ELLEN SEGAL HUVELLE, United States District Judge.
Plaintiffs are twenty-four current or former police officers employed by the Department of Veterans' Affairs ("VA") at the VA Medical Center in Washington, D.C.
According to the facts as set forth in the complaint,
On January 24, 2014, several VA police officers found "a camera with a microphone covertly mounted on a support bracket for the CCTV monitors with a microphone hidden behind the monitors" in the Control Room. (Compl. ¶ 39.) The LED lights on the device were lit, but covered with black electrical tape. (Compl. ¶ 39.) One of the officers "covered the microphone portion of the camera while the officers present discussed what to do about the camera and microphone." (Compl. ¶ 39.) In the midst of this discussion and immediately after the microphone was covered up, Chief Brown entered the room, demanded to know what the officers were doing, and "ordered all attending officers to draft statements regarding what was happening in the [C]ontrol [R]oom." (Compl. ¶¶ 40-41.)
Two months later, in March 2014, another hidden camera with an attached microphone was found in the Report Room, a room using by officers to write reports and as an alternate break room. (Compl. ¶¶ 42-43.) On March 22, 2014, Chief Brown used the recordings from this device to administer discipline against Officer Luis A. Rodriguez-Soto (a named plaintiff), which included a two-week suspension without pay. (Compl. ¶ 44.)
Then, in January 2015, a hidden camera with an attached microphone was found in the Watch Commander's Office, a room that is used on occasion as a changing room for both male and female officers. (Compl. ¶¶ 45-46.)
As far as plaintiffs are aware, all three devices remain in use. (Compl. ¶ 47.) In addition, plaintiffs suspect that there were additional recording devices secretly installed in the VA Medical Center. (Compl. ¶ 61.)
On June 22, 2015, plaintiffs, on their own behalf and on behalf of all others similarly situated,
Plaintiffs subsequently voluntarily dismissed with prejudice all of their claims against JCI. (See Notice of Voluntary Dismissal with Prejudice, Sept. 28, 2015 [ECF No. 15].) The remaining claims against Chief Brown, Director Hawkins and Secretary McDonald are the subject of defendants' pending dispositive motion.
Defendants seek dismissal or summary judgment as to all of plaintiffs' claims. No discovery has taken place, but defendants' motion for summary judgment is supported by extensive declarations from Chief Brown and Frank Giorno, the VA's Regional Counsel for the District of Columbia, along with excerpts of sworn testimony from Chief Brown, Director Hawkins, Deputy Chief of Police Cleveland Walls, and Officer Rodriguez-Soto, all of which were taken in April 2014 in the VA Medical Center's Administrative Investigation Board's inquiry into a hostile work environment claim brought by plaintiffs against Chief Brown. Plaintiffs filed an opposition to defendants' motion that is supported by declarations from ten of the named plaintiffs, along with a Rule 56(d) declaration from counsel
In Counts I and II, plaintiffs claim that by secretly installing surveillance
Defendants rely on the following evidence to argue that it is undisputed that no audio surveillance took place: (1) Chief Brown's statement in his declaration that: "There was no request for audio surveillance or audio recording; nor to my knowledge was audio surveillance or audio recording approved or conducted at the VA Medical Center." (Brown Decl. ¶ 10 (emphasis added)); (2) an October 23, 2013 memorandum from Chief Brown to Director Hawkins seeking authorization to install two video recording devices (see Brown Decl. Ex. A (emphasis added)); (3) Director Hawkins' negative response to the question "[w]as there any audio involved in the recordings" that he "[d]id not authorize any audio" (Hawkins Tr. at 14); (4) JCI employee Bradford's testimony that although he did not participate in the actual installation of any devices, he was there when the installing technician "tied back the audio cables and taped them" and that the technician "told him" that he never connected the audio (Bradford Tr. at 8); (5) Associate Director Matthews' testimony about the surveillance device in the Control Room that "to [his] knowledge, it did not have audio" (Matthews Tr. at 6); and (6) defendants' counsel's declaration that he had the Office of the AUSA purchase a camera bearing the description "MiNi CCD" camera that he believed was similar to the camera pictured in plaintiffs' exhibits, and that he tested the camera and discovered that the red LED light was lit when the power was on even when the audio and video feeds were not connected (Nebeker Decl. ¶¶ 2-3, 7-8).
