United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2009 Decided June 16, 2009
No. 08-5165
TERESA C. CHAMBERS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF THE INTERIOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00380-JR)
Paula Dinerstein argued the cause for the appellant.
Beverly M. Russell, Assistant United States Attorney, argued
the cause for the appellee. Jeffrey A. Taylor, United States
Attorney at the time the brief was filed, and R. Craig Lawrence,
Assistant United States Attorney, were on brief.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Teresa C.
Chambers, former Chief of the United States Park Police,
brought this action against the Department of the Interior
(Interior) under the Privacy Act, 5 U.S.C. § 552a, alleging that
2
Interior violated the Privacy Act by (1) failing to provide her
access to an appraisal of her job performance allegedly prepared
by National Park Service (NPS) Deputy Director Donald W.
Murphy in 2003 (Count I) and (2) failing to maintain and
safeguard the appraisal (Count II). The district court granted
summary judgment in Interior’s favor on Count I and dismissed
Count II for failure to state a claim. We reverse the summary
judgment on Count I because the record, viewed most favorably
to Chambers, presents a genuine issue of material fact regarding
whether Interior intentionally destroyed the appraisal after
Chambers requested access to it. We similarly affirm the court’s
denial of summary judgment to Chambers on Count I based on
the same triable issue of fact. We affirm the court’s dismissal of
Count II because Chambers does not point to any adverse agency
determination she experienced because of Interior’s alleged
failure to maintain the appraisal.
I.
On a motion for summary judgment, we view the facts in
the light most favorable to the nonmoving party. Islamic Am.
Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007).
So viewed, the record establishes the following facts. On
February 10, 2002, Chambers assumed her duties as Chief of the
United States Park Police, a unit of NPS, which is in turn a
bureau within Interior. On September 22, 2003, Murphy,
Chambers’s supervisor, informed her by e-mail that he had
prepared her performance appraisal and that his secretary would
contact her to set up a meeting to review it; he also informed her
in person that he had completed the appraisal, adding “Don’t
worry. It’s a good one.” Compl. ¶ 6, Chambers v. Dep’t of
Interior, No. 05CV00380 (D.D.C. Feb. 24, 2005) (Compl.);
Second Affidavit of Teresa C. Chambers ¶¶ 6-7 (June 20, 2007),
(Joint Appendix (JA) A174). No meeting ever occurred.
On December 2, 2003, the Washington Post published an
article quoting from an interview with Chambers in which she
3
expressed “concerns about budget limitations and the potential
impacts on protection of national icons and persons visiting the
parks.” Compl. ¶ 8. The same day she expressed similar
concerns in an e-mail to “a high-ranking” congressional staff
member, the substance of which “was shared with [Chambers’s]
superiors, including Mr. Murphy.” Id. ¶ 9.
On December 5, 2003, Chambers was placed on
administrative leave. One week later, she was informed she
could return to her duty post if she agreed to certain
“stipulations,” including that she obtain prior approval from
Murphy or his designee before contacting the media or a member
of the Congress or its staff. Id. ¶¶ 11-12. Chambers declined the
reinstatement terms and on December 17, 2003, Murphy
proposed that Chambers be removed from federal service. Id.
¶¶ 13-14.
On January 29, 2004, Chambers filed a complaint with the
Office of Special Counsel (OSC) under the Whistleblower
Protection Act, 5 U.S.C. § 2302(b)(8) (WPA). When the OSC
failed to act on the complaint, she filed an appeal to the Merit
Systems Protection Board (MSPB). On July 9, 2004, Interior
issued a decision removing Chambers from federal service,
which Chambers also appealed to the MSPB. The WPA claim
remains before the MSPB.1
During his deposition in the MSPB appeal, Murphy testified
that in late summer 2003, he prepared a written “narrative”
“appraisal” of Chambers’s performance over the previous fiscal
year (2002-2003) which was “in final form.” Dep. of Donald
1
The MSPB affirmed an administrative law judge’s decision
upholding Chambers’s removal and concluding that she had not made
a protected disclosure under the WPA. On appeal, the Federal Circuit
affirmed the MSPB’s decision as to Chambers’s removal but vacated
and remanded the WPA claim. See Chambers v. Dep’t of Interior, 515
F.3d 1362, 1371 (Fed. Cir. 2008).
