Kassel v. US VETERANS'ADMIN.

• Decision Date: 17 March 1989
• Docket Number: Civ. No. 87-217-D.
• Citation: 709 F. Supp. 1194
• Parties: Jeffrey S. KASSEL, Ph.D. v. UNITED STATES VETERANS' ADMINISTRATION; Thomas Mulvey, Paul Lamberti, Robert Cisler, in their individual and official capacities; United States of America.
• Court: U.S. District Court — District of New Hampshire

709 F. Supp. 1194

Jeffrey S. KASSEL, Ph.D. v. UNITED STATES VETERANS' ADMINISTRATION; Thomas Mulvey, Paul Lamberti, Robert Cisler, in their individual and official capacities; United States of America.

Civ. No. 87-217-D.

United States District Court, D. New Hampshire.

March 17, 1989.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Peter A. Meyer, Concord, N.H., for plaintiff.

Gretchen Leah Witt, Asst. U.S. Atty., Concord, N.H., for defendants.

ORDER

DEVINE, Chief Judge.

This is a civil action filed by Jeffrey Kassel against the United States Veterans' Administration and three present or former officials of the Veterans' Administration Medical Center in Manchester, New Hampshire ("VA" or "Manchester VA"). Jurisdiction is founded on 5 U.S.C. § 552a(g) and 28 U.S.C. §§ 1331, 1343, and 1346(b). On February 4, 1988, 682 F.Supp. 646, the Court issued an Order granting in part and denying in part the defendants' motions for summary judgment and to dismiss.¹ The parties now return to clarify that Order and resolve the remaining claim in dispute. A summary of relevant facts follows.

Jeffrey S. Kassel, Ph.D., has been employed as a clinical psychologist by the United States Veterans' Administration since 1971. In 1977 he was transferred to the VA Medical Center in Manchester. Dr. Kassel asserts that he has been continually harassed by his employer since July 1979, Complaint ¶ 43, when he successfully pursued a grievance against the hospital's chief of psychiatry. Affidavit of Jeffrey Kassel at 1. According to Dr. Kassel, harassment came in many forms, including negative performance evaluations, threats of discharge, transfers, numerous letters detailing alleged deficiencies in his work, reassignments, and an unlawful termination in August 1982.²

The most recent incident, and the central event giving rise to the instant litigation, occurred when Dr. Kassel agreed to be interviewed for a special report entitled "Remembering the War" that appeared in the April 26, 1985, issue of USA Today. The report included a state-by-state survey of contemporary views on the Vietnam War. In its entirety, the New Hampshire entry read as follows:

`We've become a nation of hand wringers,' says Jeff Kassel, 41, of Manchester. `It's amusing that vets feel they are the victims when the Vietnamese had the napalm and ... bombs ... dropped on them.' Kassel, who had a student deferment, says winning or losing `depends on whether it's the vet who lost his legs or the chairman of ... Bell Helicopters.'

The VA began receiving negative responses to the article shortly after publication. On May 8, 1985, the VA appointed a factfinding Board of Inquiry to determine "whether our ability to offer services has been impaired by Dr. Kassel's statement." Plaintiff's Exhibit 7 (May 8, 1985, letter from William H. Kelleher establishing Board of Inquiry). Two of the Board's three members questioned their participation on the panel: both "had been involved in previous situations with Dr. Kassel," and both "were known as having ... concerns about Dr. Kassel's previous functioning." Plaintiff's Exhibits 10 (deposition of Board member Dennis Forgue at 128-29) and 11 (deposition of Board member Jacob DeJong at 4-6). Despite these concerns, the Board continued as originally constituted.

On May 24, 1985, the Board of Inquiry issued its report. The report cited the "enormous attention" attracted by the USA Today quote; it stated that "the most common responses from those interviewed have been of outrage and a perception of insensitivity on the part of Dr. Kassel in his view towards the plight of the Vietnam veteran," Board of Inquiry Report at ¶ 4(L), and it concluded that "Dr. Kassel no longer has any degree of credibility in the performance of his responsibilities in the Mental Hygiene Clinic," id. at ¶ 6(C). While the Board found that the VA's reputation had not suffered as a result of the USA Today article, it warned that the credibility of the VA would "no doubt be directly affected by the way in which the administration of this Medical Center deals with this matter." Id. at ¶ 6(D). Accordingly, the Board recommended that Dr. Kassel "be removed from any responsibilities putting him in direct or indirect contact with Vietnam veterans." Id. at ¶ 7.