The declarations submitted by plaintiffs to respond to defendants' evidence state that several officers saw a microphone attached to the camera in the Control Room, that the microphone was installed at a height that corresponded to where people would be having conversations, and that the LED lights on the device were lit. (See
Considering the above evidence, and drawing all inferences in plaintiffs' favor, as the Court must for purposes of ruling on defendants' motion for summary judgment, the Court concludes that existing record is not sufficiently clear at this juncture to accept as undisputed the fact that no audio surveillance took place. Moreover, plaintiffs' counsel has filed a declaration pursuant to Rule 56(d), stating that plaintiffs request document discovery and depositions in order to ensure that they have access to any evidence that might controvert Chief Brown's declaration and the other evidence relied upon by defendants. (Rule 56 Decl. ¶¶ 3, 8-9.) This is a valid request, for courts are generally loath to award summary judgment before the non-moving party has been given an adequate opportunity for discovery, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C.Cir.1995), and there is nothing in this case that warrants an exception to this general rule. The strongest evidence for defendants is a declaration from Chief Brown, who is a defendant in this case. Plaintiffs should not have to accept the statements in his declaration at face value without having the opportunity to conduct document discovery and to depose him and others with potentially relevant information. For these reasons, the Court will deny without prejudice defendants' motion for summary judgment on Counts I and II.
In Count III, plaintiffs allege that the actions of Chief Brown and Director Hawkins, in conjunction with JCI, render them liable for civil conspiracy. Specifically, plaintiffs claim that Chief Brown, Director Hawkins, and JCI entered into and carried out a conspiracy to illegally install hidden cameras and microphones in the Medical Center and that Chief Brown monitored and utilized the data collected from those devices against employees of the Medical Center. (Compl. ¶¶ 83-88.) Defendants argue that the civil conspiracy count should be dismissed for failure to state a claim, because "if this Court finds, as is likely, that there are no underlying predicate counts, then the conspiracy count must similarly be dismissed." (Defs.' Mot. at 14.) Defendants are correct that "under both federal and District of Columbia law, civil conspiracy is not actionable in and of itself." See Riddell v. Riddell Washington Corp., 866 F.2d 1480, 1493 (D.C.Cir.1989). Rather, there must be an underlying predicate offense. However, as explained supra, the Court has rejected defendants' challenges to Counts I and II, the underlying predicate offenses for Count III. Accordingly, defendants' argument for the dismissal of Count III must must also be rejected.
In Count IV, plaintiffs claim that Chief Brown's actions violated their Fourth Amendment right to be free from unreasonable searches and seizures and that under the Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), he is personally liable for damages. Bivens established that federal officials can be sued in their individual capacities for actions taken under the color of law that violate the Fourth Amendment, but the doctrine of qualified immunity protects government officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In the present case, defendants contend that they are entitled to summary judgment on plaintiffs' claim against Chief Brown either (1) because the surveillance did not violate the Fourth Amendment, or (2) even if it did, the right was not clearly established at the time the surveillance occurred. Given the incompleteness of the existing record, the Court finds it impossible at this time to agree with either of defendants' arguments.
The Fourth Amendment's protection "against unreasonable searches and seizures" "applies ... when the government acts in its capacity as an employer." City of Ontario v. Quon, 560 U.S. 746, 756, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010); see O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) ("[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."). However, where the government as employer conducts a search or seizure for "noninvestigatory, work-related purposes" or for "investigations of work-related misconduct," the standard for determining whether that search or seizure is reasonable (which was adopted by a plurality of the Supreme Court in O'Connor v. Ortega and has generally been followed by most lower courts, including the D.C. Circuit, see Stewart v. Evans, 351 F.3d 1239, 1243 (D.C.Cir.2003)) asks two questions. See O'Connor, 480 U.S. at 717-724, 107 S.Ct. 1492. The first question is whether, considering the "operational realities of the workplace" "on a case-by-case basis," the employee has a "reasonable expectation of privacy" in the intruded-upon space. Id. at 717-18, 107 S.Ct. 1492. If the answer to that question is yes, Fourth Amendment protections apply, and courts proceed to the question of whether the employer's intrusion was "reasonable[] under all the circumstances." O'Connor, 480 U.S. at 725-26, 107 S.Ct. 1492; see also City of Ontario, 560 U.S. at 756-57, 130 S.Ct. 2619. "Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable." O'Connor, 480 U.S. at 726, 107 S.Ct. 1492.
