Olivares v. NASA ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DENNIS OLIVARES,
Plaintiff-Appellant,
v.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION; DANIEL GOLDIN,
Administrator; LAWRENCE WATSON,
Chief Legal Counsel; ROGER JENKIN,
Personnel Director; BETTY BROCKI,
Personnel Management Specialist;
DONALD KRUEGER, Electrical
Engineering Division Chief; PATRICK
CHRIS SCHWARTZ; JOHN L. FERGUSON,
No. 95-2343
Labor Relations Officer; JANET
RUFF, Public Relations Chief;
CALVIN W. CURLEN, GESTA Union
Officer; HARVEY SAFREN, GESTA
Union Officer,
Defendants-Appellees,
and
OTHERS WHOSE IDENTITIES OR
LIABILITIES AT THIS TIME ARE UNKNOWN
TO THE PLAINTIFF AND THUS ARE HEREIN
DESIGNATED AS JOHN/JANE DOES,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CA-92-3439-PJM)
Argued: October 29, 1996
Decided: December 3, 1996
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Eric Robert Glitzenstein, MEYER & GLITZENSTEIN,
Washington, D.C., for Appellant. Perry F. Sekus, Assistant United
States Attorney, Baltimore, Maryland; Alice Lane Bodley, MARTIN,
BODLEY & DRAFT, P.C., Washington, D.C., for Appellees. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dennis Olivares appeals the district court's orders granting sum-
mary judgment to his employer, the National Aeronautics and Space
Administration (NASA) and certain individuals employed at NASA.
The underlying relevant facts are set forth in the district court's opin-
ion and will not be repeated here. See Olivares v. NASA, 882 F. Supp.
1545 (D. Md. 1995).
Olivares' principal claim is that the National Aeronautics and
Space Administration (NASA) violated his rights under the Privacy
Act, 5 U.S.C. § 522a(e)(2)(1994) when it intentionally undertook a
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"secret, highly damaging investigation" in 1989 into his academic
background without collecting this information directly from him "to
the greatest extent practicable." § 552a(e)(2).
To succeed on a Privacy Act claim, a plaintiff must establish that
"(1) the agency failed to elicit information directly from him ``to the
greatest extent practicable,' 5 U.S.C. § 522a(e)(2); (2) the violation of
the Act was ``intentional or willful,' 5 U.S.C.§ 552a(g)(4); and (3)
this action had an ``adverse effect' on the plaintiff, 5 U.S.C.
§ 552a(g)(1)(D)." Waters v. Thornburgh , 888 F.2d 870, 872 (D.C.
Cir. 1989).
NASA argues that it fulfilled its obligations under§ 522a(e)(2) and
elicited information from Olivares to the "greatest extent practicable"
in three ways: (1) by requiring him to file a standard government
employment application, an SF-171, in 1987 when Olivares originally
applied for work from NASA; (2) by relying on the results of an
investigation, including a personal interview with Olivares, conducted
by the Office of Personnel and Management (OPM), shortly after Oli-
vares starting working at NASA in 1986; and (3) by relying on infor-
mation which Olivares certified in twenty additional SF-171s he filed
subsequent to his initial employment at NASA. In the SF-171, a gov-
ernment employee acknowledges "that all items contained herein may
be subject to investigation prescribed by law" and consents "to the
release of information concerning . . . capacity and fitness by employ-
ers, educational institutions, law enforcement agencies, and other
individuals and agencies to duly accredited investigators."
When NASA hired Olivares in 1986, he stated on his SF-171 that
he had been awarded both a B.S. in physics and a B.A. in philosophy
from Loyola University, and masters and law degrees from George
Washington University. Shortly thereafter, an investigator from the
Office of Personnel Management (OPM) conducted a background
investigation of Olivares and met with him. During that interview,
Olivares explained that although he, in fact, completed a joint pro-
gram at Loyola in physics and philosophy, his diploma was labeled
"B.A. Philosophy" because Loyola demanded that graduating students
designate only one field for listing on the diploma. In each of the SF-
171s that Olivares subsequently filed, he similarly certified that he
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had been awarded both a B.S. in physics and a B.A. in philosophy
from Loyola University.
Contrary to NASA's suggestions, we do not believe that a govern-
ment employee by consenting to a proper investigation of information
provided in his initial employment application, i.e., the initial SF-171,
necessarily provides his consent in perpetuity to government investi-
gations of matters covered by the form. However, we agree with the
district court that here "as a matter of law, NASA . . . contacted Oli-
vares directly ``to the greatest extent practicable.'" Olivares, 882 F.
Supp. at 1550.
