United States District Court for the District of Columbia
December 31, 2003.
SHEILA A. McCREADY, et al., Plaintiff,
ANTHONY J. PRINCIPI, in his capacity as Secretary of the United States Department of Veterans Affairs, Defendant
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Sheila Clarke McCready served as Principal Deputy Assistant Secretary
("PDAS") for the Office of Congressional Affairs ("OCA") in the
Department of Veterans Affairs ("VA") from July 1998 to October 1999. As
a result of a confidential complaint on the hotline maintained by VA's
Office of Inspector General ("OIG"), the OIG performed an audit of OCA
and issued a "blistering" report that blamed Ms. McCready for
overspending OCA's budget and other kinds of mismanagement. See
Affidavit of Sheila Clarke McCready, Exh. 3 ("McCready Aff"). Before the
Court is a suit under the Privacy Act of 1 974, 5 U.S.C. § 552a
et seq., brought by Ms. McCready and her husband Robert E.
McCready, charging that the VA and VA OIG improperly maintained,
disclosed, refused access to, and/or refused to amend, five documents
that pertain to that audit. Anthony J. Principi is sued in his capacity
as Secretary of the VA.
The government has filed a motion for summary judgment to which the
McCreadys have filed an opposition. Following submission of the
government's reply, the McCreadys filed a motion for leave to file a
surreply. That motion is granted and the surreply has been considered by
the Court. At the Court's request, the parties also filed supplemental briefs
addressing the VA website and the VA Electronic Data Management System.
After a careful review of the pleadings, briefs, and the extensive
documentary record, the motion for summary judgment will be granted.
OIG received a confidential complaint about management in OCA on its
hotline on June 7, 1999. It performed an audit and, on October 29, 1999,
issued a draft audit report entitled, "Audit of Allegations Concerning
the VA Office of Congressional Affairs" ("Draft Audit Report").
Thereafter, a final audit report was issued on January 7, 2000, titled,
"Audit of Allegations Concerning the VA Office of Congressional Affairs
(OCA)," Report No. 99-00055-12 ("Final Audit Report"). OIG then performed
an audit and analysis of Ms. McCready's leave record and issued "Addendum
Report: Audit of Allegations Concerning the VA Office of Congressional
Affairs," Report No. 99-00055-047, on March 22, 2000 ("Addendum Report").
These three reports are at the heart of the McCreadys' complaint.
Two other documents are also challenged in this suit. Edward A. Powell,
Jr., Assistant Secretary for Financial Management, sent an "Information
Memorandum to the Secretary of Veterans Affairs" on January 19, 2000
("Powell Memo"). This memo concerned Ms. McCready's management of OCA's
budget and Mr. Powell's recommendation to former VA Secretary Togo West
for Ms. McCready's performance review. Lastly, the McCreadys challenge a
July 17, 2000, memorandum prepared by VA's Office of General Counsel and
VA's Office of Human Resources and Administration for former Secretary
West. Titled, "Subject: Analysis of OIG Audit of Congressional Affairs
Executive Summary" ("OGC Review"), this document has been
provided to Ms. McCready only in redacted form. Ms. McCready responded to the Final Audit Report on March 17, 2000.
Through counsel, she has requested that VA amend the Final Audit Report
and/or include her response with it, but OIG has refused to do so. Ms.
McCready responded to the Addendum Report on March 23, 2000. OIG has
refused her requests to amend the Addendum Report or include her response
with it. Ms. McCready also requested the Office of the Secretary, the
Office of the Assistant Secretary for Management, the Office of Assistant
Secretary for Human Resources and Administration, and OIG to expunge the
Powell Memorandum, or correct it, or attach Ms. McCready's responses to
it and provide anyone who possesses a copy of the Powell Memorandum with
a copy of Ms. McCready's responses. OIG agreed to place Ms. McCready's
responses in its file and to consider releasing her response with the
Powell Memorandum if OIG received any request for the memorandum under
the Freedom of Information Act ("FOIA")*fn1, see Surreply, Exh.
9; no such request has been received. The other offices informed Ms.
McCready that the Powell Memorandum was an official part of their files
and would not be expunged. The Office of General Counsel, which had two
copies of the Powell Memorandum, returned those copies to the Information
Management Service Office, where they were destroyed. See
Surreply, Exh. 10. On July 20, 2000, Secretary West responded to Ms.
McCready in a memo that stated, "After reviewing your point-by-point
response to the subject OIG audit, I have concluded that no disciplinary
action is warranted. The matter is closed." Pltfs.' Opp., Affidavit of
Joseph E. Cosby, Exh. 4.
Ms. McCready remains at the VA. She is now employed as Special
Assistant, GS-301, grade SES-6, VA-DoD Liaison, Office of the Chief of
Staff, Office of the Under Secretary for Health, in the Veterans Health
Administration ("VHA"). Her grade as a member of the Senior Executive Service level 6 is the highest career level available to the
federal civilian workforce. Ms. McCready obtained her career SES
appointment from Secretary West when she joined VA as PDAS in charge of
OCA and her grade level has not changed. On or about October 14, 1999,
Ms. McCready was detailed to the Office of the Secretary by order of
former Secretary West. She was detailed to VHA on November 22, 1999.
However, she asserts that VHA does not give her meaningful jobs and that
she is not assigned any management responsibility commensurate with her
grade. In her affidavit, Ms. McCready states that, in early 2000, when
she first joined VHA, she was told that she was "too hot to touch" and,
in August 2000, she was told that she was "broken pottery" and could not
have any congressional role because it would be "dead on arrival."
McCready Affidavit at ¶¶ 16-17. She complains that "[t]he OIG Reports
and the Powell Memorandum have completely damaged my reputation for
professionalism, competence and integrity." Id. at ¶ 19.
It appears from the surreply that Ms. McCready has charged the VA with
"extreme harassment" (1) based on her gender and her husband's physical
disability; (2) in reprisal for prior EEO activity; and (3) for her
opposition to alleged discriminatory practices at VA. As part of that
procedure, Ms. McCready obtained an affidavit from Robert J. Clayton,
Special Assistant to the Deputy Assistant Secretary for Human Resources
Management, and from Thomas J. McKeever, Jr., Deputy Assistant General
Counsel. Messrs. Clayton and McKeever were the authors of the OGC Review.
