A. Amendment Lawsuits

"Whenever any agency . . . makes a determination under subsection (d)(3) . . . not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection [the individual may bring a civil action against the agency]." 5 U.S.C.  552a(g)(1)(A).

-- Exhaustion of administrative remedies--through pursuit of an amendment request to the agency and a request for administrative review, see 5 U.S.C.  552a(d)(2)-(3)--is a prerequisite to a civil action for amendment of records.

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The exhaustion principle is well established in the case law. See, e.g., Jernigan v. Department of the Air Force, No. 97-35930, 1998 WL 658662, at *2 (9th Cir. Sept. 17, 1998); Quinn v. Stone, 978 F.2d 126, 137-38 (3d Cir. 1992); Hill v. United States Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam); Nagel v. HEW, 725 F.2d 1438, 1441 (D.C. Cir. 1984); Blazy v. Tenet, 979 F. Supp. 10, 18-19 (D.D.C. 1997), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Olivares v. NASA, 882 F. Supp. 1545, 1552 (D. Md. 1995), aff'd, 103 F.3d 119 (4th Cir. 1996) (unpublished table decision); Jerez v. United States Dep't of Justice, No. 94-100, slip op. at 8-9 (D. Ariz. Feb. 2, 1995); Hass v. United States Air Force, 848 F. Supp. 926, 930 (D. Kan. 1994); Gergick v. Austin, No. 89-0838-CV-W-2, 1992 U.S. Dist. LEXIS 7338, at **13-16 (W.D. Mo. Apr. 29, 1992), aff'd, No. 92-3210 (8th Cir. July 9, 1993); Simon v. United States Dep't of Justice, 752 F. Supp. 14, 23 & n.6 (D.D.C. 1990), aff'd, 980 F.2d 782 (D.C. Cir. 1992); Campbell v. United States Postal Serv., No. 86-3609, 1990 WL 36132, at *4 (E.D. La. Mar. 28, 1990); Green v. United States Postal Serv., No. 88-0539-CES, 1989 U.S. Dist. LEXIS 6846, at **7-8 (S.D.N.Y. June 19, 1989); Tracy v. Social Sec. Admin., No. 88-C-570-S, slip op. at 3-4 (W.D. Wis. Sept. 23, 1988); Ertell v. Department of the Army, 626 F. Supp. 903, 909-10 (C.D. Ill. 1986); Freude v. McSteen, No. 4-85-882, slip op. at 4-5 (D. Minn. Oct. 23, 1985), aff'd, 786 F.2d 1171 (8th Cir. 1986) (unpublished table decision); Beaver v. VA, No. 1-82-477, slip op. at 2 (E.D. Tenn. Apr. 6, 1983); Ross v. United States Postal Serv., 556 F. Supp. 729, 735 (N.D. Ala. 1983). One district court has even held that a plaintiff could not "boot-strap" an access claim under (g)(1)(B) into a (g)(1)(A) amendment violation, even though she argued that by denying her request for access the agency had prevented her from exercising her right to request amendment. See Smith v. Continental Assurance Co., No. 91 C 0963, 1991 WL 164348, at *2 (N.D. Ill. Aug. 22, 1991).

Although subsection (d)(2)(A) requires an agency to "acknowledge in writing such receipt" of an amendment request within ten working days, subsection (d)(2)(B) merely requires an agency to "promptly" make the requested correction or inform the individual of its refusal to amend. In construing this language, the Court of Appeals for the District of Columbia Circuit has held that "[t]he statute provides no exemption from administrative review when an agency fails, even by several months, to abide by a deadline, and none is reasonably implied." Dickson v. OPM, 828 F.2d 32, 40 (D.C. Cir. 1987) (requiring exhaustion of subsection (d)(3) administrative appeal remedy even when agency did not respond to initial amendment request for 90 days (citing Nagel, 725 F.2d at 1440-41)). But see Schaeuble v. Reno, 87 F. Supp. 2d 383, 389-90 (D.N.J. 2000) (not requiring further exhaustion of administrative remedies where plaintiff had requested amendment and agency had not responded for six months; stating that, "[a] six month delay is not a 'prompt' response" and "[m]oreover, not only has the [agency] not indicated that it will make a final determination . . . by any certain date, the Privacy Act does not bind the [agency] to any definite timeframe for administrative action, which weighs in favor of waiving the exhaustion requirement").