First, NASA, through OPM, conducted a personal interview with
Olivares in 1987. At that interview, Olivares was given an opportu-
nity to provide any additional information regarding his academic cre-
dentials. Second, as the district court noted, each of the SF-171s
which Olivares filed subsequent to his initial date of employment in
1986 "contained its own consent to the agency to illicit information
in connection with his educational credentials" and thus "constituted
a new and separate authorization to verify" this information. Id.* As
the district court further explained:
The reality is that the official record of Olivares' degrees
was inconsistent and confused from the beginning. Olivares
swore in 1986 and on multiple occasions thereafter that he
held a Bachelor of Science Degree in Physics and a Master's
Degree in Political Science. The report of the first investiga-
tion in 1987 showed he did not hold those two degrees,
whereas the report of Shirley Smith that same year showed
that Olivares' Bachelor degree was in Political Science, not
Philosophy as Olivares claimed, and that he did hold a Mas-
ters degree in Political Science from George Washington.
Venturing upon these conflicting reports at a later time, for
whatever reason, and given Olivares' repeated oaths on all
_________________________________________________________________
* In his brief, Olivares argues that these subsequent SF-171s were filed
after the 1989 investigation into his academic credentials and therefore
cannot be "retroactively" applied to waive his rights. App. Brief at 42
n.19. The record before us, however, indicates that at least some of these
SF-171s were filed prior to the agency's 1989 investigation.
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subsequent SF-171's consistent with his original version,
NASA could fairly undertake to clarify the matter directly
with the educational institutions again and could do so with-
out contacting Olivares.
Id.Waters, 888 F.2d 870, upon which Olivares so heavily relies, is
clearly distinguishable from the case at hand. An employee of the
U.S. Department of Justice, Waters had asked for leave from his posi-
tion to study for the Pennsylvania bar. After he returned to work,
Waters again asked for leave to satisfy a summons for jury duty.
When he did not return to work when scheduled, his supervisor,
James Bennett, called the jury commissioner who informed him that
Waters was still on jury duty, but that this duty had not started until
eight days after his leave began. Unsatisfied with Waters' explanation
when asked about this, Bennett again contacted the jury commissioner
who informed him that Waters had asked her to certify his presence
for jury duty during days in which her records indicated he was not
present. Id. at 871-72.
Bennett then became suspicious of Waters' use of leave to take the
bar exam. He asked Department personnel to contact the Pennsylva-
nia Board of Law Examiners to confirm his attendance at the bar.
After the Board requested, and the Department supplied, a written
request for this information, the Board certified Waters' attendance at
the bar. The district court found no violation of the Privacy Act, but
the D.C. Circuit disagreed. Id. at 873. The court found that the
Department should have gone first to Waters "for objective proof of
his bar attendance, proof such as written correspondence informing
him of his bar results, and his bar exam admittance ticket." Id. at 874.
In Waters, the Justice Department did not contact Waters directly
before contacting the Pennsylvania Board. Id. at 874. Here, NASA
did contact Olivares directly before contacting Loyola and George
Washington University to verify his academic credentials. Both in the
SF-171s as well as in the personal interview, Olivares was given an
opportunity to provide information. In Waters , there was no basis for
the Department's contention that it was merely attempting to verify
information that Waters had already provided in a leave form. In con-
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trast, the sole purpose of NASA's investigation was to verify the
information that Olivares had provided in his initial SF-171, his sub-
sequent SF-171s, as well as in his personal interview. By submitting
an SF-171, an applicant is on notice that the information provided is
subject to verification; the form clearly provides that "all items con-
tained herein may be subject to investigation." By signing the SF-171,
an applicant consents to the "release of information [from] educa-
tional institutions." A leave form contains no similar language, and
therefore creates no similar expectation of verification.
The district court's recent opinion, Dong v. Smithsonian Institution,
1996 WL 636434 (D.D.C. 1996), is likewise distinguishable. There,
the court found that the Hirshhorn Museum had not"to the greatest
extent practicable" procured information from Dong when investigat-
ing rumors of an unauthorized trip by Dong in which she accompa-
nied a piece of art to another museum. The court found that Hirshhorn
officials had violated § 552a(e)(2) when they contacted personnel at
the other museum before approaching Dong. As in Waters, the situa-
tion here is distinct in that information was collected from Olivares
initially.
In addition to his § 552a(e)(2) claim, Olivares asserts that NASA
violated § 552a(e)(5), which requires an agency that maintains rec-
ords used in making a determination about an individual to maintain
such records "with such accuracy, relevance, timeliness, and com-
pleteness as is reasonably necessary to assure fairness to the individ-
ual in the determination." The district court properly rejected
Olivares' claim for amendment of the records under§ 552a(g)(2)(A)
on the grounds that "Olivares has failed to exhaust his administrative
remedies" with regard to this claim. Olivares , 882 F. Supp. at 1551-
52. Similarly, the district court was correct to reject Olivares' dam-
ages claim under § 552a(g)(4) on the grounds that NASA did not
intentionally or wilfully violate the Privacy Act in maintaining the
challenged records.
Finally, in view of our holding, summary judgment was also prop-
erly granted on Olivares' state tort claims against employee union
leaders for assertedly disseminating defamatory statements about him.
Counsel for Olivares conceded at oral argument that if, as we have
held, summary judgment was properly granted on Olivares' Privacy
6
Act claims, then there is no basis for federal jurisdiction on the related
state tort claims.
AFFIRMED
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