Augustus v. Harvey

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________
)
ALMA T. AUGUSTUS, )
)
Plaintiff, )
)
v. ) Civil Action No. 02-2545 (RWR)
)
JOHN MCHUGH, )
Secretary of the Army, )
)
Defendant. )
_________________________)

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Alma Augustus brought this action against

the Secretary1 of the United States Army alleging violations of

the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et

seq., the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

and the Privacy Act, 5 U.S.C. § 552a.2 The parties have each

moved for summary judgment under Federal Rule of Civil Procedure

56. Because the Secretary failed to comply with the procedures

prescribed in the Army’s regulations when responding to

complaints Augustus filed, judgment will be entered for her on

her APA claim. Because Augustus either has not factually

substantiated her Privacy Act claim or has not presented facts

revealing a genuine dispute over the Secretary’s evidence

disproving her Privacy Act claim, summary judgment will be

1
John McHugh is substituted for Francis J. Harvey under
Federal Rule of Civil Procedure 25(d).
2
Several other claims have been dismissed.
 - 2 -

entered for the Secretary as to that claim. However, because

neither party has demonstrated entitlement to summary judgment as

to Augustus’s FOIA claim, both parties’ motions will be denied

without prejudice as to that claim.

BACKGROUND

The background of this case is discussed fully in an earlier

Memorandum Opinion and Order issued in this case. (See Docket

#34, Sept. 29, 2004 Mem. Op. and Order (“Mem. Op.”).) In short,

Augustus, an African-American woman, was a Lieutenant Colonel in

the United States Army National Guard Bureau (“NGB”) assigned to

active duty as an Automation Officer at the Army National Guard

Readiness Center in Arlington, Virginia. (Am. Compl. at 1; see

also Mem. Op. at 3.) She claims that she was unlawfully denied a

promotion and suffered from other unlawful forms of

discrimination and retaliation, including not being considered

for the Army’s scholarship awards, after she voiced concerns

about the NGB’s alleged discriminatory personnel policies and

procedures. (Am. Compl. at 2-3; see also Pl.’s Mem. of P. & A.

in Supp. of Pl.’s Opp’n to Def.’s Summ. J. and Cross Mot. for

Summ. J. (“Pl.’s Mem.”) at 15.) Although Augustus took steps

through informal channels to specify her concerns about NGB’s

discriminatory practices, she was not promoted and the NGB failed

to address her concerns. (Mem. Op. at 5.) She filed a formal
 - 3 -

equal opportunity (“EO”) complaint with the NGB. (Am. Compl. Ex.

3.)

Augustus asserts that the NGB’s discriminatory motives

underlying its failure to promote her were memorialized in a

report of investigation (“ROI”) prepared by Major General Peter

Gravett in March 2001. (Id. at 5 ¶ 7.) She claims that the ROI

“substantiated [her] unlawful gender and race discrimination”

claims and recommended that she be promoted retroactively to the

rank of Colonel. (Id.) Augustus claims further that Lieutenant

General Roger Schultz and Major General James T. Jackson approved

a separate ROI and deemed Gravett’s ROI procedurally and

substantively flawed and disregarded its recommendations. (Mem.

Op. at 8.)

On account of the perceived discrimination, Augustus filed

three Article 138 complaints3 with the NGB, requesting that it

investigate violations of her privacy that allegedly occurred

when the NGB’s Inspector General’s Office (“IG”) revealed to

Schultz both the discrimination allegations it received

confidentially from Augustus and her identity, investigate a

threatened reprisal for formally lodging complaints, and

investigate allegations that Schultz threatened to take adverse

3
Article 138 Complaints, formal complaints lodged under
military regulations, were filed against Schultz, a Lieutenant
Colonel Mitchell, and the NGB Inspector General’s Office. (Mem.
Op. at 39.)
 - 4 -

action against her. (Id. at 9-10.) Augustus also asserts that

her Privacy Act rights were violated when, among other things,

the NGB questioned her -- without providing her with a copy of a

Privacy Act statement -- about the NGB’s suspicion that she

violated the Privacy Act herself. (Id. at 12.) The NGB returned

the complaints to her, claiming they were deficient for failure

to meet Army regulations.

Augustus filed an eleven-count amended complaint in this

court alleging that the United States Army engaged in sex-based

and race-based discrimination and took other actions that

violated her rights under the Constitution, federal statutes, and

internal Army regulations and operating procedures. The

Secretary filed a motion to dismiss the amended complaint under

Rule 12(b)(1) for lack of subject matter jurisdiction and under

Rule 12(b)(6) for failure to state a claim for which relief can

be granted. The memorandum opinion addressing the defendant’s

motion to dismiss grouped Augustus’s various allegations into

eight claims: (1) discriminatory non-promotion (Counts 1, 5, 7,

9, 11); (2) erroneous records (counts 1, 6, 8); (3) failure to

investigate Article 138 complaints (Counts 1, 11); (4) procedural

inadequacies in investigating her EO complaint (Counts 1, 11);

(5) a general atmosphere of discrimination in the Army (Counts 1,

3, 5, 7, 9, 11); (6) violation of FOIA (Count 10); (7) violation

of the Privacy Act (Count 6); and (8) retaliation under the
 - 5 -

Military Whistleblower Protection Act (“MWPA”) (Counts 1, 2, 5,

8, 11). (Mem. Op. at 15.) The Secretary’s motion to dismiss was

granted in part and denied in part, and most, but not all, of

Augustus’s claims were dismissed for want of subject matter

jurisdiction. The Secretary’s motion was denied with respect to

Augustus’s (1) Article 138 claims under the APA; (2) FOIA claim

seeking an unredacted copy of Gravett’s ROI4; and (3) Privacy Act

claim for damages, alleging that the defendant invaded her

privacy by exceeding the Privacy Act’s limitations on collecting

information from third parties, failing to publish a record

keeping system, and failing to safeguard her private information.

