Hogan v. England , 159 F. App'x 534 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1143
HAROLD HOGAN, JR.,
Plaintiff - Appellant,
versus
GORDON R. ENGLAND, Secretary, Department of
the Navy,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-04-756)
Argued: December 1, 2005 Decided: December 28, 2005
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Christopher Donald Borwhat, LAW OFFICES OF OWAIIAN M.
JONES, Fredericksburg, Virginia, for Appellant. Jackson Lee
McGrady, U. S. MARINE CORPS, Quantico, Virginia, for Appellee. ON
BRIEF: Owaiian Jones, Chad M. Rinard, LAW OFFICES OF OWAIIAN M.
JONES, Fredericksburg, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Leslie B. McClendon, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Harold Hogan argues that the Navy violated the Privacy Act
because it failed to collect information from Hogan himself to the
“greatest extent practicable,” 5 U.S.C.A. § 552a(e)(2) (West 1996),
when it investigated allegations that he was intoxicated at work
and engaged in inappropriate behavior toward co-workers. The
district court granted summary judgment to the Secretary of the
Navy. We affirm.
I.
In August 2003 Hogan worked as an electrician at the United
States Marine Corps Base in Quantico, Virginia. Hogan’s
supervisors, Dale Triplett and Robert Welborn, and one of his co-
workers, Kimberly Sinclair, accused Hogan of smelling like alcohol
at work on August 13 and 14. Sinclair also complained that Hogan
behaved inappropriately by asking her if she would come home with
him on August 13. Welborne further alleged that Hogan attempted to
engage him in an argument on August 14. Triplett granted Hogan
sick leave on each of those dates.
Daniel Rudd, a supervisor at Quantico, conducted an
investigation into the allegations and presented the resulting
evidence to William Fennell, the Base’s Facilities Manager.
Fennell proposed that Hogan be suspended for fourteen days. Hogan
responded by claiming that the investigation “violated [his] civil
2
rights . . . with reckless disregard for the provisions of the
law.” After meeting with Hogan and his union representative, the
Deputy Chief of Staff at Quantico, J.D. Provenzano III, suspended
Hogan for fourteen days. Hogan filed two unsuccessful union
grievances.
On September 14, 2004, Hogan filed an amended complaint in the
Eastern District of Virginia against Gordon England, Secretary of
the Navy (“the Secretary”). Hogan alleged that the Navy violated
the Privacy Act “by interviewing third parties . . . for
information that was available by directly interviewing Hogan,” and
requested damages of $50,000, attorney’s fees, and costs.
After discovery, the Secretary moved for summary judgment.
Hogan’s lawyer noted at the hearing on that motion that Hogan’s
complaint centered on the investigation into the intoxication
charge, not the allegations concerning inappropriate behavior
towards Ms. Sinclair or Mr. Welborn. Finding no violation of the
Privacy Act, the district court granted that motion in an oral
ruling.
II.
The Privacy Act provides that “[e]ach agency that maintains a
system of records shall . . . collect information to the greatest
extent practicable directly from the subject individual when the
information may result in adverse determinations about an
3
individual’s rights, benefits, and privileges under Federal
programs.” 5 U.S.C.A. § 552a(e)(2) (West 1996) (emphasis added).
“[T]he specific nature of each case shapes the practical
considerations at stake that determine whether an agency has
fulfilled its obligations under the Privacy Act to elicit
information directly from the subject of the investigation to the
greatest extent practicable.” Cardamone v. Cohen, 241 F.3d 520,
528 (6th Cir. 2001).
The Act “attempts to strike a balance between the government’s
need to collect and maintain information and the privacy interests
of the persons to whom such information pertains.” Hudson v. Reno,
130 F.3d 1193, 1204 (6th Cir. 1997), partially overruled on other
grounds, Doe v. Chao, 540 U.S. 614 (2004). It does not require
that an agency seek information only from a person it investigates,
however; the Act allows agencies to question third parties where it
would be impractical not to do so. The Office of Management and
Budget, which promulgated guidelines for implementing the Privacy
Act, identified several occasions in which it would be appropriate
-- if not necessary -- to question a third party. See OMB Privacy
Act Guidelines, 40 Fed. Reg. 28,948, 28,961 (July 9, 1975).* For
example, the OMB suggested that an agency could consult third
parties when “the kind of information needed can only be obtained
*
These guidelines were codified at 5 C.F.R. § 293.104 (2004)
using language similar to the original OMB report.
4
from a third party such as investigations of possible criminal
misconduct” or when there was a “need to insure the accuracy of
information supplied by an individual by verifying it with a third
party.” Id.; see also Hudson, 130 F.3d at 1205 (quoting OMB
guidelines).
