DeBold v. Stimson
| Decision Date | 17 February 1984 |
| Docket Number | No. 82-2317,82-2317 |
| Citation | 735 F.2d 1037 |
| Parties | 34 Empl. Prac. Dec. P 34,429 Earl F. DeBOLD, Plaintiff-Appellant, v. William R. STIMSON, Director of Support, U.S. Post Office, Gary, Indiana, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Earl F. DeBold, pro se.
Charles B. Miller, Asst. U.S. Atty., R. Lawrence Steele, Jr., U.S. Atty., Hammond, Ind., Charles D. Hawley, Gen.Admin.Law Div. Law Dept. Washington, D.C., for defendants-appellees.
Before PELL, BAUER and WOOD, Circuit Judges.
Pro se plaintiff Earl F. DeBold filed the instant suit pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 (FOIA), and the Privacy Act, 5 U.S.C. Sec. 552a, against the defendant Postal Service and against several postal employees, demanding production of certain records as well as requesting that allegedly incorrect records pertaining to the plaintiff be corrected. The district court found that the Postal Service had already turned over the requested records to plaintiff during the course of the litigation. The district court found that plaintiff had "substantially prevailed" in his Freedom of Information Act suit and was entitled to costs up until the date the records were released to him. The court declined to award pro se plaintiff attorney fees. As to plaintiff's Privacy Act claim, the court found that plaintiff had failed to exhaust his administrative remedies and, in any event, had failed to establish a Privacy Act violation. Plaintiff appeals. For the following reasons, we affirm the district court's order.
Plaintiff Earl F. DeBold is an employee of the United States Postal Service at the Service's Main Facility in Gary, Indiana. This suit arises out of DeBold's unsuccessful application for the position of Foreman Mechanics (A) in 1976. In December of that year, plaintiff applied for the foreman position. Defendant Desmond Daily, also an applicant for the job, held the Foreman Mechanics (A) position in an acting capacity until the position was filled. As acting foreman, Daily was DeBold's immediate supervisor. Defendant Daily was selected to fill the position over plaintiff DeBold and several other candidates.
After Daily's selection, the plaintiff requested from defendant Stimson, the Director of Support, copies of his evaluation for the supervisor position made by the evaluation committee (composed of three named defendants) and the evaluation of his immediate supervisor.
Defendant Stimson denied the request by letter claiming that the information was exempted from disclosure under the FOIA. The letter did not notify plaintiff of his right to appeal the denial as required by 5 U.S.C. Sec. 552(a)(6)(A), (c). Plaintiff did not pursue an administrative appeal.
Plaintiff initiated a Title VII action, but soon thereafter filed a new complaint with the same factual allegations claiming relief under FOIA. Defendant Stimson never answered and a default judgment was entered against him in April 1977. In May 1977, the Postal Service, through the Assistant General Counsel, furnished plaintiff with the requested evaluations. Plaintiff received the form prepared by the evaluation committee, but received no form prepared by his acting immediate supervisor, Daily. The district court found Daily did not prepare a form. At a hearing on defendant Stimson's motion to set aside the default judgment, plaintiff indicated to Judge McNagny that he received all the requested information and that it was complete.
In June 1977, plaintiff demanded by letter that defendant Stimson amend the allegedly incorrect forms that had been disclosed. Defendant Stimson responded by letter saying that the evaluation forms were not records within meaning of the Privacy Act; that the forms concerned subjective judgments of plaintiff's performance rather than factual data and would remain as they were; that two arithmetic errors had been discovered on the form and had been corrected; and that the plaintiff had a right to appeal.
Thereafter, on November 3, 1978, plaintiff amended his complaint asserting a violation of the Privacy Act. In March 1982, 1 default judgment was entered against the remaining defendants. Defendants' counsel moved to set aside the default. A trial was held in the case on July 1, 1982. The district court found, pursuant to the evidence presented at trial, that the plaintiff received all the documents he had requested. The district court found that defendant Daily, as plaintiff's immediate supervisor, never filled out an evaluation for plaintiff because it was the practice of the Postal Service not to have an applicant for a position fill out an evaluation of a competitor. The district court found that no other evaluations of the plaintiff existed other than those disclosed.
