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January 16, 1980

Jane Doe, Plaintiff, against UNITED STATES CIVIL SERVICE COMMISSION; ALAN CAMPBELL, individually and as Chairman; DONALD J. BIGLIN, individually and as Assistant Executive Director for Freedom of Information and Privacy; ROBERT J. DRUMMOND, individually and as Director, Bureau of Personnel Investigations, United States Civil Service Commission, Defendants.

The opinion of the court was delivered by: TENNEY

In this factually straightforward but legally complex case, plaintiff Jane Doe *fn1" seeks declaratory, injunctive, and monetary relief against the United States Civil Service Commission ("CSC") and three CSC officials for injuries allegedly sustained as a result of an authorized government investigation of Doe conducted by the CSC. The complaint alleges several statutory and constitutional claims against the agency and the three named defendants in their official, as well as individual, capacities. These claims raise some unresolved and novel issues that pit the government's need to investigate a potential high-level employee against the applicant's right to ensure that the information collected is accurate. Defendants have moved for partial summary judgment on mootness grounds and for summary judgment with respect to each of Doe's claims. They have also filed objections to a Magistrate's Order issued in this case in connection with plaintiff's discovery requests. The Court denies defendants' summary judgment motions, affirms the Magistrate's Order in part, and reverses in part.


 In 1974, Jane Doe applied to the President's Commission on White House Fellowships ("Fellowship Commission") for a position as a White House fellow during the 1975-1976 year. Doe was selected as one of thirty-two finalists for fourteen fellowship positions. At the request of the Fellowship Commission, the CSC's Bureau of Personnel Investigations conducted a full field investigation of Doe that she had authorized by executing a form entitled "Security Investigation Data for Sensitive Position." The investigation was undertaken in April 1975, and more than thirty-five people who were thought to be familiar with Doe's character and capabilities were interviewed. According to the CSC, the comments of the people interviewed were generally "favorable, if not laudatory." Defendants' Memorandum in Support of Motion for Summary Judgment at 6 ("Defendants' Memorandum I"). Two people, however, told two different CSC investigators that Doe had engaged in acts of petty theft while she was a college student. One person (April 10 Source) related specific incidents of theft and said that Doe had "a propensity to steal." Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment at 4 ("Plaintiff's Memorandum"). The other (April 14 Source) stated that she thought Doe was "schizophrenic, a kleptomaniac" and seemed to be a "compulsive thief." Id. at 3. After the CSC completed its investigation, it gave its report on Doe to the Fellowship Commission. The CSC report did not evaluate Doe's qualifications or make any recommendations; it simply related the statements made by the persons interviewed.

 Doe was not chosen to be a White House fellow. She filed a request under the Privacy Act, 5 U.S.C. § 552a, in July 1976, seeking access to the entire investigative file compiled by the CSC. *fn2" The file was released three months later; the identities of the people interviewed and any information pertaining to them was deleted. Doe subsequently requested that the allegations about stealing and kleptomania be deleted from her file on grounds that they were not accurate as required by the Privacy Act, id. § 552a(e)(5). *fn3" In support of her request for amendment of her file, pursuant to section 552a(d)(2), *fn4" Doe submitted letters from: (1) women who lived in the college dormitory with her at the time of the alleged stealing who stated that the allegations were false; (2) members of the House Council the governing body of the dormitory at the time of the alleged stealing, who stated that no charges were ever made against Doe; (3) the dean of students, who had no knowledge of such charges; (4) the college attorney, who stated that "the charge is asinine"; and (5) two psychiatrists, who asserted that Doe was not a kleptomaniac. The CSC rejected Doe's request and refused to amend the report. Instead, the affidavits and letters that she had submitted were included by the CSC as a permanent part of her file.

