Hubbard v. U.S. E.P.A. Adm'r

Decision Date06 January 1987
Docket NumberNo. 85-5145,85-5145
Parties, 55 USLW 2344 Michael E. HUBBARD, Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, ADMINISTRATOR, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00564).

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

Scott T. Kragie, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees.

Before WALD, Chief Judge, SCALIA * and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Opinion concurring in the judgment filed by Chief Judge WALD.

SILBERMAN, Circuit Judge:

This case arises out of appellant Michael Hubbard's unsuccessful effort to obtain employment with appellee, the Environmental Protection Agency (EPA). Hubbard alleges that EPA violated two provisions of the Privacy Act 1 and that EPA and appellee Peter Beeson rejected his employment application in violation of his first amendment rights. Hubbard seeks damages against EPA for his Privacy Act claims. For his first amendment claim, Hubbard seeks damages against Beeson under the Bivens 2 doctrine, and reinstatement against EPA. The district court, on cross motions for summary judgment, dismissed each of Hubbard's claims. Hubbard appealed. For the reasons set forth below, we affirm the district court's dismissal of Hubbard's Privacy Act and Bivens claims, 3 and reverse the dismissal of his first amendment-based claim for reinstatement.

I.

Michael Hubbard is a detective employed by the District of Columbia Metropolitan Police Department. His assignments at the department have included investigating organized crime, narcotics trafficking, and other criminal cases. He participated in the highly-publicized 1981 investigation of alleged illegal drug use by employees and members of Congress. In 1982, Hubbard applied for a criminal investigator position with the EPA in Washington, D.C. Following EPA's normal evaluation procedure, Hubbard was ranked on a numerical scale reflecting his work, experience, and education and received a score that placed him in the class of "best qualified" applicants.

Hubbard's application was given to Peter Beeson, an EPA hiring official. Before his job interview, Hubbard's name surfaced during a conversation between Beeson and his fiancee, Laura Kiernan, a Washington Post reporter covering the Capitol Hill drug investigation. Kiernan's reaction to the mention of Hubbard's name caused Beeson to suspect that Hubbard had improperly discussed the investigation with the press.

In fact, Hubbard has admitted discussing the drug investigation with two assistants to syndicated columnist Jack Anderson. The parties in this case disagree about whether these discussions were authorized by Hubbard's superiors, or were more in the nature of unauthorized "leaks." Hubbard also wrote a letter to Congressman Robert Dornan naming the targets of the drug investigation. Hubbard does not contest appellees' assertion that this disclosure was unauthorized.

During Hubbard's subsequent interview, Beeson asked him if he knew the source of the leaks in the drug investigation. Hubbard replied that he did not leak information to the press and suggested that Beeson contact a Justice Department attorney, David Hopkins, for further information regarding his role in the drug investigation. Despite Hubbard's denial, Beeson remained concerned that Hubbard had leaked sensitive information about a criminal investigation, thus demonstrating (in Beeson's mind) Hubbard's lack of judgment and lack of concern for the rights of suspects. He decided not to hire Hubbard. Because Hubbard was a veteran, Beeson was required to document the reason for the rejection by completing a "passover document." In the document, Beeson wrote that Hubbard's rejection was due to his lack of experience investigating white collar crime. Beeson did not mention his concerns about Hubbard's judgment.

Hubbard asserts that this passover document was "inaccurate" because (1) it did not list the primary reason for his rejection, and (2) the reason listed was not itself sufficient grounds for rejecting him. The latter assertion requires some explanation. EPA's job vacancy announcement described the position for which Hubbard applied as requiring "[s]kill in conducting investigations involving major corporations, white collar crime, and fraud." This requirement could be met by applicants who demonstrated "[e]xperience in the investigation either of white collar crime by major corporate defendants or of major (class 1) felonies." (emphasis added). Because these were alternative requirements, Hubbard argues, he could not properly have been rejected for lack of only one of them. EPA responds that it considered the white collar crime requirement the more important of the two requirements, and in fact rejected other applicants solely because they lacked white collar crime investigating experience.

