The Privacy Act provides for four separate and distinct civil causes of action, see 5 U.S.C. § 552a(g), two of which provide for injunctive relief -- amendment lawsuits under (g)(1)(A) and access lawsuits under (g)(1)(B) -- and two of which provide for compensatory relief in the form of monetary damages -- accuracy lawsuits under (g)(1)(C) and lawsuits for other damages under (g)(1)(D).
It is worth noting that several courts have stated that the remedies provided for by the Privacy Act are exclusive, in that a violation of the Act does not provide for any relief in the course of a federal criminal prosecution, see United States v. Bressler, 772 F.2d 287, 293 (7th Cir. 1985) ("[E]ven if the defendant had made a sustainable argument [under 5 U.S.C. § 552a(e)(3)], the proper remedy is a civil action under Section 552a(g)(1) of the Privacy Act, not dismissal of the indictment."); United States v. Bell, 734 F.2d 1315, 1318 (8th Cir. 1984) (Even if appellant's (e)(3) argument was sufficiently raised at trial, "it cannot be a basis for reversing his conviction."); United States v. Gillotti, 822 F. Supp. 984, 989 (W.D.N.Y. 1993) ("[T]he appropriate relief for a violation of Section 552a(e)(7) is found in the statute and allows for damages as well as amendment or expungement of the unlawful records . . . there is nothing in the statute itself, nor in any judicial authority, which suggests that its violation may provide any form of relief in a federal criminal prosecution."), nor is failure to comply with the Privacy Act a proper defense to summons enforcement, see, e.g., United States v. McAnlis, 721 F.2d 334, 337 (11th Cir. 1983) (compliance with 5 U.S.C. § 552a(e)(3) held not prerequisite to enforcement of summons); United States v. Berney, 713 F.2d 568, 572 (10th Cir. 1983) (Privacy Act "contains its own remedies for noncompliance"); United States v. Harris, No. 98-3117, 1998 WL 870351, at *2 (7th Cir. Dec. 11, 1998) (citing McAnlis and Berney and rejecting "irrelevant argument that . . . the Privacy Act . . . guarantee[s] [appellant] answers to his questions before he has to comply with the IRS summons"); Adams v. IRS, No. 2:98 MC 9, 1999 U.S. Dist. LEXIS 16018, at *15 (N.D. Ind. Sept. 29, 1999) (compliance with Privacy Act not prerequisite to enforcement of IRS summons); Reimer v. United States, 43 F. Supp. 2d 232, 237 (N.D.N.Y. 1999) (rejecting argument to quash summons on (e)(3) grounds because requirements of subsection (e)(3) "are not applicable to summons issued pursuant to 26 U.S.C. §§ 7602, 7609"); Connell v. United States, No. 1:98 CV 2094, 1998 U.S. Dist. LEXIS 20149, at *9 (N.D. Ohio Dec. 7, 1998) (citing McAnlis and stating: "That the Respondent did not comply with the Privacy Act, 5 U.S.C. § 552a(e)(3)(A)-(D), is not a basis upon which to quash the summonses at issue."); see also Phillips v. United States, No. 98-3128, 1999 WL 228585, at *2 (6th Cir. Mar. 10, 1999) (holding Privacy Act notice requirements inapplicable to issuance of IRS summons, as 26 U.S.C. § 7852(e) "plainly states that the provisions of the Privacy Act do not apply, directly or indirectly, to assessing the possibility of a tax liability"); Schwartz v. Kempf, No. 4:02-cv-198, 2004 U.S. Dist. LEXIS 2238, at *11 (W.D. Mich. Jan. 22, 2004) (same); Reimer v. United States, No. CV-F-99-5685, 1999 U.S. Dist. LEXIS 15282, at *10 (E.D. Cal. Sept. 8, 1999) (same); cf. Estate of Myers v. United States, 842 F. Supp. 1297, 1300-02 (E.D. Wash. 1993) (although ultimately applying § 7852(e)'s jurisdictional bar to dismiss Privacy Act claim, nevertheless recognizing applicability of subsection (e)(3) to IRS summons, and possibility "that a summons may be judicially enforceable yet not meet the disclosure requirements of the Privacy Act"). It has also been held that "[b]ecause the Privacy Act provides its own remedy for an agency's improper refusal to process a proper request for information, [a plaintiff] is not entitled to mandamus relief." Kotmair v. Netsch, No. 93-490, 1993 U.S. Dist. LEXIS 10781, at *5 (D. Md. July 21, 1993); see also Carrick v. Disclosure Specialist Brenda Spencer, IRS, No. 3:02MC95-V, 2003 U.S. Dist. LEXIS 11706, at **3-4 (W.D.N.C. June 6, 2003) (magistrate's recommendation) (denying petition for writ of mandamus as "the Privacy Act establishes a procedure for filing suit in federal court if an agency refuses to comply with a request" and petitioner has not "shown, or attempted to show, that this procedure is inadequate to obtain the relief requested"), adopted (W.D.N.C. Sept. 2, 2003); cf. Graham v. Hawk, 857 F. Supp. 38, 41 (W.D. Tenn. 1994) ("[T]he existence of remedies under the Privacy Act [for alleged inaccuracy] preclude plaintiff's entitlement to mandamus, even though his claim under that act is substantively meritless."), aff'd, 59 F.3d 170 (6th Cir. 1995) (unpublished table decision).
In the context of civil remedies, the only court of appeals to consider the issue has held that the Privacy Act "does not limit the remedial rights of persons to pursue whatever remedies they may have under the [Federal Tort Claims Act]" for privacy violations consisting of record disclosures. O'Donnell v. United States, 891 F.2d 1079, 1084-85 (3d Cir. 1989); cf. Alexander v. FBI, 971 F. Supp. 603, 610-11 (D.D.C. 1997) (citing O'Donnell and holding that Privacy Act does not preempt causes of action under local or state law for common law invasion of privacy tort). But see Hager v. United States, No. 86-3555, slip op. at 7-8 (N.D. Ohio Oct. 20, 1987) ("Because the Privacy Act does have its own enforcement mechanism" for plaintiff's claims relating to the disclosure of confidential information, "it preempts the FTCA."); cf. Tripp v. United States, 257 F. Supp. 2d 37, 45 (D.D.C. 2003) (dismissing plaintiff's claim under the FTCA for negligent disclosure of private information, as plaintiff could point to no "duty analogous to that created by the federal Privacy Act under local law to state a claim upon which relief [could] be granted"); Fort Hall Landowners Alliance, Inc. v. Bureau of Indian Affairs, No. 99-052, slip op. at 16 (D. Idaho Mar. 29, 2001) (finding that common law obligations "not to disclose personal information" were "preempted by the Privacy Act").
It should also be noted that the Court of Appeals for the District of Columbia Circuit has held that the Feres doctrine, which holds that "'the [g]overnment is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service'" does not apply to the Privacy Act. Cummings v. Dep't of the Navy, 279 F.3d 1051, 1053-58 (D.C. Cir. 2002) (quoting Feres v. United States, 340 U.S. 135, 146 (1950), and concluding that "without regard to the identity of the plaintiff or the agency she is suing, the [Privacy Act] plainly authorizes injunctive relief . . . and monetary relief," which remains "the best evidence of congressional intent" that the Feres doctrine "does not extend to Privacy Act lawsuits brought by military personnel against the military departments"), rev'g 116 F. Supp. 2d 76 (D.D.C. 2000); see also Chang v. United States Dep't of the Navy, No. 01-5240, slip op. at 1 (D.C. Cir. July 8, 2002) (citing Cummings to vacate district court opinion), vacating & remanding per curiam No. 00-0783 (D.D.C. May 17, 2001) (holding suit to be barred by Feres doctrine).
Recently, several courts of appeals have held that the Privacy Act's remedies do preclude an action against individual employees for damages under the Constitution in a "Bivens" suit. See Griffin v. Ashcroft, No. 02-5399, 2003 WL 22097940, at *2 (D.C. Cir. Sept. 3, 2003) (per curiam) (affirming "district court's dismissal of appellant's constitutional claims based on the BOP's alleged maintenance and use of inaccurate information because such claims are encompassed within the Privacy Act's comprehensive remedial scheme"); Chung v. United States Dep't of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003) (affirming district court's dismissal of plaintiff's Bivens claims "because . . . they are encompassed within the remedial scheme of the Privacy Act"); Downie v. City of Middleburg Hts., 301 F.3d 688, 696 (6th Cir. 2002) (agreeing with district court that "because the Privacy Act is a comprehensive legislative scheme that provides a meaningful remedy for the kind of wrong [plaintiff] alleges that he suffered, we should not imply a Bivens remedy"); see also Newmark v. Principi, 262 F. Supp. 2d 509, 518-19 (E.D. Pa. 2003); Khalfani v. Sec'y, VA, No. 94-CV-5720, 1999 WL 138247, at *7 (E.D.N.Y. Mar. 10, 1999), appeal dismissed for appellant's failure to comply with scheduling order, No. 99-6140 (2d Cir. Oct. 10, 2000); Fares v. INS, 29 F. Supp. 2d 259, 262 (W.D.N.C. 1998); Sullivan v. USPS, 944 F. Supp. 191, 195-96 (W.D.N.Y. 1996); Hughley v. Fed. Bureau of Prisons, No. 94-1048, slip op. at 5 (D.D.C. Apr. 30, 1996), aff'd sub nom. Hughley v. Hawks, No. 96-5159, 1997 WL 362725 (D.C. Cir. May 6, 1997); Blazy v. Woolsey, No. 93-2424, 1996 WL 43554, at *1 (D.D.C. Jan. 31, 1996), subsequent decision sub nom. Blazy v. Tenet, 979 F. Supp. 10, 27 (D.D.C. 1997), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Williams v. VA, 879 F. Supp. 578, 585-87 (E.D. Va. 1995); Mangino v. Dep't of the Army, No. 94-2067, 1994 WL 477260, at *9 (D. Kan. Aug. 24, 1994); Mittleman v. United States Treasury, 773 F. Supp. 442, 454 (D.D.C. 1991); see also Patterson v. FBI, 705 F. Supp. 1033, 1045 n.16 (D.N.J. 1989) (to extent that First Amendment claim involves damages resulting from maintenance of records, "such an action is apt to be foreclosed by the existence of the Privacy Act"), aff'd, 893 F.2d 595 (3d Cir. 1990). But see Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539, 564-75 (S.D.N.Y. 1980) (permitting Bivens claim, but relying on fact that plaintiff's claims related in part to events predating effective date of Privacy Act and, more significantly, so holding without benefit of subsequent Supreme Court precedent bearing on issue); see also Alexander, 971 F. Supp. at 610-11 (agreeing with outcome in Blazy and Mittleman, but concluding that their logic does not extend to prohibit recovery under local law for torts committed by individuals who, although government employees, were acting outside scope of their employment; holding that "Privacy Act does not preempt the common law invasion of privacy tort").
In the context of equitable relief under the Administrative Procedure Act, 5 U.S.C. § 706 (2000), for claims governed by the Privacy Act, the Supreme Court has recently stated that "[t]he Privacy Act says nothing about standards of proof governing equitable relief that may be open to victims of adverse determinations or effects, although it may be that this inattention is explained by the general provisions for equitable relief within the [APA]." Doe v. Chao, 124 S. Ct. 1204, 1208 n.1 (2004); cf. OMB Guidelines, 40 Fed. Reg. 28,948, 28,968 (July 9, 1975) (stating in its Civil Remedies section that "[a]n individual may seek judicial review under other provisions of the Administrative Procedure Act (APA)"). Indeed, under the APA, the Court of Appeals for the District of Columbia Circuit enjoined the Veterans Administration from disclosing medical records about an individual pursuant to a routine use that "would permit routine disclosure pursuant to a grand jury subpoena" as that would "circumvent the mandates of the Privacy Act." Doe v. Stephens, 851 F.2d 1457, 1466-67 (D.C. Cir. 1988) (although plaintiff did "not premise his claim for equitable relief on the APA," the court considered the claim under the APA, rather than resolving the plaintiff's constitutional claims, in order to further the principle of "avoiding constitutional questions if at all possible") (discussed above under subsections (b)(3) and (b)(11)); see also Recticel Foam Corp. v. United States Dep't of Justice, No. 98-2523, slip op. at 9 (D.D.C. Jan. 31, 2002), appeal dismissed, No. 02-5118 (D.C. Cir. Apr. 25, 2002) (holding that court had jurisdiction under APA to enjoin FBI from disclosing investigative records in order to prevent future violation of subsection (b) of Privacy Act); Doe v. Herman, No. 97-0043, 1998 WL 34194937, at **4-7 (W.D. Va. Mar. 18, 1998) (invoking APA to issue preventative injunction in response to Privacy Act claim); cf. Haase v. Sessions, 893 F.2d 370, 374 n.6 (D.C. Cir. 1990) (stating in dicta that "[i]t is not at all clear to us that Congress intended to preclude broad equitable relief (injunctions) to prevent (e)(7) violations . . . [a]nd in the absence of such explicit intention, by creating a general cause of action (under (g)(1)(D)) for violations of the Privacy Act, Congress presumably intended the district court to use inherent equitable powers"); Doe v. Veneman, 230 F. Supp. 2d 739, 752 (W.D. Tex. 2002) (enjoining release of records in system of records because release would be violation of FOIA and Privacy Act) (reverse FOIA suit); AFL-CIO v. Fed. Election Comm'n, 177 F. Supp. 2d 48, 61-64 (D.D.C. 2001) (although not reaching merits of Privacy Act claims, finding disclosure contrary to law where Exemption 7(C) "bar[s] release" of information under APA), aff'd on other grounds, 333 F.3d 168 (D.C. Cir. 2003). But cf. Andreozzi v. Dep't of Defense, No. 03-5304, 2004 WL 1083036, at *2 (D.C. Cir. May 13, 2004) (per curiam) (holding that plaintiff's APA claim for expunction of records "lacked merit"; denying plaintiff's Privacy Act claim for expunction or amendment of records as the agency had exempted "the relevant system of records from the access, amendment, and civil penalty provisions of the Act," and plaintiff failed to "request expunction or amendment at the agency level prior to filing suit"); Tripp v. DOD, 193 F. Supp. 2d 229, 238-40 (D.D.C. 2002) (holding that a "plaintiff [cannot] bring an independent APA claim predicated on a Privacy Act violation"); Mittleman v. United States Treasury, 773 F. Supp. 442, 449 (D.D.C. 1991) (finding that plaintiff's APA claim for failure to follow agency regulations and to provide plaintiff with hearing or other opportunity to rebut allegations against her in various government reports "is, in part, simply a restatement of her Privacy Act claim . . . [for which] Congress has provided plaintiff with statutory schemes and remedies through which she may seek relief").
It also has been held that a court may order equitable relief in the form of the expungement of records either in an action under the Privacy Act or in a direct action under the Constitution. See, e.g., Doe v. United States Air Force, 812 F.2d 738, 741 (D.C. Cir. 1987); Smith v. Nixon, 807 F.2d 197, 204 (D.C. Cir. 1986); Hobson v. Wilson, 737 F.2d 1, 65-66 (D.C. Cir. 1984); Ezenwa v. Gallen, 906 F. Supp. 978, 986 (M.D. Pa. 1995); cf. Dickson v. OPM, 828 F.2d 32, 41 (D.C. Cir. 1987) (suggesting that it is not resolved "whether as a general proposition, the Privacy Act defines the scope of remedies available under the Constitution"). See also the discussion of expungement of records under "Amendment Lawsuits," below.
In addition, for discussions of class certifications for claims brought under the Privacy Act, see Rice v. United States, 211 F.R.D. 10, 14 (D.D.C. 2002), Fort Hall Landowners Alliance, Inc. v. Bureau of Indian Affairs, No. 99-052, slip op. at 10 (D. Idaho Aug. 16, 2002), Baker v. Runyon, No. 96-2619, 1997 WL 232606, at *4 (N.D. Ill. May 2, 1997), and Ingerman v. IRS, No. 89-5396, 1990 WL 10029523, at *2 (D.N.J. July 16, 1990), for examples of cases granting class certification, and Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002), aff'd on other grounds, 124 S. Ct. 1204 (2004), Schmidt v. VA, 218 F.R.D. 619, 637 (E.D. Wis. 2003), and Lyon v. United States, 94 F.R.D. 69, 76 (W.D. Okla. 1982), for examples of cases denying class certification. Compare also Covert v. Harrington, 876 F.2d 751, 752 (9th Cir. 1989), Andrews v. VA, 838 F.2d 418, 419 (10th Cir. 1988), Parks v. IRS, 618 F.2d 677, 679 (10th Cir. 1980), and Romero-Vargas v. Shalala, 907 F. Supp. 1128, 1131 (N.D. Ohio Oct. 13, 1995), for cases involving multiple plaintiffs.
"Whenever any agency . . . makes a determination under subsection (d)(3) . . . not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection [the individual may bring a civil action against the agency]." 5U.S.C. § 552a(g)(1)(A).
-- Exhaustion of administrative remedies -- through pursuit of an amendment request to the agency and a request for administrative review, see 5 U.S.C. § 552a(d)(2)-(3) -- is a prerequisite to a civil action for amendment of records.
Comment:
The exhaustion principle is well established in the Privacy Act case law. See, e.g., Jernigan v. Dep't of the Air Force, No. 97-35930, 1998 WL 658662, at *2 (9th Cir. Sept. 17, 1998); Quinn v. Stone, 978 F.2d 126, 137-38 (3d Cir. 1992); Hill v. United States Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam); Nagel v. HEW, 725 F.2d 1438, 1441 (D.C. Cir. 1984); Pontecorvo v. FBI, No. 00-1511, slip op. at 21-22 (D.D.C. Sept. 30, 2001); Murphy v. United States, 121 F. Supp. 2d 21, 28 (D.D.C. 2000), aff'd per curiam, 64 Fed. Appx. 250 (D.C. Cir. 2003); M.K. v. Tenet, 99 F. Supp. 2d 12, 20 (D.D.C. 2000); Blazy v. Tenet, 979 F. Supp. 10, 18-19 (D.D.C. 1997), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Olivares v. NASA, 882 F. Supp. 1545, 1552 (D. Md. 1995), aff'd, 103 F.3d 119 (4th Cir. 1996) (unpublished table decision); Jerez v. United States Dep't of Justice, No. 94-100, slip op. at 8-9 (D. Ariz. Feb. 2, 1995); Hass v. United States Air Force, 848 F. Supp. 926, 930 (D. Kan. 1994); Gergick v. Austin, No. 89-0838-CV-W-2, 1992 U.S. Dist. LEXIS 7338, at **13-16 (W.D. Mo. Apr. 29, 1992), aff'd, No. 92-3210 (8th Cir. July 9, 1993); Simon v. United States Dep't of Justice, 752 F. Supp. 14, 23 & n.6 (D.D.C. 1990), aff'd, 980 F.2d 782 (D.C. Cir. 1992); Campbell v. USPS, No. 86-3609, 1990 WL 36132, at *4 (E.D. La. Mar. 28, 1990); Green v. USPS, No. 88-0539-CES, 1989 U.S. Dist. LEXIS 6846, at **7-8 (S.D.N.Y. June 19, 1989); Tracy v. Soc. Sec. Admin., No. 88-C-570-S, slip op. at 3-4 (W.D. Wis. Sept. 23, 1988); Ertell v. Dep't of the Army, 626 F. Supp. 903, 909-10 (C.D. Ill. 1986); Freude v. McSteen, No. 4-85-882, slip op. at 4-5 (D. Minn. Oct. 23, 1985), aff'd, 786 F.2d 1171 (8th Cir. 1986) (unpublished table decision); Beaver v. VA, No. 1-82-477, slip op. at 2 (E.D. Tenn. Apr. 6, 1983); Ross v. USPS, 556 F. Supp. 729, 735 (N.D. Ala. 1983); cf. Williams v. Bezy, No. 03-4008, 2004 WL 959730, at *1 (6th Cir. May 3, 2004) (affirming district court's dismissal of plaintiff's subsection (e)(5) claim for failure to exhaust administrative remedies without specifically discussing whether claim was brought under subsection (g)(1)(A) or subsection (g)(1)(C)). But cf. Duke v. United States, 305 F. Supp. 2d 478, 488 (E.D. Pa. 2004) (finding that "although plaintiff [had] not exhausted administrative remedies" court had "subject matter jurisdiction over this claim" because "this exhaustion requirement is not a jurisdictional requirement" but a "practical" one). It also has been held that a plaintiff cannot "boot-strap" an access claim under (g)(1)(B) into a (g)(1)(A) amendment violation, even though she argued that by denying her request for access the agency had prevented her from exercising her right to request amendment. See Smith v. Cont'l Assurance Co., No. 91 C 0963, 1991 WL 164348, at *2 (N.D. Ill. Aug. 22, 1991); accord Mumme v. United States Dep't of Labor, 150 F. Supp. 2d 162, 173 (D. Me. 2001), aff'd, No. 01-2256 (1st Cir. June 12, 2002); see also M.K., 99 F. Supp. 2d at 20 n.15 (holding that plaintiffs must exhaust administrative remedies by requesting amendment of records even though they argued that "they cannot ask the CIA[] to amend that which the CIA refuses to admit exists").
Although subsection (d)(2)(A) requires an agency to "acknowledge in writing such receipt" of an amendment request within ten working days, subsection (d)(2)(B) merely requires an agency to "promptly" make the requested correction or inform the individual of its refusal to amend. In construing this language, the Court of Appeals for the District of Columbia Circuit has held that "[t]he statute provides no exemption from administrative review when an agency fails, even by several months, to abide by a deadline, and none is reasonably implied." Dickson v. OPM, 828 F.2d 32, 40 (D.C. Cir. 1987) (requiring exhaustion of subsection (d)(3) administrative appeal remedy even when agency did not respond to initial amendment request for 90 days (citing Nagel, 725 F.2d at 1440-41)). But see Schaeuble v. Reno, 87 F. Supp. 2d 383, 389-90 (D.N.J. 2000) (not requiring further exhaustion of administrative remedies where plaintiff had requested amendment and agency had not responded for six months; stating that "[a] six month delay is not a 'prompt' response," and that "[m]oreover, not only has the [agency] not indicated that it will make a final determination . . . by any certain date, the Privacy Act does not bind the [agency] to any definite timeframe for administrative action, which weighs in favor of waiving the exhaustion requirement").