However, in contrast to subsection (d)(2)(B), subsection (d)(3) requires an agency to make a final determination on administrative appeal from an initial denial of an amendment request within 30 working days (unless, for good cause shown, the head of the agency extends this 30-day period). Thus, court jurisdiction exists as soon as an agency fails to comply with the time requirements of subsection (d)(3); "[t]o require further exhaustion would not only contradict the plain words of the statute but also would undercut [C]ongress's clear intent to provide speedy disposition of these claims." Diederich v. Department of the Army, 878 F.2d 646, 648 (2d Cir. 1989).

In Harper v. Kobelinski, 589 F.2d 721 (D.C. Cir. 1978) (per curiam), and Liguori v. Alexander, 495 F. Supp. 641 (S.D.N.Y. 1980), the agencies denied amendment requests but failed to inform the plaintiffs of their rights to administratively appeal those decisions. In light of the Act's requirement that agencies inform complainants whose amendment requests have been denied of the available administrative remedies, 5 U.S.C.  552a(d)(2)(B)(ii), the courts in Harper and Liguori refused to penalize the plaintiffs for their failures to exhaust. Harper, 589 F.2d at 723; Liguori, 495 F. Supp. at 646-47; see also Germane v. Heckler, 804 F.2d 366, 369 (7th Cir. 1986) (discussing Harper and Liguori with approval); Mahar v. National Parks Serv., No. 86-0398, slip op. at 7-11 (D.D.C. Dec. 23, 1987) (same).

In White v. United States Civil Serv. Comm'n, 589 F.2d 713, 715-16 (D.C. Cir. 1978) (per curiam), the D.C. Circuit held that, notwithstanding any exhaustion of administrative remedies, an amendment action is "inappropriate and premature" where the individual had not yet sought judicial review (under the Administrative Procedure Act) of adverse employment decisions, because granting Privacy Act relief "would tend to undermine the established and proven method by which individuals . . . have obtained review from the courts." Cf. Douglas v. Farmers Home Admin., No. 91-1969, 1992 U.S. Dist. LEXIS 9159, at **4-5 (D.D.C. June 26, 1992) (damages action under Privacy Act dismissed where plaintiff had not sought review under Administrative Procedure Act of allegedly inaccurate property appraisal). But see Churchwell v. United States, 545 F.2d 59, 61 (8th Cir. 1976) (probationary employee need not pursue Privacy Act remedy prior to proceeding with due process claim for hearing).

-- Courts "shall determine the matter de novo." 5 U.S.C.  552(g)(2)(A).

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"De novo review does not contemplate that the court will substitute its judgment for the [agency's], but rather that the court will undertake an independent determination of whether the amendment request should be denied." Nolan v. United States Dep't of Justice, No. 89-A-2035, 1991 WL 134803, at *3 (D. Colo. July 17, 1991), appeal dismissed in pertinent part on procedural grounds, 973 F.2d 843 (10th Cir. 1992); see also Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (holding that "[d]e novo means . . .a fresh, independent determination of 'the matter' at stake"). The applicable standards in amendment lawsuits are accuracy, relevancy, timeliness, and completeness. 5 U.S.C.  552a(d)(2)(B)(i). But see Doe v. United States, 821 F.2d at 697 n.8, 699 (without explanation, stating that "whether the nature of the relief sought is injunctive or monetary, the standard against which the accuracy of the record is measured remains constant" and "[t]hat standard is found in 5 U.S.C.  552a(e)(5) and reiterated in 5 U.S.C.  552a(g)(1)(C)"). The burden of proof is on the individual. See Mervin v. FTC, 591 F.2d 821, 827 (D.C. Cir. 1978) (per curiam); Thompson v. Department of Transp. United States Coast Guard, 547 F. Supp. 274, 282 (S.D. Fla. 1982); OMB Guidelines, 40 Fed. Reg. 28,948, 28,969 (1975).

