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December 1, 1982

MICHAEL T. ALBRIGHT, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants

United States District Judge Charles R. Richey.

The opinion of the court was delivered by: RICHEY


 Plaintiffs brought this action under the Privacy Act of 1974, 5 U.S.C. § 552a. They alleged that defendants violated subsection (e)(7) of the Privacy Act, 5 U.S.C. § 552a (e)(7) (1976), by videotaping a meeting held for analysts with the Bureau of Hearings and Appeals of the Social Security Administration, United States Department of Health and Human Services, *fn1" and attended by analysts, supervisors and union officials. On February 14, 1979, this Court granted defendants' motion for summary judgment holding, inter alia, that there was no violation of the Privacy Act since the videotape was not placed in a system of records within the agency.

 On July 17, 1980, the Court of Appeals reversed this Court's decision, holding that Section (e)(7) of the Privacy Act does apply because the videotape was a record of the exercise of First Amendment rights and therefore its creation came within the terms of the Privacy Act. Albright v. United States, 203 U.S. App. D.C. 333, 631 F.2d 915 (D.C. Cir. 1980). The Court remanded for a determination as to whether plaintiffs could prevail on their claim under the Act, and set forth three findings that had to be made in plaintiffs' favor in order for them to prevail: (1) whether plaintiffs were depicted by voice or picture on the videotape; (2) whether plaintiffs could establish that the Court had jurisdiction by demonstrating that the "making of this record had an adverse effect on them as required by Subsection (g)(1)(D) of the Act;" and (3) whether plaintiffs could establish entitlement to a damages remedy by establishing that "the agency acted in a manner which was intentional or willful." 5 U.S.C. § 552a (g)(4). 631 F.2d at 921. The Court of Appeals stated that, as to the damages remedy, the defendants had stated three contentions which, if found to be true, raised "serious doubts as to whether the agency action was a willful and intentional violation of the Act which would justify the assessment of damages." Id. These were that: (1) the agency made the videotape in order to preserve a record for other affected analysts who would not be able to attend the meeting; (2) the idea to record the meeting originated from an analyst; (3) the agency volunteered to destroy the videotape when it became aware that analysts objected to it, but that plaintiffs' union refused the offer. Id.

 On October 28, 29 and November 1, 1982, an evidentiary hearing was held before the Court on these issues. At the conclusion of plaintiffs' case, the government moved for an involuntary dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure on the ground that upon the facts and the law plaintiffs had demonstrated no right to relief. After hearing full argument of counsel for the parties and reviewing the entire testimony and evidence presented by plaintiffs, this Court granted the government's motion to dismiss. The Court now enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.


 1. Plaintiffs, Michael T. Albright, Tiiu A. Anniko, Rae Balest Chamberlain, Earnest Baskerville, Michael E. Bryant, George C. Condern, Devarieste Curry, Melvin F. Daniels, John D. DiLillo, Donald Gregory, Judy A. Gregory, Dolly A. Marshall, John A. Martone, Yvonne P. Porter, Tommie L. Smith, Glenda Walker, and Anna Wong, are present or former Hearings and Appeals Analysts at the Arlington, Virginia Office of the Bureau of Hearings and Appeals (BHA), Social Security Administration (SSA), United States Department of Health and Human Services (HHS).

 2. The defendants are the United States of America and the following persons, who are sued in their official capacities:

(a) Richard D. Schweiker, successor to Joseph Califano, an original defendant as Secretary of HHS;
(b) John A. Svahn, as Commissioner of the Social Security Administration;
(c) Louis Hayes, as the Director of BHA;
(d) Orlando MacGruder, as the Assistant Bureau Director (Office of Management Systems), Division of Administration, BHA;
(e) Hinda Silver, as the Personnel Officer of BHA. *fn2"

 3. In the summer of 1977, BHA made a preliminary determination to reclassify GS-13 BHA analyst positions to a GS-12 level.

 4. In July, 1977, BHA temporarily withheld promotions of BHA analysts from GS-12 to GS-13 levels. By September, 1977, twenty-four promotions had been recommended and withheld.

 5. On September 9, 1977, Mr. Makoff who was then the Personnel Director of BHA, met with the union representatives of the BHA analysts to inform them that Mr. Robert L. Trachtenberg, Director of BHA, had affirmed the determination to reclassify the BHA GS-13 analyst positions to GS-12 and had imposed a moratorium on all such promotions to GS-13.

 6. At the request of union representatives, Mr. Makoff scheduled and held a meeting on September 23, 1977 with BHA analysts to discuss the reasons for the reclassification decision and the ...

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