However, in contrast to subsection (d)(2)(B), subsection (d)(3) requires an agency to make a final determination on administrative appeal from an initial denial of an amendment request within 30 working days (unless, for good cause shown, the head of the agency extends this 30-day period). Thus, court jurisdiction exists as soon as an agency fails to comply with the time requirements of subsection (d)(3); "[t]o require further exhaustion would not only contradict the plain words of the statute but also would undercut [C]ongress's clear intent to provide speedy disposition of these claims." Diederich v. Dep't of the Army, 878 F.2d 646, 648 (2d Cir. 1989).
In Harper v. Kobelinski, 589 F.2d 721 (D.C. Cir. 1978) (per curiam), and Liguori v. Alexander, 495 F. Supp. 641 (S.D.N.Y. 1980), the agencies denied amendment requests but failed to inform the plaintiffs of their rights to administratively appeal those decisions. In light of the Act's requirement that agencies inform complainants whose amendment requests have been denied of the available administrative remedies, 5 U.S.C. § 552a(d)(2)(B)(ii), the courts in Harper and Liguori refused to penalize the plaintiffs for their failures to exhaust. Harper, 589 F.2d at 723; Liguori, 495 F. Supp. at 646-47; see also Germane v. Heckler, 804 F.2d 366, 369 (7th Cir. 1986) (discussing Harper and Liguori with approval); Mahar v. Nat'l Parks Serv., No. 86-0398, slip op. at 7-11 (D.D.C. Dec. 23, 1987) (same).
In White v. United States Civil Service Commission, 589 F.2d 713, 715-16 (D.C. Cir. 1978) (per curiam), the D.C. Circuit held that, notwithstanding any exhaustion of administrative remedies, an amendment action is "inappropriate and premature" where the individual had not yet sought judicial review (under the Administrative Procedure Act) of adverse employment decisions, because granting Privacy Act relief "would tend to undermine the established and proven method by which individuals . . . have obtained review from the courts." Cf. Douglas v. Farmers Home Admin., No. 91-1969, 1992 U.S. Dist. LEXIS 9159, at **4-5 (D.D.C. June 26, 1992) (dismissing damages action under Privacy Act where plaintiff had not sought review under Administrative Procedure Act of allegedly inaccurate property appraisal). But see Churchwell v. United States, 545 F.2d 59, 61 (8th Cir. 1976) (probationary employee need not pursue Privacy Act remedy prior to proceeding with due process claim for hearing).
-- Courts "shall determine the matter de novo." 5 U.S.C. § 552(g)(2)(A).
Comment:
"De novo review does not contemplate that the court will substitute its judgment for the [agency's], but rather that the court will undertake an independent determination of whether the amendment request should be denied." Nolan v. United States Dep't of Justice, No. 89-A-2035, 1991 WL 134803, at *3 (D. Colo. July 17, 1991), appeal dismissed in pertinent part on procedural grounds, 973 F.2d 843 (10th Cir. 1992); see also Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (holding that "[d]e novo means . . . a fresh, independent determination of 'the matter' at stake"). The applicable standards in amendment lawsuits are accuracy, relevancy, timeliness, and completeness. 5 U.S.C. § 552a(d)(2)(B)(i). But see Doe v. United States, 821 F.2d at 697 n.8, 699 (without explanation, stating that "whether the nature of the relief sought is injunctive or monetary, the standard against which the accuracy of the record is measured remains constant" and "[t]hat standard is found in 5 U.S.C. § 552a(e)(5) and reiterated in 5 U.S.C. § 552a(g)(1)(C)"). The burden of proof is on the individual. See Mervin v. FTC, 591 F.2d 821, 827 (D.C. Cir. 1978) (per curiam); Thompson v. Dep't of Transp. United States Coast Guard, 547 F. Supp. 274, 282 (S.D. Fla. 1982); OMB Guidelines, 40 Fed. Reg. 28,948, 28,969 (July 9, 1975).
Note that in a unique statutory displacement action, Congress has expressly removed the jurisdiction of the district courts to order the amendment of IRS records concerning tax liability. 26 U.S.C. § 7852(e) (2000). See, e.g., Gogert v. IRS, No. 86-1674, slip op. at 3 (9th Cir. Apr. 7, 1987); England v. Comm'r, 798 F.2d 350, 351-52 (9th Cir. 1986); MacLeod v. IRS, No. 01-2320, 2002 U.S. Dist. LEXIS 14975, at **9-10 (S.D. Cal. June 7, 2002); Singer v. IRS, No. 98-0024, 1998 U.S. Dist. LEXIS 13301, at **10-11 (E.D. Pa. Aug. 10, 1998); Chandler v. United States, No. 93-C-812A, 1994 WL 315759, at *1 (D. Utah Mar. 8, 1994); Fuselier v. IRS, No. 90-0300, slip op. at 1 (W.D. La. Oct. 25, 1990); Mallas v. Kolak, 721 F. Supp. 748, 751 (M.D.N.C. 1989); Schandl v. Heye, No. 86-6219, slip op. at 2 (S.D. Fla. Sept. 30, 1986); Dyrdra v. Comm'r, No. 85-0-41, slip op. at 2 (D. Neb. Oct. 28, 1985); Conklin v. United States, No. 83-C-587, slip op. at 2-3 (D. Colo. Feb. 26, 1985); Green v. IRS, 556 F. Supp. 79, 80 (N.D. Ill. 1982), aff'd, 734 F.2d 18 (7th Cir. 1984) (unpublished table decision); see also Gardner v. United States, No. 96-1467, 1999 U.S. Dist. LEXIS 2195, at *18 (D.D.C. Jan. 29, 1999) (finding that by virtue of § 7852(e) IRS is "exempt" from amendment provisions of Privacy Act), summary affirmance granted on other grounds, No. 99-5089, 1999 WL 728359 (D.C. Cir. Aug. 4, 1999).
Consistent with the OMB Guidelines, 40 Fed. Reg. at 28,958, 28,969, courts have routinely expressed disfavor toward litigants who attempt to invoke the subsection (g)(1)(A) amendment remedy as a basis for collateral attacks on judicial or quasi-judicial determinations recorded in agency records. See, e.g., Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir. 1999) ("[T]he Privacy Act does not allow a court to alter records that accurately reflect an administrative decision, or the opinions behind that administrative decision."); Milhous v. EEOC, No. 97-5242, 1998 WL 152784, at *1 (6th Cir. Mar. 24, 1998) ("The Privacy Act may not be used to challenge unfavorable agency decisions. It is intended solely to be used to correct factual or historical errors."); Douglas v. Agric. Stabilization & Conservation Serv., 33 F.3d 784, 785 (7th Cir. 1994) ("Privacy Act does not authorize relitigation of the substance of agency decisions"; "the right response . . . is to correct the disposition under the Administrative Procedure Act"); Bailey v. VA, No. 94-55092, 1994 WL 417423, at *1 (9th Cir. Aug. 10, 1994) (plaintiff may not use Privacy Act to collaterally attack grant or denial of benefits); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) (Privacy Act may not be used "as a rhetorical cover to attack VA benefits determinations"); Edwards v. Rozzi, No. 92-3008, 1992 WL 133035, at *1 (6th Cir. June 12, 1992) ("[T]he Privacy Act may not be used to challenge unfavorable agency decisions."); Geurin v. Dep't of the Army, No. 90-16783, 1992 WL 2781, at *2 (9th Cir. Jan. 6, 1992) (doctrine of res judicata bars relitigation of claims under Privacy Act that had been decided against plaintiff by United States Claims Court in prior action under 28 U.S.C. § 1491); Pellerin v. VA, 790 F.2d 1553, 1555 (11th Cir. 1986) (amendment lawsuit challenging VA disability benefits determination dismissed on ground that 38 U.S.C. § 211(a) (later repealed, now see 38 U.S.C. § 511 (2000)) limits judicial review of VA's determinations; noting that Privacy Act "'may not be employed as a skeleton key for reopening consideration of unfavorable federal agency decisions'" (quoting Rogers v. United States Dep't of Labor, 607 F. Supp. 697, 699 (N.D. Cal. 1985))); Forrester v. United States Parole Comm'n, No. 03-1075, 2004 WL 540503, at *6 (D.D.C. Mar. 18, 2004) (concluding that reaching plaintiff's Privacy Act claim seeking an order to expunge information "would have a probabilistic impact on his confinement . . . and therefore plaintiff may only raise [such a claim] in a petition for a writ of habeas corpus"); Fields v. NRC, No. 98-1714, slip op. at 1-2, 5-7 (D.D.C. May 12, 1999) (stating that Privacy Act may not be used to collaterally attack NRC conclusion, as Act is not vehicle for amending judgments of federal officials); Gowan v. Dep't of the Air Force, No. 90-94, slip op. at 26, 33 (D.N.M. Sept. 1, 1995) (commenting that "Privacy Act, unfortunately, may not be used as a collateral attack on the improper preferral of charges [for court martial], nor may the Privacy Act be used as a method for the Court to oversee the activities of the armed services"), aff'd, 148 F.3d 1182 (10th Cir. 1998); Graham v. Hawk, 857 F. Supp. 38, 40-41 (W.D. Tenn. 1994) ("The Privacy Act is not a means of circumventing [habeas] exhaustion requirement."), aff'd, 59 F.3d 170 (6th Cir. 1995) (unpublished table decision); Williams v. McCausland, 90 Civ. 7563, 1994 WL 18510, at *17 (S.D.N.Y. Jan. 18, 1994) (MSPB properly denied plaintiff's request to supplement record of his administrative proceeding before MSPB because request "constitutes an attempt to contest the MSPB's determination on the merits of his request for a stay of his removal"); Smith v. VA, No. CV-93-B-2158-S, slip op. at 4-5 (N.D. Ala. Jan. 13, 1994) (following Pellerin and holding that plaintiff could not use Privacy Act to challenge dishonorable discharge or denial of VA disability benefits); Smith v. Cont'l Assurance Co., No. 91 C 0963, 1991 WL 164348, at *5 (N.D. Ill. Aug. 22, 1991) (plaintiff cannot use Privacy Act to collaterally attack agency decision regarding her Federal Employees Health Benefit Act claim); Rowan v. USPS, No. 82-C-6550, 1984 U.S. Dist. LEXIS 17042, at *6 (N.D. Ill. May 2, 1984) (Privacy Act not "a means for all governmental employees to have unflattering appraisals removed from their personnel files or shaded according to their own whims or preferences"); Leib v. VA, 546 F. Supp. 758, 762 (D.D.C. 1982) ("The Privacy Act was not intended to be and should not be allowed to become a 'backdoor mechanism' to subvert the finality of agency determinations."); Lyon v. United States, 94 F.R.D. 69, 72 (W.D. Okla. 1982) (Privacy Act claim cannot be "a backdoor mechanism to subvert authority bestowed upon the Secretary of Labor to handle employee compensation claims"; the FECA "provides the exclusive method of presenting compensation claims resulting from on-the-job injuries of federal employees"); Allen v. Henefin, 2 Gov't Disclosure Serv. (P-H) ¶ 81,056, at 81,147 (D.D.C. Dec. 10, 1980) (dismissing lawsuit seeking amendment of supervisor evaluation forms and comments, for failure to exhaust, but noting that "there is considerable doubt as to the permissibility of a Privacy Act suit to collaterally attack a final agency personnel determination of this type"); Weber v. Dep't of the Air Force, No. C-3-78-146, slip op. at 3-4 (S.D. Ohio Mar. 19, 1979) (Privacy Act not proper means "to arbitrate and determine a dispute over job classification"); Bashaw v. United States Dep't of the Treasury, 468 F. Supp. 1195, 1196-97 (E.D. Wis. 1979) (citing OMB Guidelines with approval and holding that amendment remedy is "neither a necessary nor an appropriate vehicle for resolving the merits of the plaintiff's [discrimination] claims"); Kennedy v. Andrus, 459 F. Supp. 240, 242 (D.D.C. 1978) (noting that OMB Guidelines "clearly forbid collateral attack in the case of final judicial or quasi-judicial actions" and observing that "the same considerations would seem to apply to agency personnel actions, such as the reprimand here, for collateral attack under the Privacy Act could undermine the effectiveness of agency grievance systems"), aff'd, 612 F.2d 586 (D.C. Cir. 1980) (unpublished table decision); cf. Doe v. HHS, 871 F. Supp. 808, 814-15 (E.D. Pa. 1994) ("[T]he specific reporting provisions encompassed in the [Health Care Quality Improvement] Act supersede[] any claims [plaintiff] might have under the Privacy Act."), aff'd, 66 F.3d 310 (3d Cir. 1995) (unpublished table decision).
It has even been held that the Civil Service Reform Act's (CSRA) comprehensive remedial scheme operates to deprive a court of subsection (g)(1)(A) jurisdiction to order the amendment of an allegedly inaccurate job description in a former federal employee's personnel file. See Kleiman v. Dep't of Energy, 956 F.2d 335, 338 (D.C. Cir. 1992) (refusing to allow exhaustive remedial scheme of CSRA to be "impermissibly frustrated" by granting review of personnel decisions under Privacy Act); see also Wills v. OPM, No. 93-2079, slip op. at 3-4 (4th Cir. Jan. 28, 1994) (alternative holding) (per curiam) (where challenge to merits of statement on SF-50 was actually complaint regarding adverse employment decision, jurisdiction was proper under CSRA); Vessella v. Dep't of the Air Force, No. 92-2195, 1993 WL 230172, at *2 (1st Cir. June 28, 1993) (citing Kleiman and holding that plaintiff could not "bypass the CSRA's regulatory scheme" by bringing a Privacy Act claim for the same alleged impermissible adverse personnel practices that he challenged before the MSPB, even though the MSPB dismissed his claims as untimely).
Similarly, the D.C. Circuit has held that "[t]he proper means by which to seek a change to military records is through a proceeding before the . . . Board for Correction of Military Records," not under the Privacy Act. Glick v. Dep't of the Army, No. 91-5213, 1992 WL 168004, at *1 (D.C. Cir. June 5, 1992) (per curiam); see also Cargill v. Marsh, 902 F.2d 1006, 1007-08 (D.C. Cir. 1990) (per curiam) (affirming dismissal of Privacy Act claim; proper means to seek substantive change in military records is through proceeding before Army Board for Correction of Military Records under 10 U.S.C. § 1552(a) (2000) (amended 2003 to take into account establishment of DHS)); Doe v. Dep't of the Navy, 764 F. Supp. 1324, 1327 (N.D. Ind. 1991) ("plaintiff is not free to choose to attempt amendment of his military records under the Privacy Act alone without resort to the records correction board remedy"); cf. Walker v. United States, No. 93-2728, 1998 WL 637360, at *14 (E.D. La. Sept. 16, 1998) (citing Cargill and finding plaintiff's claim "unavailing" to extent that he "is attempting to use the Privacy Act as a vehicle for his collateral attack on the Army's allegedly improper failure to correct his military records"), aff'd, 184 F.3d 816 (5th Cir. 1999) (unpublished table decision). But see Diederich v. Dep't of the Army, 878 F.2d 646, 647-48 (2d Cir. 1989) (holding that "Privacy Act claims were properly before the district court" and that plaintiff was not required to further exhaust administrative remedies before asserting claim for amendment of military records where his direct request to Army for correction had been stalled before appeals board for several months); see also Corrections of Military Records Under the Privacy Act, Defense Privacy Board Advisory Opinion 4 (reissued Apr. 8, 1992)(affording review under Privacy Act for factual matters only), which can be accessed at: http://www.defenselink.mil/privacy/opinions/op0004.htm.
It should be noted that several courts have ruled that statutes that provide other avenues of redress, such as the CSRA, can bar certain kinds of subsection (g)(1)(C) damages actions. These cases are discussed below under "Accuracy Lawsuits For Damages."
-- Courts can order an agency to amend records in accordance with a request "or in such other way as the court may direct." 5 U.S.C. § 552a(g()(2)(A).
Comment:
The Act contemplates "expungement [of inaccuracies] and not merely redress by supplement." R.R. v. Dep't of the Army, 482 F. Supp. 770, 774 (D.D.C. 1980); see also Smith v. Nixon, 807 F.2d 197, 204 (D.C. Cir. 1986); Hobson v. Wilson, 737 F.2d 1, 65-66 (D.C. Cir. 1984). In addition, several courts have concluded that judges have the equitable power, even apart from the Privacy Act, to order the expungement of records when the affected individual's privacy interest greatly outweighs the government's interest in maintaining the records. See, e.g., Doe v. United States Air Force, 812 F.2d 738, 740-41 (D.C. Cir. 1987); Fendler v. United States Parole Comm'n, 774 F.2d 975, 979 (9th Cir. 1985); Chastain v. Kelley, 510 F.2d 1232, 1235-38 (D.C. Cir. 1975); Ezenwa v. Gallen, 906 F. Supp. 978, 986 (M.D. Pa. 1995); NTEU v. IRS, 601 F. Supp. 1268, 1273 (D.D.C. 1985); cf. Johnson v. Sessions, No. 92-201, 1992 WL 212408, at *2 (D.D.C. Aug. 19, 1992) (refusing to invoke equitable powers to expunge plaintiff's arrest record because court did not have jurisdiction to order FBI to violate its own regulations which require FBI to wait for authorization from appropriate judicial authority before expunging arrest record). But see Scruggs v. United States, 929 F.2d 305, 307 (7th Cir. 1991) (questioning jurisdictional power of courts to order expungement of records that satisfy Privacy Act's requirements).
Once an agency offers to destroy a record in response to an expungement request, the lawsuit is at an end and the agency cannot be compelled to affirmatively determine and announce that the challenged record violated the Act. See Reuber v. United States, 829 F.2d 133, 144-49 (D.C. Cir. 1987); see also Comm. in Solidarity v. Sessions, 929 F.2d 742, 745 n.2 (D.C. Cir. 1991); Metadure Corp. v. United States, 490 F. Supp. 1368, 1375 (S.D.N.Y. 1980). But see Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539, 551 (S.D.N.Y. 1980).
"Whenever any agency . . . refuses to comply with an individual request under subsection (d)(1) of this section [the individual may bring a civil action against the agency]." 5 U.S.C. § 552a(g)(1)(B).
-- Courts can enjoin the agency from withholding records and order their production to the individual. See 5 U.S.C. § 552a(g)(3)(A).
Comment:
Just as under the FOIA, a requester must comply with agency procedures and exhaust all available administrative remedies -- through pursuit of an access request to the agency -- prior to bringing a subsection (g)(1)(B) action. See Vaughn v. Danzig, 18 Fed. Appx. 122, 125 (4th Cir. 2001) (per curiam); Taylor v. United States Treasury Dep't, 127 F.3d 470, 473-77 (5th Cir. 1997); Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at *3 (10th Cir. Apr. 14, 1997); Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990); MacLeod v. IRS, No. 99-1088, 2001 U.S. Dist. LEXIS 9327, at **3-4 (S.D. Cal. June 4, 2001); Broaddrick v. Executive Office of the President, 139 F. Supp. 2d 55, 61 (D.D.C. 2001), aff'd per curiam, No. 01-5178 (D.C. Cir. May 1, 2002); Scaife v. IRS, No. 02-1805, 2003 U.S. Dist. LEXIS 22661, at *8 (D.D.C. Nov. 20, 2003); Flowers v. Executive Office of the President, 142 F. Supp. 2d 38, 44 (D.D.C. 2001); Fisher v. FBI, 94 F. Supp. 2d 213, 216 (D. Conn. 2000); Walker v. Henderson, No. 98 C 3824, 1999 WL 39545, at *9 (N.D. Ill. Jan. 20, 1999), appeal voluntarily dismissed, No. 99-1615 (7th Cir. May 27, 1999); Biondo v. Dep't of the Navy, 928 F. Supp. 626, 630-33 (D.S.C. 1995), aff'd, 86 F.3d 1148 (4th Cir. 1996) (unpublished table decision); Reeves v. United States, No. 94-1291, 1994 WL 782235, at *2 (E.D. Cal. Nov. 16, 1994), aff'd, 108 F.3d 338 (9th Cir. 1997) (unpublished table decision); Guzman v. United States, No. S-93-1949, slip op. at 3-5 (E.D. Cal. Oct. 5, 1994); Hass v. United States Air Force, 848 F. Supp. 926, 930 (D. Kan. 1994); Gergick v. Austin, No. 89-0838-CV-W-2, 1992 U.S. Dist. LEXIS 7338, at **13-16 (W.D. Mo. Apr. 29, 1992), aff'd, No. 92-3210 (8th Cir. July 9, 1993); Wood v. IRS, No. 1:90-CV-2614, 1991 U.S. Dist. LEXIS 19707, at *8 (N.D. Ga. July 26, 1991); Searcy v. Soc. Sec. Admin., No. 91-C-26 J, slip op. at 8-11 (D. Utah June 25, 1991) (magistrate's recommendation), adopted (D. Utah Sept. 19, 1991), aff'd, No. 91-4181 (10th Cir. Mar. 2, 1992); Crooker v. Bureau of Prisons, 579 F. Supp. 309, 311 (D.D.C. 1984); Crooker v. United States Marshals Serv., 577 F. Supp. 1217, 1217-18 (D.D.C. 1983); Lilienthal v. Parks, 574 F. Supp. 14, 18 & n.7 (E.D. Ark. 1983); Gibbs v. Rauch, No. 77-59, slip op. at 2-3 (E.D. Ky. Feb. 9, 1978); Larsen v. Hoffman, 444 F. Supp. 245, 256 (D.D.C. 1977); cf. Nurse v. Sec'y of the Air Force, 231 F. Supp. 2d 323, 331 (D.D.C. 2002) ("while the FOIA requires that a request must '[reasonably] describe' the records, Privacy Act requests require greater specificity"). But see Mumme v. United States Dep't of Labor, 150 F. Supp. 2d 162, 171 (D. Me. 2001) (refusing to "strictly apply formalistic procedural rules against [p]laintiff" because "[p]rocedural rules . . . cut both ways," and it was not clear that agency's response letter "included any written explanation of the partial grant of [p]laintiff's appeal as required by [its] regulation"), aff'd, No. 01-2256 (1st Cir. June 12, 2002).
