Dickson v. Office of Personnel Management, 85-6073

• Decision Date: 04 September 1987
• Docket Number: No. 85-6073,85-6073
• Citation: 828 F.2d 32
• Parties: Herbert E. DICKSON, Appellant v. OFFICE OF PERSONNEL MANAGEMENT.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 32

828 F.2d 32

264 U.S.App.D.C. 182

Herbert E. DICKSON, Appellant v. OFFICE OF PERSONNEL MANAGEMENT.

No. 85-6073.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 24, 1986.

Decided Sept. 4, 1987.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-3503).

Eric R. Glitzenstein, with whom Alan B. Morrison, Arthur B. Spitzer, and Elizabeth Symonds, Washington, D.C., were on the brief, for appellant.

Edith S. Marshall, 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 the brief, for appellee.

Before MIKVA and BUCKLEY, Circuit Judges, and JAMES B. PARSONS, ^* United States Senior District Judge for the Northern District of Illinois.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

For more than a decade, appellant has repeatedly, and unsuccessfully, sought permanent employment in the competitive federal civil service. With each new application, the Office of Personnel Management ("OPM"), in its assigned role as the central personnel record keeping agency for the government, investigated and augmented appellant's personnel record. By the time Dickson filed suit in 1983, the record contained numerous layers of military and Veterans Administration reports, interviews with former employers, letters, and investigatory notes. Dickson alleges that some of this material incorporated false, derogatory, and highly prejudicial information. He sought to amend his personnel file and collect damages under the Privacy Act, and charged OPM with violating his right to Fifth Amendment due process. The district court granted summary judgment in favor of the government on all counts.

We reverse in one respect. We hold that OPM is subject to a damage action whenever it maintains a record violating the standard of fairness mandated by the Privacy Act. The statute does not restrict damage actions against OPM, as argued by the government and accepted by the district court, to those instances where OPM itself makes the adverse determination. Hence, the agency may be found liable even when the record is compiled in OPM's capacity as the investigative unit for other federal agencies evaluating an applicant for employment. We affirm, however, the dismissal of appellant's action for injunctive relief under the Privacy Act. We also affirm the denial of the due process claim, but only on the ground that appellant received all the process he was due. Given this conclusion, we find it unnecessary to decide whether appellant here presents a cognizable liberty interest.

I. BACKGROUND

A. OPM and Investigations of Prospective Federal Employees

Since it was established in 1978, OPM has served as the designated agency to evaluate the fitness of federal civil service applicants. In its dual capacity as investigator and record keeper, the agency accumulates vast quantities of personal information affecting an individual's opportunity to obtain employment with the government. It is the agency's obligation to compile these records that fixes the setting of this case and more generally highlights the practical import of the decision we reach today.

By law, the President may appoint persons to ascertain the fitness of civil service applicants as to their age, health, character, knowledge and ability for employment. 5 U.S.C. Sec. 3301 (1982). Under Executive Order No. 10,450, 3 C.F.R. 936 (Comp.1949-53) (as amended), the President has delegated to OPM,inter alia, the authority previously exercised by the U.S. Civil Service Commission to investigate and determine the suitability of persons entering or employed in nonsensitive positions within the competitive civil service. OPM is also responsible for making a more thorough assessment of individuals seeking federal contracts or employment with access to classified information or restricted areas.

To comply with the Executive Order, OPM performs two types of background investigations: a "National Agency Check and Inquiry" ("NACI") and a "full field investigation." For nonsensitive positions, the NACI investigation suffices and indeed most of the background investigations performed by OPM are of this type, amounting to approximately 200,000 each year. Brief for Appellee at 1 n. 1.

In the event the NACI develops information indicating the possibility that an appointee to a nonsensitive position in the competitive service is unsuitable, or that an appointee to a nonsensitive position outside the competitive service in an agency which does not have investigative facilities to resolve such issues may be unsuitable, OPM will make such further personal investigation as necessary to enable the head of the department or agency or OPM, whichever has jurisdiction, to resolve the suitability question. Ordinarily this "limited personal investigation" (formerly called a "Merit 13" investigation when conducted by the Civil Service Commission) will not be the equivalent of a full field investigation, but will be limited to verifying or disproving the information that may be disqualifying. Id.

