The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on cross motions for summary judgment. Defendant's Motion for Summary Judgment (d/e 6); Plaintiff's Cross-Motion for Summary Judgment (d/e 8). In 2006, Major Harry M. Schmidt of the Illinois Air National Guard filed a two-count Complaint (d/e 1) against the United States Air Force, seeking declaratory relief and damages pursuant to the Privacy Act, 5 U.S.C. § 552a. For the reasons set forth below, Defendant's Motion for Summary Judgment is allowed, and Plaintiff's Cross-Motion for Summary Judgment is denied.
Major Schmidt is a graduate of the U.S. Naval Academy. In 2001, after serving for several years as an F-18 pilot and instructor, Schmidt left the Navy for a full-time position with the Illinois Air National Guard's 170th Fighter Squadron. Schmidt served as the Squadron's weapon and tactics officer and a fighter weapons instructor.
In March 2002, the 170th Fighter Squadron was deployed to Southwest Asia in support of Operation Enduring Freedom. Operation Enduring Freedom included military operations in Afghanistan and was begun in response to the terrorist attacks of September 11, 2001. Major William Umbach served as the deployed Squadron Commander.
On April 17, 2002, Major Schmidt and Major Umbach were flying a mission, during which Umbach was acting as the flight lead. At the same time, unbeknownst to Schmidt and Umbach, members of the Canadian Light Infantry were conducting a nighttime live-fire exercise at a firing range at the former headquarters of Osama Bin Laden, an area known as Tarnak Farms. Major Schmidt and Major Umbach reported that they observed surface to air fire in the Tarnak Farms' area. Major Schmidt believed that Major Umbach had been engaged by a surface to air weapon system. As a result, Major Schmidt declared that he was engaging the ground target in "self-defense" and dropped a laser guided bomb on the source of the perceived surface to air fire. The bomb killed several members of the Canadian Light Infantry who were involved in the night live-fire training, and it injured several others.
The Air Force investigated the friendly-fire incident and, in September 2002, initiated criminal charges under the Uniform Code of Military Justice (UCMJ) against Major Schmidt and Major Umbach. Beginning in September 2002, Major Schmidt was represented by Lieutenant Colonel Clayton Moushon, Staff Judge Advocate at the 183rd Fighter Wing. Major Schmidt also retained a civilian attorney, Charles Gittins, to aid in his defense. A public hearing/investigation pursuant to Article 32 of the UCMJ was held during January 2003. See 10 U.S.C. § 832.*fn1 The Article 32 hearing was generally open to the public with minor exceptions involving discussions of classified information. During the Article 32 hearing, the Public Affairs Office at Barksdale Air Force Base set up a media facility to accommodate the approximately 100 journalists from the print and broadcast media who were covering the proceeding. The Air Force also set up a publicly accessible web site containing information about the incident. During the Article 32 hearing, the prosecution approached Major Schmidt and his counsel regarding an alternative disposition of the case. Major Schmidt declined. According to Colonel John Odom, the lead prosecutor in the court-martial case, during the Article 32 investigation Major Schmidt's civil attorney, Charles Gittins, made numerous public statements on behalf of Major Schmidt, including conducting daily press briefings at which he discussed the day's proceedings and the defense's positions. Defendant's Motion for Summary Judgment, Govt Ex. 3, Declaration of John S. Odom (Odom Dec.), ¶ 5. In Odom's opinion, Gittins' comments were designed to portray Major Schmidt as a victim in the incident. Id.
In March 2003, the Article 32 Investigating Officer submitted his report to the Commander of the Eighth Air Force, General Bruce Carlson, recommending that the criminal charges against Major Schmidt and Major Umbach be dismissed. See Plaintiff's Reply Brief in Support of Cross-Motion for Summary Judgment (d/e 16), Pl. Ex. 17. General Carlson determined that the charges should be disposed of through the non-judicial punishment procedures set out in Article 15 of the UCMJ. See 10 U.S.C. § 815. On June 19, 2003, Major Umbach received a letter of reprimand from General Carlson. The text of Major Umbach's letter of reprimand was not released to the public or posted on the Eighth Air Force Tarnak Farms' website. See Reply in Support of Defendant United States Air Force's Motion for Summary Judgment (Doc. 6), and Response, in Opposition to Plaintiff Schmidt's Motion for Summary Judgment (Doc. 8) (d/e 15) (Government's Reply/Response), p. 8 (admitting Undisputed Material Fact No. 8 from Plaintiff's Cross-Motion for Summary Judgment). Also in June 2003, General Carlson offered Major Schmidt the opportunity to dispose of his case in an Article 15 administrative proceeding for dereliction of duty. Major Schmidt again declined non-judicial punishment and demanded trial by court-martial.
After approximately one year of additional proceedings, Colonel Odom informed Lieutenant Colonel Moushon that the Air Force was still amendable to disposing of the charges without a trial. Lieutenant Colonel Moushon proposed a resolution that involved an administrative letter of reprimand, rather than non-judicial punishment under Article 15, and a joint press release announcing the settlement. Odom Dec., ¶ 8. According to Colonel Odom, the Air Force would only approve a negotiated disposition if it involved non-judicial punishment. Colonel Odom offered to reinstate the opportunity to dispose of the case in an Article 15 proceeding for dereliction of duty. Colonel Odom asserts that he further informed Lieutenant Colonel Moushon that the Air Force would not consider a joint press release, but that they could discuss the contents of the Air Force's press release. Id. Lieutenant Colonel Moushon communicated this offer to Major Schmidt.