The Court of Appeals for the Fourth Circuit has also noted that an individual cannot "constructively exhaust" his administrative remedies under the Privacy Act, as "the Privacy Act contains no equivalent to FOIA's 'constructive exhaustion' provision[, 5 U.S.C. § 552(a)(6)(C)]." Pollack v. Dep't of Justice, 49 F.3d 115, 116 n.1 (4th Cir. 1995) (only FOIA claim was properly before district court); see also Anderson v. USPS, 7 F. Supp. 2d 583, 586 n.3 (E.D. Pa. 1998) (citing Pollack for proposition that "Privacy Act contains no section equivalent to the 'constructive exhaustion' provision of the FOIA," but alternatively finding that access suit must be dismissed for failure to exhaust administrative remedies), aff'd, 187 F.3d 625 (3d Cir. 1999) (unpublished table decision); cf. Johnson v. FBI, No. 94-1741, slip op. at 6 (D.D.C. Aug. 31, 1995) (citing Pollack but determining that "since plaintiff has sought an action in equity, and has not exhausted his administrative remedies through administrative appeal . . . plaintiff is barred from seeking injunctive relief under the Privacy Act"). However, an agency's failure to comply with its own regulations can undercut an exhaustion defense. See Jonsson v. IRS, No. 90-2519, 1992 WL 115607, at *1 (D.D.C. May 4, 1992); Haldane v. Comm'r, No. 90-654M, 1990 U.S. Dist. LEXIS 11612, at **4-6 (W.D. Wash. Aug. 23, 1990).
Several courts have recognized that jurisdiction to consider a Privacy Act access claim exists only if the government has failed to comply with a request for records; once a request is complied with and the responsive records have been disclosed, a Privacy Act access claim is moot. See Falwell v. Executive Office of the President, 158 F. Supp. 2d 734, 740 (W.D. Va. 2001); Mumme, 150 F. Supp. 2d at 171-72; Fisher v. FBI, 94 F. Supp. 2d at 216; Biondo, 928 F. Supp. at 631; Letscher v. IRS, No. 95-0077, 1995 WL 555476, at *1 (D.D.C. July 6, 1995); Polewsky v. Soc. Sec. Admin., No. 5:93-CV-200, slip op. at 9-10 (D. Vt. Mar. 31, 1995) (magistrate's recommendation), adopted (D. Vt. Apr. 13, 1995), aff'd, No. 95-6125, 1996 WL 110179, at *2 (2d Cir. Mar. 12, 1996); Smith v. Cont'l Assurance Co., No. 91 C 0963, 1991 WL 164348, at *3 (N.D. Ill. Aug. 22, 1991); see also Jacobs v. Reno, No. 3:97-CV-2698-D, 1999 U.S. Dist. LEXIS 3104, at **14-15 (N.D. Tex. Mar. 11, 1999) (dismissing access claim as moot where plaintiff had received access to records and finding no eligibility for award of attorney fees and costs based on plaintiff's assertion that his lawsuit may have caused agency to comply with Privacy Act when it would not otherwise have done so, "particularly when § 552a(d)(1) imposes no deadline for agency compliance and absent evidence of extended and unjustified delay"), aff'd, 208 F.3d 1006 (5th Cir. 2000) (unpublished table decision); cf. Lundy v. VA, 142 F. Supp. 2d 776, 779 (W.D. La. 2001) (finding that "the VA conducted an adequate search" and, "in the absence of any improperly withheld records, [plaintiff's] claim must be dismissed for lack of subject matter jurisdiction").
The Court of Appeals for the District of Columbia Circuit has ruled that "the specific provisions of [26 U.S.C.] § 6103 rather than the general provisions of the Privacy Act govern the disclosure of . . . tax information" and that "individuals seeking 'return information' . . . must do so pursuant to § 6103 of the Internal Revenue Code, rather than the Privacy Act." Lake v. Rubin, 162 F.3d 113, 115-16 (D.C. Cir. 1998). In reaching this conclusion, the D.C. Circuit looked to the legislative history of § 6103 and embraced an earlier ruling by the Court of Appeals for the Seventh Circuit, Cheek v. IRS, 703 F.2d 271 (7th Cir. 1983) (per curiam), that similarly had held that § 6103 "displaces" the Privacy Act and shields tax return information from release to a first-party requester, id. at 272; see also Lake, 162 F.3d at 115-16; Paige v. IRS, No. 1P-85-64-C, slip op. at 3-4 (S.D. Ind. Jan. 13, 1986); cf. Maxwell v. O'Neill, No. 00-01953, 2002 U.S. Dist. LEXIS 19033, at *11 (D.D.C. Sept. 12, 2002) ("while [section] 6103 may supersede the Privacy Act, it does not supersede the FOIA") (appeal pending). But cf. Sinicki v. United States Dep't of Treasury, No. 97 CIV. 0901, 1998 WL 80188, at **3-5 (S.D.N.Y. Feb. 24, 1998) (finding Cheek unpersuasive in context of wrongful disclosure claim and denying motion to dismiss Privacy Act claim, stating that "the language, structure, purpose and legislative history of Section 6103 do not make manifest and clear a legislative intent to repeal the Privacy Act as it applies to tax return information").
The Court of Appeals for the Ninth Circuit has confusingly interpreted 26 U.S.C. § 7852(e) (2000) to likewise prevent Privacy Act access to records pertaining to tax liability. Jacques v. IRS, No. 91-15992, 1992 WL 185449, at *2 (9th Cir. Aug. 5, 1992); O'Connor v. United States, No. 89-15321, slip op. at 5 (9th Cir. June 4, 1991); see also Prince v. Comm'r, No. 98-17183, 1999 WL 511185, at *1 (9th Cir. July 15, 1999) (concluding that district court lacked subject matter jurisdiction over claim for attorney fees in Privacy Act suit for access to tax return records due to 26 U.S.C. § 7852(e)'s prohibition against application of subsection (g) of Privacy Act to determinations of tax liability); Hart v. United States, No. 00-2158, 2000 WL 1727737, at **1-2 (E.D. Pa. Sept. 27, 2000) (following Maxwell v. Rubin, infra, and dismissing access claim for lack of subject matter jurisdiction for records relating "directly and indirectly[] to tax disputes with the IRS concerning liability," because although § 7852(e) does not exempt the IRS from the access provision, it does exempt it from the civil remedy provision), aff'd, 275 F.3d 35 (3d Cir. 2001) (unpublished table decision), cert denied, 122 S. Ct. 1174 (2002); Weiss v. Sawyer, 28 F. Supp. 2d 1221, 1227-28 (W.D. Okla. 1997) (applying 26 U.S.C. § 7852 to prevent apparent access claim); cf. Baker v. Matson, No. 98 M 1675, 1998 U.S. Dist. LEXIS 21312, at **8-9 (D. Colo. Dec. 7, 1998) (ruling that court had no jurisdiction over Privacy Act access claim) (magistrate's recommendation), adopted (D. Colo. Jan. 12, 1999). The Ninth Circuit's interpretation of 26 U.S.C. § 7852(e), however, seems to go beyond that statute's objective of exempting determinations of tax liability from the Privacy Act's amendment provisions. Cf. Lake v. Rubin, 162 F.3d at 114-16 (discussing § 7852(e) -- which had been interpreted by district court to deprive it of jurisdiction in access cases, see Maxwell v. Rubin, 3 F. Supp. 2d 45, 47-49 (D.D.C. 1998) -- but affirming judgments of district court "not on the jurisdictional rationale contained in its opinions" but on basis of § 6103); Wood v. IRS, No. 1:90-CV-2614, 1991 U.S. Dist. LEXIS 19707, at *1, 8 (N.D. Ga. July 29, 1991) (denying plaintiff summary judgment on other grounds, but not barring Privacy Act request for access to records concerning plaintiff's tax liability).
Lastly, damages are not recoverable in an access case. See Benoist v. United States, No. 87-1028, slip op. at 3 (8th Cir. Nov. 4, 1987); Thurston v. United States, 810 F.2d 438, 447 (4th Cir. 1987); Haddon v. Freeh, 31 F. Supp. 2d 16, 22 (D.D.C. 1998); Vennes v. IRS, No. 5-88-36, slip op. at 6-7 (D. Minn. Oct. 14, 1988) (magistrate's recommendation), adopted (D. Minn. Feb. 14, 1989), aff'd, No. 89-5136MN (8th Cir. Oct. 13, 1989); Bentson v. Comm'r, No. 83-048-GLO-WDB, slip op. at 2 (D. Ariz. Sept. 14, 1984); see also Quinn v. HHS, 838 F. Supp. 70, 76 (W.D.N.Y. 1993) (citing Thurston in dictum).
-- Courts "shall determine the matter de novo." 5 U.S.C.§ 552a(g)(3)(A).
--Courts may review records in camera to determine whether any of the exemptions set forth in subsection (k) apply. See 5 U.S.C. § 552a(g)(3)(A).
C. Accuracy Lawsuits for Damages
"Whenever any agency . . . fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual [the individual may bring a civil action against the agency]." 5 U.S.C. § 552a(g)(1)(C).
Comment:
The standard of accuracy under this provision is the same as under subsection (e)(5), which requires agencies to maintain records used in making determinations about individuals "with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination."
As mentioned earlier, failure to comply with subsection (e)(5) gives rise to an amendment lawsuit under subsection (g)(1)(A), provided that administrative remedies (under subsections (d)(2)-(3)) have been exhausted. Note, however, that such exhaustion is not required prior to bringing a damages lawsuit under subsection (g)(1)(C) (or, for that matter, under subsection (g)(1)(D)). See Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at **2-3 (10th Cir. Apr. 14, 1997); Diederich v. Dep't of the Army, 878 F.2d 646, 648 (2d Cir. 1989); Hubbard v. EPA, Adm'r, 809 F.2d 1, 7 (D.C. Cir.), vacated in nonpertinent part & reh'g en banc granted (due to conflict within circuit), 809 F.2d 1 (D.C. Cir. 1986), resolved on reh'g en banc sub nom. Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988); Nagel v. HEW, 725 F.2d 1438, 1441 & n.2 (D.C. Cir. 1984); Murphy v. United States, 121 F. Supp. 2d 21, 28 (D.D.C. 2000), aff'd per curiam, 64 Fed. Appx. 250 (D.C. Cir. 2003); M.K. v. Tenet, 99 F. Supp. 2d 12, 20 (D.D.C. 2000) (quoting Nagel); Gergick v. Austin, No. 89-0838-CV-W-2, 1992 U.S. Dist. LEXIS 7338, at **13-16 (W.D. Mo. Apr. 29, 1992), aff'd, No. 92-3210 (8th Cir. July 9, 1993); Doe v. FBI, No. 91-1252, slip op. at 8 (D.N.J. Feb. 26, 1992); Pope v. Bond, 641 F. Supp. 489, 500 (D.D.C. 1986). But see Olivares v. NASA, 882 F. Supp. 1545, 1546, 1552 (D. Md. 1995) (apparently confusingly concluding that plaintiff's failure to exhaust administrative remedies precludes damages claim under subsection (e)(5)), aff'd, 103 F.3d 119 (4th Cir. 1996) (unpublished table decision); Graham v. Hawk, 857 F. Supp. 38, 40 (W.D. Tenn. 1994) (heedlessly stating that "[e]ach paragraph of 5 U.S.C. § 552a(g) . . . requires as a prerequisite to any action that the agency refuse an individual's request to take some corrective action regarding his file"), aff'd, 59 F.3d 170 (6th Cir. 1995) (unpublished table decision).
In addition, de novo review is not provided for in (g)(1)(C) (or, for that matter, (g)(1)(D)) actions, see 5 U.S.C. § 552a(g)(4); rather, the court is to determine whether the standards set forth in subsection (g)(1)(C) have been met. See Sellers v. Bureau of Prisons, 959 F.2d 307, 312-13 (D.C. Cir. 1992); White v. OPM, 787 F.2d 660, 663 (D.C. Cir. 1986); Nolan v. United States Dep't of Justice, No. 89-A-2035, 1991 WL 134803, at *3 (D. Colo. July 17, 1991), appeal dismissed in pertinent part on procedural grounds, 973 F.2d 843 (10th Cir. 1992); see also Doe v. United States, 821 F.2d 694, 712 (D.C. Cir. 1987) (en banc) (Mikva, J., joined by Robinson and Edwards, JJ., dissenting).
However, in order to bring a damages action under subsection (g)(1)(C), an individual has the burden of proving that (1) a defective record (2) proximately caused (3) an adverse determination concerning him. See, e.g., Deters v. United States Parole Comm'n, 85 F.3d 655, 657 (D.C. Cir. 1996); Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990); Johnston v. Horne, 875 F.2d 1415, 1422 (9th Cir. 1989); White v. OPM, 840 F.2d 85, 87 (D.C. Cir. 1988); Hubbard, 809 F.2d at 4-6; Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986); Perry v. FBI, 759 F.2d 1271, 1275, rev'd en banc on other grounds, 781 F.2d 1294 (7th Cir. 1986); Molerio v. FBI, 749 F.2d 815, 826 (D.C. Cir. 1984); Clarkson v. IRS, 678 F.2d 1368, 1377 (11th Cir. 1982) (citing Edison v. Dep't of the Army, 672 F.2d 840, 845 (11th Cir. 1982)); Kellett v. United States, 856 F. Supp. 65, 70-71 (D.N.H. 1994), aff'd, 66 F.3d 306 (1st Cir. 1995) (unpublished table decision); McGregor v. Greer, 748 F. Supp. 881, 886 (D.D.C. 1990); Mobley v. Doyle, No. JH-87-3300, slip op. at 3-5 (D. Md. Nov. 8, 1988); Wirth v. Soc. Sec. Admin., No. JH-85-1060, slip op. at 6 (D. Md. Jan. 20, 1988); NTEU v. IRS, 601 F. Supp. 1268, 1271-72 (D.D.C. 1985); see also Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583-86 (D.C. Cir. 2002) (holding that transfer of prisoner in alleged retaliation for exercise of his First Amendment rights constitutes assertion of "'adverse determination'" under Privacy Act, sufficient to "survive [agency's] motion to dismiss"); Treadwell v. Bureau of Prisons, 32 Fed. Appx. 519, 520-21 (10th Cir. 2002) (plaintiff's claim that Bureau of Prisons erroneously based his security classification in part on nonviolent juvenile robbery offense does not amount to violation of Privacy Act where plaintiff agreed that conviction accurately appeared on his record but disagreed with way Bureau of Prisons used that information); Bettersworth v. FDIC, 248 F.3d 386, 392-93 (5th Cir. 2001) (holding that Federal Reserve Bank letter informing company that its Bank Holding Company Act (BHCA) application was unlikely to be approved without further information being provided did not constitute "adverse determination" against plaintiff, who held controlling interest in company, as there were "diverse grounds relied upon in the Reserve Bank's letter" (other than information about plaintiff's experience in banking industry) and entity applying for BHCA status was company, not plaintiff; further stating that "informal oral or written statements made in the deliberative process about a particular administrative determination do not constitute the determination itself"); Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1194 (10th Cir. 1998) (no adverse effect from Air Force's informing Wyoming Bar of court martial charges preferred against plaintiff where plaintiff himself later informed Wyoming Bar without knowing Air Force had already done so); Williams v. Bureau of Prisons, No. 94-5098, 1994 WL 676801, at *1 (D.C. Cir. Oct. 21, 1994) (appellant did not establish either that agency "maintained an inaccurate record or that it made a determination adverse to him in reliance on inaccurate information capable of verification, the statutory prerequisites to maintaining an action pursuant to the Privacy Act"); Hadley v. Moon, No. 94-1212, 1994 WL 582907, at **1-2 (10th Cir. Oct. 21, 1994) (plaintiff must allege actual detriment or adverse determination in order to maintain claim under Privacy Act); McCready v. Principi, 297 F. Supp. 2d 178, 193 n.5 (D.D.C. 2003) ("The assertion that [the agency] decided not to pursue the 'possibility of offering' [plaintiff] a position is too vague to show any adverse determination. There is no allegation that [the agency] rescinded any job offer previously extended to [plaintiff]."); Wilson v. CIA, No. 01-1758, slip op. at 5 (D.D.C. Aug. 29, 2002) ("A claim for damages under the Privacy Act cannot survive without some evidence, not presented here, that the challenged record was used in reaching an adverse decision."), summary affirmance granted, No. 02-5282, 2003 U.S. App. LEXIS 1290 (D.C. Cir. Jan. 24, 2003); Murphy v. United States, 167 F. Supp. 2d 94, 97-98 (D.D.C. 2001) (although documents delayed plaintiff's transfer and thus played a part in transfer process, plaintiff "has neither shown that they caused the transfer nor identified a genuine issue of fact that is material to the dispositive issue of causation"), aff'd per curiam, 64 Fed. Appx. 250 (D.C. Cir. 2003); Hughley v. Fed. Bureau of Prisons, No. 94-1048, slip op. at 4-5 (D.D.C. Apr. 30, 1996) (admitted inaccuracy in plaintiff's presentence investigation report regarding length of prior sentence did not result in "any cognizable injury that would give rise to an action under [subs]ection (g)(1)(C) because no adverse determination was made based on the inaccurate statement"; report correctly calculated plaintiff's criminal history points regardless of error), aff'd sub nom. Hughley v. Hawk, No. 96-5159, 1997 WL 362725 (D.C. Cir. May 6, 1997); Schwartz v. United States Dep't of Justice, No. 94 CIV. 7476, 1995 WL 675462, at **7-8 (S.D.N.Y. Nov. 14, 1995) (alleged inaccuracy in presentence report "cannot have caused an adverse determination" where sentencing judge was made aware of error and stated that fact at issue was not material for sentencing, nor did any omission of additional facts in report result in plaintiff's "not receiving a fair determination relating to his rights"), aff'd, 101 F.3d 686 (2d Cir. 1996) (unpublished table decision); Gowan v. Dep't of the Air Force, No. 90-94, slip op. at 34 (D.N.M. Sept. 1, 1995) (inaccuracy in report, i.e., listing of witnesses who were not interviewed, did not cause adverse agency action), aff'd, 148 F.3d 1182 (10th Cir. 1998).
In addition, an agency must be found to have acted in an "intentional or willful" manner in order for a damages action to succeed. See 5 U.S.C. § 552a(g)(4). This standard is discussed below under "Intentional/Willful Standard and Actual Damages in Accuracy and Other Damages Lawsuits."
Just as in the amendment context (see the discussion above), many courts have expressed disfavor toward litigants who attempt to invoke the subsection (g)(1)(C) damages remedy as a basis for collateral attacks on judicial and quasi-judicial agency determinations, such as benefit and employment decisions. See, e.g., White v. United States Prob. Office, 148 F.3d 1124, 1125-26 (D.C. Cir. 1998) (holding that Privacy Act claim for damages could not be brought "collaterally to attack" federal prisoner's sentence; "Because a judgment in favor of [plaintiff] on his challenge to the legal conclusions in his presentence report would necessarily imply the invalidity of his sentence, which has not been invalidated in a prior proceeding, his complaint for damages under the Privacy Act must be dismissed."); Doyon v. United States Dep't of Justice, 304 F. Supp. 2d 32, 35 (D.D.C. 2004) ("A challenge to the professional judgment of [Bureau of Prisons] officials in assessing points for purposes of establishing a prisoner's custody classification is not properly mounted by means of a Privacy Act suit.") (appeal pending); Compro-Tax v. IRS, No. H-98-2471, 1999 U.S. Dist. LEXIS 5972, at **11-12 (S.D. Tex. Apr. 9, 1999) (magistrate's recommendation) (finding no intentional or willful agency action, and stating that the "Privacy Act may not be used to collaterally attack a final agency decision as 'inaccurate,' or 'incomplete' merely because the individual contests the decision"), adopted (S.D. Tex. May 12, 1999); Douglas v. Farmers Home Admin., No. 91-1969, 1992 U.S. Dist. LEXIS 9159, at **2-3 (D.D.C. June 26, 1992) (applying principles of White v. United States Civil Serv. Comm'n, 589 F.2d 713 (D.C. Cir. 1978) (per curiam) (amendment lawsuit), and holding that plaintiff was not entitled to bring Privacy Act damages action for allegedly inaccurate appraisal of his property where he had not sought judicial review under APA); Thomas v. United States Parole Comm'n, No. 94-0174, 1994 WL 487139, at *6 (D.D.C. Sept. 7, 1994) (plaintiff should not be allowed to use Privacy Act "to collaterally attack the contents of his presentence report," as he "originally had the opportunity to challenge the accuracy . . . before the judge who sentenced him"); Castella v. Long, 701 F. Supp. 578, 584-85 (N.D. Tex.) ("collateral attack on correctness of the finding supporting the discharge decision" improper under Act), aff'd, 862 F.2d 872 (5th Cir. 1988) (unpublished table decision); Holmberg v. United States, No. 85-2052, slip op. at 2-3 (D.D.C. Dec. 10, 1985) (Privacy Act "cannot be used to attack the outcome of adjudicatory-type proceedings by alleging that the underlying record was erroneous"); see also Whitley v. Hunt, 158 F.3d 882, 889-90 (5th Cir. 1998) (affirming district court's conclusion that there was "no factual or legal basis" for claim that "prison officials abused their discretion by relying upon the sentence imposed against Whitley to determine his classification"; "Whitley is essentially claiming that his sentence itself was incorrectly entered. That is an issue that should have been resolved on direct appeal from his criminal conviction."); Hurley v. Bureau of Prisons, No. 95-1696, 1995 U.S. App. LEXIS 30148, at *4 (1st Cir. Oct. 24, 1995) (any alleged inaccuracy in plaintiff's presentence report, which agency relied on, "should have been brought to the attention of the district court at sentencing; or, at the very least, on appeal from his conviction and sentence"). The OMB Guidelines, 40 Fed. Reg. 28,948, 28,969 (July 9, 1975), also address this issue.
As in the amendment context, 26 U.S.C. § 7852(e) (2000) (a provision of the Internal Revenue Code) also displaces the Privacy Act's damages remedy for inaccurate records in matters concerning tax liability. See, e.g., Ford v. United States, IRS, No. 91-36319, 1992 WL 387154, at *2 (9th Cir. Dec. 24, 1992); McMillen v. United States Dep't of Treasury, 960 F.2d 187, 188 (1st Cir. 1991); Sherwood v. United States, No. 96-2223, 1996 WL 732512, at *9 (N.D. Cal. Dec. 9, 1996).
