Waters v. Thornburgh, 88-5178

• Decision Date: 31 October 1989
• Docket Number: No. 88-5178,88-5178
• Citation: 888 F.2d 870
• Parties: , 58 USLW 2293 Richard L. WATERS, Appellant, v. Richard THORNBURGH, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 870

888 F.2d 870

281 U.S.App.D.C. 173, 58 USLW 2293

Richard L. WATERS, Appellant, v. Richard THORNBURGH, Appellee.

No. 88-5178.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 25, 1989.

Decided Oct. 31, 1989.

Joseph B. Scott, with whom Jennifer R. Levin, Washington, D.C., was on the brief, for appellant.

Wilma A. Lewis, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before WALD, Chief Judge, and BUCKLEY and SENTELLE, Circuit judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Richard Waters sued his employer, the Department of Justice ("Department"), for damages ¹ for an alleged violation of his rights under subsection (e)(2) of the Privacy Act ("the Act"). 5 U.S.C. Sec. 552a. ² On cross-motions for summary judgment, the district court ruled in favor of the Department. Waters v. Meese, 684 F.Supp. 712 (D.D.C.1988). The court found that the Department had not violated the Act when it sought information from a third party about Waters' whereabouts during a period of time for which he was on annual leave, and that, in any event, the Department's conduct was not "intentional or willful." Because we find as a matter of law that the Department did not "to the greatest extent practicable" obtain information from Waters, we reverse the grant of summary judgment in favor of the Department, and grant partial summary judgment for Waters on the practicability issue. We also find that Waters raised a triable issue of fact concerning whether the Department's conduct rose to the level of an intentional or willful violation, and remand on that issue.

I. BACKGROUND ³

Richard L. Waters is a Department of Justice employee who at all times relevant to this action served as a Senior Program Analyst in the Coordination and Review Section of the Civil Rights Division. In early February 1986, Waters filed a request for a combination of sick leave, annual leave, and advanced annual leave for the period February 4, 1986, through February 26, 1986, for the purpose of preparing for and taking the Pennsylvania bar exam. Waters' supervisor, James Bennett, approved his use of annual and advanced annual leave for this purpose.

Waters returned to work as scheduled on February 27. On or about February 28, Waters requested and received administrative leave from Bennett to satisfy a summons for jury duty from March 3, 1986, through March 14, 1986, in the United States District Court for the District of Columbia. This leave was later extended through March 21.

When Waters did not return to work as scheduled on March 24, Bennett asked Joyce Burch, the timekeeper, to make an inquiry. She reported to Bennett that Waters was still serving on a jury, but that the jury commissioner indicated that he had not actually begun sitting until March 11. When Waters returned, and after consulting with his own supervisor and with the Chief of the Administrative Management Section ("AMS"), Bennett asked Waters to account for his actual use of administrative leave on the days between March 3 and March 11. Waters responded that he had been at his office on all but two of those days. When further investigation did not fully corroborate Waters' story, Bennett again contacted the jury commissioner. This time, she indicated that Waters had asked her to certify his presence for jury duty during days in which her records did not reflect that he was present, and which included the period Waters had claimed to be at his duty station.

According to Bennett, he then also became suspicious about Waters' use of annual leave in February, and requested that the Chief of the AMS contact the Pennsylvania Board of Law Examiners ("the Board"). In May 1986, the AMS Chief asked Kathleen Murphy, then Chief of the Personnel and Training Unit of the Civil Rights Division, to investigate Waters' use of administrative leave, and to contact the Pennsylvania Board. In early July 1986, Murphy telephoned the Board to request confirmation of Waters' attendance at the February bar exam. The Board told Murphy that any such request had to be in writing, and that disclosure to a third party would only be made if the letter contained a persuasive demonstration of need for the information. In response, Murphy sent the letter at issue in this appeal. In relevant part, the letter said:

For reasons that I cannot disclose at this time, his supervisor has reason to believe that Richard Waters did not take the bar at this period of time. If this is in fact the case, his supervisor intends to take some form of disciplinary action which could possibly lead to his removal from federal service.

