Ehm v. National R.R. Passenger Corp.

• Decision Date: 29 May 1984
• Docket Number: 83-1689,Nos. 83-1328,s. 83-1328
• Citation: 732 F.2d 1250
• Parties: Alfred Edward EHM, Plaintiff-Appellee Cross-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellant Cross-Appellee. Alfred Edward EHM, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1250

732 F.2d 1250

Alfred Edward EHM, Plaintiff-Appellee Cross-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellant

Cross-Appellee.

Alfred Edward EHM, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellee.

Nos. 83-1328, 83-1689.

United States Court of Appeals, Fifth Circuit.

May 29, 1984.

Alfred E. Ehm, pro se.

Christopher M. Klein, Washington, D.C., for defendant-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, and RUBIN and POLITZ, Circuit Judges.

CLARK, Chief Judge:

Alfred E. Ehm, proceeding pro se, brought various claims under the Privacy Act, 5 U.S.C. Sec. 552a, and the Freedom of Information Act, 5 U.S.C. Sec. 552, against the National Railroad Passenger Corporation (Amtrak). These consolidated appeals present for review three orders in three different district court suits, two of which were consolidated below. We affirm the grant of summary judgment for Amtrak on the ground that Amtrak is not subject to the Privacy Act. We affirm the grant of summary judgment for Ehm requiring Amtrak to respond to Ehm's Freedom of Information Act requests notwithstanding Ehm's nonpayment of disputed fees. Finally, we vacate the district court's dismissal on the pleadings of Ehm's complaint seeking to require Amtrak to publish and make available to the public certain information allegedly in Amtrak's possession.

I. Applicability of Privacy Act to Amtrak

Ehm instituted this action pursuant to the Privacy Act, 5 U.S.C. Sec. 552a. ¹ He alleged that Amtrak had intentionally created inaccurate and misleading documents about him, had ignored his requests to amend these inaccuracies, had disclosed records about him without his consent and to his detriment, had denied him access to its records about him, and had failed to publish in the Federal Register notice of the existence of its system of records, all in contravention of the Privacy Act. He sought declaratory, injunctive, and monetary relief against Amtrak.

Amtrak moved for summary judgment on the ground that it was not an "agency" of the federal government, within the meaning of the Privacy Act. Summary judgment was granted in favor of Amtrak. We affirm.

The Rail Passenger Service Act, 45 U.S.C. Sec. 501 et seq., authorized the creation of Amtrak as a quasi-public, for-profit corporation chartered under the District of Columbia Business Corporation Act. The statute specifically provides that Amtrak "will not be an agency or establishment of the United States Government." 45 U.S.C. Sec. 541.

When the Rail Passenger Service Act was enacted in 1970, the Privacy Act, 5 U.S.C. Sec. 552a, and the Freedom of Information Act, 5 U.S.C. Sec. 552, applied to federal "agencies" as defined in the Administrative Procedure Act, 5 U.S.C. Sec. 551(1). ² In 1972, Congress amended the Rail Passenger Service Act, adding section (g) of 45 U.S.C. Sec. 546, to make Amtrak subject to the Freedom of Information Act. ³ A plausible inference is that Congress recognized that Amtrak was not an "agency" within the meaning of the Administrative Procedure Act. Section (g) of 45 U.S.C. Sec. 546 does not mention the Privacy Act.

In 1974, the Freedom of Information Act was amended to expand the definition of "agency" contained in 5 U.S.C. Sec. 551(1), as follows:

For purposes of this section, the term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

5 U.S.C. Sec. 552(e) (emphasis added). Because the Privacy Act defines "agency" by cross-reference to 5 U.S.C. Sec. 552(e), see 5 U.S.C. Sec. 552a(a)(1), the amended definition also applies to the Privacy Act.

The question before us is whether, as a matter of law, Amtrak is subject to the Privacy Act by virtue of this extended definition of "agency," despite the explicit provision in the Rail Passenger Service Act that Amtrak "will not be an agency or establishment of the United States Government," 45 U.S.C. Sec. 541; or whether the inclusion of "Government controlled corporations" in the definition of "agency" under 5 U.S.C. Sec. 552(e) can make Amtrak an "agency," as a matter of fact, for purposes of the Privacy Act.

A.

