OVERVIEW OF THE PRIVACY ACT OF 1974

CIVIL REMEDIES

C. Accuracy Lawsuits for Damages

"Whenever any agency . . . fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual [the individual may bring a civil action against the agency]." 5 U.S.C.  552a(g)(1)(C).

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The standard of accuracy under this provision is the same as under subsection (e)(5), which requires agencies to maintain records used in making determinations about individuals "with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination."

As mentioned earlier, failure to comply with subsection (e)(5) gives rise to an amendment lawsuit under subsection (g)(1)(A), provided that administrative remedies (under subsections (d)(2)-(3)) have been exhausted. Note, however, that such exhaustion is not required prior to bringing a damages lawsuit under subsection (g)(1)(C) (or, for that matter, under subsection (g)(1)(D)). See Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at **2-3 (10th Cir. Apr. 14, 1997); Diederich v. Department of the Army, 878 F.2d 646, 648 (2d Cir. 1989); Hubbard v. United States Envtl. Protection Agency, Adm'r, 809 F.2d 1, 7 (D.C. Cir.), vacated in nonpertinent part & reh'g en banc granted (due to conflict in circuit), 809 F.2d 1 (D.C. Cir. 1986), resolved on reh'g en banc sub nom. Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988); Nagel v. HEW, 725 F.2d 1438, 1441 & n.2 (D.C. Cir. 1984); 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); Doe v. FBI, No. 91-1252, slip op. at 8 (D.N.J. Feb. 26, 1992); Pope v. Bond, 641 F. Supp. 489, 500 (D.D.C. 1986). But see Olivares v. NASA, 882 F. Supp. 1545, 1546, 1552 (D. Md. 1995) (apparently confusingly concluding that plaintiff's failure to exhaust administrative remedies precludes damages claim under subsection (e)(5)), aff'd, 103 F.3d 119 (4th Cir. 1996) (unpublished table decision); Graham v. Hawk, 857 F. Supp. 38, 40 (W.D. Tenn. 1994) (heedlessly stating that "[e]ach paragraph of 5 U.S.C.  552a(g) . . . requires as a prerequisite to any action that the agency refuse an individual's request to take some corrective action regarding his file"), aff'd, 59 F.3d 170 (6th Cir. 1995) (unpublished table decision).

In addition, de novo review is not provided for in (g)(1)(C) (or, for that matter, (g)(1)(D)) actions, see 5 U.S.C.  552a(g)(4); rather, the court is to determine whether the standards articulated in subsection (g)(1)(C) have been met. See Sellers v. Bureau of Prisons, 959 F.2d 307, 312-13 (D.C. Cir. 1992); White v. OPM, 787 F.2d 660, 663 (D.C. Cir. 1986); 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, 712 (D.C. Cir. 1987) (en banc) (Mikva, J., joined by Robinson and Edwards, JJ., dissenting.)