In Hubbard v. EPA, Administrator, the leading D.C. Circuit case concerning the causation requirement of subsection (g)(1)(C), the D.C. Circuit's finding of a lack of causation was heavily influenced by the Civil Service Reform Act's (CSRA) jurisdictional bar to district court review of government personnel practices. See 809 F.2d at 5. Although the D.C. Circuit stopped short of holding that the CSRA's comprehensive remedial scheme constitutes a jurisdictional bar to a subsection (g)(1)(C) action, it noted that "it would be anomalous to construe the pre-existing Privacy Act to grant the district court power to do indirectly that which Congress precluded directly: 'the Privacy Act was not intended to shield [federal] employees from the vicissitudes of federal personnel management decisions.'" Id. (quoting Albright v. United States, 732 F.2d 181, 190 (D.C. Cir. 1984)); cf. Biondo v. Dep't of the Navy, No. 2:92-0184-18, slip op. at 21-23 (D.S.C. June 29, 1993) (finding, based upon Hubbard, "that the 'collateral attack' argument complements the causation requirement of the Privacy Act"). The concurring opinion in Hubbard objected to this "canon of niggardliness" in construing subsection (g)(1)(C) and noted that circuit precedents since the passage of the CSRA have "without a hint of the majority's caution, reviewed the Privacy Act claims of federal employees or applicants embroiled in personnel disputes." 809 F.2d at 12-13 (Wald, J., concurring) (citing Molerio, 749 F.2d at 826, Albright, 732 F.2d at 188, and Borrell v. United States Int'l Communications Agency, 682 F.2d 981, 992-93 (D.C. Cir. 1982)).
Although Hubbard merely applied a strict causation test where a government personnel determination was being challenged, several more recent cases have extended Hubbard's reasoning and have construed the CSRA's comprehensive remedial scheme to constitute a jurisdictional bar to subsection (g)(1)(C) damages lawsuits challenging federal employment determinations. See Orsay v. United States Dep't of Justice, 289 F.3d 1125, 1128-31 (9th Cir. 2002); Houlihan v. OPM, 909 F.2d 383, 384-85 (9th Cir. 1990) (per curiam); Henderson v. Soc. Sec. Admin., 908 F.2d 559, 560-61 (10th Cir. 1990), aff'g 716 F. Supp. 15, 16-17 (D. Kan. 1989)); Miller v. Hart, No. PB-C-91-249, slip op. at 6-8 (E.D. Ark. Feb. 25, 1993); Kassel v. VA, No. 87-217-S, slip op. at 7-8 (D.N.H. Mar. 30, 1992); Holly v. HHS, No. 89-0137, slip op. at 1 (D.D.C. Aug. 9, 1991), aff'd, 968 F.2d 92 (D.C. Cir. 1992) (unpublished table decision); Barhorst v. Marsh, 765 F. Supp. 995, 999 (E.D. Mo. 1991); Barkley v. USPS, 745 F. Supp. 892, 893-94 (W.D.N.Y. 1990); McDowell v. Cheney, 718 F. Supp. 1531, 1543 (M.D. Ga. 1989); Holly v. HHS, No. 87-3205, slip op. at 4-6 (D.D.C. Aug. 22, 1988), aff'd, 895 F.2d 809 (D.C. Cir. 1990) (unpublished table decision); Tuesburg v. HUD, 652 F. Supp. 1044, 1049 (E.D. Mo. 1987); see also Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at *3 (10th Cir. Apr. 14, 1997) (citing Henderson to hold that claim concerning alleged inaccuracies and omissions in appellant's employment file that formed basis of her claim for damages to remedy loss of promotion and other benefits of employment "is not a recognizable claim under the Privacy Act," as "CSRA provides the exclusive remedial scheme for review of [appellant's] claims related to her position as a nonappropriated fund instrumentality employee"); Vessella v. Dep't of the Air Force, No. 92-2195, 1993 WL 230172, at *2 (1st Cir. June 28, 1993) (citing Hubbard and Henderson for the proposition that the Privacy Act "cannot be used . . . to frustrate the exclusive, comprehensive scheme provided by the CSRA"); Pippinger v. Sec'y of the United States Treasury, No. 95-CV-017, 1996 U.S. Dist. LEXIS 5485, at *15 (D. Wyo. Apr. 10, 1996) (citing Henderson and stating that to the extent plaintiff challenges the accuracy of his personnel records, an action cannot be maintained, because the court does not have jurisdiction "to review errors in judgment that occur during the course of an employment/personnel decision where the CSRA precludes such review"), aff'd sub nom. Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997); Edwards v. Baker, No. 83-2642, slip op. at 4-6 (D.D.C. July 16, 1986) (plaintiff's Privacy Act challenge to an "employee performance appraisal system" rejected on the ground that "plaintiffs may not use that Act as an alternative route for obtaining judicial review of alleged violations of the CSRA"). Other cases have declined to go that far. See Doe v. FBI, 718 F. Supp. 90, 100-01 n.14 (D.D.C. 1989) (rejecting contention that CSRA limited subsection (g)(1)(C) action), aff'd in part, rev'd in part & remanded, on other grounds, 936 F.2d 1346 (D.C. Cir. 1991); see also Halus v. United States Dep't of the Army, No. 87-4133, 1990 WL 121507, at *5 n.8 (E.D. Pa. Aug. 15, 1990) ("court may determine whether a Privacy Act violation caused the plaintiff damage (here, the loss of his job)"); Hay v. Sec'y of the Army, 739 F. Supp. 609, 612-13 (S.D. Ga. 1990) (similar).
As yet, the D.C. Circuit has declined to rule that the CSRA bars a Privacy Act claim for damages. See Kleiman v. Dep't of Energy, 956 F.2d 335, 337-39 & n.5 (D.C. Cir. 1992) (holding that Privacy Act does not afford relief where plaintiff did not contest that record accurately reflected his assigned job title, but rather challenged his position classification -- a personnel decision judicially unreviewable under the CSRA -- but noting that nothing in opinion "should be taken to cast doubt on Hubbard's statement that 'the Privacy Act permits a federal job applicant to recover damages for an adverse personnel action actually caused by an inaccurate or incomplete record'" (quoting Hubbard, 809 F.2d at 5)); Holly v. HHS, No. 88-5372, 1990 WL 13096, at *1 (D.C. Cir. Feb. 7, 1990) (declining to decide whether CSRA in all events precludes Privacy Act claim challenging federal employment determination; instead applying doctrine of "issue preclusion" to bar individual "from relitigating an agency's maintenance of challenged records where an arbitrator -- in a negotiated grievance proceeding that included review of such records -- had previously found that no "[agency] manager acted arbitrarily, capriciously or unreasonably in determining [that plaintiff] was not qualified"). But see Holly v. HHS, No. 89-0137, slip op. at 1 (D.D.C. Aug. 9, 1991) (citing Kleiman for proposition that court lacks subject matter jurisdiction in Privacy Act damages action in which plaintiff challenges a personnel action governed by CSRA), aff'd, 968 F.2d 92 (D.C. Cir. 1992) (unpublished table decision).
In Rosen v. Walters, 719 F.2d 1422, 1424-25 (9th Cir. 1983), the Court of Appeals for the Ninth Circuit held that 38 U.S.C. § 211(a) (later repealed, now see 38 U.S.C. § 511 (2000)) -- a statute that broadly precludes judicial review of VA disability benefit decisions -- operated to bar a subsection (g)(1)(C) damages action. In Rosen, the plaintiff contended that the VA deliberately destroyed medical records pertinent to his disability claim, thereby preventing him from presenting all the evidence in his favor. Id. at 1424. The Ninth Circuit ruled that such a damages claim would "necessarily run counter to the purposes of § 211(a)" because it would require a determination as to whether "but for the missing records, Rosen should have been awarded disability benefits." Id. at 1425. Further, it declined to find that the Privacy Act "repealed by implication" 38 U.S.C. § 211(a). Id.; see also Thomas v. Principi, 265 F. Supp. 2d 35, 39-40 (D.D.C. 2003) (holding a claim for failure to maintain accurate and complete records to be barred by 38 U.S.C. § 511 "because the injuries that allegedly resulted from defendants' failure to maintain [plaintiff's] records all ultimately concern the adverse benefits determination made by the [VA]") (appeal pending); R.R. v. Dep't of the Army, 482 F. Supp. 770, 775-76 (D.D.C. 1980) (rejecting damages claim for lack of causation and noting that "[w]hat plaintiff apparently seeks to accomplish is to circumvent the statutory provisions making the VA's determinations of benefits final and not subject to judicial review"); cf. Kaswan v. VA, No. 81-3805, 1988 WL 98334, at *12 (E.D.N.Y. Sept. 15, 1988) (Privacy Act "not available to collaterally attack factual and legal decisions to grant or deny veterans benefits"), aff'd, 875 F.2d 856 (2d Cir. 1989) (unpublished table decision); Leib v. VA, 546 F. Supp. 758, 761-62 (D.D.C. 1982) ("The Privacy Act was not intended to be and should not be allowed to become a 'backdoor mechanism' to subvert the finality of agency determinations." (quoting Lyon v. United States, 94 F.R.D. 69, 72 (W.D. Okla. 1982))). Relying on Rosen, the District Court for the District of Idaho similarly held that the statutory scheme regarding the awarding of retirement benefits and "Congress's intent that OPM, MSPB and the Federal Circuit review decisions regarding the denial of disability retirement benefits" prohibited it from reviewing a Privacy Act damages claim where the plaintiff alleged that the VA's failure to maintain a file resulted in his being denied disability retirement benefits by OPM. Braun v. Brown, No. CV 97-0063-S, slip op. at 7-11 (D. Idaho June 22, 1998).
One district court has held that the provision of the Federal Employee's Compensation Act (FECA), 5 U.S.C. § 8116(c) (2000), that provides that the liability of the United States under FECA with respect to the injury of an employee is exclusive, operates to preclude a cause of action under the Privacy Act, and deprives the court of subject matter jurisdiction. Vogrin v. ATF, No. 598CV117, 2001 WL 777427, at **7-8 (N.D. W. Va. Mar. 30, 2001), aff'd per curiam, No. 01-1491 (4th Cir. July 3, 2001). The court ruled that the FECA's exclusivity provision "precludes a suit under the Privacy Act even if FECA does not provide benefits for all of the injuries that [the plaintiff] claims." Id. at *7; cf. Weber v. Henderson, 33 Fed. Appx. 610, 612 (3d Cir. 2002) (holding that Privacy Act claim was barred by res judicata where plaintiff could have raised Privacy Act claim in prior suit when he brought claim against same defendants as cause of action under FECA).
The District Court for the District of Columbia recently denied a motion by the government to dismiss a Privacy Act claim where the government argued that the Privacy Act claim was precluded by the exclusivity of relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (2000). In denying the motion, the court cited cases that addressed both Title VII and Privacy Act claims and stated that the government had "failed to cite any cases in which a Privacy Act claim is precluded by Title VII, and the Court is not aware of any." Velikonja v. Mueller, No. 03-0832, 2004 WL 836140, at *9 (D.D.C. Apr. 13, 2004).
In Perry v. FBI, 759 F.2d at 1275, the Court of Appeals for the Seventh Circuit, without discussing subsection (g)(1)(C), adopted a comparatively narrower construction of subsection (e)(5), holding that "when one federal agency sends records to another agency to be used by the latter in making a decision about someone, the responsibility for ensuring that the information is accurate, relevant, timely, and complete lies with the receiving agency -- the agency making 'the determination' about the person in question -- not the sending agency."
Subsequently, though, in Dickson v. OPM, 828 F.2d 32, 36-40 (D.C. Cir. 1987), the D.C. Circuit held that a subsection (g)(1)(C) damages lawsuit is proper against any agency maintaining a record violating the standard of fairness mandated by the Act, regardless of whether that agency is the one making the adverse determination. See also Blazy v. Tenet, 979 F. Supp. 10, 19 (D.D.C. 1997) ("The adverse determination need not be made by the agency that actually maintains the record so long as it flowed from the inaccurate record." (citing Dickson)), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539, 556 (S.D.N.Y. 1980) (applying subsection (e)(5) to agency whose records were used by another agency in making determination about individual); R.R. v. Dep't of the Army, 482 F. Supp. at 773 (same). In so holding, the D.C. Circuit noted that "the structure of the Act makes it abundantly clear that [sub]section (g) civil remedy actions operate independently of the obligations imposed on agency recordkeeping pursuant to [sub]section (e)(5)." Dickson, 828 F.2d at 38. In Dickson, the D.C. Circuit distinguished Perry on the grounds that "[a]ppellant is not proceeding under [sub]section (e)(5), Perry does not discuss [sub]section (g)(1)(C), and the construction of (e)(5) does not migrate by logic or statutory mandate to a separate [sub]section on civil remedies." 828 F.2d at 38; see also Doe v. FBI, 718 F. Supp. at 95 n.15 (noting conflict in cases but finding that Dickson's holding obviated need "to enter that thicket").
Assuming that causation is proven, "actual damages" sustained by the individual as a result of the failure, but in no case less than $1000, are recoverable. See 5 U.S.C. § 552a(g)(4)(A). The meaning of "actual damages" and the $1000 minimum recovery provision are discussed below under "Intentional/Willful Standard and Actual Damages in Accuracy and Other Damages Lawsuits."
"Whenever any agency . . . fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual [the individual may bring a civil action]." 5 U.S.C. § 552a(g)(1)(D).
Comment:
A Complaint is subject to dismissal, for failure to state a subsection (g)(1)(D) damages claim, if no "adverse effect" is alleged. See, e.g., Doe v. Chao, 124 S. Ct. 1204, 1211 (2004) ("'[A]dverse effect' acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue."); Quinn v. Stone, 978 F.2d 126, 135 (3d Cir. 1992) ("[T]he adverse effect requirement of (g)(1)(D) is, in effect, a standing requirement."); McCready v. Principi, 297 F. Supp. 2d 178, 194 (D.D.C. 2003) (same, quoting Quinn); Fort Hall Landowners Alliance, Inc. v. Bureau of Indian Affairs, No. CV-99-00052-E, slip op. at 12 (D. Idaho Mar. 29, 2001) (finding standing requirement met); Hass v. United States Air Force, 848 F. Supp. 926, 932 (D. Kan. 1994); Swenson v. USPS, No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at *30 (E.D. Cal. Mar. 10, 1994); Green v. USPS, No. 88-0539, 1989 U.S. Dist. LEXIS 6846, at **6-8 (S.D.N.Y. June 19, 1989); Tracy v. Soc. Sec. Admin., No. 88-C-570-S, slip op. at 4-5 (W.D. Wis. Sept. 23, 1988); Bryant v. Dep't of the Air Force, No. 85-4096, slip op. at 5 (D.D.C. Mar. 31, 1986); Harper v. United States, 423 F. Supp. 192, 196-97 (D.S.C. 1976); see also Robinett v. State Farm Mut. Auto. Ins. Co., No. 02-0842, 2002 WL 31498992, at *4 (E.D. La. Nov. 7, 2002) (stating that "[e]ven if [the agency's] communication did not technically satisfy the notice requirement of [subsection (e)(8)], plaintiff was not adversely affected by a failure to receive notice after the records were disclosed," because "plaintiff had no legal basis to prevent [the agency] from releasing his records" and in fact knew of the possible release and tried to prevent it), aff'd per curiam, 83 Fed. Appx. 638 (5th Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3615 (U.S. Mar. 10, 2004) (No. 03-1306); Crichton v. Cmty. Servs. Admin., 567 F. Supp. 322, 324 (S.D.N.Y. 1983) (mere maintenance of allegedly "secret file" insufficient to warrant damages where no showing of adverse effect); Church v. United States, 2 Gov't Disclosure Serv. (P-H) ¶ 81,350, at 81,911 (D. Md. Jan. 5, 1981) (no adverse effect from failure to provide subsection (e)(3) notice).
An "adverse effect" includes not only monetary damages, but also nonpecuniary and nonphysical harm, such as mental distress, embarrassment, or emotional trauma. See Doe v. Chao, 306 F.3d 170, 187 (4th Cir. 2002) (Michael, J., dissenting) ("The majority and I . . . also agree that emotional distress can qualify as an adverse effect."), aff'd, 124 S. Ct. 1204 (2004); Quinn, 978 F.2d at 135-36; Albright v. United States, 732 F.2d 181, 186 (D.C. Cir. 1984); Usher v. Sec'y of HHS, 721 F.2d 854, 856 (1st Cir. 1983); Parks v. IRS, 618 F.2d 677, 682-83 & n.2 (10th Cir. 1980); Schmidt v. VA, 218 F.R.D. 619, 632 (E.D. Wis. 2003); Romero-Vargas v. Shalala, 907 F. Supp. 1128, 1134 (N.D. Ohio 1995); see also Englerius v. VA, 837 F.2d 895, 897 (9th Cir. 1988); McCready v. Principi, 297 F. Supp. 2d 178, 194 (D.D.C. 2003) (plaintiff's complaints that "her reputation has been significantly damaged . . . and that she is cut off from work assignments commensurate with her grade . . . [are] sufficient to constitute an adverse effect under subsection (g)(1)(D)"); cf. Doyon v. United States Dep't of Justice, 304 F. Supp. 2d 32, 35 (D.D.C. 2004) ("assum[ing] without deciding that [the Bureau of Prisons'] decision 'to restrict [plaintiff] from a transfer and many Institutional programs' . . . is an adverse determination," but finding the claim to have been rendered moot) (appeal pending). But see Risch v. Henderson, 128 F. Supp. 2d 437, 441 (E.D. Mich. 1999) (conflating the concepts of "adverse effect" and "actual damages," and stating that even assuming that there had been a violation of the Privacy Act for the maintenance of alleged "secret files," because plaintiff claimed only "'extreme mental anguish and mental concern and worry,'" she had "failed to demonstrate [an] 'adverse effect'"), aff'd sub nom. Risch v. USPS, 244 F.3d 510 (6th Cir. 2001).
For a novel interpretation of "adverse effect," see Bagwell v. Brannon, No. 82-8711, slip op. at 5-6 (11th Cir. Feb. 22, 1984), in which the Court of Appeals for the Eleventh Circuit found that no "adverse effect" was caused by the government's disclosure of an employee's personnel file (during cross-examination) while defending against the employee's tort lawsuit, because the "employee created the risk that pertinent but embarrassing aspects of his work record would be publicized" and "disclosure was consistent with the purpose for which the information was originally collected."
The threshold showing of "adverse effect," which typically is not difficult for a plaintiff to satisfy, should carefully be distinguished from the conceptually separate requirement of "actual damages," discussed below.
A showing of causation -- that the violation caused an adverse effect, and that the violation caused "actual damages," as discussed below -- is also required. See, e.g., Mandel v. OPM, 79 Fed. Appx. 479, 481-82 (2d Cir. 2003), aff'g 244 F. Supp. 2d 146, 153 (E.D.N.Y. 2003); Orekoya v. Mooney, 330 F.3d 1, 10 (1st Cir. 2003); Quinn, 978 F.2d at 135; Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986); Albright, 732 F.2d at 186-87; Edison v. Dep't of the Army, 672 F.2d 840, 842, 845 (11th Cir. 1982); Harmer v. Perry, No. 95-4197, 1998 WL 229637, at *3 (E.D. Pa. Apr. 28, 1998), aff'd, No. 98-1532 (3d Cir. Jan. 29, 1999); Swenson, No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at *30 (E.D. Cal. Mar. 10, 1994); Connelly v. Comptroller of the Currency, No. H-84-3783, slip op. at 4 (S.D. Tex. June 3, 1991); Rodgers v. Dep't of the Army, 676 F. Supp. 858, 862 (N.D. Ill. 1988); Tuesburg v. HUD, 652 F. Supp. 1044, 1048 (E.D. Mo. 1987); Ely v. Dep't of Justice, 610 F. Supp. 942, 946 (N.D. Ill. 1985), aff'd, 792 F.2d 142 (7th Cir. 1986) (unpublished table decision). But see Rickles v. Marsh, No. 3:88-100, slip op. at 8-9 (N.D. Ga. Jan. 10, 1990) (aberrational decision awarding minimum damages even in absence of causation).
It also has been held that "[f]or there to be a causal link between the injury and the violation of the Act, the injury necessarily must be distinct and independent from the violation of the Act itself." Schmidt v. VA, 218 F.R.D. at 632; see also Doe v. Chao, 306 F.3d at 186 (Michaels, J., dissenting) ("The causal prong makes it especially clear that an adverse effect must be something distinct from the intentional and willful violation itself. For if a violation of the Privacy Act was sufficient to constitute an adverse effect, there could be no question of whether the violation caused the adverse effect, and hence the causal prong would be superfluous."); Quinn v. Stone, 978 F.2d 126, 135 (3d Cir. 1992) (stating that in addition to establishing an adverse effect sufficient to confer standing, "plaintiff must also allege a causal connection between the agency violation and the adverse effect"); cf. Doe v. Chao, 124 S. Ct. 1204, 1212 (2004) ("The 'entitle[ment] to recovery' necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of the Act producing some adverse effect."). But cf. Romero-Vargas v. Shalala, 907 F. Supp. 1128, 1134-35 (N.D. Ohio 1995) (stating that "emotional distress caused by the fact that the plaintiff's privacy has been violated is itself an adverse effect, and that statutory damages can be awarded without an independent showing of adverse effects"; stating further in memorandum on motion to alter or amend judgment that "[i]t is eminently reasonable to infer that Plaintiffs suffered mental distress by the fact of knowing their personal information had been disclosed").
In addition, an agency must be found to have acted in an "intentional or willful" manner in order for a damages action to succeed. See 5 U.S.C. § 552a(g)(4). This standard is discussed below under "Intentional/Willful Standard and Actual Damages in Accuracy and Other Damages Lawsuits."