The parties have cross-moved for summary judgment as to these

remaining claims.

DISCUSSION

Rule 56(c) provides that summary judgment may be granted “if

the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A dispute about a

4
Although the memorandum opinion assessed this claim under
only the FOIA, Augustus’s cross-motion for summary judgment
argues for a copy of the ROI under the Privacy Act as well.
(Pl.’s Mem. of P. & A. in Supp. of Pl.’s Opp’n to Def.’s Summ. J.
and Cross Mot. for Summ. J. (“Pl.’s Mem.”) at 7.) This claim in
the amended complaint was captioned as a Freedom of Information
claim, but the text did mention the Privacy Act. (See Am. Compl.
at 21.) This claim, therefore, will be treated as a claim
regarding the ROI under both FOIA and the Privacy Act.
 - 6 -

material fact is “genuine . . . if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(internal quotation marks omitted). Facts in dispute are

material if they are capable of affecting the outcome of the suit

under governing substantive law. Id. In considering a motion

for summary judgment, a court must view all evidence and

inferences to be drawn from the underlying facts “in the light

most favorable to the party opposing the motion.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In opposing a motion for summary judgment “‘an adverse party

may not rest upon the mere allegations or denials of the adverse

party’s pleading[.]’” Heller v. Fortis Benefits Ins. Co., 142

F.3d 487, 492 (D.C. Cir. 1998) (quoting Fed. R. Civ. P. 56(e)

(1987)). Rather, “‘the adverse party’s response, by affidavits

or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial. If the

adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.’” Id.

(quoting Fed. R. Civ. P. 56(e) (1987)).

I. ARTICLE 138 COMPLAINTS

Augustus alleges that the Army arbitrarily and capriciously

failed to follow its own regulations when processing her Article

138 complaints against Schultz, Lieutenant Colonel Mitchell, and
 - 7 -

the IG, in violation of the APA. An agency’s alleged failure to

follow its own regulations is reviewable under the APA. See

Webster v. Doe, 486 U.S. 592, 602 n.7 (1988). Under the APA, a

reviewing court must “hold unlawful and set aside agency action

. . . found to be arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law[.]” 5 U.S.C. § 706.

“The APA [also] provides that, in reviewing agency action, the

court ‘shall’ take account of ‘the rule of prejudicial error,’ 5

U.S.C. § 706, that is, whether the error caused prejudice.”

Nevada v. Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006). “If

the agency’s mistake did not affect the outcome, . . . it would

be senseless to vacate and remand for reconsideration.” PDK

Labs. Inc., v. U.S. Drug Enforcement Auth., 362 F.3d 786, 799

(D.C. Cir. 2004).

An Article 138 complaint allows

[a]ny member of the armed forces who believes [her]self
wronged by [her] commanding officer, and who, upon due
application to that commanding officer, is refused
redress, [to] complain to any superior commissioned
officer, who shall forward the complaint to the officer
exercising general court-martial jurisdiction over the
officer against whom it is made.

10 U.S.C. § 938. Only certain wrongs may be righted through the

Article 138 complaint process. If “other, more specific channels

and procedures . . . ensure the soldier has an adequate

opportunity to be heard[,] . . . [then] [t]hose specific

procedures” should be used. Id. ¶ 20-5(a). “Article 138
 - 8 -

procedures should neither substitute for nor duplicate them.”

Id.5

Army Regulation 27-106 sets forth the specific procedures

required to file an Article 138 complaint. These require the

soldier filing the complaint first to attempt informal

communication between herself and her commanding officer, Army

Reg. 27-10 ¶ 20-3, and then to file a request for redress, id.

¶ 20-6, before finally filing a formal Article 138 complaint.

Id. ¶ 20-7. An Article 138 complaint must contain the identity

of the offending commanding officer. Id. ¶ 19-7(a)(5). A

complaint may be rejected if it “does not substantially meet the

requirements of Article 138 . . . [and] no determination as to

the merits of the complaint is required. Unless the deficiency

is waived . . . , such a complaint will be returned to the

complainant with a written explanation of the deficiency and, if

correctable, how it may be corrected.” Id. ¶ 20-10(a)(1).

Augustus claims that the Army failed to comply with ¶ 20-

10’s requirement that it provide her a written explanation of the

5
Inappropriate matters for Article 138 resolution include
appeals from evaluation reports and the placement of adverse
information in a personnel file. Army Reg. 27-10 ¶ 20-5(b)(7)-
(8).
6
Cites to Army Regulations discussed in this portion of the
Memorandum Opinion concerning Augustus’s Article 138 complaints
cite to the then-pending Army Regulations. See Army Reg. 27-10
(1999); id. 20-10 (1994). Cites elsewhere are to the current
versions of the Army Regulations.
 - 9 -

deficiencies in her Article 138 complaints, and that this failure

caused her irreparable harm. (Pl.’s Mem. at 6-7, 10.) The Army

contends that Augustus’s Article 138 complaints were properly

processed and determined to be fatally deficient, and that

despite the fatal deficiencies in her complaints, the Army

nonetheless took steps through appropriate administrative

channels to address the substance of her complaints. (Def.’s

Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. (“Def.’s

Mem.”) at 6-14; see also A.R. filed on March 5, 2009 (“First

A.R.”), Tab B at 7-8.7)