Mr. Clayton states that upon review of the Final Audit Report and the
We thought there were a number of findings that
would support that there were a number of
performance deficiencies, but since [Ms. McCready]
had not been given an official performance plan,
we were not able to assess how those deficiencies
might have affected her performance rating. In the
nature of conduct, we felt there were some things
that had potential and could be serious breaches
of conduct. For example, there were general
assertions in the OIG report, but they did not
take signed sworn statements. . . . The quality of evidence was less than that which
we felt could be relied upon in taking
actions. . . . We looked at this, and decided the
then-Secretary could pursue further
investigation. . . . Our recommendations were
presented to Secretary West, in the form of options
for what action he wanted us to take, such as did
he want more evidence gathered, or want more
Surreply, Exh. 1, Affidavit of Robert J. Clayton at ¶ 9. Mr.
McKeever's statement is similar:
In terms of disciplinary actions, our findings
were that while there was some information in the
audit, from the raw findings, that could form the
basis for disciplinary action on a number of
issues. [sic] We determined that further
development would be necessary to withstand third
party review of any significant disciplinary
action. Generally, the OIG collected insufficient
information, to hold [Ms. McCready] culpable for
Surreply, Exh. 2, Affidavit of Thomas McKeever at ¶ 9.
This lawsuit asks the Court to require OIG to amend the five documents
in question, to notify all recipients (including Congress) that the
documents have been amended, and to notify all recipients (including
Congress) that VA will take no disciplinary action against Ms. McCready.
The suit also seeks actual damages, to be proven at trial, as well as
attorney's fees and costs. No specific remedy is sought for Mr. McCready.
The McCreadys have filed a 47-page, 152-paragraph amended complaint
that asserts twelve separate counts against the defendant. For ease of
reference, the Court adopts the description of these counts provided by
"Count 1 alleges that the Final Audit
Report, Addendum Report and Powell Memorandum
were inaccurate, unfair and incomplete records,
and seeks amendment of those records under
sections 552a(d) and 552a(g);
"Count II alleges that VA OIG violated
section 552a(d)(1) by refusing to allow former
PDAS McCready to inspect or copy records;
"Count III alleges that VA violated
sections 552a(d) by failing to provide former
PDAS McCready with an `unedited' copy of the OGC
Review; "Count IV alleges that VA and VA OIG
violated sections 552a(e)(1) by retaining the
Addendum Report and the Powell Memorandum `in
flagrant disregard for' plaintiffs' rights and
without grounds for believing that defendant
could lawfully retain copies of the report;
"Count V alleges that VA and VA OIG failed
to maintain the Draft Audit Report, Final Audit
Report, Addendum Report and Powell Memorandum
with accuracy, relevance, timeliness and
completeness in violation of section 552a(e)(5);
"Count VI alleges that VA violated section
552a(b) by maintaining the Powell Memorandum in
the Electronic Data Management System (EDMS) and
giving it to the press;
"Count VII alleges that VA and VA OIG
disseminated the Draft Audit Report, Final Audit
Report, Addendum Report and Powell Memorandum to
persons other than another federal agency, and
that prior to disclosing these documents, VA and
VA OIG failed to assure the documents were
accurate, complete, timely and relevant in
violation of 552a(e)(6);
"Count VIII alleges that VA and/or VA OIG
willfully and intentionally failed to maintain
the Draft Audit Report, Final Audit Report,
and/or the Powell Memorandum with the necessary
accuracy, relevance, timeliness and completeness
to insure fairness in any determination about
former PDAS McCready's qualifications,
character, rights, opportunities, and/or
benefits and consequently violated section
552a(g)(1)(C) and that, as a result, she was
"Count IX alleges that VA violated section
552a(e)(10) by failing to establish appropriate
administrative, technical, and physical
safeguards to prevent the publication and other
safeguards regarding the OIG Reports and the
"Count X alleges that VA and VA OIG
violated section 552a(c) by failing to track
"Count XI alleges that VA and/or VA OIG
violated section 552a(e)(4) by failing to
identify the EDMS system and the OIG website as
Privacy Act systems of records; and
"Count XII alleges that VA OIG violated
section 552a(e)(2) by failing to collect
information from plaintiffs to the greatest
Memorandum in Support of Defendant's Motion for Summary Judgment at
2-4 ("Def. Memo"). Legal Standard
Summary judgment is appropriate when the record shows that no genuine
issue exists as to any material fact and the moving party is entitled to
judgment as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Summary judgment is not a
"disfavored legal shortcut[;]" rather, it is a reasoned and careful way
to resolve cases fairly and expeditiously. Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine
issue of material fact exists, the court must view all facts and
reasonable inferences in the light most favorable to the non-moving
party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio,
475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C.
Cir. 1994). Any factual dispute must be capable of affecting the
substantive outcome of the case to be "material" and "genuine." See
Anderson, 477 U.S. at 247-48; Laningham v. United States
Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). A party opposing
summary judgment "may not rest upon the mere allegations or denials of
his pleading, but . . . must set forth specific facts showing that there
is a genuine issue for trial." Anderson, 477 U.S. at 248.
Privacy Act Provisions
The Privacy Act "`safeguards the public from unwanted collection,
maintenance, use and dissemination of personal information contained in
agency records . . . by allowing an individual to participate in ensuring
that his records are accurate and properly used.'" Henke v. Dep't of
Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996) (citations omitted).
"To that end, the Act requires any agency which maintains a `system of
records' to publish at least annually a statement in the Federal Register
describing that system." Id.; 5 U.S.C. § 552a(e)(4)(A)-(I).
"[T]he determination that a system of records exists triggers virtually
all of the other substantive provisions of the Privacy Act, such as an individual's right to receive copies and to request
amendment of her records." Henke, 83 F.3d at 1459.
Not every identifiable document about an individual that is in a
government file is subject to the Privacy Act. See Baker v. Dep't of
Navy, 814 F.2d 1381, 1384-85 (9th Cir. 1987) ("[A]n individual's
ability to obtain access to a record under [FOIA] or because of personal
knowledge of its existence in a certain file, will not provide that
individual with access to the record or to any remedies under the Privacy
Act" unless the record is contained in a system of records). For almost
all circumstances, the Act extends only to those records that are in a
"system of records" which is a specific term of art. The Privacy Act
defines "system of records" as 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. § 552a(a)(5) (emphasis added). "This qualifying
language in the statute reflects a statutory compromise between affording
individuals access to those records relating directly to them and
protecting federal agencies from the burdensome task of searching through
agency records for mere mention of an individual's name."
Bettersworth v. FDIC, 248 F.3d 386
, 391 (5th Cir.), cert.
denied, 534 U.S. 1021 (2001). Only when "there is actual retrieval
of records keyed to individuals" in some way does the Privacy Act apply.