The issue of the Privacy Act's applicability to disclosures of tax information has been analyzed most recently by the Court of Appeals for the District of Columbia Circuit in Gardner v. United States, 213 F.3d 735 (D.C. Cir. 2000), aff'g No. 96-1467, 1999 U.S. Dist. LEXIS 2195, at **14-17 (D.D.C. Jan. 29, 1999). In Gardner, the D.C. Circuit concluded that the Internal Revenue Code preempts the Privacy Act for remedies for disclosures of tax information, holding that 26 U.S.C. § 6103 is "the exclusive remedy for a taxpayer claiming unlawful disclosure of his or her tax returns and tax information." 213 F.3d at 741-42. Similarly, although not going quite as far, the Court of Appeals for the Fifth Circuit had previously held that "[26 U.S.C.] § 6103 is a more detailed statute that should preempt the more general remedies of the Privacy Act, at least where . . . those remedies are in conflict." Hobbs v. United States, 209 F.3d 408, 412 (5th Cir. 2000) (finding § 6103 and the Privacy Act to be "in conflict" where disclosure fell within one of the exceptions in § 6103, and holding that "[t]o the extent that the Privacy Act would recognize a cause of action for unauthorized disclosure of tax return information even where § 6103 would provide an exception for the particular disclosure, § 6103 trumps the Privacy Act"). Other courts, too, have found the provisions of the tax code to be exclusive as to wrongful disclosures of tax information. See Schwartz v. Kempf, No. 4:02-cv-198, 2004 U.S. Dist. LEXIS 2238, at **10-12 (W.D. Mich. Jan. 22, 2004) (citing Gardner and finding the provisions of the Privacy Act to be "trumped by the more specific provisions of the Internal Revenue Code found in 26 U.S.C. § 6103"); Berridge v. Heiser, 993 F. Supp. 1136, 1144-45 (S.D. Ohio 1997) (holding that 26 U.S.C. § 7431(a)(1), which provides a mechanism for the award of civil damages for unauthorized disclosure of tax return information (as defined in 26 U.S.C. § 6103), is the "exclusive remedy by which [plaintiff] may bring a cause of action for improper disclosure of return information"); Gov't Nat'l Mortgage, Ass'n v. Lunsford, No. 95-273, 1996 U.S. Dist. LEXIS 1591, at *8 (E.D. Ky. Feb. 2, 1996) (dismissing a Privacy Act claim for wrongful disclosure (presumably brought under subsection (g)(1)(D)) and stating that "26 U.S.C. § 7852(e) precludes the maintenance of Privacy Act damages remedies in matters concerning federal tax liabilities").
Nevertheless, the Courts of Appeals for the Fourth and the Eighth Circuits, as well as the United States Tax Court, have readily applied the Privacy Act as well as the provisions of the tax code to disclosures of tax return information, with no discussion of the issue of preemption. Scrimgeour v. Internal Revenue, 149 F.3d 318, 325-26 (4th Cir. 1998) (affirming denial of damages and finding that the agency had not acted with gross negligence under 26 U.S.C. § 7431 or greater than gross negligence under the Privacy Act for wrongful disclosure claims resting upon identical factual allegations); Taylor v. United States, 106 F.3d 833, 835-37 (8th Cir. 1997) (affirming finding that disclosures did not violate 26 U.S.C. § 6103 or Privacy Act); Stone v. Comm'r, No. 3812-97, 1998 WL 547043 (T.C. Aug. 31, 1998) (finding that disclosures did not violate either 26 U.S.C. § 6103 or Privacy Act). In addition, one district court specifically considered the issue and arrived at the conclusion that the Privacy Act's remedies are available for the wrongful disclosure of tax return information. Sinicki v. United States Dep't of Treasury, No. 97 CIV. 0901, 1998 WL 80188, at **3-5 (S.D.N.Y. Feb. 24, 1998) (denying motion to dismiss Privacy Act wrongful disclosure claim and stating that "the language, structure, purpose and legislative history of Section 6103 do not make manifest and clear a legislative intent to repeal the Privacy Act as it applies to tax return information").
Several district courts have held that various sections of the Internal Revenue Code prevent their exercise of subject matter jurisdiction over Privacy Act claims brought under subsection (g)(1)(D) for alleged violations of other provisions of the Privacy Act. See Schwartz v. Kempf, 2004 U.S. Dist. LEXIS 2238, at **10-12 (where plaintiffs alleged that the IRS violated the Privacy Act by contacting persons regarding plaintiffs' tax situation, citing 26 U.S.C. § 7852(e) and stating that the "provisions of the Privacy Act do not apply, either directly or indirectly, to assessing the possibility of a tax liability"); Berridge v. Heiser, 993 F. Supp. 1136, 1145 (S.D. Ohio 1997) (holding that 26 U.S.C. § 7852(e) prevented it from exercising jurisdiction over plaintiff's Privacy Act claims under subsections (e)(2), (e)(5), and (e)(6) related to tax liability); Estate of Myers v. United States, 842 F. Supp. 1297, 1302-04 (E.D. Wash. 1993) (dismissing Privacy Act subsection (g)(1)(D) damages claim and applying § 7852(e)'s jurisdictional bar to preclude subject matter jurisdiction to consider action against IRS for alleged violation of subsection (e)(3) concerning summons issued to assist in determination of foreign tax liability); cf. Smilde v. Richardson, Comm'r, No. 97-568, 1997 U.S. Dist. LEXIS 15050, at **6-7 (D. Minn. Aug. 28, 1997) (relying on limitation of Privacy Act applicability pursuant to sections 6103 and 7852(e), and finding that "Privacy Act does not support subject matter jurisdiction" to enjoin IRS from contracting out processing of tax returns), aff'd per curiam, 141 F.3d 1170 (8th Cir. 1998) (unpublished table decision); Trimble v. United States, No. 92-74219, 1993 WL 288295, at *1 (E.D. Mich. May 18, 1993) (citing 26 U.S.C. § 7852(e) for Privacy Act's inapplicability and dismissing unspecified Privacy Act claim), aff'd, 28 F.3d 1214 (6th Cir. 1994) (unpublished table decision).
Consistent with case law under subsection (g)(1)(C), the District Court for the District of Columbia has stated that a plaintiff "cannot rely on any arguable violation of the Privacy Act" -- in that case an alleged wrongful disclosure -- to "collaterally attack" an agency personnel decision. Hanna v. Herman, 121 F. Supp. 2d 113, 123-24 (D.D.C. 2000) (appeal of MSPB decision upholding plaintiff's demotion; finding that MSPB did not err in refusing to address plaintiff's Privacy Act argument, but, "assuming arguendo that [he] preserved [it]," discussing merits of plaintiff's "Privacy Act defense to the demotion"), summary affirmance granted sub nom. Hanna v. Chao, No. 00-5433 (D.C. Cir. Apr. 11, 2001).
Note also that one district court has held that the exclusivity provision of the Federal Employee's Compensation Act (FECA) precludes a cause of action under the Privacy Act. See Vogrin v. ATF, No. 598CV117, 2001 WL 777427, at **7-8 (N.D. W. Va. Mar. 30, 2001), aff'd per curiam, No. 01-1491 (4th Cir. July 3, 2001) (discussed above under "Accuracy Lawsuits for Damages").
E. Intentional/Willful Standard and Actual Damages in Accuracy and Other Damages Lawsuits
"In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of . . . actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000." 5 U.S.C. § 552a(g)(4).
Comment:
In order for there to be any liability in a subsection (g)(1)(C) or (D) damages lawsuit, the agency must have acted in an "intentional or willful" manner. 5 U.S.C. § 552a(g)(4). It is important to understand that the words "intentional" and "willful" in subsection (g)(4) do not have their vernacular meanings; instead, they are "terms of art." White v. OPM, 840 F.2d 85, 87 (D.C. Cir. 1988) (per curiam). The Act's legislative history indicates that this unique standard is "[o]n a continuum between negligence and the very high standard of willful, arbitrary, or capricious conduct," and that it "is viewed as only somewhat greater than gross negligence." 120 Cong. Rec. 40,406 (1974), reprinted in Source Book at 862.
While not requiring premeditated malice, see Parks v. IRS, 618 F.2d 677, 683 (10th Cir. 1980), the voluminous case law construing this standard makes clear that it is a formidable barrier for a plaintiff seeking damages. See, e.g., Puerta v. HHS, No. 99-55497, 2000 WL 863974, at *3 (9th Cir. June 28, 2000) (where agency, upon advice of its general counsel's office, disclosed documents in response to grand jury subpoena, agency "may have intentionally produced [the] documents, but it does not necessarily follow that [it] intentionally violated . . . the Privacy Act"); Scrimgeour v. Internal Revenue, 149 F.3d 318, 326 (4th Cir. 1998) (plaintiff did not "demonstrate the higher standard of culpability required for recovery under the Privacy Act" where court had already determined that IRS's release of his tax returns did not meet lower standard of gross negligence for recovery under provision of Internal Revenue Code); Deters v. United States Parole Comm'n, 85 F.3d 655, 660 (D.C. Cir. 1996) (Parole Commission did not "'flagrantly disregard'" plaintiff's privacy when it supplemented his file with rebuttal quantity of drugs attributed to him in presentence investigation report (PSI) and offered inmate hearing concerning accuracy of disputed report and "[e]ven if the Commission inadvertently or negligently violated [plaintiff's] Privacy Act rights by not examining the accuracy of the PSI before preparing a preliminary assessment . . . such a violation (if any) could in no sense be deemed 'patently egregious and unlawful'" (quoting Albright and Laningham, infra)); Bailey v. Clay, No. 95-7533, 1996 WL 155160, at *1 (4th Cir. Mar. 29, 1996) (stating that because appellant had alleged mere negligence, he had not stated claim under Privacy Act); Nathanson v. FDIC, No. 95-1604, 1996 U.S. App. LEXIS 3111, at **3-6 (1st Cir. Feb. 22, 1996) (per curiam) (although declining to affirm district court opinion on basis that disclosure pursuant to routine use was proper given that published agency commentary conflicted with such routine use, nevertheless affirming on grounds that disclosure was not intentional and willful because routine use "afforded reasonable grounds for belie[f] that [agency employee's] conduct was lawful"); Kellett v. United States Bureau of Prisons, No. 94-1898, 1995 U.S. App. LEXIS 26746, at **8-10 (1st Cir. Sept. 18, 1995) (per curiam) (standard requires "showing that the agency acted without grounds for believing its action to be lawful, or in 'flagrant disregard' for rights under the Act" (quoting Wilborn v. HHS, infra)); Rose v. United States, 905 F.2d 1257, 1260 (9th Cir. 1990) ("conduct amounting to more than gross negligence" is required); Johnston v. Horne, 875 F.2d 1415, 1422-23 (9th Cir. 1989) (same); Scullion v. VA, No. 87-2405, slip op. at 4-8 (7th Cir. June 22, 1988) (no damages where agency relied upon apparently valid and unrevoked written consent to disclose records); Andrews v. VA, 838 F.2d 418, 424-25 (10th Cir. 1988) (standard "clearly requires conduct amounting to more than gross negligence" and that "must amount to, at the very least, reckless behavior"); Reuber v. United States, 829 F.2d 133, 144 (D.C. Cir. 1987) (standard not met as no evidence showed maintenance of record "was anything other than a good-faith effort to preserve an unsolicited and possibly useful piece of information"); Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987) (per curiam) (violation must be so "'patently egregious and unlawful'" that anyone undertaking the conduct "'should have known it unlawful'" (quoting Wisdom v. HUD, infra)); Hill v. United States Air Force, 795 F.2d 1067, 1070 (D.C. Cir. 1986) (per curiam) (no damages where no evidence of conduct greater than gross negligence); Moskiewicz v. USDA, 791 F.2d 561, 564 (7th Cir. 1986) (noting that "elements of recklessness often have been a key characteristic incorporated into a definition of willful and intentional conduct" (citing Sorenson v. United States, 521 F.2d 325 (9th Cir. 1975); South v. FBI, 508 F. Supp. 1104 (N.D. Ill. 1981))); Dowd v. IRS, 776 F.2d 1083, 1084 (2d Cir. 1985) (per curiam) ("mere administrative error" in negligently destroying files not a predicate for liability); Chapman v. NASA, 736 F.2d 238, 242-43 (5th Cir. 1984) (per curiam) (standard not met where agency "reasonably could have thought" untimely filing of evaluations was proper; "before our previous opinion 'timely' had no precise legal meaning in this circuit"); Albright v. United States, 732 F.2d 181, 189-90 (D.C. Cir. 1984) (standard requires that agency "act without grounds for believing it to be lawful, or by flagrantly disregarding others' rights under the Act"); Wisdom v. HUD, 713 F.2d 422, 424-25 (8th Cir. 1983) (good faith release of loan default records pursuant to unchallenged "Handbook" not willful violation of Act); Perry v. Block, 684 F.2d 121, 129 (D.C. Cir. 1982) (delayed disclosure of documents through administrative oversight not intentional or willful); Edison v. Dep't of the Army, 672 F.2d 840, 846 (11th Cir. 1982) (failure to prove agency acted "unreasonably" in maintaining records precludes finding intentional or willful conduct); Bruce v. United States, 621 F.2d 914, 917 (8th Cir. 1980) (standard not met where agency relied on regulations permitting disclosure of records pursuant to subpoena, as there were "at that time no regulations or other authority to the contrary"); Pontecorvo v. FBI, No. 00-1511, slip op. at 4, 10-15 (D.D.C. Mar. 5, 2004) (finding that the "greater than gross negligence" standard was not met where an FBI Special Agent disclosed information about plaintiff's prior arrest and altercation in the course of conducting background interviews, and stating that the "disclosures that occurred . . . were intended to ferret out potentially relevant information about Plaintiff's suitability for a security clearance"); Wiley v. VA, 176 F. Supp. 2d 747, 756-57 (E.D. Mich. 2001) (Even if the agency violated the Privacy Act by disclosing a VA claims file to an employer pursuant to a broadly written release, the agency's actions were not "beyond grossly negligent," as "reasonable minds clearly could differ on the scope of the release," and thus the agency's reliance on it "cannot be deemed wholly groundless."); Mallory v. DOD, No. 97-2377, slip op. at 9-14 (D.D.C. Sept. 30, 1999) (although DOD disclosure of record of plaintiff's rifle purchase to corporation was unlawful, intentional and willful standard was not met because statute gave DOD officials grounds to believe that transfer of such records was implicitly required by statute); Wesley v. Don Stein Buick, Inc., 985 F. Supp. 1288, 1305-06 (D. Kan. 1997) (standard not met where, although disclosure was "unlawful," employee acted with belief that disclosure was proper, and it would have been proper if procedures set forth in routine use had been followed); Armstrong v. United States Bureau of Prisons, 976 F. Supp. 17, 22 (D.D.C. 1997) (standard not met where Bureau of Prisons refused to amend prison records to incorporate favorable information from inmate's prior incarceration in accordance with Bureau of Prisons guidelines), summary affirmance granted sub nom. Armstrong v. Fed. Bureau of Prisons, No. 97-5208, 1998 WL 65543 (D.C. Cir. Jan. 30, 1998); Porter v. USPS, No. CV595-30, slip op. at 10, 13, 21-22 (S.D. Ga. July 24, 1997) (concluding that Postal Service acted with "mere negligence" when it disclosed letter from plaintiff's attorney written as response to plaintiff's proposed termination to two union officials with belief that they had "a right and duty to know the disciplinary affairs of a fellow postal worker" even though plaintiff had not filed a grievance through union and "had specifically instructed the management that he did not want anyone from the [union] representing his interests"), aff'd, 166 F.3d 352 (11th Cir. 1998) (unpublished table decision); Harris v. USDA, No. 3:92CV-283-H, slip op. at 1-2, 4-5 (W.D. Ky. May 14, 1996) (standard not met where agency acted pursuant to Correspondence Management Handbook in maintaining supporting documentation for plaintiff's 1975 suspension), aff'd, 124 F.3d 197 (6th Cir. 1997) (unpublished table decision); Purrier v. HHS, No. 95-CV-6203, slip op. at 6-7 (W.D.N.Y. Mar. 15, 1996) ("given [defendant's] knowledge that she was subject to a grand jury subpoena," disclosure of limited information "even if [it] did violate the Act (which, with respect to plaintiff at least, [it] did not), fell far short of the kind of flagrant disregard of plaintiff's rights that is required"); Smith v. United States Bureau of Prisons, No. 94-1798, 1996 WL 43556, at *2 (D.D.C. Jan. 31, 1996) (standard not met where adverse determination had been rectified; fact that certain forms were corrected immediately, even though another form may not have been, "indicates that BOP officials did not intend to maintain plaintiff[']s records incorrectly"); Henson v. Brown, No. 95-213, slip op. at 5-7 (D. Md. June 23, 1995) (disclosure of medical records in response to subpoena signed by judge to attorney for plaintiff's ex-wife, rather than to court, did not "constitute an extreme departure from the standard of ordinary care"); Baitey v. VA, No. 8:CV89-706, slip op. at 8 (D. Neb. June 21, 1995) (standard not met where plaintiff failed to prove that VA acted in "flagrant or reckless disregard of [plaintiff's] rights under the Privacy Act" when it disclosed his medical records in response to incomplete and unsigned medical authorization); Olivares v. NASA, 882 F. Supp. 1545, 1549-50 (D. Md. 1995) (NASA's actions in contacting educational institutions to verify and correct discrepancies in plaintiff's record, even assuming initial consent to contact those institutions was limited, were not even negligent and do not "come close" to meeting standard), aff'd, 103 F.3d 119 (4th Cir. 1996) (unpublished table decision); Webb v. Magaw, 880 F. Supp. 20, 25 (D.D.C. 1995) (stating that even if court had found Privacy Act violation, agency conduct "at worst . . . would only amount to negligence . . . and would not amount to willful, intentional or even reckless disregard"); Sterling v. United States, 826 F. Supp. 570, 572 (D.D.C. 1993) (standard not met where agency's "efforts both before and after the release of information . . . indicate a sensitivity to the potential harm the release might cause and represent attempts to avert that harm"), summary affirmance granted, No. 93-5264 (D.C. Cir. Mar. 11, 1994); Dickson v. OPM, No. 83-3503, 1991 WL 423968, at **16-17 (D.D.C. Aug. 27, 1991) ("mere negligence" due to failure to follow internal guidelines not enough to show willfulness), summary affirmance granted, No. 91-5363 (D.C. Cir. Aug. 31, 1992); Stephens v. TVA, 754 F. Supp. 579, 582 (E.D. Tenn. 1990) (no damages where "some authority" existed for proposition that retrieval not initially and directly from system of records was not a "disclosure," and agency attempted to sanitize disclosed records); Brumley v. United States Dep't of Labor, No. 87-2220, 1990 WL 640002, at **2-3 (D.D.C. Dec. 5, 1990) (no damages for delayed response to amendment request); Alexander v. IRS, No. 86-0414, 1987 WL 13958, at *6 (D.D.C. June 30, 1987) (standard not met where agency relied on OMB Guidelines and internal manual in interviewing third parties prior to contacting plaintiff); Blanton v. United States Dep't of Justice, No. 82-0452, slip op. at 6-8 (D.D.C. Feb. 17, 1984) (unauthorized "leak" of record not intentional or willful agency conduct); Krohn v. United States Dep't of Justice, No. 78-1536, slip op. at 3-7 (D.D.C. Nov. 29, 1984) (standard not met where agency relied in good faith on previously unchallenged routine use to publicly file records with court); Daniels v. St. Louis VA Reg'l Office, 561 F. Supp. 250, 252 (E.D. Mo. 1983) (mere delay in disclosure due in part to plaintiff's failure to pay fees not intentional or willful); Doe v. GSA, 544 F. Supp. 530, 541-42 (D. Md. 1982) (disclosure not "wholly unreasonable" where "some kind of consent" given for release of psychiatric records and where agency employees believed that release was authorized under GSA's interpretation of its own guidelines, even though court concluded that such interpretation was erroneous); cf. Stokes v. Barnhart, 257 F. Supp. 2d 288, 299-300 (D. Me. 2003) (rejecting argument that leave to amend Complaint would be futile because employee who made disclosure did not believe that her conduct violated any law or regulation, and, citing Andrews and Albright, stating that employee's "belief does not establish that anyone engaging in the same conduct should not have known that the conduct was unlawful or that it did not constitute flagrant disregard for the plaintiff's rights under the Act, if any").
While some district court decisions have found "intentional or willful" violations of the statute, see, e.g., Doe v. Herman, No. 297CV00043, 1999 WL 1000212, at **13-14 (W.D. Va. Oct. 29, 1999) (magistrate's recommendation), adopted in pertinent part & rev'd in other part, 2000 WL 34204432 (W.D. Va. July 24, 2000), aff'd in part, rev'd in part, & remanded, on other grounds sub nom. Doe v. Chao, 306 F.3d 170 (4th Cir. 2002), aff'd, 124 S. Ct. 1204 (2004); Stewart v. FBI, No. 97-1595, slip op. at 5-8 (D. Or. Mar. 12, 1999), withdrawn by stipulation as part of settlement, 2000 WL 739253 (D. Or. May 12, 2000); Tomasello v. Rubin, No. 93-1326, slip op. at 17-19 (D.D.C. Aug. 19, 1997), aff'd on other grounds, 167 F.3d 612 (D.C. Cir. 1999); Porter, No. CV595-30, slip op. at 22-23 (S.D. Ga. July 24, 1997); Romero-Vargas v. Shalala, 907 F. Supp. 1128, 1133-34 (N.D. Ohio 1995); Swenson v. USPS, No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at **33-45 (E.D. Cal. Mar. 10, 1994); Connelly v. Comptroller of the Currency, No. H-84-3783, slip op. at 25-27 (S.D. Tex. June 3, 1991); MacDonald v. VA, No. 87-544-CIV-T-15A, slip op. at 4, 7 (M.D. Fla. July 28, 1989); Fitzpatrick v. IRS, 1 Gov't Disclosure Serv. (P-H) ¶ 80,232, at 80,580 (N.D. Ga. Aug. 22, 1980), aff'd in part, vacated & remanded in part, on other grounds, 655 F.2d 327 (11th Cir. 1982); see also Louis v. VA, No. C95-5606, slip op. at 4-5 (W.D. Wash. Oct. 31, 1996) (awarding damages where agency conduct amounted to "reckless disregard" of plaintiff's rights), as yet the only court of appeals to have found "intentional or willful" violations of the statute is the Court of Appeals for the Ninth Circuit, see Louis v. United States Dep't of Labor, 19 Fed. Appx. 487, 488-89 (9th Cir. 2001); Wilborn v. HHS, 49 F.3d 597, 602-03 (9th Cir. 1995); Covert v. Harrington, 876 F.2d 751, 756-57 (9th Cir. 1989). But see generally Downie v. City of Middleburg Hts., 301 F.3d 688, 697-99 (6th Cir. 2002) (in course of ruling that remedial scheme of Privacy Act barred Bivens action, citing Toolasprashad, infra, and stating that "[w]hile the Privacy Act does not provide a separate damages remedy for the intentional or willful creation, maintenance, or dissemination of false records in retaliation for an individual's First Amendment rights, we believe that retaliation on any basis clearly constitutes intentional or willful action"); Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 584 (D.C. Cir. 2002) (remanding case where district court had found that record would not support finding of intentional and willful action, and stating that, "[i]f proven, retaliatory fabrication of prison records would certainly meet [our] definition [as articulated in Deters] of a willful or intentional Privacy Act violation").