Interpreting the Act in light of these guidelines, courts of
appeals have uniformly held that § 552a(e)(2) does not prevent
agencies from interviewing third parties when investigating
subjective allegations of misconduct. Courts recognize that “[t]he
probability that, when confronted, [the accused] will advance an
explanation . . . sufficient to obviate the need to contact third
parties is minimal.” Brune v. IRS, 861 F.2d 1284, 1287 (D.C. Cir.
1988). This is so because most subjective accusations are
“incapable of being resolved by [the individual’s] say-so”; hence,
an accused’s “denial would not obviate the need to investigate
allegations.” Carton v. Reno, 310 F.3d 108, 112 (2d Cir. 2002).
Cf. Cardamone, 241 F.3d at 528 (noting it was “impracticable to
think that charges of employee mistreatment and harassment could be
resolved by interviewing Cardamone before others.”).
Nevertheless, Hogan argues that this is not simply a case
about subjective allegations. He maintains that he possessed
objective proof of his sobriety -- namely, a “Daily Dispatching
Record” indicating that he was assigned a vehicle on each day that
he was alleged to be intoxicated. See Brief of Appellant at 14-15.
5
He notes, correctly, that courts have found violations of the
Privacy Act when an agency speaks to a third party even though the
individual under investigation possesses objective proof that would
eliminate the need for any further questioning. See, e.g., Waters
v. Thornburgh, 888 F.2d 870, 873 (D.C. Cir. 1989) (holding that
Department of Justice violated the Privacy Act by asking state bar
association to confirm that a DOJ employee took the exam when it
could have asked the employee for his admission ticket), partially
overruled on other grounds, Doe v. Chao, 540 U.S. 614 (2004).
Hogan’s argument misunderstands the evidentiary value of the
Dispatching Record, however. That document is not proof that
obviates the need for further investigation. To the contrary, it
only heightens the need to question Hogan’s supervisor, Triplett,
to find out if he was the one who signed out the vehicle to Hogan
as Hogan contends, and, if so, how he could have done so given his
allegation that Hogan had the smell of alcohol on his breath.
Hence this case is not like Waters, where objective proof within
the individual’s possession could have ended the investigation
before it began. Here, the Navy was confronted with entirely
subjective allegations of intoxication and inappropriate conduct.
Indeed, the testimony of Hogan’s co-workers was the only evidence
of his behavior. There was simply nothing “impracticable” in the
Navy’s decision to investigate the allegations by talking to
6
eyewitnesses. To hold otherwise would be to read the “to the
greatest extent practicable” language right out of the statute.
Hogan also complains that the Navy did not interview him
first. This fact, by itself, does not rise to the level of a
Privacy Act violation. So long as the agency inevitably will need
to interview both Hogan and others, the Act takes no position on
the order in which they are approached. Indeed, one reasonably
might argue that Hogan benefitted from being interviewed late in
the process. Cf. Carton, 310 F.3d at 112 (“[I]t might be expected
that the interviews with the complainants and others would sharpen
the issues and focus the charges in a way that would allow Carton
to respond more particularly.”).
Because none of Hogan’s allegations make out violations of the
Privacy Act, summary judgment was appropriately entered against
him.
III.
Even if Hogan had alleged a violation of the Act, he still
would not be entitled to recover the damages he seeks. To recover
monetary damages under the Act, Hogan must show that the violation
was “intentional or willful,” 5 U.S.C. § 552a(g)(4), and that it
had an “adverse effect,” id. § 552a(g)(1)(D). The “intentional or
willful” standard requires a mens rea “somewhat greater than gross
negligence.” Waters, 888 F.2d at 875 (quoting analysis of the 1974
7
House and Senate Compromise Amendments to the Privacy Act). Put
another way, the violation must have been committed “without
grounds for believing it to be lawful, or by flagrantly
disregarding others’ rights under the Act.” Scrimgeour v. Internal
Revenue, 149 F.3d 318, 326 (4th Cir. 1998) (quoting Waters, 888
F.2d at 875). The “adverse effect” requirement requires Hogan to
demonstrate “actual damages”; he may not presume that any given
violation produces actionable, adverse consequences. Doe v. Chao,
540 U.S. 614, 627 (2004).
Hogan did not meet either of these requirements. Although he
asserted that his employer acted wilfully and that damages
resulted, he did not offer a single fact to substantiate either of
these claims. We would therefore affirm the grant of summary
judgment even if Hogan had alleged a violation of the Act.
AFFIRMED
8