Henke, 83 F.3d at 1460 (retrieval capability not sufficient;
agency must in practice retrieve information using identifier);
5 U.S.C. § 552a(a)(5) (identifying number, symbol or other particular); §
552a(a)(4) (finger or voice print or photograph); see also, e.g.,
Betters-worth, 248 F.3d at 392 (records maintained in files
referencing banks with which plaintiff associated, not plaintiff
personally, were not subject to Privacy Act); Gowan v. United States
Dep't of the Air Force, 148 F.3d 1182
, 1191 (10th Cir. 1998) (file
marked "ethics" not a surrogate identifier for plaintiff; records not available under Privacy Act);
Springman v. United States Dep't of State, No. 93-1238, slip.
op. at 9 n.2 (D.D.C. Apr. 21, 1997) ("Plaintiff is not entitled to access
to this information under the Privacy Act because it was neither indexed
nor maintained under plaintiff's name, and thus was not maintained in a
`system of records' as defined by the Privacy Act").
Subsection (g) of the Act, 5 U.S.C. § 552a(g), waives the
government's immunity from a damages suit for four kinds of claims.
Subsection (g)(1)(A) waives immunity where any agency "makes a
determination under subsection (d)(3) of this section not to amend an
individual's record in accordance with his request. . . ."
5 U.S.C. § 552a(g)(1)(A). Subsection (d)(3), 5 U.S.C. § 552a(d)(3),
is tied to subsections (d)(1) and (d)(2), which specify that all three
subsections apply only when an agency "maintains a system of records." 5
U.S.C. § 552a(d)(1). Through this statutory scheme, any suit
asserting a right to require an agency to amend an individual's record
must first demonstrate that the record in question is kept in a "system
of records." Henke, 83 F.3d at 1459 ("[T]he determination that a
system of records exists triggers virtually all of the other substantive
provisions of the Privacy Act, such as an individual's right to receive
copies [subsection (d)(1)] and to request amendment [subsection (d)(2)]
of her record."); Baker, 814 F.2d at 1384-85 ("The statutory
language therefore suggests that the scope of accessibility and the scope
of amendment are coextensive. The Privacy Commission corroborates that
the statutory language requires this conclusion.").
Subsection (g)(1)(B) of the Act, 5 U.S.C. § 552a(g)(1)(B), waives
immunity from suit where an agency "refuses to comply with an individual
request under subsection (d)(1) of this section" to gain access to his
record or other information pertaining to him in a system of records. By
its reference back to subsection (d)(1), 5 U.S.C. § 552a(d)(1), the
Act makes it clear that any suit under this subsection must also
demonstrate that the record is kept in a "system of records." Kalmin
v. Dep't of the Navy, 605 F. Supp. 1492, 1495 (D.D.C. 1985) ("Under
the Privacy Act, records, to be producible, must be contained in a
`system of records.'").
Subsection (g)(1)(C) waives sovereign immunity for claims arising from
circumstances where an agency
fails to maintain any record concerning any
individual with such accuracy, relevance,
timeliness, and completeness as is necessary to
assure fairness in any determination relating to
the qualifications, character, rights, or
opportunities of, or benefits to the individual
that may be made on the basis of such record, and
consequently a determination is made which is
adverse to the individual.
5 U.S.C. § 552a(g)(1)(C). As with the subsections previously
discussed, it has been found that claims under subsection (g)(1)(C) must
meet the "system of records" requirement. Hubbard v. EPA,
809 F.2d 1, 6 n.8 (D.C. Cir. 1987) (referencing in dicta the
need for record to be within a "system of records" but dismissing §
552a(g)(1)(C) claim on other grounds); Wren v. Heckler,
744 F.2d 86
, 90 (10th Cir. 1984) (dismissing (g)(1)(C) claim because
records not maintained in a system of records). Dickson v. Office of
Pers. Mgmt., 828 F.2d 32, 39 (D.C. Cir. 1987), does not require
a different conclusion. The question in Dickson, answered in the
affirmative, was whether OPM, which conducted a pre-hire investigation
and maintained a personnel file containing erroneous facts, could be sued
even though the adverse decision made in reliance on the investigation
was made by another agency. The D.C. Circuit held that OPM was liable
because "[i]t is inconsistent with the expansive wording of section
(g)(1)(C) in particular, which creates a civil remedy action whenever
'any agency" fails to maintain `any record' in such
manner as to assure `fairness in any determination relating to the qualifications, character, rights, or opportunities
of, or benefits to the individual that may be made on the basis of such
record. . . ." Id. at 39. Because the record in Dickson
was indisputably contained in a "system of records," the Circuit Court
did not address this requirement. It would be contrary to the balance of
the statute to extract the Dickson language from its context and
to find that the government has waived its immunity for literally "any
record concerning any individual" that may be inaccurate. The Court finds
that a civil claim under subsection (g)(1)(C) must rest on a record
contained in a system of records. See Bettersworth, 248 F.3d at
391 (Privacy Act "protect[s] federal agencies from the burdensome task of
searching through agency records for mere mention of an individual's
Subsection (g)(1)(D) waives sovereign immunity for claims arising from
circumstances where an agency "fails to comply with any other provision
of this section, or any rule promulgated thereunder, in such a way as to
have an adverse effect on an individual." This provision has also been
interpreted and applied to require a "system of records." See e.g.,
Quinn v. Stone, 978 F.2d 126, 131 (3rd Cir. 1992); Clarkson v.
IRS, 678 F.2d 1368, 1377 (11th Cir. 1982).
The McCreadys dispute these interpretations of the Privacy Act and
assert that most of their claims "do not require proof of a
specific system of records." Plaintiffs' Memorandum in Support of Their
Opposition to Defendant's Motion for Summary Judgment at 4 ("Opp.")
(emphasis in original). They cite Albright v. United States,
631 F.2d 915 (D.C. 1980), for the proposition that claims arising under
5 U.S.C. § 552a(e)(7) do not require proof of a record contained in a
system of records and argue that many of their claims are based upon
analogous parts of subsection (e) so that no system of records requirement should be applied. Opp. at 4.
Subsection (e)(7) provides
Each agency that maintains a system of records
shall . . .
(7) maintain no record describing how any
individual exercises rights guaranteed by the
First Amendment unless expressly authorized by
statute or by the individual about whom the record
is maintained or unless pertinent to and within
the scope of an authorized law enforcement
5 U.S.C. § 552a(e)(7) (emphasis added). Because of concerns
about First Amendment rights, Albright and Clarkson v.
