United States District Court, D. Columbia
August 30, 2005.
STEVEN IVEY, Plaintiff,
JOHN W. SNOW, Secretary, U.S. Department of the Treasury, Defendant.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
This matter is before the Court on defendant's motion for
summary judgment.*fn1 Having considered the motion,
plaintiff's opposition, and the entire record of this case, the
Court will grant summary judgment for defendant.
Plaintiff, a former employee of the United States Department of
the Treasury, Internal Revenue Service ("IRS"), brings this action under the Privacy
Act, 5 U.S.C. § 552a.*fn2 Compl. at 1. Generally, plaintiff
objects to the maintenance of records pertaining to him, and
their alleged disclosure without his consent. He alleges:
While employed and during subsequent processing of my
termination for whistle-blowing activities the agency
kept records of the plaintiff's expressing and
exercising his rights particulary [sic] in my refusal
to incriminate myself as protected by my Fifth
Ammendmant [sic] Right. The documents recorded and
maintained by the agency are part of the records
given to various corrective agencies without my
consent. These inculed [sic] a document wherein my
social security number was used in an unofficial
manner and without my consent . . . so as to coerce
me to incriminate myself and to discredit the
processing of my complaints to the the [sic] Tax
Commis[s]ioner's office, the Inspector General for
Taxation, DOJ, and the appropriate Legislative
Commettees [sic]. Further documentation is associated
with other employees . . . wherein these people
assisted and made records of the plaintiff's
activities in pursuit of corrective action.
Compl. at 1-2. He demands unspecified "corrective action,"
amendment of the agency's records and compensatory damages. Id.
A. Standard of Review
Summary judgment is granted to the movant if it has shown, when
the facts are viewed in the light most favorable to the
non-movant, that there are no genuine issues of material fact in
dispute and that the movant is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Fed.R.Civ.P. 56(c). A material fact is
one "that might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). When evaluating a summary judgment motion,
"[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge." Id. at 255; Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). The
party opposing a motion for 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 v. Liberty Lobby, Inc., 477 U.S. at 248;
see also Jackson v. Finnegan, Henderson, Farabow, Garrett &
Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).
B. Defendant's Motion for Summary Judgment
The Privacy Act, generally, prohibits the disclosure of
information in an agency's records about an individual, unless
that individual submits a written request for such disclosure or
consents to such disclosure in writing. See 5 U.S.C. § 552a(b).
There are several exceptions to this general rule, two of which
are relevant here. First, disclosure of a record "to those
officers and employees of the agency which maintains the record
who have a need for the record in the performance of their
duties" is allowed. 5 U.S.C. § 552a(b)(1). Second, disclosure of
a record to another agency is allowed for "routine use."
5 U.S.C. § 552a(b)(3). The term "routine use" means, "with respect to the
disclosure of a record, the use of such record for a purpose
which is compatible with the purpose for which it was collected."
5 U.S.C. § 552a(a)(7).
1. Agency Records Pertaining to Plaintiff
Given plaintiff's employment with and subsequent litigation
against the Internal Revenue Service, it is hardly surprising
that IRS maintained records pertaining to plaintiff. An attorney with IRS' Office of Chief Counsel investigated and described the
records maintained by the agency pertaining to plaintiff at the
time he filed the instant civil action. Fisher Decl., ¶ 4.
The IRS maintains files for use in representing the agency
against a complaint filed by plaintiff before the Equal
Employment Opportunity Commission ("EEOC"). Fisher Decl., ¶ 7. Of
the three files retrieved from the IRS' Office of the Associate
Chief Counsel (General Legal Services), two contained copies of
official proceeding files prepared by the Treasury Department's
Equal Opportunity Program ("EOP"). Among the documents in these
files are those "gathered by the EOP, either through its own
investigative efforts or obtained from the plaintiff, during the
EOP's review of the plaintiff's complaint of employment
discrimination." Id., ¶ 7. The third file is a litigation
correspondence file, containing copies of correspondence from
plaintiff to IRS, from EOP to IRS, EEOC notices and orders,
correspondence from courtappointed mediator, and IRS filings with
The IRS' General Legal Services office maintains a file
compiled for use in "defend[ing] the agency against a complaint
filed by the plaintiff with the Merit Systems Protection Board
(MSPB)." Fisher Decl., ¶ 8. It contains copies of MSPB opinions
and orders, correspondence from plaintiff to the MSPB and to the
IRS, filings by the IRS with MSPB, intra-agency e-mails and
transmittal memoranda, plaintiff's performance appraisal,
employee's notes, witness interview data sheets, and plaintiff's
correspondence to U.S. Office of Special Counsel. Id.