4
W. Murphy at 18-20 (Aug. 11, 2004) (JA A34-36) (8/11/04
Murphy Dep.). He also noted then that Terrie Fajardo, retired
NPS Chief of Human Resources, had seen the appraisal. Id. at
22-23 (JA A38-39). After she was “denied access” to the
appraisal in the MSPB proceeding, Compl. ¶ 20, Chambers,
through counsel, submitted a request pursuant to the Privacy Act
and the Freedom of Information Act, 5 U.S.C. § 552, (FOIA)
seeking the following documents:
1. A draft employee evaluation written by
Deputy Director Donald Murphy concerning
Chief Teresa Chambers during the time period
covering 2002 and/or 2003.
2. All routings or transmittal documents
indicating what officials received copies of the
draft evaluation referred to in 1.
Letter from Richard Condit, General Counsel, Public Employees
for Envt’l Responsibility, to Diane Cooke, FOIA Officer, NPS
Headquarters (Oct. 26, 2004) (JA A43). In response to the
request, Murphy searched his e-mails for the appraisal and
instructed his assistant, Janice Brooks, to search his files.
Brooks discovered “a draft performance plan” for Chambers
entitled “Senior Executive Service Performance Plan” (SES
Plan). Dep. of Donald W. Murphy, at 24-25 (Nov. 21, 2005)
(11/21/05 Murphy Dep.); see Decl. of Diane Cooke ¶¶ 4-5 (June
15, 2007) (JA A163) (Cooke Decl.). The SES Plan, dated
February 11, 2003, sets out various performance standards for
Chambers to meet but contains no narrative appraisal of her
performance. See SES Plan (JA A28-30). Brooks forwarded the
SES Plan, along with a copy of Chambers’s request, to Steve
Krutz, an Employee Relations Specialist in NPS’s Division of
Labor and Employee Relations. Krutz “did not consider the SES
Plan to be responsive” but nonetheless forwarded a copy to NPS
FOIA Officer Diane Cooke. Cooke Decl. ¶¶ 5-6 (JA A163-64).
5
Interior’s Office of the Solicitor also reviewed the SES Plan and
determined it was not responsive to Chambers’s request.
In a January 18, 2005 letter to Chambers’s counsel, NPS
stated it had searched its files and “did not find any documents
responsive to [her] request.” Letter from Alfred J. Poole III,
Acting Associate Director, Administration, Business Practices,
and Workforce Development, NPS, Department of Interior to
Richard Condit at 1 (Jan. 18, 2005) (JA A46). In response,
Chambers’s counsel informed Cooke he found NPS’s response
to the document request “not credible” and attached an excerpt
from Murphy’s MSPB deposition describing the “narrative”
appraisal he said he had prepared. Letter from Richard Condit
at 1-2 (Jan. 26, 2005) (JA A48-49). In the letter and a follow-up
e-mail, Chambers asked that NPS search further for the
appraisal. Accordingly, Cooke asked Murphy to search his files
again. Murphy responded to Cooke in a hand-written note that
“the Performance Appraisal” he referred to in his MSPB
deposition was “the same as the document already reviewed,”
meaning the non-narrative SES Plan. Note from Donald W.
Murphy to Diane M. Cooke (rec’d Feb. 15, 2005) (JA A53)
(Murphy Note); see also Decl. of Donald W. Murphy ¶ 3 (Apr.
13, 2005) (JA A59) (Murphy Decl.). He also characterized the
document as a prospective appraisal plan to assess Chambers’s
performance in fiscal year 2003-04. Id. On March 14, 2005,
NPS wrote Chambers that it had “found one document that [was]
potentially responsive to [her] request,” namely, the SES Plan,
which was enclosed. Letter from Alfred J. Poole III to Richard
Condit at 1 (Mar. 14, 2005) (JA A56).
Meanwhile, Chambers filed this action on February 24,
2005, asserting two claims: (1) Interior’s “willful refusal to
provide the records requested violates the Privacy Act,” Compl.
