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McCready v. Nicholson

September 13, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


On remand from the D.C. Circuit*fn1 and at the invitation of this Court, the Defendant filed a motion for partial summary judgment in this case arising under the Privacy Act, 5 U.S.C.§ 552a. See Def.'s Mem. in Supp. of Mot. for Partial Summ. J. ("Def.'s Mem.") [Dkt. #78]. The motion addresses only Counts VI, IX and X of the Amended Complaint insofar as they relate to the alleged distribution of specific Inspector General audit reports beyond the Office of the Inspector General ("OIG") in the Department of Veterans Affairs ("VA"). The rest of the case will require some discovery before its resolution and the Court aims here to clear out the underbrush. The Plaintiff*fn2 opposes the motion, arguing that she needs discovery. See Pl.'s Opp. to Def.'s Mot. for Partial Summ. J. ("Pl.'s Opp.") [Dkt. #86]. The Court declines to order discovery on a simple matter over which there is no genuine issue of material dispute.*fn3 It will grant the motion for partial summary judgment.


Plaintiff Sheila Clarke McCready was the Principal Deputy Assistant Secretary ("PDAS") for the Office of Congressional Affairs ("OCA") in the United States Department of Veterans Affairs ("VA") in June 1999. See Am. Compl. ¶ 1. At that time, the VA Inspector General began an audit of the OCA in response to a confidential complaint of fiscal mismanagement and operational abuse. See McCready, 465 F.3d at 4. As PDAS, Ms. McCready was responsible for supervising and managing all operations and personnel in that Office and the audit, therefore, concentrated on her activities. See Def.'s Statement of Material Facts as to Which There is No Genuine Issue ("Def.'s Facts") ¶ 2. The alleged improprieties involved salary and expense account over-expenditures, overtime abuses, and fiscal mismanagement in the OCA. See Def.'s Facts ¶ 6.

On October 21, 1999, the Secretary of the VA relieved Ms. McCready of her responsibilities and moved*fn4 her to the Office of the Secretary. See McCready, 465 F.3d at 4. She was later moved, on November 22, 1999, to the Office of the Under Secretary for Veterans Health Administration. Id.

The Inspector General ("IG") produced a Draft Audit Report ("Draft") to the Assistant Secretary for Policy and Planning on October 29, 1999. Id.; Def.'s Facts ¶ 4. A Final Audit Report ("Final") issued on January 7, 2000, and was sent to various VA officials, the Office of Management and Budget, the General Accounting Office and various congressional committees. Id. The IG issued an Addendum Audit Report ("Addendum") on March 22, 2000, which was sent to the same recipients (collectively the ("IG Reports"). Id. The IG posted the Final and Addendum reports on its website in spring 2000. Id.

The Secretary of the VA asked the General Counsel's Office and the Office of the Assistant Secretary for Human Resources and Administration to determine whether the IG Reports "provide[] a basis for an adverse or other action against" Ms. McCready. Id. at 5. The General Counsel and the Assistant Secretary reviewed the IG Reports and Ms. McCready's responses and made a recommendation to the Secretary on July 17, 2000 ("GC/HR Review"). Id. "After reviewing [Ms. McCready's] point-by-point response to the audit," the Secretary "concluded that no disciplinary action is warranted." Id. He so advised Ms. McCready and informed her that "[t]he matter is closed." Id.

On February 8, 2001, Ms. McCready asked the IG to correct several perceived errors in the Final and Addendum reports, expunge the entire reports in light of those perceived errors, or, in the alternative, incorporate her response. See Def.'s Facts ¶ 9. The IG denied the request for several reasons, including that the IG Reports were not maintained in a Privacy Act system of records so that the provisions of the Privacy Act upon which Ms. McCready relied did not apply. Id. She appealed this decision to the VA's General Counsel. Id. ¶ 10.

On March 29, 2001, again relying on the Privacy Act, Ms. McCready asked the IG to release various documents related to the audit. Id. ¶ 11. The IG responded that "records pertaining to [Ms. McCready] are not maintained in a Privacy Act system of records" and "therefore, we are processing [the] letter as a [Freedom of Information Act ("FOIA"), 5 U.S.C. § 552] request." Id. Ms. McCready does not complain here of the change.

The IG Reports contained a distribution list which identified the eight offices to which the Final and Addendum reports were distributed: the Secretary's immediate office, Assistant Secretary for Financial Management, Assistant Secretary for Human Resources and Administration, Assistant Secretary for Planning and Analysis, General Counsel, Assistant Secretary for Public and Intergovernmental Affairs, Deputy Assistant Secretary for Public Affairs, and the Assistant Secretary for Congressional and Legislative Affairs. See id. ¶ 14; see also Pl.'s Facts ¶ 14. One reason for the Circuit's remand of this case was to allow the record to be developed as to whether any of these Offices maintains the IG Reports in a Privacy Act system of records. See McCready, 465 F.3d at 15. Ms. McCready had not contacted any of the relevant Offices until March 2007, when she wrote to each and asked that the IG Reports be amended. See Def.'s Facts 13-14; see also Pl.'s Facts 13-14. Only the Office of the General Counsel, the Office of the Secretary, and the Office of Human Resources still have copies of the IG Reports. See Def.'s Facts; see also Def.'s Supp. Decls. [Dkt. #100].


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.


The Privacy Act, 5 U.S.C. § 552a, seeks "to protect the privacy of individuals identified in information systems maintained by Federal agencies," Pub. L. No. 93-579, § 2(a)(5), 88 Stat. 1896, 1896 (1974), because such privacy "is directly affected by the collection, maintenance, use, and dissemination or personal information by Federal agencies," id. § 2(a)(1). The Act "represents the compromise reached by Congress between a citizen's right to correct inaccurate records and the government's need to assemble critical information for responsible employment decision making." Dickson v. Office of Pers. Mgmt., 828 F.2d 32, 40 (D.C. Cir. 1987). In furtherance of those goals, the Privacy Act "'gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements.'" See McCready, 465 F.3d at 7 (citing Doe v. Chao, 540 U.S. 614, 618 (2004)). 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 ...

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