Augustus’s Article 138 complaint against Schultz alleges

that Schultz initiated a “[p]rivacy issues investigation against

[her in] retaliation, reprisal, and retaliatory harassment for

[her] engagement in ‘Protected Communications’ with the [IG] and

an EEO investigation . . . to stop unlawful discrimination

against [her].” (First A.R., Tab B at 10; A.R. filed on Nov. 4,

2010 (“Second A.R.”) at 6.) The Secretary’s brief explains that

the Army found Augustus’s Article 138 complaint against Schultz

to be deficient because Schultz was not Augustus’s commanding

7
The First A.R. contains documents pertaining to Augustus’s
APA, FOIA, and Privacy Act claims. By contrast, the November 4,
2010 administrative record (“Second A.R.”) includes only those
documents on which Jackson relied to determine that Augustus’s
Article 138 complaints were deficient under Army Reg. 27-10 ¶ 20-
10.
 - 10 -

officer.8 (Def.’s Mem. at 9 n.2.) Under 10 U.S.C. § 938, the

subject of a soldier’s Article 138 complaint must be her

commanding officer. See 10 U.S.C. § 938. Though certain

deficiencies in Article 138 complaints may be waived, this

particular deficiency cannot be waived. See Army Reg. 27-10

¶ 20-10(b)(3)(b). (See also First A.R., Tab B at 84; Second A.R.

at 21.) Augustus’s Article 138 complaint against Mitchell

alleges that (1) by reporting that Augustus may have obtained

personnel documents in violation of the Privacy Act, Mitchell

violated Augustus’s confidentiality; (2) she was “being

threatened with reprisal because of the . . . disclosure of [her]

identity and the nature of the information” disclosed; and (3)

she was “being threatened with unfavorable personnel action and

the withholding of favorable personnel actions regarding [her]

EEO complaint[.]” (First A.R., Tab B at 13; Second A.R. at 8.)

The Secretary’s brief explains that the Army found that

Augustus’s complaint against Mitchell was fatally deficient

because Mitchell was not Augustus’s commanding officer, a

8
The Secretary’s brief also explains that Augustus’s
Article 138 complaint against Schultz was deficient because
Augustus’s alleged injuries were subject to review under
alternative administrative procedures, including reprisal for
protected communications with the IG. (Def.’s Mem. at 9.) Any
reprisal for communicating with the IG is subject to review under
10 U.S.C. § 1034. Army Regulation 27-10 explicitly informs that
reprisal allegations should be reported under 10 U.S.C. § 1034,
rather than brought as an Article 138 complaint. Army Reg. 27-10
¶ 20-5(b)(3).
 - 11 -

deficiency like the one in her complaint against Schultz.9

(Def.’s Mem. at 11.) See 10 U.S.C. § 938. Finally, Augustus’s

third Article 138 complaint was filed against the Inspector

General’s Office seeking “redress of wrongs committed against

[her] by the NGB-IG office[.]” (First A.R., Tab B at 12; Second

A.R. at 9.) The Secretary’s brief explains that this complaint

was deficient because it impermissibly named as a respondent an

office rather than a commanding officer, and Augustus had not

requested redress before filing the complaint. (Def.’s Mem. at

12-13.)10

On April 17, 2001, Jackson wrote a memorandum to Augustus

returning her Article 138 complaints to her with the following

explanation: “Your complaints, pursuant to Article 138, UCMJ, and

[Army Regulation] 27-10, Chapter 20, are deficient. Accordingly,

they are returned without action.” (First A.R., Tab C at 826-28;

Second A.R. at 2; see also id. at 21 (exempting reviewing

officers from making a determination on a deficient complaint).)

The memorandum also announced that because the complaints

9
The Secretary’s brief also explains that Augustus’s
complaint was deficient because she reportedly failed to submit a
request for redress before filing the complaint. (Def.’s Mem. at
11.)
10
Augustus states in her statement of material facts that
naming the “NGB IG” was intended to refer to Cronin Byrd, the
Inspector General. (Pl.’s Stmt. of Material Facts [Dkt. Entry
#94] at 6.) The complaint nevertheless failed to identify Byrd
or anyone else as her commanding officer.
 - 12 -