According to Lieutenant Colonel Moushon, Major Schmidt was not adverse to disposing of the case in an Article 15 proceeding as long as certain conditions were met. Plaintiff's Response to Motion for Summary Judgment (d/e 7), Pl. Ex. 2, Declaration of Lieutenant Colonel Clayton W. Moushon (Moushon Dec.), ¶ 7. Moushon avers that the terms upon which Major Schmidt would agree to a disposition by non-judicial punishment were as follows: (1) Major Schmidt would agree to accept non-judicial proceedings as offered in June 2003; (2) at the completion of the non-judicial proceedings, the court-martial charges would be dismissed with prejudice; (3) Major Schmidt would execute a Letter of Intent to accept a non-flying position in the Illinois Air National Guard; (4) the Convening Authority would execute a letter to U.S. Air Force Headquarters, confirming the essential terms of the agreement; and (5) the Convening Authority would not take any action to withdraw Major Schmidt's federal recognition. Id. Major Schmidt acknowledges that his initial offer for non-judicial punishment contained these terms. Plaintiff's Response to Motion for Summary Judgment (d/e 7), Pl. Ex. 3, Declaration of Major Harry M. Schmidt (Schmidt Dec.), ¶ 17.
At some point in June 2004, Major Schmidt formally requested that General Carlson allow him to change his decision to proceed to court-martial and to accept Article 15 punishment. General Carlson granted Schmidt's request. At that point, the Public Affairs office issued a press release. Defendant's Motion for Summary Judgment, Govt Ex. 7, Declaration of Major Denise A. Kerr (Kerr Dec.), ¶ 7. Major Denise Kerr, the Chief of Public Affairs for Headquarters Eighth Air Force, asserts that the Public Affairs office "did not receive a significant number of inquiries" after this press release. Id. Kerr believes that this was due to the fact that, first, the Public Affairs office had already provided the press with a thorough explanation of the non-judicial punishment process and, second, the press release announced only that the non-judicial proceedings would commence.
The parties' accounts of what transpired next differ. According to Colonel Odom, the counterproposal that he presented to Lieutenant Colonel Moushon did not mention a press release. Odom Dec., ¶ 9. Odom asserts that there were no further discussions regarding a press release, although he does not identify a time frame. Id. Odom contends that at no time was he aware that Major Schmidt would not accept non-judicial punishment if the resolution was to be made public, either in whole or in part. Id.
According to Major Schmidt, the Air Force's initial offer for alternative disposition included a waiver by Schmidt of his rights under the Privacy Act as it related to a press release regarding the Tarnak Farms' case. Schmidt Dec., ¶ 18. Schmidt asserts that he was uncomfortable giving the Air Force complete control over press releases in his case because he feared that the Air Force's press releases would be biased in an effort to place full responsibility for the Tarnak Farms' incident on Schmidt. Id. Schmidt avers that he discussed this concern with Lieutenant Colonel Moushon and requested that the settlement contain provisions for a joint press release. Id.
According to Lieutenant Colonel Moushon, in negotiating the settlement, Lieutenant Colonel Moushon and Colonel Odom discussed how the settlement would be announced to the public. Moushon Dec., ¶ 8. Moushon asserts that the men "agreed that a 'joint' press release would be in the best interest of both parties." Id. According to Moushon, "[i]n order to release a statement to the press relating to the settlement of the case, it would be necessary for Maj Schmidt to make a partial waiver of his rights under the Privacy Act." Id. Colonel Odom forwarded Lieutenant Colonel Moushon a draft proposal that contained an unconditional waiver of Schmidt's rights under the Privacy Act. Colonel Odom informed Moushon that an unconditional waiver was required for two reasons. Id. First, Odom was concerned that Mr. Gittins would make a press release claiming that the settlement agreement included more than it actually provided. In that event, the Government would not be able to contradict Gittins' statements unless it could release the terms of the settlement agreement. Secondly, Odom expressed concern that Air Force regulations would prohibit release of information to the victims and their families. Id.
Lieutenant Colonel Moushon asserts that he understood Colonel Odom's concerns, but disagreed with Odom's opinion that an unconditional waiver of the Privacy Act was required. Moushon Dec., ¶ 9. Moushon informed Odom that Major Schmidt would be willing to execute "a partial waiver of the Privacy Act to allow the Government to confirm the terms of the settlement agreement only in a press release." Id. According to Moushon, Odom asked him to draft the proposed partial waiver, which Moushon did. Moushon drafted settlement documents which included a Memorandum from Major Schmidt. The Memorandum included the following proposed partial waiver of the Privacy Act: "I hereby waive my rights under the Privacy Act as it relates to a joint press release regarding the Tarnak Farms case." Id. Moushon believed that a joint press release would prevent either party from slanting the terms of the settlement agreement or adding their own spin to the settlement. Id. Moushon asserts that he and Colonel Odom agreed that this would be an acceptable resolution. Id.
Lieutenant Colonel Moushon asserts that, after he forwarded the proposed settlement to Colonel Odom, he received a telephone call from Odom, who stated that the concept of a joint press release was not acceptable to the Air Force. Moushon Dec., ¶ 10. Moushon asked Colonel Odom to clarify this position so that Moushon could pass it along to Major Schmidt. On June 21, 2004, Colonel Odom sent an e-mail to Lieutenant Colonel Moushon regarding the settlement discussions. ...