The Volokh Conspiracy
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$10K Malicious Prosecution Verdict in #TheyLied Lawsuit
That was just returned today by the jury in Cardin v. Olszewski (E.D. Va.). Here is a summary of the plaintiff's allegations, from Judge Liam O'Grady's opinion denying a motion to dismiss:
Plaintiff is a retired Senior Master Sergeant in the United States Air Force ("SMSgt. (Ret.)"). He and Defendant had a romantic relationship that began in Florida in 2016 when Plaintiff was stationed at Hurlburt Field, Florida. They connected via Tinder, an online dating application. In August 2016, SMSgt. (Ret.) Cardin relocated to Travis Air Force Base in northern California, and Defendant followed him there. The two lived together in a rented house in Vacaville, California, for six months from April to October 2017.
The couple often engaged in loud arguments, and Ms. Olszewski has made public statements about severe emotional and physical abuse against her. On October 11, 2017, SMSgt. (Ret.) Cardin moved out and left the relationship. For one month thereafter, Ms. Olszewski asked him to return to the relationship and to marry her. When he returned on November 11 to retrieve his things from the house, he notified Defendant by text message, and arranged for several Air Force colleagues and local police to witness the event. Also on November 11, 2019, Ms. Olszewski texted SMSgt. (Ret.) Cardin the following:
Now im going to support the DA so youll end up with midemeanor
and no guns the rest of ur days.
And im going to file with the air force.
So osi and jag will know. And youll be
Reprimanded. This is what u asked for
By not being capable of being a man
And a decent human being
And a decent human being
And u can forget unc and Syracuse
Since November 2017, Ms. Olszewski has filed multiple reports and claims. Such filings have been in California, Florida, and Virginia. In California, Defendant's claims include two police reports regarding the October 11, 2017 dispute between the Parties. The first was contemporaneous with the dispute on October 11, from which the Vacaville, California police questioned Plaintiff and released him—the County District Attorney did not pursue Olsewski's claims. On November 30, 2017, Defendant filed a second police report regarding the October 11 events. She submitted an altered story from her initial report, and the district attorney, again, took no action against Plaintiff.
Defendant also brought claims to the Air Force and she threatened to pursue a court martial if Plaintiff did not return to the relationship. On November 17, 2017, Defendant filed her first complaint with the Air Force through its Family Advocacy Program. After an investigation and two hearings, December 19, 2017 and January 25, 2018, the Central Registry Board at Travis AFB concluded there was no basis for the physical and emotional abuse claims against SMSgt. (Ret.) Cardin. Plaintiff was reprimanded for threats he made in a screaming match with Defendant that she recorded. Investigators, however, continued reviewing the evidence in an inverse light: for Olsewski's potential emotional abuse of Plaintiff. They found a basis for claims against her and "she is currently banned from occupying jobs on Air Force Bases working with or near children."
Defendant continued with complaints against Plaintiff, first via Rep. John Garamendi, the Congressional representative for the Third District of California. That was referred back to the Air Force where it was determined that the prior investigations had been proper and still stood. On March 27, 2018, Ms. Olszewski wrote to the Secretary of the Air Force alleging habitual domestic abuse by SMSgt. (Ret.) Cardin—again, the Air Force found no wrongdoing in prior conduct or investigations.
Defendant escalated her claims against Plaintiff on April 13, 2018, when she reported to the Air Force Office of Special Investigations ("OSI") that she was pregnant at the time Plaintiff moved out of their shared house in October 2017, and that he physically assaulted her, kicking her in the stomach and causing a miscarriage. This was the first mention of a past pregnancy which Plaintiff maintains never existed. The OSI opened an investigation based on the serious allegation of assault and "killing an unborn child." This suspended Plaintiff's pending retirement from the Air Force and created a profile for SMSgt. (Ret.) Cardin in the National Crime Information Center ("NCIC") Database. The Air Force investigations finally ended after the OSI closed the investigation on August 13, 2018, and the Travis AFB Staff Judge Advocate determined there was insufficient evidence to charge Plaintiff with any crime. SMSgt. (Ret.) Cardin retired from the Air Force with an Honorable Discharge and full benefits.