 Doe appealed the CSC decision, which was issued in a letter written by Robert J. Drummond, Jr., Director of the Bureau of Personnel Investigations, to Donald J. Biglin, the Assistant Executive Director of Freedom of Information and Privacy for the CSC. The agency denied the appeal and stated that the allegations of theft would remain in Doe's file. The references to kleptomania, however, were deleted because they amounted to a psychiatric diagnosis. The CSC refused to disclose the sources of the derogatory statements on the grounds that "the withholding of the identity of a confidential source in a background investigation is a limitation which Congress saw fit to allow agencies to place on access requirements of both the Privacy Act, at 5 U.S.C. § 552a(k)(5), *fn5" and the Freedom of Information Act, at 5 U.S.C. § 552(b)(7)(d)." *fn6"

 Doe and her attorney then met with Drummond in September 1977 to request reconsideration of the appeal decision. The CSC subsequently contacted the two sources who had provided the derogatory information to request permission to reveal their identities. Both refused. The agency also contacted one of the persons who had submitted an affidavit on Doe's behalf. Defendants' Memorandum I at 7. In November 1977, Doe was informed that after reconsideration the CSC had decided that no further amendment of her file was warranted. The CSC decision stated that "(w)e believe the testimony in Doe's file relating to stealing remains unrefuted. . . . Doe's objections to the contents of her investigative file have been made part of her record, and she has been advised of her right to file a statement of her reasons for disagreeing with our denial of her request." Letter from Donald J. Biglin, dated November 21, 1977, Exhibit H to Complaint.

 In January 1978, Doe instituted this action for injunctive, declaratory, and monetary relief against the CSC and three of its officers in their official capacities: Alan Campbell, Chairman; Donald J. Biglin; and Robert J. Drummond, Jr. Doe subsequently amended the complaint to add claims against the named defendants in their individual capacities. Her complaint states five claims:

 1. Plaintiff seeks a de novo determination of her request that her file be amended, pursuant to the Privacy Act, 5 U.S.C. § 552a(g)(1)(A) & (g)(2). *fn7"

 2. Plaintiff contends that defendants violated the Privacy Act by failing to maintain accurate records on her, id. § 522a(g)(1)(C), *fn8" and that she is entitled to actual damages authorized by section 552a(g)(4). *fn9"

 3. Plaintiff contends that defendants' including in the file derogatory and prejudicial allegations about plaintiff without first independently investigating those allegations and affording her an effective opportunity to refute them was arbitrary, capricious, and an abuse of discretion in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA").

 4. Plaintiff contends that entering these derogatory and prejudicial allegations into the file without an independent investigation of those allegations by the defendants did not afford plaintiff an effective opportunity to refute them, and thus violated her rights to privacy and due process of law protected by the First, Fourth, Fifth, and Ninth Amendments to the Constitution.

 5. Finally, plaintiff contends that the defendants' refusal to disclose the identity of the sources making the derogatory allegations about plaintiff, while at the same time refusing to expunge those allegations, violated her right to due process of law protected by the Fifth Amendment to the Constitution.

 The plaintiff initiated discovery in this action by serving a first set of interrogatories that asked for the identities of the sources who made the derogatory statements contained in her file and the names of the CSC investigators who conducted the interviews with those sources. Doe's second set of interrogatories asked for the location of three identified witnesses and the identities of any additional witnesses known to the CSC. The CSC objected to supplying this information, and the plaintiff moved to compel the answers to these interrogatories. In a comprehensive Memorandum Order, Magistrate Sinclair ruled that Doe was entitled to all the information requested. The defendants then moved for summary judgment and filed objections to the Magistrate's order in the event their motion was denied. Several months later, a motion for partial summary judgment on grounds of mootness was made by the CSC and the named defendants in their official capacities. These motions and objections are now before the Court.


 The CSC has offered to grant Doe what it considers to be the "complete relief" she demanded in her complaint against the CSC and the named defendants in their official capacities. The relief sought was:

a. A declaratory judgment and injunction ordering defendants independently to investigate, and afford plaintiff the opportunity to refute, all derogatory and flagrantly prejudicial allegations about her, and disclosing the identity of the sources of those allegations to the extent the defendants refuse to expunge such allegations;
b. A declaratory judgment and injunction ordering defendants to amend plaintiff's records;
c. A judgment that the United States is liable to the plaintiff for actual damages sustained in the amount of $ 100,000;
d. Reasonable attorney fees and other litigation costs;
e. Such other and further relief as this Court deems just and proper.

 The settlement proposal offered by the CSC includes:

 (1) deleting all references to stealing from the April 10-11 and April 14-15, 1975 reports that prompted the current action;

 (2) deleting the affidavits and letters submitted to the CSC that refer to the derogatory remarks and the subsequent CSC report that resulted from CSC's efforts to verify the original investigation;

 (3) informing the Fellowship Commission of these changes;

 (4) promising that the April 10 and April 14 sources who provided the derogatory information will not be contacted again in the event that Doe applies for another government position and is subject to a CSC investigation;

 (5) paying Doe an undetermined sum of money for actual damages, attorney's fees, and costs pursuant to the Privacy Act.