¶ 35 (citing 5 U.S.C. § 552a(d)) (Count I); and (2) Interior
“failed to establish and maintain physical safeguards to ensure
the security and confidentiality of records in its possession in
6
violation of the Privacy Act and [Interior]’s regulations,” id. ¶ 42
(citing 5 U.S.C. § 552a(e)(9), (10); 43 C.F.R. § 2.51) (Count II).
Chambers asked that the court either (1) declare that Interior
“violated the Privacy Act by withholding the requested records”
and order Interior “to immediately make the requested records
available to [Chambers]” or (2) declare that Interior “violated the
Privacy Act by failing to safeguard records pertaining to
[Chambers]” and award Chambers “damages for all lost income,
benefits, and/or other adverse impacts.” Id. ¶ 44. Chambers also
requested that the court award her “all costs and attorneys’ fees
pursuant to 5 U.S.C. § 552a(g)(2).” Id.
After the suit was filed, Stephanie Yu, an Attorney-Advisor
in Interior’s Office of the Solicitor, contacted retired NPS
Human Resources Chief Fajardo about the appraisal and Fajardo
affirmed that she had created a performance appraisal of
Chambers. Fajardo later testified that she and Murphy had
prepared the appraisal together, she had given Chambers a
“satisfactory” evaluation and she had delivered the “[f]inal”
appraisal to Murphy “personally.” Dep. of Terrie Fajardo at 20-
22 (Oct. 7, 2005) (JA A69-71) (10/7/05 Fajardo Dep.). She also
testified that she was “sure” she had retained a copy of the
appraisal on her computer, describing the electronic file’s likely
location on the hard drive, id. at 27 (JA A76), that she believed
she stored it on a floppy disk as was her normal practice, id. at
35-36 (JA A84-85), and that she had filed a hard copy inside a
filing cabinet in her office, id. at 47 (JA A95). Yu met with
Fajardo in August 2005 to search for the appraisal in NPS
Human Resources records. Fajardo was provided a box of
floppy disks in which she located one disk containing “a portion
of the file” in which she “had done Ms. Chambers’ performance
appraisal.” Dep. of Terrie Fajardo at 106 (Nov. 16, 2005) (JA
A113) (11/16/05 Fajardo Dep.). The file she found, however,
was only “part of a performance appraisal document,” including
7
the “performance standards”2 but not the “evaluation.” 10/7/05
Fajardo Dep. at 10-11 (JA A63-64). According to Fajardo, a
page was missing—“the part that was supposed to have been
marked where the comments were, where the comments that
[she] made that [she] discussed with Murphy—they weren’t
there.” 11/16/05 Fajardo Dep. at 106 (JA A113). Fajardo was
unable to search through her physical files at that time because
“[t]he individuals who knew the current location of the files . . .
were not in the office that day.” Cooke Decl. ¶ 17. In addition,
Fajardo’s old computer was no longer available to search
because it had been “prepared for surplus and disposal” and its
“hard drive memory . . . erased in its entirety as part of this
preparation” the previous month. Def.’s Resp. to Pl.’s First Req.
for Prod. of Docs. and Things, Chambers v. Dep’t of Interior,
No. 05CV00380 (D.D.C. Feb. 24, 2005), at 4. On November 17,
2005, Yu and another Interior lawyer met at the NPS offices and
searched through three filing cabinets to which, they were
informed, Fajardo’s files had been moved after her retirement.
They found no file, either electronic or paper, that appeared to
contain an appraisal of Chambers. Cooke Decl. ¶¶ 20-24.
Finally, on September 8, 2006, Yu searched Murphy’s files page
by page but found no appraisal. Id. ¶ 25.
The district court granted Interior’s motion to dismiss or,
alternatively, for summary judgment. Chambers v. U.S. Dep’t of
Interior, 538 F. Supp. 2d 262 (D.D.C. 2008). The court granted
summary judgment on Count I—for failure to provide access to
Chambers’s records under 5 U.S.C. § 552a(d)(1)—because it
concluded Interior had conducted an adequate search for the
missing appraisal. Id. at 267-68. The court dismissed Count
II—for failure to establish rules and safeguards to maintain the
2
Fajardo testified she and Murphy developed the standards
together—he had “drafted and reviewed” them and she had prepared
them “in final form.” 10/7/05 Fajardo Dep. at 18.