Note that in a unique statutory displacement action, Congress has expressly removed the jurisdiction of the district courts to order the amendment of IRS records concerning tax liability. 26 U.S.C.  7852(e) (1994). See, e.g., Gogert v. IRS, No. 86-1674, slip op. at 3 (9th Cir. Apr. 7, 1987); England v. Commissioner, 798 F.2d 350, 351-52 (9th Cir. 1986); Singer v. IRS, No. 98-0024, 1998 U.S. Dist. LEXIS 13301, at **10-11 (E.D. Pa. Aug. 10, 1998); Chandler v. United States, No. 93-C-812A, 1994 WL 315759, at *1 (D. Utah Mar. 8, 1994); Fuselier v. IRS, No. 90-0300, slip op. at 1 (W.D. La. Oct. 25, 1990); Mallas v. Kolak, 721 F. Supp. 748, 751 (M.D.N.C. 1989); Schandl v. Heye, No. 86-6219, slip op. at 2 (S.D. Fla. Sept. 30, 1986); Dyrdra v. Commissioner, No. 85-0-41, slip op. at 2 (D. Neb. Oct. 28, 1985); Conklin v. United States, No. 83-C-587, slip op. at 2-3 (D. Colo. Feb. 26, 1985); Green v. IRS, 556 F. Supp. 79, 80 (N.D. Ill. 1982), aff'd, 734 F.2d 18 (7th Cir. 1984) (unpublished table decision); see also Gardner v. United States, No. 96-1467, 1999 U.S. Dist. LEXIS 2195, at *18 (D.D.C. Jan. 29, 1999) (finding that by virtue of  7852(e) IRS is "exempt" from amendment provisions of Privacy Act), summary affirmance granted on other grounds, No. 99-5089, 1999 WL 728359 (D.C. Cir. Aug. 4, 1999).

