# Petition for Writ of Certiorari — Parker v. Department of Defense > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0991%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 876 ## Text Supreme Court, U.S. / FILED O4 213 AUG1 2 2004 No. . I In The Supreme Court of the United States GLENDA GAIL PARKER, U:S. citizen Veteran and Pro se Petitioner v. 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? il 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. iV 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 Vv 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 vi 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 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: a) b) 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 Know tat c) d) e) 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 i 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 Writ of Certiorari (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. 10 Writ of Certiorari 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. 11 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 12 Writ of Certiorari 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 13 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 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 Undated Undated Undated Undated Undated Undated Undated Undated 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 iV 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 v. 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 V. 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. 18 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)); or (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. (c) Accounting of Certain Disclosures. - 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 (C) the routine uses which may be made of the 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, (C) the categories of records maintained in the 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; a 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 Register notice of such establishment or revision. (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; (C) fails to maintain any record concerning any 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 (C) reports identifiable to an _ individual 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 - a anegeeneneeenenenmemeenammmmmiiae 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; (C) a description of the records that will be 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). (C) Such an agreement shall remain in effect 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 (C) the period or periods when the individual 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; (C) — shall review all recurring matching 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. (C) A cost-benefit analysis shall not be 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. (C) The decision of the Director to approve a 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. (C) A subpoena issued under subparagraph (A) 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; or (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) (A) A United State © district court for the 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. (C) An order under this paragraph may be 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. (c) Enforcement. - In the case of contumacy by or refusal to 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. (c) The jurisdiction conferred by this section includes 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 ; 7 , : : : : : ; : a : : 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 % os 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. (c) The Attorney General shall defend any civil action or 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 ee 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 o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0991%3A1. Public record. Not legal advice.