“include allegations of misconduct by a General Officer and

various Inspectors General,” copies of the complaints would be

forwarded to the Department of the Army Inspector General for

appropriate investigation and action under Army Reg. 20-1 ¶ 7-

3(h), (i). (Second A.R. at 2.) Jackson also attached as an

enclosure to the memorandum an information paper that the

Secretary claims “outlin[es] the proper procedures for filing an

Article 138 complaint.”11 (Def.’s Mot. for Summ. J. at 10; see

also First A.R., Tab C at 826, Second A.R. at 4.)12

Army Regulation 27-10 ¶ 20-10(a)(1) requires the Army to

11
The Secretary’s description is unduly generous. The
“information paper” is a half-page advisory to commanders about
resolving Article 138 complaints. While it alerts commanders
that soldiers must follow the procedures outlined in AR 27-10,
Chapter 20, in order to file an Article 138 complaint, the
Chapter 20 procedures the information paper excerpts are seven
pages long (Second A.R., Tab C at 19-25), and are not reproduced
in the information paper that Augustus received.
12
The Secretary deemed Jackson’s letter to be final agency
action within the meaning of the APA, 5 U.S.C. § 704. (See First
A.R., Ex. 1 at 4.) However, the parties’ briefs do not analyze
this issue. In determining whether an agency action is final,
courts consider if “its impact is ‘direct and immediate,’
Franklin v. Massachusetts, 505 U.S. 788, 796-97 (1992); whether
the action ‘mark[s] the consummation of the agency’s
decisionmaking process,’ Bennett v. Spear, 520 U.S. 154, 178
(1997); and whether the action is one by which ‘rights or
obligations have been determined, or from which legal
consequences will flow.’” Colo. Farm Bureau Fed’n v. U.S. Forest
Serv., 220 F.3d 1171, 1173-1174 (10th Cir. 2000) (internal
citation omitted). Because “[t]he requirement of final agency
action is not jurisdictional[,]” Trudeau v. Fed. Trade Comm’n,
456 F.3d 178, 184 (D.C. Cir. 2006) (emphasis in original)
(internal quotation marks and citation omitted), and the
Secretary has not raised this defense, it is waived. See, e.g.,
Hinton v. Corr. Corp. of Am., 623 F. Supp. 2d 61, 63 n.2 (D.D.C.
2009).
 - 13 -

provide a complainant a written explanation of any deficiency in

any Article 138 complaint that is rejected for failure to

substantially meet the requirements of Article 138, and a written

explanation of how the deficiency can be corrected if it is

correctable. (Second A.R. at 21.) What seems obvious is that

the language of the regulation seeks to avoid an explanation that

simply says “your complaint is deficient. Go read the rules and

figure out why.” Jackson’s letter did just that. The

Secretary’s brief, on the other hand, provided fairly fulsome

explanations for the deficiencies found in the three Article 138

complaints. It provided, though, no justification for why those

detailed explanations were not provided in Jackson’s letter. Nor

did the Secretary’s brief cite any authority supporting the terse

Jackson language as adequate to satisfy the required level of

explanation. The undisputed material facts reveal that the

Army’s letter to Augustus was not in accordance with its own

regulations. Accordingly, judgment will be entered for Augustus

on her Article 138 claims brought under the APA. However, since

the Secretary’s brief provides her with the explanations to which

she was originally entitled for why her complaints were

deficient, and the original failure to supply the explanations

did not affect the decision to reject the complaints as

deficient, no further relief is warranted.

II. FOIA/PRIVACY ACT CLAIMS SEEKING GRAVETT’S ROI

Augustus seeks, under FOIA and the Privacy Act, an
 - 14 -

unredacted copy of Gravett’s ROI that was drafted for the purpose

of investigating her discrimination claims. She asserts that the

ROI the Army produced contained “tens of thousands of

unlawful[ly] redacted items” and that because a “[Privacy

Act]/FOIA request gives [her] more substantial rights than just a

FOIA request[,]” she is entitled to an unredacted copy of the

ROI. (Pl.’s Mem. at 7-8, 10-13.) The defendant opposes

Augustus’s request for an unredacted copy of the ROI, stating

that the Army lawfully redacted certain information “under FOIA

exemptions applicable to release of agency records[.]” (Def.’s

Suppl. Response (“Def.’s Suppl.”) at 2 (emphasis in original).)13

A. FOIA

Under FOIA, “‘a federal agency must disclose agency records

unless they may be withheld pursuant to one of the nine

enumerated exemptions listed in § 552(b).’” Clemmons v. U.S.

Army Crime Records Ctr., Civil Action No. 05-02353 (RCL), 2007 WL

1020827, at *5 (D.D.C. Mar. 30, 2007) (quoting U.S. Dep’t of

Justice v. Julian, 486 U.S. 1, 8 (1988)). Because, however, FOIA

“‘calls for broad disclosure of Government records[,]’ . . .

courts have construed the exemptions to FOIA very narrowly to

allow for a greater dissemination of information.” Id. (quoting

CIA v. Sims, 471 U.S. 159, 167 (1985)).

13
The Secretary initially withheld the ROI on the basis of
the deliberative process privilege under FOIA, but later withdrew
the privilege as a basis for withholding the ROI. (Def.’s Suppl.
Response (“Def.’s Suppl.”) at 7 n.4.)
 - 15 -

The Secretary asserts that the “government has properly

withheld the redacted information in order to protect the privacy

of the individuals with whom Plaintiff had discussed her

allegations and about whom Plaintiff has made allegations” and

that Augustus has neither submitted waivers from these

individuals nor “offered a public interest that would overcome

the privacy interests at stake.” (Def.’s Suppl. at 17.) The

defendant invokes FOIA exemptions 6 and 7(C) (id. at 6),14 which

exempt the government from having to disclose (1) “personnel and

medical files and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy;”

and (2) “records or information compiled for law enforcement

purposes, but only to the extent that the production of such law

enforcement records or information . . . could reasonably be

expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6), (7)(C).

