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Haiping Su v. National Aeronautics and Space Administration

April 17, 2013


The opinion of the court was delivered by: Edward J. Davila United States District Judge

**E-Filed 4/17/2013**

United States District Court


Defendants seeks summary judgment with respect to Plaintiff's corrected consolidated 20 complaint. Having considered the briefing, the admissible evidence, and the oral argument 21 presented at the hearing, the Court hereby grants the motion in part and denies it in part. 22


Plaintiff Haiping Su ("Su") is an American citizen of Chinese ethnicity. Administrative Record ("AR") 5, ECF No. 108-2. He received a doctorate from Kansas State University, and 25 works in the field of earth sciences. Id. at 34, 84. The Federal Bureau of Investigation ("FBI") 26 opened an investigation on Su in 2003; at that time he worked at Edwards Airforce Base, at the 27 National Aeronautics and Space Administration ("NASA") Dryden Flight Research Center. Id. at 28

80. Subsequently, Su obtained a position as a staff scientist for the University of California, Santa Cruz ("UCSC"), working on a NASA contract through the University Affiliated Research Center 2 ("UARC"). Id. at 84; see also Su Dep. 37:13-19, ECF No. 201-1. The UARC team worked at the 3 NASA Ames Research Center, AR 84, and in effect was "embedded" in the Earth Sciences Division 4 at NASA Ames, Myers Dep. 64:17-65:14, ECF No. 202-1. Su's immediate supervisor at UARC 5 was Jeff Myers ("Myers"); above Myers was Larry Hogle ("Hogle"); and above Hogle was Jim 6 Berry ("Berry"), the director of UARC. Su Dep. 38:6-22, ECF No. 201-1. 7

In 2006, the FBI contacted the NASA Ames Research Center's Counterintelligence Office to 9 request that the two agencies conduct a joint investigation of Su. AR at 82-83; ECF No. 108-2. FBI 10 and NASA agents jointly interviewed Su on February 14, 2008 and March 12, 2008. Id. at 84. On March 21, 2008, Su underwent a consensual polygraph examination. Id. at 85. On May 22, 2008, the FBI sent a letter to NASA, stating among other things that "[t]he results of this examination are 13 indicative of deception" and that "there is a reasonable belief that Su may present a threat to national 14 security." Id. The letter advised that, "It is recommended that NASA independently consider taking 15 precautionary measures regarding Su's access to the U.S. Government facility and information in 16 order to address existing security concerns that Su has been unwilling to clarify." Id. 17

By letter dated June 24, 2008 ("debarment letter"), Robert Dolci ("Dolci"), NASA Ames's Chief of Protective Services, informed Su that his access privileges to the NASA Ames Research 20 FBI/NASA Joint Investigation June 24, 2008 Debarment Letter Center were revoked. AR 81, ECF No. 108-2. The letter stated that, "This order is made pursuant 21 to NASA Procedural Requirement (NPR) 1600.1, Section 1.4.1.*fn1 based upon a determination that 22 your continued presence on NASA property constitutes a security risk." Id. Ken Silverman 23 ("Silverman"), NASA Ames's Chief of Security, delivered the letter to Su at 2:00 p.m. on June 24, 2 2008. Id. Su was escorted from the premises by Silverman and another security employee. Su Dep. 83:7-84:10, ECF No. 193-2. Dolci called Hogle, one of Su's UARC supervisors, to inform 4 him that the debarment letter was issuing. Dolci Dep. 174:2-175:8, ECF No. 193-2. Dolci also 5 directed Silverman to give a copy of the letter to Berry, the Director of UARC. Id. at 173:4-21. 6 Dep. 81:1-6, ECF No. 204-1. Hogle does not recall any instruction to keep the letter confidential. 8

81:20-22. Hogle also emailed a copy of the letter to Stephen Hipskind ("Hipskind"), Chief of the 10 13 and requested that Dolci hold a meeting to discuss the situation. Dolci Dep. 205:8-17, ECF No. 14 203-2. On July 3, 2008, Dolci met with a number of NASA and UARC employees who had worked 15 with Su in the Earth Sciences Division. Id. 16

17 attended, including ten to fifteen UARC employees. Myers Dep. 66:17-67:3, ECF No. 202-1. 18

Myers recalls that Dolci said that it had been determined that Su was a security risk and that he no 19 longer would be allowed on the NASA Ames campus. Id. at 68:4-9. Myers stated that Dolci did 20 not give any further details. Id. at 68:21-24. However, Myers testified that when a number of 21

