725 F.2d 1438 (D.C. Cir. 1984), 80-1675, Nagel v. United States Dept. of Health, Educ. and Welfare

Docket Nº:80-1675.
Citation:725 F.2d 1438
Party Name:James B. NAGEL, Appellant v. U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, et al.
Case Date:January 24, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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725 F.2d 1438 (D.C. Cir. 1984)

James B. NAGEL, Appellant

v.

U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, et al.

No. 80-1675.

United States Court of Appeals, District of Columbia Circuit

January 24, 1984

Argued May 24, 1983.

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 79-0156).

Peter B. Broida, Washington, D.C., for appellant.

Ann S. DuRoss, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lambert and R. Craig Lawrance, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WILKEY and SCALIA, Circuit Judges, and WEIGEL, [*] Senior District Judge.

Opinion for the Court filed by Senior District Judge WEIGEL.

WEIGEL, Senior District Judge:

Appellant challenges the district court's grant of summary judgment for appellee and dismissal of appellant's complaint alleging violations of the Privacy Act of 1974 (the Act), 5 U.S.C. Sec. 552(a). The appeal raises two issues: first, to what extent does the Act require exhaustion of administrative remedies as a prerequisite to bringing a civil lawsuit; second, does the maintenance of records describing speech made by an employee in his official capacity violate the Act's ban on maintenance of records describing an individual's exercise of First Amendment rights. The district court concluded that failure to exhaust administrative remedies bars a claim alleging the maintenance of irrelevant and inaccurate records. It also held that records describing an employee's conduct in his official capacity may be kept by the employing agency without violating the Act. We affirm.

Appellant worked as an administrative assistant at Saint Elizabeths Hospital (the hospital) in Washington, D.C., from 1972 until the time he filed his complaint in January, 1979). The hospital is operated by appellee and maintains systems of records used to evaluate employee work performance. Such records, kept as to appellant for the years 1972 through 1978, include two memoranda describing appellant's conduct while attending a course on administrative psychiatry offered by the Washington School of Psychiatry during November, 1975. The course was attended by hospital administrators from various local hospitals. Several employees from the hospital, including appellant, attended the course during working hours. Their fees and expenses were paid by the hospital. Two of those employees each independently submitted an unsolicited memorandum to administrators

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of the hospital complaining about appellant's conduct at the course. Both memoranda assert that, while participating in the course, appellant made numerous derogatory, malicious and unfounded statements concerning the hospital. The memoranda also express concern as to appellant's ability to be an appropriate representative of the hospital. As a result of the memoranda, the hospital considered instituting disciplinary action against appellant but chose not to do so.

The Privacy Act protects the privacy interests of individuals in information collected about them by federal agencies. It prescribes certain duties for the agencies which collect, store, and disseminate such information. The Act provides in pertinent part:

(e) * * * Each agency that maintains a system of records shall--

* * *

* * *

(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness...

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