Petition for Writ of Certiorari — Parker v. Department of Defense

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Supreme Court, U.S.

/ FILED

O4 213 AUG1 2 2004

No. .

In The Supreme Court of the United States

GLENDA GAIL PARKER, U:S. citizen

Veteran and Pro se Petitioner

DEPARTMENT OF DEFENSE

DONALD H. RUMSFELD, Secretary of Defense and

WILIAM S. COHEN, Former Secretary of Defense

A. R. KELTZ,

EDWARD ROSS,

JEANNIE FARMER,

KEITH WEBSTER, and

KAREN GARVEY

Respondent(s)

On Petition For Writ Of Certiorari

To The United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

GLENDA GAIL PARKER, Pro se Petitioner

5904 Mt. Eagle Dr, # 506, Alexandria, VA 22303

703-960-5602

NIT ea iim an

wr. =

Writ of Certiorari

A. QUESTIONS PRESENTED FOR REVIEW:

1. Whether the Fourth Circuit Court correctly held, in

conflict with a February 2004 US Supreme Court ruling in

Doe v. Chao and numerous rulings of other Circuits, that

claims under The Privacy Act of 1974 does not constitute a

claim against which relief can be sought in the District Court

under the First Amendment to recover actual damages?

2. Whether the Fourth Circuit correctly held that the

petitioner can not bring suit and obtain relief in the district

courts under Title 28 Section 1361 to compel the DOD to

comply with the HIPAA, the Privacy Act, the USERRA.

Section 8 and Article II of the US Constitution under the

jurisdiction of 28 U.S.C. §§ 1294, 1331, 1346(b)(1), 1361

and 2674?

3. Whether the Fourth Circuit correctly held that the

petitioner waived constitutional rights to file in the District

Court under the Westfall Act and The Privacy Act of 1974

because she checking item (4), “The case involves an

application to the Office of Personnel Management for

benefits,” and only item (4) of “Petitioner’s Fed. Cir. R. 15(c)

Statement Concerning Discrimination” and signed the

document in appealing a Merit System Protection Board

ruling?

Writ of Certiorari

B. PARTIES TO THE PROCEEDINGS -—

All parties are listed in the caption. Pro se petitioner

was formerly known as Glenda Gail Crook. William S.

Cohen, former Secretary of Defense and Donald H.

Rumsfeld, Secretary of Defense properly sworn in on January

20, 2001, are listed as is proper legal form in their capacity as

Secretary and Former Secretary of Defense.

ili

Writ of Certiorari

TABLE OF CONTENTS

A. QUESTIONS PRESENTED ..................ccse00 i

B. PARTIES TO THE PROCEEDINGS ............. ii

C. TABLE OF CITED AUTHORITIES ............. Vv

D. CORPORATE DISCLOSURE STATEMENT .. 1

E. OPINIONS AND ORDERS ENTERED .......... 1

F. Ps BEETS cndevnssincsnctessaceccecasensessnseces 1

G. AUTHORITIES INVOLVED IN THIS CASE .. 1

H. FACTS MATERIAL TO CONSIDERATION .. 2

Re DUAR MMIMEEAIN D Senecasesscasuscdevcccncussccesscccces 2

A. Statutory Background................... 2

B. Factual Background ...................0. 4

2. JURISDICTION OF FIRST COURT ......... 6

3. REASONS TO GRANT THE PETITION .... 7

A. Certification is Reviewable...............8

B. Action Outside Offfice....................8. 9

ee MUIR cscnccncnscscscesscosnccceccsses 9

D. Court Supervision is Needed............. 9

E. Clarify COA and Jurisdiction.......... 10

F. Conflict with Rulings..................... 11

ey PRPIEIIEIIS © epinsncgscocccesccccccceccccocsscacsnsces 11

I. RULE 10(c) STATEMENT ....................c0000s 13

Be RR RP ecnesccnccccnnnsnrccccccsccccscccencecees 13

II.

IV.

VI.

Writ of Certiorari

APPENDIX

OPINIONS, ORDERS, FINDINGS OF FACT,

CONCLUSION OF LAW, AND TRANSCRIPTS

APP I. 1-2

OTHER RELEVANT OPINIONS

: APP. II. 3-10

ORDER ON REHEARING

APP. III. 11

JUDGEMENT TO BE REVIEWED

APP. IV. 12 - 14

COPY OF AUTHORITIES 7

APP. V. 15-215

OTHER MATERIAL ESSENTIAL TO

UNDERSTAND THE PETITION

APP. VI. 216-219

Writ of Certiorari

C. TABLE OF CITED AUTHORITIES

Cases: Page(s)

Bell v. Hood,

Dee BE MAE a issnesincatemsstaonenaboienioss 8, 9, 13

Bivens v. Six Unknown Fed. Narcotics Agents,

SE Wa. SOE Gicanvitakcisinbictntinmiceatanianesin jecansessiaoe 6

Butz v. Economou,

RIE ERs FOO vin cktchcannbinebtanernsannaniebenixbacanmelienes 6

Carlson v. Green, ;

SINR PIL SDs cecnniorbsnchocassissirexivikny tinieenaseiacliphensauioiiababanietn 7

Davis v. Passman,

Oe Weak RG Fe iiisceinincsnaiemntinnncyenncciniiioan 6, 11, 13

Doe v. Chao, (02-1377), mn

ee ics caccskainsninissreckieonudiaianmananatonn 7, 11,13

Estelle v. Gamble,

EF RE ig. Pe stiiinciteicinhihiemenpisncinttnonns 10

Federal Deposit Insurance Corporation v. Myer,

(92-741) 510 U.S. 471 (1994)... eee eeeeeeeeeeees 10

Gomez v. USAA Federal Savings Bank & Mills,

CSD COI sctcincttnniatineaedinniaetcienmeiniianeats 10

Horne v. Holley,

1967 VA 234, 241, 188 S.E. 169, 172 (1936)......... 7

Ingersoll-Rand Co v. McClendon, (89-1298),

Se a Ce dice encianacincnconskitiocusadioncentes 9

Martinez v. Lamagno (94-167),

ee AEE BPs siiiniccswicnivivicciieenene

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) See 343 U.S. 937 (1952)........ 9

Statutes Page(s)

SUNIL TIT. Nuicnissoch capdik neeneacsiniciaciiar nudbaank aisktcataddavantdannisnlaenente 7,13

Article II to the U.S. Constitution........0.0...ccccceeeceeeeeeees 1,11

Writ of Certiorari

First Amendment, U.S. Constitution........1, 1, 4, 6, 8, 10, 11

Fifth Amendment. U.S. Constitution....... 1, 1, 4, 6. 8, 10, 11

5 U.S.C. $ 552a :

(Privacy Act of 1974) ..1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13

DOF ae Rk ie PIE teens acnsarscicccteceincicinmiisaaaanaiate 12

FA 8 Fe ie eiciecersisnvestirneguinnenaoonanaen 10

FUE, 6 SPE cisinrcaseennrtneceinnsciniosienteioanetiian 11

18 U.S.C. § 24, as amended by HIPAA..................... passim

18 U.S.C. § 1025, as amended by HIPAA................. passim

18 U.S.C. § 3486(e), as amended by HIPAA............ passim

Be Us BRO iiscesqrnccsicivessasisiamadsiaaiseseantapansaaicaiea l

BAR. BET IIOIG DS wsisssinnxicrincscicceaeamaadanaiiase l

Be Whites: RE PONE seccisntasintictsackiotineitn i, 1, 8,9, 10, 10, 13

28 U.S.C. $1346(D)(1) cecscecsceseeseeseeen nes i, 1,8, 10, 13

Be Ue POE weittieciccsuinrictconronnnan i, 1, 8, 10, 13

SOU... © BERGE scimienssvisrsnesaicsninonnseeenaal passim

Be a rn Be Pi nciniesinaiilineciniaaanuaan i, 8, 10, 13

SP USL... § BETIS) vsisiinicomccieanniaemebee 8, 10

Se A ae, COE Ds cscartsnnisinrcnnsnnintiiceisdecheseisinmanl i, 13

DEI sncicnssinenscsacessasniisnsanlanianaccip de dalige dakalicinaiieanaaia aaa i, 12

7O6 TOR GE Mi ikiticccdidiommnniaeioaen 8

Regulations Page(s)

EOOVERE 1205.82, Agel S, FIG cevisssscesssasssasrcsscnnnsonnanen passim

Miscellaneous Page(s)

Fed. Cir. R. 15(c) Statement Concerning Discrimination

<seneaniansiaamiitndclaiieada nana 1, 9, 10, 13

Woawbsinmtom Post Fie CE) oenicsnsssesissernissenpsrtinrvisncasanss passim

Writ of Certiorari

D. CORPORATE DISCLOSURE STATEMENT:

(RULE 29.6 STATEMENT)

_ Not applicable, petitioner is an individual U.S. citizen

born to U.S. citizens.

E. CITATIONS OF OPINIONS AND ORDERS

ENTERED IN THE CASE

The opinion of the court of appeals is an unpublished

Per Curiam Decision dated May 14, 2004. The U.S. District

Court for the Eastern District of Virginia Amended

Memorandum Opinion on Civil Action No. 03-431-A, is

dated October 27, 2003. A motion of an extension of time

was timely submitted and denied on June 29, 2004.

F. JURISDICTION — The judgment of the court of

appeals was entered on May 14, 2004, Docket No. 03-2483.

A timely petition for an extension of time for rehearing was

denied on June 29, 2004. The jurisdiction of this Court is

invoked under 28 U.S.C. §§ 1253 and 1254 and the First and

Fifth Amendments to the U.S. Constitution. Notification is

required to the Solicitor General of the United States, Room

5614, Department of Justice, 950 Pennsylvania Avenue,

N.W., Washington, DC 20530-0001. Certificate of service

provided.

G. AUTHORITIES INVOLVED IN THIS CASE:

The related statutes and constitutional provisions are

reproduced in the Appendix. The statutes involved are the

Westfall Act and the Privacy Act of 1974, Title 28 (Sections

} 1331(a), 1346(b)(1), and 1361)) and Title 5 Section 1222.

The constitutional provisions involved are the First and Fifth

Amendments and Article II and Section 8 of the Constitution.

; H. FACTS MATERIAL TO CONSIDERATION

a te ey ee

Writ of Certiorari

STATEMENT

This case is of such public importance in ensuring the

execution of civil servant's fiduciary duty” and in preserving

the public’s trust in the government that a deviation from

normal appellate practice is justified, if required.

Between June 18, 1999 and November 2001 the petitioner

made protected disclosures to eight different agencies

containing irrefragable proof and legal cites of statutes —

violated by DOD.

Allowing U.S. citizens’ civil service employment to be

terminated without cause and without limitation destroys the

merit promotion system and opens the door to unfettered

retribution for whistleblowing, to discrimination, to

violations of privacy and to political purging of the Executive

Department and its contractors —all without judicial review.

A. Statutory Background’

Although roots of the Privacy Act of 1974 can be traced back

as far as 1965 when hearings were held by the House of

Representatives Special Subcommittee on Invasion of

Privacy, the Act was passed in great haste during the final

week of the Ninety-Third Congress. There was no

conference committee convened. Instead, staffs of the

respective committees prepared a final version of the bill that

was enacted. The Report of the Secretary's Advisory

Committee on Automated Data Systems commissioned by

the Department of Health, Education and Welfare

. Virginia Code §§ 18.2-499 and 18.2-500 makes a breach of fiduciary

duty a litigatible cause of action under Virginia law.

> Taken from “History of the Privacy Act of 1974,” www.cavebare.com ,

from The Privacy Act of 1974 A Reference Manual for Compliance by

Aruthur A. Bushkin and Samuel I. Schaen, published by System

Development Corporation (McLean, Virginia), 1975

Writ of Certiorari

significantly influenced the Privacy Act. This report, entitled

Records, Computers, and the Rights of Citizens,

recommended a “Code of Fair Information Practice”

consisting of five basic principles: [HEW Rept., p 41)

1. “There must be no data record-keeping systems whose

very existence is secret.”

2. “There must be a way for an individual to find out what

information about him is in a record and how it is used.”

3. “There must be a way for an individual to prevent

informa’’®. about him obtained for one purpose from being

used o. made available for other purposes without his

consent.” Agencies are prohibited by the Act from disclosing

information for uses not compatible with the purposes for

which the information was collected unless prior written

consent of the individual has been obtained.

4. “There must be a way for an individual to correct or

amend a record of identifiable information about him.”

5. “Any organization creating, maintaining, using or

disseminating records of identifiable personal data must

assure the reliability of the data for their intended use and

must take reasonable precautions to prevent misuse of the

data.” Under the Act, agencies are required to ensure that

information is accurate, relevant, timely, and complete and

that appropriate administrative, technical, and physical

safeguards exist to ensure the security and confidentiality of

that information.

Since there was no conference committee convened, various

staff members prepared an analysis of the differences. The

most notable areas of compromise were:

Writ of Certiorar

The Senate's proposed Privacy Protection

Commission was replaced by a study commission,

The rule-making procedures proposed by the Senate

were eased,

The House standard for recovering damages from an

agency, which had previously required that the

individual prove an agency action was arbitrary,

willful, or capricious, was changed to require that an

individual need only prove that the agency’s actions

were “willful or intentional,”

The House standards for data collection were

tightened, and

Provisions for interfacing the Freedom of Information

Act with the Privacy Act were clarified.

With slight modifications, it was the compromise bill which

passed by both House and the Senate, and was signed into

law. The law amends Chapter 5 of Title 5 of the United

States Code dealing with Administrative Procedures by

inserting a new section 552a.

B. Factual Background

1. Cause of Action — Privacy Act and First Amendment:

In or about June 2004 and July 2003 the Defense

Security Service (DSS) accessed privacy act protected

records provided to them by memorandum on

February 24, 2000 and denied the petitioner an

interim SECRET security clearance. Each time a

security clearance is requested for the petitioner, the

records are accessed and the petitioner is harmed

anew.

On August 2, 2001 the DOD’s Washington

Headquarters Service Security Review Board

accessed privacy act protected records provided to

them without the plaintiff's permission.

CPM tic eB kala P gnc ORO ae id SBP: om 8 Am

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Writ of Certiorari

On December 20, 2000 the Defense Security Service |

(DSS) accessed privacy act protected records

provided to them on February 24, 2000.

On or about April 1999 the Defense Security Service

(DSS) accessed records about the plaintiff that were

created and held secret from the petitioner, available

to her only through a Freedom of Information Act

request by her attorney.

Records Accessed: The records accessed are as

follows:

1) Privacy Act protected mental health related

information intentionally transmitted by Mr.

Keith Wilson’s February 24, 2000

memorandum and released without the

plaintiff's permission. (Exhibit A22)

2) Intentionally deceptive and adverse records

naming petitioner created on April 13, 1998

by Ms. Karen Garvey to gain competitive

advantage over the petitioner. (Exhibit 9)

3) Records adverse to the petitioner and mental

health related intentionally created and held

secret from the petitioner by Jeanne Farmer on

July 13, 1998, and August 26, 1998 and used

to gain competitive advantage. These records

were provided by Ms. Farmer to the Defense

Security Service (DSS) in self-interests and

without the plaintiff's permission for use in a

Security investigation. (Exhibits 11 & 12)

4) Records naming the petitioner made by Mr.

Ross on May 5, 1998, compiled at his May 6,

1998 direction to be provided along with other

secretly held adverse mental health related

records without the petitoner’s permission

provided to the Defense Security Service

(DSS) in his self interests to be used in a

Security investigation. (Exhibit 10B)

Writ of Certiorar

5) Mental health related records compiled on her

and held secret from the plaintiff at the

January 11, 2000 direction of Lt. General

Davison under the advice of Mr. Keltz given

in Mr. Keltz’s self interest to harass and

intimidate the petitioner into bestowing sexual

favors as a condition of employment, to

retaliate against the petitioner for filing a

grievance on January 3, 2000 and to retaliate

against the plaintiff for June 21, 1999

protected disclosures. Mental health related

records were provided to the Defense Security

Service (DSS) on February 24, 2000 under

Mr. Keltz’s supervision. (Exhibits Al8 -

A79)

f) The DOD/DSCA cannot maintain any records

“describing how an individual exercises rights

guaranteed by the First Amendment” unless:

1) A separate statute authorizes the agency to

maintain the records;

2) The individual authorizes the agency to

maintain the records; or

3) The records are maintained “pertinent to and

within the scope of an authorized law

enforcement activity.”

