Petition for Writ of Certiorari — Seldowitz v. Office of Inspector General

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

Supreme Court,

% Us.

001558 APR - 9 200

In THE CLERK

Supreme Court of the United States

STUART M. SELDOWITZ,

Petitioner,

versus

THE OFFICE OF THE INSPECTOR

GENERAL, U. S. Department of State,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WILLIAM M. PALMER

Counsel of Record

60 State Street

Suite 700

Boston, Massachusetts 02109

Telephone: (617) 878-2120

Counsel for Petitioner,

Stuart M. Seldowitz

Curry & Taylor (202) 393-4141 /ussupremecourt@hotmail com

\\a-PA

<itiies a

QUESTIONS PRESENTED

Should this Court grant certiorari to review the

decision of the United States Court of Appeals for the Fourth

Circuit that:

(1)

(2)

(3)

erroneously interprets the U.S Department of State

regulation governing the Office of the Inspector

General’s exemption from the Privacy Act of 1974

and in doing so fails to apply a governing Office of

Management and Budget regulation that has broad

implications for government agencies.

fails to apply the requirement that the regulation or

rule setting forth a Privacy Act exemption must state

the reason for the exemption.

erroneously interprets the Privacy Act’s statute of

limitations, in cases when the government engages in

deception, as running when the Plaintiff should have

known of the error in his records but has no actual!

knowledge of the error, in accordance with the

interpretation of the Court of Appeals of the Seventh

Circuit, but in conflict with that of the Court of

Appeals of the District of Columbia Circuit, which

reads the same provision as requiring actual

knowledge of the error to commence the running of

the statute of limitations.

TABLE OF CONTENTS

QUES PIONS PRESET csssiscsesidecscdecsceseee i

TABLE OF CON oii ii

TABLE O] AUFERO wisissisniicte voice | iv

PEI TE sissies i I

STATEMENT OF JURISDICTION. ..0...eccsccccseccseeeoseeoeecc...... I

RELEVANT STATUTORY AND REGULATORY

PROVISIING DOVES sirircuicence 2

STATEMENT OF 30 CAM i 2

REASONS FOR GRANTING THE WRIT weeeeccccooeeos----...... 3

COMNCLEII .o.ciditeeicsini ce ee 21

APPENDIX

Fourth Circuit opinion of 11/13/00 .....cccccccccsccseeecoeooeecsee....., la

District Court order Of 10/29/99 .......cecccecccssssseseecceeeeseeccece... 12a

District Court order Of 12/8/99 .0......ecccccccccescsseceeeseseoseesecc... 18a

Fourth Circuit order Of 1/9/01 .....c.ccccccssessesssescsecseoseeeoseesse... 26a

SR CPR. § UN Bic ee 27a

IO ER. § TOP 1 ...nsinsoupdaacemebinatecath eee: 37a

TABLE OF AUTHORITIES

CASES

BAKER V. DEPARTMENT OF THE NAVY, 814 F.2D 1381, 1383

SRE eR ERE TREN Bens ee 10

Bowyer V. U.S. Dept. OF AiR FORCE, 875 F.2D 632 (7TH

Cir. 1989). CERT. DEN., 493 U.S. 1046 Fp iditacetie: 19

DILBERTI V. UNITED STATES OF AMERICA. 817 F.2D 1259,

aes WUE CUO, DT ii es. 17

IN RE PUBLIC NATIONAL BANK OF NEW York, 278 U.S. 555

Lo Pe hssnscncvenntsiittseanahcihiaiiibibaninniace tee steel aE a

PERRY V. FBI, 759 F.2D 1271, 1276 N.7 (7TH Cir. 1985)... 11

QUINN V. STONE, 978 F.2D 126, 133 (3D Cir. | Se 10

RYAN V. DEPARTMENT OF JUSTICE, 595 F.2D 954, 957 (4TH

ens ND iiccinibiglitiada teed nie oe ad on

SMIERTKA V. UNITED STATES DEP'T OF THE TREASURY, 604

F.2D 698, 703 N12 (D.C. Cam. 19790 oon ccceccasesesseesossaee. 1]

SMITH V. UNITED STATES, 508 U.S. 223, 113 S.CT. 2050

(ne sgitinnsieniniiiniaicuc tata ea 9

TUJERINA V. WALTERS, 821 F.2D 789, 798 (D.C. Cir. 1987)

ssleoeseiii hii iain ai aN a 16, 17

U.S. ARMY ENGINEERING CENTER V. FEDERAL LABOR

RELATIONS AUTHORITY, 762 F.2p 4099 (4TH Cir. 1985)... 8

UNITED STATES V. MENSCHE, 348 U.S. 528 re 8

STATUTES

wT RRO RE I creer 2, 3,14

FTA, BF asic sinscitestsineendicsectatinc ie etn 16

oF nas ON ind ei ee ce 9, 10, 14

EE | ERRORS AOS UOTE LAR RI CD ae 10

REGULATIONS

roe 2A E27 , > SRO TR ae Rae 4,7, 10

ripe f Eas hs SeROR i ame Rone et 7, 11

BO a UP Adicts os 8, 15

oh OP D. GOOG itininsiciag 10, 11

40 FED. REG. 40456 (SEPTEMBER 2, 1975) .....c.cseccessesceseseess 10

OMB CIRCULAR A-108, 40 FED. REG. 28948 (JULY 9, 1975)

datscveciesssasstneshidsssdinhiigusinsesiiibahsuiesbctumctoubsiciciin 11,12

REPORT AND OPINIONS BELOW

On April 8, 1998, Stuart M. Seldowitz filed a

complaint in the District of Columbia against the Office of

the Inspector General of the U.S. Department of State

(hereinafter “the OIG”). Mr. Seldowitz then filed an

amended complaint on August 13, 1998.

The OIG moved to dismiss the complaint. After

addressing the issue of venue, the District Court transferred

the case to the Eastern District of Virginia. The OIG then

filed a supplemental motion to dismiss.

The District Court held that the statute -of limitations

had expired on counts one and two of the complaint and

dismissed those counts. The OIG filed its motion for a

summary judgment as to the remaining count of the

complaint. The motion was granted.

On April 19, 2000, Mr. Seldowitz filed an appeal in

the U.S. Court of Appeals for the Fourth Circuit. The Court

of Appeals affirmed the dismissal of counts one and two of

the original complaint. The Court reversed and remanded the

remaining count for discovery.

Mr. Seldowitz filed a petition for a panel rehearing on

December 28, 2000. The Court denied the petition on

January 9, 2001.

This petition for writ of certiorari follows.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit entered on Nov. 13, 2000. Mr.

Seldowitz’s petition for a panel rehearing was denied by

order entered on January 9, 2001. This Court's jurisdiction to

consider this petition from the final judgment or decree is

invoked pursuant to Title 2, United States Code, Section

1254(1).

RELEVANT STATUTORY AND REGULATORY

PROVISIONS

See Appendix

STATEMENT OF THE CASE

This appeal arose out of a civil case in connection

with a False Claims Act investigation. Pertinent judicial

Proceedings were held in both federal district and appellant

courts.

On April 8. 1998. Stuart M. Seldowitz filed a

complaint in the District of Columbia against the Office of

threaten a civil prosecution of Mr. Seldowitz under the False

Claims Act and sought compensatory damages. On August

13, 1998, Mr. Seldowitz filed an amended complaint, adding

a third count, also under the Privacy Act. This count

demand, that the OIG correct its records.

The OIG moved to dismiss Mr. Seldowitz’ complaint

on multiple grounds, including improper venue. Mr.

Seldowitz timely opposed this motion. The District Court

declined to decide any question other than that for venue. It

denied the OIG's request for dismissal on this ground, but

ordered that the case be transferred to the Eastern District of

Virginia.

After the transfer, the OIG filed a Notice of Hearing

on its motion to dismiss. U.S. District Judge Gerald B. Lee

granted the motion to dismiss without prejudice, erroneously

based on the ground that Mr. Seldowitz had failed to file an

_ Opposition. This order was ultimately vacated.

The OIG then filed a supplemental motion to dismiss.

The District Court held that the statute of limitations expired

as to counts one and two before the initial complaint had

been filed, and dismissed those counts.

Discovery was thereafter stayed by order of the

Magistrate Judge upon motion of the OIG.

The OIG filed its motion for summary judgment as to

count three. The motion was granted in favor of the

government.

On Nov. 13, 2000 the United States Court of Appeals

for the Fourth Circuit affirmed in part, reversed in part and

remanded.

On December 28, 2001, Mr. Seldowitz filed a petition

for a panel rehearing. The Court of Appeals denied the

petition by order dated and entered January 9, 2001.

This appeal follows.

REASONS FOR GRANTING THE WRIT

THE COURT'S OPINION

ERRONEOUSLY INTERPRETS THE

STATE DEPARTMENT'S REGULATION

GOVERNING THE INSPECTOR

GENERAL'S EXEMPTION TO THE

PRIVACY ACT AND FAILS TO APPLY

AN OFFICE OF MANAGEMENT AND

BUDGET REGLATION GOVERNING

THIS EXEMPTION

It is respectfully contended that the United State

Court of Appeals has misinterpreted the exemption

provisions of the Privacy Act of 1974 (5 U.S.C. Sec. 552a).

In deciding this case, the Court of Appeals was

required to interpret a regulation of the U.S. Department of

State (hereinafter "DOS" or "the State Department") issued

pursuant to the Privacy Act of 1974 (hereinafter "the Act").

The regulation concerns the Act's requirements whereby an

individual may have access to certain agency records

pertaining to that person and has the right to require

corrections to an inaccuracy or incompleteness in those

records.

: The regulation is found at 22 C.F.R. § 171.32, and it

has numerous sections. Generally, it can be viewed as

providing exemptions to the access and correction provisions

of the Act for records compiled and maintained by agencies

within the Department of State, including the Office of the

Inspector General. The regulation also contains exceptions to

this exemption.

It is the interpretation of these exemptions and their

exceptions that is at issue in this case.

A. Section 171.32(h) Limits the

Inspector General's Exemption

to Before Completion of the

Investigative and Judicial

Process

Two subparts of 22 C.F.R. §171.32 are of significant

import here. The first is Section171.32(h). In describing the

records that are authorized to be exempt from the Privacy

Act, it reads as follows:

Records originated by another agency when

that agency has determined that the record is

exempt under [the Act]. Also, pursuant to

Section (j)(2) of the Act, records compiled by

the Special Assignment Staff, the Command

Center, and the Passport and Visa Branch of

the Office of Security and by the [I]nspector

General may be exempted from the

requirements of any part of the Act except

subsections [not applicable to this case] to the

extent necessary to assure. effective

completion of the investigative and judicial

processes.

The first error contained in the Court of Appeal’'s written

opinion is found on page seven of that opinion. There, the

Court said:

Section 171.32(h) applies only to

"(rlecords originated by another

agency when that agency has

determined that the record is exempt"

under [the Act]. Accordingly, the

language of §171.32(h) making

reference to the completion of the

investigative and judicial process is

inapplicable.

To the contrary. Section 171.32(h) contains two parts,

comprised by the two sentences of that Section. These two

sentences define two distinct categories of records, and

address their exemption status separately. Only the second

category applies to records originating within the OIG.

The first sentence reads: "Records originated by

another agency when that agency has determined that the

_ record is exempt under [the Act]." This is the first category ~

of Section 171.32(h) records. Given the language of this

sentence, it is clear that records held by one agency that

originate within a second agency have a blanket authorization

for exemption when the second agency has made the required

determination. Since the records at issue here were compiled

by the OIG, they do not fall into this category, and this part

of the regulation does not apply.

The second sentence begins with the word, "Also."

This word indicates that another category of records, other

than those "originated by another agency . . . ," is authorized

as exempt under this Section. The express language of the

remainder of the second sentence confirms that this is the

;

correct interpretation of the Section. In pertinent part, it

reads: "Also . . . records compiled by the Special

Assignment Staff, the Command Center, and the Passport and

Visa Branch of the Office of Security and by the [I]nspector

General may be exempted to the extent necessary to assure

effective completion of the investigative and judicial

processes."

Through count three, Mr. Seldowitz seeks to amend

three categories of records: 1) those compiled by the OIG,

including the report provided to the U.S. Attorney’s Office

recommending that Mr. Seldowitz be prosecuted under the

False Claims Act; 2) those compiled by the OIG Office of

Audits concerning its Geneva audit and investigation, in

which are documents compiled for administrative/fiscal

purposes; and 3) those compiled by an OIG internal review

responding to allegations of misconduct and unethical

conduct on OIG’s part during its Geneva audits and

investigations.

All of the records at issue in this case were "compiled

by the [I]nspector General." For this reason, they fall within

the second category of Section 171.32(h) records. This being

the case, ihe remainder of the second sentence applies to

them: "!They] may be exempted to the extent necessary to

assure effective completion of the investigatory and judicial

processes."