Consistent with the OMB Guidelines, 40 Fed. Reg. at 28,958, 28,969, courts have routinely expressed disfavor toward litigants who attempt to invoke the subsection (g)(1)(A) amendment remedy as a basis for collateral attacks on judicial or quasi-judicial determinations recorded in agency records. See, e.g., Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir. 1999) ("[T]he Privacy Act does not allow a court to alter records that accurately reflect an administrative decision, or the opinions behind that administrative decision."); Milhous v. EEOC, No. 97-5242, 1998 WL 152784, at *1 (6th Cir. Mar. 24, 1998) ("The Privacy Act may not be used to challenge unfavorable agency decisions. It is intended solely to be used to correct factual or historical errors."); Douglas v. Agricultural Stabilization & Conservation Serv., 33 F.3d 784, 785 (7th Cir. 1994) ("Privacy Act does not authorize relitigation of the substance of agency decisions"; "the right response . . . is to correct the disposition under the Administrative Procedure Act"); Bailey v. VA, No. 94-55092, 1994 WL 417423, at *1 (9th Cir. Aug. 10, 1994) (plaintiff may not use Privacy Act to collaterally attack grant or denial of benefits); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) (Privacy Act may not be used "as a rhetorical cover to attack VA benefits determinations"); Edwards v. Rozzi, No. 92-3008, 1992 WL 133035, at *1 (6th Cir. June 12, 1992) ("[T]he Privacy Act may not be used to challenge unfavorable agency decisions."); Geurin v. Department of the Army, No. 90-16783, 1992 WL 2781, at *2 (9th Cir. Jan. 6, 1992) (doctrine of res judicata bars relitigation of claims under Privacy Act that had been decided against plaintiff by United States Claims Court in prior action under 28 U.S.C.  1491); Pellerin v. VA, 790 F.2d 1553, 1555 (11th Cir. 1986) (amendment lawsuit challenging VA disability benefits determination dismissed on ground that 38 U.S.C.  211(a) (later repealed, now see 38 U.S.C.  511 (1994)) limits judicial review of VA's determinations; noting that Privacy Act "'may not be employed as a skeleton key for reopening consideration of unfavorable federal agency decisions'" (quoting Rogers v. United States Dep't of Labor, 607 F. Supp. 697, 699 (N.D. Cal. 1985))); Fields v. NRC, No. 98-1714, slip op. at 1-2, 5-7 (D.D.C. May 12, 1999) (stating that Privacy Act may not be used to collaterally attack NRC conclusion, as Act is not vehicle for amending judgments of federal officials); Gowan v. Department of the Air Force, No. 90-94, slip op. at 26, 33 (D.N.M. Sept. 1, 1995) (commenting that "Privacy Act, unfortunately, may not be used as a collateral attack on the improper preferral of charges [for court martial], nor may the Privacy Act be used as a method for the Court to oversee the activities of the armed services"), aff'd, 148 F.3d 1182 (10th Cir.), cert. denied, 525 U.S. 1042 (1998); Graham v. Hawk, 857 F. Supp. 38, 40-41 (W.D. Tenn. 1994) ("The Privacy Act is not a means of circumventing [habeas] exhaustion requirement."), aff'd, 59 F.3d 170 (6th Cir. 1995) (unpublished table decision); Williams v. McCausland, 90 Civ. 7563, 1994 WL 18510, at *17 (S.D.N.Y. Jan. 18, 1994) (MSPB properly denied plaintiff's request to supplement record of his administrative proceeding before MSPB because request "constitutes an attempt to contest the MSPB's determination on the merits of his request for a stay of his removal"); Smith v. VA, No. CV-93-B-2158-S, slip op. at 4-5 (N.D. Ala. Jan. 13, 1994) (following Pellerin and holding that plaintiff could not use Privacy Act to challenge dishonorable discharge or denial of VA disability benefits); Smith v. Continental Assurance Co., No. 91 C 0963, 1991 WL 164348, at *5 (N.D. Ill. Aug. 22, 1991) (plaintiff cannot use Privacy Act to collaterally attack agency decision regarding her Federal Employees Health Benefit Act claim); Rowan v. United States Postal Serv., No. 82-C-6550, 1984 U.S. Dist. LEXIS 17042, at *6 (N.D. Ill. May 2, 1984) (Privacy Act not "a means for all governmental employees to have unflattering appraisals removed from their personnel files or shaded according to their own whims or preferences"); Leib v. VA, 546 F. Supp. 758, 762 (D.D.C. 1982) ("The Privacy Act was not intended to be and should not be allowed to become a 'backdoor mechanism' to subvert the finality of agency determinations."); Lyon v. United States, 94 F.R.D. 69, 72 (W.D. Okla. 1982) (Privacy Act claim cannot be "a backdoor mechanism to subvert authority bestowed upon the Secretary of Labor to handle employee compensation claims"); Allen v. Henefin, 2 Gov't Disclosure Serv. (P-H)  81,056, at 81,147 (D.D.C. Dec. 10, 1980) (dismissing lawsuit seeking amendment of supervisor evaluation forms and comments, for failure to exhaust, but noting that "there is considerable doubt as to the permissibility of a Privacy Act suit to collaterally attack a final agency personnel determination of this type"); Weber v. Department of the Air Force, No. C-3-78-146, slip op. at 3-4 (S.D. Ohio Mar. 19, 1979) (Privacy Act not proper means "to arbitrate and determine a dispute over job classification"); Bashaw v. United States Dep't of the Treasury, 468 F. Supp. 1195, 1196-97 (E.D. Wis. 1979) (citing OMB Guidelines with approval and holding that amendment remedy is "neither a necessary nor an appropriate vehicle for resolving the merits of the plaintiff's [discrimination] claims"); Kennedy v. Andrus, 459 F. Supp. 240, 242 (D.D.C. 1978) (noting that OMB Guidelines "clearly forbid collateral attack in the case of final judicial or quasi-judicial actions" and observing that "the same considerations would seem to apply to agency personnel actions, such as the reprimand here, for collateral attack under the Privacy Act could undermine the effectiveness of agency grievance systems"), aff'd, 612 F.2d 586 (D.C. Cir. 1980) (unpublished table decision); cf. Doe v. HHS, 871 F. Supp. 808, 814-15 (E.D. Pa. 1994) ("[T]he specific reporting provisions encompassed in the [Health Care Quality Improvement] Act supersede[] any claims [plaintiff] might have under the Privacy Act."), aff'd, 66 F.3d 310 (3d Cir. 1995) (unpublished table decision).

It has even been held that the Civil Service Reform Act's (CSRA) comprehensive remedial scheme operates to deprive a court of subsection (g)(1)(A) jurisdiction to order the amendment of an allegedly inaccurate job description in a former federal employee's personnel file. See Kleiman v. Department of Energy, 956 F.2d 335, 338 (D.C. Cir. 1992) (refusing to allow exhaustive remedial scheme of CSRA to be "impermissibly frustrated" by granting review of personnel decisions under Privacy Act); see also Wills v. OPM, No. 93-2079, slip op. at 3-4 (4th Cir. Jan. 28, 1994) (alternative holding) (per curiam) (where challenge to merits of statement on SF-50 was actually complaint regarding adverse employment decision, jurisdiction was proper under CSRA); Vessella v. Department of the Air Force, No. 92-2195, 1993 WL 230172, at *2 (1st Cir. June 28, 1993) (citing Kleiman and holding that plaintiff could not "bypass the CSRA's regulatory scheme" by bringing Privacy Act claim for same alleged impermissible adverse personnel practices he challenged before MSPB, even though MSPB dismissed his claims as untimely).