A federal cause of action and damages remedy can

implied directly under the Constitution as a result of

the DOD/DSCA’’s violation of the petition’s

Constitutional right under the First Amendment as the

US Supreme Court has held with violations under the

Fifth Amendment in Davis v. Passman, 442 U.S. 228

(1979); in Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388; and in Butz v. Economou, 438

U.S. 478, pp 233-249; Carlson v. Green, 446 U.S. 14.

The Court’s opinion for Doe v. Chao, (02-1377), 306

F.3d 170, is quoted below:

Writ of Certiorari

...breaches of the statute with

adverse consequences are addressed

by specific terms governing relief:

“In any suit brought under the

provisions of subsection (g)(1)(C) or

(D) of this section in which the court

determines that the agency acted in a

manner which was intentional “or

willful, the United States shall be

liable to the individual in an amount

equal to the sum of---

(A) actual damages sustained by the

individual as a result of the refusal or

failure, but in no case shall a person

entitled to recovery receive less than

the sum of $1,000; and

(B) the costs of the action together

with reasonable attorney fees as

determined by the court.”

§552a(g)(4).

| 2. Jurisdiction of the First Court and Constitution Issues:

a As contained in the petitioner’s amended docketing

statement and brief, her civil action lawsuit includes

action brought under The Westfall Act, The Privacy

Act of 1974 and Title 5 Section 1222 and is in

compliance with VA Code §§ 18.2-499 and 18.2.500,

(see, e.g., Horne v. Holley, 1967 VA 234, 241, 188

S.E. 169, 172 (1936)). The defendants Garvey,

Farmer, Wilson, Ross and Keltz failed to fulfill their

fiduciary responsibilities to the U.S. Public and to the

Section 8 of the U.S. Constitution by permitting the

sale of defense articles without going through the

arms sale approval process. (Exhibit 3, provided

April 4, 2003) Although acting under the color of

| their office their willful and intentional actions which

Writ of Certiorari

violated the Constitution and the Privacy Act of 1974

are outside the scope of the duties of their office. The

Westfall Act, 28 U.S.C. §§ 1331, 1346(b)(1), 1361,

2672, 2674 and 2679(b)(2), the Privacy Act of 1974,

5 U.S.C. 552a(g(1)(D) and Title 5 Section 1222

permit the petitioner to file suit, subjects the above

named defendants to liability and establishes the U.S.

District Court’s jurisdiction in this case. (Exhibit 3,

provided April 4, 2003, and Exhibit 6, provided June

30, 2003.)

b The defendant’s actions have violated Article II of the

U.S. Constitution which states that the Executive

Department “...shall take Care that the Laws be

faithfully executed...,” and the U.S. Constitution's

First Amendment (protects citizen’s privacy) and

Fifth Amendment (prevents the taking of citizen

property interest without compensation). Bell v.

Hood, 327 U.S. 678 (1946) established that a

petitioner’s claims under 28 U.S.C. § 1331(a) can

arise under the Constitution.

3. Reasons to Grant the Petition/Authority to Review:

A. Certification is Reviewable: Although the

defendants were acting under the color of their office, the

petitioner disagrees with the defendant’s certification that the

above named defendants acted within the scope of their

duties. fhe U.S. District Court has authority to review the

defendant’s certification. See Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 420 (1995). The court’s authority to

review actions of the Executive Department and _ its

component Departments is the Taft-Hartley Act of 1947. The

courts have upheld that while the courts are unable to prevent

action by the Department the actions of the Department of

Defense are “subject to judicial review and disallowance.”

See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

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(1952) See 343 U.S. 937 (1952) 28 U.S.C. §§ 1331, Bell v.

Hood, 327 U.S. 678 (1946).

B. Action Outside the Scope of Office: Defendants

Garvey, Farmer, Wilson, Ross, and Keltz were acting in their

own interest and therefore outside the scope of their duties in

violating the plaintiffs privacy to achieve competitive

advantage, to gain sexual favors, to retaliate for protected

activities, and to avoid investigations for violating the Arms

Export Control Act, The Espionage Act (18 U.S.C. 793, 794)

and The Subversive Activities Control Act of 1950, as

amended (50 U.S.C. 783). Ingersoll-Rand Co v. McClendon,

(89-1298), 498 U.S. 133 (1990)

C. Proceedings The Fourth Circuit Court of appeal

held that because the pro se petitioner sougit judicial review

of the termination of her government employment in Federal

Circuit Court no further legal remedies are available to her —

at all. To draw an analogy, this ruling is like saying a

criminal who robs a store one day, rapes the attendant the

next, and shoots a customer a third day tried for one crime

could never be tried for the other crimes.

D. A mandamus is needed with respect to 15(c)

statement procedures: The petitioner argues that the

Federal Circuit Court’s review of the termination of

employment arose from the authority of 28 USC. §

1295(a)(9) delegating exclusive authority to review the Merit

System Protection Board ruling. The Federal Circuit Court

held that it lacked jurisdiction to reach the merits of the

petitioner’s discrimination claim and that any discrimination

claim must be filed in District Court. The Fourth Circuit

Court held that the petitioner waived her discrimination

claims by signing and checking item (4) of the 15(c)

statement in her appeal before the Federal Circuit Court.

Item (4) does not abandon the discrimination claim.

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Instructions on the 15(c) form direct that only one of the five

items be checked. Therefore since the petitioner checked

only item (4) and item (4) did not waive discrimination

claims the petitioner clearly did not intend to waive her

discrimination claims. Were it impossible for the petitioner

to pursue discrimination claims in Federal District Court if

the appeal proceeded in the Federal Circuit Court, the Federal

Circuit Court erred in accepting the appeal for review and the

petitioner should not be made to suffer for the Federal Circuit

Court’s error. Estelle v. Gamble, U.S. 97, 106 (1976) and

Gomez v. USAA Federal Savings Bank (97-9381) 1999.

E. Clarify Cause of Action and Jurisdiction: The

argument above notwithstanding, Title 5 U.S.C. § 1222 does

not limit the right or remedy available outside of Chapters 12

and 23 of Title 5. Therefore remedies are available for civil

torts under Chapter 5 of Title 5, otherwise known as The

Privacy Act of 1974, and under The Westfall Act of Title 28.

The Federal Circuit Court’s review of the employment

termination decision should not and does not impart

immunity from the petitioner’s civil tort action under Title 28

Sections 1331, and 1361 nor under Title 5 Chapter 5, Section

552(g)(1)(D).

Jurisdiction of the Federal District Court in

petitioner’s civil actions case is invoked under Title 28

Section 1331, Sections 1346(b)(1), 1361, 2672, 2674, and

2679(b)(2) and Section 1294(a)(1) on appeal to the Fourth

Circuit Court. The petitioner has stated a claim under which

relief can be granted (5 U.S.C. § 552(g)(1)(D) and the First

and Fifth Amendments to the U.S. Constitution. The Fourth

Circuit Court has jurisdiction. The Second Circuit Court held

in Gomez v. USAA Federal Savings Bank and Miils, (97-

9381) 1999, that and pro se plaintiff should be given an

opportunity to amend to state a claim under which relief can

be granted.

Writ of Certiorari

F. Resolve Conflict with previous Supreme Court

Rulings: Additionally, the Fourth Circuit Court's finding no

cause of action in a civil action under The Privacy Act, 5

U.S.C. § 552(g)(4) conflicts with Davis v. Passman, 442 U.S.

228 (1979) and with February 24, 2004, US Supreme Court

ruling overturning a Fourth Circuit Court decision in Doe v.

Chao (02-1377), 306 F.3d 170. In the opinion of the US

Supreme Court:

The United States is subject to a cause of

action for the benefit of at least some

individuals adversely affected by a federal

agency’s violation of the Privacy Act of

1974.....

The Court stipulates that plaintiffs must prove some actual

damages to qualify for a minimum statutory award...

In this case, the Department of Defense does not dispute that

The Privacy Act was violated or that actual damages were

inflicted on the petitioner.

4. SUMMARY STATEMENT OF FACTS

The petitioner seeks to bring a civil action lawsuit against

five employees of the Defense Department who willfully and

intentionally violated the petitioner’s privacy, the First

Amendment, the Fifth Amendment and Article II of the

Constitution. These five individuals secretly assembled and

released Privacy Act protected mental health related records

on the petitioner without the petitioner's knowledge or

permission. The secret file was obtained by petitioner's

attorney through a Freedom of Information Act (FOIA)

inquiry. On.February 24, 2000, grievance material was

willfuily and intentionally extracted and used as a pretense

for initiating a security investigation on the petitioner, a

purpose other than that for which it was developed, i.e., for

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grievance adjudication and for legal purposes to establish

mental anguish. The assembled secret file contained

information on the petitioner that was intentionally deceptive

and negative. The secret file as characterized by the five

individuals contained mental health information. on the

petitioner and was released outside of healthcare channels

also without the permission of the petitioner and without

opportunity for the petitioner to correct the information or

comment on its inaccuracies.

The DOD had a legally recognized obligation to protect the

petitioner’s privacy under Section 552 of the 1974 Privacy

Act. In releasing the grievance material and the fabricated

mental health records the DOD failed to conform to the

standards of 5 U.S.C. § 552(b) and the Health Insurance

Portability and Accountability Act (HIPAA).

As a result of the fabrication of the health information, the

petitioner suffered embarrassment and humiliation as her

sanity was questioned and she was placed in the position of

being potentially [illegally] qualified to receive a medical

retirement on mental health grounds. As a result of the

unauthorized release of the Privacy Act protected grievance

material, the petitioner’s security clearance was revoked on

August 25, 2001. The petitioner incurred damages in the

form of legal fees in an attempt to retain employment. Each

time the petitioner applies for a security clearance the DOD

accesses the inappropriately released records and harms the

petitioner anew. The petitioner is unable to obtain or hold a

job in her chosen profession without the security clearance

she held for 16 years and is unable to obtain employment at

her previous annual salary of $105,000.00. Actual damages

exceed $50,000.00 (attorney fees and other expenses, lost

wages, and compensatory damages). Tort remedy is

permitted by 5 U.S.C. § 1222 and by 28 USC. §§

1346(b)(1), 1361, 2672 and 2674. Jurisdiction resides with

pid

Writ of Certiorari

the U.S. District Court under 28 U.S.C §§ 1331, 1361 and the

Fourth Circuit Court of Appeals under 28 U.S.C. § 1294.

I. RULE 10(c) STATEMENT: _ The Fourth Circuit

Court in this case has decided an important federal question

in a way that conflicts with relevant decisions of the U.S.

Supreme Court on the Privacy Act and supervision of the

Court is needed with regard to 15(c) forms and procedures

which required the plaintiff to give up their Constitutional

rights in order to appeal a Merit System Protection Board

ruling.

J. CONCLUSION: A mandamus from this Court is

warranted to resolve the conflict with the Constitution with

regards to 15(c) statements, to resolve the conflict between

the Fourth Circuit Courts cause of action ruling in this case

and Supreme Court opinions in Bell v. Hood, 327 U.S. 678

(1946); Davis v. Passman, 442 U.S. 228 (1979); and Doe v.

Chao, (02-1377), 306 F.3d 170 (2004), to forestall further

distortion of the Privacy Act of 1974, and to compel the

Department of Defense to comply with Section 8 of the

Constitution with respect to sale of defense articles and with

38 U.S.C. Chapter 43 with respect of re-employment upon

return from military service.

Respectfully submitted,

GLENDA GAIL PARKER, US. Citizen, pro se

5904 Mt. Eagle Dr. # 506, Alexandria, VA 22303

IT.

ITT.

IV.

VI.

Appendix

APPENDIX

OPINIONS, ORDERS, FINDINGS OF FACT,

CONCLUSION OF LAW, AND TRANSCRIPTS

APP. I. 1-2

OTHER RELEVANT OPINIONS

APP. II. 3-10

ORDER ON REHEARING

APP. III. 11

JUDGEMENT TO BE REVIEWED

APP. IV. 12-14

COPY OF AUTHORITIES

' APP. V. 15-215

OTHER MATERIAL ESSENTIAL TO

UNDERSTAND THE PETITION

APP. VI. 216-219

Table of Contents

for

Appendix

Location Date Document Description

Appendix I May 14, Fourth Circuit. Court PER

pg. 1-2 2004 CURIAM Decision, 03-

2483

Appendix II Oct 27,2003 District Court OPINION

pg. 3-10 CA-03-431-A

Appendix III Jun29,2004 Fourth Circuit ORDER

pg. 11 denying extension of time

for rehearing 03-2483

Appendix IV May 14, Fourth Circuit JUDGMENT

pg. 12 2004 03-2483

Appendix IV Oct 27,2003 District Court JUDGMENT,

pg. 13-14 CA-03-431-A

Appendix V Undated Article II, U.S. Constitution

pg. 15

Appendix V Undated Section 8, U.S. Constitution

pg. 16-17

Appendix V Undated Bill of Rights, USS.

pg. 18 Constitution

Appendix V Undated 5 U.S.C. § 552a

Location

pg. 19-49

Appendix V

pg. 50

Appendix V

pp. 51-59

Appendix V

pp. 60

Appendix V

pg. 61

Appendix V

pg. 62

Appendix V

pg. 63-65

Appendix V

pg. 66

Appendix V

pg. 67

Appendix V

pg. 68

Appendix V

Undated

iil

Table of Contents

Document Description

5 U.S.C. § 1222

18 USC. §$ 24,

3231, 3486

1035,

28 U.S.C. § 1253

28 U.S.C. § 1254

28 U.S.C. § 1331

28 U.S.C. § 1346(a) -(g)

28 U.S.C. § 1361

28 U.S.C. § 2101(e)

28 U.S.C. § 2674

28 U.S.C. § 2679

Location Date

pg. 69-72

Appendix V Undated

pg. 73-110

Appendix V_—_— Undated

pg. 111-179

Appendix V Undated

pg. 180-187

Appendix V Apr 4, 1996,

pg. 188-215 as

Apr 16, 1997

Appendix V1

pg .216-217

Appendix VI

pg.-218-219

Jan 6, 2004

Table of Contents

Document Description

changed

Mar 21, 2003

38 U.S.C. Chapter 43

Health Insurance Portability

and Accountability Act of

1996

Taft-Hartley Act

DODI 1205.12 Civilian

Employment and Re-

employment Rights of

Applicants for, and Servic

Members and _ Former

Service Members of the

Uniformed Services

Fed. Cir. 15(c) Statement

Concerning Discrimination

filed with petitioner’s Fed.

Cir. Court Appeal of MSPB

decision.

Employment ad _ published

in The Washington Post

help wanted ad section.

i a ll

PRP mi Pet ih LIAGPED PELE Mi A ty = REN BD A A poh

App. I- l :

Forth Circuit Decision -03-2483, May 14, 2004

UNPUBLISHED

United States Court of Appeals for the

Fourth Circuit

No. 03-2483

GLENDA G. CROOK,

Plaintiff - Appellant,

versus

U.S. DEPARTMENT OF DEFENSE,

Defendant - Appellee.

Appeal from the United States District Court for theEastern

District of Virginia, at Alexandria. Gerald Bruce Lee,

District Judge. (CA-03-431-A)

Submitted: April 30, 2004 Decided: May 14, 2004

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Glenda Gail Parker, Appellant Pro Se. Steven E. Gordon,

OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

App.I- 2

Forth Circuit Decision -03-2483. May 14. 2004

PER CURIAM.