Using the above analysis, it becomes clear that the

OIG records at issue can be exempted only the extent

necessary to insure the completion of an investigation or

judicial proceeding.

B. The Federal Register Notice

Supports this Limitation of the

Inspector General's Exemption

to the Completion of the

Investigative and Judicial

Process

The above analysis need not be taken in isolation. The

Notice published by the DOS during the promulgation of this

regulation provides ample support for this interpretation.

Public Notice 1298 of the Department of State, 56

Fed. Reg. 7071 (Feb. 21, 1991), proposed the language which

eventually amended 22 C.F.R. § 171.32(h) so that it now

includes the OIG's records as part of that Section’s second

category. These records are referred to as the "Records of

the Inspector General and Automated Individual Cross-

Reference System, STATE-53."

The last page of this Notice reads as follows:

Systems exempted from certain

provisions of the act:

Certain records

contained within this system of

records may be exempted from

the requirements of any part of

the Act [except requirements

not applicable to this case] fo

the extent necessary to protect

properly classified information

and to assure effective

completion of the investigative

and judicial processes. See 22

C.F.R. § 171.32. (Emphasis

added.)

From this language, and the Notice taken in total, it is

clear that the provision permitting an exemption for the

Inspector General's documents was promulgated

independently from those regarding records originating from

other agencies. It is also clear that the second sentence of

Section 171.32 creates a distinct and separate category of

authorized exemptions, which, as finally issued, limits such

exemptions “to assure the effective completion of the

investigative and judicial process."

C. The Opinion Erroneously

Reads Section 171.32(i) in

Isolation, Thereby Reaching an

Incorrect Interpretation

The Court of Appeals’ opinion relied upon Section

171.32(i) in holding that the OIG records were exempt from

the pertinent disclosure and amendment provisions of Privacy

Act. Specifically, the Court said the following:

The proper section in this case

is 22 C.F.R. § 171.32(i), which

provides that "[rjecords of the

Inspector General" . . . “are

exempted under [the Act] to the

extent authorized and

determined by the agency.”

(Opinion at 7.)

The Court of Appeals erred by effectively reading this

provision as "to the extent authorized [by the agency] and

determined by the agency." As will be demonstrated, the

correct reading is "to the extent authorized [by statute] and

determined by the agency." Once this interpretation is

understood, the reasons why the records at issue are not

exempt become clear.

Before beginning this analysis, it is valuable to

recognize two important principals of statutory construction:

(1) force should be given to every word or clause of a

legislative enactment. United States v. Mensche, 348 U.S.

528 (1955); U.S. Army Engineering Center v. Federal Labor

Relations Authority, 762 F.2d 4099 (4th Cir. 1985); and (2)

each part of a statute must be construed with every other part

so to produce a "harmonious whole." Jn re Public National

Bank of New York, 278 U.S. 555 (1928); see also Smith v.

United States, 508 U.S. 223, 113 S.Ct. 2050 (1993).

In order to give force to the second sentence of

Section 171.32(h), the interpretation of Section 171.32(i)

must be modified from that put forth by the Court on, page

seven of its opinion in the manner proposed by Mr.

Seldowitz. If such a modification is not made, the second

sentence of Section 171.32(h) has no meaning.

Mr. Seldowitz’ analysis of Section 171.32(i) begins by

focusing on the word "authorized." This word first appears

in the regulation in the introductory paragraph of the

regulation, which states: "The following exemptions are

authorized under authorized under 5 U.S.C. § 552a(j) and (k):

As can be seen, a colon appears after the citation to

the Privacy Act. Following that colon is a list of nine

categories (with subcategories) of documents identified as

"authorized" to be exempt. They are labeled Sections

171.32(a) through (h). It should be noted at this point that

Sections 171.32(a) through (g) end with semicolons, while

Section 171.32(h) ends with a period. Mr. Seldowitz' analysis

is that Sections (a) through (h) describe documents which are

authorized to be exempted, but are not yet exempted. This

analysis is based upon the plain language of the regulation.

In contrast, the. remaining three sections of the

regulation, Sections 171.32(i) through (k), each end with a

period. A careful reading of Sections (j) and (k) show that

each expressly, and independently, exempts records: each

reads, "Portions of the following systems of records are

exempted from [specified provisions of the Privacy Act]."

(Emphasis added.) Nowhere in Sections (a) through (h) can

be found the words "are exempted."

Section 171.32(i) is different.’ Like Sections (j) and

(k), it expresses a means for the exemption of records.

' The full, pertinent text of Section 171.32(i) is:

However, unlike Sections (j) and (k), its exemption-provision

is limited. By its express language, it merely specifies

whether, or how, “portions” of a category of records already

authorized in subsections (a) through (h), can be made

exempt by agency action. It does not take such action itself;

therefore, it does not exempt any records within or outside

the categories described.

D. The Controlling Regulation Issued by the

Office of Management and Budget Supports

| Mr. Seldowitz’ Reading of Section 171.32(i)

Mr. Seldowitz’ interpretation receives conclusive

support when the language of 22 C.F.R. Section 171.32 is

read in the context of the rulemaking which occurred shortly

after the Privacy Act was enacted.

The original version of the 22 C.F.R. § 171.32 was

first proposed in 1975, at 40 Fed. Reg. 40456 (September 2,

1975) and was promulgated as 22 C.F.R. §6a.6.

OMB was given authority under the Privacy Act to

issue guidelines and regulations controlling other federal

agencies’ rulemaking in the implementation of the Act. 5

U.S.C. £352a(v). "As a general rule, the OMB Guidelines

are entitled to the deference usually accorded the

interpretation of the agency that has been charged with the

administration of a statute." FREEDOM OF INFORMATION ACT

Guipe & PRIVACY ACT OVERVIEW at 620 (U.S. Dept. of

Justice ed. Sept. 1998); see Quinn v. Stone, 978 F.2d 126,

133 (3d Cir. 1992); Baker v. Department of the Navy, 814

F.2d 1381, 1383 (9th Cir. 1987); Perry v. FBI, 759 F.2d

Portions of the following systems of records are

exempted from 5 U.S.C. 552a(j) to the extent

authorized and determined by the agency originating

the records. The names of the systems correspond to

those published in the FEDERAL REGISTER by the

Department.

1271, 1276 n.7 (7th Cir. 1985); Smiertka v. United States

Dep't of the Treasury, 604 F.2d 698, 703 n.12 (D.C. Cir.

1979).

The promulgation of 22 C.F.R. §6a.6 followed by

three months the issuance of OMB Circular A-108, 40 Fed.

Reg. 28948 (July 9, 1975). This Circular applies generally to

“Federal agencies” that collect “personal information about

individuals.” 40 Fed. Reg. 28948. It applies to all agencies

subject to the Privacy Act. Jd. The broad implications and

scope of the Circular are clearly stated: “Each agency head

shall establish and maintain procedures, consistent with the

Act, OMB guidelines, and related directives issued pursuant

to this Circular . . . .” Jd. (emphasis added.)

By misinterpreting 22 C.F.R. § 171.32(h), the Court

of Appeals bypasses the requirements of the OMB Circular,

which applies to these records and to records collected and

maintained by numerous federal agencies under the Privacy

Act. By failing to consider the requirements of the Circular,

the Court of Appeals renders the regulations moot.

As provided by that Circular:

In applying any of {the (j) and (k)

exemption provisions at issue in this case], it

is important to recognize the following:

No system of records is

automatically exempt from any

provision of this Act. To

obtain an exemption for a

system from any requirement

of the Act, the head of the

agency that maintains the

system must make a

determination that the system

falls within one of the

categories of system which are

permitted to be exempted, and

publish the determination as a~

rule in accordance with the

requirements . . . of the

Administrative Procedure Act.

That notice must include the

specific provisions from which

the system is proposed to be

exempted and why the agency

considers the exemption

necessary. 40 Fed. Reg. 28971

(July 9, 1975) (emphasis

added).

The Circular continues as follows: <

[A]n agency head is authorized. but not

required, to exempt a system from all or any

portion of selected provisions of the Act... .

In commenting on this provision, the House

Committee noted:

[W]e urge [the C.LA. and

criminal justice agencies] to

keep open whatever files are

presently open and to make

available in the future whatever

files can be made available

without clearly infringing on

the ability of the agencies to

fulfill their missions. (HOUSE

REPORT 93-1416, p. 19.) Jd.

Taking OMB's requirements into account, and reading

the 1975 rulemaking of the Department of State in the

context of the 1975 OMB Circular, the following becomes

clear: Sections 171.32(a) through (h) merely set forth those

categories of records maintained by agencies within the State

Department which the DOS has found are authorized by the

Act to be exempted if appropriate action is taken by the heads

of those agencies maintaining the records. The next step, so-

far left undone by the OIG, is for the head of the OIG to

make a determination that some of those records within its

control should be exempted, and for the OIG to implement

this determination with further rulemaking.”

The fact that no such rulemaking has ever been

forthcoming by the OIG is sufficient to overturn the Court of

Appeals’ opinion on this point. However, this is not the only

basis for such a decision. As argued by Mr. Seldowitz in the

court, the authorization to exempt portions of the pertinent

records by the OIG is expressly limited to that specified in

Section 171.32(h), that is, "to the extent necessary to assure

effective completion of the investigative and judicial

processes."

Since the investigation of Mr. Seldowitz ended in

1995, and no judicial proceeding based on that investigation

ever commenced, the Privacy Act exemption relied upon by

the OIG for refusing to correct Mr. Seldowitz' records is not

applicable.

? In this regard, it is pertinent to note that Section 171.32(h) and

56 Fed. Reg. 7071 speak in terms of the permissive, e.g., they say that

records "may" be exempted. They do not say that records "are" exempted

by action of the regulation. Further action is clearly contemplated for any

claimed exemption to be made effective.

Il.

THE COURT’S OPINION FAILS TO APPLY THE

REQUIREMENT THAT THE REGULATION OR

OTHER RULE SETTING FORTH A PRIVACY ACT

EXEMPTION MUST STATE THE REASON FOR THE

EXEMPTION

For an exemption to apply, "[T]he promulgated rules

must state ‘why the system of records is to be exempted.”

Opinion, p. 6, citing 5 U.S.C. § 552a(j), (f); and Ryan v.

Department of Justice, 595 F.2d 954, 957 (4th Cir. 1979).

As already discussed, an agency cannot simply, and

in an ad hoc fashion, claim exemptions from the Privacy Act.

Instead, it must claim exemptions only as to specific

categories of records authorized by the Act; it must do so by

a rule or regulation; and, in such rule or regulation, expressly

set forth the rationale for claiming any exemptions. This last

requirement has been previously explained by the Fourth

Circuit in Ryan, 595 F.2d at 957, and hereafter will be

referred to as "the Ryan requirement.”

A. The Court's Initial Opinion Fails to Identify How the

OIG's Cuuim of an Exemption Satisfies the Ryan Requirement

In granting summary judgment against Mr. Seldowitz,

the District Court held that the rationale for the exemption it

found in Section 171.32(i) was the following language in

Section 171.32(h): "to the extent necessary to assure the

effective completion of the investigatory and judicial

process.”

The Court of Appeals rejected the District Court's

interpretation. In the initial Opinion, the Court of Appeals

said that Section 171.32(h) applies only to "“{rjecords

Originated by another agency when that agency has

determined that the record is exempt” under 5 U.S.C. § 552a.

If this analysis is correct, then Section 171.32(h)'s reference

to the proper completion of the investigative and judicial

process is inapplicable to the OJG's internal records,

including the OIG's investigative records which Mr.

Seldowitz seeks to amend.

There is no other provision in the regulation, or the

rulemaking which promulgated the regulation, which satisfies

the Ryan requirement; and nowhere in the Opinion does the

Court of Appeals point to or provide any explanation as to

how Section 171.32(i) complies with the Ryan requirement.

For these reasons, the Opinion must be judged

internally incomplete; and, because the Opinion fails to

properly analyze Section 171.32(i), it never addresses

whether the second sentence of Section 171.32(h) is a

rationale (as proposed by the district court), or is, instead,

language of limitation (as explained by Mr. Seldowitz). For

this reason, Mr. Seldowitz requests that this Court grant

certiorari to address this matter.

B. No Rational Has Been

Published by the OIG Which

Satisfies the Ryan Requirement

Mr. Seldowitz also rejects the Court of Appeals’

interpretation of the language found in Section 171.32(h) as

being a rationale for an exemption. For the reasons discussed

in detail in Point I, above, the second sentence of Section

171.32(h) is clearly and simply a limitation placed by DOS

on records authorized to be exempted under the Act.

In this Petition for Writ of Certiorari, Mr. Seldowitz

has examined in detail the history of the exemption found at

22 C.F.R. § 171.32(i), including the rulemaking which led to

this exemption. That history will not be repeated in its

entirety here. Suffice it to say that nowhere has the OIG

published an explanation for the exemption it claims is found

at 22 C.F.R. § 171.32(i).

IIT.

