125 F.3d 877 (D.C. Cir. 1997), 96-5303, Dong v. Smithsonian Inst.

Docket Nº:96-5303.
Citation:125 F.3d 877
Party Name:Margaret DONG, Appellee, v. SMITHSONIAN INSTITUTION, Hirshhorn Museum & Sculpture Garden, Appellant.
Case Date:October 17, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 877

125 F.3d 877 (D.C. Cir. 1997)

Margaret DONG, Appellee,


SMITHSONIAN INSTITUTION, Hirshhorn Museum & Sculpture

Garden, Appellant.

No. 96-5303.

United States Court of Appeals, District of Columbia Circuit

October 17, 1997

Argued Sept. 5, 1997.

Rehearing Denied Dec. 3, 1997.

Appeal from the United States District Court for the District of Columbia (No. 94cv00628).

Nancy R. Page, Assistant U.S. Attorney, Washington, DC, argued the cause for appellant. With her on the brief was Eric H. Holder, Jr., U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

Joseph Kaplan, Washington, DC, argued the cause for appellee. With him on the brief was John P. Mahoney, Washington, DC.

Before WILLIAMS, GINSBURG and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.


Margaret Dong brought this action against her employer, the Smithsonian Institution, for damages under the Privacy Act, 5 U.S.C. § 552a. The district court found the Smithsonian liable and awarded plaintiff $2,500 in compensatory damages. Dong v. Smithsonian Institution, 943 F.Supp. 69 (D.D.C.1996). The Smithsonian appeals from the district court's determination that it is an "agency" subject to the Privacy Act. Dong v. Smithsonian Institution, 878 F.Supp. 244 (D.D.C.1995). Alternatively, it argues that even if it is covered by the Act, its conduct toward plaintiff was not "intentional or willful" as required for imposition of damages under the Act. 5 U.S.C. § 552a(g)(4). We reverse.

* * *

Plaintiff began working at the Hirshhorn Museum and Sculpture Garden in 1985. She currently holds the position of Museum Registration Specialist, which means that her duties include serving as a courier for works of art the Hirshhorn lends to other museums. Museum procedures require employees to obtain permission from the director of the Hirshhorn before acting as a courier. In September 1993, without seeking permission, plaintiff took annual leave and accompanied the painting Circus Horse by Joan Miro from Barcelona to the Museum of Modern Art ("MOMA") in New York City. At trial she testified that she deliberately failed to request

Page 878

[326 U.S.App.D.C. 351] approval for her trip, even though she had never had such a request denied in the past. Apparently her purpose was to avoid friction with a co-worker, who in her view made trouble when plaintiff was away on courier duty, but not when she simply took annual leave.

Rumors of plaintiff's unauthorized journey soon reached the administrator of the Hirshhorn, Beverly Pierce, and plaintiff's immediate supervisor, Douglas Robinson. Through conversations with the registrar at MOMA and an employee of New York's Metropolitan Museum of Art who had worked at MOMA at the time of plaintiff's trip, Pierce and Robinson eventually substantiated the story. Both supervisors testified that they telephoned New York (rather than directly confront plaintiff) because they were aware of tensions in the Hirshhorn office where plaintiff worked, and wanted to put the rumors to rest without creating any additional workplace difficulties. When the rumors proved true, Pierce and Robinson approached plaintiff, who admitted taking the trip. She was suspended for five days.

In March 1994 plaintiff instituted this action against the Smithsonian under the Privacy Act, which requires federal agencies, when gathering information that may lead to an adverse determination about an individual, to obtain that information directly from the individual "to the greatest extent practicable." 5 U.S.C. § 552a(e)(2); see Waters v. Thornburgh, 888 F.2d 870 (D.C.Cir.1989). Damages are available under the Privacy Act for "intentional or willful" violations. 5 U.S.C. § 552a(g)(4). The Smithsonian defended on the theory that it is not an "agency" subject to the Act. In the alternative, it contended that its conduct could not be described as intentional or willful given its reasonable belief that the Act did not apply to it. Finally, the Smithsonian argues that even if the Privacy Act applied and even if its understanding to the contrary were not exculpatory, Pierce and Robinson's decision not to obtain information from the plaintiff in the first instance stemmed from a good faith belief that intra-office tensions rendered such a direct confrontation impracticable.

The district court rejected all of the Smithsonian's arguments. It found that the Smithsonian "has sufficient federal ties and control, as well as independent authority, to compel a finding of agency status under the Act." Dong, 878 F.Supp. at 248. The district court also held that the Smithsonian had intentionally or willfully violated the Act, saying that the institution was put on notice of its subjection to the Privacy Act by a 1992 district court opinion, Cotton v. Adams, 798 F.Supp. 22, 24 (D.D.C.1992), which found it to be an agency for the purposes of the Freedom of Information Act ("FOIA"), a statute whose definition of "agency" also governs the Privacy Act.

Because we hold that the district court erred in finding the Smithsonian to be an "agency" under the Privacy Act, we reverse without reaching its "intentional or willful" defenses.

* * *

The Privacy Act requires "[e]ach agency that maintains a system of records" to gather information about a person directly from that person, to the greatest extent practicable. 5 U.S.C. § 552a(e)(2). The other requirements of the Act similarly apply to "agencies." See § 552a(b), (c), (d), (f).

Through § 552a(a)(1), the Act borrows the definition of "agency" found in FOIA, 5 U.S.C. § 552(f). 1 That definition in turn reads as follows:

For purposes of this section, the term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

5 U.S.C. § 552(f). Section 552a(a)(1) cross-references 5 U.S.C. § 551(1), the definition of "agency" in the Administrative Procedure Act ("APA"), but does not explicitly incorporate

Page 879

[326 U.S.App.D.C. 352] it. Still, as the parties recognize, the Privacy Act encompasses not only all entities covered by § 552(f) but also all those described by § 551(1), which embraces any "authority of the Government of the United States, whether or not it is within or subject to review by another agency." Indeed, the additional language of § 552(f) was added to FOIA...

To continue reading