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04/11/86 Alan J. White, v. Office of Personnel

April 11, 1986

ALAN J. WHITE, APPELLANT

v.

OFFICE OF PERSONNEL MANAGEMENT, ET. AL. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CIVIL ACTION NOS. 80-00932 AND 85-00932). 1986.CDC.103



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

Mikva and Bork, Circuit Judges, and Swygert,* Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Mikva.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

These consolidated cases represent but the latest chapter in Alan White's protracted struggle with the Office of Personnel Management . OPM oversees the selection of administrative law judges employed by the federal government. White has been trying to become an administrative law judge since January 1975. After two unsuccessful applications, White turned to the judicial process in February 1977. Since that time this court has ruled nine times in the matter of White versus the Office of Personnel Management, on more than one occasion disposing of consolidated appeals. White's suits have alleged violations of, inter alia, the Constitution, the Privacy Act, the Freedom of Information Act, the Administrative Procedure Act, and various regulations implementing these Acts. In the two cases at bar, White is suing for damages under the Privacy Act and for relief for alleged violations of his fifth amendment rights. Because we find that White is not entitled to damages under the Privacy Act and that his constitutional claims are entirely lacking in merit, we affirm the decisions of the district court. I. No. 84-5639

In White's first effort to litigate his non-selection as an administrative law judge, White v. United States Civil Service Commission, 191 U.S. App. D.C. 190, 589 F.2d 713 (D.C. Cir. 1978), cert. denied, 444 U.S. 830, 100 S. Ct. 58, 62 L. Ed. 2d 39 (1979), this court stated that

At the core of this dispute are certain evaluations of appellant Alan J. White that were solicited [from his colleagues and superiors] by the United States Civil Service Commission [(OPM is the successor to the Commission)] in connection with appellant's application for the position of administrative law judge. . . . Appellant was apparently worried that, because he had experienced some employment difficulties . . ., the evaluations might have mischaracterized the manner in which he had discharged his duties. He sought, therefore, to have these potentially damaging evaluations removed from his application records on file with the Civil Service Commission by pressing a claim under the Privacy Act of 1974.

Id. at 714.

After eight years, the evaluations remain the core of the dispute in No. 84-5639, the first of the two consolidated cases we decide today. In his original suit, White alleged that retention of the disputed evaluations violated the Privacy Act's requirement that government records be accurate. See 5 U.S.C. § 552a(e)(5) & (g)(3) ("Each agency that maintains a system of records shall . . . maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness in the determination."). White believed that if the records were amended he could yet succeed in his failed applications for an administrative law judge position. Therefore, White sued under the Act to have his records amended and his application reconsidered. See 5 U.S.C. § 552a(g). The district court found against White. White v. United States Civil Service Commission, Civ. Act. No. 77-0274 (D.D.C. Dec. 7, 1977). We affirmed in part in the opinion quoted above.

In that opinion, this court decided that White's Privacy Act claim was premature. We affirmed the dismissal of the suit because White had not exhausted his available remedies under the Administrative Procedure Act. We held that "an assessment of Privacy Act claims is properly undertaken simultaneously with the District Court's review of the administrative action," White, 589 F.2d at 715 n. 4, and that Privacy Act litigation should not be allowed to circumvent the procedures established by the Administrative Procedure Act for correcting agency errors. Otherwise, the Congressional scheme devised for individuals "distressed by agency treatment of their employment applications" would be undermined. Id. at 714.

After something of a hiatus, White filed the lineal predecessor of No. 84-5639 in April of 1980. In his complaint, White sought damages under the Privacy Act with respect to the OPM's treatment of his first two administrative law judge applications. See 5 U.S.C. § 552a(g). White also sought prospective relief with respect to a third application he had submitted in March 1980. White wanted the OPM to review his new application without considering the disputed evaluations that had been the subject of the earlier litigation. The district court again ruled against White. White v. Office of Personnel Management, Civ. Act. No. 80-0932 (D.D.C. Oct. 16, 1980). On appeal from that decision (in an unpublished opinion) this court upheld the dismissal of White's claim for prospective relief. White v. Office of Personnel Management, No. 81-1017 (D.C. Cir. Mar. 30, 1982). The claim was moot because OPM had agreed to consider White's 1980 application without the offending evaluations. However, the court remanded the cause to the district court for a determination of White's retrospective claim for damages. On remand, the district court decided that no violation of the Privacy Act had occurred. See White v. Office of Personnel Management, Civ. Act. No. 80-0932, slip op. (D.D.C. July 13, 1984). The current appeal in No. 84-5639 is from that decision.

The district court concluded that when OPM retained the disputed evaluations it had not violated the Privacy Act's requirement of accuracy. 5 U.S.C. § 552a(e)(5). The court held that the challenged evaluations necessarily contained opinions and subjective judgments and that, to satisfy the statutory command, the agency was not required to assure that all of these opinions and judgments were accurate. The court, however, did not absolve the agency of all responsibility for vetting the evaluations. It held that if a negative or damaging response were based on a demonstrably false premise, the agency would not be permitted to retain the evaluation. Where a subjective evaluation is based on a multitude of factors, however, and there are various ways of characterizing some of the underlying events, the court held that it is proper to retain and rely on it. We agree. The district court's reasoning is correct and in accord with governing precedent. See Doe v. United States, 251 U.S. App. D.C. 54, 781 F.2d 907 (D.C. Cir. 1986); R.R. v. Department of the Army, 482 F. Supp. 770 (D.D.C. 1980).

White argues on appeal that the district court failed to determine the matter de novo and that if it had, it would have found in his favor. White is wrong, however, to assert that de novo review is required. Section 552a(g)(2)of the Privacy Act calls for de novo review in 552a(g)(1)suits for amendment of records. In such a suit, the district court is not to assess the agency's review of the amendment request, but rather is to determine for itself whether the request should have been granted. In § 552a(g)(1)and (g)(4) suits for damages, however, de novo review is not called for. Rather, the reviewing court is to inquire whether the standard articulated in 552a(g)(1)has been met. This inquiry is necessarily distinct from any undertaken by the agency -- no damage claim can be brought directly against the agency -- but it is not de novo review. The district court here properly inquired whether the records in question satisfied the appropriate test.

In the district court, White also challenged the agency's use of evaluations solicited at the time of his first application in 1975, to evaluate his second (1976) application. White asserted that this violated the Privacy Act's requirement of timeliness, § 552a(e)(5) & (g)(1), and led to a claim for damages against the government. The district court, however, held that the Act's requirement of timeliness was not violated. The district court reasoned that because the evaluations themselves contained information about the time period they covered, and because the OPM weighs the evaluations by recency, their use was in accord with the requirements of the Privacy Act. We agree. If records become too old, the Privacy Act will bar their use, but, for the reasons laid out by the district court, we do not find that the year-old evaluations here fall into that category. The Privacy Act does not require that agency records contain only information that is "hot off the presses." To hold that the Privacy Act bars the use of year-old evaluations, properly identified as such, would be an unwarranted intrusion on the agency's freedom to shape employment application procedures. As long as the nature and age of the information in the records is apparent, and the information is not so stale as to impede fairness, retaining information of various vintages is not precluded by the Act. We emphasize, however, that the determination whether records are in fact timely enough to assure fairness is inherently factual; our decision today is necessarily fact-bound.

White also argues that, under the due process clause of the fifth amendment, he was entitled to a hearing before either of his first two applications could be denied. White ingeniously turns this into a Privacy Act claim by asserting that the lack of a hearing, and the resultant lack of a record of such a hearing, renders the administrative record incomplete. He concludes that the OPM's records violated the ...


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