Unpublished Disposition, 872 F.2d 428 (9th Cir. 1987)

MEMORANDUM^* 

Dr. David Jochen appeals the district court's grant of summary judgment in favor of defendant Veterans Administration et. al. ("VA") on all of Jochen's statutory and constitutional claims. Because we find that Jochen's appeal raises no genuine issue of material fact, we affirm the district court's grant of summary judgment.

BACKGROUND

In December 1984, Jochen applied for the position of Chief of the Central Dental Laboratory ("CDL") of the VA Wadsworth Medical Center ("WMC") in Los Angeles. The position went to Dr. William Pagan rather than Jochen. Jochen alleges that Dr. Chester Paczkowski, VA Director of Programs for Dentistry, informed him that he was not selected for the position because of his difficulties with interpersonal relations.

In July 1985, Jochen reported to Mr. William Anderson, WMC's Director, and to a member of the VA Office of Inspector General ("OIG") that Pagan's conduct as Chief of the CDL violated several federal statutes and regulations. Jochen alleges that as a result of his "whistle-blowing," Pagan relieved him of his major duties as Assistant Chief of the CDL. Jochen then filed a complaint with the Office of Special Counsel ("OSC") of the Merit Systems Protection Board. He sought an investigation of Pagan's actions.

At the end of July, Dr. Paczkowski conducted a site visit of the CDL and filed a Site Visit Report ("SVR"). After interviews with Jochen and other staff members, Paczkowski concluded that Jochen should be reassigned. Jochen was subsequently transferred to the VA Dental Service in Brentwood, California. He filed a complaint to the OIG alleging that his transfer was a reprisal for previous complaints. Jochen also filed an administrative grievance upon learning that he could not enter the CDL without Dr. Pagan's permission.

On April 15, 1986, the OSC determined that there was insufficient evidence to sustain Jochen's charges against Dr. Pagan. The OIG came to a similar conclusion and subsequently denied Jochen's request for a reevaluation of the case. In October 1986, Jochen filed a Privacy Act request with the VA for correction, amendment and expungement of Dr. Paczkowski's SVR.

On June 16, 1987, after the VA denied Jochen's request and subsequent appeal, Jochen filed the instant action in the district court. In response to Jochen's third amended complaint, the district court granted the VA's motion for summary judgment on all nine causes of action.

ANALYSIS

We review a grant of summary judgment de novo. Adams House Health Care v. Bowen, 862 F.2d 1371, 1374 (9th Cir. 1988). Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To withstand a motion for summary judgment, the non-moving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Privacy Act Claims

Jochen contends that the VA violated his rights under the Privacy Act of 1974, 5 U.S.C. § 552(a) in three ways: (1) the VA failed to maintain a complete system of records on Jochen with regard to the selection process for Chief of the CDL; and (2) the VA also failed to maintain a complete system of records on Jochen with regard to the decision to remove Jochen as Assistant Chief of the CDL; and (3) the VA deprived Jochen of his rights to amend, correct, or expunge incorrect information in his file.

The gist of Jochen's first claim is that the VA failed to include in its records a statement made by Dr. Minick, a former CDL chief, to Paczkowski that played a critical role in the selection of Pagan over Jochen for CDL Chief. Minick told Paczkowski that Jochen had "difficulties with interpersonal relations." Blue Brief at 11. Jochen contends that under section 552a(e) (5), the VA was obligated to keep a record of Minick's statement. The district court held that verbal opinions are not "records" within the meaning of section 552a(e) (5). We agree.

Section 552a(e) provides in pertinent part:

Each agency that maintains a system of records shall--

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(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination....

Section 552a(a) defines "record" as "any item, collection, or grouping of information about an individual that is maintained by an agency...." Given that a record is something maintained by a government agency, a verbal communication such as Minick's remark to Paczkowski does not constitute a record. See Federal Deposit Ins. Corp. v. Dye, 642 F.2d 833, 836 n. 5 (5th Cir. 1981) (verbal statements are not "records" under the Privacy Act). Therefore, the VA did not violate the Privacy Act in failing to keep a record of Minick's remark.¹ 

Jochen's second Privacy Act claim arises from the VA's decision to remove him from his post as the CDL's Assistant Chief. He contends that the VA improperly used information not contained in the VA's file on Jochen in making the removal decision.²  Specifically, the VA used information in Paczkowski's SVR. The SVR was not filed in the VA's file on Jochen but rather in a separate file containing records on the VA facility visited. Jochen contends that by not placing the SVR in Jochen's file, the VA failed to maintain a record that was necessary to assure fairness in the VA's decision to remove Jochen from the position of Assistant Chief of the CDL. See Secs. 552a(e) (5) and 552a(g) (1) (C).

Damages are not available to Jochen even if the VA violated sections 552a(e) (5) and (g) (1) (C) unless Jochen can show that the VA acted willfully or intentionally. 5 U.S.C. § 552a(g) (4). Jochen offers no evidence that the VA acted willfully or intentionally in failing to place the SVR in Jochen's file.³  Accordingly, we find that the district court acted properly in granting summary judgment against Jochen on his second cause of action.

