Dong v. Smithsonian Inst.

• Decision Date: 03 December 1997
• Docket Number: No. 96-5303,96-5303
• Citation: 125 F.3d 877
• Parties: Margaret DONG, Appellee, v. SMITHSONIAN INSTITUTION, Hirshhorn Museum & Sculpture Garden, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 877

125 F.3d 877

326 U.S.App.D.C. 350

Margaret DONG, Appellee, v. SMITHSONIAN INSTITUTION, Hirshhorn Museum & Sculpture Garden, Appellant.

No. 96-5303.

United States Court of Appeals,District of Columbia Circuit.

Argued Sept. 5, 1997.

Decided Oct. 17, 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.

STEPHEN F. WILLIAMS, Circuit Judge:

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 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 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 in 1974 "to encompass entities that might have eluded the APA's definition in § 551(1)." Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d 581, 583 (D.C.Cir.1990).

Hence, to be an agency under the Privacy Act, an entity must fit into one of the categories set forth either in § 552(f) or § 551(1). Because we cannot see how the Smithsonian fits into any of them, we hold that it is not an agency for Privacy Act purposes.

Of the categories listed in § 552(f), the only ones that might be thought to cover the Smithsonian are "establishment in the executive branch" and "Government controlled corporation." It is plain that the Smithsonian is not an establishment in the executive branch. To begin with, nine of the seventeen members of its governing Board of Regents are appointed by joint resolution of Congress, 20 U.S.C. § 43, and six of the remaining eight are members of Congress, 20 U.S.C. § 42. (The other two are the Vice President and the Chief Justice of the United States, id.) Moreover, there is no evidence that the Secretary of the Smithsonian answers to the President, or that the institution administers federal statutes, prosecutes offenses, promulgates rules and regulations (other than with respect to its own buildings and grounds), or engages in any other typically executive activity. Indeed, if the Smithsonian were to wield executive powers, the method by which its Regents are appointed would appear to violate the Constitution's separation of powers principles. See U.S. Const., art. II, § 2, cl. 2; Buckley v. Valeo, 424 U.S. 1, 138-39, 96 S.Ct. 612, 691-92, 46 L.Ed.2d 659 (1976) (officeholders appointed by Congress may act only "in an area sufficiently removed from the administration and enforcement of the public law to permit their being performed by persons not 'Officers of the United States' "); Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 275-76, 111 S.Ct. 2298, 2311-12, 115 L.Ed.2d 236 (1991).

Nor is the Smithsonian a "Government controlled corporation" within the meaning of the Privacy Act. There is much force to the Smithsonian's argument that the plain terms of the phrase itself simply do not encompass it. In particular, the Smithsonian contends that it is not "government-controlled" in the day-to-day sense required by our cases, see Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976), and that it is not a "corporation," but rather a testamentary trust res denominated an "establishment" by Congress in 1846, 20 U.S.C. § 41. We find it unnecessary to address these arguments, however. Section 552(f) first identifies four specific categories--"any executive department, military department, Government corporation, Government controlled corporation"--and then uses a catch-all phrase to encompass similar entities not precisely fitting any of the four specific molds: "or other establishment in the executive branch" (emphasis added). Thus Congress evidently viewed the four specified classes as examples of "establishments in the executive branch," so that an entity clearly outside the executive branch would not qualify even if it could otherwise be shoehorned into the concept of a "Government controlled corporation." ² This is the most logical reading of the statute; for those who collect canons of construction it might be termed an application...