Glenda Gail Parker appeals the district court's order

dismissing for want of jurisdiction Parker’s action

challenging her removal from employment and raising other

claims. We have reviewed the record and find no reversible

error. Accordingly. we affirm for the reasons stated by the

district court. See Parker v. Department of Def., No. CA-03-

43-A (E.D. Va. Oct. 27, 2003). We dispense with oral

argument because the facts and legal contentions are

adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

Cian tA tw SAIC IO Saat SRO AGAR ce 0 Bie GNA AiR TE,

App. II- 3

District Court OPINION CA-03-431-A, Oct 27, 2003

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

GLENDA GAIL PARKER FILED OCT 27 2003

Plaintiff, Clerk, US District Court

V. Alexandria, Virginia

DEPARTMENT OF DEFENSE

Defendant. (Rec’d by plaintiff Oct 31, 2003)

AMENDED MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant's

Motion to Dismiss Plaintiff's Complaint for lack of

jurisdiction pursuant to Rule 12(b) (6) of the Federal Rules of

Civil Procedure. This case concerns Plaintiff's appeal to this

Court for review of unfavorable rulings by the Merit Systems

Protection Board (“MSPB”) and the United States Court of

Appeals for the Federal Circuit (“Federal Circuit”).' The

issue raised in this Motion to Dismiss is whether this Court

has jurisdiction to consider Plaintiff's appeal when Plaintiff

waived her opportunity to present her discrimination and

nondiscrimination claims before the District Court, and

instead sought review by the Federal Circuit, which docketed

and decided her nondiscrimination claims only.

Upon review of Defendant’s Motion to Dismiss and

Plaintiff's Motions in Opposition to Defendant’s Motion to

Dismiss, the Court grants the motion because Plaintiff

waived her right to pursue her Title VII discrimination claims

in this district court when she signed a waiver of these claims

and submitted her appeal to the Federal Circuit.

' Defendant revoked Plaintiff's security clearance, and her employment

was later terminated — described in detail infra.

App. Il- 4

District Court OPINION CA-03-431-A, Oct 27. 2003

BACKGROUND

Glenda Gail Parker (“Parker”), Plaintiff, worked as a

security assistance analyst for Defendant” from December

1995 until she was indefinitely suspended from pay and duty

on March 23, 2001. As a security assistance analyst, Parker

required a top secret security clearance. Because of instances

of irrational behavior and as a result of concerns about

Parker’s performance and conduct, the DSCA was reluctant

to entrust sensitive duties to her. Therefore, on April 10,

1998, she was administratively reassigned to other duties.

While administratively reassigned, Parker continued to

exhibit irrational behavior.

On March 23, 2001, following a psychiatric evaluation

and administrative process, Keltz imposed a suspension from

pay and duty pursuant to a decision that no meaningful work

could be assigned to Parker because of the revoked security

clearance. On April 25, 2001, Parker appealed her indefinite

suspension to the Merit Systems Protection Board (“MSPB”).

In Parker’s appeal, she alleged that she was suspended) in

reprisal for whistleblowing and for her seeking military

service. On August 23, 2001, the MSPB sustained Parker’s

indefinite suspension. Parker appealed the MSPB

determination. On August 2, 2001, in a separate review and

determination, the Clearance Review Board)"CAB”) decided

not to reinstate Parker’s security clearance pending the

outcome of the MSPB appeal.

On October 29, 2001, Parker simultaneously filed a

petition for Review of the MSPB’s sustainment of her

security clearance revocation and a new MSPB appeal of her

removal from employment. On appeal, an MSPB

Administrative Law Judge (“A.L.J.”) sustained Parker's

removal on January 17, 2002 and noted that the A.L.J. lacked

jurisdiction to further review Parker's appeal. On February

*Parker was a GS-15 Security Assistance Analyst with the Defense

Security Cooperation Agency (“DSCA”), an agency of Defendant the

Department of Defense (: DOD”).

ae 01 ligt i

App. Il- 5

District Court OPINION CA-03-431-A, Oct 27, 2003

16, 2002, Parker petitioned the MSPB to review the A.L.J.’s

decision, but the petition was denied. On February 19, 2003,

Parker filed a pro se petition with the Federal Circuit for

review of the final decision made by the MSPB on the

revocation of her security clearance and removal from

employment.

In accordance with an appeal to the Federal Circuit,

Parker filed a Federal Circuit Rule 15(c) waiver of

discrimination claims (“Rule 15(c)”) with the clerk of the

Federal Circuit on April 1, 2003. By order dated May 23,

2003, the Federal Circuit informed the parties that the appeal

will be submitted to a three judge panel on July 11, 2003. In

the Government’s Second Report to the Court Regarding the

Federal Circuit’s Decision in this Case, filed on July 24,

2003, the Government avers that Parker’s appeal was heard

by the Federal Circuit, and that the court affirmed the

MSPB’s decision.’ (Def.’s 2d Report at 1.)

a ANALYSIS

A. Standard of Review

In considering a motion to dismiss under Rule

12(b)(6), the Court should accept as true all well-plead

allegations of the complaint and view the complaint in the

light most favorable to the plaintiff. Mylan Lab., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4 Cir. 1993); Fed. R. Civ. P.

12(b)(6). The Court should grant a motion to dismiss for

failure to state a claim only if it appears to a certainty that the

plaintiff cannot prove any set of facts in support of its claim

that would entitle the plaintiff to relief. Conley v. Gibson,

355 U.S. 41, 45-46 (1957).

The Court’s analysis will determine if this Court has

jurisdiction to decide Parker’s appeal. To that end, the Court

must first decide if it has jurisdiction over a claim after it has

already been docketed and decided by the Federal Circuit.

* Crook v. Dep't of Defense, 71 Fed. Appx. 54, 2003 WL 21675126, at

*| (Fed. Cir. July 14, 2003) (Crook now known as Glenda Gail Parker)

(not cited for authority).

App. II- 6

District Court OPINION CA-03-431-A, Oct 27, 2003

Second, if the Court does have jurisdiction to hear the appeal.

the Court will decide if it has jurisdiction to hear appeals of

government employees who were terminated following

revocation of their security clearance.

B. Analysis

The Court holds that Plaintiff fails to state a claim

upon which relief may be granted because she fails to

demonstrate that this Court has jurisdiction to hear her

appeal. This ruling is founded on settled principles that a

litigant may not have “two bites of the apple.” Plaintiff

waived her opportunity to remove her appeal to the district

court, where both her discrimination and non-discrimination

claims could be heard, when she appealed to the Federal

Circuit. In addition, the Federal Circuit has already ruled on

the merits of the nondiscrimination claims raised in that

forum. Therefore, because Parker waived her discrimination

claims and the nondiscrimination claims have been: decided

by the Federal Circuit, this Court has no jurisdiction.

Accordingly, Defendant’s Motion to Dismiss is granted.

1. Parker Waived her discrimination claims to

gain forum in the Federal Circuit

Plaintiff waived her opportunity to appeal to

the district court for review of her discrimination and

nondiscrimination claims. The Guide for Pro Se

Petitioners and Appellants (“Guide”) issued by the

Federal Circuit provides that:

This court does not have jurisdiction to

review cases involving bona fide

claims of discrimination...that were

raised before the Merit Systems

Protection Board. If your case

involves such claims and you are

unwilling to abandon the forever, you

must proceed in a district court.... You

may waive your discrimination claims

—— |

App. II- 7

District Court OPINION CA-03-431-A. Oct 27. 2003

\ on the Federal Circuit Rule 15(c) form

sent to you by the court...A

discrimination issue raised for the first

time in this court does not affect the

jurisdiction of the court to decide the

issues raised before the Board, and

| such a discrimination claim will be

disregarded.

Fed. Cir. R. apps. At 133 (Guide for Pro Se Petitioners and

| Appellants) (emphasis added). Rule 15(c) provides in

pertinent part that:

Within 14 days after a petition for review of a

decision of the Merit Systems Protection

‘ a.

Board ... is docketed, the petitioner must

serve on the respondent and file with the

clerk:

(A) one of the following statements:

(i) no claim of discrimination by reason of

race, sex, age, national origin, or

handicapped condition has been or will be

made in the case;

(ii) any claim of discrimination ... raised

before the Board has been abandoned and

will not be raised or continued in this or

any other court:

(iii) the petition seeks review only of the

Board’s dismissal of the case for lack of

jurisdiction or for untimeliness; ...

(B) a statement whether petitioner has

filed a discrimination case;

(i) in a United States district court; or

(ii) in the Equal Employment Opportunity

Commission.

App. Il- 8

District Court OPINION CA-03-431-A, Oct 27. 2003

Thus, an appellant must either file a written waiver of her

discrimination claims or she must remove her case to the

appropriate district court for review. Davidson v. United

States Postal Service, 24 F.3d 223, 223-224 (Fed. Cir. 1994)

(ordering that petitioner must file “either (1) a request for the

[Federal Circuit] to proceed which must be accompanied by

the appropriate waiver, or (2) a request for transfer to a

particular United States district court.”); Williams v. Dep't of

the Army, 715 F.2d 1485 (Fed. Cir. 1983) (holding that the

Federal Circuit has no jurisdiction over the merits of a mixed

case i.e., one involving an adverse action and a claim of

discrimination); Daniels v. United States Postal Service, 726

F.2d 723, 724 (Fed. Cir. 1984) (ruling that a waiver of a

claim of discrimination must be by an express written

statement).

Furthermore, an appellant is precluded from

relitigating discrimination claims before the district court

when he splits his discrimination and nondiscrimination

claims between the Federal Circuit and the district court.

Smith v. Horner, 846 F.2d 1521, 1524 (D.C. Cir. 1988) (The

appellant “could also be held precluded from litigating his

Title VII claim because he “split” his two claims. [The

appellant] chose to litigate his disability claim in a court (the

Federal Circuit) that could hear less than his entire claim

instead of going to the district court ....’’).

In Smith, the appellant chose to dispose of his

nondiscrimination claims before the Federal Circuit. Id. at

1523. The Clerk advised the appellant that the Federal

Circuit will not hear discrimination claims, but rather, he may

remove his claim to the district court, which can hear both his

discrimination and nondiscrimination claims. Id. at 1522-23.

The Court of Appeals ruled that the appellant waived her

Title VII claim by signing the written waiver of her

discrimination claims she filed in the Federal Circuit.

Furthermore, to permit an appellant to pursue [her]

discrimination claim in the District Court notwithstanding

[her] waiver in the Federal Circuit would undermine that

Pen ee meee tence ak. Were ame ie aes

joss sae bien ie 6 Pore

App. Il- 9

District Court OPINION CA-03-431-A, Oct 27. 2003

court’s “efforts to prevent sequential forum shopping.” Id. at

1524. :

In the instant case, Defendant avers, and Parker does

not refute, that she submitted a Rule 15(c) waiver of her

discrimination claims to the Federal Circuit on April 1. 2003

(Def.’s Mot. Dismiss at 9), and Parker filed the instant appeal

with this Court on April 4, 2003. (Pl.’s Notice Appeal at 1).

Parker’s appeal was set for review by a three judge panel on

July 11, 2003, and the Federal Circuit affirmed the MSPB’s

determination on July 14, 2003. Hence, because Parker

waived her Title VII claims and submitted her appeal to the

Federal Circuit, which cannot hear discrimination claims, she

effectively waived her discrimination claims forever.

Therefore, she fails to state a claim upon which relief may be

granted.

2. Parker’s nondiscrimination claims were

docketed and decided by the Federal Circuit

Parker also fails to state a claim for which relief may

be granted because her appeal was docketed and decided by

the Federal Circuit. The Guide alerts the pro se petitioner

that the Federal Circuit will not hear discrimination claims,

but rather, such claims must either be abandoned forever or

removed to district court. Fed. Cir. R. apps. At 132 (Guide

for Pro Se Petitioners and Appellants). Parker had the

opportunity to litigate both claims before a court of

competent jurisdiction, but instead chose to split them. The

Federal Circuit docketed Parker’s appeal on May 23, 2003

for hearing on July 11, 2003, affirming the determination of

the MSPB.* Thus Parker may not waive her discrimination

claims to secure a forum in the Federal Circuit, quickly assert

her discrimination claims in this Court, and then hope to gain

a second review by reasserting her discrimination claims.

Litigants are precluded from “two bites at the apple.”

Therefore, Parker fails to state a claim upon which relief may

* Supra note 3.

S Smith, 846 F.2d at 1524.

App. {l- 10

District Court OPINION CA-03-431-A, Oct 27, 2003

be granted because she waived her opportunity to appeal to

this forum and her appeal was decided by the Federal Circuit.

Accordingly, Plaintiffs claim is dismissed for lack of

jurisdiction, and Defendant’s Motion to Dismiss is granted.

II. CONCLUSION

Defendant’s Motion to Dismiss is granted because

Plaintiff waived her opportunity to have both her

discrimination and nondiscrimination claims decided by this

Court when she submitted her case to the Federal Circuit. By

agreeing to waive her discrimination claims, she abandoned

her discrimination claims forever. Accordingly, it is hereby

ORDERED that Defendant the Department of Defense’s

motion to Dismiss is GRANTED.

The Clerk is directed to enter judgment in favor of the

Department of Defense and against Glenda Gail Parker

pursuant to Federal Rule of Civil Procedure 58. Fed. R. Civ.

P. 58. 7

The Clerk is directed to forward a copy of this Order to

counsel of record.

ENTERED this 27" day of OCTOBER, 2003.°

s/Gerald Bruce Lee

Gerald Bruce Lee

United States District Judge

Alexandria, Virginia

10/27/2003

“Appealed to the Fourth Circuit Nov 25, 2003, Docket No. 03-2483,

decision pending.

iad ERNE I he ICL Na eA ca

BO PORTAL Od hn ie SNES Ne ti DATE BTS CRIES VILE OE LIE ALINE

ee ee

App. IlI- 11

Fourth Circuit ORDER 03-2483, June 29, 2004

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

June 29, 2004

No. 03-2483

CA-03-431-A

GLENDA GAIL PARKER

Plaintiff — Appellant

U.S. DEPARTMENT OF DEFENSE

Defendant — Appellee

ORDER

Appellant has file a motion for extension of time in

which to file a petition for rehearing.

The Court denies the motion.

For the Court — By Direction,

/s/ Patricia S. Connor

Clerk

App. [V- 12

Fourth Circuit JUDGMENT 03-2483, May 14. 2004

UNITED STATES COURT OF APPEALS

for the

Fourth Circuit

No. 03-2483

CA-03-431-A

GLENDA GAIL PARKER

Plaintiff — Appellant

U.S. DEPARTMENT OF DEFENSE

Defendant — Appellee

Appeal from the United States District Court for the

Eastern District of Virginia at Alexandria

In accordance with the written opinion of this Court

filed this day, the Court affirms the judgment of the District

Court.

A certified copy of this judgment will be provided to the

District Court upon issuance of the mandate. The judgment

will take effect upon issuance of the mandate.

/s/ Patricial S. Connor

Clerk

ee ee

App. [V- 13

District Court JUDGMENT CA 03-0431-A, Oct 27, 2003

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

FILED

OCT 27 2003

Clerk, U.S. District Court

Alexandria, Virginia

Glenda Gail Parker

v. (Rec’d Oct 31, 2003)

Civil Action 03-0431-A

Department of Defense

JUDGMENT

Pursuant to the order of this Court entered on October

27, 2003 and in accordance with Federal Rules of Civil

Procedure 58, JUDGMENT is hereby entered in favor of the

Defendant, Department of Defense, against the Plaintiff,

Glenda Gail Parker.

ELIZABETH H. PARET, CLERK

s/By: Jenny Cupp

Deputy Clerk

Alexandria, Virginia

October 27, 2003

App. IV- 14

District Court JUDGMENT CA 03-0431-A, Oct 27, 2003

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

FILED

OCT 27 2003

Clerk, U.S. District Court

Alexandria, Virginia

GLENDA GAIL PARKER

Plaintiff,

v. Civil Action No. 03-431-A

(Rec’d by plaintiff Oct 31, 2003)

DEPARATMENT OF DEFENSE,

Defendant.

AMENDED JUDGMENT

Pursuant to the Court’s Opinion of October 27, 2003,

wherein the Court granted the Defendant’s Motion to

Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), the Court hereby

ORDERS the Clerk to enter JUDGMENT in favor of

the Defendant, Department of Defense, and against the

Plaintiff, Glenda Gail Parker, pursuant to Rule 58 of the

Federal Rules of Civil Procedure, and the case is hereby

DISMISSED.

The Clerk is directed to forward a copy of the Order

to counsel.

