49 F.3d 597 (9th Cir. 1995), 93-35048, Wilborn v. Department of Health and Human Services

Docket Nº:93-35048.
Citation:49 F.3d 597
Party Name:Roland Ralph WILBORN, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
Case Date:March 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 597

49 F.3d 597 (9th Cir. 1995)

Roland Ralph WILBORN, Plaintiff-Appellant,



No. 93-35048.

United States Court of Appeals, Ninth Circuit

March 10, 1995

Argued, Submission Deferred Sept. 15, 1994.

Resubmitted Nov. 15, 1994.

Page 598

William Carpenter, Jr., Eugene, OR, for plaintiff-appellant.

Judith D. Kobbervig, Asst. U.S. Atty., Portland, OR, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: THOMPSON and TROTT, Circuit Judges, and TASHIMA, District Judge. [*]

Page 599

TASHIMA, District Judge:

This is an action brought under the Privacy Act of 1974, 5 U.S.C. Sec. 552a. The district court granted the motion of defendant Department of Health and Human Services ("HHS") for summary judgment, from which plaintiff Wilborn has appealed. 1 The appeal is timely and we have jurisdiction under 28 U.S.C. Sec. 1291.


Appellant Wilborn was employed as a staff attorney/decision writer by HHS in Eugene, Oregon, from August, 1986, through August, 1987. His supervisor during this period was the Hearing Office Chief Administrative Law Judge Stephen P. Kramer (the "ALJ"). Wilborn's primary job duty was to write decisions in Social Security disability cases adjudicated by the ALJ and one other judge. In May, 1987, the ALJ, acting under the direction of superiors, informed Wilborn that the agency was dissatisfied with the number of decisions he was writing and told him he would be placed on a Performance Improvement Plan ("PIP"). Thereafter, the ALJ analyzed Wilborn's job performance and generated a PIP, using statistical data from the agency's records. The PIP, with attached monthly production reports, was issued on June 1, 1987. One copy was given to Wilborn and another was placed in Wilborn's personnel file.

Wilborn filed a grievance over the PIP. Management granted the grievance, in part, in July, 1987, rescinding the PIP and ordering that the PIP memorandum be expunged from Wilborn's file. All other records pertaining to the PIP were also required to be destroyed. The ALJ executed that decision; he personally removed the PIP records from Wilborn's personnel file and deposited them in Wilborn's wastebasket.

Soon thereafter Wilborn resigned from HHS and went into private practice, representing Social Security benefit claimants. One of the claims he handled, the Ricks case, was adjudicated by the ALJ. Wilborn objected to the way the ALJ was handling the Ricks case. He wrote a letter accusing the ALJ of transforming himself from an impartial decision-maker into an "advocate."

The ALJ responded to these charges in the text of his decision in the Ricks case, using the following language:

What Mr. Wilborn does not state is that as his supervisor, the undersigned was required to place him on a Performance Improvement Plan (PIP) because of his failure to meet even the minimal production requirements.

The ALJ included this language against the advice of Cindy S. Vail ("Vail"), an attorney with HHS, who advised him during the drafting of the decision that it was inappropriate to include comments about his past relationship with Wilborn.

Copies of the decision were sent to the Appeals Council, in Alexandria, Virginia, and to Wilborn's client. Nine days after the decision was issued, Wilborn complained to the ALJ, alleging that the ALJ had violated the Privacy Act. That same day, the ALJ issued an errata sheet, ordering that the following passage be substituted for the language quoted above:

What Mr. Wilborn does not state is that he left the agency as a "disgruntled employee." Despite his difficulties with the Office of Hearings and Appeals, his current animus to the undersigned (his former supervisor) is astounding.

However, the errata sheet did not disclose that the PIP has been rescinded in full and removed from the agency's system of records. Further notwithstanding the errata sheet, the Appeals Council and Wilborn's client had already received copies of the decision with the original language, referring to the PIP.


A grant of summary judgment is reviewed de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992). We

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must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). The parties do not dispute any of the material facts. However, Wilborn contends that the district court erred in applying the substantive law. 2 We agree.

The district court granted summary judgment to HHS on two bases: First, that...

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