8
security and confidentiality of Chambers’s records—because it
concluded that the Privacy Act does not provide a remedy for
failure to retain agency records. Id. at 268-69.
Chambers then filed a timely notice of appeal.
II.
Chambers appeals both the district court’s summary
judgment on Count I and its dismissal of Count II. We address
each count separately, reviewing de novo the district court’s
disposition of each. See Islamic Am. Relief Agency, 477 F.3d at
732.
A. Count I
First, Chambers contests the summary judgment on Count
I, which alleges that Interior “willful[ly] refus[ed] to timely
provide the records requested.” Compl. ¶ 35 (citing 5 U.S.C.
§ 552a(d)). We may affirm the summary judgment only if,
“viewing all evidence in the light most favorable to [Chambers],
‘there is no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law.’ ”
Islamic Am. Relief Agency, 477 F.3d at 732 (quoting Fed. R. Civ.
P. 56(c)). “At summary judgment, ‘all inferences must be
viewed in a light most favorable to the non-moving party.’ ”
McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006) (quoting
Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)). Applying this
standard, we conclude that the district court improperly granted
summary judgment in Interior’s favor.
In a suit seeking agency documents—whether under the
Privacy Act or FOIA—“ ‘[a]t the summary judgment stage,
where the agency has the burden to show that it acted in
accordance with the statute, the court may rely on a reasonably
detailed affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched.’ ” Id.
9
at 14 (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d
321, 326 (D.C. Cir. 1999)). The district court concluded that the
Declaration of Diane Cooke, NPS FOIA and Privacy Act Officer,
which “gives a detailed description of the numerous searches that
[Interior] conducted,” satisfied this standard. Chambers, 538 F.
Supp. 2d at 267. The court reasoned:
The search of Murphy’s files was unquestionably
sufficient. The Cooke declaration explains that these
files were searched on three separate occasions, twice
by Murphy and his secretary, and once by Ms. Yu.
. . . The Cooke declaration explains that all
presently existing systems of records which might
reasonably have been expected to contain the
performance evaluation have been searched, some of
them numerous times.
Id. We agree with Chambers that the Cooke Declaration is not
adequate under the Privacy Act because, if all reasonable
evidentiary inferences are drawn in Chambers’s favor, a
reasonable jury could find that Interior intentionally destroyed
the document—rendering the subsequent search ineffective—and
there is therefore a genuine issue of material fact whether the
search was adequate. See Islamic Am. Relief Agency, 477 F.3d
at 732 (“ ‘A dispute over a material fact is “genuine” if the
evidence is “such that a reasonable jury could return a verdict for
the nonmoving party.” ’ ” (quoting McCready, 465 F.3d at 7
(quoting George v. Leavitt, 407 F.3d 405, 410 (D.C. Cir.
2005)))).
Generally, “an agency has no duty to retrieve and release
documents it once possessed but that it legitimately disposed of
prior to the date a FOIA request was received.” McGehee v.
CIA, 697 F.2d 1095, 1103 n.33 (D.C. Cir. 1983) (construing
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 155 n.9 (1980)) (first emphasis added), reh’g granted
10
and vacated in part in other respect, 711 F.2d 1076 (D.C. Cir.
1983); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1201 (D.C. Cir. 1991) (“If the agency is no longer in possession
of the document, for a reason that is not itself suspect, then the
agency is not improperly withholding that document . . . .”)
(emphasis added). Nonetheless, as the italicized language
suggests—and as the Government acknowledged at oral
argument, Chambers v. U.S. Dep’t of Interior, No. 08-5165, Oral
Argument Tr. at 18-20 (D.C. Cir. May 8, 2009) (Oral Argument
Tr.)—an agency is not shielded from liability if it intentionally
transfers or destroys a document after it has been requested under
FOIA or the Privacy Act. See Forsham v. Califano, 587 F.2d
1128, 1136 n.19 (D.C. Cir. 1978) (“We do not suggest that mere
physical possession of records by a government agency is the
sole criterion for determining whether they fall within the scope
of FOIA. Obviously a government agency cannot circumvent
FOIA by transferring physical possession of its records to a
warehouse or like bailee.”), aff'd, Forsham v. Harris, 445 U.S.