Ms. Olszewski was living in Santa Rosa County, Florida in August 2018, where she filed for a Protective Order against Plaintiff based on the October 2017 police report in Vacaville. After a full evidentiary hearing, the petition was denied. Defendant then filed for a Protective Order in Solano County, California, claiming she lived there but still residing in Florida based on the home address she provided. Plaintiff was present with counsel at a hearing for this petition on October 12, 2018, where Olsewski appeared without counsel and was unprepared to proceed—the hearing was continued until February 2019, and again until May 2019 for a full trial. In May, proceedings were continued yet again because Defendant had signed a sworn affidavit before a Virginia Magistrate Judge alleging SMSgt. (Ret.) Cardin was stalking her.
Per his plans, Plaintiff moved to the Washington, DC area after retiring from the Air Force. He sought employment and an MBA degree. He applied to Syracuse University and the University of North Carolina for his MBA, and began his MBA studies at Syracuse in July 2018. In December 2018, Booz Allen Hamilton hired Plaintiff in a position that required his Top Secret security clearance and paid an annual salary of $102,900.00. The job was located at the Pentagon, and SMSgt. (Ret.) Cardin rented an apartment near the Huntington Metro station in Alexandria, Virginia. This employment would have been recorded in the military's Joint Personnel Adjudication System ("JPAS") non-public database that tracks security clearance statuses. Plaintiff shared his plans to move to DC and to pursue his MBA with Defendant in 2017.
Defendant left Florida and also moved to Virginia, where she claimed she saw Plaintiff's truck drive by in Alexandria on April 30, 2019. This led to new stalking claims with the Alexandria Police Department, but the claims did not lead to any charges. Shortly thereafter on May 7, 2019, Ms. Olszewski appeared before and made a sworn statement to a Virginia Magistrate Judge in Fairfax County, again seeking a Protective Order based on stalking claims. This time, the Magistrate Judge noted that the California Protective Order was still pending, though Ms. Olszewski did not explain the reason for the continuances. Supposedly without knowledge of Defendant's other failed attempts, and without notice to Plaintiff of the appearance before the Magistrate Judge, the Temporary Protective Order and warrant for SMSgt. (Ret.) Cardin's arrest both issued. He turned himself into the Alexandria Police and spent five days in custody. The prosecution filed a Nolle Prosequi dismissing the charges at a hearing on June 11, 2019. Defendant did not drop her civil claims, however, and there was another hearing on July 10, 2019, when the court dismissed the matter. Ms. Olszewski filed an appeal, which she later withdrew on November 1, 2019.
Just before withdrawing her appeal of the Virginia General District Court decision, Ms. Olszewski swore out a criminal complaint against Plaintiff, this time in Arlington, for harassment—contacting Defendant's employer—and violation of the 2017 Solano County, California protective order. Defendant filed this on October 31, 2019, but Plaintiff was not notified the next day at the appeal hearing. The NCIC database profile Plaintiff alleges was a "practical suspension" of his security clearance, and with the uncertainty surrounding his clearance, he was terminated from the Booz Allen position. SMSgt. (Ret.) Cardin was unable to find comparable employment in the D.C. area, and moved to Maine in June 2019 where he worked at a lower-salary job that did not require a security clearance.
The criminal complaint in Arlington was Ms. Olszewski's fifteenth filing. Because of the complaint, the FBI went to SMSgt. (Ret.) Cardin's home in Maine in February 2020. He then returned to Virginia and turned himself in to the Arlington Police. He was released on his own recognizance to return for trial in March 2020, which was then continued to May 2020. Once before the Court, the prosecution entered another Nolle Prosequi in Plaintiff's favor.
In October 2019, Ms. Olszewski testified at a Congressional Committee hearing through both written and oral statements, resulting in national public media coverage including ABC News, National Public Radio, and an October 23, 2019 feature in The Huffington Post, which was updated on December 14, 2019.
Plaintiff is set to complete his MBA program at Syracuse in December 2020. This is despite Defendant's formal statements to Syracuse about Plaintiff's alleged abuse and assault as well as a formal Title IX complaint against him. Syracuse investigated the complaints, found them to be insufficient under Title IX, and dismissed them. The Petition for a Protective Order in Solano County, California is still outstanding. As of the time of the [Second Amended Complaint], Plaintiff is unemployed….
