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ERTELL v. DEPT. OF ARMY

January 7, 1986

CHARLES ERTELL, PLAINTIFF,
v.
THE DEPARTMENT OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

Plaintiff, Charles Ertell, is a former employee of the Department of the Army, currently receiving disability retirement benefits. He is seeking re-employment with the Army and, as an employee on disability and a ten point veteran, is entitled to preference. Mr. Ertell has had an application on file with the Department of the Army since July of 1977.

According to the allegations of the complaint, several jobs have been available between July of 1977 and the present time for which Mr. Ertell is qualified. He has been offered none of them and he blames three documents in his file for this failure to be re-employed. The first is a "Memorandum for Record" dated March 12, 1976, authored by Arnold Kublin; second, an appraisal of past performance, also by Mr. Kublin; and third, an appraisal by Nora Hughes.

This Court, by order dated January 22, 1985, dismissed two counts of Plaintiff's three count complaint, leaving only the Privacy Act claims intact. In that portion of his complaint, Plaintiff has alleged numerous violations of the Privacy Act ranging through inclusion of the documents in his files; failure to maintain his record in an accurate, relevant, timely, and complete fashion; failure to protect the integrity of the documents; failure to notify Plaintiff of the existence of the controverted documents; and failure to correct the erroneous records as required by the Privacy Act and requested by the Plaintiff.

Pending before the Court at the time of the hearing were Plaintiff's motion to amend and Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The motion to amend was granted by the Court at the hearing on November 14, 1985, over the objection of Defendant. The amended complaint has since been answered and the Court feels no need to address it further in this Order. Therefore, the only motion which will be considered herein is that of the Defendant for summary judgment.

Position of the Defendant

The Army argues, in support of its motion, that summary judgment is warranted on three grounds: (1) failure to exhaust administrative remedies, (2) expiration of the statute of limitations, and (3) a claim that appraisals of performance are opinion rather than fact and are, therefore, exempt from the statute.

Defendant contends that the claim for non-monetary relief is barred by Plaintiff's failure to exhaust his administrative remedies. The Department suggests that the Court erred in its order of January 22, 1985 in finding that Plaintiff had alleged the filing of a Privacy Act Notice on July 2, 1982 or that he had requested information. Absent proper findings to that effect, Defendant maintains that Plaintiff cannot show sufficient exhaustion to give the Court jurisdiction for his non-monetary relief. Defendant claims that Plaintiff has never sought to have the records amended and further claims that there is nothing in the record to indicate that he ever requested information as to the existence of negative records to which request Defendant failed to respond.

Defendant points out that there is a reviewing procedure, set out at 32 C.F.R. § 505.2(h). Pursuant to this section, the Army maintains a three-person Privacy Review Board which hears requests to amend personnel files and permits a party, upon denial of an appeal, to make additions to his records explaining the nature of his dispute. Plaintiff failed to submit such statements.

The Army contends that Plaintiff's failure to inquire about the existence of negative evaluations in his file, request deletion of such material or other amendment of the record, and seek amendment or addition through "appeal" to the Privacy Review Board constitute an absence of administrative exhaustion which should mandate a summary judgment against Plaintiff and in favor of the Army.

The Court has already determined, in its order of January 22, 1985, that it found no reason not to follow the finding of the Court in Nagel v. United States Department of Health, Education and Welfare, 725 F.2d 1438 (D.C.Cir. 1984) to the effect that: "An individual who states a claim for damages under the Act need not exhaust his administrative remedies." Accordingly, the Army acknowledges that this argument does not apply to the claim for monetary damages.

The monetary claims are barred, the Army contends, by the statute of limitations. Defendant has presented exhibits to show that Mr. Ertell knew in 1976 that the Memorandum was in his file, that he was aware of its contents, and that he recognized that it was hindering his chances for re-employment. This is, they argue, well beyond the one year period after which Plaintiff claims he believed the Kublin Memorandum had been destroyed. Therefore, the Department of the Army believes that Plaintiff was in possession of all of the facts giving rise to his cause of action for monetary damages in December of 1979 and that the statute of limitations began to run at that time. It was not, however, until August 1983 that he filed his complaint and the statute had allegedly run by December of 1981. Although the Army concedes that its misrepresentations in response to inquiries made on Plaintiff's behalf may preclude the erection of a limitations bar to the non-monetary claims, it makes no similar concession with respect to the monetary damages alleged. In addition, Defendant argues that it has been substantially prejudiced by having to develop a current defense to events occurring approximately ten years ago. For these reasons, the Department maintains that it is entitled to summary judgment on the monetary claims.

Finally, Defendant claims that personnel evaluations are statements of opinion not of fact and, therefore, the Privacy Act does not apply. Because of this alleged inapplicability, the Army asserts a right to judgment as a matter of law. The Department further claims that Plaintiff must, in order to prevail, prove that he would be a good employee, that he was the applicant best qualified, and that the only factor preventing his rehiring was the existence of the documents in his record. Moreover, the Army asserts that a finding for Plaintiff on a claim of this nature would chill the Government's efforts to hire and maintain competent employees.

Position of the Plaintiff

Charles Ertell denies that his claim for non-monetary damages is barred by a failure to exhaust administrative remedies. In support of this contention, he sets out a series of activities undertaken by others on his behalf which allegedly constitute requests for amendment of his personnel record. He apparently claims that the failure of the Army to remove the disputed documents constituted a refusal and that their failure to notify him of his right to seek review of the refusal to amend was a violation of 5 U.S.C. § 552a(d)(2)(B)(ii). Plaintiff believes that this particular violation of the Privacy Act estops Defendant from making its exhaustion argument.

In addition, Plaintiff points to the fact that the Army apparently maintained dual records — one an official personnel record and the other a record in an applicant file — but that he was not apprised of that fact or that statements made concerning the existence of certain materials in the files may have related to one and not the other. This allegedly deliberate confusion misled him, he claims, into believing that amendatory deletions had occurred in his files and that he had no further cause for worry. Consequently, he claims to have pursued his administrative remedies to the point which appeared to him to be necessary in view of assurances that had been given by the Army. Plaintiff concludes that he repeatedly requested amendment, even though not stated specifically in those terms, and that the Army failed either to make amendments or to advise him of his appeal rights. For these reasons, Charles Ertell believes that the motion for summary judgment on the grounds of failure to exhaust administrative remedies should be denied.

Turning to the statute of limitations argument, Plaintiff claims that there is a material fact in dispute as to whether or not he knew that the two Kublin documents were in his file prior to 1979. Plaintiff further argues that he received assurances on May 9, 1980 and in July 1981 that no derogatory employment information was present in his records. He maintains that these assertions renew the statute of limitations and raise a material factual issue with respect to knowledge making summary judgment inappropriate.

The existence of a material factual dispute is also the basis on which Plaintiff urges the Court to deny summary judgment on the Army's asserted grounds that the evaluations represent opinions rather than facts. He cites the opinion of the Seventh Circuit Court of Appeals in DeBold v. Stimson, 735 F.2d 1037, 1040-41 (7th Cir. 1984) stating:

  "The privacy act merely requires an agency to attempt
  to keep accurate records, and provides a remedy to a
  claimant who demonstrates that facts underlying
  judgments ...

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