Chinese-born employees in the Earth Sciences Division asked how they could ensure that they did 22 not suffer Su's fate, Dolci responded something to the effect of, "Don't accept money from another 23 government and then deny it." Id. at 69:9-19. One of Su's UARC colleagues, Bruce Coffland 24

("Coffland"), recalled Dolci saying that Su's debarment was justified by an investigation indicating 25 that Su posed a security risk. Coffland Dep. 38:5-10, ECF No. 201-2. Coffland believed that there 26 was a general awareness among the individuals at the meeting that Su had undergone a polygraph 27 examination, and thought that Dolci might have mentioned the polygraph at the July 3 meeting. Id. 28 at 38:11-39:21, 63:17-64:10. Coffland recalled comments about not accepting money from another Silverman gave a copy of the letter to Hogle with the request that it be passed on to Berry. Hogle 7

Id. at 81:7-14. Hogle told Myers, Su's direct supervisor at UARC, about the debarment letter. Id. at 9

Earth Sciences Division at NASA Ames. Hipskind Dep. 78:20-79:11, ECF No. 193-2.

July 3, 2008 Staff Meeting

United States District Court

Hipskind informed Dolci that the Earth Sciences staff was concerned about Su's removal Witnesses' accounts of this meeting differ. Myers testified that approximately thirty people government, but he thought the comments had been made by Hipskind rather than Dolci. Id. at 2

41:14-23. Hogle had no recollection at all of comments regarding not accepting money from 3 foreign governments. Hogle Dep. 144:19-145:4, ECF No. 204-1. 4

206:5-6, ECF No. 203-2. He had no recollection of stating that Su was considered a security risk; to 6 the contrary, he recalled being asked something along the lines of whether Su was a security risk, 7 and responding that he could not discuss that issue. Id. at 207:19-209:1. He expressed disbelief that 8 he would have said that Su had lost access because he was a security risk, stating that, "That would 9 have been incredibly foolish of me. I didn't need to say that." Id. at 208:5-8. Dolci also denied 10 mentioning the polygraph or the FBI, or saying that one way to avoid Su's fate was not to take money from a foreign government. Id. at 242:14-25.

Dolci testified that approximately fifteen to twenty people attended the meeting. Dolci Dep. No. 199-7. Myers stated that, "The reason for the termination is that your access to the NASA 15

Su's Employment Post-Debarment

On July 3, 2008, Myers sent Su a Notice of Intent to Terminate. Letter of July 3, 2008, ECF Ames facility has been revoked and, in order for you to perform your responsibilities according to 16 the needs of the research task, an access badge is required." Id. On July 17, 2008, Myers sent Su a 17

Rescindment of Notice of Intent to Terminate. Letter of July 17, 2008, ECF No. 199-8. In that 18 letter, Myers stated that "it has been determined that you will be able to continue to work from an 19 alternative work site via a UARC telecommuting agreement." Id. The telecommuting agreement 20 initially was valid through September 14, 2010, but subsequently it was renewed through September 21

Su did not suffer any break in pay or loss of earnings. Su Dep. 214:18-215:3, ECF No. 193- 2. He has not lost any employment-related benefits. Id. at 216:12-217:1. He has continued to 24 receive annual merit increases, excellent performance evaluations, and awards for his work. Id. at 25

207:23. However, he has suffered ongoing mental and emotional distress: he loses concentration, 27 he has begun grinding his teeth, he gets headaches, and he drinks more coffee. Id. at 225:4-228:14. 28

He worries that he would have difficulty finding a new job because of damage to his reputation. Id.

15, 2013. Agrmts., ECF No. 193-2.

204:20-207:12. He believes that his colleagues continue to hold him in high regard. Id. at 206:21-26 at 203:24-204:15. However, Su has not applied for any other jobs since his debarment. Id. 2

Su filed this lawsuit on June 24, 2009, asserting inter alia claims under the Administrative Procedure Act ("APA") and the Fifth Amendment of the United States Constitution; those claims 5 were based upon alleged violations of Su's due process rights with respect to his debarment from 6

NASA Ames. Compl. at ¶¶ 60-86, ECF No. 1. He also asserted violations of his privacy rights as 7 protected by the federal Privacy Act, 5 U.S.C. § 552a, the United States Constitution, and the 8

The Present Lawsuit

California Constitution. Id. at ¶¶ 87-104. The Court dismissed the Fifth Amendment claim and 9 granted summary judgment for Defendants with respect to the APA claim. Order of Dec. 16, 2009, 10 was debarred from NASA Ames is no longer at issue in this lawsuit.

