GEORGIA ANDREWS, ET AL., PETITIONERS V. THE VETERANS ADMINISTRATION

   No. 87-1769

   In The Supreme Court of the United States

   Ocotober Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Memorandum For The Respondent In Opposition

   Petitioners contend that the court of appeals erred in concluding
that gross negligence does not constitute intentional or willful
conduct under the Privacy Act of 1974, 5 U.S.C. (& Supp. IV) 552a.

   1. Petitioners are registered nurses employed at a Veterans
Administration (VA) Medical Center in Cheyenne, Wyoming.  In 1984, in
response to a written request by the president of the union local that
served as the exclusive bargaining representative of nurses at the
Medical Center, the VA provided the union with copies of proficiency
reports for petitioners and other nurses.  The union claimed that the
reports were needed "in connection with a grievance the union would
possibly file and to facilitate preparation for upcoming
labor-management negotiations" (Pet. App. B3-B4).  Although the agency
attempted to delete all information from the reports that might tend
to identify the subjects, petitioners and others claimed that their
identities had not been adequately protected.  They brought this
action against the VA and the Medical Center alleging that disclosure
of their personnel records violated the Privacy Act of 1974 (Privacy
Act), 5 U.S.C. (& Supp. IV) 552a.  They sought injunctive relief to
prevent any future disclosures, damages of $1,000 per nurse to
compensate them for mental distress and embarrassment, and attorney's
fees (Pet. App. B6).

   Pursuant to stipulation, the Medical Center was dismissed as a
party, and the case was tried to the district court (Pet. App. B7).
After a two-day trial, the district court concluded (id. at A7-A8)
that identities of 14 of the nurses could be determined from the
contents of the redacted reports and that each had suffered some
degree of anguish, embarrassment or other mental trauma from the
release of the reports.  The district court found (id. at A9) that the
VA employee at the Medical Center who released the reports on the
advice of VA personnel in Washington "acted conscientiously, in good
faith, though inadvertently negligently, in releasing the proficiency
reports in an inadequately sanitized condition." The court further
held (ibid.) that VA personnel in Washington were "grossly negligent"
in failing to train or guide this employee adequately regarding the
release of records subject to the Privacy Act and in directing her
that release was required by the Federal Service Labor-Management
Relations Act (FSLRA), 5 U.S.C. (& Supp. IV) 7101-7135.

   The district court concluded (Pet. App. A9) that gross negligence
was sufficient to establish a willful or intentional violation of the
Privacy Act, as is required for liability under 5 U.S.C.
522a(g)(1)(D)(4).  The district court denied petitioners' request for
injunctive relief (Pet. App. A26) but awarded $1,000 to each
petitioner who could be identified as the subject of a report (Pet.
App. A27).  The court also awarded petitioners $5,000 in attorney's
fees as prevailing parties (Pet. App. A28).

   2. The court of appeals reversed, holding that the district court
erred as a matter of law when it equated gross negligence by the VA
with the intentional or willful conduct required for damages liability
under the Privacy Act.  The court of appeals concluded (Pet. App. B22)
that "the term 'willful or intentional' clearly requires conduct
amounting to more than gross negligence." The court, adopting
definitions from a number of other circuits, held (ibid (internal
quotation marks and citations omitted)) that under the Privacy Act,
intentional or willful conduct must be conduct "so patently egregious
and unlawful that anyone undertaking the conduct should have known it
unlawful," or "conduct committed without grounds for believing it to
be lawful," or "action flagrantly disregarding others' rights under
the Act" or conduct that amounts to, "at the very least, reckless
behavior."

   After reviewing the record, the court of appeals concluded (Pet.
App. B22) that "the VA's conduct falls far short of a 'willful or
intentional' violation of the Privacy Act." "Indeed," the court
stressed (id. at B22-B23), "we find that it falls short of even the
gross negligence standard applied by the district court to that
conduct." The court noted (id. at B23) that the VA was required to
strike a balance between the union's interest in disclosure, as
reflected in the FSLRA, 5 U.S.C. 7114(b)(4)(B), and in the Freedom of
Information Act, 5 U.S.C. (& Supp. IV) 552, on the one hand, and the
privacy rights of the nurses, on the other.  The court stated (Pet.
App. B23) that the VA's unsuccessful efforts to sanitize the records
"indicate(s) some attempt to reconcile the two competing interest."
"We view the inadequacy of those sanitation efforts," the court
concluded (id. at B24), "as indicative of negligence, at most, on the
part of the VA, not the higher level of culpability necessary to
establish liability under the Privacy Act."

