Edison v. Department of the Army, 80-7999
| Decision Date | 05 April 1982 |
| Docket Number | No. 80-7999,80-7999 |
| Citation | 672 F.2d 840 |
| Parties | Don B. EDISON, Plaintiff-Appellant, v. DEPARTMENT OF THE ARMY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Kennedy & Kennedy, Reid W. Kennedy, Marietta, Ga., for plaintiff-appellant.
Myles E. Eastwood, Asst. U. S. Atty., Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before GODBOLD, Chief Judge, RONEY and WOOD *, Circuit Judges.
Appellant, Don B. Edison ("Edison") brings this appeal from a de novo trial under the Privacy Act, 5 U.S.C. § 552a. Edison, a former Army officer, alleges that he was twice erroneously passed over for promotion by Appellees, the United States Army and then, by statute, released from active duty. 10 U.S.C. § 3303(a), (d)(3); Army Regulation 635-100. Edison alleges that the Army Board for Correction of Military Records acted in an arbitrary and capricious manner by failing to timely correct the errors in his personnel records and to send his records to a Stand-by Promotion Board.
The case was tried without a jury and the district court made 49 findings of fact and nine conclusions of law. Edison appeals the court's findings that he did not establish (1) that the Army acted unreasonably in maintaining its records; (2) that either the 1976 or 1977 Lieutenant Colonel Promotion Board for the Army of the United States ("the Promotion Board") saw an Officers Record Brief ("ORB") with an incorrect rating; (3) that the level of clearance shown on his ORB proximately caused his nonselection for promotion in either year; and (4) that any inaccuracy which may have occurred was made wilfully and deliberately by the Army. We affirm.
Edison was serving as a major in the Military Intelligence Branch of the Army with over 16 years continuous active duty service when he was considered for promotion to the grade of Lieutenant Colonel by the April 1976 Promotion Board. Edison held a Top Secret Security Clearance from 1974 until his release. In 1976, after he was notified that he was not promoted, he requested a copy of his records. After finding certain alleged errors, he filed an application with the Army to correct his military records. He was considered again for promotion by the 1977 Promotion Board in April, 1977. Edison was again not selected for promotion.
Edison claims that he was not promoted because the Army recorded his security clearance as "Confidential" rather than "Top Secret" on the ORBs presented to the Promotion Boards. Appellant also contends that his nonselection was caused by a temporary loss of his Military Occupational Specialty ("MOS") after marrying a German national, even though he regained the rating upon her naturalization. 1 After exhausting his administrative remedies under the Privacy Act, Edison filed a complaint alleging violations of the accuracy of records portions of the Privacy Act. 5 U.S.C. §§ 552a(e)(5), (g)(1)(C), (g)(1) (D).
Edison has the burden to prove that there has been a violation of the Privacy Act. Mervin v. Federal Trade Commission, 591 F.2d 821, 827 (D.C.Cir.1978). When a plaintiff seeks disclosure of records under the Privacy Act, subsection (g)(3) of that Act states that the agency bears the burden of proving that the records should not be disclosed. Subsection (g)(4), concerning damages as requested in this suit, contains no provision allocating the burden of proof. Therefore, we agree with the district court that the traditional rule imposing the burden of proof on the plaintiff should apply.
The district court found that Edison failed to prove that the Army acted unreasonably in its efforts to maintain accurate, relevant, timely, and complete records. The Privacy Act seeks to insure informational quality by requiring governmental agencies 2 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. 3
Section 552a(e)(5) (Supp.1976) (emphasis added). For violations of this standard, the Act further provides:
the individual may bring a civil action against the agency, and the district court of the United States shall have jurisdiction in the matters under the provisions of this subsection.
(g)(4) In any suit brought under the provisions of sub-section (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual, in an amount equal to the sum of-
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees as determined by the court.
5 U.S.C. § 552a(g)(1), (4) (emphasis added).
First, Edison contends that it is not sufficient for the Court to find that the Army took reasonable steps to maintain its personnel files since subsection (g)(1)(C) of the Act does not use the word "reasonable." Subsection (e)(5), however, requires the Army to act "reasonably." If we accepted Edison's interpretation, it would render subsection (e)(5) of the Act meaningless. The Army would be strictly liable for any inaccuracy, no matter how small or how reasonably the agency acted.
As Appellant admits, however, "No system of record keeping will ever attain perfection." Subsection (g)(1) must be read in pari materia with subsection (e)(5). If the court determines that the agency has done what is reasonable in assuring the accuracy of the information, no more is required. Savarese v. United States Dept. of Health, Education & Welfare, 479 F.Supp. 304, 306-07 (N.D.Ga.1979), aff'd mem., 620 F.2d 298 (5th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981); Smiertka v. United States Department of Treasury, 447 F.Supp. 221, 226 n.35 (D.D.C.1978), remanded on other grounds, 604 F.2d 698 (D.C.Cir.1979). The use of "reasonableness" language requires the balancing of competing interests: army resources and the ability to assure accurate and complete records versus the likelihood that inaccurate and incomplete records will cause injury to the individual. Smiertka, 447 F.Supp. at 226 n.35. Edison must therefore prove that the Army acted unreasonably.
The district court adequately reviewed the evidence concerning the issue of reasonableness. The Army maintains an Officers Master File ("OMF"), a computerized data base which includes data entries on over 100,000 officers. It also maintains an ORB, a summarized computerized extract from the OMF. To overcome the possibility of errors in data, the Army employs quality control measures when entering data. Moreover, it annually sends a hard-copy ORB printout to each officer. The officer reviews the ORB and other personnel files in an annual audit, identifies any errors, and indicates what corrections should be made. These corrections are mailed to the Military Personnel Center (MILPERCEN) in Washington, D.C. for entry into the OMF data base. Because of constant transfers of officers to new duty stations, new medals, changes in language proficiencies, and military schooling, up to 80% of these records need change during a periodic update. 4 The corrected field copy of the ORB is retained for a year and then discarded because of their volume and the limited space available.
There are three ways for an officer to know if a correction has been made to his OMF and ORB. He may request a copy of the corrected ORB or request that his Career Manager (in the Army Central Headquarters) verify that a change has been made. The final procedure, and the method Edison used, was to review his personnel file at the annual audit, where any necessary corrections and updates could again be made. Given the large number of officers appearing each year before a promotion board 5 and the large number of boards, we agree with the district court's finding that the Army was not unreasonable in its efforts to maintain proper records.
The district court found that Edison failed to prove that either the 1976 or 1977 Promotion Board in fact saw an ORB on Edison reflecting a Confidential security clearance. The ORBs which were seen by the Promotion Boards were printed two to three weeks before the Board's convening date and bear a Control Number 1300. The actual ORBs were destroyed after the Promotion Boards finished their review of files. In order to determine what clearance the Promotion Boards actually saw, the district court viewed a number of Edison's hard-copy ORBs printed for other purposes (e.g., for the Career Manager in making duty assignments) and not for the Promotion Boards. 6
MILPERCEN "dumps" the contents of the "living" OMF onto a separate computer tape at the end of the fiscal and calendar year. The dumped "historical" OMFs can be printed out at any later time, but will show only the data which were on the record at the time of the dump. After the OMF is "dumped," MILPERCEN continues to make changes and updates to the original tape which is a "living" file. When an ORB is printed, it comes from the "living" OMF.
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