However, in order to bring a damages action under subsection (g)(1)(C), an individual has the burden of proving that (1) a defective record (2) proximately caused (3) an adverse determination concerning him. See, e.g., Deters v. United States Parole Comm'n, 85 F.3d 655, 657 (D.C. Cir. 1996); Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990); Johnston v. Horne, 875 F.2d 1415, 1422 (9th Cir. 1989); White v. OPM, 840 F.2d 85, 87 (D.C. Cir. 1988); Hubbard, 809 F.2d at 4-6; Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986); Perry v. FBI, 759 F.2d 1271, 1275, rev'd en banc on other grounds, 781 F.2d 1294 (7th Cir. 1986); Molerio v. FBI, 749 F.2d 815, 826 (D.C. Cir. 1984); Clarkson v. IRS, 678 F.2d 1368, 1377 (11th Cir. 1982) (citing Edison v. Department of the Army, 672 F.2d 840, 845 (11th Cir. 1982)); Kellett v. United States, 856 F. Supp. 65, 70-71 (D.N.H. 1994), aff'd, 66 F.3d 306 (1st Cir. 1995) (unpublished table decision); McGregor v. Greer, 748 F. Supp. 881, 886 (D.D.C. 1990); Mobley v. Doyle, No. JH-87-3300, slip op. at 3-5 (D. Md. Nov. 8, 1988); Wirth v. Social Sec. Admin., No. JH-85-1060, slip op. at 6 (D. Md. Jan. 20, 1988); NTEU v. IRS, 601 F. Supp. 1268, 1271-72 (D.D.C. 1985); see also Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1194 (10th Cir.) (no adverse effect from Air Force's informing Wyoming Bar of court martial charges preferred against plaintiff where plaintiff himself later informed Wyoming Bar without knowing Air Force had already done so), cert. denied, 525 U.S. 1042 (1998); Williams v. Bureau of Prisons, No. 94-5098, 1994 WL 676801, at *1 (D.C. Cir. Oct. 21, 1994) (appellant did not establish either that agency "maintained an inaccurate record or that it made a determination adverse to him in reliance on inaccurate information capable of verification, the statutory prerequisites to maintaining an action pursuant to the Privacy Act"); Hadley v. Moon, No. 94-1212, 1994 WL 582907, at **1-2 (10th Cir. Oct. 21, 1994) (plaintiff must allege actual detriment or adverse determination in order to maintain claim under Privacy Act); Hughley v. Federal Bureau of Prisons, No. 94-1048, slip op. at 4-5 (D.D.C. Apr. 30, 1996) (admitted inaccuracy in plaintiff's presentence investigation report regarding length of prior sentence did not result in "any cognizable injury that would give rise to an action under Section (g)(1)(C) because no adverse determination was made based on the inaccurate statement"; report correctly calculated plaintiff's criminal history points regardless of error), aff'd sub nom. Hughley v. Hawk, No. 96-5159, 1997 WL 362725 (D.C. Cir. May 6, 1997); Schwartz v. United States Dep't of Justice, No. 94 CIV. 7476, 1995 WL 675462, at **7-8 (S.D.N.Y. Nov. 14, 1995) (alleged inaccuracy in presentence report "cannot have caused an adverse determination" where sentencing judge was made aware of error and stated that fact at issue was not material for sentencing, nor did any omission of additional facts in report result in plaintiff's "not receiving a fair determination relating to his rights"), aff'd, 101 F.3d 686 (2d Cir. 1996) (unpublished table decision); Gowan v. Department of the Air Force, No. 90-94, slip op. at 34 (D.N.M. Sept. 1, 1995) (inaccuracy in report, i.e., listing of witnesses who were not interviewed, did not cause adverse agency action), aff'd, 148 F.3d 1182 (10th Cir.), cert. denied, 525 U.S. 1042 (1998). In addition, an agency must be found to have acted in an "intentional or willful" manner in order for a damages action to succeed. See 5 U.S.C.  552a(g)(4). This standard is discussed below under "Intentional/Willful Standard and Actual Damages in Accuracy and Other Damages Lawsuits."

Just as in the amendment context (see the discussion above), many courts have expressed disfavor toward litigants who attempt to invoke the subsection (g)(1)(C) damages remedy as a basis for collateral attacks on judicial and quasi-judicial agency determinations, such as benefit and employment decisions. See, e.g., White v. United States Probation Office, 148 F.3d 1124, 1125-26 (D.C. Cir. 1998) (holding that Privacy Act claim for damages could not be brought "collaterally to attack" federal prisoner's sentence; "Because a judgment in favor of [plaintiff] on his challenge to the legal conclusions in his presentence report would necessarily imply the invalidity of his sentence, which has not been invalidated in a prior proceeding, his complaint for damages under the Privacy Act must be dismissed."); Compro-Tax v. IRS, No. H-98-2471, 1999 U.S. Dist. LEXIS 5972, at **11-12 (S.D. Tex. Apr. 9, 1999) (magistrate's recommendation) (finding no intentional or willful agency action and stating that the "Privacy Act may not be used to collaterally attack a final agency decision as 'inaccurate,' or 'incomplete' merely because the individual contests the decision"), adopted (S.D. Tex. May 12, 1999); Douglas v. Farmers Home Admin., No. 91-1969, 1992 U.S. Dist. LEXIS 9159, at **2-3 (D.D.C. June 26, 1992) (applying principles of White v. United States Civil Serv. Comm'n, 589 F.2d 713 (D.C. Cir. 1978) (per curiam) (amendment lawsuit), and holding that plaintiff not entitled to bring Privacy Act damages action for allegedly inaccurate appraisal of his property where he had not sought judicial review under APA); Thomas v. United States Parole Comm'n, No. 94-0174, 1994 WL 487139, at *6 (D.D.C. Sept. 7, 1994) (plaintiff should not be allowed to use Privacy Act "to collaterally attack the contents of his presentence report," as he "originally had the opportunity to challenge the accuracy . . . before the judge who sentenced him"); Castella v. Long, 701 F. Supp. 578, 584-85 (N.D. Tex.) ("collateral attack on correctness of the finding supporting the discharge decision" improper under Act), aff'd, 862 F.2d 872 (5th Cir. 1988) (unpublished table decision); Holmberg v. United States, No. 85-2052, slip op. at 2-3 (D.D.C. Dec. 10, 1985) (Privacy Act "cannot be used to attack the outcome of adjudicatory-type proceedings by alleging that the underlying record was erroneous"); see also Whitley v. Hunt, 158 F.3d 882, 889-90 (5th Cir. 1998) (affirming district court's conclusion that there was "no factual or legal basis" for claim that "prison officials abused their discretion by relying upon the sentence imposed against Whitley to determine his classification"; "Whitley is essentially claiming that his sentence itself was incorrectly entered. That is an issue that should have been resolved on direct appeal from his criminal conviction."); Hurley v. Bureau of Prisons, No. 95-1696, 1995 U.S. App. LEXIS 30148, at *4 (1st Cir. Oct. 24, 1995) (any alleged inaccuracy in plaintiff's presentence report, which agency relied on, "should have been brought to the attention of the district court at sentencing; or, at the very least, on appeal from his conviction and sentence"). The OMB Guidelines, 40 Fed. Reg. 28,948, 28,969 (1975), also address this issue.