169 (1980); cf. Kissinger, 445 U.S. at 155 n.9 (“There is no
question that a [FOIA] ‘withholding’ must here be gauged by the
time at which the request is made since there is no FOIA
obligation to retain records prior to that request. . . . We need
not decide whether this standard might be displaced in the event
that it was shown that an agency official purposefully routed a
document out of agency possession in order to circumvent a
FOIA request.”); see, e.g., Judicial Watch, Inc. v. U.S. Dep’t of
Commerce, 34 F. Supp. 2d 28, 41 (D.D.C. 1998) (directing
magistrate judge to preside over discovery “designed to explore
the extent to which [Department of Commerce] . . . illegally
destroyed and discarded responsive information, and possible
methods for recovering whatever responsive information still
exists outside of the DOC’s possession”); Landmark Legal
Found. v. EPA, 272 F. Supp. 2d 59, 62 (D.D.C. 2003) (noting
that earlier in litigation court had held U.S. Environmental
Protection Agency in contempt and ordered it to pay plaintiff’s
11
costs and fees “caused by EPA’s contumacious conduct,”
namely, destroying “potentially responsive material contained on
hard drives and email backup tapes”). Thus, summary judgment
is inappropriate, as the Government all but acknowledged,3 if,
viewing all inferences in a light most favorable to Chambers, a
triable issue exists as to whether Murphy (or any one else at
Interior) intentionally destroyed the appraisal Chambers
requested. We conclude such a triable issue of fact exists.
3
The following colloquy occurred at oral argument:
Judge: . . . So, the government now agrees, the
government agrees that if [the appraisal] was intentionally
destroyed and they knew about it, then there would be a
cause of action under the Privacy Act. So the question then
is, was there a triable issue of fact on that question, correct?
Ms. Russell: No, Your Honor.
Judge: No?
Ms. Russell: There is no, there is no triable issue.
Judge: No, but isn’t that the question, whether there was?
Because this was summary judgment, right?
Ms. Russell: This, yes. This is summary judgment.
Judge: I mean, if a reasonable jury could have concluded
from the evidence that there was intentional destruction of
this document, then . . . summary judgment would have
been inappropriate, correct?
Ms. Russell: But I don’t think a reasonable judge, jury
could conclude—
Oral Argument Tr. at 20-21. Shortly thereafter, the panel
recharacterized this exchange: “Remember, a triable question about
whether it was intentionally destroyed. That’s the question you and
I agreed is critical.” Id. at 21. Government counsel did not demur.
12
The first time he was deposed, Murphy testified that in 2003
he had indeed prepared a “narrative” appraisal in “final form” of
Chambers’s past performance and that Fajardo had seen it.
8/11/04 Murphy Dep. at 18-20, 22-23. Fajardo too testified that
the appraisal existed and that she had stored it, as she routinely
did, on her computer’s hard drive, on a floppy disk and, in hard
copy, in a filing cabinet. 10/7/05 Fajardo Dep. at 27, 35-36, 47.
Yet, Interior’s response to Chambers’s first document request,
submitted on October 26, 2004, was limited to Murphy’s own
examination of his e-mails and his assistant’s inspection of his
files; no search was made of Fajardo’s computer, floppy disks or
filing cabinets, where, according to Fajardo’s testimony, the
appraisal was likely to be found. Then, after Chambers’s second
request in January 2005, Murphy recanted his earlier
characterization of the 2003 document as a “narrative”
“performance appraisal,” asserting it was in fact the non-
narrative SES Plan Brooks had found in his files to be used to
measure Chambers’s future performance. See Murphy Note ( JA
A53); Murphy Decl. ¶ 3 (JA A59). Further, notwithstanding
Chambers requested the appraisal for a second time in January
2005, Interior failed to undertake a thorough search until August
2005—one month after Interior erased Fajardo’s computer hard
drive—at which time, according to Fajardo, the “evaluation”
portion of the appraisal was missing from her floppy disk. When
Interior finally searched Fajardo’s paper files in November 2005,
the hard copy Fajardo insisted she had filed was likewise
missing. From this evidence, a jury could reasonably infer that
Murphy and Fajardo did prepare a narrative appraisal in 2003,
that Murphy subsequently misrepresented that the appraisal
consisted only of the SES Plan and that the appraisal was
thereafter intentionally removed from Murphy’s computer and
files and from Fajardo’s computer hard drive, floppy disk and
files before a thorough search for the appraisal was finally
undertaken in August 2005. Thus, there is a genuine issue of
material fact as to whether Interior (and in particular, Murphy)