Here's an excerpt from the court's May 28 opinion that allowed a malicious prosecution based on the Virginia criminal complaint (the one that I think led to the verdict) to go forward:
What Defendant knew to be true or untrue is the central issue of fact when determining the elements of malice and probable cause. If Defendant did indeed see him near her when she claims to have seen him, then she would have probable cause to believe he was in her vicinity in violation of her California protective order; if she did not see him that day, and knew that she had not seen him, then she would lack probable cause to file her criminal complaint. This example shows just one of the remaining genuine issues of material fact that must be determined by a jury before Count II can be resolved. Summary judgment is therefore inappropriate on Count II.
But the court had rejected the malicious prosecution claim based on the complaint to the OSI:
In order to succeed on a claim for malicious prosecution in California, a plaintiff must show (1) the institution of an action (2) without probable cause and (3) with malice, that (4) terminated in a manner favorable to the defendant, (5) resulting in injury in the form of attorney's fees incurred in the defense, mental distress, and/or injury to reputation or social standing.
Plaintiff's claim for malicious prosecution based on the OSI investigation must fail, because he was never prosecuted in connection with that investigation. An investigation alone, which does not lead to proceedings before a court or administrative board with the power to take action adverse to the plaintiff's legally protected interests, is not sufficient to carry a claim for malicious prosecution under California law.
Plaintiff was never brought before a court or an administrative board that had the power to take action adverse to his legally protected interests. An investigation was opened and was later closed. Plaintiff was never arrested, was never charged with a crime, and never faced trial.
And the court had earlier dismissed plaintiff's tortious interference with business expectancy claim:
In Virginia, tortious interference with contract rights or business expectancy requires four elements "to establish a prima facie case are: '(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.'" "Additionally, 'when a contract is terminable at will, a plaintiff, in order to present a prima facie case of tortious interference, must allege and prove not only an intentional interference that caused the termination of the at-will contract, but also that the defendant employed improper methods.'" …
Ultimately, Plaintiff's tortious interference claim cannot survive. The first element—the existence of a valid contractual relationship or business expectancy—is not satisfied pursuant to Virginia law regarding Plaintiff's hiring process. "The evidence of an expectancy must establish expectancy by and between two parties at least, based upon something that is a concrete move in that direction," but Plaintiff only alleges an expectancy between himself and general employment in the D.C. area in the defense community. There is no indication that Ms. Olszewski knew of the opportunity with Booz Allen that came to fruition in December 2018, which is a necessary element to "plead a specific prospective economic advantage or business expectancy."
As such, the tortious interference claim must be based on Defendant's conduct once the Booz Allen contract was in place. But the tortious interference claim is further undermined by the timeline of events. SMSgt. (Ret.) Cardin alleges an unrelenting campaign against him beginning in November 2017, but he acquired his position with Booz Allen more than a year later in December 2018. In other words, Plaintiff both got the job and lost it during the alleged campaign against him, and the SAC does not allege facts linking Defendant to Booz Allen. The red flag associated with his security clearance due to his NCIC profile, Plaintiff alleges, would have been present due to the April-August 2018 OSI investigation and, therefore, present when he joined Booz Allen.
Once Plaintiff had the job, Defendant continued filing complaints against him, but no facts suggest an intent to interfere with the Booz Allen job specifically. SMSgt. (Ret.) Cardin alleges an attack on his security clearance, which began before his retirement, and which would have affected his eligibility for future employment in general. At bottom, the SAC fails to allege conduct related to his employment with Booz Allen that materially differs from Defendant's conduct before or since Plaintiff held that position. "Mere knowledge of a possible result of certain actions, without more, cannot constitute an intentional interference," and the SAC only alleges indirect injury without the requisite knowledge and specific intent.
The allegations related to Plaintiff's MBA likewise cannot support a tortious interference claim. Plaintiff is on track to receive his MBA in December 2020, and it is difficult to characterize his education as a quantifiable contract or identifiable business expectancy. Virginia law requires a breach or termination in the contract or business expectancy, which does not apply to SMSgt. (Ret.) Cardin's forthcoming MBA from Syracuse….