1991. Customs also indicated that a "successful" performance rating would be substituted for the 1988 "unsatisfactory" rating. Plaintiff was reassigned to the position of Deputy Director of the Office of Regulatory Audit, which she has held since January 13, 1991. The OSC issued a letter to Customs indicating that the reinstatement and rating upgrade constituted adequate corrective action.
Plaintiff disputes the adequacy of the reinstatement. She maintains that the new position was created to satisfy the OSC and that it lacks true management responsibilities. Plaintiff also seeks to have her employment record revised to reflect continuous employment in the SES rather than two years as a GS-15.
Defendants contend that the corrective action taken by Customs has rendered counts one and two of plaintiff's complaint moot. In count one, plaintiff names defendant Brady in his official capacity as Secretary of the Treasury and alleges that her removal from the SES constituted a violation of her First and Fifth Amendment rights. As relief, plaintiff requests a declaratory judgment that Treasury violated her First and Fifth Amendment rights, a name-clearing hearing, restoration to the SES in the same position she previously occupied or a comparable position, and amendment of her personnel records to reflect continuous employment in the SES.
"Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979); Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969). The test for mootness comprises two requirements: (1) there is "no reasonable expectation . . . that the alleged violation will recur," and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles, 440 U.S. at 632, 99 S. Ct. at 1383. Plaintiff contends that her reinstatement has not eradicated completely the effects of the alleged violation.
Plaintiff's claim for reinstatement is moot, despite her apparent dissatisfaction with the new SES position. The voluntary corrective action taken by Customs has provided plaintiff with the same relief as court-ordered reinstatement would have provided. After reviewing the description of plaintiff's new position, the Court is satisfied that its responsibilities are consistent with an SES post. The position is reasonably similar to plaintiff's former position, and it utilizes her training and skills. Although the Court recognizes plaintiff's desire for greater responsibility, it would not be appropriate to order Customs to allocate specific responsibilities to her.
Finally, whether Customs created the post to accommodate plaintiff's reinstatement or to satisfy the OSC is irrelevant. Plaintiff has received the relief that she requested in her complaint, and therefore her claim is moot. Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1016 (D.C. Cir. 1991).
Plaintiff's claim for a name-clearing hearing is also moot. The due process clause requires that a government employee receive "an opportunity to be heard in a meaningful manner" following a personnel action that implicates a liberty interest. See Doe v. Casey, 254 App. D.C. 282, 796 F.2d 1508, 1524 (D.C. Cir. 1986). Plaintiff received an adequate opportunity to address the charges against her and to clear her name at the hearing before the MSPB. In fact, the ALJ's recommendation in plaintiff's favor effectively cleared her name.
In light of the voluntary relief that Customs has provided, plaintiff's claim for a declaratory judgment that Customs violated her First and Fifth Amendment rights is moot. A claim for a declaratory judgment becomes moot when there is no longer "a substantial controversy between parties, having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Preiser v. Newkirk, 422 U.S. 395, 402, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975); Penthouse Int'l, 939 F.2d at 1016. Although plaintiff might well receive some personal satisfaction from a declaratory judgment, her reinstatement has eliminated the "substantial controversy" between the parties.
Plaintiff maintains that her claim is not moot because defendants have not amended her personnel records to reflect continuous employment in the SES.
The Court, however, would not order defendants to revise plaintiff's records even if she were in a position to prevail on the merits. It is preferable for plaintiff's records to reflect her actual employment history than to misrepresent her experience at Customs.
Plaintiff's claim against the OSC in count two is also moot. Plaintiff seeks an order requiring the OSC to investigate her claim and to seek corrective action. The OSC has completed its investigation and has recommended corrective action to Customs. Plaintiff argues that her claim is not moot because the OSC only issued a draft corrective action letter and because she never received a copy of the draft. That argument elevates form over substance. The OSC performed its function, and Customs complied with the recommendation to the OSC's satisfaction. Therefore, plaintiff has received the relief requested in count two.
With regard to count three of plaintiff's complaint, the Court grants summary judgment. Count three sets forth a claim against the Department of Treasury under the Privacy Act. The claim concerns the alleged disclosure of the fact that plaintiff's supervisor at HUD had placed her on a PIP before she joined Customs. The Privacy Act prohibits an agency from disclosing "any record which is contained in a system of records . . . except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." 5 U.S.C.A. § 552a(b). A system of records is "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C.A. § 552a(a)(5). Thus, the Privacy Act's prohibition against disclosure does not apply to information that is not retrievable by the name or other identifier of the subject. Savarese v. United States Dep't of Health, Educ. and Welfare, 479 F. Supp. 304 (N.D. Ga. 1979), aff'd, 620 F.2d 298 (5th Cir. 1980), cert. den., 449 U.S. 1078, 66 L. Ed. 2d 801, 101 S. Ct. 858 (1981); Smiertka v. United States Dep't of Treasury, 447 F. Supp. 221, 228 (D.D.C. 1978); cf. Baker v. Dep't of Navy, 814 F.2d 1381, 1383-84 (9th Cir. 1987), cert. denied, 484 U.S. 963, 98 L. Ed. 2d 390, 108 S. Ct. 450 (1987) (access provision of the Privacy Act only applies to records retrievable by plaintiff's name). The information that plaintiff had been placed on a PIP while employed at HUD is not contained within a system of records at Customs, nor is it retrievable by plaintiff's name. (Declarations of Scott, Eden, and Johnson). Accordingly, the Court grants defendants' motion for summary judgment as to plaintiff's Privacy Act claim in count three.
Finally, with regard to counts four and five of the complaint, summary judgment is appropriate for the reasons set forth in the defendants' motion for summary judgment. Consistent therewith, it hereby is
ORDERED, that counts one and two are dismissed as moot. It hereby further is
ORDERED, that defendants' motion for summary judgment is granted as to plaintiff's request for amendment of her personnel records in count one and as to counts three, four, and five.