On January 15, 2010, Su filed a separate action arising out of the same facts, asserting a 13 claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, based upon 14 alleged violation of his privacy rights as protected by the California Constitution. Compl. in Case 15

Corrected Consolidated Complaint ("Consolidated Complaint") asserts three claims: (1) a claim 17 against Dolci and other NASA officials (in their official capacities) for violation of the Privacy Act; 18

(2) a claim against Dolci and other NASA officials (in their official capacities) for violation of 19 informational privacy rights under the United States Constitution; and (3) a claim against the United 20

Constitution. Consol. Compl., ECF No. 127-1. Su seeks a name-clearing hearing; injunctive relief; 22 damages; and attorneys' fees and costs. Id. 23

"Summary judgment is proper where no genuine issue of material fact exists and the moving 25 party is entitled to judgment as a matter of law." Samuels v. Holland Amer. Line-USA Inc., 656 26 F.3d 948, 952 (9th Cir. 2011) (citing Fed. R. Civ. P. 56(a)). "In considering a motion for summary 27 judgment, we must draw all reasonable inferences in favor of the nonmoving party." Id. "The 28 central issue is 'whether the evidence presents a sufficient disagreement to require submission to a

ECF No. 63; Order of June 16, 2010, ECF No. 122. Thus the validity of the process by which Su

No. 5:10-cv-00222, ECF No. 1. The Court ultimately consolidated the two actions. The operative 16 States under the FTCA based upon violation of privacy rights protected by the California 21


jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. (quoting 2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251--52 (1986)). 3


A. First Claim for Violation of the Privacy Act 5

"The Privacy Act of 1974, codified in part at 5 U.S.C. § 552a, contains a comprehensive and 6 detailed set of requirements for the management of confidential records held by Executive Branch 7 agencies." Fed. Aviation Admin. v. Cooper, 132 S.Ct. 1441, 1446 (2012). The Act provides that 8 "[n]o agency shall disclose any record which is contained in a system of records by any means of 9 communication to any person, or to another agency, except pursuant to a written request by, or with 10 the prior written consent of, the individual to whom the record pertains" unless certain exceptions apply. 5 U.S.C. § 552a(b). If an agency fails to comply with the Act's requirements "in such a way as to have an adverse effect on an individual," the individual may bring a civil action against the 13 agency. 5 U.S.C. § 552a(g)(1)(D). If the agency's failure to comply is "intentional or willful," the 14 United States may be liable to the individual for "actual damages" as well as reasonable attorneys' 15 fees and costs. 5 U.S.C. § 552a(g)(4). 16

Su claims that Defendants improperly communicated to third parties "records about Dr. Su 17 purportedly related to defendants' determination that Dr. Su is a 'security risk.'" Consol. Compl. ¶ 18 92. Su's briefs and oral argument flesh out this claim, asserting that Dolci*fn2 disclosed a number of 19 facts from protected records generated during the FBI-NASA investigation. See, e.g., Pl.'s Opp'n at 20 UARC that he was a security risk and that he had failed a polygraph examination. Id. Dolci also 22 allegedly implied that Su had taken money from a foreign government.*fn3 Id. 23 24

2 by the Act as a "record" contained in a "system of records"; (2) the agency disclosed the 3 information improperly; (3) the disclosure had an adverse effect on the plaintiff; (4) the disclosure 4 was willful or intentional; and (5) the plaintiff suffered actual damages. Stafford v. Social Sec. 5 (3d Cir. 1992). 7

8 retrieved from protected records and whether Dolci made the statements attributed to him, see Defs.' 9

The elements of a disclosure claim under the Privacy Act are: (1) the information is covered Admin., 437 F. Supp. 2d 1113, 1117 (N.D. Cal. 2006); see also Quinn v. Stone, 978 F.2d 126, 131 6 Although Defendants initially disputed whether the information in question had been Br. at 14-16, 18-19, ECF No. 193, Defendants' counsel conceded these points at the hearing for 10 purposes of this motion only, Hrg. Tr. at 48-49, ECF No. 208. Oral argument focused in large part on whether the disclosures fall within exceptions to the Privacy Act's disclosure bar, whether the disclosures had an ...

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