On July 21, the Board confirmed that Waters had taken the February bar exam. During the course of these events, Waters was never informed that the Department was also investigating his use of leave in February. He found out in December 1986, in unrelated correspondence with the Board. On December 24, in response to a request from Waters' attorney, the Department sent Waters copies of the Department's correspondence with the Pennsylvania bar authorities. It also sent him a copy of a letter (dated December 24) from the Executive Officer of the Administrative Management Section of the Civil Rights Division to the Pennsylvania Board explaining that Murphy's July 9, 1986, letter had been simply an attempt to verify Waters' attendance at the bar exam. The letter further stated that Waters was and always had been in good standing as a federal employee.

Waters filed suit against the Department claiming that it had violated subsection (e)(2) of the Privacy Act because it failed to "collect information to the greatest extent practicable directly from the subject individual" by contacting the Pennsylvania bar authorities without first asking him to provide objective verification of his attendance at the bar exam. 5 U.S.C. Sec. 552a(e)(2). The parties filed cross-motions for summary judgment.

In a memorandum opinion and order filed April 25, 1988, the district court denied Waters' motion for summary judgment, and granted the Department's cross-motion largely on the ground that the Department had reasonable grounds for doubting Waters' credibility and was, therefore, justified in seeking information directly from the Pennsylvania Board. Waters v. Meese, 684 F.Supp. 712 (D.D.C.1988). On appeal, Waters argues that mere doubts about a subject's credibility cannot relieve an agency's subsection (e)(2) obligation to obtain information first from that subject; and, that the recklessness with which the Department proceeded in sending the letter to the Pennsylvania Board should satisfy the "intentional or willful" standard.

II. DISCUSSION

To obtain relief under subsection (e)(2) of the Privacy Act, 5 U.S.C. Sec. 552a(e)(2), a plaintiff must establish that: (1) the agency failed to elicit information directly from him "to the greatest extent practicable," 5 U.S.C. Sec. 552a(e)(2); (2) the violation of the Act was "intentional or willful," 5 U.S.C. Sec. 552a(g)(4); and (3) this action had an "adverse effect" on the plaintiff, 5 U.S.C. Sec. 552a(g)(1)(D). If these three factors are satisfied, the plaintiff is entitled to the greater of $1,000 or the actual damages sustained. 5 U.S.C. Sec. 552a(g)(4). Only the first two requirements are at issue in this appeal. ⁴

Summary judgment is only appropriate "where 'the evidence is such that a reasonable jury could not return a verdict for the nonmoving party.' " Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir.1989), quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party must first meet its burden of production by showing the absence of a genuine issue of fact. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the motion for summary judgment is properly supported, the burden shifts to the nonmovant to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. The nonmoving party cannot satisfy this burden by resting on mere allegations, but instead must present " 'affirmative evidence' showing a genuine issue for trial." Laningham, 813 F.2d at 1241, quoting Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514. Therefore, to survive the government's properly-supported motion, the plaintiff must set forth evidence that would allow a "reasonable jury [to] return a verdict" in his favor. See Laningham, 813 F.2d at 1241; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510; see also Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029 (D.C.Cir.1988). In light of these requirements, we will discuss the appropriateness of the district court's summary resolution of the practicability and intent issues.

A. "To the Greatest Extent Practicable"

The district court found that the government had met its initial burden on summary judgment to show the absence of a genuine issue of material fact on the practicability issue. The Department presented affidavits to show that the supervisors involved had reasonable grounds for doubting Waters' credibility, and, therefore, reasonably believed that it was impracticable to obtain information directly from him. Waters v. Meese, 684 F.Supp. at 715. The burden then shifted to Waters, who presented evidence to show the existence of objective documentary proof of his attendance at the bar exam. Waters argued not that such evidence raised a genuine issue of material fact, but that it showed as a matter of law that the Department did not "to the greatest extent practicable" obtain information from him. Though the district court found this argument "not without appeal," it found it...