Similarly, the D.C. Circuit has held that "[t]he proper means by which to seek a change to military records is through a proceeding before the . . . Board for Correction of Military Records," not under the Privacy Act. Glick v. Department of the Army, No. 91-5213, 1992 WL 168004, at *1 (D.C. Cir. June 5, 1992) (per curiam); see also Cargill v. Marsh, 902 F.2d 1006, 1007-08 (D.C. Cir. 1990) (per curiam) (affirming dismissal of Privacy Act claim; proper means to seek substantive change in military records is through proceeding before Army Board for Correction of Military Records under 10 U.S.C.  1552(a) (1994)); Doe v. Department of the Navy, 764 F. Supp. 1324, 1327 (N.D. Ind. 1991) ("plaintiff is not free to choose to attempt amendment of his military records under the Privacy Act alone without resort to the records correction board remedy"); cf. Walker v. United States, No. 93-2728, 1998 WL 637360, at *14 (E.D. La. Sept. 16, 1998) (citing Cargill and finding plaintiff's claim "unavailing" to extent that he "is attempting to use the Privacy Act as a vehicle for his collateral attack on the Army's allegedly improper failure to correct his military records"), aff'd, 184 F.3d 816 (5th Cir. 1999) (unpublished table decision). But see Diederich v. Department of the Army, 878 F.2d 646, 647-48 (2d Cir. 1989) (holding that "Privacy Act claims were properly before the district court" and that plaintiff was not required to further exhaust administrative remedies before asserting claim for amendment of military records where his direct request to Army for correction had been stalled before appeals board for several months); see also Corrections of Military Records Under the Privacy Act, Defense Privacy Board Advisory Opinion 4 (reissued Apr. 8, 1992) (affording limited review under Privacy Act for factual matters).

It should be noted that several courts have ruled that statutes that provide other avenues of redress, such as the CSRA, can bar certain kinds of subsection (g)(1)(C) damages actions. These cases are discussed below under "Accuracy Lawsuits For Damages."

-- Courts can order an agency to amend records in accordance with a request "or in such other way as the court may direct." 5 U.S.C.  552a(g)(2)(A).

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The Act contemplates "expungement [of inaccuracies] and not merely redress by supplement." R.R. v. Department of the Army, 482 F. Supp. 770, 774 (D.D.C. 1980); see also Smith v. Nixon, 807 F.2d 197, 204 (D.C. Cir. 1986); Hobson v. Wilson, 737 F.2d 1, 65-66 (D.C. Cir. 1984). In addition, several courts have concluded that judges have the equitable power, even apart from the Privacy Act, to order the expungement of records when the affected individual's privacy interest greatly outweighs the government's interest in maintaining the records. See, e.g., Doe v. United States Air Force, 812 F.2d 738, 740-41 (D.C. Cir. 1987); Fendler v. United States Parole Comm'n, 774 F.2d 975, 979 (9th Cir. 1985); Chastain v. Kelley, 510 F.2d 1232, 1235-38 (D.C. Cir. 1975); Ezenwa v. Gallen, 906 F. Supp. 978, 986 (M.D. Pa. 1995); NTEU v. IRS, 601 F. Supp. 1268, 1273 (D.D.C. 1985); cf. Johnson v. Sessions, No. 92-201, 1992 WL 212408, at *2 (D.D.C. Aug. 19, 1992) (refusing to invoke equitable powers to expunge plaintiff's arrest record because court did not have jurisdiction to order FBI to violate its own regulations which require FBI to wait for authorization from appropriate judicial authority before expunging arrest record). But see Scruggs v. United States, 929 F.2d 305, 307 (7th Cir. 1991) (questioning jurisdictional power of courts to order expungement of records that satisfy Privacy Act's requirements).

Once an agency offers to destroy a record in response to an expungement request, the lawsuit is at an end and the agency cannot be compelled to affirmatively determine and announce that the challenged record violated the Act. See Reuber v. United States, 829 F.2d 133, 144-49 (D.C. Cir. 1987); see also Committee in Solidarity v. Sessions, 929 F.2d 742, 745 n.2 (D.C. Cir. 1991); Metadure Corp. v. United States, 490 F. Supp. 1368, 1375 (S.D.N.Y. 1980). But see Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539, 551 (S.D.N.Y. 1980).

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