In Louis, the plaintiff had sought reconsideration of the denial of his claim for Federal Employees Compensation benefits by the Department of Labor. See Louis v. United States Dep't of Labor, 19 Fed. Appx. at 488. In denying the plaintiff's request for reconsideration, the Department of Labor's rationale indicated that it had considered the entirety of its prior decision, including a portion of that prior decision that impermissibly relied on a memorandum that had been the subject of prior litigation by the plaintiff. See 19 Fed. Appx. at 488; see also Louis v. Dep't of Labor, No. C99-5195, slip op. at 1-2 (W.D. Wash. Oct. 15, 1999), aff'd in part, rev'd in part & remanded sub nom. Louis v. United States Dep't of Labor, 19 Fed. Appx. 487 (9th Cir. 2001); Louis v. Dep't of Labor, No. C97-5521 (W.D. Wash. Feb. 27, 1998) (magistrate's recommendation), adopted (W.D. Wash. Mar. 23, 1998); Louis v. VA, No. C95-5606 (W.D. Wash. Oct. 31, 1996). Specifically, the district court in a prior action had ordered that the agency "destroy all but one known copy of the document" and that it "maintain that single copy in a sealed envelope to be revealed to no person, agency, or entity." Louis v. Dep't of Labor, No. C97-5521, slip op. at 3 (W.D. Wash. Feb. 27, 1998). The Ninth Circuit ruled that the Department of Labor violated the Privacy Act when it failed "to maintain its records in such a way as to indicate to the claims examiner that it could not rely on [that memorandum] in reviewing Louis' request for reconsideration." 19 Fed. Appx. at 489. The court stated that the agency's "disregard of both the district court's prior decision rendering reliance on [the memorandum] impermissible and its own assurance that it would annotate the memo in its files 'to reflect that it was not to be considered in any future action related to Dr. Louis' claim' constitutes a willful failure on the part of the government to abide by its obligations, and proximately resulted in the government's refusal to reconsider its earlier decision, thereby adversely affecting [plaintiff]." Id.
In Wilborn, the plaintiff, an attorney who previously had been employed by the Department of Health and Human Services, sought damages under the Privacy Act for the disclosure of adverse personnel information about him that was disclosed in an opinion by an Administrative Law Judge before whom he had presented a case. 49 F.3d at 599-602. The court ruled that the "uncontroverted facts plainly establish that the ALJ disclosed the information . . . without any ground for believing it to be lawful and in flagrant disregard of the rights of Wilborn under the Privacy Act." Id. at 602. The Ninth Circuit noted that not only was the ALJ personally familiar with the Privacy Act and had advised his staff concerning the Act's disclosure prohibition, but further, that the ALJ had been informed by an agency attorney that the language at issue was "inappropriate and should not be included in the decision." Id. Particularly troubling in this case is the additional fact that all information pertaining to the adverse personnel record was required to, and in fact had been, removed from the system of records by the ALJ as a result of a grievance action filed by the plaintiff. Id.
In Covert, the Ninth Circuit ruled that the Department of Energy Inspector General's routine use disclosure of prosecutive reports, showing possible criminal fraud, to the Justice Department violated subsection (e)(3)(C) because, at the time of their original collection by another component of the agency, portions of those reports -- consisting of personnel security questionnaires submitted by the plaintiffs -- did not provide actual notice of the routine use. 876 F.2d 751, 754-57 (9th Cir. 1989). The Ninth Circuit held that the failure to comply with subsection (e)(3)(C) was "greater than grossly negligent" even though the Inspector General was relying on statutes, regulations and disclosure practices that appeared to permit disclosure, and no prior court had ever suggested that noncompliance with subsection (e)(3)(C) would render a subsequent subsection (b)(3) routine use disclosure improper. See id. Though it paid lip service to the correct standard, the Ninth Circuit in Covert actually applied a strict liability standard -- one based upon the government's failure to anticipate its novel "linkage" between subsection (e)(3)(C) and subsection (b)(3) -- a standard which markedly departs from settled precedent. Compare Covert, 876 F.2d at 756-57, with Chapman, 736 F.2d at 243, Wisdom, 713 F.2d at 424-25, and Bruce, 621 F.2d at 917. See also Doe v. Stephens, 851 F.2d 1457, 1462 (D.C. Cir. 1988) ("We cannot, in short, fairly predicate negligence liability on the basis of the VA's failure to predict the precise statutory interpretation that led this court in [Doe v. DiGenova, 779 F.2d 74, 79-85 (D.C. Cir. 1985)] to reject the agency's reliance on the [law indicating that a subpoena constituted a subsection (b)(11) court order].").
The Court of Appeals for the Third Circuit has held that the Privacy Act -- with its stringent "greater than gross negligence" standard for liability -- does not indicate a congressional intent to limit an individual's right under state law to recover damages caused by the merely negligent disclosure of a psychiatric report. See O'Donnell v. United States, 891 F.2d 1079, 1083-87 (3d Cir. 1989) (Federal Tort Claims Act case). But see Hager v. United States, No. 86-3555, slip op. at 7-8 (N.D. Ohio Oct. 20, 1987) (Privacy Act preempts FTCA action alleging wrongful disclosure); cf. Doe v. DiGenova, 642 F. Supp. 624, 629-30, 632 (D.D.C. 1986) (holding state law/FTCA claim preempted by Veterans' Records Statute, 38U.S.C. §§ 3301-3302 (renumbered as 38 U.S.C. §§ 5701-5702 (2000))), aff'd in pertinent part, rev'd in part & remanded sub nom. Doe v. Stephens, 851 F.2d 1457 (D.C. Cir. 1988).
Assuming that a Privacy Act plaintiff can show: (1) a violation; (2) an adverse effect; (3) causation; and (4) intentional or willful agency conduct, then "actual damages sustained by the [plaintiff are recoverable], but in no case shall a person [who is] entitled to recovery receive less than the sum of $1,000." 5 U.S.C. § 552a(g)(4)(A).
The Court of Appeals for the District of Columbia Circuit has ruled that a plaintiff was not entitled to $1000 for each copy of a letter that was disclosed in violation of the Privacy Act to 4500 individuals. See Tomasello v. Rubin, 167 F.3d 612, 617-18 (D.C. Cir. 1999). The D.C. Circuit stated that "[w]hile it may be linguistically possible to read the language [of § 552a(g)(4)] so as to forbid the aggregation of several more-or-less contemporaneous transmissions of the same record into one 'act[]' or 'failure [to comply with the Privacy Act],' the result [sought in this case] shows that such a reading defies common sense." Id. at 618. In reaching its determination "that each letter disclosure was not independently compensable," the D.C. Circuit also reasoned that as a waiver of sovereign immunity, subsection (g)(4) "'must be construed strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires.'" Id. (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992)); cf. Siddiqui v. United States, 359 F.3d 1200, 1201-03 (9th Cir. 2004) (non-Privacy Act case, finding that disclosure of tax information by IRS agent to 100 people in one room at one time constituted one act of disclosure for purposes of determining statutory damages under Internal Revenue Code).
The issue of what needs to be shown in order to recover damages under subsection (g)(4)(A) historically had engendered some inconsistent and confusing case law. See, e.g., Orekoya v. Mooney, 330 F.3d 1, 7-8 (1st Cir. 2003) (holding that "statutory damages [of $1000], if not actual damages, are available to individuals who suffer adverse effects from intentional and willful violations of the act and that provable emotional distress may constitute an adverse effect"); Wilborn v. HHS, 49 F.3d 597, 603 (9th Cir. 1995) (seemingly not requiring "proven injuries"; finding no need to remand to district court for determination of amount of damages because plaintiff had limited damages sought to statutory minimum); Quinn v. Stone, 978 F.2d 126, 135 (3d Cir. 1992) (stating that subsection (g)(1)(D) "gives an individual adversely affected by any agency violation of the Act a judicial remedy whereby the individual may seek damages"); Waters v. Thornburg, 888 F.2d 870, 872 (D.C. Cir. 1989) (stating that to obtain relief under the Privacy Act plaintiff must establish that (1) the agency violated a provision of the Act; "(2) the violation of the Act was 'intentional or willful,'" and "(3) this action had an 'adverse effect' on the plaintiff" and that "[i]f these three factors are satisfied, the plaintiff is entitled to the greater of $1,000 or the actual damages sustained"); Johnson v. Dep't of Treasury, IRS, 700 F.2d 971, 977 & n.12, 986 (5th Cir. 1983) (recognizing entitlement to statutory minimum for proven physical and mental injuries even if "actual damages" were interpreted to include only pecuniary harm, but going on to hold that "actual damages" includes "proven mental and physical injuries"); Fitzpatrick v. IRS, 665 F.2d 327, 329-31 (11th Cir. 1982) (awarding statutory minimum $1000 damages, but denying recovery beyond the statutory minimum because "appellant proved only that he suffered a general mental injury"); DiMura v. FBI, 823 F. Supp. 45, 48 (D. Mass. 1993) ("To be entitled to recovery [of statutory minimum damages] under the Act . . . a plaintiff must prove that he or she has suffered 'actual damages.'"). See generally OMB Guidelines, 40 Fed. Reg. 28,948, 28,970 (July 9, 1975) (stating that "[a]ctual damages or $1,000, whichever is greater," are/is recoverable) (emphasis added).
However, in issuing its first purely Privacy Act decision in the nearly thirty-year history of the Act, the Supreme Court in Doe v. Chao has now resolved much of the confusion in this area. 124 S. Ct. 1204 (2004) (6-3 decision), aff'g 306 F.3d 170 (4th Cir. 2002). In Doe, the Supreme Court was petitioned to review a decision by the Court of Appeals for the Fourth Circuit in which a divided panel of the Fourth Circuit held that in order to be entitled to a statutory minimum damages award for violation of the Privacy Act, a complainant must prove actual damages. Doe v. Chao, 306 F.3d at 177-79. Recognizing that the Fourth Circuit's opinion in Doe "conflicted with the views of other Circuits," 124 S. Ct. at 1207 (citing Orekoya, Wilborn, Waters, Johnson, and Fitzpatrick), the Supreme Court granted certiorari. See generally FOIA Post, "Supreme Court to Hear FOIA and Privacy Act Cases Back-to-Back" (posted 9/30/03). The majority conducted "a straightforward textual analysis," looked to the Privacy Act's legislative history, and ultimately concluded that the Fourth Circuit's view was correct. Id. at 1208-12. The Court held that the "'entitle[ment] to recovery' necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of the Act producing some adverse effect. The statute guarantees $1,000 only to plaintiffs who have suffered some actual damages." Id. at 1212 (alteration in original). As a result, any prior case law that suggests that anything less than proven actual damages is sufficient to entitle an individual to an award of the statutory minimum $1000 damages has been abrogated.
Although as a result of the Supreme Court's decision in Doe v. Chao it is now settled that proof of actual damages is required in order to recover either the statutory minimum or damages beyond the minimum, and it is well established that actual damages include out-of-pocket expenses, the Supreme Court in Doe explicitly did not rule on the issue of whether nonpecuniary damages for mental injury -- such as emotional trauma, anger, fear, or fright -- satisfy the definition of actual damages. Doe v. Chao, 124 S. Ct. at 1212 n.12 (noting division amongst Courts of Appeal on "the precise definition of actual damages," and stating that "[t]hat issue is not before us, however, since the petition for certiorari did not raise it for our review"; "We do not suggest that out-of-pocket expenses are necessary for recovery of the $1,000 minimum; only that they suffice to qualify under any view of actual damages.") As a result, there remains a split of authority on this issue. Compare, e.g., Johnson v. Dep't of the Treasury, IRS, 700 F.2d at 974-80 (nonpecuniary damages recoverable); Parks v. IRS, 618 F.2d 677, 682-83, 685 (10th Cir. 1980) (stating that plaintiffs had "alleged viable claims for damages" where only alleged adverse effect was "psychological harm"); Dong v. Smithsonian Inst., 943 F. Supp. 69, 74-75 (D.D.C. Oct. 31, 1996) (following Johnson and awarding damages for injury to reputation), rev'd on grounds of statutory inapplicability, 125 F.3d 877 (D.C. Cir. 1997) (ruling that "Smithsonian is not an agency for Privacy Act purposes"); Louis v. VA, No. C95-5606, slip op. at 5 (W.D. Wash. Oct. 31, 1996) (awarding damages for "emotional suffering"); Swenson v. USPS, No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at **46-52 (E.D. Cal. Mar. 10, 1994) (following Johnson); and Kassel v. VA, No. 87-217-S, slip op. at 38 (D.N.H. Mar. 30, 1992) (same), with Hudson v. Reno, 130 F.3d 1193, 1207 & n.11 (6th Cir. 1997) (citing plaintiff's failure to show "actual damages" as additional basis for affirming district court decision and stating that "the weight of authority suggests that actual damages under the Privacy Act do not include recovery for 'mental injuries, loss of reputation, embarrassment or other non-quantifiable injuries'" (citing Fitzpatrick, Pope v. Bond, infra, and DiMura)); Fitzpatrick, 665 F.2d at 329-31 (damages for generalized mental injuries, loss of reputation, embarrassment or other nonquantifiable injuries not recoverable); Wiley v. VA, 176 F. Supp. 2d 747, 757 (E.D. Mich. 2001) (citing Hudson and stating that even if there had been violation of Privacy Act, evidence "consisting solely of claimed emotional injuries, does not suffice"); Mallory v. DOD, No. 97-2377, slip op. at 15-16 n.3 (D.D.C. Sept. 30, 1999) (holding that actual damages limited to out-of-pocket losses); Gowan v. Dep't of the Air Force, No. 90-94, slip op. at 31 (D.N.M. Sept. 1, 1995) (adopting analysis of DiMura that emotional damages would not be recoverable), aff'd, 148 F.3d 1182 (10th Cir. 1998); DiMura, 823 F. Supp. at 47-48 ("'actual damages' does not include emotional damages"); Pope v. Bond, 641 F. Supp. 489, 500-01 (D.D.C. 1986) (only out-of-pocket expenses recoverable); and Houston v. United States Dep't of Treasury, 494 F. Supp. 24, 30 (D.D.C. 1979) (same). See generally Doe v. Chao, 306 F.3d at 181-82 (where plaintiff "did not produce any evidence of tangible consequences stemming from his alleged angst over the disclosure of his [social security number]" to corroborate his "conclusory allegations" of emotional distress, finding that plaintiff had "utterly failed to produce evidence sufficient to permit a rational trier of fact to conclude that he suffered any 'actual damages,'" and thus stating that "we need not reach the issue of whether the term 'actual damages' as used in the Act encompasses damages for non-pecuniary emotional distress because, regardless of the disposition of that issue, [appellant's] claims fail for lack of evidentiary support"); Doe v. Chao, 306 F.3d at 198 n.13 (Michael, J., dissenting) (also "need[ing] not reach the difficult question of the meaning of 'actual damages,'" but stating "belie[f] that the majority's holding commits this circuit to the position that the term 'actual damages' includes at least emotional distress that would qualify as 'demonstrable' under Price [v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996)].")
The Court of Appeals for the District of Columbia Circuit has not expressly ruled on this issue. In Albright v. United States, 558 F. Supp. 260, 264 (D.D.C. 1982), the district court, citing Houston with approval, held that only out-of-pocket expenses -- not damages for emotional trauma, anger, fright, or fear -- are recoverable. On appeal, however, the D.C. Circuit affirmed on other grounds, expressly declining to decide whether "actual damages" include more than out-of-pocket expenses. Albright, 732 F.2d at 183, 185-86 & n.11; cf. Tomasello, 167 F.3d at 614, 618 n.6, 619 n.9 (declining to decide whether nonpecuniary damages were available under Privacy Act, given plaintiff's failure to raise issue below). In the absence of direction from the D.C. Circuit, the District Court for the District of Columbia on at least three other occasions has ruled that damages are limited to out-of-pocket expenses, see Mallory, No. 97-2377, slip op. at 15-16 n.3; Pope, 641 F. Supp. at 500-01; Houston, 494 F. Supp. at 30; and on one other occasion has awarded damages for nonpecuniary loss, see Dong, 943 F. Supp. at 74-75.
It is well settled that injunctive relief as provided for in the Privacy Act is available only under subsections (g)(1)(A) (amendment) and (g)(1)(B) (access) -- both of which, incidentally, require exhaustion -- and that it is not available under subsections (g)(1)(C) or (g)(1)(D). See, e.g., Doe v. Chao, 124 S. Ct. at 1217 (Ginsburg, J., dissenting); McLeod v. VA, 43 Fed. Appx. 70, 71 (9th Cir. 2002) (quoting Cell Assocs. v. NIH, infra); Locklear v. Holland, No. 98-6407, 1999 WL 1000835, at *1 (6th Cir. Oct. 28, 1999); Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir. 1997) (per curiam); Doe v. Stephens, 851 F.2d at 1463; Hastings v. Judicial Conference of the United States, 770 F.2d 1093, 1104 (D.C. Cir. 1985); Edison, 672 F.2d at 846; Hanley v. United States Dep't of Justice, 623 F.2d 1138, 1139 (6th Cir. 1980) (per curiam); Parks, 618 F.2d at 684; Cell Assocs. v. NIH, 579 F.2d 1155, 1161-62 (9th Cir. 1978); Purrier, No. 95-CV-6203, slip op. at 5 (W.D.N.Y. Mar. 15, 1996); AFGE v. HUD, 924 F. Supp. 225, 228 n.7 (D.D.C. 1996), rev'd on other grounds, 118 F.3d 786 (D.C. Cir. 1997); Robinson v. VA, No. 89-1156-B(M), slip op. at 2 (S.D. Cal. Dec. 14, 1989); Houston, 494 F. Supp. at 29; see also Word v. United States, 604 F.2d 1127, 1130 (8th Cir. 1979) (no "exclusionary rule" for subsection (b) violations; "No need and no authority exists to design or grant a remedy exceeding that established in the statutory scheme."); Shields v. Shetler, 682 F. Supp. 1172, 1176 (D. Colo. 1988) (Act "does not create a private right of action to enjoin agency disclosures"); 120 Cong. Rec. 40,406 (1974), reprinted in Source Book at 862. But see Fla. Med. Ass'n v. HEW, 479 F. Supp. 1291, 1299 & n.8 (M.D. Fla. 1979) (aberrational decision construing subsection (g)(1)(D) to confer jurisdiction to enjoin agency's disclosure of Privacy Act-protected record). However, courts have recognized the availability of equitable relief under the Administrative Procedure Act for claims governed by the Privacy Act. See the discussion above under "Civil Remedies."
There should be no reason for regarding this settled law concerning injunctive relief under the Privacy Act as inapplicable where a subsection (e)(7) claim is involved. See Wabun-Inini v. Sessions, 900 F.2d 1234, 1245 (8th Cir. 1990); Clarkson v. IRS, 678 F.2d 1368, 1375 n.11 (11th Cir. 1982); Comm. in Solidarity v. Sessions, 738 F. Supp. 544, 548 (D.D.C. 1990), aff'd, 929 F.2d 742 (D.C. Cir. 1991); see also Socialist Workers Party v. Attorney Gen., 642 F. Supp. 1357, 1431 (S.D.N.Y. 1986) (in absence of exhaustion, only damages remedy, rather than injunctive relief, is available for violation of subsection (e)(7)). In Haase v. Sessions, 893 F.2d 370, 373-75 (D.C. Cir. 1990), however, the D.C. Circuit, in dictum, suggested that its decision in Nagel v. HEW, 725 F.2d 1438, 1441 (D.C. Cir. 1984), could be read to recognize the availability of injunctive relief to remedy a subsection (e)(7) violation, under subsection (g)(1)(D); cf. Becker v. IRS, 34 F.3d 398, 409 (7th Cir. 1994) (finding that the IRS had not justified maintenance of documents under subsection (e)(7), and stating that thus "the documents should be expunged"). Such a view is somewhat difficult to reconcile with the structure of subsection (g) and with the case law mentioned above.
There is a split of authority on the issue of whether destruction of a Privacy Act record gives rise to a damages action. Compare Tufts v. Dep't of the Air Force, 793 F.2d 259, 261-62 (10th Cir. 1986) (no), with Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983) (assuming action exists), and Waldrop v. United States Dep't of the Air Force, 3 Gov't Disclosure Serv. (P-H) ¶ 83,016, at 83,453 (S.D. Ill. Aug. 5, 1981) (yes). See also Vaughn v. Danzig, 18 Fed. Appx. 122, 124-25 (4th Cir. 2001) (per curiam) (finding no Privacy Act violation where record of nonjudicial punishment was maintained in files of plaintiff's military unit at time of his discharge, but later was destroyed pursuant to records retention policy; "Although [plaintiff] seems to argue that the Privacy Act requires that records be maintained in perpetuity, he has cited no authority for that proposition."; "[A]gencies are not required to retain records on the possibility that a . . . Privacy Act request may be submitted."); Dowd v. IRS, 776 F.2d 1083, 1084 (2d Cir. 1985) (per curiam) (expressly declining to decide issue).
F. Principles Applicable to All Privacy Act Civil Actions
In amendment lawsuits brought under subsection (g)(1)(A), and access lawsuits brought under subsection (g)(1)(B), attorney fees and costs that are "reasonably incurred" are recoverable, in the court's discretion, if the plaintiff "has substantially prevailed." 5 U.S.C. § 552a(g)(2)(B) (amendment), (g)(3)(B) (access).
In damages lawsuits brought under subsection (g)(1)(C) or subsection (g)(1)(D), "the costs of the action together with reasonable attorney fees as determined by the court" are recoverable by the prevailing plaintiff. 5 U.S.C. § 552a(g)(4)(B). Such an award is not discretionary. See OMB Guidelines, 40 Fed. Reg. 28,948, 28,970 (July 9, 1975).
Comment:
The Privacy Act is one of approximately 100 federal statutes containing a "fee-shifting" provision allowing a prevailing plaintiff to recover attorney fees and costs from the government.