 Affidavit of Llewellyn Fischer, Information and Privacy Counsel of the Office of Personnel Management (successor to the CSC), sworn to February 8, 1979 ("Fischer Aff.").

 The exercise of judicial power under Article III depends upon the existence of an actual case or controversy. Preiser v. Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1974). Chief Justice Warren's opinion for a unanimous Court in Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), declared that, "(s)imply stated, a case is moot when the issues presented are no longer "live' or the parties lack a legally cognizable interest in the outcome." Id. at 496, 89 S. Ct. at 1951. The doctrine of mootness ensures that a court will not assert jurisdiction to decide a dispute that exists only on paper and no longer represents the true state of affairs between the parties. If the harm alleged constitutes a "continuing and brooding presence," Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S. Ct. 1694, 40 L. Ed. 2d 1 (1974), or is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911), it provides "a classic justification for a conclusion of nonmootness." Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147 (1972). "Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave "the defendant * * * free to return to his old ways.' " United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S. 199, 203, 89 S. Ct. 361, 364, 21 L. Ed. 2d 344 (1968), quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). The defendant who attempts to moot a case must satisfy a "heavy burden of persuasion" that the likelihood of future violations is remote. United States v. W. T. Grant Co., supra at 633, 73 S. Ct. 894. The Court concludes that the defendants have neither carried this burden nor successfully extinguished all "live" issues present in the case.

 A. Live Issues

 The defendants contend that "(a)n item-by-item comparison of the relief demanded and the relief offered by the CSC conclusively demonstrates that there is no longer extant the "live controversy' called for in Powell." Defendants' Memorandum in Support of Motion for Partial Summary Judgment at 10 ("Defendants' Memorandum II"). In response, Doe argues that not all her claims are satisfied by the CSC's proposal and important issues remain to be adjudicated. While the defendants' argument is not without appeal, the Court agrees with Doe's contentions.

 Doe's Privacy Act claim seeks a statutorily authorized de novo determination of her amendment request on the grounds that the theft allegations are false and that the CSC failed to maintain its records with sufficient accuracy to assure fairness to the applicant. See n.7 supra and discussion of Privacy Act at Part III A infra. At first blush, the CSC's settlement proposal may appear to provide the relief requested. Yet the CSC expressly states that its offer is made "without an admission of wrongdoing," Fischer Aff. at 1, and the agency has previously declared that the theft allegations "(remain) unrefuted." The crux of Doe's dispute with the agency has always been, and continues to be, the alleged inaccuracy of the theft allegations and unconstitutionality of CSC's investigatory procedures. The very purpose of this lawsuit is to secure an opportunity to clear her name. The CSC's offer to delete the accusations from Doe's file, without either disclaiming their validity or providing a hearing on the issue, is not commensurate with a judicial decision that the accusations are unfounded. A court ordered amendment based on a finding that the CSC erred in not deleting the accusations from Doe's file in the face of substantial contrary evidence would help to vindicate the claim to innocence that Doe has energetically pursued throughout the course of her dispute with the CSC. Such an order would reveal the shaky foundation on which the accusations rest to all those who have become cognizant of the charges made against her. *fn10"

 The question of potential monetary relief is another "live" issue that supports the conclusion that the case is not moot. Privacy Act damages can be awarded only if a court determines that "the agency acted in a manner which was intentional or willful" in failing to maintain its records accurately and fairly. Id., 5 U.S.C. § 552a(g)(4). Therefore, a judicial finding to this effect is a prerequisite to government liability under the Act. In offering to pay an undetermined amount of damages, "as authorized by the Privacy Act," the CSC firmly rejects any admission of wrongdoing. Fischer Aff. Instead, the agency has circuitously arrived at an awkward compromise position: "the CSC will not contend that it acted in a manner other than intentional and willful" in a subsequent proceeding to determine settlement damages. Defendants' Memorandum II at 7. Furthermore, stating that the "intent and good faith of CSC investigators has nothing to do with these (damages) issues," Defendants' Reply Memorandum in Support of Motion for Partial Summary Judgment at 7 ("Reply Memorandum I"), the CSC asserts that Doe's claim "will still be subject to scrutiny and objection on such traditional grounds as excessiveness, remoteness, lack of factual support, and speculative computations." Defendants' Memorandum II at 10. The Court concludes that this offer of monetary relief is too riddled with qualifications to serve as a substitute for the relief demanded in Doe's complaint and is likely to engender further disputes between the parties requiring judicial resolution. Accordingly, both the government's failure to acknowledge the dubious validity of the allegations and the appropriate measure of damages to be awarded in the event Doe prevails, remain viable issues in this case.

