Reuber v. U.S.
| Citation | 829 F.2d 133 |
| Decision Date | 18 September 1987 |
| Docket Number | Nos. 84-5826,84-5880,s. 84-5826 |
| Parties | Melvin D. REUBER, Appellant v. UNITED STATES of America, et al. Melvin D. REUBER v. UNITED STATES of America, et al., Appellants Litton Industries, Inc., et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-01857).
Raymond D. Battocchi, with whom Walter H. Fleischer and Alfred F. Belcuore, Washington, D.C., were on brief, for appellant in No. 84-5826 and cross-appellee in No. 84-5880.
Rebecca L. Ross, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees in No. 84-5826 and cross-appellants in No. 84-5880.
Leonard C. Greenbaum and David M. Dorsen, Washington, D.C., were on brief, for Stauffer Chemical Co., amicus curiae, urging reversal in Nos. 84-5826 and 84-5880.
Before ROBINSON, MIKVA and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Appellant, Dr. Melvin D. Reuber, brought this suit under the Privacy Act 1 against the Department of Health and Human Services (HHS) and the Environmental Protection Agency (EPA), alleging that they had wrongfully maintained in their records, and had also disseminated, copies of a highly critical letter of reprimand sent to Reuber by his employer. The District court granted HHS's motion for summary judgment on two of Reuber's Privacy Act claims, but held summary dismissal of his other privacy claims improper; after a twelve-day bench trial, the District Court ruled in favor of the agencies on virtually all remaining issues, but found that the charges in the letter were partly false and ordered the agencies to destroy any copies remaining in their possession. 2 On these appeals, we order dismissal of the claims Reuber predicates upon alleged inaccuracies in the letter, and affirm, though occasionally on different grounds, the District Court's remaining dispositions in all major respects.
In light of the District Court's thorough narrative and detailed findings of the facts, 3 we need recount the history of this gnarled litigation only briefly. Reuber, a pathologist with extensive experience in the field of cancer research, was employed from late 1976 through April, 1981, at the Frederick Cancer Research Center (Frederick), a federal laboratory in Maryland. 4 Litton Bionetics, Inc., under a contract with the National Cancer Institute (NCI), a division of HHS, operated the laboratory and tested various chemicals to assess their potential carcinogenic effects. 5 After approved by NCI, the results of these "bioassays" were published in official NCI reports, 6 and slides of animal tissues used in the Frederick bioassays and other laboratories' projects were deposited at Tracor Jitco, another Maryland facility, where they could be reviewed by scientists doing personal research. 7
Reuber, who headed Frederick's experimental pathology division, obtained permission from Frederick's director, Dr. Michael G. Hanna, to perform outside research at Tracor Jitco one day each week. Reuber prepared a number of articles based on his independent work, but never sought Frederick's approval before publishing them. He used his institutional address on most of his articles, whether the research was done at Frederick or at Tracor Jitco. 8
In the late 1970's, Reuber became interested in the pesticide malathion, which had been deemed noncarinogenic in a bioassay conducted by another NCI contract laboratory. He reviewed malathion slides at Tracor Jitco and, in early 1980, completed the draft of a paper disputing NCI's findings and concluding that malathion was indeed a carcinogen. 9 Malathion was by that time the center of a swirling debate; California health officials had made tentative plans to use the pesticide to combat the invading swarms of Mediterranean fruit flies hungrily eyeing the state's agriculture. 10 When a California environmental group requested from Reuber information concerning malathion, he forwarded a copy of his unpublished paper. He dispatched at least two more copies to interested parties in that state, and by late 1980 his malathion paper was in wide if informal circulation. One environmental group disseminated the paper to the news media, heralding it as a statement of NCI's new official position on the carcinogenicity of malathion. 11 Reuber reiterated his views in telephone conversations with press representatives and, after California reaffirmed its plans to spray malathion, he wrote to the California Department of Food and Agriculture, criticizing the NCI malathion bioassay and stressing the superiority of his own scientific credentials. 12