The Supreme Court has held that a pro se attorney may not recover attorney fees under the fee-shifting provision of 42 U.S.C. § 1988 (2000). See Kay v. Ehrler, 499 U.S. 432 (1991). The Court's reasoning in Kay calls into question the propriety of Cazalas v. United States Dep't of Justice, 709 F.2d 1051 (5th Cir. 1983), which addressed the award of attorney fees under the Privacy Act and held that a pro se attorney may recover attorney fees. 709 F.2d at 1052 n.3, 1057.
Although the Supreme Court in Kay did not expressly rule on the issue of the award of attorney fees to nonattorney pro se litigants, the Court recognized that "the Circuits are in agreement . . . that a pro se litigant who is not a lawyer is not entitled to attorney's fees" and was "satisfied that [those cases so holding] were correctly decided." 499 U.S. at 435. Furthermore, the Court's rationale in Kay would seem to preclude an award of fees to any pro se Privacy Act litigant, as the Court observed that "awards of counsel fees to pro se litigants -- even if limited to those who are members of the bar -- would create a disincentive to employ counsel" and that "[t]he statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case." Id. at 438; see also Wilborn v. HHS, No. 91-538, slip op. at 14-16 (D. Or. Mar. 5, 1996) (rejecting argument that rationale in Kay should be construed as applying only to district court stage of litigation; "policy of the Privacy Act . . . would be better served by a rule that creates an incentive to retain counsel at all stages of the litigation, including appeals"), appeal voluntarily dismissed, No. 96-35569 (9th Cir. June 3, 1996).
Indeed, the Court of Appeals for the District of Columbia Circuit granted summary affirmance to a district court decision which held that a "nonattorney pro se litigant cannot recover attorney's fees under the Privacy Act." Sellers v. United States Bureau of Prisons, No. 87-2048, 1993 U.S. Dist. LEXIS 787, at *1 (D.D.C. Jan. 26, 1993), summary affirmance granted, No. 93-5090 (D.C. Cir. July 27, 1993). The district court in Sellers was "persuaded by the Fifth Circuit's opinion in Barrett v. Bureau of Customs, 651 F.2d 1087, 1089 (5th Cir. 1981)," an earlier Privacy Act decision also denying a nonattorney pro se litigant fees, and noted that "[t]he rationale utilized by the Supreme Court in Kay . . . is in accord." Sellers, No. 87-2048, 1993 U.S. Dist. LEXIS 787, at *1 (D.D.C. Jan. 26, 1993); see also Smith v. O'Brien, No. 94-41371, slip op. at 4 (5th Cir. June 19, 1995) (per curiam) (citing Barrett and stating: "Pro se litigants are not entitled to attorney fees under either the FOIA or the Privacy Act unless the litigant is also an attorney."); Westendorf v. IRS, No. 3:92-cv-761WS, 1994 WL 714011, at *2 (S.D. Miss. July 7, 1994) (citing Barrett and holding that nonattorney pro se plaintiff is not entitled to attorney fees), appeal dismissed, No. 94-60503, slip op. at 2-3 (5th Cir. Nov. 17, 1994) (stating that district court's holding is correct under Barrett). The D.C. Circuit has further ruled, however, that a plaintiff's pro se status does not preclude the recovery of fees for "consultations" with outside counsel. Blazy v. Tenet, 194 F.3d 90, 94 (D.C. Cir. 1999); see also id. at 98-99 (Sentelle, J., concurring but "writing separately only to distance [him]self from the majority's determination that a pro se litigant is entitled to recover counsel fees for consultations with attorneys not appearing or connected with appearances in the pro se litigation").
It has also been held that a plaintiff does not substantially prevail in an access case merely because the agency produced the records in question subsequent to the filing of the lawsuit. See Reinbold v. Evers, 187 F.3d 348, 363 (4th Cir. 1999) (upholding denial of interim fees where plaintiff had "not proved that his lawsuit was a catalyst for the [agency's] action," and evidence showed that delay was caused by staffing shortage); Jacobs v. Reno, No. 3:97-CV-2698-D, 1999 U.S. Dist. LEXIS 3104, at **14-15 (N.D. Tex. Mar. 11, 1999) (denying plaintiff's request for attorney fees and costs, and stating that plaintiff's argument was "too slim a reed on which to rest a § 552a(g)(1)(B) claim, particularly when § 552a(d)(1) imposes no deadline for agency compliance and absent evidence of extended and unjustified delay"), aff'd, 208 F.3d 1006 (5th Cir. 2000) (unpublished table decision).
One district court has even granted attorney fees and costs for a damages claim that would be governed by the Privacy Act, despite the fact that the plaintiffs did not actually bring such a claim under the Privacy Act. Doe v. Veneman, No. 99-335, slip op. at 3 (W.D. Tex. July 25, 2003) (appeal pending).
Subsection (g)(3)(B) is similar to 5 U.S.C. § 552(a)(4)(E), the FOIA's attorney fees provision, and FOIA decisions concerning a plaintiff's eligibility for attorney fees may be consulted in this area. However, the Court of Appeals for the District of Columbia Circuit has expressly ruled that the FOIA's criteria for determining the additional factor of entitlement to attorney fees are inapplicable to a claim for fees under the Privacy Act. Blazy v. Tenet, 194 F.3d at 95-97 ("Even a cursory examination of these factors makes it clear that they have little or no relevance in the context of the Privacy Act."); see also Herring v. VA, No. 94-55955, 1996 WL 32147, at **5-6 (9th Cir. Jan. 26, 1996) (finding plaintiff to be "prevailing party" on access claim for her medical record with no mention or application of FOIA criteria). Nevertheless, two other courts of appeals have held the FOIA's entitlement criteria to be applicable to Privacy Act claims for attorney fees. See Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1194-95 (10th Cir. 1998) (applying the FOIA's criteria and determining that the plaintiff was not entitled to fees because his "suit was for his personal benefit rather than for the benefit of the public interest"); Barrett v. Bureau of Customs, 651 F.2d 1087, 1088 (5th Cir. 1981) (stating that FOIA's guidelines apply to claims for attorney fees under Privacy Act); see also Reinbold v. Evers, 187 F.3d 348, 362 (4th Cir. 1999) (citing Gowan and stating in dicta that if determination is made that plaintiff substantially prevailed, court must evaluate FOIA factors to determine entitlement); Sweatt v. United States Navy, 683 F.2d 420, 423 (D.C. Cir. 1982) (stating in dicta that cases construing attorney fee provision in FOIA are apposite in Privacy Act context). For a discussion of current FOIA decisions, see the section of the "Justice Department Guide to the Freedom of Information Act" entitled "Litigation Considerations, Attorney Fees and Litigation Costs."
It also should be noted that the District of Columbia Circuit has held that "in order for plaintiffs in FOIA actions to become eligible for an award of attorney's fees, they must have 'been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree." Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, No. 01-5163, 2002 WL 959825, at *5 (D.C. Cir. May 10, 2002) (quoting, and applying to FOIA cases, Supreme Court's holding in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001), which concerned attorney fees under other fee-shifting statutes). This principle would seem applicable to Privacy Act cases as well.
Although under the FOIA it had previously been held that a fee enhancement as compensation for the risk in a contingency fee arrangement might be available in limited circumstances, see, e.g., Weisberg v. United States Dep't of Justice, 848 F.2d 1265, 1272 (D.C. Cir. 1988), the Supreme Court has clarified that such enhancements are not available under statutes authorizing an award of reasonable attorney fees to a prevailing or substantially prevailing party, City of Burlington v. Dague, 505 U.S. 557, 561-66 (1992) (prohibiting contingency enhancement in environmental fee-shifting statutes); see also King v. Palmer, 950 F.2d 771, 775 (D.C. Cir. 1991) (en banc) (pre-City of Burlington case anticipating result later reached by Supreme Court). In light of the Court's further observation that case law "construing what is a 'reasonable' fee applies uniformly to all [federal fee-shifting statutes], there seems to be little doubt that the same principle also prohibits fee enhancements under the Privacy Act.
Attorney fees are not recoverable for services rendered at the administrative level. See Kennedy v. Andrus, 459 F. Supp. 240, 244 (D.D.C. 1978), aff'd, 612 F.2d 586 (D.C. Cir. 1980) (unpublished table decision).
The D.C. Circuit has held that attorney fees are not available in a subsection (g)(1)(A) amendment case unless the plaintiff has exhausted his administrative remedies. See Haase v. Sessions, 893 F.2d 370, 373-75 (D.C. Cir. 1990).
Litigation costs (if reasonably incurred) can be recovered by all plaintiffs who substantially prevail. See Parkinson v. Comm'r, No. 87-3219, 1988 WL 12121, at *3 (6th Cir. Feb. 17, 1988); Walker v. United States Dep't of Justice, No. 00-0106, slip op. at 5-6 (D.D.C. July 14, 2000); Young v. CIA, No. 91-527-A, slip op. at 2 (E.D. Va. Nov. 30, 1992), aff'd, 1 F.3d 1235 (4th Cir. 1993) (unpublished table decision). Compare Herring v. VA, No. 94-55955, 1996 WL 32147, at **5-6 (9th Cir. Jan. 26, 1996) (although ruling in favor of VA on plaintiff's access claim, nonetheless finding that plaintiff was "a prevailing party with respect to her access claim" because "the VA did not provide her access to all her records until she filed her lawsuit"), with Abernethy v. IRS, 909 F. Supp. 1562, 1567-69 (N.D. Ga. 1995) ("[T]he fact that records were released after the lawsuit was filed, in and of itself, is insufficient to establish Plaintiff's eligibility for an award of attorneys' fees."), aff'd per curiam, No. 95-9489 (11th Cir. Feb. 13, 1997). Further, the D.C. Circuit has held that a pro se plaintiff's claim for litigation costs under the Privacy Act is not limited by 28 U.S.C. § 1920 (governing litigation costs generally). Blazy v. Tenet, 194 F.3d at 94-95 (embracing reasoning of Kuzma v. IRS, 821 F.2d 930 (2d Cir. 1987) (FOIA case)).
"Judgments, costs, and attorney's fees assessed against the United States under [subsection (g) of the Privacy Act] would appear to be payable from the public funds rather than from agency funds." OMB Guidelines, 40 Fed. Reg. 28,948, 28,968 (July 9, 1975) (citing 28 U.S.C. § 2414 (2000); 31 U.S.C. § 724a (later replaced during enactment of revised Title 31, now see 31 U.S.C. § 1304 (2000) (first sentence of former § 724a) and 39 U.S.C. § 409(e) (2000) (last sentence of former § 724a)); and 28 U.S.C. § 1924 (2000)).
"An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia." 5 U.S.C. § 552a(g)(5).
Comment:
By its very terms, this section limits jurisdiction over Privacy Act matters to the federal district courts. 5 U.S.C. § 552a(g)(5); see also, e.g., Martin v. Dep't of the Army, No. 00-3302, 2000 WL 1807419, at *2 (Fed. Cir. Dec. 8, 2000) (per curiam) (MSPB does not have jurisdiction over Privacy Act claims); Minnich v. MSPB, No. 94-3587, 1995 U.S. App. LEXIS 5768, at *3 (Fed. Cir. Mar. 21, 1995) (per curiam) (same); Frasier v. United States, No. 94-5131, 1994 U.S. App. LEXIS 35392, at *3 (Fed. Cir. Dec. 6, 1994) ("U.S. Court of Federal Claims does not have jurisdiction over Privacy Act matters"); Strickland v. Comm'r, No. 9799-95, 2000 WL 274077 (T.C. Mar. 14, 2000) (The Tax Court "do[es] not have the authority to address [Privacy Act] claim[].").
Because venue is always proper in the District of Columbia, the Privacy Act decisions of the Court of Appeals for the District of Columbia Circuit are of great importance.
For cases involving this provision, see Akutowicz v. United States, 859 F.2d 1122, 1126 (2d Cir. 1988) (venue proper only in District of Columbia for plaintiff who resided and worked continuously in France), Roberts v. United States Dep't of Transp., No. 02-829, 2002 U.S. Dist. LEXIS 14116, at **1-2 (E.D. Pa. July 3, 2003) (finding venue improper in the Eastern District of Pennsylvania, and transferring the case to the Eastern District of New York as "both plaintiff and the records are located within [that district]"), Troupe v. O'Neill, No. 02-4157, 2003 WL 21289977, at *3 (D. Kan. May 9, 2003) (transferring case to Northern District of Georgia as "agency records would be situated there"), Boers v. United States, 133 F. Supp. 2d 64, 65 (D.D.C. 2001) (transferring case under 28 U.S.C. § 1404(a) to plaintiff's "home forum," even though "venue is proper" in the District of Columbia, given that "[a]ll the operative facts occurred in Arizona" and "it cannot be said that forcing a plaintiff to litigate in his home district will prejudice or burden the plaintiff in any way"), mandamus denied per curiam sub nom. In re Howard L. Boers, No. 01-5192 (D.C. Cir. Aug. 28, 2001), Warg v. Reno, 19 F. Supp. 2d 776, 785 (N.D. Ohio 1998) ("find[ing] the Northern District of Ohio to be an improper venue" and transferring case to District of Columbia in interest of justice where plaintiff resided in Maryland and records were located in Washington, D.C.), Harton v. Bureau of Prisons, No. 97-0638, slip op. at 3, 6-7 (D.D.C. Nov. 12, 1997) (stating that "the fact that the Privacy Act provides for venue in the District of Columbia does not, by itself, establish that each and every Privacy Act claim involves issues of national policy," and granting agency's motion to transfer to jurisdiction where plaintiff was incarcerated, as complaint focused primarily on issues specific to plaintiff), and Finley v. Nat'l Endowment for the Arts, 795 F. Supp. 1457, 1467 (C.D. Cal. 1992) ("[I]n a multi-plaintiff Privacy Act action, if any plaintiff satisfies the venue requirement of 5 U.S.C. § 552a(g)(5), the venue requirement is satisfied as to the remaining plaintiffs.").
"An action to enforce any liability created under this section may be brought . . . within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975." 5 U.S.C. § 552a(g)(5).
Comment:
The statute of limitations has been held to be jurisdictional in nature and has been strictly construed as it is an "'integral condition of the sovereign's consent to be sued under the Privacy Act.'" Bowyer v. United States Dep't of the Air Force, 875 F.2d 632, 635 (7th Cir. 1989) (quoting Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir. 1987)) accord Weber v. Henderson, 33 Fed. Appx. 610, 611 (3d Cir. 2002) (per curiam); Davis v. United States Dep't of Justice, 204 F.3d 723, 726 (7th Cir. 2000) (per curiam); Akutowicz v. United States, 859 F.2d 1122, 1126 (2d Cir. 1988); Davis v. Gross, No. 83-5223, 1984 U.S. Dist. LEXIS 14279, at **2-3 (6th Cir. May 10, 1984); Bassiouni v. FBI, No. 02-8918, 2003 WL 22227189, at *2 (N.D. Ill. Sept. 26, 2003); Logan v. United States, 272 F. Supp. 2d 1182, 1187 (D. Kan. 2003); Mangino v. Dep't of the Army, 818 F. Supp. 1432, 1437 (D. Kan. 1993), aff'd, 17 F.3d 1437 (10th Cir. 1994) (unpublished table decision). Consequently, a plaintiff's failure to file suit within the specified time period has been held to "[deprive] the federal courts of subject matter jurisdiction over the action." Diliberti, 817 F.2d at 1262. But compare M.K. v. Tenet, 196 F. Supp. 2d 8, 13 (D.D.C. 2001) (finding that "statute of limitations is an affirmative defense that does not need to be anticipated and rebutted by the complaint . . . [a]s such, even if the plaintiffs have not alleged illegal conduct of the defendants that the plaintiffs first knew or should have known within the limitations period, the Privacy Act claim should not be dismissed for lack of subject matter jurisdiction"), with Fort Hall Landowners Alliance, Inc. v. Bureau of Indian Affairs, No. 99-052, slip op. at 3-4 (D. Idaho Mar. 14, 2003) (stating that the court "may grant a motion to dismiss based on the running of a statute of limitations period only 'if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled'" (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995))).
In the past, the Court of Appeals for the District of Columbia Circuit also had held that the Privacy Act's statute of limitations is jurisdictional. See, e.g., Griffin v. United States Parole Comm'n, 192 F.3d 1081, 1082 (D.C. Cir. 1999), overruled by Chung v. United States Dep't of Justice, 333 F.3d 273, 278 n.1 (D.C. Cir. 2003); Williams v. Reno, No. 95-5155, 1996 WL 460093, at *1 (D.C. Cir. Aug. 7, 1996); see also Farrero v. NASA, 180 F. Supp. 2d 92, 97 (D.D.C. 2001). Recently, however, the District of Columbia Circuit has held that the Privacy Act's statute of limitations for a damages "claim for unlawful disclosure of personal information" need not be strictly construed and that a "'rebuttable presumption' in favor of equitable tolling applies." Chung v. United States Dep't of Justice, 333 F.3d 273, 277 (D.C. Cir. 2003). Relying on the Supreme Court's decision in Irwin v. VA, 498 U.S. 89, 95 (1990), which announced a "'general rule' establishing a presumption in favor of equitable tolling in 'suits against the Government,'" the D.C. Circuit has concluded that "a Privacy Act claim for unlawful disclosure of personal information is sufficiently similar to a traditional tort claim for invasion of privacy to render the Irwin presumption applicable." Chung v. United States Dep't of Justice, 333 F.3d at 276-77; see also Fort Hall Landowners Alliance, Inc., No. 99-052, slip op. at 6-7 (D. Idaho Mar. 14, 2003) (citing Irwin and finding that the Privacy Act "does not use such language [of jurisdiction], and therefore does not present a jurisdictional bar").
Amendment
In a subsection (g)(1)(A) amendment action, the limitations period begins when the agency denies the plaintiff's request to amend. See Englerius v. VA, 837 F.2d 895, 897-98 (9th Cir. 1988) (holding that the statute of limitations "commences at the time that a person knows or has reason to know that the request has been denied," rather than as of the date of the request letter); see also Bassiouni v. FBI, No. 02-8918, 2003 WL 22227189, at **3-4 (N.D. Ill. Sept. 26, 2003) (explicitly acknowledging distinction as to when a claim arises among the four distinct Privacy Act causes of actions and finding that in an amendment cause of action, a claim arises "when an individual knows or has reason to know that his request to amend has been denied"); Blazy v. Tenet, 979 F. Supp. 10, 18 (D.D.C. 1997) (although ultimately finding plaintiff's amendment claim moot due to remedial action taken by CIA, citing Englerius and finding that claim for amendment of sexual harassment allegations in personnel file did not begin to run until employee discovered that FBI, where plaintiff had applied for employment, never received corrective letter from CIA, prior to which time plaintiff did not and could not have known of CIA's failure to amend), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998). But see Wills v. OPM, No. 93-2079, slip op. at 2-3 (4th Cir. Jan. 28, 1994) (alternative holding) (per curiam) (holding that cause of action triggers statute of limitations when plaintiff knows or should have known of alleged violation, which in this case was when plaintiff sent his first letter requesting amendment); cf. Evans v. United States, No. 99-1268, 2000 WL 1595748, at *2 (D. Kan. Oct. 16, 2000) (finding that "plaintiff neither knew nor had reason to know of the alleged error in his records until the receipt of information provided by those witnesses who claimed the [Equal Opportunity] Complaint Summary inaccurately reported their testimony," which prompted him to request a "reconsideration and reinvestigation" of the information).
In determining what constitutes the agency's denial, it has been held that the agency's initial denial should govern, rather than the date of the agency's administrative appeal determination. See Quarry v. Dep't of Justice, 3 Gov't Disclosure Serv. (P-H) ¶ 82,407, at 83,020-21 (D.D.C. Feb. 2, 1982); see also Singer v. OPM, No. 83-1095, slip op. at 2 (D.N.J. Mar. 8, 1984) (rejecting claim that limitations period began on date plaintiff's appeal was dismissed as time-barred under agency regulation); cf. Shannon v. Gen. Elec. Co., 812 F. Supp. 308, 320 & n.10 (N.D.N.Y. 1993) (finding that cause of action for damages claim arose when plaintiff's amendment request was partially denied and noting that "no caselaw can be found to support a finding that the pendency of the appeal has any affect upon the running of the statute of limitations").
In cases "[w]here the agency has not issued an express denial of the request, the question of when a person learns of the denial requires a factual inquiry and cannot ordinarily be decided on a motion to dismiss." Englerius, 837 F.2d at 897; see also Jarrell v. USPS, 753 F.2d 1088, 1092 (D.C. Cir. 1985) (holding that issue of material fact existed and therefore summary judgment was inappropriate where agency contended that cause of action arose when it issued final denial of expungement request but requester argued that due to agency's excision of certain parts of documents, he was unaware of information until later point in time).
Access
The two-year statute of limitations set forth in subsection (g)(5) applies to the access provision of the Privacy Act as well. 5 U.S.C. § 552a(g)(5). However, because an individual's Privacy Act access request should be processed under the FOIA as well -- see H.R. Rep. No. 98-726, pt. 2, at 16-17 (1984), reprinted in 1984 U.S.C.C.A.N. 3741, 3790-91 (regarding amendment of Privacy Act in 1984 to include subsection (t)(2) and stating: "Agencies that had made it a practice to treat a request made under either [the Privacy Act or the FOIA] as if the request had been made under both laws should continue to do so."); FOIA Update, Vol. VII, No. 1, at 6 ("FOIA Counselor Q & A") -- and the FOIA is subject to the general six-year statute of limitations, see Spannaus v. Dep't of Justice, 824 F.2d 52, 55-56 (D.C. Cir. 1987) (applying 28 U.S.C. § 2401(a) to FOIA actions), the Privacy Act's "two-year bar" may be of little, if any, consequence. The ramifications of these arguably conflicting provisions have not been explored.