 B. Capable of Repetition, But Evading Review

 Doe's complaint seeks a declaratory judgment that the CSC investigative procedures followed in her case were unconstitutional and an illegal abuse of discretion, as well as an injunction ordering the CSC to grant her an opportunity to refute the allegations made against her. As the defendants correctly point out, the mere request for a declaratory judgment or an injunction does not transform an otherwise moot action into an active case or controversy. Geraci v. Treuchtlinger, 487 F.2d 590, 592 (2d Cir. 1973). And although the "public interest in having the legality of the practices settled militates against a mootness conclusion," United States v. W. T. Grant Co., supra, 345 U.S. at 632, 73 S. Ct. at 897, policy concerns alone cannot revive a moot action. Becket v. Marks, 358 F. Supp. 1180, 1184 (S.D.N.Y.1973). However, when the government conduct challenged allegedly stops affecting the challenger before the case is decided, then apart from the question of live issues the mootness determination may turn on whether the government's action is "capable of repetition, but evading review." Division 580, Amalgamated Transit Union v. Central New York Transp. Auth., 578 F.2d 29, 32 (2d Cir. 1978), quoting First Nat'l Bank v. Bellotti, 435 U.S. 765, 774, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1977). As recently stated by the Supreme Court, this principle may be applied when "(1) the challenged action was in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party (will) be subjected to the same action again." First Nat'l Bank v. Bellotti, supra, 435 U.S. at 774, 98 S. Ct. at 1414. The Court concludes that Doe's suit satisfies these criteria.

 Doe has submitted an affidavit to the Court that indicates the opportunity for repetition of the government's challenged action. She states that (1) she intends to reapply for a White House Fellowship; (2) she would have already reapplied but for the derogatory allegations in the CSC report; and (3) she intends to apply for a high level federal position that she believes will entail another full field investigation. Affidavit of Jane Doe, sworn to February 29, 1979. In an apparently sincere attempt to prevent another episode in this troubling series of accusations and refutations, the CSC offers to remove all references to stealing from Doe's file, promises that the two sources of the derogatory information will not be contacted if another investigation is conducted, and states that the only notation in Doe's file would be an instruction to CSC investigators not to contact these two sources. The Court recognizes that a suit against a government agency may be deemed moot when the defendant takes steps to insure that the challenged government action will not be repeated. See, e.g., Tawwab v. Metz, 554 F.2d 22 (2d Cir. 1977) (challenge to correctional facility's visitation rules mooted by policy change embodied in official prison document); Consumers Union v. Veterans Administration, 436 F.2d 1363 (2d Cir. 1971) (government's concession that data did not fall within Freedom of Information Act exemption mooted action to compel disclosure); Lamb v. Commissioner, 390 F.2d 157 (2d Cir. 1968) (per curiam) (taxpayer's appeal mooted by government's grant of a refund plus a concession regarding subsequent tax liability). However, "there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment" resolving the issues before the Court. Preiser v. Newkirk, supra, 422 U.S. at 402, 95 S. Ct. at 2334, quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941). In light of Doe's stated intentions, it is likely that she will soon be the subject of another CSC investigation; the agency does not refute this assertion. Even if the CSC can guarantee that the two sources will not be recontacted, it cannot insure that similar allegations of theft will not appear in Doe's file unless the CSC gives her an opportunity to disprove the allegations to the agency's satisfaction a feat not accomplished by the submission of numerous letters and affidavits from former college students, the college dean and lawyer, and two psychiatrists.