Entered this 27" day of October, 2003.

sGerald Bruce Lee

Gerald Bruce Lee

United States District Judge

Alexandria, Virginia

10/27/03

si es

App. V- 15

U.S. Constitution, Article II

U.S. Constitution

Article II

Section 1...

_..Before he enter on the execution of his office, he shall take

the following oath or affirmation:--"I do solemnly swear (or

affirm) that I will faithfully execute the office of President of

the United States, and will to the best of my ability, preserve,

protect and defend the Constitution of the United States."

Section 2. The President shall be commander in chief of the

Army and Navy of the United States, and of the militia of the

several states, when called into the actual service of the

United States; he may require the opinion, in writing, of the

principal officer in each of the executive departments, upon

any subject relating to the duties of their respective offices,

and he shall have power to grant reprieves and pardons for

offenses against the United States, except in cases of

impeachment.

He shall have power, by and with the advice and consent of

the Senate, to make treaties, provided two thirds of the

Senators present concur...

Section 3. He shall from time to time give to the Congress

information of the state of the union, and recommend to their

consideration such measures as he shall judge necessary and

expedient; he may, on extraordinary occasions, convene both

Houses, or either of them, and in case of disagreement

between them, with respect to the time of adjournment, he

may adjourn them to such time as he shall think proper; he

shall receive ambassadors and other public ministers; he shall

take care that the laws be faithfully executed, and shall

commission all the officers of the United States.

App. V- 16

U.S. Constitution, Section 8

U.S. Constitution

Section 8. The Congress shall have power to lay and collect

taxes, duties, imposts and excises, to pay the debts and

provide for the common defense and general welfare of the

United States; but all duties, imposts and excises shall be

uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the

several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform

laws on the subject of bankruptcies throughout the United

States;

To coin money, regulate the value thereof, and of foreign

coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities

and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by

securing for limited times to authors and inventors the

exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the

high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and

make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money

to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land

and naval forces;

To provide for calling forth the militia to execute the laws of

the union, suppress insurrections and repel invasions;

App. V- 17

U.S. Constitution, Section 8

To provide for organizing, arming, and disciplining, the

militia, and for governing such part of them as may be

employed in the service of the United States, reserving to the

states respectively, the appointment of the officers, and the

authority of training the militia according to the discipline

prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever,

over such District (not exceeding ten miles square) as may,

by cession of particular states, and the acceptance of

Congress, become the seat of the government of the United

States, and to exercise like authority over all places

purchased by the consent of the legislature of the state in

which the same shall be, for the erection of forts, magazines,

arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for

carrying into execution the foregoing powers, and all other

powers vested by this Constitution in the government of the

United States, or in any department or officer thereof.

U.S. Constitution

Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof, or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the government

for a redress of grievances.

Amendment IV

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

grand jury, except in cases arising in the land or naval forces,

or in the militia, when in actual service in time of war or

public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use, without just compensation.

App. V- 19

5 U.S.C. § 552a

TITLE 5 PARTI CHAPT 5 SUBCHAPT II Sec. 552a.

Sec. 552a. - Records maintained on individuals

(a) Definitions. - For purposes of this section -

(1) the term "agency" means agency as defined in

section 552(e) ™ of this title;

(2) the term "individual" means a citizen of the United

States or an alien lawfully admitted for permanent

residence;

(3) the term "maintain" includes maintain, collect, use,

or disseminate;

(4) the term "record" means any item, collection, or

grouping of information about an individual that is

maintained by an agency, including, but not limited to,

his education, financial transactions, medical history,

and criminal or employment history and that contains

his name, or the identifying number, symbol, or other

identifying particular assigned to the individual, such

as a finger or voice print or a photograph;

(5) the term "system of records" means 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;

(6) the term "statistical record" means a record in a

system of records maintained for statistical research or

reporting purposes only and not used in whole or in

part in making any determination about an identifiable

individual, except as provided by section 8 of title 13;

(7) the term "routine use" means, with respect to the

disclosure of a record, the use of such record for a

purpose which is compatible with the purpose for

which it was collected;

(8) the term "matching program" -

(A) means any computerized comparison of -

App. V- 20

5 U.S.C. §$ 552a

(i) two or more automated systems of

records or a system of records with non-

Federal records for the purpose of -

(I) establishing or verifying the

eligibility of, or continuing

compliance with statutory and

regulatory requirements by,

applicants for, recipients or

beneficiaries of, participants in, or

providers of services with respect

to, cash or in-kind assistance or

payments under Federal benefit

programs, or

(I) recouping payments or

delinquent debts under such Federal

benefit programs, or

(ii) two or more automated Federal

personnel or payroll systems of records or

a system of Federal personnel or payroll

records with non-Federal records,

(B) but does not include -

(i) matches performed to produce

aggregate statistical data without any

personal identifiers;

(ii) matches performed to support any

research or statistical project, the specific

data of which may not be used to make

decisions concerning the rights, benefits,

or privileges of specific individuals;

(iii) matches performed, by an agency (or

component thereof) which performs as its

principal function any activity pertaining

to the enforcement of criminal laws,

subsequent to the initiation of a specific

criminal or civil law enforcement

investigation of a named person or

App. V- 21

5 U.S.C. § 552a

persons for the purpose of gathering

evidence against such person or persons;

(iv) matches of tax information

(1) pursuant to section 6103(d) of

the Internal Revenue Code of 1986,

(IT) for purposes of tax

administration as defined in section

6103(b)(4) of such Code,

(III) for the purpose of intercepting

a tax refund due an individual under

authority granted by section 404(e),

464, or 1137 of the Social Security

Act; or

(IV) for the purpose of intercepting

a tax refund due an individual under

any other tax refund intercept

program authorized by _ statute

which has been determined by the

Director of the Office of

Management and Budget to contain

verification, notice, and hearing

requirements that are substantially

similar to the procedures in section

1137 of the Social Security Act;

(v) matches -

(I) using records predominantly

relating to Federal personnel, that

are performed ffor routine

administrative purposes (subject to

guidance provided by the Director

of the Office of Management and

Budget pursuant to subsection (v));

(II) conducted by an agency using

only records from systems of

records maintained by that agency;

5 U.S.C. § 552a

if the purpose of the match is not to

take any adverse financial,

personnel, disciplinary, or other

adverse action against Federal

personnel;

(vi) matches performed for foreign

counterintelligence purposes or to produce

background checks for security clearances

of Federal personnel or Federal contractor

personnel;

(vii) matches performed incident to a levy

described in section 6103(k)(8) of the

Internal Revenue Code of 1986; or

(viii) matches performed pursuant to

section 202(x)(3y or 1611(e)(1) of the

Social Security Act (42 U.S.C. 402(x)(3),

1382(e)(1));

(9) the term "recipient agency" means any agency, OF

contractor thereof, receiving records contained in a

system of records from a source agency for use in a

matching program;

(10) the term "non-Federal agency" means any State or

local government, or agency thereof, which receives

records contained in a system of records from a source

agency for use in a matching program,

(11) the term "source agency" means any agency

which discloses records contained in a system of

records to be used in a matching program, or any State

or local government, or agency thereof, which

discloses records to be used in a matching program;

(12) the term "Federal benefit program" means any

program administered or funded by the Federal

Government, or by any agent or State on behalf of the

Federal Government, providing cash or in-kind

assistance in the form of payments, grants, loans, or

loan guarantees to individuals; and

App. V- 23

5 U.S.C. § 552a

(13) the term "Federal personnel" means officers and

employees of the Government of the United States,

members of the uniformed services (including

members of the Reserve Components), individuals

entitled to receive immediate or deferred retirement

benefits under any retirement program of the

Government of the United States (including survivor

benefits).

(b) Conditions of Disclosure. -

No agency shall disclose any record which is

contained in a system of records by any means of

communication to any person, or to another agency,

except pursuant to a written request by, or with the

prior written consent of, the individual to whom the

record pertains, unless disclosure of the record would

be -

(1) to those officers and employees of the agency

which maintains the record who have a need for the

record in the performance of their duties;

(2) required under section 552 of this title;

(3) for a routine use as defined in subsection (a)(7) of

this section and described under subsection (e)(4)(D)

of this section;

(4) to the Bureau of the Census for purposes of

planning or carrying out a census or survey OF related

activity pursuant to the provisions of title 13;

(5) to a recipient who has provided the agency with

advance adequate written assurance that the record will

be used solely as a statistical research or reporting

record, and the record is to be transferred in a form that

is not individually identifiable;

(6) to the National Archives and _ Records

Administration as a record which has sufficient

historical or other value to warrant its continued

preservation by the United States Government, or for

evaluation by the Archivist of the United States or the

App. V- 24

5 U.S.C. § 552a

designee of the Archivist to determine whether the

record has such value;

(7) to another agency oF to an instrumentality of any

governmental jurisdiction within or under the control

of the United States for a civil or criminal law

enforcement activity if the activity is authorized by

law, and if the head of the agency or instrumentality

has made a written request to the agency which

maintains the record specifying the particular portion

desired and the law enforcement activity for which the

record is sought;

(8) to a person pursuant to a showing of compelling

circumstances affecting the health or safety of an

individual if upon such disclosure notification is

transmitted to the last known address of such

individual,

(9) to either House of Congress, or, to the extent of

matter within its jurisdiction, any committee or

subcommittee thereof, any joint committee of

Congress oF subcommittee of any such joint

committee,

(10) to the Comptroller General, or any of his

authorized representatives, in the course of the

performance of the duties of the General Accounting

Office;

(11) pursuant to the order of a court of competent

jurisdiction; or

(12) to a consumer reporting agency in accordance

with section 371 1(e) of title 31.

Each agency, with respect to each system of

records under its control, shall -

(1) except for disclosures made under subsections

(b)(1) or (b)(2) of this section, keep an accurate

accounting of -

App. V- 25

5 U.S.C. § 552a

(A) the date, nature, and purpose of each

disclosure of a record to any person or to another

agency made under subsection (b) of this

section; and

(B) the name and address of the person or

agency to whom the disclosure is made;

(2) retain the accounting made under paragraph (1) of

this subsection for at least five years or the life of the

record, whichever is longer, after the disclosure for

which the accounting is made;

(3) except for disclosures made under subsection

: (b)(7) of this section, make the accounting made under

| paragraph (1) of this subsection available to the

individual named in the record at his request; and

! (4) inform any person or other agency about any

correction or notation of dispute made by the agency in

accordance with subsection (d) of this section of any

record that has been disclosed to the person or agency

if an accounting of the disclosure was made.

: (d) Access to Records. -

4 Each agency that maintains a system of records

shall -

(1): upon request by any individual to gain access to

his record or to any information pertaining to him

which is contained in the system,-permit him and upon

his request, a person of his own choosing to

accompany him, to review the record and have a copy

made of all or any portion thereof in a form

comprehensible to him, except that the agency may

require the individual to furnish a written statement

authorizing discussion of that individual's record in the

accompanying person's presence;

(2) permit the individual to request amendment of a

record pertaining to him and -

bars ola tt tate TOW

App. V- 26

§ U.S.C. § 552a

(A) not later than 10 days (excluding Saturdays.

Sundays, and legal public holidays) after the

date of receipt of such request, acknowledge in

writing such receipt; and

(B) promptly, either -

(i) make any correction of any portion

thereof which the individual believes is

not accurate, relevant, timely, oF

complete; or

(ii) inform the individual of its refusal to

amend the record in accordance with his

request, the reason for the refusal, the

procedures established by the agency for

the individual to request a review of that

refusal by the head of the agency or an

officer designated by the head of the

agency. and the name and business

address of that official;

~(3) permit the individual who disagrees with the

refusal of the agency to amend his record to request a

review of such refusal, and not later than 30 days

(excluding Saturdays, Sundays, and legal public

holidays) from the date on which the individual

requests such review, complete such review and make

a final determination unless, for good cause shown, the

head of the agency extends such 30-day period; and if,

after his review, the reviewing official also refuses to

amend the record in accordance with the request,

permit the individual to file with the agency a concise

_ statement setting forth the reasons for his disagreement

with the refusal of the agency, and notify the

individual of the provisions for judicial review of the

reviewing official's determination under subsection

(g)(1)(A) of this section;

(4) in any disclosure, containing information about

which the individual has filed a statement of

App. V- 27

5 U.S.C. § 552a

disagreement, occurring after the filing of the

statement under paragraph (3) of this subsection,

clearly note any portion of the record which is disputed

and provide copies of the statement and, if the agency

deems it appropriate, copies of a concise statement of

the reasons of the agency for not making the

amendments requested, to persons or other agencies to

whom the disputed record has been disclosed; and

(5) nothing in this section shall allow an individual

access to any information compiled in reasonable

anticipation of a civil action or proceeding.

(e) Agency Requirements. -

Each agency that maintains a system of records

shall -

(1) maintain in its records only such information about

an individual as is relevant and necessary to

accomplish a purpose of the agency required to be

accomplished by statute or by executive order of the

President;

(2) 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;

(3) inform each individual whom it asks to supply

information, on the form which it uses to collect the

information or on a separate form that can be retained

by the individual -

(A) the authority (whether granted by statute, or

by executive order of the President) which

authorizes the solicitation of the information and

whether disclosure of such information is

mandatory or voluntary;

(B) the principal purpose or purposes for which

the information is intended to be used;

App. V- 28

§ U.S.C. § 5528

information, as published pursuant to paragraph

(4)(D) of this subsection; and

(D) the effects on him, if any, of not providing

all or any part of the requested information;

(4) subject to the provisions of paragraph (11) of this

subsection, publish in the Federal Register upon

establishment or revision a notice of the existence and

character of the system of records, which notice shall

include - 3

(A) the name and location of the system,

(B) the categories of individuals on whom

records are maintained in the system,

system;

(D) each routine use of the records contained in

the system, including the categories of users and

the purpose of such use;

(E) the policies and practices of the agency

regarding storage, retrievability, access controls,

retention, and disposal of the records;

(F) the title and business address of the agency

official who is responsible for the system of

records;

(G) the agency procedures whereby an

individual can be notified at his request if the

system of records contains a record pertaining to

him;

(H) the agency procedures whereby an

individual can be notified at his request how he

can gain access to any record pertaining to him

contained in the system of records, and how he

can contest its content; and

(I) the categories of sources of records in the

system;

App. V- 29

5 U.S.C. § 5$2a

(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;

(6) prior to disseminating any record about an

individual to any person other than an agency, unless

the dissemination is made pursuant to subsection (b)(2)

of this section, make reasonable efforts to assure that

such records are accurate, complete, timely, and

relevant for agency purposes;

(7) maintain no record describing how any individual

exercises rights guaranteed by the First Amendment

unless expressly authorized by statute or by the

individual about whom the record is maintained or

unless pertinent to and within the scope of an

authorized law enforcement activity;

(8) make reasonable efforts to serve notice on an

individual when any record on such individual is made

available to any person under compulsory legal process

when such process becomes a matter of public record;

(9) establish rules of conduct for persons involved in

the design, development, operation, or maintenance of

any system of records, or in maintaining any record,

and instruct each such person with respect to such rules

and the requirements of this section, including any

other rules and procedures adopted pursuant to this

section and the penalties for noncompliance;

(10) 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;

App. V- 30

5 U.S.C. § 552a

(11) at least 30 days prior to publication of

information under paragraph (4)(D) of this subsection,

publish in the Federal Register notice of any new use

or intended use of the information in the system, and

provide an opportunity for interested persons to submit

written data, views, or arguments to the agency; and

(12) if such agency is a recipient agency or a source

agency in a matching program with a non-Federal

agency, with respect to any establishment or revision

of a matching program, at least 30 days prior to

conducting such program, publish in the Federal

(f) Agency Rules. -

In order to carry out the provisions of this section,

each agency that maintains a system of records shall

promulgate rules, in accordance with the requirements

(including general notice) of section 553 of this title,

which shall -

(1) establish procedures whereby an individual can be

notified in response to his request if any system of

records named by the individual contains a record

pertaining to him;

(2) define reasonable times, places, and requirements

for identifying an individual who requests his record or

information pertaining to him before the agency shall

make the record or information available to the

individual;

(3) establish procedures for the disclosure to an

individual upon his request of his record or

information pertaining to him, including special

procedure, if deemed necessary, for the disclosure to

an individual of medical records, including

psychological records, pertaining to him;

(4) establish procedures for reviewing a request from

an individual concerning the amendment of any record

or information pertaining to the individual, for making

nee 4 he!