As in the amendment context, 26 U.S.C.  7852(e) (1994) (a provision of the Internal Revenue Code) also displaces the Privacy Act's damages remedy for inaccurate records in matters concerning tax liability. See, e.g., Ford v. United States, IRS, No. 91-36319, 1992 WL 387154, at *2 (9th Cir. Dec. 24, 1992); McMillen v. United States Dep't of Treasury, 960 F.2d 187, 188 (1st Cir. 1991); Sherwood v. United States, No. 96-2223, 1996 WL 732512, at *9 (N.D. Cal. Dec. 9, 1996).

In Hubbard v. United States Envtl. Protection Agency, Adm'r, the leading D.C. Circuit case concerning the causation requirement of subsection (g)(1)(C), the D.C. Circuit's finding of a lack of causation was heavily influenced by the Civil Service Reform Act's (CSRA) jurisdictional bar to district court review of government personnel practices. See 809 F.2d at 5. Although the D.C. Circuit stopped short of holding that the CSRA's comprehensive remedial scheme constitutes a jurisdictional bar to a subsection (g)(1)(C) action, it noted that "it would be anomalous to construe the pre-existing Privacy Act to grant the district court power to do indirectly that which Congress precluded directly: 'the Privacy Act was not intended to shield [federal] employees from the vicissitudes of federal personnel management decisions.'" Id. (quoting Albright v. United States, 732 F.2d 181, 190 (D.C. Cir. 1984)); cf. Biondo v. Department of the Navy, No. 2:92-0184-18, slip op. at 21-23 (D.S.C. June 29, 1993) (finding, based upon Hubbard, "that the 'collateral attack' argument complements the causation requirement of the Privacy Act"). The concurring opinion in Hubbard objected to this "canon of niggardliness" in construing subsection (g)(1)(C) and noted that circuit precedents since the passage of the CSRA have "without a hint of the majority's caution, reviewed the Privacy Act claims of federal employees or applicants embroiled in personnel disputes." 809 F.2d at 12-13 (Wald, J., concurring) (citing Molerio, 749 F.2d at 826, Albright, 732 F.2d at 188, and Borrell v. United States Int'l Communications Agency, 682 F.2d 981, 992-93 (D.C. Cir. 1982)).

