Hernandez v. Alexander

• Decision Date: 19 February 1982
• Docket Number: No. 79-1883,79-1883
• Parties: Maximo HERNANDEZ, Jr., Plaintiff-Appellant, v. Clifford ALEXANDER, Jr., Secretary of the Department of the Army, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 402

671 F.2d 402

Maximo HERNANDEZ, Jr., Plaintiff-Appellant, v. Clifford ALEXANDER, Jr., Secretary of the Department of the

Army, Defendant-Appellee.

No. 79-1883.

United States Court of Appeals, Tenth Circuit.

Submitted April 10, 1980.

Decided Feb. 19, 1982.

Maximo Hernandez, Jr., plaintiff-appellant, pro se.

R. E. Thompson, U. S. Atty., and Charles N. Estes, Jr., Asst. U. S. Atty., Albuquerque, N.M., for defendant-appellee.

Before SETH, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Plaintiff-appellant, Maximo Hernandez, brought this action under the Privacy Act, 5 U.S.C. § 552a, against defendant-appellee, Secretary of the Department of the Army. Plaintiff is a former civilian employee at White Sands Missile Range, New Mexico, who was employed by the Army. He was notified of his removal from federal service in September 1976 and his removal was effected on November 3, 1976.

In this suit commenced under the Privacy Act and the Fifth Amendment in August 1977 plaintiff claimed the right to access to several documents pursuant to § 552a(d)(1) and (g)(1)(B), an Inspector General's report and four memoranda prepared by an attorney in the White Sands Staff Judge Advocate's office. Plaintiff also contended that defendant had failed to maintain a record concerning him with such accuracy, relevance, timeliness and completeness as is necessary to insure fairness in any determination relating to the qualifications, character, rights or opportunities of plaintiff and consequently the discharge determination adverse to plaintiff was made in violation of § 552a(g)(1)(C). Finally, plaintiff claimed that defendant improperly disclosed certain of his records to others without his prior consent in violation of § 552a(b) and (g)(1)(D). (I R. 183-84).

After considering the evidentiary record, the trial court made two principal rulings. The court ordered that plaintiff be given full access to the Inspector General's report, except for portions deleted by the Department of the Army, as explained below. The court rejected the claims for damages but awarded costs and $1,500 in attorney's fees to plaintiff, denying all other relief, and plaintiff appealed.

I

As noted, plaintiff seeks access to an investigative report and to four memoranda, all of which are described more fully below.

The investigative report, entitled the Inspector General Report of Investigation (hereinafter ROI), was dated July 26, 1976. The investigation was conducted between May 28 and July 9, 1976. After several requests for access to the ROI by plaintiff, plaintiff was permitted to examine a sanitized version of the ROI-he was permitted to view the entire report including the statements given by witnesses to investigators, but the identity of the witnesses who declined to consent to the release of their testimony, and portions of the report which defendant thought might identify these witnesses, were excised. Plaintiff was permitted to examine this sanitized report, to make notes from it, but was not permitted to photocopy it. The ROI in this form, Defendant's Exhibit R, was made available to the district court for in camera inspection. By agreement of the parties the entire ROI, together with its exhibits, was marked as Defendant's Exhibit S and also submitted to the district court for in camera inspection. Neither plaintiff nor plaintiff's counsel have been permitted to examine the complete report. (I R. 202).

The four memoranda plaintiff sought, but to which he was denied access by defendant, consist of a list containing a description of certain documents sent and received by plaintiff and three other memoranda, the four exhibits being identified as Defendant's Exhibits T, U, V and W. The memoranda were prepared by John M. Lenko, an "Attorney Advisor (Contracts)" in the office of the Staff Judge Advocate at White Sands Missile Range. The parties agreed that these four exhibits could be viewed by the district court in camera. Neither plaintiff nor plaintiff's counsel have been permitted to review them. (I R. 60-61, 204-05).

In the pre-trial order the parties agreed that the question of liability would be decided entirely on the documentary evidence, including transcripts offered by the parties, and that no witnesses would be called. The issue of damages was to be tried at a later time before the court, if the judge determined that defendant was liable for any violation of the Privacy Act. (I R. 188).