WHETHER THE COURT OF APPEALS

ERRED IN FAILING TO APPLY THE

STANDARD THAT WHEN THE

GCVERNMENT ENGAGES IN

DECEPTION, THE PRIVACY ACT'S

STATUTE OF LIMITATIONS BEGINS

TO RUN ONLY WHEN THE PLAINTIFF

HAS ACTUAL, NOT CONSTRUCTIVE

OR SUGGESTIVE, KNOWLEDGE OF

THE VIOLATION

The Privacy Act has a two-year statute of limitations.

5 U.S.C. § 552a(g)(5). Under normal circumstances, this

time period is not held to begin running until the "plaintiff

knows or should have known of the alleged violation."

Tijerina v. Walters, 821-F.2d 789, 798 (D.C. Cir. 1987).

However, the Privacy Act also has a provision that

delays the start of the running of the statute of limitations

(hereinafter "the delaying provision"), which reads as

follows:

An action to enforce any liability

under this section may be brought . . . 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. 5

U.S.C. § 552a(g\5).

There is a split between the Circuits as to what

standard applies to commence the running of the statutes of

limitations under this provision. The United States Court of

Appeals for the District of Columbia Circuit has interpreted

this provision as requiring that a plaintiff must have "actual

knowledge" of the misrepresentation before the statute of

limitations begins to run. Specifically, that court has

explained the tolling provision as follows:

[The delaying provision} extends the

normal limitations period in order to insure

that the government cannot escape liability by

purposely misrepresenting information that

could establish it has already violated the Act.

[Citation omitted.] In such cases, the Act

allows the period to commence upon actual

discovery of the misrepresentation, whereas

our holding today is that for other actions

under the Act, the period begins when the

plaintiff knew or should have known of the

violation. Our holding thus in no way affects

the special treatment Congress pro.ided for

the particularly egregious cases of government

misconduct singled out in the Act's statute of

limitations.

Tijerina, 821 F.2d at 798.

The District of Columbia Court of Appeal’s

interpretation is in conflict with that of the Court of Appeals

for the Seventh Circuit. That court has held that the standard

for the commencing the statute of limitations under the same

provision is “when the plaintiff first knew or had reason to

know of an error in maintaining his records.” Dilberti v.

United States of America, 817 F.2d 1259, 1262 n.1 (7" Cir.

1987).

Mr. Seldowitz’ complaint alleges that the OIG

misrepresented information. Specifically, the complaint

alleges that the OIG (1) willfully compiled an inaccurate and

incomplete record of his voucher for use in an OIG

investigation, and threatened civil prosecution based upon

that record; and (2) willfully misrepresented that record to

Mr. Seldowitz, that is, provided false information to Mr.

Seldowitz during settlement discussions, thereby covering-up

these facts. The complaint also alleges that Mr. Seldowitz did

not obtain actual knowledge of these misrepresentations until

on or after April 17, 1996. (Appendix.)

The instant lawsuit was commenced on April 9, 1998,

within the two-year statute of limitations. The Court of

Appeals agreement with the District Court that the suit was

filed outside of the statute of limitations is, for this reason, in

error. Opinion, p. 6 — 8.

The word “actual”. means "something actually

received or at hand . . . as distinct from estimated or expected

___" WeBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

22 (ed. 1966). ‘

Presented to the Court of Appeals were affidavits of

Stuart Seldowitz, (Appendix), and attorney Ralph D. Martin,

(Append’x), who represented Mr. Seldowiiz during the FCA

negotiations with the government. Taken together, these

affidavits provide a factual basis that Mr. Seldowitz did not

have actual knowledge of the OIG’s compilation of a false

voucher record, and the misrepresentation of that record, until

after he compared the voucher documents maintained by the

National Finance Center with those provided to the US.

Attorney's Office by the OIG. They further establish that Mr.

Seldowitz did not make the necessary comparison until after

Mr. Martin transmitted the OIG records to Mr. Seldowitz on

or after April 17, 1996.

Put simply, Mr. Seldowitz was fooled by the OIG, a

law enforcement agency in which he was entitled to place his

trust and did not discover what the OIG had done until April

17, 1996.

The Court of Appeals committed two errors in its

Opinion. The first was to cite Tijerina’s holding that the

statute of limitations generally begins to run when a plaintiff

“should have known" of the violation, while bypassing its

articulation of a more lenient standard when government

misrepresentation is involved. Opinion, p. 7 — 8.

The Court of Appeal’s second error was to rely upon

Bowyer v. U.S. Dept. of Air Force, 875 F.2d 632 (7th Cir.

1989), cert. den., 493 U.S. 1046 (1990), without closely

examining the differences in the facts of that case from those

at bar, in holding that it was not necessary for Mr. Seldowitz

tobe able to make a physical comparison of (1) the sets of

receipts shown to him by the OIG during a meeting at the

U.S. Attorney’s Office with (2) that set of receipts submitted

by Mr. Seldowitz, processed by the Department of State and

stored at the National Finance Center, for Mr. Seldowitz to

have knowledge of the government's error. Opinion, p. 8.

In Bowyer, the plaintiff had access to the records at a

relevant time; discussed their existence with his lawyer; made

a false statement to the trial court that he lacked knowledge

of the records' existence; and relied, for the

"misrepresentation" upon a fairly innocuous statement that a

supervisor did not keep files on temporary employees. /d. at

636-37. In summary, Bowyer failed to make a sufficient

showing that the misrepresentations in his case caused

material delay towards actual discovery of the existence of

the inaccurate records. In contrast, Mr. Seldowitz was shown

false documents by an AUSA under threat of a civil

prosecution of himself and his wife. Furthermore, he had no

knowledge that a law enforcement agency had compiled

records from sources other than the accurate source of those

records and, having instead constructed an incomplete and

inaccurate voucher, that the OIG had incorrectly attributed

that false voucher to him. Given the same facts, the Bowyer

court would very likely subscribe to the actual knowledge

doctrine espoused by the District of Columbia Circuit. See

Bowyer, 875 F. 2d at 637 n. 4.

The Opinion offers no explanation as to how Mr.

Seldowitz can be held to have had actual knowledge of the

government’s misrepresentation when the United States

government had expressly told Mr. Seldowitz his recollection

was completely in error and a federal attorney and agents had

concurrently put before Mr. Seldowitz as unquestionable

evidence of his false memory what was, in fact, a false

receipt or an altered receipt materially different from that

which Mr. Seldowitz had submitted to the State Department.

Mr. Seldowitz’ position, as set forth in his affidavit, was that

he accepted the government's representation as correct and

therefore had no knowledge of the government’s

misrepresentation until he could compare the two sets of

receipts. Without contradictory evidence, of which none was

offered, Mr. Seldowitz’ position was to be taken as true for

purposes of the motion for summary judgment. The Court of

Appeals therefore cannot properly have held that Mr.

Seldowitz had actual knowledge of the government’s

misrepresentation at the time it attributed that knowledge to

him. By disregarding Mr. Seldowitz affirmed reliance on the

principle that the government was telling him the truth, in

deciding this issue as a matter of summary judgment the

Court of Appeals, in fact, applied the “should have known”

standard adopted by the Seventh Circuit in Dilberti. The

Court is therefore in direct conflict with the District of

Columbia Circuit as to the standard to be applied in cases

under the Privacy Act where there is an alleged

misrepresentation by the government.

To hold that “discovery” of the government's

misrepresentation occurs when an individual did not yet

discover the misrepresentation, but rather only should have

known of the misrepresentation goes against Congress’ intent

and the clear language of the Act. Such a premature

commencement of the running of the statute of limitations

would have the broad policy effect of denying many

individuals the right expressly granted to them by Congress

to employ the Privacy Act to seek justice by amending an

erroneous or incomplete record regarding that individual.

For these reasons, petitioner respectfully requests that this

Court review and corect the standard applied by the Courts of

Appeals of the Fourth and Seventh Circuits and instead

affirm that standard set forth by the District of Columbia

Circuit.

CONCLUSION

For all the reasons stated, Petitioner, Stuart M. Seldowitz

asks that this Court grant a Writ of Certiorari to review the

ecision of the United States Court of Appeals for the Fourth

Circuit.

Respectfully Submitted,

WILLIAM M. PALMER

60 State Street; Suite 700

Boston, Massachusetts 02109

Telephone: (617) 878-2120

Counsel for Appellant,

Stuart M. Seldowitz

No. 00-1142

UNITED STATES COURT OF

APPEALS FOR THE FOURTH

CIRCUIT

September 25, 2000, Argued

November i 3, 2000, Decided

STUART M. SELDOWITZ,

Plaintiff-Appellant,

THE OFFICE OF THE

INSPECTOR GENERAL, U. S.

Department of State, Defendant-

Appellee.

COUNSEL:

ARGUED: Andrew Grosso, Washington, D.C., for

Appellant.

Jeri Kaylene Somers, Assistant United States Attorney,

Alexandria, Virginia, for Appellee.

ON BRIEF: William M. Palmer, Washington, D.C., for

Appellant.

Helen F. Fahey, United States Attorney, Alexandria,

Virginia, for Appellee.

JUDGES:

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

OPINION:

PER CURIAM:

Stuart M. Seldowitz appeals the district court's order

dismissing as barred by the statute of limitations Counts One

and Two of his Privacy Act claim, and the district court's

order granting summary judgment to the government on

Count Three. We affirm in part, reverse in part, and remand.

The facts, viewed in the light most favorable to

Seldowitz, are as follows. Seldowitz, a career foreign service

officer, was assigned in 1989 to the Office of Strategic

Nuclear Policy. In this capacity, Seldowitz served on the

United States delegation to the Nuclear Space Talks in

Geneva, Switzerland. Seldowitz's wife, Rosalinda, also

traveled to Geneva, serving as the secretary to a deputy

negotiator. Seldowitz received per diem paid by the Bureau

of Political/Military Affairs, and his wife received per diem

paid by the Arms Control Agency.

The Seldowitzes rented a private apartment in Geneva,

and each obtained a separate receipt from the landlady.

Because the receipts reflected the entire amount of rent,

Seldowitz crossed out the number of Swiss Francs paid and

wrote in half the amount. After submitting the receipts,

Seldowitz was told by an administrator in the Bureau of

Political/Military Affairs not to annotate the receipts because

the per diem amount was not contingent on how much

Seldowitz paid for lodging. After this conversation,

Seldowitz did not annotate future receipts. However,

Seldowitz does not dispute that the entire amount of the

rental appeared on the travel voucher which he signed.n1

In 1990, the Office of Audits of the State Department's

Inspector General reviewed the travel vouchers of the Geneva

delegation. Based on this audit, the Office of the Inspector

General (OIG) investigated Seldowitz for submitting a false

claim against the United States as a result of amounts claimed

on his travel voucher. The findings of the investigation were

turned over to the United States Attorney's Office for the

Eastern District of Virginia. In 1995, the United States

Attorney informed Seldowitz that he was contemplating a

civil prosecution under the False Clairus Act, see 31 U.S.C.A.

§ § 3729-33 (West 1983 & Supp. 2000), based on a report

prepared by the OIG.

Seldowitz then met with officials from the State

Department, the OIG, and the United States Attorney's Office

to discuss the possible civil prosecution. During the meeting

Seldowitz mentioned that he had annotated the first housing

receipts to show only half of the housing expenses, and an

AUSA then showed him allegedly the same receipts from the

OIG's files which did not reflect any annotation. Shortly

thereafter, Seldowitz entered into a settlement agreement

with the government in which he agreed to pay restitution of

$ 15,000.

Seldowitz later requested copies of his travel vouchers

from the National Finance Center and he received the copies

in October 1995. Included in the packet from the National

Finance Center were annotated receipts showing half the

amount of rent. Seldowitz also requested in the fall of 1995

that his attorney obtain copies of the OIG voucher

documents, including the receipts showing no annotations.

Seldowitz received these materials on April 17, 1996, and for

the first time made a side-by-side comparison of the

annotated and unannotated receipts.

In March 1998, Seldowitz requested pursuant to the

Privacy Act, see 5 U.S.C.A. § 552a (West 1996 & Supp.

2000), that the State Department's records "be amended in

order to accurately reflect that Mr. Seldowitz properly

followed all Department procedures when submitting his

voucher requests." J.A. 218. The Office of Information

Resources Management responded that it would be improper

to consider amending records because the Integrity

Committee of the President's Council on Integrity and

Efficiency was investigating a complaint filed by Seldowitz

regarding the OIG investigation. Seldowitz appealed this

decision, and an appeals officer affirmed that the proper

course was to suspend action pending completion of the

Integrity Committee's investigation.