In redacting the information from Gravett’s ROI, the Army

grouped the redacted information into the following categories:

names and identifying information of witnesses interviewed during

the course of the ROI investigation; personal information of the

14
The Secretary also invokes exemption 5 of FOIA (see
Def.’s Suppl. Response at 6), but in a declaration offered in
support of its response to Augustus’s motion to compel production
of a Vaughn index, an attorney in the Department of the Army,
Office of the General Counsel, stated that he did not “identif[y]
any information that could be withheld under FOIA Exemption 5[.]”
Because the defendant’s declaration did not rely on FOIA
Exemption 5, Exemption 5 will not be discussed.
 - 16 -

investigation officer and panel members; names and identifying

information of individuals against whom allegations were made;

names and identifying information of third parties; and social

security numbers of individuals identified in the

investigation.15 (Def.’s Response to Pl.’s Mot. to Compel

Production of a Vaughn Index (“Def.’s Response to Pl.’s Mot. to

Compel”), Decl. of Davin Blackborrow (“Blackborow Decl.”)

¶ 10.) The Secretary relies on the declaration of Davin

Blackborrow to explain the agency’s decision to redact the names

and personal information.16 (See id.) In the declaration,

Blackborrow states that a “coded format [was] used . . . to

assist the Court and Plaintiff in reviewing the information

withheld within the context of the documents themselves.” (Id.)

He explains further that “[e]ach instance of information withheld

pursuant to the FOIA on the attached documents is accompanied by

a coded designation that corresponds to the categories” defined

by the agency. (Id.)

The administrative record, however, falls short of the

detailed process that the agency purports to have taken in

15
The Army also redacted from the record Augustus’s social
security number and the Secretary concedes that Augustus is
entitled to this information. (Def.’s Response to Pl.’s Mot. to
Compel Production of a Vaughn Index (“Def.’s Response to Pl.’s
Mot. to Compel”), Decl. of Davin Blackborrow (“Blackborrow
Decl.”) ¶ 10.)
16
The Secretary states that the Blackborrow declaration
“serves . . . [as] a Vaughn index in this case.” (Def.’s
Response to Pl.’s Mot. to Compel at 2.)
 - 17 -

redacting the documents. The record does not include coded

designations by each redaction that correspond to the agency’s

reasons for withholding the information. In fact, there are few,

if any, numbers placed next to the redacted information that

would help explain the information -- such as the names and

identifying information of individuals against whom allegations

were made -- redacted from any particular document. It is

unclear from the administrative record that information such as

names and personal information are, indeed, the information

withheld under the claimed exemption. There is no basis upon

which to conclude that the Army properly withheld the redacted

information in compliance with FOIA exemptions 6 and 7(C). See,

e.g., Banks v. U.S. Dep’t of Justice, 700 F. Supp. 2d 9, 16

(D.D.C. 2010) (finding agency’s Vaughn index and record

inadequate where the Vaughn index did not discuss the nature or

type of information withheld and it was unclear from the record

that the information was withheld on the basis the agency

claimed). Thus, the Secretary’s motion for summary judgment will

be denied without prejudice as to this issue, and the defendant

will be directed to file a copy of the redacted ROI reflecting

coded designations that correspond to the agency’s Vaughn index.

Augustus’s motion as to this issue also will be denied without

prejudice.

B. Privacy Act
 - 18 -

The Privacy Act provides an individual with access to

government records that pertain to her which are contained in a

system of records and allows the individual to review and have a

copy made of all or any portion of the records. 5 U.S.C.

§ 552a(d). The Act, however, provides certain exemptions and

exceptions. See id. § 552a(d)(5). These include exemptions that

prevent disclosure of information compiled in reasonable

anticipation of a civil action or proceeding and of investigatory

material compiled for law enforcement purposes.17 See id.

§ 552a(k)(2).

The threshold issue, however, is whether the Gravett ROI was

maintained in a system of records under the Privacy Act because

“the determination that a system of records exists triggers

virtually all of the other substantive provisions of the Privacy

17
The Secretary raises both of these exemptions as the
basis for providing Augustus with a redacted version of the ROI.
(See Def.’s Suppl. at 6 (“[W]e have determined that these records
were produced in reasonable anticipation of litigation regarding
your complaint.” (emphasis in original)); 15 (“Pursuant to the
authority to exempt systems of records under the Privacy Act,
. . . the Army has exempted General Legal Files from the
requirements of the Privacy Act.” (citing Army Reg. 340-21, The
Army Privacy Program ¶ 5-5(g)).) Augustus, meanwhile, contends
that the ROI is not protected by the privilege protecting
information compiled in anticipation of litigation because “[t]he
Defendant never established a nexus or reasonable basis for the
claim of work-product privilege[.]” (Pl.’s Response to Def.’s
Suppl. at 5.) She states that the exemption does not apply
because “‘civil action or proceedings’ is intended to include
court proceedings, preliminary judicial steps, and quasi-judicial
administrative hearings or proceedings” and “Gravett was acting
in the capacity of an investigating officer . . . [who] ‘is not
bound by the rules of evidence for trials by courts-martial or
for court proceedings generally.’” (Id. at 6-7.)
 - 19 -

Act, such as an individual’s right to receive copies[.]” Henke

v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1459 (D.C. Cir. 1996).

“The Privacy Act defines ‘system of records’ to mean ‘a group of

any records under the control of any agency from which

information is retrieved by the name of the individual or by some

identifying number, symbol, or other identifying particular

assigned to the individual.’” Lee v. Geren, 480 F. Supp. 2d 198,

206-07 (D.D.C. 2007) (quoting 5 U.S.C. § 552a(a)(5)).

“‘[R]etrieval capability is not sufficient to create a system of

records; the agency must in practice retrieve information by

personal identifier.’” Id. at 207 (emphasis in original)

(quoting McCready v. Nicholson, 465 F.3d 1, 17 (D.C. Cir. 2006)).