Cant ot ea ei

(g)

App. V- 31

5 U.S.C. § 552a

a determination on the request, for an appeal within the

agency of an initial adverse agency determination, and

for whatever additional means may be necessary for

each individual to be able to exercise fully his rights

under this section; and

(5) establish fees to be charged, if any, to any

individual for making copies of his record, excluding

the cost of any search for and review of the record.

The Office of the Federal Register shall biennially

compile and publish the rules promulgated under this

subsection and agency notices published under

subsection (e)(4) of this section in a form available to

the public at low cost.

(1) Civil Remedies. -

Whenever any agency

(A) makes a determination under subsection

(d)(3) of this section not to amend an

individual's record in accordance with his

request, or fails to make such review in

conformity with that subsection;

(B) refuses to comply with an individual request

under subsection (d)(1) of this section;

individual with such accuracy, relevance,

timeliness, and completeness as is necessary to

assure fairness in any determination relating to

the qualifications, character, rights, or

opportunities of, or benefits to the individual

that may be made on the basis of such record,

and consequently a determination is made which

is adverse to the individual; or

(D) fails to comply with any other provision of

this section, or any rule promulgated thereunder,

App. V- 32

5 U.S.C. § $52a

in such a way as to have an adverse effect on an

individual,

the individual may bring a civil action against the

agency, and the district courts of the United States

shall have jurisdiction in the matters under the

provisions of this subsection.

(2)

(3)

(A) In any suit brought under the provisions of

subsection (g)(1)(A) of this section, the court

may order the agency to amend the individual's

record in accordance with his request or in such

other way as the court may direct. In such a case

the court shall determine the matter de novo.

(B) The court may assess against the United

States reasonable attorney fees and other

litigation costs reasonably incurred in any case

under this paragraph in which the complainant

has substantially prevailed.

(A) In any suit brought under the provisions of

subsection (g)(1)(B) of this section, the court

may enjoin the agency from withholding the

records and order the production to the

complainant of any agency records improperly

withheld from him. In such a case the court shall

determine the matter de novo, and may examine

the contents of any agency records in camera to

determine whether the records or any portion

thereof may be withheld under any of the

exemptions set forth in subsection (k) of this

section, and the burden is on the agency to

sustain its action.

(B) The court may assess against the United

States reasonable attorney fees and other

litigation costs reasonably incurred in any case

App. V- 33

5 U.S.C. § 552a

under this paragraph in which the complainant

has substantially prevailed.

(4) In any suit brought under the provisions of

subsection (g)(1)(C) or (D) of this section in which the

court determines that the agency acted in a manner

which was intentional or willful, the United States

shall be liable to the individual in an amount equal to

the sum of -

(A) actual damages sustained by the individual

as a result of the refusal or failure, but in no case

shall a person entitled to recovery receive less

than the sum of $1,000; and

(B) the costs of the action together with

reasonable attorney fees as determined by the

court.

(5) An action to enforce any liability created under

this section may be brought in the district court of the

United States in the district in which the complainant

resides, or has his principal place of business, or in

which the agency records are situated, or in the District

of Columbia, without regard to the amount in

controversy, within two years from the date on which

the cause of action arises, except that where an agency

has materially and willfully misrepresented any

information required under this section to be disclosed

to an individual and the information so misrepresented

is material to establishment of the liability of the

agency to the individual under this section, the action

may be brought at any time within two years after

discovery by the individual of the misrepresentation.

Nothing in this section shall be construed to authorize

any civil action by reason of any injury sustained as

the result of a disclosure of a record prior to September

27, 1975.

(h) Rights of Legal Guardians. -

App. V- 34

5 U.S.C. § 552a

For the purposes of this section, the parent of any

minor, or the legal guardian of any individual who has

been declared to be incompetent due to physical or

mental incapacity or age by a court of competent

jurisdiction, may act on behalf of the individual.

(i) Criminal Penalties

(1) Any officer or employee of an agency, who by

virtue of his employment or official position, has

possession of, or access to, agency records which

contain individually identifiable information the

disclosure of which is prohibited by this section or by

rules or regulations established thereunder, and who

knowing that disclosure of the specific material is so

prohibited, willfully discloses the material in any

manner to any person or agency not entitled to receive

it, shall be guilty of a misdemeanor and fined not more

than $5,000.

(2) Any officer or employee of any agency who

willfully maintains a system of records without

meeting the notice requirements of subsection (e)(4) of

this section shall be guilty of a misdemeanor and fined

not more than $5,000.

(3) Any person who knowingly and willfully requests

or obtains any record concerning an individual from an

agency under false pretenses shall be guilty of a

misdemeanor and fined not more than $5,000.

(j) General Exemptions. -

The head of any agency may promulgate rules, in

accordance with the requirements (including general

notice) of sections 553(b)(1), (2), and (3), (c), and (e)

of this title, to exempt any system of records within the ~

agency from any part of this section except subsections

(b), (c)(1) and (2), (e)(4)(A) through (F), (€)(6), (7),

(9), (10), and (1 1), and (i) if the system of records is -

(1) maintained by the Central Intelligence Agency; or

—_ ee

App. V- 35

5 U.S.C. § 552a

(2) maintained by an agency or component thereof

which performs as its principal function any activity

pertaining to the enforcement of criminal laws,

including police efforts to prevent, control, or reduce

crime or to apprehend criminals, and the activities of

prosecutors, courts, correctional, probation, pardon, or

parole authorities, and which consists of

(A) information compiled for the purpose of

identifying individual criminal offenders and

alleged offenders and consisting only of

identifying data and notations of arrests, the

nature and disposition of criminal charges,

sentencing, confinement, release, and parole and

probation status;

(B) information compiled for the purpose of a

criminal investigation, including reports of

informants and investigators, and associated

with an identifiable individual; or

compiled at any stage of the process of

enforcement of the criminal laws from arrest or

indictment through release from supervision.

At the time rules are adopted under this

subsection, the agency shall include in the statement

required under section 553(c) of this title, the reasons

why the system of records is to be exempted from a

provision of this section.

(k) Specific Exemptions. -

The head of any agency may promulgate rules, in

accordance with the requirements (including general

notice) of sections 553(b)(1), (2), and (3), (c), and (e)

of this title, to exempt any system of records within the

agency from subsections (c)(3), (d), (e)(1), (e)(4)(G),

(H), and (I) and (f) of this section if the system of

records is -

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App. V- 36

5 U.S.C. § 552a

(1) subject to the provisions of section 552(b)\(1) of

this title:

(2) investigatory material compiled for law

enforcement purposes. other than material within the

scope of subsection (j)(2) of this section: Provided,

however, That if any individual is denied any right,

privilege, or benefit that he would otherwise be entitled

by Federal law, or for which he would otherwise be

eligible, as a result of the maintenance of such

material, such material shall be provided to such

individual, except to the extent that the disclosure of

such material would reveal the identity of a source who

furnished information to the Government under an

express promise that the identity of the source would

be held in confidence, or, prior to the effective date of

this section, under an implied promise that the identity

of the source would be held in confidence;

(3) maintained in connection with providing protective

services to the President of the United States or other

individuals pursuant to section 3056 of title 18;

(4) required by statute to be maintained and used

solely as statistical records;

(5) investigatory material compiled solely for the

purpose of determining suitability, eligibility, or

qualifications for Federal civilian employment,

military service, Federal contracts, or access to

classified information, but only to the extent that the

disclosure of such material would reveal the identity of

a source who furnished information to the Government

under an express promise that the identity of the source

would be held in confidence, or, prior to the effective

date of this section, under an implied promise that the

identity of the source would be held in confidence;

(6) testing or examination material used solely to

determine individual qualifications for appointment or

promotion in the Federal service the disclosure of

SS LETT ES PET a ne

App. V- 37

5 U.S.C. § 552a

which would compromise the objectivity or fairness of

the testing or examination process; or

(7) evaluation material used to determine potential for

promotion in the armed services, but only to the extent

that the disclosure of such material would reveal the

identity of a source who furnished information to the

Government under an express promise that the identity

of the source would be held in confidence, or, prior to

the effective date of this section, under an implied

promise that the identity of the source would be held in

confidence.

At the time rules are adopted under this

subsection, the agency shall include in the statement

required under section 553(c) of this title, the reasons

why the system of records is to be exempted from a

provision of this section.

(1) Archival Records.

(1) Each agency record which is accepted by the

Archivist of the United States for storage, processing,

and servicing in accordance with section 3103 of title

44 shall, for the purposes of this section, be considered

: to be maintained by the agency which deposited the

record and shall be subject to the provisions of this

section. The Archivist of the United States shall not

disclose the record except to the agency which

maintains the record, or under rules established by that

agency which are not inconsistent with the provisions

of this section.

(2) Each agency record pertaining to an identifiable

individual which was transferred to the National

Archives of the United States as a record which has

sufficient historical or other value to warrant its

continued preservation by the United States

Government, prior to the effective date of this section,

shall, for the purposes of this section, be considered to

be maintained by the National Archives and shall not

nen een nndeerereerenenenarnetaeeaeeeenaeee sanetinananna teeter

App. V- 38

5 U.S.C. § 532a

be subject to the provisions of this section, except that

a statement generally describing such records

(modeled after the requirements relating to records

subject to subsections (e)(4)(A) through (G) of this

section) shall be published in the Federal Register.

(3) Each agency record pertaining to an identifiable

individual which is transferred to the National

Archives of the United States as a record which has

sufficient historical or other value to warrant its

continued preservation by the United States

Government, on or after the effective date of this |

section, shall, for the purposes of this section, be

considered to be maintained by the National Archives

and shall be exempt from the requirements of this

section except subsections (e)(4)(A) through (G) and

(e)(9) of this section.

(m)

(1) Government Contractors. -

When an agency provides by a contract for

the operation by or on behalf of the agency ofa

system of records to accomplish an agency

function, the agency shall, consistent with its

authority, cause the requirements of this section

to be applied to such system. For purposes of

subsection (i) of this section any such contractor

and any employee of such contractor, if such

contract is agreed to on or after the effective date

of this section, shall be considered to be an

employee of an agency.

(2) A consumer reporting agency to which a record is

disclosed under section 3711(e) of title 31 shall not be

considered a contractor for the purposes of this section.

(n) Mailing Lists. -

An individual's name and address may not be sold

or rented by an agency unless such action is

specifically authorized by law. This provision shall not

App. V- 39

5 U.S.C. § 552a

be construed to require the withholding of names and

addresses otherwise permitted to be made public.

(o) Matching Agreements. -

(1) No record which is contained in a system of

records may be disclosed to a recipient agency or non-

Federal agency for use in a computer matching

program except pursuant to a written agreement

between the source agency and the recipient agency or

non-Federal agency specifying -

(A) the purpose and legal authority for

conducting the program;

(B) the justification for the program and the

anticipated results, including a specific estimate

of any savings;

matched, including each data element that will

be used, the approximate number of records that

will be matched, and the projected starting and

completion dates of the matching program;

(D) procedures for providing individualized

notice at the time of application, and notice

periodically thereafter as directed by the Data

Integrity Board of such agency (subject to

guidance provided by the Director of the Office

of Management and Budget pursuant to

subsection (v)), to -

(i) applicants for and recipients of

financial assistance or payments under

Federal benefit programs, and

(ii) applicants for and holders of positions

as Federal personnel,

that any information provided by such

applicants, recipients, holders, and individuals

may be subject to verification through matching

programs;

(2)

App. V- 40

5 U.S.C. § 552a

(E) procedures for verifying information

produced in such matching program as required

by subsection (p);

(F) procedures for the retention and timely

destruction of identifiable records created by a

recipient agency or non-Federal agency in such

matching program,

(G) procedures for ensuring the administrative,

technical, and physical security of the records

matched and the results of such programs,

(H) prohibitions on duplication and redisclosure

of records provided by the source agency within

or outside the recipient agency Or the non-

Federal agency, except where required by law or

essential to the conduct of the matching

program,

(I) procedures governing the use by a recipient

agency or non-Federal agency of records

provided in a matching program by a source

agency, including procedures governing return

of the records to the source agency OF

destruction of records used in such program,

(J) information on assessments that have been

made on the accuracy of the records that will be

used in such matching program; and

(K) that the Comptroller General may have

access to all records of a recipient agency or a

non-Federal agency that the Comptroller

General deems necessary in order to monitor or

verify compliance with the agreement.

(A) A copy of each agreement entered into

pursuant to paragraph (1) shall -

(i) be transmitted to the Committee on

Governmental Affairs of the Senate and

i hale alls

siokinsinciicl

App. V- 41

$ U.S.C. § 552a

the Committee on Government Operations

of the House of Representatives; and

(ii) be available upon request to the

public.

(B) No such agreement shall be effective until

30 days after the date on which such a copy is

transmitted pursuant to subparagraph (A)(1).

only for such period, not to exceed 18 months,

as the Data Integrity Board of the agency

determines is appropriate in light of the

purposes, and length of time necessary for the

conduct, of the matching program.

(D) Within 3 months prior to the expiration of

such an agreement pursuant to subparagraph (C),

the Data Integrity Board of the agency may,

without additional review, renew the matching

agreement for a current, ongoing matching

program for not more than one additional year if

(i) such program will be conducted

without any change; and

(ii) each party to the agreement certifies

to the Board in writing that the program

has been conducted in compliance with

the agreement.

(p) Verification and Opportunity to Contest Findings. -

(1) In order to protect any individual whose records

are used in a matching program, no recipient agency,

non-Federal agency, or source agency may suspend,

terminate, reduce, or make a final denial of any

financial assistance or payment under a Federal benefit

program tc such individual, or take other adverse

action against such individual, as a result of

information produced by such matching program, until

(A)

App. V- 42

5 U.S.C. § S52a

(i) the agency has independently verified

{ne ‘miuriravren, Vi

(ii) the Data Integrity Board of the

agency, or in the case of a non-Federal

agency the Data Integrity Board of the

source agency, determines in accordance

with guidance issued by the Director of

the Office of Management and Budget

that -

(I) the information is limited to

identification and amount of

benefits paid by the source agency

under a Federal benefit program,

and

(II) there is a high degree of

confidence that the information

provided to the recipient agency is

accurate;

(B) the individual receives a notice from the

agency containing a statement of its findings and

informing the individual of the opportunity to

contest such findings; and

(C)

(i) the expiration of any time period

established for the program by statute or

regulation for the individual to respond to

that notice; or

(ii) in the case of a program for which no

such period 1s established, the end of the

30-day period beginning on the date on

which notice under subparagraph (B) is

mailed or otherwise provided to the

individual.

App. V- 43

5 U.S.C. § 552a

(2) Independent verification referred to in paragraph

(1) requires investigation and confirmation of specific

information relating to an individual that is used as a

basis for an adverse action against the individual,

including where applicable investigation and

confirmation of -

(A) the amount of any asset or income involved;

(B) whether such individual actually has or had

access to such asset or income for such

individual's own use; and

actually had such asset or income.

(3) Notwithstanding paragraph (1), an agency may

take any appropriate action otherwise prohibited by

such paragraph if the agency determines that the public

health or public safety may be adversely affected or

significantly threatened during any notice period

required by such paragraph.

(q) Sanctions. -

(1) Notwithstanding any other provision of law, no

source agency may disclose any record which is

contained in a system of records to a recipient agency

or non-Federal agency for a matching program if such

source agency has reason to believe that the

requirements of subsection (p), or any matching

agreement entered into pursuant to subsection (0), or

both, are not being met by such recipient agency.

(2) No source agency may renew a matching

agreement unless -

(A) the recipient agency or non-Federal agency

has certified that it has complied with the

provisions of that agreement; and

(B) the source agency has no reason to believe

that the certification is inaccurate.

hi Td

(r) Report on New Systems and Matching Programs. -

App. V- 44

5 U.S.C. § 552a

Each agency that proposes to establish or make a

significant change in a system of records or a matching

program shall provide adequate advance notice of any

such proposal (in duplicate) to the Committee on

Government Operations of the House of

Representatives, the Committee on Governmental

Affairs of the Senate, and the Office of Management

and Budget in order to permit an evaluation of the

probable or potential effect of such proposal on the

privacy or other rights of individuals.