On April 9, 1998, Seldowitz filed a complaint in the

United States District Court for the District of Columbia, and

amended the complaint on August 13, 1998. The case was

transferred to the United States District Court for the castern

District of Virginia on June 30, 1999. Count One alleged that

the State Department failed to maintain accurate records in

violation of 5 U.S.C.A. § 552a(g)(1)(C), (4). Count Two

alleged that the State Department wrongfully threatened a

False Claims Act prosecution and coerced a settlement in

violation of 5 U.S.C.A. § 552a(g)(1)(D), (4). Count Three

alleged improper refusal to amend records in violation of 5

U.S.C.A. § 552a(g)(1)(A). The district court dismissed

Counts One and Two on statute of limitations grounds, and

later granted summary judgment in favor of the government

on Count Three. Seldowitz appeals.

Il.

Seldowitz challenges the district court's dismissal of

Counts One and Two of the complaint as time barred. Under

Counts One and Two Seldowitz alleged that the government

violated provisions of the Privacy Act, which require

agencies to keep accurate records "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.” 5

U.S.C.A. § 552a(g)(1)(C). Suit must be brought "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." 5 U.S.C.A. § 552a(g)\5).

Seldowitz acknowledges that on June 15, 1995, an AUSA

Showed him two unannotated receipts relating to the May

1990 voucher, and that he received copies of his annotated

vouchers from the National Finance Center on October 5,

1995. However, Seldowitz uid not file his original complaint

until April 9, 1998--more than two and one half years after he

had been shown the unannotated receipts during the meeting

with the AUSA

Seldowitz argues that the misrepresentation exception

applies because he did not obtain a copy of the unannotated

receipts shown to him by the AUSA until April 17, 1996,

when his attorney forwarded copies to him. In support of his

position, Seldowitz points the court to Tijerina v. Walters,

261 U.S. App. D.C. 301, 821 F.2d 789 (D.C. Cir. 1987). In

Tijerina, the Veteran's Administration Office of the Inspector

General on July 19, 1982, disclosed to the Texas Board of

Bar Examiners that Tijerina had falsified 2 loan application

but that he had not been prosecuted because the government

had not sustained a loss. See 821 F.2d at 792. Tijerina did not

discover the OIG disclosure until October 1983, and he

disputed the OIG's reason for failing to prosecute him.

Tijerina filed suit against the OIG under the Privacy Act on

July 30, 1984, but the district court dismissed the claim

because the statute of limitations, according to the district

court, began to run on July 19, 1982--the date of the

communication to the bar examiners. The District of

Columbia Circuit reversed, holding that the statute of

limitations did not begin to run until Tijerina knew or should

have known of the OIG's July 1982 letter, which was October

1983. See id. at 798.

We believe that Tijerina supports the district court's

statute of limitations analysis. In the present case, Seldowitz

was aware of the alleged inaccuracies when the AUSA

showed him the unannotated receipts on June 15, 1995. At

that point, consistent with Tijerina, the statute of limitations

began to run. Seldowitz had actual knowledge of the alleged

error, and the fact that he did not make a physical comparison

of the two sets of receipts until April 17, 1996, makes no

difference. See Bowyer v. United States Dep't of Air Force,

875 F.2d 632, 637 n.4 (7th Cir. 1989) (rejecting the argument

that a plaintiff must have actual possession of all relevant

documents before the limitations period begins to run).

Accordingly, the district court correctly concluded that

Counts One and Two are barred by the statute of limitations.

Under the Privacy Act, an _ individual alleging

inaccuracies in agency records may "request amendment of a

record pertaining to him." 5 U.S.C.A. § 552a(d){2).

However, the statute contains general and _ specific

exemptions. The general exemption provision provides that

"an agency or component thereof which performs as its

principal function any activity pertaining to the enforcement

of criminal laws" may adopt rules exempting records from

the § 552a(d) access and amendment provisions. 5 U.S.C.A.

§ 552a(j)(2). The specific exemption provision provides that

an agency may issue rules exempting "investigatory material

compiled for law enforcement purposes, other than material

within the scope of subsection (j(2)." 5 U.S.C.A. §

§52a(k)(2). Under both the general and specific exemptions,

the promulgated rules must state "why the system of records

is to be exempted.” 5 U.S.C.A. § 552a(j), (k); see also Ryan

v. Department of Justice, 595 F.2d 954, 957 (4th Cir. 1979)

(explaining what procedures an agency must take to exempt

records under the Privacy Act).

The first set of records Seldowitz seeks changes to under

Count Three of the complaint are the OIG records compiled

while OIG was investigating Seldowitz for a possible False

Claims Act violation. The OIG believed that Seldowitz and

his wife "submitted duplicate and altered receipts fer lodging

expenses and thus acted with reckless disregard for the truth

or falsity of the information they were providing to the

United States." J.A. 121. Although an AUSA later made a

decision to pursue a civil prosecution, it appears clear that the

OIG investigators contemplated a possible criminal

prosecution. Seldowitz does not dispute that the OIG's

principal function is law enforcement or that the OIG's

records in question were related to the False Claims Act

investigation. Pointing to 22 C.F.R. § 171.32¢h) (2000),

Seldowitz argues that records of investigations are no longer

exempted after "completion of the investigative and judicial

processes." n2 And because his case has long been closed,

Seldowitz believes that the records in question are no longer

shielded from the Privacy Act. We disagree.

Section 171.32(h) applies only to “records originated by

another agency when that agency has determined that the

record is exempt” under 5 U.S.C. § 552a. Accordingly, the

language of § 171.32(h) making reference to the completion

of the investigative and judicial process is inapplicable. The

proper section in this case is 22 C.F.R. § 171.32(i), which

provides that "records of the Inspector General" "are

exempted under 5 U.S.C. § 552a(j) to the extent authorized

and determined by the agency." The OIG records fall

squarely within the general exemption which permits

exclusion of records “pertaining to the enforcement of

criminal laws," 5 U.S.C.A. § 552a(jX2), and the OIG has

properly exempted the investigatory records. Consequently,

the district court did not err in granting summary judgment to

the OIG as to its records of the False Claims Act

investigation.

The second set of records Seldowitz seeks amendments to

are the records compiled by the OIG Office of Audits. These

records were compiled in Geneva, and, as a result of the

audit, thirty-two cases of suspected travel voucher fraud were

referred to OIG investigators for further review. Seldowitz

describes these records as compiled for administrative and

fiscal purposes, and argues that they are not covered by either

the general or specific exemptions of 5 U.S.C.A. § 552a.

Again, we disagree.

Even if we assume that Seldowitz is correct that the

principal function of the audit department does not "pertain{ ]

to the enforcernent of criminal laws," and therefore the

general exemption does not apply, Seldowitz cannot escape §

§52a(k(2) which permits exemption of "investigatory

material compiled for law enforcement purposes, other than

material within the scope of subsection (j)(2)." 5 U.S.C.A. §

§52a(k)(2); see also Strang v. United States Arms Control &

Disarmament Agency, 275 U.S. App. D.C. 37, 864 F.2d 859,

862 (D.C. Cir. 1989) (giving broad construction to term "law

enforcement" as used in § 552a(k)(2)). Without question, the

audit records were compiled with an eye towards possible

prosecutions of travel voucher fraud, and OIG officers

eventually opened ten investigations. As required, 22 C.F.R.

§ 171.32(b) makes specific mention of "invesitgatory

material compiled for law enforcement purposesj } other than

material within the scope of 5 U.S.C. 552a(j)(2),”" and we can

discern no limitation in the regulations on this exemption.

Hence, the district court did not err in granting summary

judgment as to the audit records.

The final set of records Seldowitz seeks changes to are

the OIG internal review records responding to allegations of

OIG misconduct regarding its investigation of the Geneva

delegation's travel vouchers. The internal review was not

undertaken "to assess the guilt or innocence” of the

employees who had complained about the OIG's handling of

the voucher investigation, J.A. 133, but rather was

commenced to determine whether the OIG's investigators

should adopt additional procedures to ensure impartiality.

The. result of the internal review was a number of

recommendations ranging from continuing education for

investigators to delinking career advancement with

prosecutorial results.

Unlike the other two sets of records considered, the

internal review records have no connection to law

enforcement purposes. The internal review was simply meant

to streamline procedures and to reform investigative

techniques which had led to much hostility between OIG

officials and members of the arms control delegation.

Accordingly, neither the general or specific exemption is

applicable.

The exemptions aside, the government argues that the

internal review records are not retrievable by name, and

therefore are not covered by the Privacy Act. See 5 U.S.C.A.

§ 552a(aX(4), (5) (specifying that records covered by the

Privacy Act must be retrievable by some "identifying

particular assigned to the individual"). In support of this

contention, the government offers two affidavits from OIG

officials. At appellate argument, the government suggested

that these affidavits were presumptively correct and that

Seldowitz was not entitled to discovery. In fact, the

government instructed its witnesses not to appear for

depositions which would have addressed this issue. We

cannot agree with the government that Seldowitz was not

entitled to discovery on this matter and that summary

judgment was properly decided based upon the affidavits.

Federal Rule of Civil Procedure 26(b)(1), in pertinent

part, provides that "parties may obtain discovery regarding

any matter, not privileged, which is relevant to the subject

matter involved in the pending ‘action." See also Ralston

Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977)

(noting that "the broad scope of discovery is evident in Rule

10a

26(b)(1)"). Discovery concerning the records in question will

likely resolve whether the records are retrievable within the

meaning of the Privacy Act. Seldowitz should not be furced

in a situation like this to accept from a government official an

affidavit stating that the records have no_ identifying

particular assigned to Seldowitz. n3 Hence, the district court

erred in granting summary judgment as to the internal review

records. n4

IV.

For the foregoing reasons, we affirm the district court's

dismissal of Counts One and Two. We also affirm the grant

of summary judgment as to the audit records and the records

of the investigation. However, we reverse the grant of

summary judgment on the internal records and remand for

discovery.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED

nl Based on the record before us, it is unclear whether

Seldowitz was on a strict per diem or whether the amount he

received was contingent on his expenses.

n2 Section 171.32(h) exempts the following:

Records originated by another agency when that agency has

determined that the record is exempt under [ 5 U.S.C. §

552a(j)]. Also, pursuant to Section (j)(2) of the Act, records

compiled by the Special Assignment Staff, the Command

Center, and the Passport and Visa Fraud Branch of the Office

of Security and by the Inspector General may be exempted

from the requirements of any part of the Act except

lla

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

(7), (9), (10), and (11), and (i) to the extent necessary to

assure the effective completion of the investigative and

judicial processes.

n3 The government at appellate argument also represented

that the internal review records sought by Seldowitz were

destroyed in January 1998. Again, this is a matter for

discovery, and Seidowitz is not required to simply accept an

affidavit from a government official stating that the records

no longer exist.

n4 Seldowitz also argues that the exemptions must be

asserted at the administrative level and may not be asserted in

the course of judicial proceedings. We reject this argument.

In similar cases we have held that an agency does not waive

exemptions "by not raising them during the administrative

process." Young v. CIA, 972 F.2d 536, 538 (4th Cir. 1992)

(dealing with FOIA exemptions).

12a

CIVIL ACTION No. 99-1031

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA ALEXANDRIA DIVISION

STUART M. SELDOWITZ,

Plaintiff,

Vv.

THE OFFICE OF THE

INSPECTOR GENERAL, U. S.

Department of State,

Defendant.

October 29, 1999

ORDER

THIS mutter is before the Court on defendant’s Motion to

Dismiss. For the reasons stated below and in open court,

defendant’s Motion to Dismiss is GRANTED as to Counts |

and II, but DENIED as to Count III.

l. On a rule 12(b) (6) motion to dismiss, the factual

allegations of the complaint must be accepted as true, and the

complaint and its allegations considered in light most

favorable to the non-moving party. See Mylan Lab. Inc. v.

Matkari, 7 F.3d 1130 (4th Cir. 1993)

a Pursuant to Rule 12(b) (1), a claim may be dismissed

for lack of subject matter jurisdiction. Where subject matter

jurisdiction is challenged, the factual allegations are assumed

true. See Virginia v. United States, 926 F. Supp.

13a

537 (E.D. Va. 1995). The court may look beyond the

jurisdictional allegations of the complaint and view whatever

evidence has been submitted on the issue to determine

whether subject matter jurisdiction exists. /d.

3. Defendant asserts that this Court lacks subject matter

jurisdiction because of the release clause in the settlement

agreement and because the claim is time barred. Initially, the

Court will address the statute of limitations issue.

4. As the time limits of the Privacy Act are

jurisdictional, the plaintiff bears the burden of establishing

that they have been met. See Bowyer v. United States

Department of Air Force, 875 F.2d 632, 635 (7th Cir. 1989)

5. The Privacy Act requires governmental agencies tc

maintain accurate records and provides a civil remedy for

violations of the Act. 5 U.S.C. § 552a, (g) (C). The Act sets a

two-year statute of limitations to enforce liability.

An action to enforce any liability created under this section

may be brought in the district court . .. 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.

Id. at § 552a(g) (5) (emphasis added).