“Given the statutory language ‘is retrieved,’ the ‘agency’s

actual retrieval practice and policies’ are what matter[.]’” Id.

(quoting Henke, 83 F.3d at 1460-61).

The Secretary initially withheld the entire ROI on the

ground that it was not maintained in a system of records under

the Privacy Act. A memorandum issued by Principal Deputy General

Counsel for the Army Avon N. Williams, III (the “Williams

memorandum”), however, stated “that the requested information is

maintained in a [Privacy Act] system of records[,]” namely, the

AR600-20 NGB Equal Opportunity Investigative Files (“AR600-20

NGB”). (Def.’s Suppl. at 6; First A.R., Tab A at 1254.) The

Secretary was ordered to clarify the inconsistency. In response,
 - 20 -

the Army submitted a supplemental memorandum, including a

declaration of Patricia Smith, the Equal Opportunity and

Diversity Officer for the Army National Guard. Smith stated that

the Williams memorandum was incorrect and that the ROI was not

maintained in AR600-20 NGB or any other Privacy Act system of

records. (Def.’s Suppl., Ex. 1, Patricia Smith Decl. (“Smith

Decl.”) ¶ 4 (“Previous statements that the ROI was maintained in

AR600-20 NGB are incorrect and are the result of an absence of

direct coordination with the NGB EO office during Plaintiff’s

[administrative] FOIA appeal.”).) She added that the Army does

not maintain in a system of records incomplete or inaccurate

records. (Id. ¶ 12 (citing C.F.R. 310.5).) According to Smith,

because the investigation was not complete and the ROI was not

legally sufficient for procedural and substantive reasons, the

ROI was not maintained in any system of records. (Id. ¶¶ 11, 12

(citing C.F.R. 310.5).) Smith cited a letter sent from the NGB

Chief Legal Counsel stating that the ROI did not comply with the

Army’s EO complaint processing system because it was not made in

writing and under oath (Def.’s Suppl., Ex. 1, Memorandum Chief,

Nat’l Guard Bureau ¶ 3(d)); that the ROI’s findings and

recommendations were not supported by the investigative record

because, among other things, it did not include key information,

such as the complainant’s position or personnel files (id.

¶ 4(e)); that a number of witnesses did not review or sign their

statements (id. ¶ 5(e)); and that the ROI was silent on possible
 - 21 -

remedies to the problem of preferential treatment for white male

officers. (Id. ¶ 6(d).)

Augustus, meanwhile, asserts that the ROI is maintained in a

system of records. For support, she cites Department of Defense

(“DoD”) Directive 7050.6, which requires that “[a] copy of the

documents acquired during the investigation and summaries of

witness testimony shall be transmitted to the member or former

member if he or she requests them.” (Pl.’s Am. Response to

Def.’s Suppl. at 4 (internal quotation marks omitted).) However,

the cited DoD directive language says nothing about whether the

ROI is maintained in a system of records for Privacy Act

purposes. Augustus does nothing else to rebut the Secretary’s

evidence that the ROI was not maintained in a system of records.

She does not demonstrate that Gravett’s ROI is a record that can

be retrieved by name, social security number or any other

personal identifier. Nor does she demonstrate that any actual

repository for the ROI qualifies as a system of records.

Because Augustus has failed to support her argument that the ROI

was maintained in a system of records, her motion for summary

judgment will be denied as to this issue and the Secretary’s

motion will be granted.

III. DAMAGES UNDER THE PRIVACY ACT

Augustus seeks damages under the Privacy Act, alleging

injuries caused when the defendant (1) collected information

about her from third parties; (2) failed to publish notice of its
 - 22 -

record keeping system; and (3) failed to safeguard her private

information. Under the Privacy Act, “[p]laintiff bears the

burden of proving that the agency’s action in violating the

Privacy Act was intentional or willful.” Djenasevic v. Exec.

U.S. Attorney’s Office, 579 F. Supp. 2d 129, 136 (D.D.C. 2008)

(citing Albright v. United States, 732 F.2d 181, 189 (D.C. Cir.

1984) and § 552a(g)(4)). “This means that the government is not

liable for every affirmative or negligent act that technically

violates the Privacy Act[.]” Alexander v. FBI, 691 F. Supp. 2d

182, 192 (D.D.C. 2010) (citing Laningham v. U.S. Navy, 813 F.2d

1236, 1242 (D.C. Cir. 1987)). “‘Instead, the violation must be

so “patently egregious and unlawful that anyone undertaking the

conduct should have known it unlawful.”’” Id. (quoting

Laningham, 813 F.2d at 1242 (quoting Wisdom v. HUD, 713 F.2d 422,

425 (8th Cir. 1983))). “To meet [this] burden, plaintiff ‘must

prove that the offending agency acted without grounds for

believing its actions lawful or that it flagrantly disregarded

the rights guaranteed under the Privacy Act.” Djenasevic, 579 F.

Supp. 2d at 136 (internal quotation marks and alterations

omitted). This standard is high and requires “a showing of

‘something greater than gross negligence’ on the agency’s part.”

Id. (quoting Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir.

1987)).