(s) Biennial Report. -

(t)

The President shall biennially submit to the

Speaker of the House of Representatives and the

President pro tempore of the Senate a report -

(1) describing the actions of the Director of the Office

of Management and Budget pursuant to section 6 of

the Privacy Act of 1974 during the preceding 2 years,

(2) describing the exercise of individual rights of

access and amendment under this section during such

years;

(3) identifying changes in or additions to systems of

records;

(4) containing such other information concerning

administration of this section as may be necessary or

useful to the Congress in reviewing the effectiveness

of this section in carrying out the purposes of the

Privacy Act of 1974.

(1) Effect of Other Laws. -

No agency shall rely on any exemption

contained in section 552 of this title to withhold

from an individual any record which is

otherwise accessible to such individual under the

provisions of this section.

(i scatiditcs wallttt

all. deen sti:

App. V- 45

5 U.S.C. § 5$2a

(2) No agency shall rely on any exemption in this

section to withhold from an individual any record

which is otherwise accessible to such individual under

the provisions of section 552 of this title.

(u) Data Integrity Boards. -

(1) Every agency conducting or participating in a

matching program shall establish a Data Integrity

Board to oversee and coordinate among the various

components of such agency the agency's

implementation of this section.

(2) Each Data Integrity Board shall consist of senior

officials designated by the head of the agency, and

shall include any senior official designated by the head

of the agency as responsible for implementation of this

section, and the inspector general of the agency, if any.

The inspector general shall not serve as chairman of

the Data Integrity Board.

(3) Each Data Integrity Board -

(A) shall review, approve, and maintain all

written agreements for receipt or disclosure of

agency records for matching programs to ensure

compliance with subsection (0), and all relevant

statutes, regulations, and guidelines;

(B) shall review all matching programs in which

the agency has participated during the year,

either as a source agency or recipient agency,

determine compliance with applicable laws,

regulations, guidelines, and agency agreements,

and assess the costs and benefits of such

programs;

programs in which the agency has participated

during the year, either as a source agency or

recipient agency, for continued justification for

such disclosures;

App. V- 46

5 U.S.C. § 352a

(D) shall compile an annual report. which shall

be submitted to the head of the agency and the

Office of Management and Budget and made

available to the public on request, describing the

matching activities of the agency, including -

(i) matching programs in which the

agency has participated as a source

agency or recipient agency;

(ii) matching agreements proposed under

subsection (0) that were disapproved by

the Board;

(iii) any changes in membership or

structure of the Board in the preceding

year;

(iv) the reasons for any waiver of the

requirement in paragraph (4) of this

section for completion and submission of

a cost-benefit analysis prior to the

approval of a matching program;

(v) any violations of matching

agreements that have been alleged or

identified and any corrective action taken:

and

(vi) any other information required by the

Director of the Office of Management and

Budget to be included in such report;

(E) shall serve as a clearinghouse for receiving

and providing information on the accuracy,

completeness, and reliability of records used in

matching programs,

(F) shall provide interpretation and guidance to

agency components and personnel on the

requirements of this section for matching

programs;

(4)

(5)

App. V- 47

5 U.S.C. § 552a

(G) shall review agency recordkeeping and

disposal policies and practices for matching

programs to assure compliance with this section:

and

(H) may review and report on any agency

matching activities that are not matching

programs.

(A) Except as provided in subparagraphs (B)

and (C), a Data Integrity Board shall not approve

any written agreement for a matching program

unless the agency has completed and submitted

to such Board a cost-benefit analysis of the

proposed program and_ such analysis

demonstrates that the program is likely to be

cost effective. © "cost-effective."

(B) The Board may waive the requirements of

subparagraph (A) of this paragraph if it

determines in writing, in accordance with

guidelines prescribed by the Director of the

Office of Management and Budget, that a cost-

benefit analysis is not required.

under subparagraph (A) prior to the initial

approval of a written agreement for a matching

program that is specifically required by statute.

Any subsequent written agreement for such a

program shall not be approved by the Data

Integrity Board unless the agency has submitted

a cost-benefit analysis of the program as

conducted under the preceding approval of such

agreement.

(A) If a matching agreement is disapproved by a

Data Integrity Board, any party to such

agreement may appeal the disapproval to the

App. V- 48

5 U.S.C. § 552a

Director of the Office of Management and

Budget. Timely notice of the filing of such an

appeal shall be provided by the Director of the

Office of Management and Budget to the

_ Committee on Governmental Affairs of the

Senate and the Committee on Government

Operations of the House of Representatives.

(B) The Director of the Office of Management

and Budget may approve a matching agreement

notwithstanding the disapproval of a Data

Integrity Board if the Director determines that -

(i) the matching program will be

consistent with all applicable legal,

regulatory, and policy requirements,

(ii) there is adequate evidence that the

matching agreement will be cost-effective;

and

(iii) the matching program is in the public

interest.

matching agreement shall not take effect until 30

days after it is reported to committees described

in subparagraph (A).

(D) If the Data Integrity Board and the Director

of the Office of Management and Budget

disapprove a matching program proposed by the

inspector general of an agency, the inspector

general may report the disapproval to the head

of the agency and to the Congress.

(6) In the reports required by paragraph (3)(D),

agency matching activities that are not matching

programs may be reported on an aggregate basis, if and

to the extent necessary to protect ongoing law

enforcement or counterintelligence investigations.

(v) Office of Management and Budget Responsibilities. -

App. V- 49

5 U.S.C. § 552a

The Director of the Office of Management and

Budget shall -

(1) develop and, after notice and opportunity for

public comment, prescribe guidelines and regulations

for the use of agencies in implementing the provisions

of this section; and

(2) provide continuing assistance to and oversight of

the implementation of this section by agencies

[1] See References in Text note below.

[2] So in original. Probably should be

App. V- 50

S$USC. § ticz

TITLE 5 PART IL CHAPTER 12 SUBCHAPTER III

Sec. 1222.

Sec. 1222. — Availability of other remedies

(a) Except as provided in section 1221(i), nothing in this

chapter or chapter 23 shall be construed to limit any right or

remedy available under a provision of statute which is

outside of both this chapter and statute which is outside of

both this chapter and chapter 23.

Laatiohak

A Pn Slt a

App. V- 51

I8 U.S.C. § 24

TITLE 18 PARTI CHAPTER 1 Sec. 24.

Sec. 24. - Definitions relating to Federal health care

offense

(a) As used in this title, the term "Federal health care

offense" means a violation of, or a criminal conspiracy to

violate -

(1) section 669, 1035, 1347, or 1518 of this title;

(2) section 287, 371, 664, 666, 1001, 1027, 1341,

1343, or 1954 of this title, if the violation or

conspiracy relates to a health care benefit program.

(b) As used in this title, the term "health care benefit

program" means any public or private plan or contract,

affecting commerce, under which any medical benefit, item,

or service is provided to any individual, and includes any

individual or entity who is providing a medical benefit, item,

or service for which payment may be made under the plan_or

contract

18 U.S.C. § 1035

TITLE 18 PART | CHAPTER 47 Sec. 1035.

Sec. 1035. - False statements relating to health care

matters

(a) Whoever, in any matter involving a health care benefit

program, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick,

scheme, or device a material fact; or

(2) makes any materially false, fictitious, or fraudulent

statements or representations, or makes or uses any

materially false writing or document knowing the same

to contain any materially false, fictitious, or fraudulent

statement or entry,

in connection with the delivery of or payment for

health care benefits, items, or-services, shall be fined

under this title or imprisoned not more than 5 years, or

both.

(b) As used in this section, the term "health care benefit

program" has the meaning given such term in section 24(b) of

this title

1b alee OER. 6 EE cere me ad > om

App. V- 53

18 U.S.C. § 3231

TITLE 18 PART If CHAPTER 211 Sec. 3231.

Sec. 3231. - District courts

The district courts of the United States shall have

original jurisdiction, exclusive of the courts of the States, of

all offenses against the laws of the United States.

Nothing in this title shall be held to take away or impair the

jurisdiction of the courts of the several States under the laws

thereof .

App. V- 54

18 U.S.C. § 3486

TITLE 18 PART IL CHAPTER 223 Sec. 3486.

Sec. 3486. - Administrative subpoenas

(a) Authorization. -

(1)

(A) In any investigation of -

(i)

(I) a Federal health care offense; or

(II) a Federal offense involving the

sexual exploitation or abuse of

children, the Attorney General; or

(ii) an offense under section 871 or 879,

or a threat against a person protected by

the United States Secret Service under

paragraph (5) or (6) of section 3056, / if

the Director of the Secret Service

determines that the threat constituting the

offense or the threat against the person

protected is imminent, the Secretary of the

Treasury, "3056(a),". may issue in writing

and cause to be served a subpoena

requiring the production and testimony

described in subparagraph (B).

(B) Except as provided in subparagraph (C), a

subpoena issued under subparagraph (A) may

require -

(i) the production of any records or other

things relevant to the investigation; and

(ii) testimony by the custodian of the

things required to be produced concerning

the production and authenticity of those

things.

with respect to a_ provider of electronic

communication service or remote computing

service, in an investigation of a Federal offense

App. V- 55

18 U.S.C. § 3486

involving the sexual exploitation or abuse of

children shall not extend beyond -

(i) requiring that provider to disclose the

name, address, local and long distance

telephone toll billing records, telephone

number or other subscriber number or

identity, and length of service of a

subscriber to or customer of such service

and the types of services the subscriber or

customer utilized, which may be relevant

to an authorized law enforcement inquiry;

(ii) requiring a custodian of the records of

that provider to give testimony concerning

the production arid authentication of such

records or information.

(D) As used in this paragraph, the term "Federal

offense involving the sexual exploitation or

abuse of children" means an offense under

section 1201, 2241(c), 2242, 2243, 2251, 2251A,

2252, 2252A, 2260, 2421, 2422, or 2423, in

which the victim is an individual who has not

attained the age of 18 years.

(2) A subpoena under this subsection shall describe

the objects required to be produced and prescribe a

return date within a reasonable period of time within

which the objects can be assembled and made

available.

(3) The production of records relating to a Federal

health care offense shall not be required under this

section at any place more than 500 miles distant from

the place where the subpoena for the production of

such records is served. The production of things in any

other case may be required from any place within the

United States or subject to the laws or jurisdiction of

the United States.

App. V- 56

18 U.S.C. § 3486

(4) Witnesses subpoenaed under this section shall be

paid the same fees and mileage that are paid witnesses

in the courts of the United States.

(5) At any time before the return date specified in the

summons, the person or entity summoned may. in the

United States district court for the district in which that

person or entity does business or resides, petition for

an order modifying or setting aside the summons, or a

prohibition of disclosure ordered by a court under

paragraph (6).

(6)

district in which the summons is or will be

served, upon application of the United States,

may issue an ex parte order that no person or

entity disclose to any other person or entity

(other than to an attorney in order to obtain legal

advice) the existence of such summons for a

period of up to 90 days.

(B) Such order may be issued on a showing that

the things being sought may be relevant to the

investigation and there is reason to believe that

such disclosure may result in -

(i) endangerment to the life or physical

safety of any person,

(ii) flight to avoid prosecution;

(iii) destruction of or tampering with

evidence; or

(iv) intimidation of potential witnesses.

renewed for additional periods of up to 90 days

upon a showing that the circumstances described

in subparagraph (B) continue to exist.

(7) A summons issued under this section shall not

require the production of anything that would be

App. V- 57

18 U.S.C. § 3486

protected from production under the standards

applicable to a subpoena duces tecum issued by a court

of the United States.

(8) If no case or proceeding arises from the production

of records or other things pursuant to this section

within a reasonable time after those records or things

are produced, the agency to which those records or

things were delivered shall, upon written demand made

by the person producing those records or things, return

them to that person, except where the production

required was only of copies rather than originals.

(9) A subpoena issued under paragraph (1)(A)(i)(ID) or

(1)(A)(ii) may_require production as soon as possible,

but in no event less than 24 hours after service of the

subpoena.

(10) As soon as practicable following the issuance of a

subpoena under paragraph (1)(A)(ii), the Secretary of

the Treasury shall notify the Attorney General of its

issuance.

(b) Service. - A subpoena issued under this section may be

served by any person who is at least 18 years of age and is

designated in the subpoena to serve it. Service upon a natural

person may be made by personal delivery of the subpoena to

him. Service may be made upon a domestic or foreign

corporation or upon a partnership or other unincorporated

association which is subject to suit under a common name, by

delivering the subpoena to an officer, to a managing or

general agent, or to any other agent authorized by

appointment or by law to receive service of process. The

affidavit of the person serving the subpoena entered on a true

copy thereof by the person serving it shall be proof of

service.

obey a subpoena issued to any person, the Attorney General

may invoke the aid of any court of the United States within

the jurisdiction of which the investigation is carried on or of

App. V- 58

18 U.S.C. § 3486

which the subpoenaed person is an inhabitant, or in which he

carries on business or may be found, to compel compliance

with the subpoena. The court may issue an order requiring

the subpoenaed person to appear before the Attorney General

to produce records, if so ordered, or to give testimony

concerning the production and authentication of such records.

Any failure to obey the order of the court may be punished

by the court as a contempt thereof. All process in any such

case may be served in any judicial district in which such

person may be found.

(d) Immunity From Civil Liability. - Notwithstanding any

Federal, State, or local law, any person, including officers,

agents, and employees, receiving a subpoena under this

section, who complies in good faith with the subpoena and

thus produces the materials sought. shall not be liable in any

court of any State or the United States to any customer or

other person for such production or for nondisclosure of that

production to the customer.

(e) Limitation on Use. -

(1) Health information about an individual that is

disclosed under this section may not be used in, or

disclosed to any person for use in, any administrative,

civil, or criminal action or investigation directed

against the individual who is the subject of the

information unless the action or investigation arises out

of and is directly related to receipt of health care or

payment for health care or action involving a

fraudulent claim related to health; or if authorized by

an appropriate order of a court of competent

jurisdiction, granted after application showing good

cause therefore.

(2) In assessing good cause, the court shall weigh the

public interest and the need for disclosure against the

injury to the patient, to the physician-patient

relationship, and to the treatment services.

App. V- 59

I8 U.S.C. § 3486

(3) Upon the granting of such order, the court, in

determining the extent to which any disclosure of all or

any part of any record is necessary, shall impose

appropriate safeguards against unauthorized disclosure

[1] So in original. Probably should be section

[2] So in original.

App. V- 60

28 U.S.C. § 1253

TITLE 28 PART IV. CHAPTER 81 Sec. 1253.

Sec. 1253. - Direct appeals from decisions of three-judge

courts

Except as otherwise provided by law, any party may appeal

to the Supreme Court from an order granting or denying,

after notice and hearing, an interlocutory or permanent

injunction in any civil action, suit or proceeding required by

any Act of Congress to be heard and determined by a district

court of three judges

App. V- 61

28 U.S.C. § 1254

TITLE 28 PART IV CHAPTER 81 Sec. 1254.

Sec. 1254. -— Courts of appeals; certiorari; certified

questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition of

judgment or decree:

(2) By certification at any time by a court of appeals of any

question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the

Supreme Court may give binding instructions or require the

entire record to e sent up for decision of the entire matter in

controversy

App. V- 62

28 U.S.C. § 1331

TITLE 28 PART IV CHAPTER 85 SEC. 1331

Sec. 1331. — Federal question

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.

App. V- 63

28 U.S.C. § 1346

TITLE 28 PART IV CHAPTER 85 Sec. 1346.

