Doe v. U.S.

• Decision Date: 19 June 1987
• Docket Number: No. 84-5613,84-5613
• Citation: 821 F.2d 694,261 U.S. App DC 206
• Parties: , 56 USLW 2009 Jane DOE, Appellant, v. UNITED STATES of America, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 694

821 F.2d 694

261 U.S.App.D.C. 206, 56 USLW 2009

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

No. 84-5613.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 2, 1986.

Decided June 19, 1987.

Wendy M. Keats, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, were on the brief, for appellees.

Bruce J. Terris, with whom Monica Blong Wagner, was on the brief, for appellant.

Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH BADER GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

Dissenting opinion filed by Chief Judge WALD.

Dissenting opinion filed by Circuit Judge MIKVA, with whom Circuit Judges SPOTTSWOOD W. ROBINSON, III, and HARRY T. EDWARDS join.

RUTH BADER GINSBURG, Circuit Judge:

This case arises under the civil remedies prescriptions of the Privacy Act, 5 U.S.C. Sec. 552a(g). The appeal requires this court to construe the Act's prescriptions authorizing court-ordered correction when an agency refuses to amend an individual's record, id. Sec. 552a(g)(1)(A), and thereby "fails to maintain [the] record ... with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness ... to the individual." Id. Secs. 552a(g)(1)(C) & (g)(2)(A). The controversy centers on a State Department report of investigation (ROI) concerning a March 26, 1981 unwitnessed interview; the interviewee was plaintiff-appellant Jane Doe, ¹ then an applicant for a position in the foreign service; the interviewer was Department Special Agent Billy N. Hughes.

The ROI in question contains the agent's and Doe's sharply conflicting accounts of what Doe said at the interview; it reports that "[t]here is no reason to doubt the statements made by [the] [a]gent," ² but it does not announce which account--Doe's or the agent's--the Department believes. The precise issue before us is whether the ROI so maintained satisfies the Privacy Act standard, directed initially to the agency, then to the reviewing court, that all records concerning individuals be maintained with "such accuracy ... and completeness as is necessary to assure fairness ... to the individual." Id. Sec. 552(g)(1)(C) (court remedy); see id. Sec. 552a(e)(5) (agency requirement).

Doe sought primarily an order requiring not correction of the March 1981 ROI, but its physical removal from her files; she also requested damages. ³ The district court, on cross motions for summary judgment, denied Doe's motion and granted the government's. Doe v. United States, Civil Action No. 83-951 (D.D.C. July 6, 1984). In the circumstances presented, the district court concluded, the Privacy Act did not require the judge "actually to determine what was said during the March 26, 1981 interview"; instead, it sufficed for the court to determine whether the ROI, as the Department maintained it, was as "accurate as is reasonably necessary." Doe, supra, slip op. at 10, 11.

The district court ultimately ruled that, except for specific, relatively minor amendments, which it ordered to clarify the March 1981 ROI, ⁴ that report, as maintained by the State Department, was as "accurate" as was "necessary to assure fairness" to Doe. We hold that the district court correctly defined the responsibility Congress assigned to the recordkeeping agency and to the reviewing court in the Privacy Act, and we affirm the district court's judgment.

I.

In the fall of 1980, plaintiff Jane Doe applied to the State Department for a position in the foreign service. The Department pursued the background investigation routine for such applications. As part of the investigation, on January 23, 1981, Doe was interviewed by Department Special Agent, Billy N. Hughes. Notable discrepancies appeared when the Department checked Doe's application and her responses at the January 23 interview against her military and Veterans Administration (VA) records. In particular, Doe had answered "no" on State's application form to an inquiry whether she had "ever had medical treatment for a mental condition." Her military and VA records revealed, however, that she was receiving a disability pension from the United States predicated in significant part on a mental condition.

To obtain Doe's explanation for this and other apparent inconsistencies between her current representations and her prior records, the Department instructed its agent Hughes to reinterview Doe. Hughes did so on March 26, 1981. According to Hughes, Doe explained at this second interview that she in fact suffered from no mental condition, but had dishonestly claimed to have a depressive condition in order to obtain disability pay, with its tax advantage over straight retirement pay; Hughes further reported that Doe expressed regret about what she had done. Doe denies ever having made the incriminating statements agent Hughes attributed to her.

