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WATERS v. MEESE

April 25, 1988

Richard L. Waters, Plaintiff,
v.
Edwin Meese III, Attorney General, United States Department of Justice, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, United States District Judge.

 Background

 The material facts underlying the parties' dispute are not in dispute. *fn1" Plaintiff Richard Waters is a law school graduate who is, and was at all times relevant to this action, a senior program analyst in the Coordination and Review Section of the Department's Civil Rights Division. In late January or early February 1986, Waters requested a combination of sick leave, annual leave and advanced annual leave from February 4 through February 26, 1986, for the express purpose of preparing for and taking the Pennsylvania Bar Examination. James D. Bennett, a supervisory program analyst and Waters' supervisor, approved Waters' request for annual and advanced annual leave in light of the purpose expressed. Waters returned to work as scheduled on February 27, 1986, and proceeded to request administrative leave, this time for the purpose of complying with a summons for petit jury duty in the United States District Court for the District of Columbia. Bennett acceded to the request for administrative leave which would extend from March 3 through March 14, 1986, a time frame later enlarged through Friday, March 21, 1986.

 According to defendant's recitation, Waters did not return to work as scheduled on March 24, 1986. Inquiry by Division officials turned up information which led them to question Waters' actual use of the approved administrative leave. Accordingly, when Waters returned to Work on March 24, 1986, Bennett asked him to account in writing for his whereabouts on the dates during which he was to be available for jury duty. Thus began an investigation into Waters' use of leave time, an investigation which ultimately carried over to questions pertaining to Waters' use of the February leave period as well.

 On July 9, 1986, Kathleen Murphy, then the Chief of the Division's Personnel and Training Unit, acting at the behest of Bennett, wrote to the Secretary/Treasurer of the Pennsylvania Board of Law Examiners requesting confirmation of Waters' attendance at the February 1986 Pennsylvania Bar Examination. The letter stated that Waters' supervisor, "for reasons that I cannot disclose at this time, . . . has reason to believe that Richard Waters did not take the bar at this period of time." Letter of July 9, 1986, Attachment B to Plaintiff's Motion for Summary Judgment. The letter went on to warn that the supervisor "intends to take some form of disciplinary action," perhaps including "removal from federal service," if Waters' attendance could not be confirmed. Id.

 Waters commenced this civil action against the government on May 19, 1987. His sole claim is that the Division's conduct during the investigation violated that provision of the Privacy Act which requires a federal agency to "collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs." 5 U.S.C. § 552a(e)(2). Waters contends, in essence, that this statutory provision required the Department to seek information pertaining to the February leave directly from him before seeking the same information from third parties. It is undisputed that Waters was neither consulted on this matter nor informed of the pending investigation prior to the Division's July 1986 contact with officials of the Pennsylvania Board of Law Examiners. The parties' cross-motions for summary judgment have fully addressed all outstanding issues. *fn2"

 Discussion

 Courts have recognized four prerequisites to maintaining a civil action for damages under the Privacy Act, all of which are embedded in the plain language of the Act itself. A plaintiff must establish (1) that the defendant agency failed to elicit information directly from plaintiff "to the greatest extent practicable," 552 U.S.C. § 552a(e)(2); (2) that defendant's non-compliance was "intentional or willful," id. § 552a(g)(4); (3) that defendant's non-compliance had an "adverse effect" on the plaintiff, id. § 552a(g)(1)(D); and (4) that the plaintiff suffered actual damages or is otherwise entitled to an award of damages, id. § 552a(g)(4). Failure to satisfy any one of these preconditions precludes recovery, and may divest the court of jurisdiction to hear such a cause of action. Albright v. United States, 235 U.S. App. D.C. 295, 732 F.2d 181, 184 (D.C. Cir. 1984).

 Defendant casts into serious doubt plaintiff's ability to establish a number of the elements of a colorable Privacy Act claim for money damages. Giving us most pause in the present context are the first two prongs, the first of which requires us to ascertain whether it was "practicable" for the Division to seek leave information directly from plaintiff, and the second of which places the burden on plaintiff of demonstrating that the government's actions were "intentional or willful." 5 U.S.C. §§ 552a(e)(2), 552a(g)(4); Laningham v. United States Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). Courts have devoted considerable attention to ascertaining the meaning and scope of "intentional or willful" as used in the Privacy Act. A number of courts have looked first to language in that portion of the Act's legislative history which provides that the standard for recovery of damages under this provision is "somewhat greater than gross negligence." Analysis of House and Senate Compromise Amendments to the Federal Privacy Act, reprinted in 120 Cong. Rec. 40,405, 40,406 (1974); see Laningham, supra, 813 F.2d at 1242; Moskiewicz v. Department of Agriculture, 791 F.2d 561, 563 (7th Cir. 1986). As interpreted by the Court of Appeals for the District of Columbia Circuit, this language does not make the government "strictly liable for every affirmative or negligent action that might be said technically to violate the Privacy Act's provisions." Albright, supra, 732 F.2d at 189. Nor is it sufficient under the Act to demonstrate that the agency's conduct was not "inadvertent." Id.; Laningham, 813 F.2d at 1242. Instead, plaintiff must establish that the agency "flagrantly disregarded" one's rights under the Act, or acted "without grounds for believing [its actions] lawful." Id.; Albright, 732 F.2d at 189.

 In support of its actions, the government contends that Waters' superiors reasonably believed it to be impracticable to obtain information directly from Waters pertaining to his use of the February leave time. Pursuant to court order of August 21, 1987, the Divisions has submitted under seal affidavits of James Bennett and Kathleen Murphy, as well as accompanying exhibits relevant to this incident. *fn3" These materials reveal that defendant's contact with the Pennsylvania Board of Law Examiners was not an isolated event, but, as discussed above, was part of a larger inquiry into plaintiff's use of leave granted for discrete purposes. The documents raise doubts as to plaintiff's actual use of the March 1986 leave period during which he was to make himself available for jury duty. They also reflect the Division's concern, given these reasonable doubts, that Waters might not be a credible source of information relevant to the February 1986 leave period.

 The government having established, as a preliminary matter, that eliciting information from a third party was not inconsistent with the Privacy Act, the burden now shifts to plaintiff to raise a genuine issue of material fact as to whether the Division compiled information directly from plaintiff "to the greatest extent practicable," and whether such action, even if inconsistent with this initial requirement, constituted a willful or intentional violation of plaintiff's rights under the Act. Fed. R. Civ. P. 56; Laningham, supra, 813 F.2d at 1242 (employing burden-shifting approach articulated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986)). Plaintiff contends that the Division could readily have verified his presence at the bar examination by requesting that he produce documentary proof of his attendance. It is fair to assume, as plaintiff contends, that officers of the Civil Rights Division of the Justice Department, an entity with no shortage of lawyers, are cognizant of the highly formalized, strictly regulated context in which bar examinations are administered. Examinees are admitted to the examination room only on presentation of a pass or ticket which establishes their identity and right to attend, and later receive written ...


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