IRS both held that the language of subsection (e)(7) does not
require that the record in question necessarily be maintained in a system
of records. Albright, 631 F.2d at 919; Clarkson, 678
F.2d at 1376-1377. This analysis and reasoning do not apply to the other
subsections of § 552(e). See Clarkson, 678 F.2d at 1377
("The language of subsections (e)(1) and (e)(5) compels a different
analysis. Unlike subsection (e)(7), these subsections do not address the
protections afforded to individuals by the First Amendment. . . .").
Section (e) itself starts with reference to a system of records ("Each
agency that maintains a system of records shall. . . .") and the
distinction as to (e)(7) exists only because of constitutional concerns.
The analogy the McCreadys wish to draw between their Privacy Act claims
and the First Amendment protections under subsection (e)(7) fails because
there are no underlying constitutional contours to their claims.*fn2
We now turn to the heart of the case. The McCreadys' claims as to the
Draft Audit Report, the Final Audit Report, and the Addendum Report
(collectively, "OIG Reports"), are all subject to the system-of-records
requirement. The defendant has submitted declarations from Stephen
Gaskell, Director, Central Office Operations Division, VA Office of
Inspector General, Office of Audit; Dana Moore, PhD, Director, Operational Support Division, VA Office of
Inspector General; and Jon Wooditch, Assistant Inspector General for
Management and Administration, VA Office of Inspector General. These
declarations are detailed and non-conclusory. They demonstrate that the
OIG Reports are not in any OIG system of records but are maintained in
files in the Office of Audit. The affidavits also establish that these
OIG Reports are maintained and retrieved by the title of the report or
the report number, and not by Ms. McCready's name or other personal
identifier. The McCreadys present no evidence to the contrary. Because
the OIG Reports are not maintained in a system of records, plaintiffs'
claims to access to or amendment of those documents must fail.
Henke, 83 F.3d at 1462.
The plaintiffs have submitted an affidavit of counsel and argue in
their Opposition that discovery is needed to determine if the OIG Reports
are in a system of records. This argument misconstrues the burden of
proof and status of the case. In bringing their access/amendment claims
to court, the plaintiffs are limited under sections 552a(g)(1)(A) and (B)
to claims for access to or amendment of records in systems of records
that were specified by them at the administrative level and that were the
subject of any appeal and final agency decision. Plaintiffs identify the
request that underlies this part of their lawsuit in paragraph 70 of the
By letter hand-delivered on February 9, 2001, Ms.
McCready requested the OIG to amend the Final
Audit Report and the Addendum Audit Report to make
those documents accurate, complete and fair. By
letter dated March 12, 2001, Ms. McCready appealed
these decisions to the Office of General Counsel
pursuant to 38 C.F.R. § 1, 579(c).
Because the only Privacy Act request and appeal at issue concerning
the OIG Reports were directed exclusively to the OIG, only a possible
system of records within OIG is relevant on review of the administrative
record. Even if the OIG Reports are in systems of records over which
other VA offices have jurisdiction, there is no administrative
"determination" from such offices before the Court.*fn3
surreply argues that VA's regulations do not require a requester seeking
to amend a record to identify the system of records in which the
offending record may be found. Surreply at 7. This argument confuses the
issue. Plaintiffs asked the OIG to amend the OIG Reports; there is no
evidence (unlike the requests concerning the Powell Memorandum) that
Plaintiffs ever asked any other office to amend the OIG Reports or that
any other office refused to do so.*fn4
Exhaustion of administrative remedies is mandatory before litigation.
See Dickson v. Office of Pers. Mgmt., 828 F.2d 32, 40 (D.C. Cir.
1987); Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir.
1986); Blazy v. Tenet, 979 F. Supp. 10, 18-19 (D.D.C. 1997). The
defendant has proffered affidavit evidence that the OIG Reports are not in a system of
records within OIG. The plaintiffs have not countered that evidence with
anything but argument and a request for discovery into records that might
be maintained in other offices of VA as to which there is no outstanding
request or final agency action.
Counts I and II will be dismissed.
Access Claim in Count III
In Count III of the complaint, the McCreadys seek access to an
unredacted copy of the OGC Review. VA has refused to release a copy that
reveals the comments and recommendations submitted to Secretary West from
the Assistant Secretary for Human Resources and Administration and from
the General Counsel concerning Ms. McCready's responses to the Final
Audit Report and the Addendum Report. The OGC Review was prepared to
assist the Secretary in determining what, if any, discipline might be
imposed as a result of the OIG Reports. Plaintiffs argue that the
defendant has waived any attorney-client privilege or work product
privilege. This argument misses the mark. VA has refused to disclose an
unredacted copy of the OGC Review pursuant to 5 U.S.C. § 552a(d)(5),
which states, "nothing in this section shall allow an individual access
to any information compiled in reasonable anticipation of a civil action
or proceeding." The common law attorney-client and attorney work product
privileges are not invoked and do not affect the result.
There can be little argument that the OGC Report was prepared "in
reasonable anticipation of a civil action or proceeding." The OIG Reports
prompted strong responses from Ms. McCready, advancing the arguments as
to completeness, fairness and accuracy that she makes here. In the
unredacted portions of the document, the OGC Report identified the nature
of the kinds of discipline that might be imposed on a career member of
the SES. Depending on the choice of the Secretary among those options, a "proceeding" might well have occurred.
See Affidavit of Joseph Cosby, Exh. 3 (OGC Report) at 2 ("Normal
adverse action procedures require 30 days' advance notice to the employee
of the nature of the proposed action and the specific charges. The
employee is then provided an opportunity to make both an oral and a
written response to the deciding official, and to be represented by an
attorney in this process. The employee must be provided a written
decision, with specific reasons outlined. Finally, the employee against
whom an action is taken is entitled to appeal that decision to the MSPB
[Merit Systems Protection Board]."). The plaintiffs' arguments to the
contrary do not overcome the specific affidavit evidence submitted by the
defendant on this point, nor the nature and language of the OGC Report
The McCreadys argue that Messrs. Clayton and McKeever have given
affidavit evidence concerning their recommendations that demonstrates
some of the inaccuracies in the OIG Reports and that the McCreadys are
entitled to have those inaccuracies corrected. This argument is of no
assistance because the OIG Reports are not maintained by OIG in a system
of records and the Privacy Act does not apply to them. However, the two
affidavits have caused the Court to consider whether it can be said that
the Secretary has "waived" his right under 5 U.S.C. § 552a(d)(5) to
preclude access to Ms. McCready to an unredacted copy of the OGC Report.