13
intentionally destroyed the narrative appraisal identified by
Fajardo (and initially by Murphy as well) and, consequently, as
to whether Interior’s search for the appraisal was adequate as
well. As we explained above, Interior’s search would not be
adequate under the Privacy Act if Interior officials, aware of
Chambers’s document requests, deliberately destroyed her
performance appraisal before completing the search in order to
avoid providing the document to her. See supra pp. 10-11. Such
a search would not be “ ‘reasonably calculated to uncover all
relevant documents’ ”—which is what the Privacy Act, like
FOIA, requires, see Students Against Genocide v. Dep’t of State,
257 F.3d 828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v.
U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995))—but
instead would be designed to keep concealed the particular
document that is most relevant. Accordingly, we reverse the
district court’s grant of summary judgment in Interior’s favor.
At the same time, we affirm the court’s denial of Chambers’s
summary judgment motion because the same evidence, viewed
in the light most favorable to Interior, reveals a triable issue of
fact as to whether Interior intentionally destroyed documents or
whether a narrative appraisal in fact ever existed.
B. Count II
We next address Chambers’s challenge to the district court’s
dismissal of Count II. “[A]ccept[ing] the complaint’s factual
allegations as true and giv[ing] [Chambers] the benefit of all
inferences that can reasonably be drawn therefrom,” we affirm
the district court’s dismissal for failure to state a claim because
Chambers’s complaint fails to “ ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
Count II seeks to recover actual damages from Interior under
section 552a(g) of the Privacy Act for “fail[ing] to establish and
maintain physical safeguards to ensure the security and
14
confidentiality of records in its possession in violation of the
Privacy Act and [Interior]’s regulations,” alleging Interior’s
“refusal to properly safeguard records pertaining to [Chambers]
has damaged [her] ability to successfully compete for positions
in the federal government.” Compl. ¶ 42-43 (citing 5 U.S.C.
§ 552a(e)(9), (10); 43 C.F.R. § 2.51).4 Subsection (g)(4) of
section 552a authorizes recovery of actual damages in an action
brought under subsection (g)(1)(C) or (D) if “the court
determines that the agency acted in a manner which was
intentional or willful.” By its terms, subsection (g)(1)(C) applies
if, as alleged here, an agency fails to maintain a record accurately
4
Section 552a(e)(9) and (10) imposes on each federal agency the
duties to
(9) establish rules of conduct for persons involved in the
design, development, operation, or maintenance of any
system of records, or in maintaining any record, and instruct
each such person with respect to such rules and the
requirements of this section, including any other rules and
procedures adopted pursuant to this section and the penalties
for noncompliance; [and]
(10) establish appropriate administrative, technical, and
physical safeguards to insure the security and confidentiality
of records and to protect against any anticipated threats or
hazards to their security or integrity which could result in
substantial harm, embarrassment, inconvenience, or
unfairness to any individual on whom information is
maintained; . . . .
5 U.S.C. § 552a(e)(9)-(10). Regulation 2.51 recites the “Privacy Act
require[ment] that records subject to the Act be maintained with
appropriate administrative, technical and physical safeguards to insure
the security and confidentiality of records and to protect against any
anticipated threats or hazards to their security or integrity” and sets out
in detail rules for physically maintaining records. 43 C.F.R. § 2.51.
15
and completely.5 To recover damages in an action under
subsection (g)(1)(C), a plaintiff must establish four elements:
(1) he has been aggrieved by an adverse determination;
(2) the [agency] failed to maintain his records with the
degree of accuracy necessary to assure fairness in the
determination; (3) the [agency’s] reliance on the
inaccurate records was the proximate cause of the
adverse determination; and (4) the [agency] acted
intentionally or willfully in failing to maintain accurate
records.
Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657 (D.C. Cir.