6. In the present case, the argument hinges on whether

Defendant’s alleged misrepresentations tolled the period and

when Plaintiff discovered the misrepresentation.

l4a

4 While the Fourth Circuit has not ruled on the issue,

the Seventh Circuit has held that despite a material and

willful misrepresentation the focus should still be on when

the plaintiff knew or had reason to know of an error in

maintaining the records. See Bowyer, 875 F.2d at 637. The

Court found that this test incorporates the willful

representation provision. /d.

8. Plaintiff relies on Tijernia v. Walters, 821 F.2d 789

(D.D.C. 1987) . In dictum, the court stated that a willful

misrepresentation extended the normal limitations period

until actual discovery of the misrepresentation. Jd. at 798.

The court reasoned that the extension would prevent the

government from escaping liability where it purposefully

misrepresented information that could establish it already had

violated the Act. /d.

9. However, under both the Bowyer and Tijerina

analysis, the limitations period lapsed prior to Plaintiff

bringing this suit.

10. The gravemen of Plaintiffs Amended Complaint is

that as a result of inaccurate and incomplete information

contained in the government files, he suffered the adverse

decision of the Office of Inspector General (“OIG”) of the

United States Department of State. The OIG referred the

matter of his request for expense reimbursement as a False

Claim Act allegation to the United States Attorney’s Office.

The Complaint alleges that the agency provided unannotated

receipts (reflecting the full amount of the rent) to the U.S.

Attorney’s Office while Plaintiff had turned in annotated

receipts (reflecting only a portion of the rent). The United

_ States Attorney’s Office threatened a False Claim Act lawsuit

against Plaintiff and presented him with the unannotated

vouchers. Plaintiff considered these records and decided to

enter into a compromise settlement of the False Claims Act

15a

suit, whereby Plaintiff agreed to pay $15,000 to the

government. Plaintiff also expended $5,000 in attorney’s fees

and cost. While these are serious allegations against the

government requiring deliberate consideration, Plaintiff's

claim rriust fail under the Privacy Act because it was not

commenced within the statutory limitations period.

11. Plaintiff admits that he was shown a copy of the

unannotated records in June 1995. See Amended Complaint,

{| 26, 28. He acknowledges that he received a copy of the

annotated vouchers from the National Finance Center in

October 5, 1995. Id. at J 36. The Amended Complaint also

alleges that “upon receiving the above described voucher

with attachments, Mr. Seldowitz became aware that the U.S.

Attorney’s Office had possession of incorrect records

unannotated rental receipts.” /d. at § 37. These alleged facts

reflect Plaintiff's knowledge of inaccurate records as of

October 1995 when he knew that unannotated and annotated

receipts existed.

12. Plaintiff focuses on the fact that on September 25,

1995, he requested that his then-attorney give him a copy of

the vouchers provided by OIG to the U.S. Attorney’s Office.

Id at § 38. His attorney received a copy of the voucher record

from the government in September 1995. The attorney

delayed sending a copy of them to his client until April 1996.

The law presumes Plaintiff had an awareness of his claims

through his attorney when the attorney received the record in

September 1995. See Leorna v. United States Dept. of State,

105 F.3d 548, 551 (9th Cir. 1997) (stating that once a

claimant retains counsel, tolling ceases because the plaintiff

has gained the means of knowledge of her rights and can be

charged with constructive knowledge of the law’s

requirements)

13. Even based on the face of the pleadings, Plaintiff had

knowledge of the alleged inaccuracies contained in the

16a

records at least as of October 1995. Plaintiff did not need to

have physical possession of the records that the U.S.

Attorney’s Office received from the OIG. See Bowyer, 875

F.2d at 636. Plaintiff failed to file the Complaint until April

9, 1998 and he did not serve the Complaint until July 1998--

more than two and a half years after he actually knew of the

existence of the allegedly inaccurate records.

14.___ As the action was commenced more than two years

after the cause of action accrued, Counts | and II are

dismissed for lack of subject matter jurisdiction.

15. In light of the foregoing, the issues of the release

clause or fraudulent inducement regarding the release are

moot. Nevertheless, Defendant alleges that the Court lacks

jurisdiction due to the Settlement Agreement which has a

release term. However, subject matter jurisdiction is proper

where there is a federal question or diversity of citizenship.

In this case, the Privacy Act presents a federal question, so

jurisdiction is proper. Furthermore, the matter cannot be

addressed as a 12(b) (6) motion to dismiss as the release

clause was not referenced in the Amended Complaint.

16. Defendant moves to dismiss Count III (alleging that

Defendant refused to amend alleged inaccuracies in the

records) because Plaintiff failed to exhaust administrative

remedies. The exhaustion doctrine does not bar suits for

damages under this Act. See Diederich v. Dept. of the Army,

878 F.2d 646, 648 (2d Cir. 1989) (holding that exhaustion of

administrative remedies was not required where the Army

stalled plaintiff's correction before an appeals board for

several months).

17. An aggrieved individual may seek amendment of

agency records under the Privacy Act. /d. at § 552a(g) (1)

(A). The procedures under subsection (d) (3) require that the

agency completes the review process and makes a

17a

determination within 30 working days after the individual

requests such review, unless for good cause shown. See /d. at

§552a(d) (3).

18. In March 1998, Plaintiff requested an amendment of

his voucher record. In May 1998, Plaintiff repeated his

request. The IRM Programs and Services office notified

Plaintiff that action would not be taken until completion of

the President’s Council on Integrity and Efficiency’s review.

Plaintiff appealed. The Appeals Office of IRM Programs and

Services sent Plaintiff a letter suspending the appeal until

completion of the investigation.

19. Requiring Plaintiff to further exhaust contradicts the

plain language of the statute as well as undercuts Congress’s

clear intent to provide speedy disposition of these claims. See

Diederich, 878 F.2d at 648. The motion to dismiss Count III

is denied.

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

counsel of record.

ENTERED this 29 day of October, 1999.

Gerald Bruce Lee,

United States District Judge

18a

CIVIL ACTION No. 99-1031

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA ALEXANDRIA DIVISION

STUART M. SELDOWITZ,

Plaintiff,

Vv.

THE OFFICE OF THE

INSPECTOR GENERAL, U. S.

Department of State,

Defendant.

December 8, 1999

ORDER

THIS matter is before the Court on Defendant’s Motion to

Dismiss or for Summary Judgment. Plaintiff Stuart M.

Seldowitz filed this Privacy Act action seeking to amend

records of his claims for reimbursement that are contained in

Defendant Office of Inspector General of the U.S.

Department of State ("OIG"). . 5 U.S.C. § 552a(d) (2).

Defendant moves for summary judgment on two theories: 1)

the investigatory records of the OIG are exempt from the

requirements of the Privacy Act under § 552a(j) (2) or (k)

(2); and 2) the settlement agreement entered into between the

parties bars the litigation. For the reasons stated in open court

and below, Defendant’s motion for summary judgment is

GRANTED.

19a

1. Federal Rule of Civil Procedure 56(c) provides that

summary judgment should be granted where there exists “no

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law.” In reviewing the evidence,

the court must view the facts and inferences to be drawn in

the light most favorable to the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574 (1986). Initially, the moving party bears the

responsibility of stating the basis of the motion and

demonstrating the absence of a genuine issue. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rule 56(e)

requires the nonmoving party to go beyond the pleadings, and

by his own affidavits, or by depositions, answers to

interrogatories, and admissions, designate specific facts

showing there is a genuine issue for trial. See id. at 324.

‘a The Privacy Act requires governmental agencies to

maintain accurate records and to safeguard individuals from

capricious dissemination of personal information by the

government. See 5 U.S.C. § 552a. An aggrieved individual

may seek amendment of agency records. See id. § 552a(d)

(2). However, the Privacy Act grants law enforcement

agencies and components thereof authcrity to exempt their

investigatory system of records from subsection (d) (2)

3. Specifically, subsection (j) provides a_ general

exemption. In pertinent part, it states that the head of any

agency may promulgate rules to exempt any system of

records:

maintained by an agency or component thereof which

performs as its principal function any activity pertaining to

the enforcement of criminal laws . . . and which consists of

(B) information compiled for the purpose of a criminal

investigation .

20a

5 U.S.C. § 552a(j) (2)

4. Similarly, subsection (k) provides for specific

exemptions. In pertinent part, subsection (k) (2) states that

the head of any agency may promulgate rules to exempt any

system of records within the agency if the system is

investigatory material compiled for law enforcemmt

purposes, other than material within the scope of subsection

(j\(2) of this section. See § 552a(k)(2).

5. An agency exercising its election to exempt must

promulgate exemption rules and state the reasons why the

systems of records are to be exempted. See 5 U.S.C. §

§52a(j).Consistent with subsections (j) and (k), the

Department of State has promulgated a rule exempting the

systems of records maintained by the OIG from amendment

pursuant to §552a(d) (2) . See 22 C.F.R. 171.32.

6. Two portions of the regulation address the § 552a(j)

(2) exemption of records maintained by the OIG. See id. The

regulation provides “Also, pursuant to Section (j) (2) of the

Act. records compiled . . . by the inspector [sic] General may

be exemr‘ed.” /d. § 171.32(h). Thus, the rile is explicit. The

rule also sets forth the reasons for exemption: such

exemption is allowed to the “extent necessary to assure the

effective completion of the investigative and judicial

processes.” See id.

Additionally, 22 C.F.R. § 171.32(i) states

Portions of the following systems of records are exempted

under 5 U.S.C. [sic] 552a(j) to the extent authorized and

determined by the agency originating the records. The names

of the systems correspond to those published in the Federal

General and Automated Individual Cross-Reference System.

STATE- 53

eee

2la

7. In addition, 22 § C.F.R. 171.32(j) (2) specifically

applies the § 552a(k) (2) exemption to the OIG records.

The reasons for invoking the exemptions are to prevent

individuals the subject of investigation from frustrating the

investigatory process, to insure the integrity of law

enforcement activities, to prevent disclosure of investigative

techniques . .

22 C.F.R. 171.32()) (2).

8. The Court will address the records compiled by the

Office of Inspector General, Office of Investigation

(“OIG/OIV”) which Plaintiff seeks to have the Department of

State amend.

9. In this case, both sides agree that the OIG is an

agency whose principal function is law enforcement. The

OIG is responsible for examining allegations of fraudulent

claims. OIG was investigating Plaintiff for a possible False

Claims Act violation for submitting false claims for expense

reimbursement when Plaintiff was a Siate Department

employee. Plaintiff seeks to amend the OIG investigation

records. However, these records were compiled with an eye

towerd prosecution. Furthermore, Kathy Friebel, Acting

Insyector General for Investigations, Office of Inspector

General, has reviewed the investigatory files as they relate to

Plaintiff and certified that they were compiled for the purpose

of criminal investigation. See Defendant's Exhibit

3, Affidavit of Kathy Friebel. Thus, the Court finds that the

records at issue fall within the scope of (j) (2) and are

properly exempted.

10. __ Plaintiff asserts three arguments as to why subsection

(j) (2) should not apply. Each will be addressed in turn.

22a

11. First, Plaintiff contends that the investigation is

complete and the judicial process never commenced. Thus,

the rationale for the exemption no longer applies.

12. However, no case stands for the proposition that the

records lose their exempted status based on completion of the

investigation. See Aquino v. P.W. Stone, 957 F.2d 139 (4"

Cir. 1992). In Aquino, the Fourth Circuit upheld an agency's

refusal to amend a report of criminal investigation as the

report was exempted. See id at 143. At the time the

exemption was asserted, the investigation was closed and no

judicial prosecution was pursued. See id. at 141. The Court

expressly rejected the argument that exemption was

considered on a case by case approach instead of applying to

a system of records. See id. at 142. Furthermore, other

circuits have found that subsection (j) (2) does not require

that a regulation’s rationale for exempting a record apply in

each case. See Wentz v. Dept. of Justice, 722 F.2d 335, 337-

39 (7th Cir. 1985) (holding that a form prepared by the

Assistant United States Attorney was exempt from both

disclosure and amendment provisions even where the

rationale for exemption was to avoid access and the prisoner

already had been given a copy of the form).

13. Second, Plaintiff contends that OIG has no right to

claim the exemption as it is vested in authorized officials of

the Department of State. Plaintiff provides no evidence to

substantiate this claim. The regulation itself does not limit the

assertion of the exemption. Furthermore, the agency is not

precluded from asserting new exemptions during litigation.

See Young v. Central Intelligence Agency, 972 F.2d 536,

538-39 (4th Cir. 1992) (holding that the agency does not

waive Freedom of Information Act exemption by not raising

it at the administrative ievel). In this case, the agency has not

considered the merits of Plaintiff's claim to assert a defense.

See Defendant's Exhibit 8, Letter from Charles Lahiguera,

23a

Appeals Officer, to Andrew Grosso (“As the case is still in

process, there is no adverse determination ripe for

administrative appeal.”)

