Doe v. United States Civil Serv. Com'n

Decision Date16 January 1980
Docket NumberNo. 78 Civ. 131 (CHT).,78 Civ. 131 (CHT).
PartiesJane DOE, Plaintiff, v. UNITED STATES CIVIL SERVICE COMMISSION; Alan Campbell, Individually and as Chairman; Donald J. Biglin, Individually and as Assistant Executive Director for Freedom of Information and Privacy; Robert J. Drummond, Individually and as Director, Bureau of Personnel Investigations, United States Civil Service Commission, Defendants.
CourtU.S. District Court — Southern District of New York







Jack D. Novik, Charles S. Sims, American Civil Liberties Union Foundation, New York City, for plaintiff.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City, for defendant Civil Service Commission and defendants Biglin, Drummond and Campbell in their official and individual capacities; Mary C. Daly, Asst. U. S. Atty., New York City, of counsel.


TENNEY, District Judge.

In this factually straightforward but legally complex case, plaintiff Jane Doe1 seeks declaratory, injunctive, and monetary relief against the United States Civil Service Commission ("CSC") and three CSC officials for injuries allegedly sustained as a result of an authorized government investigation of Doe conducted by the CSC. The complaint alleges several statutory and constitutional claims against the agency and the three named defendants in their official, as well as individual, capacities. These claims raise some unresolved and novel issues that pit the government's need to investigate a potential high-level employee against the applicant's right to ensure that the information collected is accurate. Defendants have moved for partial summary judgment on mootness grounds and for summary judgment with respect to each of Doe's claims. They have also filed objections to a Magistrate's Order issued in this case in connection with plaintiff's discovery requests. The Court denies defendants' summary judgment motions, affirms the Magistrate's Order in part, and reverses in part.


In 1974, Jane Doe applied to the President's Commission on White House Fellowships ("Fellowship Commission") for a position as a White House fellow during the 1975-1976 year. Doe was selected as one of thirty-two finalists for fourteen fellowship positions. At the request of the Fellowship Commission, the CSC's Bureau of Personnel Investigations conducted a full field investigation of Doe that she had authorized by executing a form entitled "Security Investigation Data for Sensitive Position." The investigation was undertaken in April 1975, and more than thirty-five people who were thought to be familiar with Doe's character and capabilities were interviewed. According to the CSC, the comments of the people interviewed were generally "favorable, if not laudatory." Defendants' Memorandum in Support of Motion for Summary Judgment at 6 ("Defendants' Memorandum I"). Two people, however, told two different CSC investigators that Doe had engaged in acts of petty theft while she was a college student. One person (April 10 Source) related specific incidents of theft and said that Doe had "a propensity to steal." Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment at 4 ("Plaintiff's Memorandum"). The other (April 14 Source) stated that she thought Doe was "schizophrenic, a kleptomaniac" and seemed to be a "compulsive thief." Id. at 3. After the CSC completed its investigation, it gave its report on Doe to the Fellowship Commission. The CSC report did not evaluate Doe's qualifications or make any recommendations; it simply related the statements made by the persons interviewed.

Doe was not chosen to be a White House fellow. She filed a request under the Privacy Act, 5 U.S.C. § 552a, in July 1976, seeking access to the entire investigative file compiled by the CSC.2 The file was released three months later; the identities of the people interviewed and any information pertaining to them was deleted. Doe subsequently requested that the allegations about stealing and kleptomania be deleted from her file on grounds that they were not accurate as required by the Privacy Act, id. § 552a(e)(5).3 In support of her request for amendment of her file, pursuant to section 552a(d)(2),4 Doe submitted letters from: (1) women who lived in the college dormitory with her at the time of the alleged stealing who stated that the allegations were false; (2) members of the House Council—the governing body of the dormitory—at the time of the alleged stealing, who stated that no charges were ever made against Doe; (3) the dean of students, who had no knowledge of such charges; (4) the college attorney, who stated that "the charge is asinine"; and (5) two psychiatrists, who asserted that Doe was not a kleptomaniac. The CSC rejected Doe's request and refused to amend the report. Instead, the affidavits and letters that she had submitted were included by the CSC as a permanent part of her file.