1996) (citing Dickson v. Office of Pers. Mgmt., 828 F.2d 32, 37
(D.C. Cir. 1987); Rose v. United States, 905 F.2d 1257, 1259
(9th Cir. 1990)). Central to a cause of action under subsection
5
Subsection (g)(1)(C) provides:
Whenever any agency
...
(C) 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,
and the district courts of the United States shall have
jurisdiction in the matters under the provisions of this
Subsection.
5 U.S.C. § 552a(g)(1)(C).
16
(g)(1)(C) is the existence of an adverse agency determination
resulting from inaccurate agency records. Yet Chambers does
not even attempt to identify an adverse determination by a
government agency that was caused by Interior’s alleged failure
to accurately maintain her records. Instead, she claims Interior’s
loss of her appraisal has had an “adverse effect” in that it has
“hampered [her] in her ability to apply for jobs in the federal
government by the lack of a performance appraisal.” Chambers
Br. 28; see also Reply Br. 20 (“Here, a Privacy Act record was
destroyed, resulting in an adverse effect on Chambers’ ability to
seek employment and to seek reinstatement to her former
position.”).6 Such an adverse effect, however, is not enough to
make out a claim under subsection (g)(1)(C),which requires a
specific “adverse determination” resulting from an agency’s
failure to maintain accurate records.7 Because Chambers does
6
In particular she asserts that when she reapplied for the position
of U.S. Park Police Chief, she was “unable to provide the most recent
performance evaluation that the application required,” Chambers Br.
at 28, but not that Interior or NPS took an adverse action against
her—such as rejecting her application outright or refusing to hire
her—because she lacked an accurate appraisal.
7
Chambers now appears to pursue Count II solely under
subsection (g)(1)(D), which authorizes a cause of action based on
“adverse effect.” See Reply Br. at 19-20 (“The Act specifically
provides a damages remedy for violation of its provisions ‘in such a
way as to have an adverse effect on an individual.’ ” (quoting 5 U.S.C.
§ 552a(g)(1)(D), (g)(4))). In Deters, however, we held unequivocally
that a plaintiff seeking damages for failure to maintain records “must
sue under subsection (g)(1)(C) and not subsection (g)(1)(D).” Deters,
85 F.3d at 660. Chambers’s exclusive remedy, if any, for failure to
maintain records therefore lies, as it did in Deters, under section
552(g)(1)(C). Perhaps to avoid this result, Chambers casts her
complaint as a violation of the duties imposed under section
552a(e)(9) and (10), supra note 4—to “establish rules of conduct” for
17
not point to any such agency determination, we affirm the district
court’s dismissal of Count II. Cf. Hutchinson v. CIA, 393 F.3d
226, 230 (D.C. Cir. 2005) (affirming dismissal of subsection
(g)(1)(C) claim in part because “record fails to show proximate
cause—a vital element of a section 552a(g)(1)(C) claim”) (citing
Deters, 85 F.3d at 657).
For the foregoing reasons, we affirm the district court’s
dismissal of Count II and reverse the summary judgment in favor
of Interior on Count I, remanding for proceedings consistent with
this opinion. In remanding, we note that, should Chambers
prevail on Count I, the available remedies may be limited given
that additional searches at this late date would likely prove futile.
Nonetheless, she may be entitled at a minimum to “reasonable
attorney fees and other litigation costs” pursuant to section
552(g)(2)(B).
So ordered.
maintaining records and “appropriate administrative, technical, and
physical safeguards to insure [their] security and
confidentiality”—rather than of the duty under section 552a(e)(5) to
“maintain . . . records . . . as is reasonably necessary to assure fairness
to the individual in the determination,” which, as Deters explains,
underlies a section 552a(e)(5) cause of action. Chambers has not
identified any rule or safeguard, however, that Interior should have
established but did not. See Oral Argument Tr. at 11 (“We’re not
alleging that they haven’t established rules.”); see also 43 C.F.R.
§ 2.51 (setting out detailed rules for physically maintaining records).
To the contrary, at oral argument, Chambers’s counsel acknowledged
she is “alleging that in this case, the document is not safeguarded and
was not maintained.” Oral Argument Tr. at 11 (emphases added).
The statutory duty to safeguard and maintain records arises solely
under section 552a(e)(5).