After learning of his rejection, Hubbard asked the Office of Personnel Management (OPM) to review the EPA passover decision. In response, OPM wrote to Hubbard's attorney stating that it had investigated the allegations of an improper passover but found no improprieties and, further, concluding that Hubbard did not meet the vacancy announcement's "mandatory requirement of skill in conducting investigations involving major corporations, white collar crime and fraud."

In January, 1983, Hubbard petitioned to the Office of Special Counsel ("OSC") of the Merit Systems Protection Board ("MSPB") alleging that his non-selection resulted from a prohibited personnel practice. 4 And in February, 1983, Hubbard filed this lawsuit in the district court. Five months later, OSC concluded there was no evidence of a prohibited personnel practice in EPA's hiring decision.

Hubbard's complaint asserted several claims, all of which were dismissed on summary judgment. The question before us is whether there is "a genuine issue as to a material fact," Fink v. National Savings and Trust Co., 772 F.2d 951, 955 (D.C.Cir.1985), which, if proved, would make out a cause of action. Of Hubbard's claims, we think three merit extended discussion: the Privacy Act section 552a(g)(1)(C) claim, the first amendment-based Bivens claim against Beeson, and the first amendment claim against EPA. 5

II.

Hubbard alleges a violation of the Privacy Act, 5 U.S.C. Sec. 552a(g)(1)(C) (1982), which creates a civil cause of action for damages when a federal agency fails to maintain accurate records concerning an individual and, consequently, the agency acts adversely to that individual. 6 Hubbard claims he was injured as a result of the allegedly inaccurate passover document prepared by Beeson. He argues that because the passover document described his lack of experience in "conducting investigatings involving major corporations, white collar crime and fraud" as the reason for the rejection, it was inaccurate, and, as a consequence, he was denied employment. Assuming arguendo the passover document was inaccurate, Hubbard's Privacy Act claim presents us with two issues: whether Hubbard must exhaust specified administrative remedies before pursuing the claim, and whether Hubbard has met the Privacy Act's "causation" requirement.

A.

The district court held that Hubbard was required to seek administrative correction of the allegedly inaccurate passover document before pursuing his Privacy Act damage claim in district court. Since Hubbard had not done so, the court dismissed the claim.

We believe the court erroneously applied to Hubbard's damage claim the exhaustion requirement applicable to section 552a(g)(1)(A) claims, which authorize courts to compel agency correction of inaccurate records. In Nagel v. U.S. Department of Health, Education, and Welfare, 725 F.2d 1438 (D.C.Cir.1984), we distinguished between Privacy Act suits seeking correction of agency records and suits seeking damages for inaccurate records. While plaintiffs must request agency amendment of allegedly inaccurate records before suing to compel amendment, "exhaustion of administrative remedies is not required where an individual seeks damages pursuant to 5 U.S.C. Sec. 552a(g)(4)." Id. at 1441 n. 2. The district court therefore possessed, and should have exercised, jurisdiction over Hubbard's damage claim.

B.

To make out a damage claim under the Privacy Act, the plaintiff must prove a "causal relationship between the allegedly erroneous record and an adverse determination based on that record." Clarkson v. IRS, 678 F.2d 1368, 1377 (11th Cir.1982) (quoting Edison v. Department of the Army, 672 F.2d 840, 845 (11th Cir.1982)). See also Molerio v. FBI, 749 F.2d 815, 826 (D.C.Cir.1984). The district court found that Hubbard "failed to demonstrate a causal relationship between the alleged errors in the passover document and his nonselection as an EPA criminal investigator." Appellant argues that summary judgment on this issue was inappropriate.

The district court perceived Hubbard's Privacy Act claim as an effort "to circumvent the administrative remedies provided by [the Civil Service Reform Act] for alleged 'prohibited personnel practices' and to attack collaterally the final decision of the OSC...." Although the court proceeded to analyze the merits of the Privacy Act claim, its causation analysis assuredly was influenced by its concern not to read the Privacy Act so as to bring it into conflict with CSRA. We think the court was, in that respect, correct. CSRA deprives the district court of jurisdiction to review prohibited personnel practices; more serious infractions are appealable to the Merit Systems Protection Board, with further review in the Courts of Appeal. Prohibited personnel practice...

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