Doe did not pursue her foreign service officer application, for she obtained a high level position in another agency. When she encountered a problem gaining a security clearance at that other agency, she obtained from State, in response to her Privacy Act request, portions of the March 1981 ROI, and began the process of seeking to have the report expunged.

Doe submitted long affidavits and legal memoranda explaining, inter alia, that her original depressive symptoms, as later diagnosis revealed, had in fact been hormonally caused and were now corrected by medication. Following the correction of her diagnosis, however, she continued to accept disability retirement benefits based in part (30%) on a "nervous condition." See Joint Appendix (J.A.) at 51. Doe's counsel observed that Doe had "sent the VA a physician's report on April 30, 1982, which stated ... that she was no longer suffering from depression"; counsel further asserted that "[it] was the VA's, not [Doe's] responsibility to review [her] disability benefits based on current medical information." Appellant's Reply Brief at n. 3.

The State Department analyzed Doe's submissions in detail. State contacted agent Hughes and obtained his specific responses to Doe's allegations that he had misrepresented what she had said; ⁵ State also checked or rechecked Doe's VA file and educational records. The Department ultimately ordered (1) that the ROI in question be amended in small particulars, and (2) that Doe's account of "what she said or did not say" at the March 26, 1981 interview "be made part of the record without affirming or denying her allegations." ⁶ The Department further stated: "The record should also indicate that there is no reason to question the integrity of Agent Hughes." ⁷ Doe commenced this action when State refused to expunge or further amend the March 1981 ROI. ⁸

II.

The Privacy Act speaks first and foremost to agencies. It directs them, inter alia, to

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); see also id. Sec. 552a(e)(6) (agency shall "make reasonable efforts to assure" that records it disseminates to persons other than an agency "are accurate, complete, timely, and relevant for agency purposes") (emphasis supplied). The Act also details the rights of individuals to gain access to records pertaining to them, id. Sec. 552a(d), and to request agency correction of "any portion [of a record] which the individual believes is not accurate, relevant, timely, or complete." Id. Sec. 552a(d)(2)(B)(i). Finally, the Act speaks to the courts. An individual may bring a civil action in federal district court challenging an agency's determination not to amend the individual's record. Id. Sec. 552(g). "In such a case the court shall determine the matter de novo." Id. Sec. 552a(g)(2)(A).

To pare this controversy down to its core, we address first the question whether the term "de novo" in the above quoted sentence means something less than what that expression generally signals. We hold that the term has no different, diminished meaning in the context at hand. De novo means here, as it ordinarily does, a fresh, independent determination of "the matter" at stake; the court's inquiry is not limited to or constricted by the administrative record, nor is any deference due the agency's conclusion. See, e.g., Augustine v. McDonald, 770 F.2d 1442, 1444 (9th Cir.1985) (appeals court reviews grant of summary judgment de novo, which means it "appl[ies] the same test as did the district court"); Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983) (appeals court reviews "de novo orders dismissing for lack of subject matter jurisdiction"); Weahkee v. Perry, 587 F.2d 1256, 1263 (D.C.Cir.1978); 5 B. Mezines, J. Stein, & J. Gruff, Administrative Law Sec. 51.04 (rev. ed. 1985) (court engaged in de novo review is not confined to the administrative record, but may pursue whatever further inquiry it finds necessary or proper to the exercise of court's independent judgment). ⁹

Essentially then, the district court's charge was to put itself in the agency's place, to make anew the same judgment earlier made by the agency: Were the amendments Doe requested needed to maintain the record of the March 26, 1981 interview "with such accuracy ... and completeness as is [reasonably] necessary to assure fairness" to Doe? 5 U.S.C. Sec. 552a(g)(1)(C). ¹⁰ The district judge correctly understood that charge. ¹¹ He observed that Privacy Act "procedural rights" were not "a dispositive issue." See Doe, supra, slip op. at 9. Rather, the district judge stated, the "proper issue," the one requiring his de novo determination, concerned the "accuracy" of the March 1981 ROI...