A. Privacy Act limitations on collecting information from
third parties
 - 23 -

Section 552a(e)(2) of the Privacy Act “requires federal

agencies that maintain systems of records to ‘collect information

to the greatest extent practicable directly from the subject

individual when the information may result in adverse

determinations about an individual’s rights, benefits, and

privileges under Federal programs.’” Thompson v. Dep’t of State,

400 F. Supp. 2d 1, 8 (D.D.C. 2005) (quoting § 552a(e)(2)). This

section “was designed to discourage the collection of personal

information from third party sources and therefore to encourage

the accuracy of Federal data gathering.” Id. (internal quotation

marks omitted). This “reflects congressional judgment that the

best way to ensure accuracy in general is to require the agency

to obtain information directly from the individual whenever

practicable.” Id. (internal quotation marks omitted). In

determining whether an agency has violated § 552a(e)(2), “courts

must weigh the interests of both accuracy and privacy[.]”

Thompson, 400 F. Supp. 2d at 9.

Augustus alleges that the Secretary violated § 552a(e)(2) in

several ways.18 (See Pl.s’ Mem. at 14-16.) First, she alleges

18
These allegations include that the Army violated
§ 552a(e)(2) by collecting third party information from at least
19 witnesses in compiling the Gravett ROI. (See Pl.s’ Mem. at
14.) Augustus, however, is not entitled to damages for this
claim because Augustus has failed to rebut the Secretary’s
evidence showing that the ROI is not maintained in a system of
records. Even if the ROI was maintained in a system of records,
Augustus merely alleges that the “[d]efendant’s agents made over
20,000 . . . separate references” to her in its ROI, but she does
not present facts showing that the agents collected the
 - 24 -

that the Army violated the Privacy Act by collecting information

from Colonels Dan Costner and Marylin Muzny who “fraudulently

generated a DA Form 4187 . . . to prevent her from receiving a

new job assignment.”19 (Pl.’s Mem. at 14.) The form to which

Augustus refers is a personnel action form completed by Costner,

which states on its face that it is to be “[u]sed by [a] soldier

. . . when requesting a personnel action on his/her own behalf.”

(First A.R., Tab A at 302.) It appears that Augustus, herself,

should have completed the form. However, the Secretary states --

and Augustus does not dispute -- that “the form may also be used

by a unit to indicate the change in duty status of a soldier or

to request a change in duty status.” (Def.’s Opp’n at 6 (citing

Army Reg. 600-8-6 ¶ 2-4).) In this case, Costner completed the

form in order to support his request to extend Augustus “in place

for an additional year.” (First A.R., Tab A at 301.) Moreover,

Augustus fails to demonstrate that the information contained in

information from third parties or showing what the nature of the
information gathered was to demonstrate that it was not
impracticable for the Secretary to collect the information from
her directly. See 5 U.S.C. § 552a(e)(2).
19
To the extent that this is a challenge to the Secretary’s
decision not to promote Augustus, a Privacy Act allegation
against the military regarding non-promotion “is a nonjusticiable
matter solely within the province of the military.” (Mem. Op. at
30 (citing Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C.
Cir. 1989)).) “To grant such relief would require us to second-
guess the Secretary’s decision about how best to allocate
military personnel in order to serve the security needs of the
Nation.” Kreis, 866 F.2d at 1511. The Privacy Act, therefore,
provides no relief for Augustus’s claim of non-promotion.
 - 25 -

the form resulted in an adverse determination about her rights,

benefits and privileges. Her bare allegation that “she did not

receive a new job assignment as a result of the collection of the

third party information on [her]” (Pl.’s Opp’n at 14), does not

trigger the defendant’s obligation to collect information from

her. See 5 U.S.C. § 552a(e)(2).

Augustus also claims that the Secretary violated the Privacy

Act by providing inaccurate third party information about her to

the NGB Senior Service College (“SSC”) Selection Board.20

However, Augustus offers no evidentiary support for this claim.

She identifies a number of individual documents in the record --

many of which merely announce the availability of scholarships

and describe the Army’s policies for evaluating the applicants

(see, e.g., First A.R., Tab A at 351-54, 371-75) -- but fails to

demonstrate or even allege that these documents were maintained

in any system of records. Also, Augustus does not point to any

20
To the extent that this claim alleges that Augustus was
wrongly denied a scholarship, adjudication of this claim would
impinge upon the purview of the military. “[J]udges are not
given the task of running the Army.” Kries, 866 F.2d at 1511.
“The military constitutes a specialized community governed by a
separate discipline from that of the civilian” and an “[o]rderly
government requires that the judiciary be as scrupulous not to
interfere with legitimate Army matters as the Army must be
scrupulous not to intervene in judicial matters.” Id. (quoting
Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953)). The question
of which officers should be selected to acquire an SSC
opportunity is left to the Director of the Army National Guard
(see First A.R., Tab A at 351), and to review the Director’s
decision would be to second-guess the Director’s decision. Thus,
the Privacy Act provides no relief for a claim regarding non-
selection for an SSC scholarship.
 - 26 -

specific information about her in the record that was provided to

the SSC Selection Board. (See Pl.’s Opp’n at 15-16.)

Finally, Augustus claims, without support, that the Army

violated the Privacy Act when Byrd interviewed her “regarding

allegations of improper promotions among officers” (Pl.’s Opp’n

at 17) without providing her with a Privacy Act Statement. The

Secretary responds that Augustus does not identify what Privacy

Act right is violated. (Def.’s Mem. at 18.) Army Regulation

340-21 requires that a Privacy Act statement be provided to an

individual whenever “personal information is requested from an

individual that will become part of a system of records retrieved

by reference to the individual’s name or other personal

identifier[.]” Army Reg. 340-21 ¶ 4-2. Aside from her bare

allegations that the Army violated the Privacy Act by collecting

information from her in its investigation of improper promotions,

Augustus provides no evidence reflecting that the interviews and

corresponding documents compiled during the investigation

constitute or are maintained in a system of records for the

purpose of the Privacy Act or otherwise demonstrating that a

Privacy Act statement was necessary under these circumstances.