Indeed, only five decisions have addressed the Privacy Act's statute of limitations in the access context. See Logan v. United States, 272 F. Supp. 2d 1182, 1187 (D. Kan. 2003) (finding that plaintiff's access claim was untimely as the claim arose "when [the agency] disclosed the records to plaintiff," and observing that plaintiff brought the action after "two years from the date on which the cause of action arose"); McClain v. United States Dep't of Justice, No. 97-0385, 1999 WL 759505, at *4 (N.D. Ill. Sept. 1, 1999) (finding that the action "would have accrued when [plaintiff] knew or should have known that his request for access to his IRS records had been denied," which was more than nine years before he filed suit), aff'd on other grounds, 17 Fed. Appx. 471 (7th Cir. 2001); Biondo v. Dep't of the Navy, 928 F. Supp. 626, 632, 634-35 (D.S.C. 1995) (summarily stating that 1987 request "cannot serve as a basis for relief for a suit brought in 1992 because the Privacy Act has a two-year statute of limitations"; similar statements made as to undocumented requests for information made in mid-80s and in 1976-77), aff'd, 86 F.3d 1148 (4th Cir. 1996) (unpublished table decision); Burkins v. United States, 865 F. Supp. 1480, 1496 (D. Colo. 1994) (cause of action "should not be time-barred" because it would have accrued when plaintiff knew his request for access had been denied); Mittleman v. United States Treasury, 773 F. Supp. 442, 448, 450-51 n.7 (D.D.C. 1991) (where claims are barred by statute of limitations, plaintiff "cannot attempt to resurrect" them by making subsequent request more than three years after she had first received information and almost six months after complaint had been filed), related subsequent case, Mittleman v. OPM, No. 92-158, slip op. at 1 n.1 (D.D.C. Jan. 18, 1995), summary affirmance granted, 76 F.3d 1240, 1242 (D.C. Cir. 1996).
Damages
The statute of limitations for a damages cause of action begins when the plaintiff knew or should have known of the Privacy Act violation. See Duncan v. EPA, 89 Fed. Appx. 635, 635 (9th Cir. 2004); Williams v. Reno, No. 95-5155, 1996 WL 460093, at *1 (D.C. Cir. Aug. 7, 1996); Tijerina v. Walters, 821 F.2d 789, 797 (D.C. Cir. 1987); see also Green v. Westphal, No. 03-3547, 2004 WL 817446, at *2 (3d Cir. Apr. 15, 2004) ("A cause of action arises under the Privacy Act when the individual knows or has reason to know of the alleged error in the individual's record and the individual is harmed by the alleged error."); Bergman v. United States, 751 F.2d 314, 316-17 (10th Cir. 1984) (holding that limitations period for damages action under subsection (g)(1)(C) commences at time three conditions are met: (1) an error was made in maintaining plaintiff's records; (2) plaintiff was wronged by such error; and (3) plaintiff either knew or had reason to know of such error); cf. Bowyer v. United States Dep't of the Air Force, 875 F.2d 632, 636 (7th Cir. 1989) (applying stricter standard and holding that the limitations period begins to run when "plaintiff first knew or had reason to know that the private records were being maintained"); Diliberti v. United States, 817 F.2d 1259, 1262-64 (7th Cir. 1987) (same).
Some courts have held that once the plaintiff knows or has reason to know of a record's existence, even if based upon hearsay or rumors, the plaintiff has a "duty to inquire" into the matter -- i.e., "two years from that time to investigate whether sufficient factual and legal bases existed for bringing suit." See Bowyer, 875 F.2d at 637; see also Diliberti, 817 F.2d at 1263-64 (stating that "the hearsay and rumors which the plaintiff described in his affidavit were enough to put him on notice" and "impose a duty to inquire into the veracity of those rumors"); Munson, No. 96-CV-70920-DT, slip op. at 2-3 (E.D. Mich. July 2, 1996); Strang v. Indahl, No. 93-97, slip op. at 2-4 (M.D. Ga. Apr. 13, 1995) ("The statute does not await confirmation or actual access to the records; hearsay and rumor are sufficient to begin running the statute of limitations."); Mangino, 818 F. Supp. at 1438 (quoting Diliberti); Rickard v. USPS, No. 87-1212, slip op. at 5 (C.D. Ill. Feb. 16, 1990) (recognizing "duty to inquire" established by Diliberti, and stating that "[e]ven unsubstantiated hearsay and rumor suffice to give a plaintiff notice of alleged inaccuracies in a record").
Generally, the plaintiff knows or has reason to know of records in violation of the Privacy Act when the plaintiff suspects there is a violation rather than when the plaintiff actually possesses those records or when the government creates those records. See Dilberti, 817 F.2d at 1262 (stating that the "relevant fact is not when the plaintiff first had physical possession of the particular records, but rather when he first knew of the existence of the records"); see also Duncan, 89 Fed. Appx. at 635 (quoting Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990), and reasoning that "a certainty, or testimony under oath, is not required to begin the running of the limitations period, but rather 'what a reasonable person should have known'"). If the plaintiff has constructive notice of the possible violation, the statute of limitations is triggered. See id. at 1262-63; see also Bowyer, 875 F. 2d at 632, 636 (stating that when agency employee confirmed that agency maintained private records on plaintiff relating to previous conflict with his supervisor, he had sufficient notice of possibly erroneous records). In the context of a damages action for wrongful disclosure, the D.C. Circuit rejected the government's argument that the limitations period commenced when the contested disclosure occurred, and observed that such an unauthorized disclosure "is unlikely to come to the subject's attention until it affects him adversely, if then." Tijerina, 821 F.2d at 797.
Consistent with the constructive notice theory, other courts have similarly found that the statute of limitations began to run where the evidence or circumstances indicated that the plaintiff knew of the violation or had been affected by it. See Harrell v. Fleming, 285 F.3d 1292, 1293-94 (10th Cir. Apr. 10, 2002) (finding that the "limitations period began to run when [plaintiff] first became aware of the alleged errors in his presentence investigation reports" and that it was not "extended either by the government's subsequent actions or by his receipt of documents allegedly corroborating his assertions of error"); Weber v. Henderson, No. 01-1049, 2002 WL 538508, at *2 (3d Cir. Mar. 18, 2002) (per curiam) (plaintiff should have known that the entire file had been lost "when he was informed by the defendants in writing that the record had been misplaced"); Seldowitz v. Office of IG, No. 00-1142, 2000 WL 1742098, at *3 (4th Cir. Nov. 13, 2000) (per curiam) (following Tijerina and finding that plaintiff "was aware of the alleged inaccuracies when the AUSA showed him the unannotated receipts" of his housing expenses, even though he did not possess a copy of them to make a side-by-side comparison with annotated ones); Peterson v. Tomaselli, No. 02-6325, 2003 WL 22213125, at *8 (S.D.N.Y. Sept. 25, 2003) (finding that plaintiff's claim arose when he "knew that the false documents existed") (appeal pending); Fort Hall Landowners Alliance, Inc. v. Bureau of Indian Affairs, No. 99-052, slip op. at 5 (D. Idaho Mar. 14, 2003) (finding that plaintiff's "claim accrued as soon as Plaintiffs either were aware, or should have been aware, of the existence of and source of injury, not when the Plaintiffs knew or should have known that the injury constituted a legal wrong"); Farrero, 180 F. Supp. 2d at 97 (finding that plaintiff should have known of potential violation when agency specifically informed him that it was maintaining certain documents regarding his alleged misconduct); Walker v. Ashcroft, No. 99-2385, slip op. at 15 (D.D.C. Apr. 30, 2001) ("Contrary to [p]laintiffs' contention, the record establishes that [p]laintiffs were aware of the FBI's actions well before they received this report."), summary affirmance granted, No. 01-5222, 2002 U.S. App. LEXIS 2485 (D.C. Cir. Jan. 25, 2002); Villescas v. Richardson, 124 F. Supp. 2d 647, 659 (D. Colo. 2000) (statute of limitations began to run when plaintiff received declaration in another lawsuit describing disclosure of records, even though he did not receive actual documents), appeal dismissed per stipulation sub nom. Villescas v. Abraham, No. 03-1503, slip op. at 1 (10th Cir. Feb. 24, 2004); Armstrong v. United States Bureau of Prisons, 976 F. Supp. 17, 21 (D.D.C. 1997) (following Tijerina and finding plaintiff's claim barred by statute of limitations where plaintiff had written letter more than two and one-half years earlier indicating that her prison file was lacking favorable information), summary affirmance granted sub nom. Armstrong v. Fed. Bureau of Prisons, No. 97-5208, 1998 WL 65543 (D.C. Cir. Jan. 30. 1998); Nwangoro v. Dep't of the Army, 952 F. Supp. 394, 397-98 (N.D. Tex. 1996) ("[T]he limitation period commences not when the plaintiff first obtains possession of the particular records at issue, but rather when he first knew of their existence."); Brown v. VA, No. 94-1119, 1996 WL 263636, at **1-2 (D.D.C. May 15, 1996) (Privacy Act claim barred by statute of limitations because plaintiff "knew or should have known that the Privacy Act may have been violated" when he submitted federal tort claim to VA concerning same matter "over two and a half years" before suit filed); Gordon v. Dep't of Justice, Fed. Bureau of Prisons, No. 94-2636, 1995 WL 472360, at *2 (D.D.C. Aug. 3, 1995) (statute of limitations ran from time of plaintiff's receipt of letter from sentencing judge rejecting information contained in presentencing report, at which point plaintiff "knew or . . . should have known what became inaccuracies in his presentencing report"); Rice v. Hawk, No. 94-1519, slip op. at 2-3 & n.1 (D.D.C. Dec. 30, 1994) (plaintiff knew of contents of presentence report at time he filed "Objection to Presentence Investigation Report," at which time statute of limitations began to run), summary affirmance granted, No. 95-5027, 1995 WL 551148 (D.C. Cir. Aug. 2, 1995); Szymanski, 870 F. Supp. at 378-79 (citing Bergman and Tijerina, and stating that "[b]ecause plaintiff was given the opportunity to review the documents he now maintains contain incorrect information and waived that opportunity, the Court finds that he should have known about any errors at the time of this waiver" but that, additionally, plaintiff had complained about same information in his appeal to Parole Commission more than two years previously); Malewich v. USPS, No. 91-4871, slip op. at 21-22 (D.N.J. Apr. 8, 1993) (statute began to run when plaintiff was aware that file was being used in investigation of plaintiff and when he was notified of proposed termination of employment), aff'd, 27 F.3d 557 (3d Cir. 1994) (unpublished table decision); Mangino, 818 F. Supp. at 1437-38 (applying Bergman, Bowyer, and Diliberti, and finding that cause of action accrued on date of letter in which plaintiff indicated knowledge of records being used by agency as basis for revoking his security clearance, rather than upon his receipt of records); Ertell v. Dep't of the Army, 626 F. Supp. 903, 908 (C.D. Ill. 1986) (limitations period commenced when plaintiff "knew" that there "had been negative evaluations in his file which may explain why he is not being selected," rather than upon actual discovery of such records); cf. Doe v. NSA, No. 97-2650, 1998 WL 743665, at **1-3 (4th Cir. Oct. 23, 1998) (per curiam) (citing Rose and Diliberti, and holding that appellant's wrongful disclosure claim was time-barred because in accordance with principles of agency law, Privacy Act action accrued from time her attorney received her records).
In contrast to the constructive notice theory adopted by many courts, some courts have suggested that the limitations period for a subsection (g)(1)(C) damages action would commence when a plaintiff actually receives his record -- i.e., when he actually discovers the inaccuracy. See Akutowicz v. United States, 859 F.2d 1122, 1126 (2d Cir. 1988) (holding that the limitations period "began to run, at the very latest, when the citizen received a copy of his records from the State Department"); see also Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990) (subsection (g)(1)(C) action accrues when reasonable person "knows or has reason to know of the alleged violation" and that period commenced when plaintiff received copy of her file); Lepkowski v. United States Dep't of the Treasury, 804 F.2d 1310, 1322-23 (D.C. Cir. 1986) (Robinson, J., concurring) (subsection (g)(1)(C) action "accrued no later than the date upon which [plaintiff] received IRS' letter . . . apprising him of destruction of the photographs and associated workpapers"); Harry v. USPS, 867 F. Supp. 1199, 1205 (M.D. Pa. 1994) (although exact date when plaintiff should have known about alleged improper file maintenance was unclear, date of actual discovery was "sterling clear" -- when plaintiff physically reviewed his files), aff'd sub nom. Harry v. USPS, Marvin T. Runyon, 60 F.3d 815 (3d Cir. 1995) (unpublished table decision); Shannon, 812 F. Supp. at 319-20 (causes of action arose when plaintiff learned of wrongs allegedly committed against him which was when he received documents that were allegedly inaccurate or wrongfully maintained); Fiorella v. HEW, 2 Gov't Disclosure Serv. (P-H) ¶ 81,363, at 81,944 (W.D. Wash. Mar. 9, 1981); cf. Steele v. Cochran, No. 95-35373, 1996 WL 285651, at *1 (9th Cir. May 29, 1996) (citing Rose and holding that Privacy Act claim filed in 1994 was time-barred because plaintiff wrote letter to agency questioning validity of information disclosed to State Bar in 1991 and was formally informed by State Bar that he was denied admission in 1991).
One district court decision has also considered the statute of limitations in connection with a Privacy Act claim under subsection (e)(3) concerning the collection of information from individuals. Darby v. Jensen, No. 94-S-569, 1995 U.S. Dist. LEXIS 7007, at **7-8 (D. Colo. May 15, 1995). In that case, the court determined that the claim was time-barred, as more than two years had passed since the date upon which the plaintiff had received the request for information. Id.
Two district courts have considered whether a claim not raised in the initial Complaint filed within the limitations period could be found to "relate back" to the date of that earlier Complaint under Rule 15(c) of the Federal Rules of Civil Procedure. See Tripp v. DOD, 219 F. Supp. 2d 85, 91-92 (D.D.C. 2002) (holding that plaintiff's subsequent Privacy Act accounting claim was not barred by the two-year statute of limitations because plaintiff's subsequent claim arose "out of the same conduct and occurrences alleged in the initial Complaint," which dealt with the improper disclosures of Privacy Act-protected records); Fort Hall Landowners Alliance, Inc., No. 99-052, slip op. at 15 (D. Idaho Mar. 14, 2003) (finding that Privacy Act wrongful disclosure claims first brought in amended and second amended Complaints related back to original Complaint).
As discussed above, the Court of Appeals for the District of Columbia Circuit recently has held that the rebuttable presumption in favor of equitable tolling that was established in the Supreme Court case, Irwin v. VA, 498 U.S. 89, 95-96 (1990), applies to the Privacy Act's statute of limitations for a damages claim for unlawful disclosure. Chung v. United States Dep't of Justice, 333 F.3d 273, 276-77 (D.C. Cir. 2003). Further, because the D.C. Circuit could find no reason to think that Congress did not intend to equitably toll the Privacy Act's statute of limitations, it held that the government did not overcome this presumption. Id. at 278; see also Fort Hall Landowners Alliance, Inc., No. 99-052, slip op. at 7 (D. Idaho Mar. 14, 2003) (finding "Privacy Act's statute of limitations subject to a rebuttable presumption of equitable tolling" but holding that statute of limitations was not tolled based on the facts before the court).
In addition, the statute's own terms provide that if the plaintiff remains unaware of his cause of action because of the agency's material and willful misrepresentations of information required by the statute to be disclosed to him and the information is material to establishment of the liability of the agency to the individual, then the limitations period runs from the date upon which the plaintiff discovers the misrepresentation. 5 U.S.C. § 552a(g)(5); see also Lacey v. United States, 74 F. Supp. 2d 13, 15-16 (D.D.C. 1999) (concluding that defendants made material and willful misrepresentations to plaintiffs by telling them that they lacked evidence and should wait for agency to finish its own investigation of claim before bringing suit, which tolled statute of limitations until agency "confirmed that there was substance to plaintiffs' claim of violations"); Burkins, 865 F. Supp. at 1496 ("Accepting plaintiff's claims of agency misrepresentation as true, the statute may have been tolled."); Pope v. Bond, 641 F. Supp. 489, 500 (D.D.C. 1986) (holding that the FAA's actions constituted willful and material representation because of their repeated denials of plaintiff's request for access, which "prevents the statute of limitations from running until the misrepresentation is discovered"); cf. Weber v. Henderson, 22 Fed. Appx. 610, 612 (3d Cir. 2002) (per curiam) (finding that even if the court were to consider the claim not properly raised on the appeal, "[t]here is no evidence in the record to show that the failure to disclose [a memorandum that plaintiff claims would have avoided much of the pending litigation] was the result of willful misrepresentation"); Marin v. DOD, No. 95-2175, 1998 WL 779101, at *1 (D.D.C. Oct. 23, 1998) (denying defendants' motion to dismiss on ground that claim was time-barred and accepting plaintiff's claim regarding timing of agency misrepresentation), summary affirmance granted, No. 99-5102, 1999 WL 1006404 (D.C. Cir. Oct. 8, 1999); Munson, No. 96-CV-70920-DT, slip op. at 4-5 (E.D. Mich. July 2, 1996) (statement that agency could find no record of disclosure of report to state police but that it would check further "does not provide any evidence of a willful and material misrepresentation"); Strang v. Indahl, No. 93-97, slip op. at 2-4 (M.D. Ga. Apr. 13, 1995) (agency's denial of allegations in plaintiff's Complaint did not equate as material misrepresentation; by voluntarily dismissing suit on belief that reliance on circumstantial evidence was insufficient, plaintiff "elected to forego the very lawsuit which would have . . . substantiated her suspicions").
Note that the Seventh Circuit has stated that this special relief provision is necessarily incorporated into tests, such as the one set forth in Bergman, which focus on when a plaintiff first knew or had reason to know of an error in maintaining his records. Diliberti, 817 F.2d at 1262 n.1; see also Malewich, No. 91-4871, slip op. at 25-27 (D.N.J. Apr. 8, 1993) (following Diliberti and precluding "the plaintiff from utilizing the discovery rule as a basis for extending the permissible filing date"). The government argued to the Court of Appeals for the District of Columbia Circuit in Tijerina v. Walters that subsection (g)(5) "makes sense only if Congress intended the normal statutory period to commence at the time of the alleged violation, regardless of whether the potential plaintiff is or should be aware of the agency's action." See 821 F.2d at 797-98. The D.C. Circuit, however, rejected that argument and stated that in order to ensure that the government cannot escape liability by purposefully misrepresenting information, "the Act allows the period to commence upon actual discovery of the misrepresentation, whereas . . . for other actions under the Act, the period begins when the plaintiff knew or should have known of the violation . . . thus in no way affect[ing] the special treatment Congress provided for the particularly egregious cases of government misconduct singled out in the Act's statute of limitations." Id. at 798.
Additionally, it has been held that "[a] Privacy Act claim is not tolled by continuing violations." Davis v. United States Dep't of Justice, 204 F.3d 723, 726 (7th Cir. 2000); see also Bergman, 751 F.2d at 316-17 (ruling that limitations period commenced when agency first notified plaintiff in writing that it would not reconsider his discharge or correct his job classification records and rejecting argument "that a new cause of action arose upon each and every subsequent adverse determination based on erroneous records"); Bowyer, 875 F.2d at 638 (citing Bergman and Diliberti, and rejecting argument that continuing violation doctrine should toll statute of limitations); Diliberti, 817 F.2d at 1264 (citing Bergman for same proposition); Jarrett v. White, No. 01-800, 2002 WL 1348304, at *6 (D. Del. June 17, 2002), aff'd per curiam sub nom. Jarrett v. Brownlee, 80 Fed. Appx. 107 (Fed. Cir. 2003) (same); Malewich, No. 91-4871, slip op. at 23-25 (D.N.J. Apr. 8, 1993) (same); Shannon, 812 F. Supp. at 319-20 (plaintiff "cannot revive a potential cause of action simply because the violation continued to occur; he can allege subsequent violations only if there are subsequent events that occurred in violation of the Privacy Act"); cf. Baker v. United States, 943 F. Supp. 270, 273 (W.D.N.Y. 1996) (citing Shannon with approval). But cf. Burkins v. United States, 865 F. Supp. 1480, 1496 (D. Colo. 1994) (citing Bergman and viewing plaintiff's harm as "continuing transaction").
Moreover, a plaintiff's voluntary pursuit of administrative procedures should not toll the running of the statute of limitations, because no administrative exhaustion requirement exists before a damages action can be brought. See Uhl v. Swanstrom, 876 F. Supp. 1545, 1560-61 (N.D. Iowa 1995), aff'd on other grounds, 79 F.3d 751 (8th Cir. 1996).
Generally, the Seventh Amendment does not grant a plaintiff the right to trial by jury in actions against the federal government. U.S. Const. amend. VII. Under sovereign immunity principles, a plaintiff has a right to a jury trial only when the right has been "unequivocally expressed" by Congress. Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981). The Privacy Act is silent on this point and, therefore, there is no right to a jury trial under the statute. Every court to have considered the issue has ruled accordingly. See Payne v. EEOC, No. 00-2021, 2000 WL 1862659, at *2 (10th Cir. Dec. 20, 2000); Harris v. USDA, No. 96-5783, 1997 WL 528498, at *3 (6th Cir. Aug. 26, 1997); Buckles v. Indian Health Serv./Belcourt Serv. Unit, 268 F. Supp. 2d 1101, 1102-03 (D.N.D. 2003); Stewart v. FBI, No. 97-1595, 1999 U.S. Dist. LEXIS 18773, at **7-9 (D. Or. Sept. 29, 1999) (magistrate's recommendation), adopted, No. 97-1595, 1999 U.S. Dist. LEXIS 18785 (D. Or. Nov. 24, 1999); Flanagan v. Reno, 8 F. Supp. 2d 1049, 1053 n.3 (N.D. Ill. 1998); Clarkson v. IRS, No. 8:88-3036-3K, slip op. at 8 (D.S.C. May 10, 1990), aff'd, 935 F.2d 1285 (4th Cir. 1991) (unpublished table decision); Williams v. United States, No. H-80-249, slip op. at 13-14 (D. Conn. Apr. 10, 1984); Calhoun v. Wells, 3 Gov't Disclosure Serv. (P-H) ¶ 83,272, at 84,059 n.2 (D.S.C. July 30, 1980); Henson v. United States Army, No. 76-45-C5, 1977 U.S. Dist. LEXIS 16868 (D. Kan. Mar. 16, 1977). But cf. Tomasello v. Rubin, No. 93-1326, slip op. at 3-5, 19 (D.D.C. Aug. 19, 1997) (noting that court was "guided by" advisory jury verdict in awarding Privacy Act damages in case also involving non-Privacy Act claims), aff'd, 167 F.3d 612, 616-17 (D.C. Cir. 1999) (recounting fact of advisory jury verdict as to Privacy Act claims).
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