The district court denied the plaintiff's request for relief under FOIA because the information sought had already been disclosed to plaintiff. The court granted plaintiff reasonable costs as a "prevailing party" because he found that the information was disclosed largely because of plaintiff's law suit. The court awarded no attorney fees. Plaintiff's Privacy Act suit was denied on the alternative grounds of failure to prove a violation of the Act and failure to establish that the administrative remedies had been exhausted. The district court set aside all default judgments against the individual defendants and dismissed the case as to them.
Plaintiff cites several errors in the district court's decision. Plaintiff cites the following issues as reversible errors: (1) the district court erred in its determination that evaluation records are exempt from production under FOIA and the Privacy Act; (2) the court erred in declining to hold that a Postal Service employee is entitled to have the evaluation of his immediate supervisor; (3) the court erred in holding that plaintiff was not deprived of a promotion due to a Privacy Act violation; (4) the court erred in not holding that plaintiff was a victim of discrimination because of the promotion process utilized; and (5) the district court erred in refusing to award plaintiff damages, attorney fees and costs. We will address each asserted error in turn.
Initially we note that the district court did not find that the requested documents were exempt from production under FOIA. The court found that all of the requested documents had been produced and that plaintiff's request for documents was moot. We hold that the district court's factual finding that all of the requested documents that exist have been produced is not clearly erroneous. Once the requested documents have been produced, the claim for relief under FOIA becomes moot. See Chilivis v. SEC, 673 F.2d 1205 (11th Cir.1982); Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977); Ackerly v. Ley, 420 F.2d 1336 (D.C.Cir.1969). The request for fees and costs does not become moot, as will be discussed below. Cuneo v. Rumsfeld, 553 F.2d at 1364.
Plaintiff challenges the district court's determination that he had not exhausted his administrative remedies as required under the Privacy Act before a federal court may entertain a Privacy Act claim. The district court initially determined that plaintiff had not exhausted his administrative remedies and held, in the alternative, that, despite his failure to exhaust, plaintiff's claim under the Privacy Act would fail. In a motion to reconsider, plaintiff included a letter, which he also presents to this court in his appellate brief, indicating that he had exhausted his administrative remedies. The district court admonished plaintiff for his failure to call the letter to the court's attention prior to filing a motion to reconsider, and then ruled that the letter made no difference because plaintiff failed to establish a Privacy Act violation.
Plaintiff does not challenge as inaccurate the evaluation of the selection committee, but rather challenges the nonexistence of an evaluation by his immediate supervisor. This lack of an evaluation, he claims, violates the Postal Service regulations. In addition, plaintiff asserts that the absence of an evaluation violates the Privacy Act requirement that the Postal Service
... maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;
5 U.S.C. Sec. 552a(e)(5). Plaintiff contends that the Postal Service kept defendant Daily in a temporary capacity as acting Foreman Mechanic (A) longer than allowed by Postal Service regulations. This, in turn, deprived plaintiff of the opportunity to be evaluated by his immediate supervisor. Thus, he was treated unfairly in violation of the Act. We disagree. The procedures used to evaluate plaintiff were extremely fair. The district court found that it was the policy of the Postal Service not to have an applicant for a job be evaluated by a competitor. This factual finding is not clearly erroneous. The policy itself seems eminently fair. Plaintiff was evaluated by objective third parties and not by Daily. It may seem to plaintiff that defendant Daily had an unfair advantage over plaintiff because he occupied the position for which he was applying; however, the Privacy Act does not require an agency to remove a temporary employee from a position in order that another applicant could have a better shot at the job. The Privacy Act merely requires an agency to attempt to keep accurate records, and provides a remedy to a claimant who demonstrates that facts underlying judgments contained in his records have been discredited. See R.R. v. Department of the Army, 482 F.Supp. 770 (D.D.C.1980). Plaintiff has made no such demonstration and has shown no violation of the Privacy Act.
Petitioner next contends that the district court erred in refusing to rule that plaintiff...
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