Subsection (d)(5) states that "nothing in this section shall
allow" access to information compiled in anticipation of a civil action.
Since "shall" is a mandatory word, the Court concludes that the Secretary
has not waived his right to withhold the full recommendations of Messrs.
Clayton and McKeever under the Privacy Act.
Count III will be dismissed. Accuracy Challenge to OIG Reports and Powell Memorandum in Counts
I, V and VIII
As outlined earlier in this opinion, Count I alleges that the OIG
Reports and the Powell Memorandum are inaccurate and incomplete and that
the McCreadys are entitled to have them corrected. Count V alleges that
the VA and VA OIG failed to maintain the OIG Reports and the Powell
Memorandum with accuracy, relevance, timeliness and completeness. Count
VIII asserts that the VA and the VA OIG willfully and intentionally
failed to maintain these same documents with accuracy, relevance,
timeliness and completeness. The defendant argues that these allegations
should be dismissed because "[n]owhere in the 152 paragraphs of the
Amended Complaint have plaintiffs identified for the Court or for
defendant any portion of the [documents] that contains one fact
or item of personal information about plaintiffs that is not accurate,
relevant, timely, or complete." Def. Motion at 28 (emphasis in original).
The defendant's argument focuses on a particular limitation of the
Privacy Act. The statute allows for correction of facts but not
correction of opinions or judgments, no matter how erroneous such
opinions or judgments may be. See Peller v. Veterans Admin.,
790 F.2d 1553, 1555 (11th Cir. 1986) ("The Privacy Act allows for the
amendment of factual or historical errors. It is not, however, a vehicle
for amending the judgments of federal officials . . . as . . . reflected
in records maintained by federal agencies."). The opinions of agency
officials "may be subject to debate, but they are not subject to
alteration under the Privacy Act as long as the opinions are recorded
accurately." Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir.
1999); see also Blevins v. Plummer, 613 F.2d 767, 768 (9th Cir.
1980) (per curiam) ("Blevins requested correction not of an
error of fact, but of an error of judgment. Therefore, the Privacy Act
simply does not apply."). These principles have been frequently applied
in this Court. See Fields v. NRC, No. 98-1714 (EGS) (D.D.C.
May 12, 1999); Blazy v. Tenet, 979 F. Supp. 10, 20-21 (D.D.C. 1997), summarily affirmed, No.
97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Webb v. Magaw,
880 F. Supp. 20, 25 (D.D.C. 1995).
The complaint alleges "material factual allegations" that were "false
[and] misleading" in the OIG Reports and/or the Powell Memorandum but
gives scant details. See Amended Complaint at ¶¶ 24-26, 34,
40, 42, 62d 74.
Ms. McCready supplements the amended complaint with an affidavit. She
states that the Powell Memorandum is incomplete because it "fails to note
that Powell refused to provide me with financial information that he
claimed I needed to complete my proposed reorganization plan" and "fails
to note that on several occasions, VA officials approved (and the VA
ultimately implemented) a[n] organization plan substantially the same as
the plans I submitted." McCready Aff. at ¶ 9. The Court finds that
these omissions from the Powell Memorandum are not the kinds of "factual
or historical errors" to which the Privacy Act speaks. The Powell
Memorandum is the quintessential example of an opinion piece from one
executive to another, "which maybe subject to debate, but . . . not
subject to alteration under the Privacy Act." Reinbold, 187 F.3d
The McCready Affidavit states that the Draft Audit Report and the Final
Audit Report are inaccurate because they accused her of "over-expending
[sic] OCA's FY 1999 budget by almost $390,000 without authorization;"
"failing to initiate actions necessary to increase OCA's FY 1999 budget;"
"causing the `cost overruns' by permitting salary costs to increase in an
uncontrolled manner;" "failing to control overtime expenditures;"
"exceeding [her] authority by executing a[n] interagency work detail with
the Department of Defense;" and "failing to follow prescribed procedures
in seeking approval for a plan to reorganize the OCA." Id. at
¶ 11. Ms. McCready states that each of these facts is incorrect.
These points do not implicate personal information about Ms. McCready but, rather, the conclusions of OIG after its audit. By
seeking to "amend" the Draft Audit Report and Final Audit Report in this
fashion, Ms. McCready is really trying to re-write those documents
entirely. Ms. McCready understandably does not like the Inspector
General's opinions but the Privacy Act does not afford her an avenue to
The affidavits from Messrs. Clayton and McKeever do not change this
result. The affidavits essentially report that these gentlemen reviewed
the evidence amassed by OIG and were not in full agreement because the
evidence was not properly supported to allow significant discipline. In
the jurisprudence of the Privacy Act, this constitutes a difference of
opinion, not a difference of fact.
Ms. McCready's attack on the Addendum Report in her Affidavit goes to
the reliance by OIG on her personal household telephone records to
conclude that she had been absent from the OCA on various occasions when
"OIG had at its disposal other records . . . that it could have used to
document when I was present for work." McCready Aff. at ¶ 13. She
objects further to the nature of the audit because "OIG never asked me or
my husband, prior to publishing the Addendum Report, to confirm or deny
any allegations in the Addendum Report. . . . Both of us have had to
suffer the indignity of having our personal telephone records made
public." Id. at ¶ 14. These charges do not raise any issue
of incorrect personal facts in the Addendum Report and are not cognizable
under the Privacy Act.
The amended complaint identifies only two facts that were allegedly
erroneous in the Addendum Report: first, that telephone records provided
"reasonable support . . . to conclude that Ms. McCready did not attend a
U.S. Senate Finance Committee meeting on May 4, 1999," which Ms. McCready
asserts she did attend; and second, that "Ms. McCready was home on
January 12, 1999, a day on which she attended a meeting at the VA's
headquarters. . . ." Amended Complaint at ¶¶ 62 A&B. The first statement references a conclusion
which was actually tentative. The Addendum Report stated:
May 4, 1999-Call activity supports that the former
PDAS placed a high volume of calls to VACO phones
throughout the day from her government issued cell
phone. (In the absence of adequate support
that the PDAS attended a Senate Finance Committee
hearing or was conducting official VA
business off-site, record 8 hours of leave for
Addendum Report, Appendix 1 p.2. The Addendum Report did not state
as a matter of fact that Ms. McCready did not attend the Senate Finance
Committee hearing. Instead, OIG found that calls were made on Ms.
