Bartel v. F.A.A.

• Decision Date: 17 January 1984
• Docket Number: Nos. 82-2473,82-2481,s. 82-2473
• Citation: 233 U.S.App.D.C. 297,725 F.2d 1403
• Parties: Richard C. BARTEL, Appellant v. FEDERAL AVIATION ADMINISTRATION, et al. Richard C. BARTEL, Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1403

725 F.2d 1403

233 U.S.App.D.C. 297

Richard C. BARTEL, Appellant v. FEDERAL AVIATION ADMINISTRATION, et al.

Richard C. BARTEL, Appellant v. UNITED STATES of America.

Nos. 82-2473, 82-2481.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 3, 1983.

Decided Jan. 17, 1984.

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 82-00077 and 82-02791).

J.E. McNeil, Washington, D.C., with whom Richard Manning Ricks, Washington, D.C., was on brief, for appellant in Nos. 82-2473 and 82-2481.

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees in Nos. 83-2473 and 82-2481.

Before WRIGHT, WILKEY and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The plaintiff, Richard Bartel, appeals dismissal of his claims against the Federal Aviation Administration (FAA) and Brian Vincent, an FAA official. Bartel Pursuant to appellees' motion to dismiss for failure to state a claim upon which relief may be granted, or in the alternative for summary judgment, the district court dismissed all of Bartel's claims. In doing so, it looked beyond the pleadings, see Bartel v. Federal Aviation Administration, Civ. No. 82-2791 (Nov. 30, 1982) (order dismissing action); we therefore treat the court's order as a grant of summary judgment. See Fed.R.Civ.P. 12(b). Because we find that Bartel's complaint states causes of action upon which relief might be granted, and that there are issues of material fact remaining with respect to those claims, we vacate the district court's dismissal of his claims and remand for proceedings consistent with this opinion.

                proceeding pro se, 1 alleged that the FAA violated the Privacy Act of 1974, 5 U.S.C. Sec. 552a, and is liable for a tortious invasion of his privacy under the Federal Torts Claims Act, 28 U.S.C. Secs. 2671-80.  He also sued the FAA and Vincent for violating his constitutional rights, as well as Vincent, in his personal capacity, for defaming him. 2   All of these claims stem from the actions of FAA officials informing persons who allegedly had no official need for the information that an internal agency investigation indicated that Bartel improperly obtained access to airman files of FAA inspectors and may have thereby violated the Privacy Act.  Bartel asked for damages resulting from these disclosures, and injunctive relief prohibiting the appellees from further disclosing records pertaining to him
                

I. BACKGROUND

Until January, 1979, Bartel worked as an FAA air safety inspector. In 1978, he was actively considering filing an Equal Employment Opportunity (EEO) complaint on the grounds of reverse discrimination. For that purpose he claims to have requested "flight times and ratings" of several fellow FAA inspectors from the FAA Airmen Certification Branch. Statement of Genuine Issues in Opposition to Defendants' Motions for Dismissal and Summary Judgment 1-2 [hereinafter cited as Plaintiff's Statement], reprinted in Plaintiff's Appendix at 58 [hereinafter cited as App.]. Before requesting the times and ratings, Bartel asserts that he asked the FAA Aeronautical Center if such information was public and was assured it was. Id. at 3, reprinted in App. at 58; see also Plaintiff's Exhibit B, reprinted in App. at 101 (letter from Aeronautical Center Counsel stating that information will be released to the public). The information he obtained, however, consisted of virtually complete airman files of three of his fellow FAA inspectors. These files contained both public and non-public information.

On August 2, 1978, Bartel filed a complaint with the FAA EEO office. Complaint p 7, reprinted in App. at 6. The next day appellee Vincent, Chief of the FAA Eastern Region Flight Standards Division, requested an investigation concerning an apparent violation of the Privacy Act by Bartel. Documents collected pursuant to that investigation were placed in a Report of Investigation (ROI). The investigation In late 1979, Vincent learned that Bartel was seeking reemployment with the FAA. After discussing the earlier investigation with the FAA Personnel Division and Regional Counsel, Vincent sent letters to the three inspectors whose airman files had been sent to Bartel. See Defendants' Statement at 2, reprinted in App. at 26. These letters contained Bartel's name and place of work, along with lists of records Bartel had received about other airmen as a result of his request for information. See Defendants' Exhibit I, reprinted in App. at 176. The letters also stated that "an investigation conducted by the Air Transportation Security Division, AEA-700, indicates that Mr. Richard C. Bartel while in the capacity of an Aviation Safety Inspector ... improperly obtained records pertaining to you." Id. The letters went on to state: "Since his actions appear to constitute a violation of the Privacy Act, we are informing you of this incident." Id.