In response to the Board of Inquiry report, the VA decided to discharge Dr. Kassel and to make public the reasons why. Statements about the proposed discharge were issued to the press. A proposed letter of removal (marked "FOR OFFICIAL USE ONLY") and the Board of Inquiry report were both released. Defendant Mulvey, the VA's Chief of Personnel, spoke with Manchester Union Leader reporter Joel Blumenthal. That interview included an extended discussion of Dr. Kassel's prior discharge in 1982. Information provided by defendant Mulvey appeared in the Union Leader and the Concord Monitor.

On June 10, 1985, USA Today published a correction of the original quote from Dr. Kassel, making it clear that that quote was not entirely accurate.

In fact, Dr. Kassel was quoting what he'd read in another news story, which said: `Vietnamese Vietnam Veterans think it's amusing that American Vets feel they are the victims when the Vietnamese had the Napalm and ... bombs dropped on them.'

The VA continued to discuss the case with members of the press, maintaining that the USA Today correction "did not have any effect in terms of diminishing the negative impression created by the comments." Declaration of Robert Cisler at 9. Shortly after the correction appeared, however, the VA decided not to discharge Dr. Kassel. A statement issued by the VA on June 7, 1985, announced,

Having reviewed all the material related to the letter of proposed removal of Dr. Jeffrey Kassel, Medical Center Director William H. Kelleher today decided that the action will not take place. Kelleher indicated that the clarification issued by USA Today in its June 10 publication was a major factor in its decision.

Memorandum in Support of Defendants' Motion for Summary Judgment and for Reconsideration (hereinafter, "Defendants' Memo") Exhibit B (The Union Leader, June 22, 1985).

On July 17, 1985, the VA decided to transfer Dr. Kassel to a research position in Puerto Rico. After Dr. Kassel objected, the VA transferred him instead to a clinical position in Bedford, Massachusetts. Defendant's Exhibit F (declaration of James T. Krajeck); Complaint ¶ 14. Dr. Kassel unsuccessfully challenged the transfer through arbitration. Defendant's Exhibit H.

I. Privacy Act

Defendants first move for summary judgment on plaintiff's Privacy Act claims (Count I). In Count I, plaintiff asserts that defendants have violated the federal Privacy Act, 5 U.S.C. § 552a, by willfully or recklessly (1) disclosing protected information about Dr. Kassel and (2) violating certain provisions of the Act that set standards for gathering and maintaining government records.

Defendants will prevail if there is no genuine issue as to any material fact and if they are entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. Summary judgment will not lie if the dispute about a material fact is "genuine"; that is, if the evidence is such that a reasonable jury could return a verdict for Dr. Kassel. See Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). With this standard in mind, the Court addresses plaintiff's Privacy Act claims seriatim.

A. Disclosure

The Privacy Act prohibits federal agencies from disclosing documents "contained in a system of records" without the prior written consent of the individual to whom the record pertains. 5 U.S.C. § 552a(b). An agency does not violate the Act, however, when it discloses information which it is required to disclose by the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. See § 552a(b)(2). The FOIA requires government agencies to make available to the public most of the information maintained in their files, with nine specific "exemptions". See 5 U.S.C. §§ 552(b)(1)-(9). Pertinent here is exemption 6, which excepts from mandatory disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." § 552(b)(6).

Exemption 6 imposes a two-part test. The first part requires the Court to determine that the challenged information was derived from personnel files, medical files, or other "similar files". The second part requires the Court to balance public against private interests to determine whether disclosure would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); Aronson v. United States Dept. of Housing and Urban Dev., 822 F.2d 182, 185 (1st Cir.1987). The Court now applies this test to the specific information allegedly released by defendants about which plaintiff complains.

1. Board of Inquiry Report

The parties agree that exemption 6 applies to release of the Board of Inquiry report. Thus, the first part of the test is not at issue.

The second part of the exemption 6 test requires the Court to balance the VA's obligation to release the Board's report against Dr. Kassel's privacy interest in information contained therein. The VA's obligation here was significant. Ordinarily, the individual careers of public servants are of little interest to the general public. Columbia Packing Co. v. United States Dept. of Agriculture, 563 F.2d 495 (1st Cir.1977) (employment records of former federal meat inspectors properly released when inspectors became subjects of public interest following convictions for bribery). Dr. Kassel's career, however, became a subject of considerable interest. That interest was manifested in numerous newspaper articles and letters. Those concerned with the treatment of Vietnam veterans had a legitimate interest in learning the circumstances surrounding Dr. Kassel's statement, the possibility of anti-Vietnam veteran bias which the statement suggested, and...