14. ‘Third, Plaintiff argues that Defendant has waived

exemption by disclosing certain documents. The case law is

to the contrary. See Aquino, supra, 957 F.2d at 143. In that

case, the Fourth Circuit upheld the exemption even though

the plaintiff seeking the amendment and a third party, the

parole board, had been given copies of the exempted

documents. See id. The case relied upon by Plaintiff, Powell

v. Department of Justice, can be distinguished because it only

pertained to a correction of an address on the documents and

no substantive changes. 851 F.2d 394, 395(D.C. Cir. 1988)

15. The Court will now turn to the documents which

Plaintiff identifies as Audit Reports and Internal Review

Report.

16. The Court finds that these documents do not fall in

the system of records governed by the Privacy Act. The

access provision under the Privacy Act is confined to records

of information within a system of records. See S U.S.C. §

552a(d) (1). See also William v. Dept. of Veteran Affairs, 104

F.3d 670, 673 (4th Cir. 1997) (holding that the access

provision is confined to records or information within a

system of records). “Records” are information about an

individual. See id. at § 552a(a) (4). “System of records” is a

group of records from which information is retrieved by the

name of an individual or other identifying particular assigned

to an individual. See id. at § 552a(a) (5).

17. Based on Plaintiff's own definition, neither the Audit

Reports or the Internal Review Report fit these definitions.

See also Defendant's Exhibit 6, Declaration of M. Milton

MacDonald, Assistant Inspector General for Audits, Office of

Audits, Office of Inspector General (stating that the records

24a

are not indexed or retrievable by the name or personal

identifier of an individual and that Plaintiff was not the

subject matter of the audit). See also Defendant's Exhibit 7,

Declaration of Stephen D. Dingbaum, Deputy Assistant

Inspector General for Security and Intelligence Oversight

(stating that the records are not indexed or retrievable by the

name or personal identifier of an individual and that Plaintiff

is not mentioned in the reports)

18. Even if the Audit Reports and Internal Review

Records were covered, § 552a(k) (2) would provide an

exemption. The Audit Reports are prepared for law

enforcement purposes. Furthermore, the exemption covers

investigations of agency employees to determine if any

administrative action should be taken. See Voitti, 902 F.

Supp. at 1335 (“[t]here is no requirement under the “law

enforcement” exception that criminal charges result from the

investigation. The plain language of the exemption states that

it applies to the purpose of the investigations, not to the

result.); See also Strang v. U.S. Arms Control and

Disarmament Agency, 864 F.2d 859, 862 (D.C. Cir. 1989)

(holding that the law enforcement requirement is not limited

to crimi..al law enforcement, but includes national security

laws as well) . See also Frank v.U.S. Dept. of Justice, 480 F.

Supp. 596 (D.D.C. 1979). Thus, the Audit Reports and

Internal Review Records would still be exempt.

19. Thus, the Court holds that the documents which

Plaintiff seeks to amend are exempt from subsection (d) (2)

of the Privacy Act. The Court will not address the issue of

whether the Settlement Agreement bars the present litigation.

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

counsel of record.

25a

ENTERED this 8 day of December, 1999.

Gerald Bruce Lee,

United States District Judge

26a

No. 00-1142

UNITED STATES COURT OF

APPEALS FOR THE FOURTH

CIRCUIT

September 25, 2000, Argued

November 13, 2000, Decided

STUART M. SELDOWITZ.

Plaintiff-Appellant,

¥.

THE OFFICE OF THE

INSPECTOR GENERAL, U. S.

Department of State, Defendant-

Appellee.

FILED January 9 ,2001

ORDER

Appellant has filed a petition for rehearing. The Court denies

the petition for rehearing

For the Court

S/Patricia S. Connor

Clerk

22 cfr 171.32

*** THIS SECTION IS CURRENT THROUGH THE

MARCH 27, 2001 ISSUE OF ***

*** THE FEDERAL REGISTER ***

TITLE 22 -- FOREIGN RELATIONS

CHAPTER I -- DEPARTMENT OF STATE

SUBCHAPTER R -- ACCESS TO INFORMATION

PART 171 -- AVAILABILITY OF INFORMATION AND

RECORDS TO THE PUBLIC

SUBPART D -- PRIVACY PROVISIONS

22 CFR 171.32

§ 171.32 Exemptions.

Portions of systems of records maintained by the

Department are authorized to be exempted from a limited

number of provisions of the Privacy Act. In utilizing these

exemptions, however, the Department contemplates

exempting only those portions of systems necessary for the

proper functioning of the Department and which are

consistent with the Privacy Act and these regulations. The

following exemptions are authorized under 5 U.S.C. 552a(j)

and (k):

(a) Records specifically authorized under criteria

established by an executive order to be kept secret in the

interest of national defense or foreign policy and in fact,

properly classified pursuant to such executive order (k)(1);

(b) Investigatory material compiled for law enforcement

purposes, other than material within the scope of 5 U.S.C.

28a

552a(j)(2): Provided, however, That if any individual is

denied any right, privilege, or benefit for which she or 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 the regulations, under an implied

promise that the identity of the source would be held in

confidence (k){2);

protective services to the President of the United States or

other individuals, pursuant to 18 U.S.C. 3056 and 22 U.S.C.

2666 (k)(3):

(d) Records required by statute to be maintained and

used solely as statistical records (k)(4);

(e) Investigatory material compiled solely for the

purpose of determining — suitability, eligibility, | or

qualifications for Federal civilian employment, military

service, Federal contracts, nominations or referrals to

international organizations, 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 these regulations, under an

implied promise that the identity of the source would be held

in confidence (k)(5);

(f) Testing or examination material used solely to

determine individual qualification for appointment or

promotion to the Federal service which would compromise

the objectivity or fairness of the testing or examinations

process if disclosed (k)(6); or

29a

(g) Evaluation material used to determine potential of an

individual 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 these regulations, under an implied promise that the

identity of the source would be held in confidence (k)(7); or

(h) Records originated by another agency when that

agency has determined that the record is exempt under 5

U.S.C. 52a (j). Also, pursuant to Section (j)(2) of the Act,

records compiled by the Special Assignment Staff, the

Command Center, and the Passport and Visa Fraud Branch of

the Office of Security and by the inspector General may be

exempted from the requirements of any part of the Act except

subsections (b), (c)(1) and (2), (e)(4) (A) through (F), (e)(6).

(7), (9), (10), and (11), and (i) to the extent necessary to

assure the effective completion of the investigative and

judicial processes.

(i) Portions of the following systems of records are

exempted under 5 U.S.C 552a(j) to the extent authorized and

determined by the agency originating the records. The names

of the systems correspond to those published in the Federal

System Name: STATE DEPT.

Consular Service and Assistance Records. STATE-S.

Coordinator for Combatting Terrorism Records. STATE-

External Research Records. STATE-10.

Extradition Records. STATE-11.

Intelligence and Research Records. STATE-15.

International Organizations Records. STATE-17.

30a

Law of the Sea Records. STATE-19.

Overseas Records. STATE-25.

Passport Records. STATE-26.

Personality Cross Reference Index to the Secretariat

Automated Data Index. STATE-28.

Personality Index to the Central Foreign Policy Records.

STATE-29.

Security Records. STATE-36.

Visa Records. STATE-39.

Munitions Control Records. STATE-42.

Records of the Inspector General and Automated

Individual Cross-Reference System. STATE-S53.

(j) Portions of the following systems of records are

exempted from 5 U.S.C. 552a(c)(3), (d), (e)(1), (3) and (4),

(G). (H), and (I), and (f). The names of the systems

correspond to those published in the Federal Register by the

Department.

(1) Exempt under 5 U.S.C. 552a(k)(1). The reason for

invoking the exemption is to protect the material required to

be kept secret in the interest of national defense and foreign

policy.

Statements by Principals during the Strategic Arms

Limitation Talks, Mutual Balanced Force Reduction

negotiations, and the Standing Consultative Committee.

ACDA-4.

Board of Appellate Review Records. STATE-2.

Consular Service and Assistance Records. STATE-S.

Coordinator for Combatting Terrorism Records. STATE-

External Research Records. STATE-10.

3la

Extradition Records. STATE-11.

Foreign Assistance Inspection Records. STATE-48.

Intelligence and Research Records. STATE-15.

International Organizations Records. STATE-17.

Law of the Sea Records. STATE-19.

Overseas Records. STATE-25.

Passport Records. STATE-26.

Personality Cross Reference Index to the Secretariat

Automated Data Index. STATE-28.

Personality Index to the Central Foreign Policy Records.

STATE-29.

Security Records. STATE-36.

Visa Records. STATE-39.

Berlin Document Center. STATE-41.

Munitions Control Records. STATE-42.

Records of the Inspector General and Automated

Individual Cross-Reference System. STATE-S3.

Records of the Office of the Assistant Legal Adviser for

International Claims and Investment Disputes. STATE-54.

(2) Exempt under 5 U.S.C. 552(a)(k)(2). The reasons for

invoking the exemptions are to prevent individuals the

subject of investigation from frustrating the investigatory

process, to insure the integrity of law enforcement activities,

to prevent disclosure of investigative techniques, to maintain

the confidence of foreign governments in the integrity of the

procedures under which privileged or _ confidential

information may be provided; and to protect the

confidentiality of sources of information.

Security Records. ACDA-3. Provided, however, that if

any individual is denied any right, privilege, or benefit to

32a

which the individual would otherwise be entitled by Federal

law, or for which the individual would otherwise be eligible,

as a result of the maintenance of such material, such material

will be provided to such individual, except to the extent that

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, if furnished to the Government prior

to September 27, 1975, under an implied promise that the

identity of the source would be held in confidence.

Board of Appellate Review Records. STATE-2.

Consular Service and Assistance Records. STATE-S.

Coordinator for Combatting Terrorism Records. STATE-

Extradition Records. STATE-11.

Foreign Assistance Inspection Records. STATE-48.

Intelligence and Research Records. STATE-15.

Overseas Records. STATE-25.

Passport Records. STATE-26.

Personality Cross Reference Index to the Secretariat

Automated Data Index. STATE-28.

Personality Index to the Central Foreign Policy Records.

STATE-29.

Security Records. STATE-39.

Visa Records. STATE-39.

Munitions Control Records. STATE-42.

Records of the Inspector General and Automated

Individual Cross-Reference System. STATE-53.

Records of the Office of White House Liaison, STATE-

33a

Garnishment of Wages Records. STATE-61.

(3) Exempt under 5 U.S.C. 552(a)(k)\(3). The reason for

invoking this exemption is to preclude impairment of the

Department's effective performance in carrying out its lawful

protective responsibilities under 18 U.S.C. 3056 and 22

U.S.C. 1666.

Consular Service and Assistance Records. STATE-S.

Extradition Records. STATE-11.

Intelligence and Research Records. STATE-15.

Overseas Records. STATE-25.

Passport Records. STATE-26.

Personality Cross Reference Index to the Secretariat

Automated Data Index. STATE-28.

Personality Index to the Central Foreign Policy Records.

STATE-29.

Security Records. STATE-36.

Visa Records. STATE-39.

(4) Exempt under 5 U.S.C. 552a(k)(4). The reason for

invoking this exemption is to avoid needless consideration of

records which are used solely for statistical purposes and

from which no individual determinations are made.

Foreign Service Institute Records. STATE-14.

Personnel Payroll Records. STATE-30.

Personnel Records. STATE-31.

(5) Exempt under 5 U.S.C. 552a(k)(5). The reasons for

invoking this exemption are to insure the proper functioning

of the investigatory process, to insure effective determination

of stability, eligibility and qualification for employment and

to protect the confidentiality of sources of information.

34a

Security Records. ACDA-3. This system contains

investigatory materials compiled solely for the purpose of

determining suitability, eligibility, or qualifications for

Federal civilian employment, military service, Federal

contracts, or access to classified information which is exempt

from disclosure by the Act (5 U.S.C. 552a(k)(5)), but only to

the extent that 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 if furnished to the

Government prior to September 27, 1975, under an implied

promise that the identity of the source would be held in

confidence.

Board of the Foreign Service Records. STATE-3.

Equal Employment Opportunity Records. STATE-9.

Foreign Assistance Inspection Records. STATE-48.

Foreign Service Grievance Board Records. STATE-13.

Legal Adviser Personnel Records. STATE-20.

Overseas Records. STATE-25.

Personality Cross Reference Index to the Secretariat

Automated Data Index. STATE-28.

Personnel Records. STATE-31.

Security Records. STATE-36.

Senior Personnel Appointment Records. STATE-47.

Records of the Inspector General and Automated

Individual Cross-Reference System. STATE-S3.

(6) Exempt under 5 U.S.C. 552(k)(6). The reasons for

invoking this exemption are to prevent the compromise of

testing or evaluation material used solely to determine

individual qualifications for employment or promotion, and

35a

to avoid giving unfair advantage to individuals by virtue of

their having access to such material.

Foreign Service Institute Records. STATE-14.

Personnel Records. STATE-31.

(7) Exempt under 5 U.S.C. 552a(k)(7). The reason for

invoking this exemption is to prevent access to such material

maintained from time to time by the Department in

connection with various military personnel exchange

programs.