McCready's cell phone (not disputed by Ms. McCready) and that "adequate
support" was needed to place her at the Senate hearing. There is no
erroneous "fact" in this part of the Addendum Report that requires
As to the January 12, 1999, date, the Addendum Report stated:
Our review found that the telephone records of
call activity places the former PDAS at her
personal residence on the following official
workdays, January 11, 12, 13, 14, 15, 19, and 20,
1999. Call activity exists on those days from the
former PDAS's home residence to VA Central Office
phone extensions including OCA staff phones and
from OCA staff phones to the former PDAS's
residence between normal work hours.
Addendum Report at ii. Ms. McCready does not challenge the
fact that phone calls were made between her residence and VA
headquarters, but only the conclusion that because of these
admitted phone calls, she was not at work on January 12, 1999. The
Privacy Act is about the correction of facts, not opinions or
conclusions. Ms. McCready vehemently disagrees with the conclusions of
the OIG Reports but her disagreement goes to judgments and opinions, not
These allegations in Counts I, V and VIII will be dismissed. Adverse Determination Claims in Counts V and VIII
Counts V and VIII of the amended complaint allege that Ms. McCready has
suffered from one or more adverse determinations because the OIG Reports
and/or the Powell Memorandum were not maintained with accuracy,
relevance, timeliness, and completeness. Amended Complaint at ¶ 102
("Both the VA and the OIG made determinations about Ms. McCready using
the Draft Audit Report, the Final Audit Report, the Addendum Report,
and/or the Powell Memorandum."); ¶ 123 ("Various individuals,
governmental agencies, and other entities made adverse determinations
about Ms. McCready's qualifications, character, rights, opportunities,
and/or benefits because the VA and/or the OIG failed to maintain the
Draft Audit Report, the Final Audit Report, the Addendum Report, and/or
the Powell Memorandum with the necessary accuracy, relevance, timeliness,
and completeness."); ¶ 124 ("The VA and/or the OIG acted willfully
and intentionally. . . ."). The defendant moves to dismiss these
allegations on the basis that "[p]laintiffs have failedto identify
any adverse determination that is the subject of Counts V and
VIII." Defendant's Motion at 33 (emphasis in original).
These allegations are brought under 5 U.S.C. § 552a(g)(1)(C), which
allows suit when an agency "fails to maintain any record concerning any
individual with such accuracy, relevance, timeliness, and completeness as
is necessary to assure fairness in any determination . . . and
consequently, a determination is made which is adverse to the
individual." To establish aprima facie case under subsection
(g)(1)(C), a plaintiff must show that (1) she has been aggrieved by an
adverse determination; (2) the defendant failed to maintain her records
with the degree of accuracy necessary to assure fairness in the
determination; (3) the government's reliance on the inaccurate records
was the proximate cause of the adverse determination; and (4) the
government acted intentionally or willfully in failing to maintain accurate records.
Deters v. United States Parole Comm'n, 85 F.3d 655, 657 (D.C.
Cir. 1996); Dickson, 828 F.2d at 37). In addition,
[i]n order to establish that [VA] willfully or
intentionally failed to maintain [her] file with
sufficient accuracy to assure fairness . . . [Ms.
McCready] must prove that the agency "acted with
something greater than gross negligence."
Tijerina v. Walters, 821 F.2d 789, 799
(D.C. Cir. 1987). An agency acts in an intentional
or willful manner "either by committing the act
without grounds for believing it to be lawful, or
by flagrantly disregarding others' rights under
the Act" Albright v. United States,
732 F.2d 181, 189 (D.C. Cir. 1984). "The violation
must be so patently egregious and unlawful that
anyone undertaking the conduct should have known
it unlawful." Laningham v. United States
Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987)
(internal quotation marks omitted).
Deters, 83 F.3d at 660. Subsection (g)(1)(C) "`also
creates a civil remedy when the agency maintains a challenged record that
is the basis for an adverse determination made by another party.'"
Id. at 661 n.5 (citing Dickson, 828 F.2d at 36).
The "adverse determinations" of which Ms. McCready complains in Count V
are "the determinations the VA and/or the OIG made using" the OIG Reports
and/or the Powell Memorandum. Amended Complaint at ¶ 1104. Count VIII
alleges adverse determinations about Ms. McCready's qualifications,
character, rights, opportunities, and/or benefits made by unspecified
individuals, governmental agencies, and other entities. Ms. McCready
asserts that she incurred "actual damages" resulting from the alleged
Privacy Act violations. Amended Complaint at ¶¶ 105, 123.
The record reveals that Ms. McCready joined the VA as a career SES
executive, level 6, on July 5, 1998, and that she has maintained that
level without change to date. While she worked initially as the PDAS, Ms.
McCready was detailed to the Office of the Secretary on or about October
14, 1999, and then detailed to the Office of the Under Secretary for
Veterans Health Administration on November 22, 1999. The affidavits of Messrs. Clayton and
McKeever and the July 2002 memo from Secretary West all indicate that no
adverse determinations have been made. Other than the bare allegations of
the amended complaint, the McCreadys offer no facts to support the
argument that adverse determinations have been made or to specify what
they might be.*fn5 It is insufficient to respond to a motion for summary
judgment with argument and no facts. See Anderson, 477 U.S. at
248 (A party opposing summary judgment "may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific
facts showing that there is a genuine issue for trial."); Celotex
Corp., 477 U.S. at 324 (when opposing a motion for summary judgment,
a party must "by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.") (internal quotations omitted).
These allegations in Counts V and VIII will be dismissed.
Adverse Effect Claims in Counts IV, VI, VII, IX, X, XI
The remaining counts in the amended complaint can be grouped as falling
under subsection (g)(1)(D), which allows suit when an agency has failed
to comply with subsections (g)(1)(A), (B) or (C), or any rule promulgated under those subsections, and, as a
result, an individual has suffered an "adverse effect."