B. Facts of this Case

In 1971, appellant first applied for employment with the federal civil service. The Civil Service Commission made a preliminary determination that appellant's termination from two prior jobs and an honorable military discharge for psychiatric reasons might disqualify him from federal employment. Accordingly, the Commission conducted a Merit 13 investigation to verify or disprove the potentially disqualifying information. The following documents pertinent to this lawsuit were gathered during the investigation and placed in appellant's file:

1) An OPM investigator's report on appellant's termination as an officer from the Metropolitan Police Department. The report, based on police files and "other information," stated that appellant was fired because "he was not qualified to be a MPD police officer";

2) A similar report on appellant's termination from Pinkerton's Inc., which stated that he had been discharged "because of insubordination and failure to comply with a company policy";

3) An investigator's report excerpting from appellant's application for correction of his military records and Veterans Administration files;

4) A copy of a letter from the Chief of the MPD to Congressman Lawrence Hogan regarding the reasons for the MPD's discharge of appellant; and

5) A June 1979 honorable discharge form, known as a DD-214, which indicated that appellant had been discharged from the military for psychiatric reasons.

Brief for Appellee at 3; Brief for Appellant at 5-6. The Merit 13 investigation and report ultimately concluded that appellant was eligible for employment in the competitive federal service as a Junior Federal Assistant.

Also in 1971, after his termination from the police department but prior to the commencement of the Merit 13 investigation, Mr. Dickson appealed to the Air Force Board for the Correction of Military Records for an alteration of his discharge record. He alleged before the Board that he had purposefully "faked" nervous and psychiatric difficulties in order to obtain a military discharge, which he wanted for personal reasons. The Board upheld his appeal and ordered that the discharge record be amended effective August 1972 to delete the reference to psychiatric unsuitability for service. His record was revised to state that he had been discharged "for the convenience of the government." Brief for Appellant at 6.

In 1972 and 1974, appellant was again the subject of a background investigation. Both times he was found suitable for federal service, first as a Federal Protective Officer and then with the U.S. Park Police, notwithstanding agency objections based on his record. Later in 1974, appellant's file was forwarded to the General Services Administration with the outdated DD-214 discharge still included. The agency objected to hiring him. Brief for Appellant at 6. The Civil Service Commission sustained the objection, but appellant remained eligible for future government employment. ¹

In 1979, OPM initiated an NACI investigation of appellant subsequent to his employment by the U.S. Postal Service. A report of a psychiatric examination conducted by the military was among the information received. The investigation was terminated when appellant resigned from the Postal Service, apparently due to injuries received in a car accident. Brief for Appellee at 6.

In 1981, appellant was temporarily hired by the Defense Mapping Agency and Hydrographic Topographic Center ("DMAHTC"). An NACI investigation added more information to appellant's personnel file, including:

1) A written response from a confidential source concerning the grounds for appellant's termination by the Postal Service in 1979;

2) A similar response to an inquiry from OPM regarding appellant's termination by the Postal Service in 1981;

3) A written response concerning appellant's termination from employment at the Washington Cathedral, where he had worked between 1976 and 1978, which said appellant was discharged because he was "excessively unavailable for duty";

4) Coast Guard and Air Force responses to requests for military record information; and

5) A May 1970 psychiatric evaluation from official records of the Veterans Administration.

Brief for Appellee at 7; Brief for Appellant at 6.

Appellant's augmented file was sent to the DMAHTC. The file included the original, outdated DD-214 form stating that appellant had been discharged from military service because of psychiatric reasons. Shortly after receiving the file from OPM, the DMAHTC terminated appellant's employment. OPM subsequently agreed to notify the agency that the discharge form was improperly forwarded, Brief for Appellee at 8-9, but claims that appellant, by his own testimony, has acknowledged the termination resulted from excessive absences....