Albright v. U.S.

Decision Date10 April 1984
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 78-00397).

Mark H. Lynch, Washington, D.C., with whom Susan W. Shaffer, Ronald L. Plesser and Steven H. Leyton, Washington, D.C., were on the brief, for appellants.

Marc Richman, Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Leonard Schaitman, Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before WRIGHT, WILKEY and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This suit stems from a decision by the Bureau of Hearings and Appeals of the Social Security Administration ("Bureau") to lower the civil service rating of the position of "hearing and appeal analyst" and to withhold previously recommended promotions to the discontinued higher grade level. At the request of the affected hearing and appeal analysts, the Bureau's management conducted a brief meeting to explain this decision and to answer any questions posed by the analysts. The Bureau recorded that conference on videotape. Subsequently, a number of the analysts claimed to have suffered severe emotional injuries as a result of their attendance at the videotaped meeting. They brought this claim against the United States under the Privacy Act 1 to recover compensation for those alleged injuries.

After establishing that the videotape was maintained within a "system of records" contemplated by the Privacy Act, 2 the plaintiffs presented their case to the United States District Court. During the nonjury trial before District Judge Charles R. Richey, the court viewed the videotape, listened to direct and cross-examination of the plaintiffs, and posed questions to the plaintiffs. At the close of the plaintiffs' case the court granted the defendants' motion for an involuntary dismissal under Federal Rule of Civil Procedure 41(b).

The district court, 558 F.Supp. 260 (D.C.D.C.1982) found the plaintiffs' case deficient on several independent grounds. Factually, the district court held that the plaintiffs had failed to demonstrate that their alleged injuries were caused by the videotaping. It also found that the Bureau had not acted willfully or intentionally as required by the Privacy Act. Statutorily, the court interpreted the Privacy Act to authorize recovery only to the extent of pecuniary loss, but not for emotional injuries unaccompanied by out-of-pocket expenses. Based on these conclusions, the court ruled that the plaintiffs had failed to establish any violation of the Privacy Act.

Michael T. Albright and thirteen other analysts perfected this appeal, charging, inter alia, that the district court committed reversible error by narrowly construing the types of actual damages which the Privacy Act permits an injured plaintiff to recover. However, the appellants' arguments based on the scope of remedies available under the Privacy Act are premature. The bulk of the evidence forcefully suggests that the district court correctly found that any injuries suffered by the plaintiffs were not caused by the videotaping. The Bureau's decision to downgrade their job classification is a much more likely explanation for the injuries. Similarly, there was no evidence that the Bureau acted intentionally or willfully to violate the Privacy Act. Because appellants have demonstrated no clear error with respect to these factual findings, we must affirm the district court.

A. The Videotaped Meeting

This dispute began in the summer of 1977 when the personnel director of the Bureau of Hearings and Appeals, R. Bryan Makoff, made a preliminary decision to downgrade the civil service classification of hearing and appeal analysts from GS-13 to GS-12. A moratorium was imposed on future promotions to GS-13. Makoff's decision was subsequently affirmed by the Bureau's director. By September 1977 twenty-four previously recommended promotions had been withheld.

The affected analysts were distraught and angered by this news. At the request of their union representative, Makoff scheduled a meeting to discuss the promotion freeze with the analysts. Worried that they would be unable to attend the meeting, several analysts contacted a labor relations official to request that the meeting be rescheduled. One of these analysts solicited permission to send a representative to make an audiocassette tape. These comments were relayed to the management.

Makoff arranged for the meeting to be videotaped when it took place, as scheduled, on 23 September 1977. No restrictions were placed on those who could attend the meeting. Approximately forty analysts attended the meeting accompanied by the union president and other union representatives. A number of management personnel were also present, including four out of five of the analysts' immediate supervisors.

The meeting lasted approximately forty-five minutes. Makoff explained the reasons for the Bureau's decision to downgrade the analyst position and withhold recommended promotions. Many of the analysts asked questions or challenged the decision. Tensions apparently ran high, and there were several heated exchanges between management and the analysts. 3 Several of the analysts resented what they regarded as the high-handed and arrogant manner in which Makoff conducted the meeting.

The meeting was held in a room equipped for videotaping. The video camera was mounted on a large, conspicuous tripod which was easily visible to all who entered the room. A television monitor was also located at the rear of the room displaying the scene being videotaped. Several of the plaintiffs observed both the camera and monitor at the beginning of the meeting.

This videotape equipment was operated during the entire length of the meeting. For the most part the camera focused closely on Makoff as he discussed the reclassification decision and fielded questions from the audience. During these times the questioners were not visible on the videotape. At other times the camera panned back for a distant shot of Makoff, or focused on the back of the analyst posing a question. Unless an audience member turned toward the back of the room, his or her face never appeared on the videotape. Most of the time, when an analyst appeared on the videotape at all, only the back of the head, or occasionally the side of the face, was visible. 4

Near the end of the meeting one analyst asked why the meeting was being videotaped. Makoff replied that he was making the tape so that he would have a record in case he were later questioned about the meeting. He also stated that he did not see any reason to notify the analysts that the meeting would be videotaped. However, everyone was free to leave the room at any time. Although several of the plaintiffs were aware of the videotaping from the outset, and the remainder were surely aware of it after Makoff's comment, no plaintiffs chose to leave the meeting after learning that their participation was being videotaped.

After the meeting, the analysts initiated administrative grievance proceedings based on the videotaping. These were eventually resolved adversely to the analysts. The agency offered to destroy the videotape when it learned that some of the analysts were upset about the videotaping, but the union refused the offer in order to preserve the tape as evidence in the future legal proceedings. This Privacy Act suit then followed.

B. Privacy Act Claim

Appellants charge that the videotaping of the meeting violates the Privacy Act ("Act"), which proscribes the Bureau from maintaining a "record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained...." 5 Failure to comply with this prohibition "in such a way as to have an adverse effect on an individual" permits that person to file a civil action against the agency. 6 If the court finds that the agency acted in an "intentional or willful" manner, the United States is liable for "actual damages sustained by the individual as a result of the [violation], but in no case shall a person entitled to recovery receive less than the sum of $1,000," plus costs and reasonable attorney fees. 7

The district court held a three-day evidentiary hearing to determine whether the plaintiffs were entitled to recover under the Act. Four essential prerequisites had to be established by the appellants: (1) that they were exercising First Amendment rights at the videotaped conference, (2) that the Bureau's decision to videotape the exercise of those rights was "intentional or willful," (3) that the videotaping caused "adverse effects," and (4) that the plaintiffs suffered actual damages or, alternatively, were entitled to the $1,000 minimum recovery established by Section 552a(g)(4)(A) of the Act. Because the parties and the district court apparently assumed that the plaintiffs' participation in the management grievance meeting was clearly within the purview of the First Amendment, the testimony and evidence offered during the hearing focused on the latter three issues.

To establish the intentional and willful character of the Bureau's actions, the appellants introduced evidence on the source of the idea to tape the meeting, the purpose of the Bureau in making a videotape, and the Bureau's subsequent offer to destroy the videotape. Several analysts testified that they were concerned that they could not attend the meeting. One analyst testified that she had requested permission of a Bureau labor relations official to send a representative who could tape...

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