“It is insufficient to respond to a motion for summary judgment

with argument and no facts[,]” McCready v. Principi, 297 F. Supp.

2d 178, 193-94 (D.D.C. 2003) (reversed in part on other grounds)

(citing Anderson, 477 U.S. at 248), and there are no genuinely

disputed material facts that must be resolved by a trial. The
 - 27 -

Secretary’s motion will be granted as to this issue and

Augustus’s motion will be denied.

B. Failure to publish a record-keeping system

Under § 552a(e)(4), “[e]ach agency that maintains a system

of records [must] . . . publish in the Federal Register upon

establishment or revision a notice of the existence and character

of the system of records[.]” 5 U.S.C. § 552a(e)(4). Augustus

states that “all instances of disclosure of unlawfully collected

and maintained information [about her] . . . constitute[] a

failure to publish a record keeping system” and that Gravett’s

ROI and the “NGB-IG and the DoD-IG database” are “systems of

records where unlawful information was collected and maintained

from or about [her] in more than one hundred and fifty [thousand]

separate violations of [her] Privacy Act rights.” (Pl.’s Mem. at

19.) The Secretary argues that “plaintiff’s bare allegation

fails to allege any specific facts demonstrating a violation of

the Privacy Act” and that Augustus “does not identify the records

for which the Army purportedly failed to publish a record keeping

system.” (Def.’s Mem. at 19.) The Secretary has demonstrated

that the Gravett ROI was not maintained in a system of records,

and Augustus has not put forward any evidence or facts to support

her contention that the NGB-IG and DoD-IG databases are systems

of records for the purpose of the Privacy Act. Augustus

therefore has not demonstrated any genuine dispute over whether

the Army maintained the ROI in a system of records. Summary
 - 28 -

judgment will be granted for the Secretary on Augustus’s

§ 552a(e)(4) claim.

C. Failure to safeguard Augustus’s private information

Under § 552a(e)(10) of the Privacy Act, federal agencies are

required to maintain systems of records to

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.

§ 552a(e)(10). Thus, “[a]gencies subject to the Privacy Act must

establish ‘appropriate administrative, technical, and physical

safeguards’ to ensure the security and confidentiality of the

‘private information under their charge.’” Alexander v. FBI, 691

F. Supp. 2d 182, 191-92 (D.D.C. 2010) (quoting 5 U.S.C.

§ 552a(e)(10)).

Augustus claims that the Secretary’s agents violated her

Privacy Act rights “when they unlawfully collected information

. . . , maintained the unlawful information in a system of

record[s], and disclosed the information that described how [she]

exercise[d] her First Amendment rights.” (Pl.’s Mem. at 19-20.)

Plaintiff further claims that the “record . . . contains and

demonstrates more than one hundred and fifty thousand instances

of the Defendant’s failure to safeguard private information

[about her] that the Defendant unlawfully maintained in a system

of record[s] and disclosed to third parties.” (Id. at 20.) The
 - 29 -

Secretary contends that Augustus has not established that the

disclosures constitute records subject to Privacy Act

protections. (Def.’s Mem. at 19.) Augustus again fails to

provide facts to support her argument that the personal

information was maintained in a system of records and points to

no specific places in the record to support her claim of unlawful

disclosure. Because reciting bare allegations is not enough to

survive a motion for summary judgment, Anderson, 477 U.S. at 249,

the Secretary’s motion will be granted as to this issue and

Augustus’s motion will be denied.

CONCLUSION AND ORDER

There are no material factual disputes regarding Augustus’s

APA claim, and judgment will be entered in her favor and against

the Secretary on that claim. Because Augustus has not presented

facts reflecting a genuine dispute regarding Augustus’s Privacy

Act claim, the Army has carried its burden of demonstrating that

it is entitled to summary judgment and judgment will be entered

in favor of the Secretary and against Augustus as to that claim.

However, with respect to Augustus’s FOIA claim for an unredacted

copy of the ROI, both parties’ motions will be denied without

prejudice and the Secretary will be directed to submit a copy of

the ROI that reflects the coding system identified in his Vaughn

index. Accordingly, it is hereby

ORDERED that the Secretary’s motion [#60] for summary

judgment is GRANTED IN PART and DENIED IN PART. Judgment is
 - 30 -

entered for the Secretary as to Augustus’s Privacy Act claim.

The motion is denied as to Augustus’s APA claim and denied

without prejudice as to Augustus’s FOIA claim for an unredacted

copy of Gravett’s ROI. It is further

ORDERED that the Secretary file within 30 days of the entry

of this Memorandum Opinion and Order a redacted copy of Gravett’s

ROI reflecting the coding system identified in the Secretary’s

Vaughn index. It is further

ORDERED that Augustus’s motion [#93] for summary judgment is

GRANTED IN PART and DENIED IN PART. Judgment is entered for

Augustus on her APA claim. The motion is DENIED as to her

Privacy Act claim. Augustus’s motion as to her FOIA claim for an

unredacted copy of Gravett’s ROI is denied without prejudice to

refiling it after the Secretary has complied with this Order.

SIGNED this 22nd day of November, 2011.

/s/
RICHARD W. ROBERTS
United States District Judge