 The possibility that the accusations of theft will be made by persons other than the two sources declared off limits is a "reasonable expectation" and far from remote. First, Doe contends that one of the two sources learned of the alleged "rumor" from the other source. Gossip of this kind, truthful or otherwise, is likely to spread to other persons who believe it and will repeat it to CSC investigators. Second, as a result of Doe's attempt to refute the allegations against her, many people now know that she was accused of stealing, even if these people do not believe the allegations themselves. That mere knowledge of these rumors could be damaging to Doe is demonstrated by the CSC's description of the follow-up interview it conducted with one of the people who had submitted a letter on Doe's behalf in support of her amendment request. The CSC, attempting to justify its refusal to delete the theft allegations, stated that this individual told CSC investigators that she did recall that Doe was suspected of stealing while she was at college. Defendants' Memorandum at 8. The agency neglected to point out, however, that this individual also stated that there was no "hard evidence" linking Doe to any thefts and that she personally did not believe the allegations. CSC Report of Investigation, October 18 & 19, 1977 (submitted to the Court in camera).

 The Commission made its final decision on the fellowship applicants shortly after the CSC's original investigative report was submitted, and Doe had no knowledge of the contents of that report. Therefore, "the challenged action was in its duration too short to be fully litigated prior to cessation or expiration." First Nat'l Bank v. Bellotti, supra, 435 U.S. at 774, 98 S. Ct. at 1414. If Doe applies for a government position not within the "competitive service," as she states she intends to do, the CSC investigation procedures will be the same as the first time around; Doe will not be informed of any derogatory charges made against her, and the procedures would continue to evade review. *fn11" The fact that she cannot conclusively prove that she would have received a fellowship but for the derogatory CSC report although she does have credible evidence to support this claim does not diminish the threat posed by such damaging statements. *fn12" Unless the CSC gives Doe a chance to refute the theft allegations, or agrees to consider them inaccurate, the charges constitute a "continuing and brooding presence" threatening her employment opportunities with the federal government.

 The numerous cases cited by the defendants in which an action was declared moot because the government made a complete settlement offer, or the officials involved guaranteed that the challenged act would not recur, do not compel a similar finding of mootness in this case. Those decisions did not involve a government offer to pay damages authorized by a federal statute in the absence of a judicial finding that is a statutory prerequisite to a damages award. Although courts frequently accept a government attorney's representation that certain acts will not be repeated, see, e.g., Jackson v. Lynn, 165 U.S.App.D.C. 172, 506 F.2d 233 (D.C. Cir. 1974); Cherry v. Postmaster General, 332 F. Supp. 785 (S.D.N.Y.1971), aff'd, 460 F.2d 1063 (2d Cir. 1972), the authority of a CSC lawyer to consent to an award of damages against the government without the statutorily required proof of wrongful intent, as required by the statute, has not been established.

 The CSC's failure to admit to any wrongdoing, justified or not, also distinguishes this case from Consumers Union v. Veterans Administration, supra, and Tawwab v. Metz, supra, relied upon by the defendants. Consumers Union was an action to compel the Veterans Administration to disclose 1968 records of a hearing aid testing program to the plaintiff, a non-profit corporation that evaluated consumer products. After Consumers Union was granted partial relief by a district court, both parties appealed. The Veterans Administration then amended its 1970 procedures to allow disclosure of test results and made this policy retroactive to 1968. Consumers Union therefore received all the information it sought in the district court action. The government moved to dismiss the action as moot on the grounds that "the relief requested had been supplied by the Government, thus an order by this court to disclose the information would be pointless." 436 F.2d at 1365. The Second Circuit denied the motion because "(t)he Government's position on its cross-appeal indicated it felt the disclosure was discretionary on its part and not required by the Freedom of Information Act, creating the distinct possibility that the dispute which generated the present action would recur." Id. Subsequently, at oral argument, the government conceded that the test results were not within any of the Act's exemptions and that no public interest rationale justified withholding the information. This concession satisfied the Second Circuit that injunctive relief ordering the test results produced was unnecessary because it was "quite clear" that the government would not rely again on the Act's exemptions to resist disclosure, and the appeal was dismissed as moot.

 Similarly, in Tawwab, a suit challenging a correctional facility's attorney visitation policy was dismissed as moot by the Second Circuit because the allegedly unlawful policy was changed before the case was heard, and this change was "embodied in an official prison document" demonstrating that it was "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." 554 F.2d at 24, quoting United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968). Such a guarantee is lacking in the case at bar because the defendants do not concede that the theft accusations are false or that the CSC procedure unfairly deprived Doe of an opportunity to refute the accusations and should not be followed in the future if these charges are made again. Cf. Seibert v. Sperry Rand Corp., 586 F.2d 949 (2d Cir. 1978) (suit challenging election of corporate director not moot ...

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