Consequently, neither plaintiff has established a right to recover any damages pursuant to subsections (g)(1)(D) and (g)(4)(A) of the Privacy Act. 5 U.S.C. §§ 552a (g)(1) (D) and (g)(4)(A).
10. The Court finds that to the extent that plaintiffs Michael Albright and Anna Wong have suffered anger and emotional distress which they contend is attributable to the videotaping, both plaintiffs have failed to establish an adverse effect as required by subsection (g)(1)(D) of the Act to vest jurisdiction in this Court. Accordingly, their claims are dismissed, with prejudice. See Albright, 631 F.2d at 921.
11. Assuming, arguendo, that any plaintiffs suffered emotional distress which may be attributable to the videotaping, the Court finds that no plaintiff incurred a physical injury. Accordingly, regardless of whether plaintiffs incurred out-of-pocket losses, under the law of the District of Columbia, damages for emotional distress resulting from negligence is precluded in the absence of substantial physical injury. Garber v. United States, 188 U.S. App. D.C. 172, 578 F.2d 414, 415 (D.C. Cir. 1978); District of Columbia v. Smith, 436 A.2d 1294, 1296 (D.C. App. 1981).
12. Further, the Court has found that the idea to record the meeting actually came from an affected analyst who could not attend. BHA decided to make this videotaped recording for analysts who could not attend the meeting, and BHA offered to destroy the videotape when it became aware that the analysts were "upset" that it had been made but the analysts' union refused the offer. Thus, the Court concludes that plaintiffs have failed to establish that the agency acted in a manner which was intentional or willful as required by 5 U.S.C. § 552a(g)(4). Albright, 621 F.2d at 921 (D.C. Cir. 1980); Bruce v. United States, 621 F.2d 914, 917 (8th Cir. 1980).
13. Accordingly, the Court concludes that there has been no violation of the Privacy Act, 5 U.S.C. § 552a.
14. In accordance with the offer previously made by defendants this Court directs that the videotape at issue and any copies thereof be destroyed following exhaustion of all appellate remedies in this case.
15. Any finding of fact deemed to be conclusion of law herein is adopted as such. Conversely, any conclusion of law deemed to be a finding of fact herein is also adopted as such.
Pursuant to Rule 58 of the Federal Rules of Civil Procedure, judgment by separate order of this date is to be entered for the defendants and the action is to be dismissed, with prejudice. Costs shall be awarded in favor of the defendants and against the plaintiffs who brought this case.
This case came before the court for an evidentiary hearing on October 28, 29, and November 1, 1982 following remand from the Court of Appeals for this Circuit. At the conclusion of plaintiffs' presentation of their evidence on November 1, 1982, this court granted defendants' motion for involuntary dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and dismissed plaintiffs' claims brought under Subsection (e)(7) of the Privacy Act. 5 U.S.C. § 552a (e)(7). In accordance with that ruling, it is, by this Court, this 30 day of November, 1982,
ORDERED, ADJUDGED AND DECREED in accordance with the Court's findings of fact and conclusions of law filed of even date herewith that judgment be entered for the defendants and that this action be dismissed with prejudice with costs awarded against the plaintiffs, and it is further
ORDERED, ADJUDGED AND DECREED that the videotape at issue in this case, marked as Joint Trial Exhibit One shall be maintained in the possession of the Office of the Clerk of this Court until the plaintiffs' rights of appeal have been fully exhausted, at which time the tape and any copies thereof shall be destroyed, and it is further
ORDERED, ADJUDGED, AND DECREED that plaintiffs' Motion for Stay Pending Appeal is denied as moot.