Sec. 1346. - United States as defendant

(a) The district courts shall have original jurisdiction,

concurrent with the United States Court of Federal Claims,

of:

(1) Any civil action against the United States for the

recovery of any internal-revenue tax alleged to have

been erroneously or illegally assessed or collected, or

any penalty claimed to have been collected without

authority or any sum alleged to have been excessive or

in any manner wrongfully collected under the internal-

; revenue laws;

(2) Any other civil action or claim against the United

States, not exceeding $10,000 in amount, founded

either upon the Constitution, or any Act of Congress,

or any regulation of an executive department, or upon

any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not

sounding in tort, except that the district courts shall not

have jurisdiction of any civil action or clatm against

the United States founded upon any express or implied

contract with the United States or for liquidated or

unliquidated damages in cases not sounding in tort

which are subject to sections 8(g)(1) and 10(a)(1) of

the Contract Disputes Act of 1978. For the purpose of

this paragraph, an express or implied contract with the

Army and Air Force Exchange Service, Navy

Exchanges, Marine Corps Exchanges, Coast Guard

Exchanges, or Exchange Councils of the National

Aeronautics and Space Administration shall be

considered an express or implied contract with the

United States.

(b)

(1) Subject to the provisions of chapter 171 of this

title, the district courts, together with the United States

District Court for the District of the Canal Zone and

App. V- 64

28 U.S.C. § 1346

the District Court of the Virgin Islands, shall have

exclusive jurisdiction of civil actions on claims against

the United States, for money damages, accruing on and

after January 1, 1945, for injury or loss of property, or

personal injury or death caused by the negligent or

wrongful act or omission of any employee of the

Government while acting within the scope of his office

or employment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place where

the act or omission occurred.

(2) No person convicted of a_ felony who 1s

incarcerated while awaiting sentencing or while

serving a sentence may bring a civil action against the

United States or an agency, officer, or employee of the

Government, for mental or emotional injury suffered

while in custody without a prior showing of physical

injury.

jurisdiction of any set-off, counterclaim, or other claim or

demand whatever on the part of the United States against any

plaintiff commencing an action under this section.

(d) The district courts shall not have jurisdiction under this

section of any civil action or claim for a pension.

(e) The district courts shall have original jurisdiction of any

civil action against the United States provided in section

6226, 6228(a), 7426, or 7428 (in the case of the United States

district court for the District of Columbia) or section 7429 of

the Internal Revenue Code of 1986.

(f) The district courts shall have exclusive original

jurisdiction of civil actions under section 2409a to quiet title

to an estate or interest in real property in which an interest is

claimed by the United States.

(g) Subject to the provisions of chapter 179, the district

courts of the United States shall have exclusive jurisdiction

over any civil action commenced under section 453(2) of title

App. V- 65

28 U.S.C. § 1346

3, by a covered employee under chapter 5 of such title Sec

1346. - United States as defendant ;

;

i a , e _ lm

App. V- 66

28 U.S.C. § 1361

TITLE 28 PART IV CHAPTER 85 Sec. 1361.

Sec. 1361. — Action to compel an officer of the United

States to perform his duty

The district courts shall have original jurisdiction of

any action in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.

App. V- 67

28 U.S.C. § 2101e)

28 U.S.C. Section 2101(e)

(e) An application to the Supreme Court for a writ of_

certiorari to review a case before judgment has been rendered

in the court of appeals may be made at any time before

judgment.

App. V- 68

28 U.S.C. § 2674

TITLE 28 PART VI CHAPTER 171 Sec. 2674.

Sec. 2674. - Liability of United States

The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the same

manner and to the same extent as a private individual under

like circumstances, but shall not be liable for interest prior to

judgment or for punitive damages.

If, however, in any case wherein death was caused, the

law of the place where the act or omission complained of

occurred provides, or has been construed to provide, for

damages only punitive in nature, the United States shall be

liable for actual or compensatory damages, measured by the

pecuniary injuries resulting from such death to the persons

respectively, for whose benefit the action was brought, in lieu

thereof.

With respect to any claim under this chapter, the United

States shall be entitled to assert any defense based upon

judicial or legislative immunity which otherwise would have

been available to the employee of the United States whose

act or omission gave rise to the claim, as well as any other

defenses to which the United States is entitled.

With respect to any claim to which this section applies,

the Tennessee Valley Authority shall be entitled to assert any

defense which otherwise would have been available to the

employee based upon judicial or legislative immunity, which

otherwise would have been available to the employee of the

Tennessee Valley Authority whose act or omission gave rise

to the claim as well as any other defenses to which the

Tennessee Valley Authority is entitled under this chapter

ge ae %

8 Ee REA, Wie TARAS aS

”

App. V- 69

28 U.S.C. § 2679

TITLE 28 PART VI CHAPTER 171 Sec. 2679.

Sec. 2679. - Exclusiveness of remedy

(a) The authority of any federal agency to sue and be sued in

its own name shall not be construed to authorize suits against

such federal agency on claims which are cognizable under

section 1346(b) of this title, and the remedies provided by

this title in such cases shall be exclusive.

(b)

(1) The remedy against the United States provided by

sections 1346(b) and 2672 of this title for injury or loss

of property, or personal injury or death arising or

resulting from the negligent or wrongful act or

omission of any employee of the Government while

acting within the scope of his office or employment is

exclusive of any other civil action or proceeding for

money damages by reason of the same subject matter

against the employee whose act or omission gave rise

to the claim or against the estate of such employee.

Any other civil action or proceeding for money

damages arising out of or relating to the same subject

matter against the employee or the employee's estate is

precluded without regard to when the act or omission

occurred.

(2) Paragraph (1) does not extend or apply to a civil

action against an employee of the Government -

(A) which is brought for a violation of the

Constitution of the United States, or

(B) which is brought for a violation of a statute

of the United States under which such action

against an individual is otherwise authorized.

proceeding brought in any court against any employee of the

Government or his estate for any such damage or injury. The

employee against whom such civil action or proceeding is

brought shall deliver within such time after date of service or

App. V- 70

28 U.S.C. § 2679

knowledge of service as determined by the Attorney General.

all process served upon him or an attested true copy thereot

to his immediate superior or to whomever was designated by

the head of his department to receive such papers and such

person shall promptly furnish copies of the pleadings and

process therein to the United States attorney for the district

embracing the place wherein the proceeding is brought, to the

Attorney General, and to the head of his employing Federal

agency.

(d)

(1) Upon certification by the Attorney General that the

defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose, any civil action or proceeding

commenced upon such claim in a United States district

court shall be deemed an action against the United

- States under the provisions of this title and all

references thereto, and the United States shall be

substituted as the party defendant.

(2) Upon certification by the Attorney General that the

defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose, any civil action or proceeding

commenced upon such claim in a State court shall be

removed without bond at any time before trial by the

Attorney General to the district court of the United

States for the district and division embracing the place

in which the action or proceeding is pending. Such

action or proceeding shall be deemed to be an action or

proceeding brought against the United States under the

provisions of this title and all references thereto, and

the United States shall be substituted as the party

defendant. This certification of the Attorney General

shall conclusively establish scope of office or

. employment for purposes of removal.

App. V- 71

28 U.S.C. § 2679

(3) In the event that the Attorney General has refused

to certify scope of office or employment under this

section, the employee may at any time before trial

petition the court to find and certify that the employee

was acting within the scope of his office or

employment. Upon such certification by the court,

such action or proceeding shall be deemed to be an

action or proceeding brought against the United States

under the provisions of this title and all references

thereto, and the United States Shall be substituted as

the party defendant. A copy of the petition shall be

served upon the United States in accordance with the

provisions of Rule 4(d)(4) of the Federal Rules of Civil

Procedure. In the event the petition is filed in a civil

action or proceeding pending in a State court, the

action or proceeding may be removed without bond by

the Attorney General to the district court of the United

States for the district and division embracing the place

in which it is pending. If, in considering the petition,

the district court determines that the employee was not

acting within the scope of his office or employment,

the action or proceeding shall be remanded to the State

court.

(4) Upon certification, any action or proceeding

subject to paragraph (1), (2), or (3) shall proceed in the

same manner as any action against the United States

filed pursuant to section 1346(b) of this title and shall

be subject to the limitations and exceptions applicable

to those actions.

(5) Whenever an action or proceeding in which the

United States is substituted as the party defendant

under this subsection is dismissed for failure first to

present a claim pursuant to section 2675(a) of this title,

such a claim shall be deemed to be timely presented

under section 2401(b) of this title if -

App. V- 72

28 U.S.C. § 2679

(A) the claim would have been timely had it

been filed on the date the underlying civil action

was commenced, and

(B) the claim is presented to the appropriate

Federal agency within 60 days after dismissal of

the civil action. :

(e) The Attorney General may compromise or settle any

claim asserted in such civil action or proceeding in the

manner provided in section 2677, and with the same effect

App. V- 73

38 U.S.C. Chapter 43 Excerpts

TITLE 38 PART Il CHAPTER 43

CHAPTER 43 - EMPLOYMENT AND

REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

Sec. 4301. - Purposes; sense of Congress

(a) The purposes of this chapter are -

(1) to encourage noncareer service in the uniformed

services by eliminating or minimizing — the

disadvantages to civilian careers and employment

which can result from such service;

(2) to minimize the disruption to the lives of persons

performing service in the uniformed services as well as

to their employers, their fellow employees, and their

communities, by providing for the prompt

reemployment of such persons upon their completion

of such service; and

(3) to prohibit discrimination against persons because

of their service in the uniformed services.

(b) It is the sense of Congress that the Federal Government

should be a model employer in carrying out the provisions of

this chapter

Sec. 4302. - Relation to other law and plans or agreements

(a) Nothing in this chapter shall supersede, nullify or

diminish any Federal or State law (including any local law or

ordinance), contract, agreement, policy, plan, practice, or

other matter that establishes a right or benefit that is more

beneficial to, or is in addition to, a right or benefit provided

for such person in this chapter.

(b) This chapter supersedes any State law (including any

local law or ordinance), contract, agreement, policy, plan,

practice, or other matter that reduces, limits, or eliminates in

any manner any right or benefit provided by this chapter,

including the establishment of additional prerequisites to the

exercise of any such right or the receipt of any such benefit

App. V- 74

38 U.S.C. Chapter 43 Excerpts

Sec. 4303. - Definitions

For the purposes of this chapter -

(1) The term "Attorney General" means the Attorney

General of the United States or any person designated

by the Attorney General to carry out a responsibility of

the Attorney General under this chapter.

(2) The term "benefit", "benefit of employment", or

"rights and benefits" means any advantage, profit,

privilege, gain, status, account, or interest (other than

wages or salary for work performed) that accrues by

reason of an employment contract or agreement or an

employer policy, plan, or practice and includes rights

and benefits under a pension plan, a health plan, an -

employee stock ownership plan, insurance coverage

and awards, bonuses, severance pay, supplemental

unemployment benefits, vacations, and the opportunity

to select work hours or location of employment.

(3) The term "employee" means any person employed

by an employer. Such term includes any person who is

a citizen, national, or permanent resident alien of the

United States employed in a workplace in a foreign

country by an employer that is an entity incorporated

or otherwise organized in the United States or that is

controlled by an entity organized in the United States,

within the meaning of section 4319(c) of this title.

(4)

(A) Except as provided in subparagraphs (B)

and (C), the term "employer" means any person,

institution, organization, or other entity that pays

salary or wages for work performed or that has

control over employment opportunities,

including -

(i) a person, institution, organization, Or

other entity to whom the employer has

delegated the performance of

employment-related responsibilities;

PRO Ey eee

App. V- 75

38 U.S.C. Chapter 43 Excerpts

(ii) the Federal Government;

(iii) a State;

(iv) any successor in interest to a person,

institution, organization, or other entity

referred to in this subparagraph, and

(v) a person, institution, organization, or

other entity that has denied initial

employment in violation of section 4311.

(5) The term "Federal executive agency" includes the

United States Postal Service, the Postal Rate

Commission, any nonappropriated fund instrumentality

of the United States, any Executive agency (as that

term ts defined in section 105 of title 5) other than an

agency referred to in section 2302(a)(2)(C)(ii) of title

5, and any military department (as that term is defined

in section 102 of title 5) with respect to the civilian

employees of that department.

(6) The term "Federal Government" includes any

Federal executive agency, the legislative branch of the

United States, and the judicial branch of the United

States.

(7) The term “health plan" means an insurance policy

or contract, medical or hospital service agreement,

membership or subscription contract, or other

arrangement under which health services for

individuals are provided or the expenses of such

services are paid.

(8) The term "notice" means (with respect to

subchapter II) any written or verbal notification of an

obligation or intention to perform service in the

uniformed services provided to an employer by the

employee who will perform such service or by the

uniformed service in which such service is to be

performed.

App. V- 76

38 U.S.C. Chapter 43 Excerpts

(9) The term “qualified”, with respect to an

employment position, means having thé ability to

perform the essential tasks of the position.

(10) The term "reasonable efforts", in the case of

actions required of an employer under this chapter,

means actions, including training provided by an

employer, that do not place an undue hardship on the

employer.

(11) Notwithstanding section 101, the term "Secretary"

means the Secretary of Labor or any person designated

by such Secretary to carry out an activity under this

chapter.

(12) The term "seniority" means longevity in

employment together with any benefits of employment

which accrue with, or are determined by, longevity in

employment.

(13) The term "service in the uniformed services”

means the performance of duty on a voluntary or

involuntary basis in a uniformed service under

competent authority and includes active duty, active

duty for training, initial active duty for training,

inactive duty training, full-time National Guard duty, a

period for which a person is absent from a position of

employment for the purpose of an examination to

determine the fitness of the person to perform any such

duty, and a period for which a person is absent from

employment for the purpose of performing funeral

honors duty as authorized by section 12503 of title 10

or section 115 of title 32.. WW

(14) The term "State" means each of the several States

of the United States, the District of Columbia, the

Commonwealth of Puerto Rico, Guam, the Virgin

Islands, and other territories of the United States

(including the agencies and political subdivisions

thereof).

App. V- 77

38 U.S.C. Chapter 43 Excerpts

(15) The term “undue hardship", in the case of actions

taken by an employer, means actions requiring

significant difficulty or expense, when considered in

light of -

(A) the nature and cost of the action needed

under this chapter;

(B) the overall financial resources of the facility

or facilities involved in the provision of the

action; the number of persons employed at such

facility; the effect on expenses and resources, or

the impact otherwise of such action upon the

operation of the facility;

employer; the overall size of the business of an

employer with respect to the number of its

employees; the number, type, and location of its

facilities; and

(D) the type of operation or operations of the

employer, including the composition,_structure,

and functions ofthe work force of such

: employer; the geographic separateness,

administrative, or fiscal relationship of the

facility or facilities in question to the employer.

(16) The term "uniformed services" means the Armed

Forces, the Army National Guard and the Air National

Guard when engaged in active duty for training,

inactive duty training, or full-time National Guard

duty, the commissioned corps of the Public Health

Service, and any other category of persons designated

by the President in time of war or national emergency

Sec. 4304. - Character of service

A person's entitlement to the benefits of this

chapter by reason of the service of such person in one

of the uniformed services terminates upon the

occurrence of any of the following events:

App. V- 78

38 U.S.C. Chapter 43 Excerpts

(1) A separation of such person from such uniformed

service with a dishonorable or bad conduct discharge.

(2) A separation of such person from such uniformed

service under other than honorable conditions, as

characterized pursuant to regulations prescribed by the

Secretary concerned.

(3) A dismissal of such person permitted under section

1161(a) of title 10.

(4) A dropping of such person from the rolls pursuant

to section 1161(b) of title 10

TITLE 38 PART IIL CHAPTER 43 SUBCHAPTER II

SUBCHAPTER II - EMPLOYMENT AND

REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

Sec. 4311. - Discrimination against persons who serve in

the uniformed services and acts of reprisal prohibited

(a) A person who is a member of, applies to be a member of,

performs, has performed, applies to perform, or has an

obligation to perform service in a uniformed service shall not

be denied initial employment, reemployment, retention in

employment, promotion, or any benefit of employment by an

employer on the basis of that membership, application for

membership, performance of service, application for service,

or obligation.

(b) An employer may not discriminate in employment

against or take any adverse employment action against any

person because such person

(1) has taken an action to enforce a protection

afforded any person under this chapter,

(2) has testified or otherwise made a statement in or in

connection with any proceeding under this chapter,

(3) has assisted or otherwise participated in an

investigation under this chapter, or

App. V- 79

38 U.S.C. Chapter 43 Excerpts

(4) has exercised a right provided for in this chapter.