Jochen's third Privacy Act claim is actually twofold: (1) that the SVR is subject to amendment under subsections 552a(d) (2) and (d) (3); and (2) that the SVR, containing remarks make by Jochen in the exercise of his First Amendment rights, is in violation of subsection 552a(e) (7). The district court found that sections 552a(d) (2), (3) and (e) (7) were inapplicable to Jochen because the SVR was not part of the system of records the VA maintained on Jochen. Alternatively, the district court concluded that the VA did not violate section 552a(e) (7) because preparing the SVR constituted an "act of determining whether a public employee is performing his job adequately is an authorized law enforcement activity" and therefore falls under section 552a(e) (7)'s law enforcement exception.

Jochen's (d) (2) and (d) (3) claim fails because the SVR is not in the system of records the VA kept on Jochen. See Baker v. Department of Navy, 814 F.2d 1381 (9th Cir.), cert. denied, 108 S. Ct. 450 (1987) (holding that an individual cannot seek amendment under the Privacy Act of a report that is not contained in the system of records on that individual).

The district court held that Jochen's (e) (7) claim fails for the same reason: the SVR was not contained in Jochen's file. Jochen contends, however, that under Albright v. United States, 631 F.2d 915 (D.C. Cir. 1980), subsection 552a(e) (7) applies even to a record not contained within an individual's file. We need not adopt or reject the District of Columbia Circuit's position in Albright because we agree with the district court's alternative ground for rejecting Jochen's (e) (7) claim: the SVR falls under the (e) (7)'s authorized law enforcement activity exception. Dr. Paczkowski's site visit was aimed at assessing the validity of Jochen's concerns about the operation of the CDL. The resulting SVR was, therefore, made for an evaluative purpose and falls within the exception to (e) (7). Nagel v. U.S. Dept. of Health, Educ. and Welfare, 725 F.2d 1438, 1441 (9th Cir. 1984) ("A federal agency does not violate the [Privacy] Act if it records, for evaluative or disciplinary purposes, statements made by employees while at work.")

Due Process Claim

Jochen's fourth claim arises from his removal as the Assistant Chief of the CDL. He contends that the resulting loss of pay violated his due process rights. The district court found that Jochen presented insufficient evidence to raise a genuine factual dispute. We agree.

The Special Pay Agreement under which Jochen received additional pay explicitly provides that any entitlement to special pay will terminate if the recipient is reassigned to an "excluded category," i.e., an assignment not designated to receive special pay. ER at 31. The VA reassigned Jochen to an excluded category, thereby dissolving Jochen's entitlement to special pay. Because Jochen's property interest in the special pay was created by the terms of the Special Pay Agreement, the VA did not deprive him of that property interest by acting in conformity with the terms of the Agreement. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (" [Property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.")

Jochen alleges, however, that the VA violated its own guidelines by reassigning him to another position merely so that he would develop leadership skills. In fact, the SVR stated that a transfer will allow Jochen to "sharpen his clinical skills" and then mentioned "effective leadership" in the next sentence. ER at 34. The VA guidelines provide:

Transfers, reassignments, details, and changes in duty assigned will be based primarily on patient care needs. To the extent possible, these movements should be made to make maximum use of employees' skills and capabilities and to provide employees with opportunities for professional growth and development.

Blue Brief, Addendum at 7. Given this language, we do not find any violation in the VA's reassignment of Jochen.

Administrative Procedure Act Claims

Jochen's next three claims are based on 5 U.S.C. § 706 of the Administrative Procedure Act. Jochen contends that in responding to his grievances, the OIG, the OSC, and the VA acted arbitrarily and capriciously. The district court found that Jochen failed to present any evidence of any such misconduct on the part of these agencies.

5 U.S.C. § 706(2) (A) requires that we hold unlawful and set aside any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ..." Although we review the district court's grant of summary judgment de novo, the standard we apply in reviewing agency actions is highly deferential. We will not overturn an agency decision when the agency has based its decision on a consideration of the relevant factors and has not made a clear error in judgment. Sears Sav. Bank v. Federal Sav. & Loan Ins., 775 F.2d 1028, 1029 (9th Cir. 1985).

Jochen contends that the OIG and the OSC acted arbitrarily and capriciously in their respective investigations of his allegations against the VA. The record indicates otherwise. Both agencies looked into Jochen's allegations against Dr. Pagan and the VA, determined that there was insufficient evidence to sustain these allegations, and decided not to conduct any further investigations. We cannot find any clear error in the actions of these agencies. See Kotarski v. Cooper, 799 F.2d 1342 (9th Cir. 1986), vacated and remanded on other grounds, 108 S. Ct. 2861 (1988) (OSG fulfils its statutory role by investigating and reporting whether there are reasonable grounds to believe that a prohibited practice has occurred).

Jochen's contention that the VA acted arbitrarily and capriciously in its response to his grievance is also meritless. Jochen filed a grievance upon being denied entry to the CDL after he had been reassigned to another location. The VA's response to Jochen's grievance included three levels of review. In its final determination, the VA found that the adoption of a written visitation policy resolved the issue raised by Jochen's grievance. We cannot find any clear error in the VA's treatment of Jochen's grievance.

Mandamus Claim

Finally, Jochen contends that the failure by the OIG, the OSC, and the VA to act in accordance with their respective duties requires that these agencies be subjected to mandamus under 28 Sec. 1361. Because we reject Jochen's contentions that these agencies acted arbitrarily and capriciously, we find not the slightest basis for a resort to extraordinary relief such as mandamus in this case.

AFFIRMED.