After several inquiries and complaints by California officials and others about Reuber's activities, two NCI executives, Drs. Vernon Hartwell and Richard Adamson, began discussing Reuber's conduct with Litton. In a meeting with Hanna, Adamson charged Reuber with misrepresenting his views as those of NCI. 13 Hanna commenced an investigation and consulted with a number of NCI and Litton employees, including Reuber and Hartwell. Reuber agreed to mail errata letters to journals that had published his independent-research papers bearing the potentially misleading Frederick address. Hanna believed, however, as did Litton President James Nance, that some sanction was also required. Hanna decided that the most appropriate response was a stern letter of reprimand. 14
On March 26, 1981, Dr. Hanna delivered the censorious letter which eventually spawned this litigation. 15 Hanna accused Reuber of "mishandling of scientific data," "carelessness and lack of professional expertise," and "flagrant professional abuse." 16 With more specificity, Hanna charged Reuber with improperly assuming the mantle of NCI endorsement for his private research projects; with overstating the thoroughness of his review of the malathion slides at Tracor Jitco; with spending excessive time away from his duties at Frederick; and with ignoring NCI publication clearance procedures. 17
Hanna sent copies of this letter to two other Litton officials and to Drs. Adamson, DeVita, Hartwell and Payne of NCI; a distribution list at the bottom of the original identified these recipients. 18 On April 13, 1981, Dr. William Hollis of the National Agricultural Chemicals Association (NACA), a private industry group, received from an anonymous source a plain brown envelope containing a copy of the letter together with copies of the errata letters Reuber had mailed to scientific journals. 19 Hollis gave a copy to Jack Wise of Stauffer Chemical Company, 20 a chemical manufacturer that dealt frequently with EPA. 21 Copies also appeared mysteriously on a public bulletin board at EPA. 22 After the letter was extensively quoted in the April 15th issue of Pesticide and Toxic Chemical News, a trade publication, Reuber resigned from his position at Frederick. 23
Eventually, Reuber asserted a host of claims against a wide variety of individuals, corporations, and federal agencies. The District Court dismissed all claims against the individual and corporate defendants, as well as claims against the agencies under the Federal Tort Claims Act; this dismissal generated separate appeals to this court. 24 The present Privacy Act claims are premised on contentions that NCI and EPA improperly maintained the damaging reprimand letter in their records and that an NCI official wrongfully disseminated it to the public. The District Court denied a motion by HHS for partial summary judgment on certain of Reuber's claims, 25 but granted a similar motion with respect to others. 26 Following trial of Reuber's residual Privacy Act complaints, 27 these appeals were taken.
Reuber's most basic contention is that HHS violated Section 552a(e)(1) of the Privacy Act by keeping copies of the reprimand letter in its NCI records. 28 This section provides that each agency subject to the Act "shall maintain in its records only such information about an individual as is relevant and necessary to accomplish" a legitimate agency purpose. 29 Reuber believes that NCI had no justifiable interest in such a personal letter of reprimand, since "[t]he hiring, discipline and supervision of Litton employees was the responsibility of Litton, not the NCI." 30 Reuber further asserts that Litton's contract with NCI proscribed disclosure of the letter, and thus precluded any rightful interest of NCI. 31
The District Court granted summary judgment for HHS on this claim, 32 and we deem its decision perfectly sound. Litton was an important government contractor, and the controversy generated by Reuber, a Litton employee, enmeshed NCI in a scientific debate over the carcinogenicity of malathion and the reliability of NCI bioassays. Given NCI's unquestionable need to ensure public confidence in its work and to avoid public association with Reuber's private dissenting views, some assurance from Litton that the problem had been addressed and would not recur was certainly required. The reprimand letter was an excellent means of demonstrating to NCI Litton's awareness of the delicate circumstances and its commitment to better in-house discipline. We cannot say that retention of this information on file at NCI was irrelevant or unnecessary to a valid agency purpose.
Moreover, the contract between Litton and NCI did not prohibit communication to NCI of personnel decisions directly affecting it. Insofar as this contract bears on the controversy, it contained only a standard prescribed clause providing that "confidential information ... of a personal nature about an individual" could not be disclosed without the individual's consent. 33 ...
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