with [Cloonan] and had shared their experiences with him.” Federal Defs.’ Mot. to

Dismiss and Summ. J. at 11. The court agrees with Cloonan that the issues presented by her

Privacy Act claim should be decided only after the parties have had an opportunity for discovery.



                                                 14
                                     III.   CONCLUSION

       For the foregoing reasons, it is by the court this 9th day of March 2009, hereby

       ORDERED that Stein’s motion to dismiss is DENIED; and it is further

       ORDERED that the federal defendants’ motion to dismiss Cloonan’s defamation claim

against Barnes is GRANTED; and it is further

       ORDERED that the federal defendants’ motion for summary judgment on Cloonan’s

Privacy Act claim is DENIED without prejudice.

                                                            Henry H. Kennedy, Jr.
                                                            United States District Judge




                                                15