The IRS' Legislative Affairs Office reviews correspondence sent
by the IRS to any member of Congress or legislative committee,
and maintains records of its work product. Fisher Decl., ¶ 9.
There are no files containing correspondence from the IRS to
Congress regarding plaintiff. Id. The Employee Issues Branch of the Workforce Relations Office
maintains a file created in response to plaintiff's November 29,
1999 complaint letter to the Commissioner of the IRS. Fisher
Decl., ¶ 10(a) & Ex. G. In the file are copies of incoming
correspondence from plaintiff, responsive correspondence from the
IRS, intra-agency e-mails and faxes, and employee notes. Id., ¶
The Treasury Inspector General for Tax Administration ("TIGTA")
received a complaint from plaintiff alleging misconduct by other
IRS employees. Fisher Decl., ¶ 11. TIGTA records include a
complaint referral memorandum, report of inquiry, investigator
notes, intra-agency faxes, and plaintiff's initial complaint
(plaintiff's name redacted). Id.
2. Disclosure of the Agency's Records Pertaining to Plaintiff is
Authorized under the Privacy Act
a. Intra-Agency Disclosure
Defendant demonstrates that the IRS compiled and maintained
records for use in defending the agency before the EEOC and the
MSPB against plaintiff's employment discrimination complaints.
See Fisher Decl., ¶¶ 6-8, 11. Maintenance of such files is
permissible under the Privacy Act, as the files pertain to
personnel-related litigation. See 66 Fed. Reg. 63,863 (Dec. 10,
2001). These records were shared among IRS employees in the
course of receiving, processing, investigating, or litigating
these employment claims. Such disclosure without plaintiff's
consent in these circumstances is permitted under the Privacy
Act. See, e.g., Pippinger v. Rubin, 129 F.3d 519, 529-31
(10th Cir. 1997) (identity of subject of investigation by
supervisor who was investigating allegations of subject's
misconduct to employees assisting in investigation); Howard v.
Marsh, 785 F.2d 402, 410 (10th Cir. 1982) (disclosure of
personnel records to agency attorney and personnel specialist for purpose
of preparing response to discrimination complaint).
Similarly, the IRS compiled and maintained records pertaining
to complaints that plaintiff submitted to the Commissioner of the
IRS and to TIGTA. See Fisher Decl., ¶¶ 10, 10(d), 11, and
11(d). Disclosure of such records within the IRS, in order that
plaintiff's complaints could be investigated, is permitted under
the Privacy Act.
b. Inter-Agency Disclosure
Defendant also demonstrates that the only disclosures to other
agencies occurred for the purpose of litigating plaintiff's
claims before the EEOC and MSPB. See Fisher Decl., ¶¶ 7(b),
8(b). Contrary to plaintiff's allegations, there is no indication
that the IRS sent documents to TIGTA, the Department of Justice,
the U.S. Office of Special Counsel, to any legislative committee,
or to any other agency. Id., ¶¶ 7(d), 8(d), 9, 10(b),(d),
11(b). The agency's files, however, include copies of
correspondence and complaints that plaintiff sent to these
entities. Id., ¶¶ 7(d), 8(d), 10, 11. Insofar as plaintiff
alleges the unlawful disclosure of his Social Security number,
the number appears in the relevant agency files (litigation
correspondence file) only on a memorandum that plaintiff himself
attached as an exhibit to his April 17, 2003 letter to the EEOC.
Fisher Decl., ¶ 7(c) & Ex. B, C.
Defendant thus demonstrates that the IRS' maintenance and
disclosure of records pertaining to plaintiff are allowed under
the Privacy Act. Plaintiff has no reasonable objection to the
IRS's disclosure of information in the course of administrative
proceedings initiated by plaintiff himself. Nor can plaintiff
find fault with defendant for maintaining records consisting of correspondence that he sent to IRS or to other federal
entities. The Court identifies no violation of the Privacy Act,
and, therefore, will grant defendant's motion for summary
judgment. An Order consistent with this Memorandum Opinion will
be issued separately on this same date.
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