The district judge in his first Order and Memorandum Opinion concluded that the defendant properly withheld that portion of the ROI which contained any material that would reveal the identity of the persons who declined to release their testimony, but that plaintiff was entitled to copy, not just examine, the remainder of the report, and the court ordered that this should be permitted. The court also concluded that defendant properly refused to release the four memoranda, that the ROI was fair and accurate, and that the Army was not liable for disclosing the ROI or EEO complaint files. After a subsequent hearing the court held that plaintiff could not recover damages, but was entitled to an injunctive order for the inspection and copying of the ROI in the form with the deletions noted, and an award of attorney's fees and costs. From these two orders disposing of all of plaintiff's claims, plaintiff brings this timely appeal. ¹

On appeal, plaintiff claims error in the denial of further injunctive relief and damages to him in that (1) he was entitled to access to the portions of the ROI which the district court concluded had been properly withheld; (2) he was entitled to access to the four memoranda; (3) defendant improperly disclosed the ROI and EEO files to other persons; and (4) plaintiff is entitled to actual damages since the defendant and his agents intentionally and willfully failed to maintain the ROI with accuracy, relevance timeliness and completeness as required by the Privacy Act.

II

First, we consider plaintiff's claim that the district court erred in not ordering the release to him of all portions of the ROI, including parts which would identify the persons giving the statements to the representatives of the Inspector General. The trial court held that the material was exempt from disclosure under 32 C.F.R. § 286a.10(b)(7), that the witnesses had been given assurances that their statements would be kept as secret as possible, that they had refused to consent to release of their testimony, and that they are entitled to have their identity kept secret.

Plaintiff claims error in this ruling in several respects. First, he points to 5 U.S.C. § 552a(k)(5) ² and argues that its exemption of investigatory material compiled solely for determining "suitability, eligibility, or qualifications for Federal civilian employment" is concerned only with investigations to determine the advisability of hiring employees, not to determine the advisability of their continued employment. ³ We disagree. Suitability for Federal civilian employment is a continuing matter and we are not persuaded that the narrow interpretation suggested is proper.

Second, plaintiff argues that § 552a(k)(5) operates as an exemption in the case only if disclosure would reveal the identity of a source who furnished information "under an express promise that the identity of the source would be held in confidence...," and that no such promise was made to these witnesses. It is true that the trial court's findings state that the witnesses were "given assurances" and there is some doubt arising from the statements made by the investigating officers to the persons giving the statements. ⁴ The exemptions from the individual's right of access must be narrowly construed and their requirements must be strictly met. Nemetz v. Department of the Treasury, 446 F.Supp. 102, 105 (N.D.Ill.); see generally "Congressional Findings and Statement of Purpose" to 5 U.S.C. § 552a, 5 U.S.C.A. at pp. 204-05. We nevertheless feel that the effect of the court's statements was to find that the witnesses were given an "express promise" that the identity of the source would be held in confidence. We conclude that this finding was not clearly erroneous.

Third, plaintiff says that even if the § 552a(k)(5) exemption applies, the subsection would be unconstitutional; that he had a right to procedural due process since he could only be discharged for cause under 5 U.S.C. § 7501 et seq.; that such an entitlement is recognized in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; that a liberty interest is also implicated by a stigma from his discharge, citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; and that denying him the names and confrontation with the persons making the statements used in his termination deprived him of Fifth Amendment rights. (Brief of Appellant at 2-3).

The constitutional claim was mentioned in plaintiff's complaint by a general allegation of "denial of due process" and violation of "Plaintiff's rights under .... (the Privacy Act) and the Fifth Amendment to the United States Constitution," (I R. 8), but the claim was not stated in the pre-trial order as an issue of fact or law. Since the pre-trial order supersedes the pleadings and becomes the governing pattern of the suit, the constitutional claim was not presented in the district court, which did not decide the issue. See Case v. Abrams, 352 F.2d 193, 195-96 (10th Cir.). And issues not raised in the trial court should not be considered on appeal, except to prevent manifest...