To support their argument that there was no Fourth Amendment violation, defendants rely primarily on a twenty-year old decision from a federal district court in Kansas. See Thompson v. Johnson County Community College, 930 F.Supp. 501 (D.Kan.1996). In Thompson, the plaintiffs were community college security officers who challenged the warrantless installation of video surveillance equipment in the security personnel locker area. The surveillance took place in the "security personnel locker area," an area that "was not enclosed," and that "was part of a storage room that also housed the College's heating and air conditioning equipment." Id. at 507. In this area, "[p]laintiffs' activities could be viewed by anyone walking into or
Although the facts in Thompson bear some similarities to the present case, defendants' reliance on Thompson ignores critical differences. First and most importantly, the factual record in Thompson was fully developed, whereas the factual record here case is not. Second, the allegations of the complaint suggest that aspects of the surveillance at the VA Medical Center were different from those in Thompson. However, even if the facts turn out to be similar, the decision in Thompson is not controlling precedent for this Court, and other courts have analyzed similar situations differently. See, e.g., Jones v. Houston Community College Sys., 816 F.Supp.2d 418 (S.D.Tex.2011) (community college security officers challenging video surveillance in office stated Fourth Amendment claim); Richards v. County of Los Angeles, 775 F.Supp.2d 1176, 1182 (C.D.Cal.2011) (covert videotaping of county employees in dispatch room violated Fourth Amendment); Rosario v. United States, 538 F.Supp.2d 480, 495-500 (D.P.R. 2008) (federal police officers had reasonable expectation of privacy from video surveillance in VA locker-break room and stated claim that search was unreasonable); Trujillo v. City of Ontario, 428 F.Supp.2d 1094, 1101-09 (C.D.Cal.2006) (police officers who were secretly videotaped in locker room had reasonable expectation of privacy and search was not reasonable).
For now, though, the Court will not speculate as to where the ultimate facts of this case will lead. As our Court of Appeals has made clear, "the inquiry into reasonableness must be made on a case-by-case basis," and it must be based upon an adequate record. Stewart v. Evans, 275 F.3d 1126, 1130-31 (D.C.Cir.2002) (reversing dismissal and remanding because "[w]ithout knowing more about the circumstances surrounding the search, a court simply cannot assess whether it was reasonable"); see also O'Connor, 480 U.S. at 727, 107 S.Ct. 1492 (remanding because "the record was inadequate for a determination on motion for summary judgment of the reasonableness of the search and seizure"). It is not apparent from the existing record, viewed in the light most favorable to plaintiffs, that the undisputed facts establish either that plaintiffs lacked a reasonable expectation of privacy in their conversations or their actions in the rooms where the surveillance allegedly occurred or that, if they had a reasonable expectation of privacy, the search was reasonable in both its inception and its scope. Given that plaintiffs have not yet had the opportunity to take discovery, and considering the disputed facts viewed in the light most favorable to the plaintiffs, the Court cannot find that defendants' surveillance did not violate the Fourth Amendment.
For the same reason, it is premature at this juncture to conclude that
In Count V, plaintiffs claim that the Department of Veterans Affairs, sued through Secretary McDonald in his official capacity as VA Secretary, is liable for damages under the FTCA for Chief Brown's installation of hidden cameras and microphones. (See Compl. ¶¶ 96-98.) Defendants move to dismiss Count V on the ground that the United States is the only proper party defendant in actions brought under the FTCA. As plaintiffs concede in their opposition (see Pls.' Resp. at 4 n.1), defendants are correct that Count V should have been filed against the United States as the FTCA does not authorize suits against federal officials or federal agencies. See 28 U.S.C. § 2679; see also Kissi v. Simmons, No. 09-cv-1377, 2009 WL 3429567, at *1 (D.D.C. Oct. 22, 2009) ("the proper defendant to an action under the FTCA is the United States of America"); Cox v. Sec'y of Labor, 739 F.Supp. 28, 29 (D.D.C.1990) (dismissing FTCA claim against Secretary of Labor in her official capacity for lack of subject matter jurisdiction). Plaintiffs have not, however, filed a motion seeking leave to amend Count V. In addition, defendants have submitted uncontroverted evidence that any such amendment would be futile because plaintiffs have failed to exhaust their administrative remedies,
Accordingly, and for the reasons stated above, defendants' motion to dismiss or for summary judgment will be granted in part and denied in part. A separate Order accompanies this Memorandum Opinion.
(Compl. ¶ 25.)
Fed. R. Civ. P. 56(d).
In Count II, plaintiffs allege that Chief Brown, Director Hawkins, and JCI "willfully intercepted oral communications between employees at the Veterans Affairs Medical Center," that their actions "were not legally justified and do not establish any of the exceptions as set out in D.C. Code § 23-542(b)," and that Chief Brown "utilized the unlawfully intercepted oral communications to discipline, terminate, and terrorize employees at the Medical Center." (Compl. ¶¶ 80-82.)