The prohibition in this subsection shall apply with

respect to a person regardless of whether that person

has performed service in the uniformed services.

actions prohibited -

(1) under subsection (a), if the person's membership,

application for membership, service, application for

service, or obligation for service in the uniformed

services is a motivating factor in the employer's action,

unless the employer can prove that the action would

have been taken in the absence of such membership,

application for membership, service, application for

service, or obligation for service; or

(2) under subsection (b), if the person's

(A) action to enforce a protection afforded any

person under this chapter,

(B) testimony or making of a statement in or in

connection with any proceeding under this

chapter,

investigation under this chapter, or

(D) exercise of a right provided for in this

| chapter, is a motivating factor in the employer's

) action, unless the employer can prove that the

action would have been taken in the absence of

such person's enforcement action, testimony,

statement, assistance, participation, or exercise

of a right.

(d) The prohibitions in subsections (a) and (b) shall apply to

: any position of employment, including a position that is

: described in section 4312(d)(1)(C) of this title

Sec. 4312. - Reemployment rights of persons who serve in

the uniformed services

App. V- 80

38 U.S.C. Chapter 43 Excerpts

(a) Subject to subsections (b), (Cc), and (d) and to section

4304, any person whose absence from a position of

employment is necessitated by reason of service in the

uniformed services shall be entitled to the reemployment

rights and benefits and other employment benefits of this

chapter if -

(1) the person (or an appropriate officer of the

uniformed service in which such service is performed)

has given advance written or verbal notice of such

service to such person's employer;

(2) the cumulative length of the absence and of all

previous absences from a position of employment_with

that employer by reason of service in the uniformed

services does not exceed five years; and

(3) except as provided in subsection (f), the person

reports to, or submits an application for reemployment

to, such employer in accordance with the provisions of

subsection (e).

(b) No notice is required under subsection (a)(1) if the

giving of such notice is precluded by military necessity or,

under all of the relevant circumstances, the giving of such

notice is otherwise impossible or unreasonable. A

determination of military necessity for the purposes of this

subsection shall be made pursuant to regulations prescribed

by the Secretary of Defense and shall not be subject to

judicial review.

a position of employment by reason of service in the

uniformed services if such person's cumulative period of

service in the uniformed services, with respect to the

employer relationship — for which a_ person — seeks

reemployment, does not exceed five years, except that any

such period of service shall not include any service -

(1) that is required, beyond five years, to complete an

initial period of obligated service;

(d)

App. V- 81

38 U.S.C. Chapter 43 Excerpts

(2) during which such person was unable to obtain

orders releasing such person from a period of service

in the uniformed services before the expiration of such

five-year period and such inability was through no

fault of such person;

(3) performed as required pursuant to section 10147 of

title 10, under section 502(a) or 503 of title 32, or to

fulfill additional training requirements determined and

certified in writing by the Secretary concerned, to be

necessary for professional development, or for

completion of skill training or retraining; or

(4) performed by a member of a uniformed service

who Is -

(A) ordered to or retained on active duty under

section 688, 12301(a), 12301(g), 12302, 12304,

or 12305 of title 10 or under section 331, 332,

359, 360, 367, or 712 of title 14;

(B) ordered to or retained on active duty (other

than for training) under any provision of law

because of a war or national emergency declared

by the President or the Congress, as determined

by the Secretary concerned;

training) in support, as determined by the

Secretary concerned, of an operational mission

for which personnel have been ordered to active

duty under section 12304 of title 10;

(D) ordered to active duty in support, as

determined by the Secretary concerned, of a

critical mission or requirement of the uniformed

services; or :

(E) called into Federal service as a member of

the National Guard under chapter 15 of title 10

or under section 12406 of title 10.

(e)

App. V- 82

38 U.S.C. Chapter 43 Excerpts

(1) An employer is not required to reemploy a person

under this chapter if -

(A) the employer's circumstances have so

changed as to make such reemployment

impossible or unreasonable;

(B) in the case of a person entitled to

reemployment under subsection (a)(3), (a)(4), or

(b)(2)(B) of section 4313, such employment

would impose an undue hardship on the

employer; or

leaves to serve in the uniformed services is for a

brief, nonrecurrent period and there is no

reasonable expectation that such employment

will continue indefinitely or for a significant

period.

(2) In any proceeding involving an issue of whether -

(A) any reemployment referred to in paragraph

(1) is impossible or unreasonable because of a

change in an employer's circumstances,

(B) any accommodation, training, or effort

referred to in subsection (a)(3), (a)(4), or

(b)(2)(B) of section 4313 would impose an

undue hardship on the employer, or

(1)(C) is for a brief, nonrecurrent period and

there is no reasonable expectation that such

employment will continue indefinitely or for a

significant period,

the employer shall have the burden of proving the

impossibility or unreasonableness, undue hardship, or

the brief or nonrecurrent nature of the employment

without a reasonable expectation of continuing

indefinitely or for a significant period.

App. V- 83

38 U.S.C. Chapter 43 Excerpts

(1) Subject to paragraph (2), a person referred to in

subsection (a) shall, upon the completion of a period of

service in the uniformed services, notify the employer

referred to in such subsection of the person's intent to

return to a position of employment with such employer

as follows:

(A) In the case of a person whose period of

service in the uniformed services was less than

31 days, by reporting to the employer -

(i) not later than the beginning of the first

full regularly scheduled work period on

the first full calendar day following the

completion of the period of service and

the expiration of eight hours after a period

allowing for the safe transportation of the

person from the place of that service to the

person's residence; or

(ii) as soon as possible after the

expiration of the eight-hour period

referred to in clause (i), if reporting within

the period referred to in such clause is

impossible or unreasonable through no

fault of the person. }

(B) In the case of a person who is absent from a

position of employment for a period of any

length for the purposes of an examination to

determine the person's fitness to perform service

in the uniformed services, by reporting in the

manner and time referred to in subparagraph

(A).

service in the uniformed-services was for more

than 30 days but less than 181 days, by

submitting an application for reemployment with

the employer not later than 14 days after the

completion of the period of service or if

App. V- 84

38 U.S.C. Chapter 43 Excerpts

submitting such application within such period

is impossible or unreasonable through no fault of

the person, the next first full calendar day when

submission of such application becomes

possible.

(D) In the case of a person whose period of

service in the uniformed services was for more

than 180 days, by submitting an application for

reemployment with the employer not later than

90 days after the completion of the period of

service.

(2)

(A) A person who is hospitalized for, or

convalescing from, an illness or injury incurred

in, or aggravated during, the performance of

service in the uniformed services shall, at the

end of the period that is necessary for the person

to recover from such illness or injury, report to

the person's employer (in the case of a person

described in subparagraph (A) or (B) of

paragraph (1)) or submit an application for

reemployment with such employer (in the case

of a person described in subparagraph (C) or (D)

of such paragraph). Except as provided in

subparagraph (B), such period of recovery may

not exceed two years.

(B) Such two-year period shall] be extended by

the minimum time required to accommodate the

circumstances beyond such person's control

which make reporting within the period

specified in subparagraph (A) impossible or

unreasonable.

(3) A person who fails to report or apply for

employment or reemployment within the appropriate

period specified in this subsection shall not

automatically forfeit such person's entitlement to the

(f)

App. V- 85

38 U.S.C. Chapter 43 Excerpts

rights and benefits referred to in subsection (a) but

shall be subject to the conduct rules,” established

policy, and general practices of the employer

pertaining to explanations and discipline with respect

to absence from scheduled work.

(1) A person who submits an application for

reemployment in accordance with subparagraph (C) or

(D) of subsection (e)(1) or subsection (e)(2) shall

provide to the person's employer (upon the request of

such employer) documentation to establish that -

(A) the person's application is timely;

(B) the person has not exceeded the service

limitations set forth in subsection (a)(2) (except

as permitted under subsection (c)); and

under this chapter has not been terminated

pursuant to section 4304.

(2) Documentation of any matter referred to in

paragraph (1) that satisfies regulations prescribed by

the Secretary shall satisfy the documentation

requirements in such paragraph.

(3)

(A) Except as provided in subparagraph (B), the

failure of a person to provide documentation that

satisfies regulations prescribed pursuant to

paragraph (2) shall not be a basis for denying

reemployment in accordance with the provisions

of this chapter if the failure occurs because such

documentation does not exist or is not readily

available at the time of the request of the

employer. If, after such reemployment,

documentation becomes available that

establishes that such person does not meet one

or more of the requirements referred to in

subparagraphs (A), (B), and (C) of paragraph

App. V- 86

38 U.S.C. Chapter 43 Excerpts

(1), the employer of such person may terminate

the employment of the person and the provision

of any rights or benefits afforded the person

under this chapter.

(B) An employer who reemploys a person

absent from a position of employment for more

than 90 days may require that the person provide

the employer with the documentation referred to

in subparagraph (A) before beginning to treat the

person as not having incurred a break in service

for pension purposes under __ section

4318(a)(2)(A).

(4) An employer may not delay or attempt to defeat a

reemployment obligation by demanding documentation

that does not then exist or is not then readily available.

(g) The right of a person to reemployment under this section

shall not entitle such person to retention, preference, or

displacement rights over any person with a superior claim

under the provisions of title 5, United States Code, relating to

veterans and other preference eligibles.

(h) In any determination of a person's entitlement to

protection under this chapter, the timing, frequency, and

duration of the person's training or service, or the nature of

such training or service (including voluntary service) in the

uniformed services, shall not be a basis for denying

protection of this chapter if the service does not exceed the

limitations set forth in subsection (c) and the notice

requirements established in subsection (a)(1) and _ the

notification requirements established in subsection (e) are

met

Sec. 4313. - Reemployment positions

(a) Subject to subsection (b) (in the case of any employee)

and sections 4314 and 4315 (in the case of an employee of

the Federal Government), a person entitled to reemployment

under section 4312, upon completion of a period of service in

App. V- 87

38 U.S.C. Chapter 43 Excerpts

the uniformed services, shall be promptly reemployed in a

position of employment in accordance with the following

order of priority:

(1) Except as provided in paragraphs (3) and (4), in

the case of a person whose period of service in the

uniformed services was for less than 91 days -

(A) in the position of employment in which the

person would have been employed if the

continuous employment of such person with the

employer had not been interrupted by such

service, the duties of which the person is

qualified to perform; or

(B) in the position of employment in which the

person was employed on the date of the

commencement of the service in the uniformed

services, only if the person is not qualified to

perform the duties of the position referred to in

subparagraph (A) after reasonable efforts by the

employer to qualify the person.

(2) Except as provided in paragraphs (3) and (4), in

the case of a person whose period of service in the

uniformed services was for more than 90 days -

(A) in the position of employment in which the

person would have been employed if the

continuous employment of such person with the

employer had not been interrupted by such

service, or a position of like seniority, status and

pay, the duties of which the person is qualified

to perform; or

(B) in the position of employment in which the

person was employed on the date of the

commencement of the service in the uniformed

services, or a position of like seniority, status

and pay, the duties of which the person is

qualified to perform, only if the person is not

qualified to perform the duties of a position

App. V- 88

38 U.S.C. Chapter 43 Excerpts

referred to in subparagraph (A) after reasonable

efforts by the employer to qualify the person.

(3) In the case of a person who has a disability

incurred in, or aggravated during, such service, and

who (after reasonable efforts by the employer to

accommodate the disability) is not qualified due to

such disability to be employed in the position of

employment in which the person would have been

employed if the continuous employment of such

person with the employer had not been interrupted by

such service -

(A) in any other position which is equivalent in

seniority, status, and pay, the duties of which the

person is qualified to perform or would become

qualified to perform with reasonable efforts by

the employer; or

(B) if not employed under subparagraph (A), in

a position which is the nearest approximation to

a position referred to in subparagraph (A) in

terms of seniority, status, and pay consistent

with circumstances of such person's case.

(4) In the case of a person who

(A) is not qualified to be employed in

(i) the position of employment in which

the person would have been employed if

the continuous employment of such

person with the employer had not been

interrupted by such service, or

(ii) in the position of employment in

which such person was employed on the

date of the commencement of the service

in the uniformed services for any reason

(other than disability incurred in, or

aggravated during, service in the

uniformed services), and

(b)

App. V- 89

38 U.S.C. Chapter 43 Excerpts

(B) cannot become qualified with reasonable

efforts by the employer, in any other position

which is the nearest approximation to a position

referred to first in clause (A)(i) and then in

clause (A)(ii) which such person is qualified to

perform, with full seniority.

(1) If two or more persons are entitled to

reemployment under section 4312 in the same position

of employment and more than one of them has

reported for such reemployment, the person who left

the position first shall have the prior right to

reemployment in that position.

(2) Any person entitled to reemployment under

section 4312 who is not reemployed in a position of

employment by reason of paragrapn (1) shall be

entitled to be reemployed as follows:

(A) Except as provided in subparagraph (B), in

any other position of employment referred to in

subsection (a)(1) or (a)(2), as the case may be

(in the order of priority set out in the applicable

subsection), that provides a similar status and

pay to a position of employment referred to in

paragraph (1) of this subsection, consistent with

the circumstances of such person's case, with

full seniority.

(B) In the case of a person who has a disability

incurred in, or aggravated during, a period of

service in the uniformed services that requires

reasonable efforts by the employer for the

person to be able to perform the duties of the

position of employment, in any other position

referred to in subsection (a)(3) (in the order of

priority set out in that subsection) that provides a

similar status and pay to a position referred to in

paragraph (1) of this subsection, consistent with

App. V- 90

38 U.S.C. Chapter 43 Excerpts

circumstances of such person's case, with full

seniority

Sec. 4314. - Reemployment by the Federal Government

(a) Except as provided in subsections (b). (c), and (d), if a

person is entitled to reemployment by the Federal

Government under section 4312. such person shall be

reemployed in a position of employment as described in

section 4313.

(b)

(1) If the Director of the Office of Personnel

Management makes a determination described in

paragraph (2) with respect to a person who was

employed by a Federal executive agency at the time

the person entered the service from which the person

seeks reemployment under this section, the Director

shall -

(A) identify a position of like seniority, status,

and pay at another Federal executive agency that

satisfies the requirements of section 4313 and

for which the person is qualified; and

(B) ensure that the person is offered such

position.

(2) The Director shall carry out the duties referred to

in subparagraphs (A) and (B) of paragraph (1) if the

Director determines that - :

(A) the Federal executive agency that employed

the person referred to in such paragraph no

longer exists and the functions of such agency

have not been transferred to another Federal

executive agency; or

(B) it is impossible or unreasonable for the

agency to reemploy the person.

was, at the time such person entered the service from which

such person seeks reemployment under this section, a part of

Sete pate NE SATELLITE ALOE ELLA PERL SIAR

App. V- 91

38 U.S.C. Chapter 43 Excerpts

the judicial branch or the legislative branch of the Federal -

Government, and such employer determines that it is

impossible or unreasonable for such employer to reemploy

such person, such person shall, upon application to the

Director of the Office of Personnel Management, be ensured

an offer of employment in an alternative position in a Federal

executive agency on the basis described in subsection (b).

(d) If the adjutant general of a State determines that it is

impossible or unreasonable to reemploy a person who was a

National Guard technician employed under section 709 of

title 32, such person shall, upon application to the Director of

the Office of Personnel Management, be ensured an offer of

employment in an alternative position in a Federal executive

agency on the basis described in subsection (b)

Sec. 4315. - Reemployment by certain Federal agencies

(a) The head of each agency referred to in section

2302(a)(2)(C)(ii) of title 5 shall prescribe procedures for

ensuring that the rights under this chapter apply to the

employees of such agency.

(b) In prescribing procedures under subsection (a), the head

of an agency referred to in that subsection shall ensure, to the

maximum extent practicable, that the procedures of the

agency for reemploying persons who serve in the uniformed

services provide for the reemployment of such persons in the

agency in a manner similar to the manner of reemployment

described in section 4313.

(c)

(1) The procedures prescribed under subsection (a)

shall designate an official at the agency who shall

determine whether or not the reemployment of a

person referred to in subsection (b) by the agency is

impossible or unreasonable.

(2) Upon making a determination that the

reemployment by the agency of a person referred to in

subsection (b) is impossible or unreasonable, the

official referred to in paragraph (1) shall

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