Although Hubbard merely applied a strict causation test where a government personnel determination was being challenged, several more recent cases have extended Hubbard's reasoning and have construed the CSRA's comprehensive remedial scheme to constitute a jurisdictional bar to subsection (g)(1)(C) damages lawsuits challenging federal employment determinations. See Houlihan v. OPM, 909 F.2d 383, 384-85 (9th Cir. 1990) (per curiam); Henderson v. Social Sec. Admin., 908 F.2d 559, 560-61 (10th Cir. 1990), aff'g 716 F. Supp. 15, 16-17 (D. Kan. 1989)); Miller v. Hart, No. PB-C-91-249, slip op. at 6-8 (E.D. Ark. Feb. 25, 1993); Kassel v. VA, No. 87-217-S, slip op. at 7-8 (D.N.H. Mar. 30, 1992); Holly v. HHS, No. 89-0137, slip op. at 1 (D.D.C. Aug. 9, 1991), aff'd, 968 F.2d 92 (D.C. Cir. 1992) (unpublished table decision); Barhorst v. Marsh, 765 F. Supp. 995, 999 (E.D. Mo. 1991); Barkley v. United States Postal Serv., 745 F. Supp. 892, 893-94 (W.D.N.Y. 1990); McDowell v. Cheney, 718 F. Supp. 1531, 1543 (M.D. Ga. 1989); Holly v. HHS, No. 87-3205, slip op. at 4-6 (D.D.C. Aug. 22, 1988), aff'd, 895 F.2d 809 (D.C. Cir. 1990) (unpublished table decision); Tuesburg v. HUD, 652 F. Supp. 1044, 1049 (E.D. Mo. 1987); see also Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at *3 (10th Cir. Apr. 14, 1997) (citing Henderson to hold that claim concerning alleged inaccuracies and omissions in appellant's employment file that formed basis of her claim for damages to remedy loss of promotion and other benefits of employment "is not a recognizable claim under the Privacy Act," as "CSRA provides the exclusive remedial scheme for review of [appellant's] claims related to her position as a nonappropriated fund instrumentality employee"); Vessella v. Department of the Air Force, No. 92-2195, 1993 WL 230172, at *2 (1st Cir. June 28, 1993) (citing Hubbard and Henderson for proposition that Privacy Act "cannot be used . . . to frustrate the exclusive, comprehensive scheme provided by the CSRA"); Pippinger v. Secretary of the United States Treasury, No. 95-CV-017, 1996 U.S. Dist. LEXIS 5485, at *15 (D. Wyo. Apr. 10, 1996) (citing Henderson and stating that to extent plaintiff challenges accuracy of his personnel records, action cannot be maintained because court does not have jurisdiction "to review errors in judgment that occur during the course of an employment/personnel decision where the CSRA precludes such review"), aff'd sub nom. Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997); Edwards v. Baker, No. 83-2642, slip op. at 4-6 (D.D.C. July 16, 1986) (Privacy Act challenge to "employee performance appraisal system" rejected on ground that "plaintiffs may not use that Act as an alternative route for obtaining judicial review of alleged violations of the CSRA"). Other cases have declined to go that far. See Doe v. FBI, 718 F. Supp. 90, 100-01 n.14 (D.D.C. 1989) (rejecting contention that CSRA limited subsection (g)(1)(C) action), aff'd in part, reversed in part & remanded, on other grounds, 936 F.2d 1346 (D.C. Cir. 1991); see also Halus v. United States Dep't of the Army, No. 87-4133, 1990 WL 121507, at *5 n.8 (E.D. Pa. Aug. 15, 1990) ("court may determine whether a Privacy Act violation caused the plaintiff damage (here, the loss of his job)"); Hay v. Secretary of the Army, 739 F. Supp. 609, 612-13 (S.D. Ga. 1990) (similar).

As yet, the D.C. Circuit has declined to rule that the CSRA bars a Privacy Act claim for damages. See Kleiman v. Department of Energy, 956 F.2d 335, 337-39 & n.5 (D.C. Cir. 1992) (holding that Privacy Act does not afford relief where plaintiff did not contest that record accurately reflected his assigned job title, but rather challenged his position classification--a personnel decision judicially unreviewable under the CSRA--but noting that nothing in opinion "should be taken to cast doubt on Hubbard's statement that 'the Privacy Act permits a federal job applicant to recover damages for an adverse personnel action actually caused by an inaccurate or incomplete record'" (quoting Hubbard, 809 F.2d at 5)); Holly v. HHS, No. 88-5372, 1990 WL 13096, at *1 (D.C. Cir. Feb. 7, 1990) (declining to decide whether CSRA in all events precludes Privacy Act claim challenging federal employment determination; instead applying doctrine of "issue preclusion" to bar individual "from relitigating an agency's maintenance of challenged records where an arbitrator--in a negotiated grievance proceeding that included review of such records--had previously found that no "[agency] manager acted arbitrarily, capriciously or unreasonably in determining [that plaintiff] was not qualified"). But see Holly v. HHS, No. 89-0137, slip op. at 1 (D.D.C. Aug. 9, 1991) (citing Kleiman for proposition that court lacks subject matter jurisdiction in Privacy Act damages action in which plaintiff challenges a personnel action governed by CSRA), aff'd, 968 F.2d 92 (D.C. Cir. 1992) (unpublished table decision).