The legal side of this issue can be resolved by applying fundamental principles of statutory construction. The provision of the Rail Passenger Service Act denying Amtrak "agency" status is specific to that Act. Thus, it controls over the general definitional provisions of the Privacy Act absent clear legislative intent to the contrary. See Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974); Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 867, 6 L.Ed.2d 72 (1961). There is none. Furthermore, because enactment of this provision of the Rail Passenger Service Act preceded the extension of the "agency" definition in amended 5 U.S.C. Sec. 552(e), the latter should not be read as controlling the former unless the two provisions exhibit

a 'positive repugnancy'.... This principle rests on a sound foundation. Presumably Congress had given serious thought to the earlier statute .... Before holding that the result of the earlier consideration has been repealed or qualified, it is reasonable for a court to insist on the legislature's using language showing that it has made a considered determination to that end.

Blanchette v. Connecticut General Insurance Corp., 419 U.S. 102, 135, 95 S.Ct. 335, 354, 42 L.Ed.2d 320 (1974), quoting In re Penn Central Transportation Co., 384 F.Supp. 895, 943 (Special Court 1974) (Friendly, J.). The provisions do not exhibit a positive repugnancy.

Legislative history does not aid in the resolution of this issue, because an overall analysis shows it to be inconclusive.

Both the Senate bill and the report accompanying the House bill extending the definition of "agency" clearly contemplated that Amtrak would be made subject to the Privacy Act. Indeed, the Senate bill contained a definition of "agency" broader than the one ultimately adopted. It provided:

For purposes of this section, the term 'agency' means any agency defined in section 551(1) of this title, and in addition includes the United States Postal Service, the Postal Rate Commission, and any other authority of the Government of the United States which is a corporation and which receives any appropriated funds.

S. 2543, 93d Cong., 2d Sess. Sec. 3(e), 120 Cong.Rec. 17,015 (1974). The legislative history would support the conclusion that this version was intended to have encompassed Amtrak. ⁴

The "agency" definition contained in the House bill was identical to that now contained in 5 U.S.C. Sec. 552(e). The report accompanying the original bill stated:

The term 'Government controlled corporation,' as used in this subsection, would include a corporation which is not owned by the Federal Government, such as the National Railroad Passenger Corporation (Amtrak) and the Corporation for Public Broadcasting (CPB).

H.R.Rep. No. 876, 93d Cong., 2d Sess. 7-8, reprinted in 1974 U.S.Code Cong. & Ad.News 6267, 6274 (emphasis in original).

This portion of the House Report sparked opposition on the House floor from Representatives Van Deerlin of California and Brown of Ohio, primarily over the first amendment implications of subjecting the Corporation for Public Broadcasting to government inquiry. ⁵

Representative Moorhead of Pennsylvania, Chairman of the Subcommittee on Government Operations which reported the bill, responded with the observation that "the language of the statute would control over the language of the report." 120 Cong.Rec. 6805 (1974).

The Conference Report reconsidered the definition of "agency," and, while leaving the language of the House bill definition intact, narrowed its interpretation of that language. Specifically, whereas the House Report had indicated that Government-controlled corporations "such as" Amtrak and the Corporation for Public Broadcasting were intended to be included in the definition, the conferees stated that they did not "intend to include corporations which receive appropriated funds but are neither chartered by the Federal Government nor controlled by it, such as the Corporation for Public Broadcasting." S.Con.Rep. No. 1200, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 6285, 6293.

During debate on the floor, Representative Moorhead, Chairman of the House conferees, explained that this language

clarifies the intent of Congress with respect to the impact of this legislation on the Corporation for Public Broadcasting. The gentleman from California (MR. VAN DEERLIN) raised such questions during a colloquy when the bill was debated last March. This language makes it clear that the definition of 'agency' for purposes of Freedom of Information Act matters does not include the Corporation for Public Broadcasting.

120 Cong.Rec. 34,164 (1974). ⁶

The Conference Committee did not mention Amtrak specifically, nor had it been the object of debate. However, in rethinking the wisdom of subjecting the Corporation for Public Broadcasting to potential political inquiry, the Conference Committee apparently reconsidered the concept of "government control" which had underlain the House Subcommittee's assumption that the new definition would encompass both Amtrak and the Corporation for Public Broadcasting. The conferees determined that the Corporation for Public Broadcasting was in fact not under government control within the meaning of the definition. Because the House Report originally had recognized that the Corporation for Public Broadcasting and Amtrak were similarly situated in terms of government control, the redetermination with respect to the Corporation for...