5 U.S.C. § 552a(g)(1)(D).
"The adverse effect requirement of (g)(1)(D) is, in effect, a standing
requirement." Quinn, 978 F.2d at 135. A plaintiff must also
show a causal connection between the agency violation and the adverse
effect. Albright v. United States, 732 F.2d at 186. The
government argues that the plaintiffs have failed to allege facts in the
amended complaint that would support either an adverse effect or that any
adverse effect results from a violation of the Privacy Act. Asserting
that these are jurisdictional deficiencies, the defendant moves for
dismissal of all the counts outlined above. See Def. Motion at
Surely the government's argument is too facile. The Court agrees that
the amended complaint and plaintiffs' brief and submissions show no
special adverse effect on Mr. McCready that would be actionable and his
complaint will be dismissed.*fn6 But Ms. McCready complains that her
reputation has been significantly damaged by publication of the OIG
Reports and the Powell Memorandum and that she is cut off from work
assignments commensurate with her grade. This is sufficient to constitute
an adverse effect under subsection (g)(1)(D). Albright, 732 F.2d
at 186 (emotional trauma constitutes an adverse effect). 1. Count IV*fn7
Nonetheless, the Court will dismiss Count IV. This count asserts that
the Addendum Report and the Powell Memorandum contained information that
was not relevant or necessary to any purpose the VA was required to
accomplish. The specific information complained of in the Addendum Report
was the use of the McCreadys' personal home telephone records to
determine Ms. McCready's leave status. Amended Complaint at ¶ 90.
Nothing specific from the Powell Report is identified. The Court finds
that the OIG properly investigated allegations of leave abuse by Ms.
McCready and that the public's interest in resolution of that
investigation outweighs the McCreadys' interest in having the number and
extent of their personal telephone conversations known. See Sullivan
v. Veterans Administration, 617 F. Supp. 258, 261 (D.D.C.
1985).*fn8 The Court also finds that it was entirely proper for Mr.
Powell to alert the Secretary of Mr. Powell's opinions concerning Ms.
McCready's work performance in preparation for the Secretary's annual
evaluation. 2. Count VI.*fn9
Count VI alleges publication of the Final Audit Report and the Addendum
Report on the Internet and that Mr. Powell, the Assistant Secretary for
Public and Intergovernmental Affairs, and an OIG spokesperson discussed
the Final Audit Report with the media. The allegations in Count VI as to
the Final Audit Report and the Addendum Report will be dismissed. These
documents are not in a system of records within OIG as required by
5 U.S.C. § 552a(b), which is the Privacy Act provision relied upon by
plaintiffs. See 5 U.S.C. § 552a(b) ("No agency shall
disclose any record which is contained in a system of records . . ."). In
addition, OIG was under an obligation to treat the confidential complaint
about mismanagement of OCA as a serious matter. When the Final Audit
Report was completed, OIG considered and evaluated whether it was covered
by the Privacy Act. Concluding that it was not, OIG published the Final
Audit Report on the VA Internet site (as OIG has published its other
audit results in the past). Ms. McCready may have a legitimate privacy
interest in maintaining the privacy of the OIG Reports but there is also
"the public's interest in knowing what public servants may be involved in
wrongdoing." Sullivan, 617 F. Supp. at 260. As PDAS in charge of
OCA, Ms. McCready was a high-ranking official of VA and in a
high-visibility position. She is an experienced federal employee, having
worked in the Executive and Legislative Branches of government since
1981. McCready Aff, Exh. 5. "[T]he privacy interests of the plaintiff, in [her] capacity as a federal employee, are diminished
due to the public interest in knowing how public employees are performing
their jobs." Sullivan, 617 F. Supp. at 260-261. For these
reasons, the Court finds no Privacy Act violation in releasing the Final
Audit Report or the Addendum Report to the Internet. The bare allegations
in the complaint concerning contacts with the media regarding the Final
Audit Report are not addressed in briefer further elaborated upon and
will also be dismissed.*fn10
The Powell Memorandum raises a more serious issue, however. That
document is clearly a confidential memo concerning the performance review
of a high-ranking official and is clearly covered by the Privacy Act. The
government initially defended against these allegations on the basis that
Ms. McCready suffered no adverse effect. Whether Ms. McCready could
distinguish an adverse effect from dissemination of the Powell Memorandum
or its alleged placement on the EDMS from the effect of posting the Final
Audit Report on the Internet is uncertain but the Court has no trouble
concluding that Ms. McCready has sufficiently alleged that distribution
of the Powell Memorandum injured her reputation.
To maintain any action based on the Powell Memorandum, Ms. McCready
must overcome one additional hurdle. Section 552a(g) of the Privacy Act
requires proof that the agency acted in a manner that was "intentional or
willful." 5 U.S.C. § 552a(g)(4). Ms. McCready alleges that VA's
actions flagrantly disregarded her rights under the Act. Amended
Complaint ¶ 115. See Albright v. United States, 732 F.2d at
188-89. Essentially, she alleges that not only did somebody at VA "leak" the Powell Memorandum to the press but also that the VA
placed the Powell Memorandum on the EDMS system where it was available
for review by employees who had no need to know of it.
The EDMS is clearly a Privacy Act system of records and has been so
declared by VA in a Federal Register notice found at 65 Federal Register
25534 (2000). EDMS "is a Department-wide electronic tracking system
primarily used for managing the workflow processing of the 25-30, 000
pieces of correspondence received yearly at the VA Central Office . . .
and . . . other workflow items." VA Supplemental Memorandum at 8 ("VA
Supp."). The tracking system is organized by folders. Through affidavit
evidence that is detailed and specific, VA demonstrates that an EDMS
folder was created for the Powell Memorandum for tracking purposes
but that the document itself was never scanned into EDMS
electronically. Thus, the Powell Memorandum does not exist in any
searchable format within EDMS and cannot be retrieved either
electronically or in manual form through the use of any personal
identifier.*fn11 The Court can find no Privacy Act violation in
establishing a tracking folder for the Powell Memorandum when there is no
access to the underlying document on the EDMS system. Similarly, without
more evidence of the perpetrator of the alleged "leak" and that the
"leak" was intentional and wilful, no violation of the Privacy Act can be
determined. Count VI will be dismissed. 3. Count VH.*fn12
Count VII will be dismissed. Section 552a(e)(6) on which it is based
applies only to records that are contained in a system of records. As
this Court has found that the OIG Reports are not contained in a system
of records, the allegations in Count VII concerning the OIG Reports are
without merit. Even though the Powell Memorandum is contained in a system
of records (the defendant does not argue otherwise), the Court finds that
it reflects only Mr. Powell's opinion and not Privacy Act facts and, as
such, was "accurate, complete, timely, and relevant for agency purposes."