was closed in December, 1978, after the United States Attorney declined prosecution in favor of administrative action by the FAA. In January, 1979, Vincent decided that a letter of reprimand to Bartel was appropriate. No such letter was ever issued, however, because according to the appellees, in January, 1979, Bartel left the FAA's employ to work with the International Civil Aviation Organization in Canada for an expected three year tour of duty. Statement of Material Facts as to Which There Is No Issue, in Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment 1-2 [hereinafter cited as Defendants' Statement], reprinted in App. at 25-26. Thus, Bartel was never presented with any official adverse action as a result of the investigation to which he could formally respond.

In April, 1980, Bartel interviewed with the FAA, Southern Region, for a job for which he had already been determined to be "a best qualified candidate." At the interview Bartel alleges that he was informed that he would not be hired because of the letter Vincent sent to one FAA inspector, Linda Barber, which the interviewer had heard about from another FAA employee. Complaint p 19, reprinted in App. at 8. At about the same time, Bartel applied to work at Flight Resources, Inc., of Washington, D.C. An investigator for Flight Resources spoke over the phone with Vincent and Robert Cheshire, a subordinate of Vincent, about Bartel. Vincent told the investigator that the FAA was looking into a job-related problem that Bartel had when he left the Administration. Defendants' Exhibit M, reprinted in App. at 187. Cheshire told the investigator that Bartel requested records for use in filing an EEO complaint, and that the FAA had proposed disciplinary action against him. Id. Bartel was not selected for either the FAA or the Flight Resources job. Later Bartel was hired by the FAA for a temporary GS-12 position, despite the fact that he was qualified for a permanent GS-13 position that was open at the same time.

Bartel, proceeding pro se, filed a complaint in district court alleging that the Vincent letters and the Vincent and Cheshire telephone conversations constituted prohibited nonconsensual disclosures of information about him in violation of the Privacy Act. He also alleged that the damaging disclosures marred his reputation and prevented him from obtaining employment, in particular that they denied him access to government employment without due process. His complaint may also be read to raise claims, explicitly raised on appeal, that the disclosures were in retaliation for filing his EEO complaint and thus in violation of the first amendment, ³ see Complaint The district court dismissed all the claims in a brief order. It said that Bartel "had used his official position to invade the privacy of fellow employees" and continued: "As a result of his misconduct, these employees were denied the accounting of disclosure to which they were entitled under the Privacy Act.... That being the basic situation, plaintiff's complaint stands the Privacy Act on its head." Bartel v. FAA, Civ. No. 82-2791 (Nov. 30, 1982) (order dismissing complaint). The order also dismissed Bartel's due process claim, citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The order did not deal with any of the other jurisdictional bases for Bartel's complaints. ⁴ Moreover, the record is sparse because Bartel's claims were dismissed before any discovery was taken. A careful examination of the pleadings and the supplemental filings in this case, however, lead us to conclude that Bartel alleged several valid causes of action about which genuine issues of material fact existed sufficient to preclude the district court's grant of summary judgment in favor of appellees. We therefore remand for further proceedings consistent with our analysis of the case.

paragraphs 28-30, reprinted in App. at 9-10, and that they were false, flagrantly derogatory, and therefore defamatory. See Complaint p 48, reprinted in App. at 12. In a separate complaint alleging identical facts, Bartel alleged that the disclosures gave rise to a tort action under the Federal Torts Claims Act (FTCA). See App. at 14.

II. PRIVACY ACT

The Privacy Act safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records. It does so by allowing an individual to participate in ensuring that his records are accurate and properly used, ⁵ and by imposing responsibilities on federal agencies to maintain their records accurately. ⁶ The subsection of the Act addressing the wrongful disclosure of information, which is the gravamen of Bartel's Privacy Act claim, provides:

No agency shall disclose any record which is contained in a system of records by any means of...