   3. Section 552a(g)(1)(D)(4) provides for damages liability on the
part of the United States for a violation of the Privacy Act only if
the agency in question "acted in a manner which was intentional or
willful." Petitioners do not contend that the VA intentionally
violated the Privacy Act.  And, in cases dealing with other statutes,
this Court has consistently interpreted the term "willful" to require
either an intentional violation of a known legal duty or "reckless
disregard for the matter of whether * * * conduct was prohibited by
the statute." McLauglin v. Richland Shoe Co., No. 86-1520 (May 16,
1988), slip op. 5-6.  See also Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 125-130 (1985);  United States v. Pomponio, 429 U.S. 10,
12 (1976);  United States v. Bishop, 412 U.S. 346 360 (1973);  United
States v. Murdock, 290 U.S. 389, 394 (1933).  It is not parsing too
finely to say that "reckless disregard" for whether conduct is
prohibited by the statute is a more stringent standard of proof than
negligence, however gross.  Bishop, 412 U.S. at 361.

   This reading of the Privacy Act is also borne out by its
legislative history.  Congress explained the term "intentional or
willful" as used in the Privacy Act as follows:

      In a suit for damages, the (compromise) amendment reflects a
      belief that a finding of willful, arbitrary, or capricious
      action is too harsh a standard of proof for an individual to
      exercise the rights granted by this legislation.  Thus, the
      standard for recovery of damages was reduced to "willful or
      intentional" action by an agency.  On a continuum between
      negligence and the very high standard of willful, arbitrary, or
      capricious conduct, this standard is viewed as only somewhat
      greater than gross negligence.

   Analysis of House and Senate Compromise Amendments to the Federal
Privacy Act, reprinted in 120 Cong. Rec. 40406 (1974) (Pet. App. B20).
 Petitioners (Pet. 9) read this explanation as evidence that Congress
equated willful or intentional action with gross negligence.  But the
plain words that Congress used in explanation of the phrase
demonstrate that gross negligence is not the equivalent of intentional
and willful conduct under the Privacy Act;  rather, the standard is
"somewhat greater than gross negligence."

   4. Petitioners further contend (Pet. 10-14) that the decision below
conflicts with decisions of the Fifth and D.C. Circuits.  But although
both those courts have suggested in passing that the "intentional or
willful" standard resembles gross negligence, neither has expressly
held that gross negligence alone satisfies that standard.  In Chapman
v. National Aeronautics and Space Admin., 736 F.2d 238, 243 (5th Cir.
1984) (per curiam), the court suggested that an "unlawful intent" or
"ulterior motive" may be necessary to show that an agency violated the
statute in an intentional or willful manner.  And the D.C. Circuit has
held that willful or intentional conduct under the Privacy Act
encompasses action that is "so 'patently egregious and unlawful' that
anyone undertaking the conduct should have known it 'unlawful,'"
Laningham v. United States Navy, 813 F.2d 1236, 1242 (1987) (citations
omitted), or conduct that is committed "without grounds for believing
it to be lawful" or action "flagrantly disregarding others' rights
under the Act." Albright v. United States, 732 F.2d 181, 189 (1984).

   Far from parting company with these cases, the court below
expressly relied upon them (see Pet. App. B21-B22) in formulating the
standard it applied in this case.  Furthermore, the decision below is
also consistent with the holdings of the remaining courts of appeals
that have addressed this question.  See Moskiewicz v. United States
Dep't of Agricluture, 791 F.2d 561, 564 (7th Cir. 1986);  Wisdom v.
Department of Housing and Urban Development, 713 F.2d 422, 425 (8th
Cir. 1983), cert. denied, 465 U.S. 1021 (1984).  In any event,
petitioners simply ignore the fact that the court of appeals held
(Pet. App. B22-B23) that they were not entitled to prevail even if
gross negligence could satisfy the intentional or willful standard.
Accordingly, the judgment below would have been the same even if
petitioners' standard had been adopted.

   The court of appeals properly noted (Pet. App. B23) that the VA
attempted to strike a balance between the interest of the union in
disclosure and the interest of petitioners in preserving their
privacy.  Even if the VA struck the wrong balance, and negligently
redacted the documents it disclosed, the negligence did not rise to
the level of culpability necessary to establish a "willful or
intentional" violation of the Privacy Act.

   For the foregoing reasons, it is respectfully submitted that the
petition for a writ of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JULY 1988