Overseas Records. STAT&-25.

Personality Cross Reference Index to the Secretariat

Automated Data Index. STATE-28.

Personality Index to the Central Foreign Policy Records.

STATE-29.

Personnel Records. STATE-31.

(k) Portions of certain documents in the following

systems of records are exempted pursuant to the provisions of

5 U.S.C. 552a (j) and (k) from subsections (c) (3) and (4);

(d); (e)(4), (G), (H), and (f) of 5 U.S.C. 552a.

Public Affairs Records. STATE-35.

Privacy Act Requests Records. STATE-40.

HISTORY: [45 FR 58108, Sept. 2, 1980; 45 FR 62426, Sept.

19, 1980, as amended at 56 FR 6969, Feb. 21, 1991; 59 FR

2521, Jan. 18, 1994; 61 FR 68148, 68149, Dec. 27, 1996; 64

FR 10949, Mar. 8, 1999; 64 FR 18808, Apr. 16, 1999]

AUTHORITY: AUTHORITY NOTE APPLICABLE TO

ENTIRE PART:

36a

5 U.S.C. 551 et seq., 552, 552a; 5 U.S.C. App. 201; Pub. L.

105-277, 112 Stat. 2681 et seq. E.O. 12600, 52 FR 19825, 3

CFR, 1995 Comp., p. 333.

NOTES: [EFFECTIVE DATE NOTE: 64 FR 18808, Apr. 16,

1999, amended paragraphs (j)(1), (j)(2), and (j)(5), effective

Apr. 1, 1999.]

NOTES APPLICABLE TO ENTIRE TITLE:

CROSS REFERENCES: U.S. Customs Service, Department

of the Treasury: See Customs Duties, 19 CFR chapter I.

International Trade Administration, Department of

Commerce: See Commerce and Foreign Trade, 15 CFR

chapter III.

Foreign-Trade Zones Board: See Commerce and Foreign

Trade, 15 CFR chapter IV.

Immigration and Naturalization Service, Department of

Justice: See Aliens and Nationality, 8 CFR chapter I.

Taxation pursuant to treaties: See Internal Revenue, 26 CFR

1.894-1.

2029 words

37a

56 fr 7071

DEPARTMENT OF STATE

Office of Diplomatic Security

[Public Notice 1298]

56 FR 7971

Feoruary 21, 1991

Privacy Act of 1974; Altered System of Records

TEXT: Notice is hereby given that the Department of State

proposes to alter an existing system of records, STATE-S53,

pursuant to the provisions of the Privacy Act of 1974 (5

U.S.C. 552a(o)) and the Office of Management and Budget

Circular No. A-130, Appendix I. The Department's report

was filed with the Office of Management and Budget on

October 4, 1990.

It is proposed that the current system "Records of the

Inspector General of the Department of State and the Foreign

Service" be renamed "Records of the Inspector General and

Automated Individual Cross-Reference System." Also

proposed are revisions and/or additions to the system

location, the categories of individuals covered by the system,

the authority for maintenance of the system, categories of

records in the system, routine uses, retrievability and

safeguards, and retention and disposal. These changes to the

existing system description are proposed in order to more

accurately reflect the Office of the Inspector General's

recordkeeping system, the enlargement of the scope of its

mandate, and a reorganization of its activities and operations.

The introduction of the automated individual cross-reference

38a

index is designed to facilitate the management of the name-

retrievable information maintained in support of the Inspector

General's programs.

Any persons interested in commenting on the altered

system of records may do so by submitting comments in

writing to Frank M. Machak, Acting Director, Office of

Freedom of Information, Privacy, and Classification Review;

Room 1239, Department of State, 2201 C Street, NW..,

Washington, DC 20520.

The altered system, the "Records of the Inspector General

and Automated Individual Cross-Reference System, STATE-

53," will read as set forth below.

Dated: October 4. 1990.

For the Secretary of State.

Sheldon J. Krys.

Assistant Secretary for Diplomatic Security.

STATE-S3

System name:

Records of the Inspector General and Automated

Individul Cross-Reference System.

Security classification:

Classified.

System location:

Department of State, 2201 C Street, NW., Washington,

DC 20520, and Department annexes.

Categories of individuals covered by the system.

Present and former employees of the Department of State

(including foreign nationals); individuals (or firms) doing

business with State, including contractors, grantees or others

funded by the Department; individuals who have purchased

USG employees’ property overseas; members of the foreign

SRA ee oes

Seats Pee a dn icuingpe sy Feet

4 Nahe SORT TES ete yee

39a

affairs community who come under the _ direction,

coordination and supervision of chiefs of missions; other

individuals whose association with the Department relates to

the alleged violations of the Department's rules of conduct,

the Civil Service merit system, or to any other criminal or

civil misconduct which affects the integrity or facilities of the

Department of State; witnesses, complainants, confidential or

nonconfidential informants, suspected defendants; or parties

who have been identified by the Office of the Inspector

General or by other agencies, constituent units of State, and

members of the general public in connection with the

authorized functions of the Inspector General.

authority for maintenance of the system:

The Foreign Service Act of 1980 (22 US.C. 3901) in

accordance with the Department of State Authorization Act

for Fiscal year 1986; and the Inspector General Act of 1978

(5 U.S.C. Appendix 3).

Categories of records in the system:

Investigatory material. The Automated Individual Cross-

Reference System summarizes results of investigations,

inspections, audits, or other inquiries conducted by the Office

of the Inspector General and its recommendations as they

pertain to individuals, as well as Inspectors’ Evaluation

Reports. Reports of investigations conducted by other

Departmental, Federal, State and local investigative agencies

under the direction of, or on behalf of, the Inspector General.

Inspectors' Evaluation Reports on chiefs of missions, deputy

chiefs of missions, principal officers at posts, assistant

secretaries, and deputy assistant secretaries.

routine uses of records maintained in this system,

including categories of users and the purposes of such uses:

The information contained in the Records of the Inspector

General and the Automated Individual Cross-Reference

System is collected and maintained in the administration of

40a

the Department of State, Federal Criminal Statutes, Uniform

Code of Military Justice, Executive Orders, and the Code of

Federal Regulations to oversee and enforce Federal laws and

regulations. Material gathered is used in the enforcement of

the aforementioned laws and regulations. These records may

be disseminated, depending on jurisdiction to Department on

jurisdiction to the following:

(1) Department of State officials in the administration of

their responsibilities;

(2) Appropriate committees of the Congress in

furtherance of their respective oversight functions;

(3) Private international or other organizations having any

source from which information is requested in the course of

investigation to the extent necessary to identify the individual

or individuals, to inform the source of the nature and purpose

of the investigation, and to identify the type of information

requested;

(4) A Federal, State. local, or foreign agency or other

public authority that investigates or prosecutes or assists in

investigation or prosecution of such violation, or enforces or

implements or assists in enforcement or implementation of

the statute, rule, regulation or order;

(5) A Federal, State, local or foreign agency or other

public authority, or professional organization, maintaining

civil. criminal, or other relevant enforcement records or other

pertinent records, such as current licenses, or to a consumer

reporting agency, in order to obtain information relevant to

an agency investigation, audit, or other inquiry, or relevant to

a decision concerning the hiring or retention of an employee

or other personnel action, the issuance of a security

clearance, the establishment of a claim, or the initiation of

administrative, civil, or criminal action;

(6) A Federal, State, local, or foreign agency or other

public authority, or professional organization, if relevant to

4la

the recipient's hiring or retention of an employee or other

personnel action, the issuance of a security clearance, the

letting of a contract, the issuance of a license, grant or other

benefit, the establishment of a claim, or the initiation of

adminisirative, civil, or criminal action;

(7) Any private or public source, witness, or subject from

which information is requested in the course of a legitimate

agency investigation, audit, or other inquiry to the extent

necessary: to identify an individual; to inform the source,

witness, or subject of the nature and purpose of the

investigation, audit or other inquiry; and to identify the

information requested;

(8) An attorney or other designated representative of any

source, witness, or subject described in paragraph 7 only to

the extent that the information would be provided to that

category of individuals themselves in the course of an

investigation, audit, or other inquiry;

(9) The Department of Justice when the Department of

State or any component thereof, or any employee of the

Department in his or her official capacity, or any employee of

the Department in his or her individual capacity where the

Department of Justice has agreed to represent the employee.

or the United States, where the Department of State

determines that litigation is likely to affect the Department or

any of its components, is a party to litigation or has an

interest in such litigation, and the use of such records by the

Department of Justice is deemed by the Department of State

to be relevant and necessary to the litigation;

(10) In a proceeding before a court or adjudicative body,

when the agency, or any component thereof, or any employee

of the agency in his or her official capacity, or any employee

of the agency in his or her individual capacity where the

agency has agreed to represent the employee, or the United

States, where the agency determines that litigation is likely to

affect the agency or any of its components, is a party to

42a

litigation or has an interest in such litigation, and the agency

determines that use of such records is relevant and necessary

to the litigation;

(11) To a member of Congress at the sole discretion of

the Inspector General upon a determination of the propriety

of such a disclosure and only for such purposes as authorized

by the statutory mandate of the Inspector General;

(12) The Department of Justice for the purpose of

obtaining its advice;

(13) The Office of Management and Budget for the

purpose of obtaining its advice regarding agency obligations

under the Privacy Act, or in connection with the review of

private relief legislation;

(14) In response to a subpoena issued by a Federal agency

having the power to subpoena records of other Federal

agencies;

(15) A grand jury agent pursuant either to a Federal or

State grand jury subpoena, or to a prosecution request that

such record be released for the purpose of its introduction to

a grand jury;

(16) A Federal agency responsible for considering

suspension or debarment action where such record would be

relevant to such actior;

(17) An entity or person, public or private, where

disclosure of the record is needed to enable the recipient of

the record to take action to recover money or property of the

United States Department of State, where such recovery will

accrue to the benefit of the United States, or where disclosure

of the record is needed to enable the recipient of the record to

take appropriate disciplinary action to maintain the integrity

of the program or operations of the Department of State;

(18) A Federal, State, local, or foreign agency, or other

public authority, for use in computer matching programs to

43a

prevent and detect fraud and abuse in benefit programs

administered by any agency, to support civil and criminal law

enforcement activities of any agency and its components, and

to collect debts and overpayments owed to any agency and its

components;

(19) A public or professional licensing organization when

such record indicates, either by itself or in combination with

other information, a violation or potential violation of

professional standards, or reflects on the moral, educational.

or professional qualifications of an individual who is licensed

or who is seeking to become licensed and.

(20) Debt collection contractors for the purpose of

collecting delinquent debts as authorized by law.

Also see the "Routine Uses" paragraph of the Prefatory

Statement published in the Federal Register (42 FR 49699,

September 27, 1977).

policies and practices for storing, retrieving, accessing,

retaining, and disposing of records in the system:

storage:

Hard copy, electronic media.

retrievability:

Investigatory case files and Inspectors’ Evaluation

Reports are retrievable by ar individual's name.

safeguards:

All employees of the Department of State have undergone

a thorough background security investigation. Access to the

Department of State and its annexes is controlled by security

guards, and admission is limited to those individuals

possessing a valid identification card or individuals under

proper escort. All records containing personal information are

maintained in secure file cabinets or in restricted areas,

access to which is limited to authorized personnel. Access to

44a

computerized files is passwork protected and under the direct

supervision of the system manager. The system manager has

the capability of printing audit trails of access from the

computer media, thereby permitting regular ad hoc

monitoring of computer usage. Inspector General reports and

investigative files are disseminated only by the Inspector

General and only to the Department of Justice, Congressional

oversight committees, and/or the immediate Department

principals or offices with a clear need-to-know the matter

being reported. No secondary distribution is permitted

without the expressed written permission of the Inspector

General.

retention and disposal:

Rentention of these records varies depending upon the

specific kind of record involved in accordance with published

schedules of the Department of State. More specified

information may be obtained by writing to the Director,

Office of Freedom of Information, Privacy, and

Classification Review; Room 1239, Department of State,

2201 C Street, NW., Washington, DC 20520.

system manager and address:

The Inspector General, Office of the Inspector General,

Room 6817, Department of State, 2201 C Street, NW.,

Washington, DC 20520.

notification procedure:

Individuals who have reason to believe that the Records

of the Inspector General and Automated Individual Cross-

Reference System might have information pertaining to them,

should write to the Director, Office of Freedom of

Information, Privacy, and Classification Review; Room

1239, Department of State, 2201 C Street, NW., Washington,

DC 20520. The individual must specify that he/she wishes

the Records of the Inspector General and Automated

Individual Cross-Reference System to be checked. At a

45a

minimum, the individual should include: name, date and

place of birth, current mailing address and zip code, and

signature.

record access and amendment procedures:

Individuals who wish to gain access to or amend records

pertaining to themselves should write to the Director, Office

of Freedom of Information, Privacy, and Classification

Review (address above).

record source categories:

These records contain information obtained from

interviews, review of records, and authorized investigative

techniques.

systems exempted from certain provisions of the act:

Certain records contained within this system of records

may be exempted from the requirements of any part of the

Act except subsections (b), (c) (1) and (2), (e)(4) (A) through

(F), (e)(6), (7), (9), (10), and (11), and (i) to the extent

necessary to protect properly classified information and to

assure the effective completion of the investigative and

judicial processes. See 22 CFR 171.32.

