Doe v. U.S.

• Decision Date: 17 January 1986
• Docket Number: No. 84-5613,84-5613
• Citation: 781 F.2d 907
• Parties: , 54 USLW 2376 Jane DOE, Appellant, v. UNITED STATES of America, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 907

781 F.2d 907

251 U.S.App.D.C. 54, 54 USLW 2376

Jane DOE, Appellant, v. UNITED STATES of America, et al.

No. 84-5613.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 26, 1985.

Decided Jan. 17, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00951).

Bruce J. Terris, Washington, D.C., for appellant.

Wendy M. Keats, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees. Katherine S. Gruenheck, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellees.

Before WRIGHT, MIKVA and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Dissenting opinion filed by Circuit Judge GINSBURG.

MIKVA, Circuit Judge:

We are asked to determine what the Privacy Act of 1974, 5 U.S.C. Sec. 552a (1982), requires of a government agency and what its review provisions permit and require of the federal courts. Plaintiff Jane Doe sued the government to cause it to amend its records because they were false and prejudicial. She also requested damages. Because we find that the way in which the government kept its records relating to Jane Doe violated the Privacy Act, we reverse the district court's grant of summary judgment and remand the case to the district court with instructions to remand to the State Department. The State Department is instructed to bring its records into conformance with the mandate of the Privacy Act. Only then can Doe seek the de novo review in the district court to which she is entitled.

I. BACKGROUND

In 1980 plaintiff Jane Doe applied to the State Department ("Department" or "State") for a job in the foreign service. She was asked to fill out various standard application forms and was interviewed by a Department agent. Doe was also required to grant State access to files maintained on her by the Veteran's Administration and other groups. After the State Department had compared Doe's application with her records it became concerned with some apparent discrepancies. Doe had said in her application that she had never suffered from any mental illness, but her VA and other records indicated that she was receiving a disability pension from the United States predicated in part on a mental condition.

In an effort to resolve this and other seeming inconsistencies, the State Department instructed its investigator to re-interview Doe. According to the agent's report of this interview, Doe stated that she never actually had a mental condition, but had lied to the VA about it in order to enjoy the tax benefits of disability income. The agent also reported that Doe told him that because she was a nurse it was easy for her successfully to pretend to have psychiatric problems. The agent's report became part of Doe's file at the State Department, but nothing came of the matter at the time because Doe dropped her application for a foreign service position.

In September of 1981 Doe was appointed to a high-level job in another government department. The job required that she obtain a security clearance. The government's investigation of Doe brought her State Department records to light, and Doe had trouble in gaining the security clearance necessary to make her appointment permanent. Pursuant to the Privacy Act, Doe filed a request with the State Department to obtain her records. 5 U.S.C. Sec. 552a(d)(1). They were released to her. Doe was understandably upset that the State Department records indicated she was a liar and had cheated the United States government. In February of 1982 Doe applied to the State Department, under the Privacy Act, to have her records amended. 5 U.S.C. Sec. 552a(d)(2).

During the time that the Department was considering her request for amendment, but only a few days before they denied that request, Doe informed the Department that the agent who had interviewed her had, in her opinion, sexually harassed her. The Department investigated this charge, and concluded that it was untrue. However, the Department does not seem to have taken the alleged sexual harassment into account as a factor that might have some bearing on whether Doe or the agent was telling the truth about what transpired during their interview. Rather, the two investigations proceeded on separate tracks.

In late March 1982 the State Department informed Doe that it had slightly modified that part of her records relating to the disputed interview, and corrected some other minor factual errors, but that the records remained substantially the same and still contained the agent's report of the second interview, with its allegations of impropriety. The State Department added Doe's rebuttal of the agent's charges to her permanent file, but refused to make a determination as to which version of the interview was true. Doe administratively appealed the State Department's action, 5 U.S.C. Sec. 552a(d)(3), but was unsuccessful in gaining any further relief.

At no time during Doe's administrative challenge to the accuracy of the records did the Department conduct a hearing at which Doe and the agent could appear and their credibility be assessed. Nor did the Department conclusively determine their credibility through any other process. The State Department did review affidavits submitted by Doe and conducted a transcribed interview with Doe in the presence of counsel. The interview, however, was directed towards verifying the basis of Doe's charge of sexual harassment and not towards assessing the veracity of the disputed records. The Department also asked its agent to review his interview notes and submit a supplementary report. After these procedures, however, the Department simply threw up its hands, said it could not resolve the conflict between the agent's and Doe's stories, and put everything in the record.

Doe then brought suit under the Privacy Act in United States District Court. 5 U.S.C. Sec. 552a(g)(1). The district court granted summary judgment to the State Department. Although the district court ordered some minor modifications in Doe's records, it refused to order the Department to remove the offending matter. However, the district court did not allow Doe's records to remain unamended because the court believed the records were accurate. Rather, the district court expressed satisfaction with the Department's response to a difficult conundrum and concluded that "the State Department acted 'reasonably,' and that [Doe's records are] as 'accurate as is reasonably necessary.' " Doe v. United States, Civ.Act. No. 83-00951, slip op. at 11 (D.D.C. July 6, 1984).

On appeal, Doe asserts that the way in which the State Department maintained its records violates the Privacy Act, and that the district court erred in granting summary judgment to the Department.

II. THE PRIVACY ACT

The Privacy Act of 1974 creates a panoply of duties and remedies for a broad range of situations in which the government might have caused harm to an individual in his reputation or employment by collecting or disseminating false or misleading information. The central command of the Act at issue here provides that agencies must keep accurate records. It provides that:

(e) ... Each agency that maintains a system of records shall--

(5) 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....

To police the strong requirements placed on the agencies, Congress also provided for a system of petition and review. The Act provides that "[e]ach agency that maintains a system of records shall ... upon request by an individual to gain access to his record ... permit him ... to review the record...." Sec. 552a(d). Furthermore, individuals are permitted by the Act to request that their records be amended. When an agency receives such a request, it must promptly make the requested correction or explain to the individual why it has refused to do so. Sec. 552a(d)(2). Individuals are also granted a right of administrative review, Sec. 552a(d)(2) & (3), and the right to file a statement with the agency setting out their side of the story. This statement must then be included by the agency whenever it discloses the disputed records. Sec. 552a(d)(4).

The Act also provides for judicial review:

Whenever any agency (A) makes a determination ... not to amend an individual's record in accordance with his request, or fails to make such review [as required]; [or] (B) refuses to comply with an individual request under subsection (d)(1) of this section; [or] (C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination ... that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or (D) fails to comply with any other provision of this section ... in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency....

Sec. 552a(g)(1).

The Act grants the reviewing court authority to amend the individual's records and provides that the reviewing court shall "determine the matter de novo." Sec. 552a(g)(2)(A). Finally, the Act provides that the government is liable for damages and attorney's fees in cases where its action was "intentional or willful." Sec. 552a(g)(4).

III. DOE'S CLAIMS

Doe's principal objection to the State Department's action is based on her claim that the Privacy Act does not permit an agency to refuse to decide if the substance of its records is accurate. Doe maintains that the State Department was obliged to put the truth into its records and to conduct a...