Doe appealed the CSC decision, which was issued in a letter written by Robert J. Drummond, Jr., Director of the Bureau of Personnel Investigations, to Donald J. Biglin, the Assistant Executive Director of Freedom of Information and Privacy for the CSC. The agency denied the appeal and stated that the allegations of theft would remain in Doe's file. The references to kleptomania, however, were deleted because they amounted to a psychiatric diagnosis. The CSC refused to disclose the sources of the derogatory statements on the grounds that "the withholding of the identity of a confidential source in a background investigation is a limitation which Congress saw fit to allow agencies to place on access requirements of both the Privacy Act, at 5 U.S.C. § 552a(k)(5),5 and the Freedom of Information Act, at 5 U.S.C. § 552(b)(7) (d)."6

Doe and her attorney then met with Drummond in September 1977 to request reconsideration of the appeal decision. The CSC subsequently contacted the two sources who had provided the derogatory information to request permission to reveal their identities. Both refused. The agency also contacted one of the persons who had submitted an affidavit on Doe's behalf. Defendants' Memorandum I at 7. In November 1977, Doe was informed that after reconsideration the CSC had decided that no further amendment of her file was warranted. The CSC decision stated that "we believe the testimony in Doe's file relating to stealing remains unrefuted. . . . Doe's objections to the contents of her investigative file have been made part of her record, and she has been advised of her right to file a statement of her reasons for disagreeing with our denial of her request." Letter from Donald J. Biglin, dated November 21, 1977, Exhibit H to Complaint.

In January 1978, Doe instituted this action for injunctive, declaratory, and monetary relief against the CSC and three of its officers in their official capacities: Alan Campbell, Chairman; Donald J. Biglin; and Robert J. Drummond, Jr. Doe subsequently amended the complaint to add claims against the named defendants in their individual capacities. Her complaint states five claims:

1. Plaintiff seeks a de novo determination of her request that her file be amended, pursuant to the Privacy Act, 5 U.S.C. § 552a(g)(1)(A) & (g)(2).7

2. Plaintiff contends that defendants violated the Privacy Act by failing to maintain accurate records on her, id. § 522a(g)(1)(C),8 and that she is entitled to actual damages authorized by section 552a(g)(4).9

3. Plaintiff contends that defendants' including in the file derogatory and prejudicial allegations about plaintiff without first independently investigating those allegations and affording her an effective opportunity to refute them was arbitrary, capricious, and an abuse of discretion in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA").

4. Plaintiff contends that entering these derogatory and prejudicial allegations into the file without an independent investigation of those allegations by the defendants did not afford plaintiff an effective opportunity to refute them, and thus violated her rights to privacy and due process of law protected by the First, Fourth, Fifth, and Ninth Amendments to the Constitution.

5. Finally, plaintiff contends that the defendants' refusal to disclose the identity of the sources making the derogatory allegations about plaintiff, while at the same time refusing to expunge those allegations, violated her right to due process of law protected by the Fifth Amendment to the Constitution.

The plaintiff initiated discovery in this action by serving a first set of interrogatories that asked for the identities of the sources who made the derogatory statements contained in her file and the names of the CSC investigators who conducted the interviews with those sources. Doe's second set of interrogatories asked for the location of three identified witnesses and the identities of any additional witnesses known to the CSC. The CSC objected to supplying this information, and the plaintiff moved to compel the answers to these interrogatories. In a comprehensive Memorandum Order, Magistrate Sinclair ruled that Doe was entitled to all the information requested. The defendants then moved for summary judgment and filed objections to the Magistrate's order in the event their motion was denied. Several months later, a motion for partial summary judgment on grounds of mootness was made by the CSC and the named defendants in their official capacities. These motions and objections are now before the Court.


The CSC has offered to grant Doe what it considers to be the "complete relief" she demanded in her complaint against the CSC and the named defendants in their official capacities. The relief sought was:

a. A declaratory judgment and injunction ordering defendants independently to

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