4. Count IX.*fn13
Ms. McCready alleges that the agency published the Powell Memorandum on
the EDMS system and also leaked it to the press and that she suffered
"substantial harm, embarrassment, inconvenience [and] unfairness" as a
result. Amended Complaint at ¶ 132. These actions are alleged to have
violated VA's and/or VA OIG's obligations under 5 U.S.C. § 552a(e)(1)
to establish appropriate safeguards to insure the security and
confidentiality of the Powell Memorandum. As discussed above, the Powell
Memorandum has not been published on the EDMS system, although there is a
folder referencing the document; this element of this Count must be
dismissed for lack of evidence. The Court agrees and recognizes that a "leak" of the
Powell Memorandum to the press might have caused some embarrassment to
Ms. McCready and harm to her reputation and that it would be "unfair" to
so publicize internal personnel evaluations. It would appear that no one
can identify the individual who "leaked" the Powell Memorandum but VA's
description of the careful manner in which the document was created, hand
carried for delivery, and not entered into EDMS supports the
department's position that it adopted appropriate administrative,
technical and physical safeguards for the memorandum. The motion for
summary judgment will be granted as to the Powell Memorandum because
there is no proof that VA failed to adopt safeguards for it.
Ms. McCready also alleges that the Draft Audit Report was read aloud to
her former staff in OCA with the same harmful effects. The motion for
summary judgment will be granted as to these allegations since the Draft
Audit Report is not in an OIG system of records covered by the Privacy
5. Count X.*fn14
Section 552a(c) requires agencies to track disclosures of a record from
any system of records. It does not apply to the OIG Reports because they
are not within a system of records in OIG. It does apply to the Powell
Memorandum to the extent it is deemed to be in the EDMS system of records
by virtue of the folder that references the document. This is the system
of records identified by both parties, and over which they have argued
extensively. VA has demonstrated that the Powell Memorandum itself was
never scanned into EDMS and only a tracking folder for the document was
created in the system. Therefore, there is no possible disclosure of the
Powell Memorandum from that source that might have been tracked. VA has not explained how
the news media received a copy of the Powell Memorandum but there is no
allegation, much less evidence, that the Powell Memorandum was released
from a system of records, rather than by the kind of rogue "unnamed
source" that inhabits Washington, D.C. The motion for summary judgment on
Count X will be granted.
6. Count XI.*fn15
The plaintiffs allege that the VA must treat its website as a system of
records and that the Final Audit Report is posted on the website.*fn16
See Compl. ¶ 141 ("the VA has failed to post a notice in the
Federal Register that its website is a `system of records' for the
purposes of the Privacy Act"); Id. ¶ 142 ("the VA continues
to deny that it maintains the Final Audit Report and the Addendum Report
in a system of records despite the fact that both can be found on the
VA's website"); and Id. ¶ 146 ("Ms. McCready has been
adversely affected by the VA's failure to properly identify each of its
systems of records."). The VA asserts that its website is not a
system of records subject to the Privacy Act because the OIG does not
retrieve documents therefrom by the use of any personal identifier and,
equally importantly, the website is OIG's electronic reading room for the
public in compliance with 5 U.S.C. § 552(a)(2), the Electronic
Freedom of Information Act Amendments of 1996.*fn17 Plaintiffs argue that the Privacy Act defines a "system of records" as
any "group of records . . . from which information is retrieved by the
name of the individual. . . .," 5 U.S.C. § 552a(a)(5), and that the
retrieval can be by persons within the government agency or, as in this
case, by members of the public accessing the VA OIG website. VA responds
that the relevant "retrieval" must be by the federal agency itself. The
Court concludes that VA has the better argument.
The statute must be interpreted and applied according to its meaning
and context. Henke v. Dep't of Commerce, 83 F.3d 1453, 1459
(D.C. Cir. 1996). "[R]etrieval capability is not sufficient to create a
system of records. `To be in a system of records, a record must . . .
in practice [be] retrieved by an individual's name or other
personal identifier.'" Id. (citations omitted; emphasis in
original). The McCreadys' theory would render the existence of a Privacy
Act system of records dependent on whether members of the public actually
adopted a practice of retrieving documents from an agency website by use
of an individual's name or identifier. The unpredictability of this
formulation is inconsistent with the rights assured to the public and the
obligations imposed on federal agencies by the Privacy Act. It is also
inconsistent with the guidelines of the Office of Management and Budget
("OMB"), which are "`owed the deference usually accorded interpretation
of a statute by the agency charged with its administration. . . .'"
Id. at 1461 (citation omitted). OMB regulations limit the
definition of a system of records, inter alia, to situations in
which "`the agency does, in fact, retrieve records about
individuals by reference to some personal identifier.'" Id.
(citation omitted) (emphasis added). Because of the purpose and context
of the Privacy Act, the Court finds that the practice of retrieval by name or other
personal identifier must be an agency practice to create a system of
records and not a "practice" by those outside the agency.
For these reasons, Count XI will be dismissed.
8. Count XII.*fn18
Finally, the McCreadys allege that OIG should have collected
information (for the Addendum Report) directly from them and not
circuitously through a subpoena for their personal telephone records
without any questioning or opportunity for comment before the Addendum
Report was issued. See, e.g., Waters v. Thornburgh,
888 F.2d 870, 873 (D.C. 1989) ("In the context of an investigation that
is seeking objective, unalterable information, reasonable questions about
a subject's credibility cannot relieve an agency from its responsibility
to collect that information first from the subject."). This Count will be
dismissed. VA attempted first to collect information on Ms. McCready's
leave record from Ms. McCready. She responded with two memos, including
one dated December 10, 1999 (Exh. 1 to McCready Aff), a response Deputy
Secretary Hershel W. Gober found disappointing and "very legalistic."
Exh. 2 to McCready Aff. "I would have preferred that you simply state
whether you did or did not take leave on the dates where the IG noted the
apparent time and attendance system discrepancies, rather than stating
that you found no evidence proving you were on leave." Id. Mr.
Gober advised Ms. McCready that he had turned over the information from
Ms. McCready to the OIG "so that they may take whatever additional action
they deem appropriate to resolve the discrepancies. . . ." Id.
He also stated that he "accept[s] your memoranda as your good-faith,
written assurance that you have detailed all leave taken between July,
1998, and July, 1999." Id. The simple fact is that Ms. McCready's memos
did not fully resolve the questions regarding her leave history and OIG,
having heard first from her, used other avenues to attempt to tie up
loose ends. Whether OIG correctly interpreted the phone records is not
the issue here. It is clear that the agency fulfilled its duty by asking
Ms. McCready directly for information. Count XII will be dismissed.
The motion for summary judgment is granted. A separate Order
accompanies this memorandum opinion.