In Rosen v. Walters, 719 F.2d 1422, 1424-25 (9th Cir. 1983), the Court of Appeals for the Ninth Circuit held that 38 U.S.C.  211(a) (later repealed, now see 38 U.S.C.  511 (1994))--a statute that broadly precludes judicial review of VA disability benefit decisions--operated to bar a subsection (g)(1)(C) damages action. In Rosen, the plaintiff contended that the VA deliberately destroyed medical records pertinent to his disability claim, thereby preventing him from presenting all the evidence in his favor. Id. at 1424. The Ninth Circuit ruled that such a damages claim would "necessarily run counter to the purposes of  211(a)" because it would require a determination as to whether "but for the missing records, Rosen should have been awarded disability benefits." Id. at 1425. Further, it declined to find that the Privacy Act "repealed by implication" 38 U.S.C.  211(a). Id.; see also R.R. v. Department of the Army, 482 F. Supp. 770, 775-76 (D.D.C. 1980) (rejecting damages claim for lack of causation and noting that "[w]hat plaintiff apparently seeks to accomplish is to circumvent the statutory provisions making the VA's determinations of benefits final and not subject to judicial review"); cf. Kaswan v. VA, No. 81-3805, 1988 WL 98334, at *12 (E.D.N.Y. Sept. 15, 1988) (Privacy Act "not available to collaterally attack factual and legal decisions to grant or deny veterans benefits"), aff'd, 875 F.2d 856 (2d Cir. 1989) (unpublished table decision); Leib v. VA, 546 F. Supp. 758, 761-62 (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." (quoting Lyon v. United States, 94 F.R.D. 69, 72 (W.D. Okla. 1982))). Relying on Rosen, the District Court for the District of Idaho similarly held that the statutory scheme regarding the awarding of retirement benefits and "Congress's intent that OPM, MSPB and the Federal Circuit review decisions regarding the denial of disability retirement benefits" prohibited it from reviewing a Privacy Act damages claim where the plaintiff alleged that the VA's failure to maintain a file resulted in his being denied disability retirement benefits by OPM. Braun v. Brown, No. CV 97-0063-S, slip op. at 7-11 (D. Idaho June 22, 1998).

In Perry v. FBI, 759 F.2d at 1275, the Court of Appeals for the Seventh Circuit, without discussing subsection (g)(1)(C), adopted a comparatively narrower construction of subsection (e)(5), holding that "when one federal agency sends records to another agency to be used by the latter in making a decision about someone, the responsibility for ensuring that the information is accurate, relevant, timely, and complete lies with the receiving agency--the agency making 'the determination' about the person in question--not the sending agency."

Subsequently, though, in Dickson v. OPM, 828 F.2d 32, 36-40 (D.C. Cir. 1987), the D.C. Circuit held that a subsection (g)(1)(C) damages lawsuit is proper against any agency maintaining a record violating the standard of fairness mandated by the Act, regardless of whether that agency is the one making the adverse determination. See also Blazy v. Tenet, 979 F. Supp. 10, 19 (D.D.C. 1997) ("The adverse determination need not be made by the agency that actually maintains the record so long as it flowed from the inaccurate record." (citing Dickson)), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539, 556 (S.D.N.Y. 1980) (applying subsection (e)(5) to agency whose records were used by another agency in making determination about individual); R.R. v. Department of the Army, 482 F. Supp. at 773 (same). In so holding, the D.C. Circuit noted that "the structure of the Act makes it abundantly clear that [sub]section (g) civil remedy actions operate independently of the obligations imposed on agency recordkeeping pursuant to [sub]section (e)(5)." Dickson, 828 F.2d at 38. In Dickson, the D.C. Circuit distinguished Perry on the grounds that "[a]ppellant is not proceeding under [sub]section (e)(5), Perry does not discuss [sub]section (g)(1)(C), and the construction of (e)(5) does not migrate by logic or statutory mandate to a separate [sub]section on civil remedies." 828 F.2d at 38; see also Doe v. FBI, 718 F. Supp. at 95 n.15 (noting conflict in cases but finding that Dickson's holding obviated need "to enter that thicket").

Assuming that causation is proven, "actual damages" sustained by the individual as a result of the failure--or $1000, whichever is greater--are recoverable. See 5 U.S.C.  552a(g)(4)(A). The meaning of "actual damages" and the $1000 minimum recovery provision are discussed below under "Intentional/Willful Standard and Actual Damages in Accuracy and Other Damages Lawsuits."


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