Houlihan v. Office of Personnel Management, 89-15368

• Decision Date: 24 July 1990
• Docket Number: No. 89-15368,89-15368
• Citation: 909 F.2d 383
• Parties: Lavonne HOULIHAN, Plaintiff-Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 383

909 F.2d 383

Lavonne HOULIHAN, Plaintiff-Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Defendant-Appellee.

No. 89-15368.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 20, 1990.

Decided July 24, 1990.

Ernest C. Hadley, Wareham, Mass., for plaintiff-appellant.

Matthew M. Collette, Civ. Div., Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before BEEZER and KOZINSKI, Circuit Judges, and BONNER, ^* District Judge.

PER CURIAM:

We decide today whether a federal employee may use the Privacy Act to challenge an Office of Personnel Management decision to reclassify her position.

I

Lavonne Houlihan is an Occupational Health Nurse employed by the Department of Health and Human Services at the Phoenix Indian Medical Center in Phoenix, Arizona. On December 19, 1986, Houlihan filed a "classification appeal" with OPM's Dallas Regional Office, requesting that her position be reclassified from the General Schedule (GS)-11 level to the GS-14 level.

OPM assigned Houlihan's case to Judy Frenzell, a Classification Specialist. Frenzell determined that a desk audit of Houlihan's position was necessary, and she visited Houlihan's place of employment on May 4 and 5, 1987. Frenzell interviewed Houlihan, her immediate supervisor, and an associate director of the medical center. During these interviews, Frenzell took notes, which she later consulted in preparing a draft decision on Houlihan's appeal. On May 12, 1987, OPM issued its decision, reclassifying Houlihan's position downward to the GS-9 level. Frenzell then destroyed her notes.

Houlihan appealed her reclassification decision within OPM. On September 15, 1987, OPM's Classification Appeals Office affirmed the Dallas Regional Office's decision. Houlihan also requested copies of OPM documents relating to the decision, including Frenzell's notes, under the Freedom of Information Act, 5 U.S.C. Sec. 552, and the Privacy Act, 5 U.S.C. Sec. 552a. With the exception of Frenzell's notes, OPM complied with this request. In regard to the notes, OPM told Houlihan that they had been destroyed and, in any event, were not subject to disclosure under the Privacy Act.

Houlihan did not seek review of OPM's decision with the Merit Systems Protection Board or the Office of the Special Counsel. Rather, she filed an action in the district court, alleging violations of the Civil Service Reform Act (CSRA), the Privacy Act and the Administrative Procedure Act. Both Houlihan and OPM filed motions for summary judgment on all counts. The district court granted OPM's motions, finding that Frenzell's notes were not "records" within the meaning of the Privacy Act, and that the Civil Service Reform Act barred Houlihan's remaining claims. ER at 59. Houlihan appeals this decision.

II

A. A misclassification of a federal employment position is a "prohibited personnel practice" as that term is defined in the CSRA. 5 U.S.C. Secs. 2302(a), (b). Karamanos v. Egger, 882 F.2d 447, 451 (9th Cir.1989). In Karamanos, we held that mandamus review for alleged CSRA violations is not available until the employee exhausts all available administrative remedies. 882 F.2d at 450-51 (adopting as the law of this circuit the rationale advanced by Judge Beezer in his dissent from the denial of rehearing in Burroughs v. Office of Personnel Management, 784 F.2d 933, 934-36 (9th Cir.1986)). Relying on the District of Columbia Circuit's decision in Barnhart v. Devine, 771 F.2d 1515 (D.C.Cir.1985), Karamanos held that a federal employee must first seek review with the Office of the Special Counsel. 882 F.2d at 450-51. Because Houlihan has failed to exhaust the administrative remedies available to her under the CSRA, we may not consider the merits of her CSRA and APA claims.

B. An individual bringing a claim under the Privacy Act must demonstrate a "causal connection" between the alleged violation of the Act and the harm suffered by the individual. Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir.1986); Rosen v. Walters, 719 F.2d 1422, 1423-25 (9th Cir.1983). The precise standard is whether the alleged violation caused an agency to make "a determination ... which is adverse to the individual." 5 U.S.C. Sec. 552a(g)(1)(C). ¹

In Rosen v. Walters, we considered whether a veteran who was denied service-related disability benefits could bring a Privacy Act claim alleging that "the [Veterans Administration] or some other agency deliberately destroyed medical records pertinent to his disability claim, thereby precluding him from presenting the VA with all the evidence in his favor." 719 F.2d at 1424. We held that the veteran could not because 38 U.S.C. Sec. 211(a) bars judicial review of VA benefits decisions, and the veteran's claim "would require precisely, although indirectly, the type of judicial review over Veterans Administration decisions that is precluded by [section] 211(a)." Id. at 1424. ² Specifically, we explained that:

Rosen's damage claim would require the district court to determine not only that the VA intentionally failed to maintain complete records, but also whether, but for the missing records, Rosen should have been awarded disability benefits. This would involve a review of the prior adverse VA decision to determine whether the absent evidence affected the result and, if the court so concludes, it must then act as the Veterans Administration itself, applying benefits rules to the facts in order to determine the correct award of disability had the files been adequately maintained. Such review by the district courts would necessarily run counter to the purposes of Sec. 211(a).

Id. at 1425; see also Pellerin v. Veterans Administration, 790 F.2d 1553, 1555 (11th Cir.1986) (adopting our rationale in Rosen ).

In order to consider Houlihan's Privacy Act claim, we would have to decide not only whether OPM violated the Act, but whether OPM's alleged violation caused it to make "a determination ... which is adverse to [her]." 5 U.S.C. Sec. 552a(g)(1)(C). As in Rosen, we would have to compare OPM's decision to the decision it would have made had the agency properly maintained its records, assuming there indeed was a Privacy Act violation. This would necessitate a careful review of the OPM's decision to reclassify...