[FR Doc. 91-4034 Filed 2-20-91; 8:45 am]

BILLING CODE 4710-22-M

46a

5 usc 552a

UNITED STATES CODE SERVICE

Reed Elsevier Inc.

*** CURRENT THROUGH 106TH CONGRESS, 2ND

SESSION ***

TITLE 5. GOVERNMENT ORGANIZATION AND

EMPLOYEES

PART I. THE AGENCIES GENERALLY

CHAPTER 5. ADMINISTRATIVE PROCEDURE

SUBCHAPTER II. ADMINISTRATIVE PROCEDURE

5 USCS § 552a (2001)

(a)Each agency shall make available to the public

information as follows:

(1) Each agency shall separately state and currently publish

in the Federal Register for the guidance of the public--

(A) descriptions of its central and field organization and

the established places at which, the employees (and in the

case of a uniformed service, the members) from whom, and

the methods whereby, the public may obtain information,

make submittals or requests, or obtain decisions;

(B) statements of the general course and method by

which its functions are channeled and determined, including

the nature and requirements of all formal and informal

_ procedures available;

the places at which forms may be obtained, and instructions

47a

as to the scope and contents of all papers, reports, or

examinations;

(D) substantive rules of general applicability adopted as

authorized by law, and statements of general policy or

interpretations of general applicability formulated and

adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely

notice of the terms thereof, a person may not in any manner

be required to resort to, or be adversely affected by, a matter

required to be published in the Federal Register and not so

published. For the purpose of this paragraph, matter

reasonably available to the class of persons affected thereby

is deemed published in the Federal Register when

incorporated by reference therein with the approval of the

Director of the Federal Register.

(2) Each agency, in accordance with published rules, shall

make available for public inspection and copying--

(A) final opinions, including concurring and dissenting

opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which

have been adopted by the agency and are not published in the

Federal Register;

that affect a member of the public;

(D) copies of all records, regardless of form or format,

which have been released to any person under paragraph (3)

and which, because of the nature of their subject matter, the

agency determines have become or are likely to become the

subject of subsequent requests for substantially the same

records; and

(E) a general index of the records referred to under

subparagraph (D);

unless the materials are promptly published and copies

offered for sale. For records created on or after November 1,

1996, within one year after such date, each agency shall make

such records available, including by computer

48a

telecommunications or, if computer telecommunications

means have not been established by the agency, by other

electronic means. To the extent required to prevent a clearly

unwarranted invasion of personal privacy, an agency may

delete identifying details when it makes available or

publishes an opinion, statement of policy, interpretation, staff

manual, instruction, or copies of records referred to in

subparagraph (D). However, in each case the justification for

the deletion shall be explained fully in writing, and the extent

of such deletion shall be indicated on the portion of the

record which is made available or published, unless including

that indication would harm an interest protected by the

exemption in subsection (b) under which the deletion is

made. If technically feasible, the extent of the deletion shall

be indicated at the place in the record where the deletion was

made. Each agency shall also maintain and make available

for public inspection and copying current indexes providing

identifying information for the public as to any matter issued.

adopted, or promulgated after July 4, 1967, and required by

this paragraph to be made available or published. Each

agency shall make the index referred to in subparagraph (E)

available by computer telecommunications by December 31,

1999. Er ch agency shall promptly publish, quarterly or more

frequently, and distribute (by sale or otherwise) copies of

each index or supplements thereto unless it determines by

order published in the Federal Register that the publication

would be unnecessary and impracticable, in which case the

agency shall nonetheless provide copies of such index on

request at a cost not to exceed the direct cost of duplication.

A final order, opinion, statement of policy, interpretation, or

staff manual or instruction that affects a member of the public

may be relied on, used, or cited as precedent by an agency

against a party other than an agency only if--

(i) it has been indexed and either made available or

published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms

thereof.

49a

(3) (A) Except with respect to the records made available

under paragraphs (1) and (2) of this subsection, each agency,

upon any request for records which (i) reasonably describes

such records and (ii) is made in accordance with published

rules stating the time, place, fees (if any), and procedures to

be followed, shall make the records promptly available to any

person.

(B) In making any record available to a person under this

paragraph, an agency shall provide the record in any form or

format requested by the person if the record is readily

reproducible by the agency in that form or format. Each

agency shall make reasonable efforts to maintain its records

in forms or formats that are reproducible for purposes of this

section.

records, an agency shall make reasonable efforts to search for

the records in electronic form or format, except when such

efforts would significantly interfere with the operation of the

agency's automated information system.

(D) For purposes of this paragraph, the term "search"

means to review, manually or by automated means, agency

records for the purpose of locating those records which are

responsive to a request.

(4) (A)

(i) In order to carry out the provisions of this section,

each agency shall promulgate regulations, pursuant to notice

and receipt of public comment, specifying the schedule of

fees applicable to the processing of requests under this

section and establishing procedures and guidelines for

determining when such fees should be waived or reduced.

Such schedule shall conform to the guidelines which shall be

promulgated, pursuant to notice and receipt of public

comment, by the Director of the Office of Management and

Budget and which shall provide for a uniform schedule of

fees for all ags:ncies.

(ii) Such agency regulations shall provide that--

50a

(1) fees shall be limited to reasonable standard charges

for document search, duplication, and review, when records

are requested for commercial use;

(Il) fees shall be limited to reasonable standard

charges for document duplication when records are not

sought for commercial use and the request is made by an

educational or noncommercial scientific institution, whose

purpose is scholarly or scientific research; or a representative

of the news media; and

(Ill) for any request not described in (I) or (II), fees

shall be limited to reasonable standard charges for document

search and duplication.

(iii) Documents shall be furnished without any charge

or at a charge reduced below the fees established under

clause (ii) if disclosure of the information is in the public

interest because it is likely to contribute significantly to

public understanding of the operations or activities of the

government aud is not primarily in the commercial interest of

the requester.

(iv) Fee schedules shall provide for the recovery of only

the direct costs of search, duplication, or review. Review

costs shall include only the direct costs incurred during the

initial examination of a document for the purposes of

determining whether the documents must be disclosed under

this section and for the purposes of withholding any portions

exempt from disclosure under this section. Review costs may

not include any costs incurred in resolving issues of law or

policy that may be raised in the course of processing a

request under this section. No fee may be charged by any

agency under this section--

(1) if the costs of routine collection and processing of

the fee are likely to equal or exceed the amount of the fee; or

(II) for any request described in clause (ii)II) or (III)

of this subparagraph for the first two hours of search time or

for the first one hundred pages of duplication.

(v) No agency may require advance payment of any fee

unless the requester has previously failed to pay fees in a

5la

timely fashion, or the agency has determined that the fee will

exceed $ 250.

(vi) Nothing in this subparagraph shall supersede fees

chargeable under a statute specifically providing for setting

the level of fees for particular types of records.

(vii) In any action by a requester regarding the waiver

of fees under this section, the court shai! cetermine the matter

de novo: Provided, That the court's review of the matter shall

be limited to the record before the agency.

(B) On complaint, 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, has jurisdiction to

enjoin the agency from withholding agency records and to

order the production of any agency records improperly

withheld from the complainant. In such a case the court shall

determine the matter de novo, and may examine the contents

of such agency records in camera to determine whether such

records or any part thereof shall be withheld under any of the

exemptions set forth in subsection (b) of this section, and the

burden is on the agency to sustain its action. In addition to

any other matters to which a court accords substantial weight,

a court shall accord substantial weight to an affidavit of an

agency concerning the agency's determination as to technical

feasibility under paragraph (2)(C) and subsection (b) and

reproducibility under paragraph (3)(B).

defendant shall serve an answer or otherwise plead to any

complaint made under this subsection within thirty days after

service upon the defendant of the pleading in which such

complaint is made, unless the court otherwise directs for

good cause shown.

(D) [Repeated]

(E) The court may assess against the United States

reasonable attorney fees and other litigation costs reasonably

incurred in any case under this section in which the

complainant has substantially prevailed.

Se ee

52a

(F) Whenever the court orders the production of any

agency records improperly withheld from the complainant

and assesses against the United States reasonable attorney |

fees and other litigation costs, and the court additionally |

issues a written finding that the circumstances surrounding

the withholding raise questions whether agency personnel

acted arbitrarily or capriciously with respect to the

withholding, the Special Counsel shall promptly initiate a

proceeding to determine whether disciplinary action is

warranted against the officer or employee who was primarily

responsible for the withholding. The Special Counsel, after

investigation and consideration of the evidence submitted,

shall submit his findings and recommendations to the

administrative authority of the agency concerned and shall

send copies of the findings and recommendations to the

officer or employee or his representative. The administrative

authority shall iake the corrective action that the Special

Counsel recommends.

(G) In the event of noncompliance with the order of the

court, the district court may punish for contempt the

responsible employee, and in the case of a uniformed service,

the responsible member.

(5)E-ch agency having more than one member shall

maintain and make available for public inspection a record of

the final votes of each member in every agency proceeding.

(6) (A) Each agency, upon any request for records made

under paragraph (1), (2), or (3) of this subsection, shall--

(i) determine within 20 days (excepting Saturdays,

Sundays, and legal public holidays) after the receipt of any

such request whether to comply with such request and shall

immediately notify the person making such request of such

determination and the reasons therefor, and of the right of

such person to appeal to the head of the agency any adverse

determination; and

(ii) make a determination with respect to any

appeal within twenty days (excepting Saturdays,

Sundays, and legal public holidays) after the receipt of

53a

such appeal. If on appeal the denial of the request for

records is in whole or in part upheld, the agency shall

notify the person making such request of the provisions

for judicial review of that determination under

paragraph (4) of this subsection.

***%

(g) Civil remedies.

(1) 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;

with such accuracy, relevance, timeliness, and completeness

as iS necessary to assure fairness in any determination

relating to the qualifications, character, mghts, 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, 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)(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

54a

incurred in any case under this paragraph in which the

complainant has substantially prevailed.

(3)(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 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 susiained 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

55a

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 misrepreseniation. 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.

e+e

(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 (11), and (i) if the system of records is--

(1) maintained by the Central Intelligence Agency; or

(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 dispcsition 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.

56a

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.

eee

(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 (1) and (f) of this section if the system of

records 1s--

(1) subject to 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

individua., 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, eligiblity, or qualifications for

Federal civilian employment, military service, Federal

57a

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 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.

(v) Office of Management and Budget responsibilities. 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.

58a

22 CFR Section 6a.6 Foreign Relations — Exemptions

Portions of systems of records maintained by the Department

are authorized to be exempted from a limited number of

provisions of the Privacy Act. In utilizing these exemptions,

however, the Department contemplates exempting only those

portions of systems necessary for the proper functioning of

the Department and which are consistent with the Privacy

Act and these regulations. The following exemptions are

authorized under 5 U.S.C. §52a (j) and (k):

(a) Records specifically authorized under criteria

established by an Executive order to be kept secret in the

interest of national defense or foreign policy and are, in fact,

properly classified pursuant to such Executive order.

(b) Investigatory material compiled for law enforcement

urposes, other than material within the scope of 5 U.S>C.

552(j(2): Provided, however, That if any individual is

denied any right, privilege, or benefit for which he or she

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 would

reveal the identity of the source would be held in confidence,

or , prior to the effective date of the regulations, under an

implied promise that the identity of the source would be held

in confidence;

protective services to the President of the United States or

other individuals, pursuant to 18 U.S.C. 3056;

(d) Records required by statute to be maintained and used

solely as statistical records:

(e) Investigatory material complied solely for the purpose

of determining suitability, eligibility, or qualifications for

Federal civilian employment, military service, Federal

contracts, nominations of referrals to international

organizations, or access to classified information, but only to

the extent that the disclosure of such material would reveal

—— ee

—— tC Ct™s™~—

59a

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 effectiv3e

date of these regulations, under an implied promise that the

identity of the source would be held in confidence:

(f) Testing or examination material used solely to

determine individual qualifications for appointment or

promotion in the Federal service which would compromise

the objectivity or examination process if disclosed; or

(g) Evaluation material used to determine potential of an

individual for promotion in the armed services, but only to

the extent that the disclosure of such material wouid 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 these regulations, under an implied promise that the

identity of the source would be held in confidence; or

(h) Records originated by another when that agency has

determined that the record is exempt under 5 U.S.C. 552a(j).

Also, pursuant to section (j)(2) of the Act, records compiled

by the Command Center, the Passport and Visa Fraud

Branch, and the Special Assignments Staff, all of which are

components of the Office of Security, may be exempt from

the requirements of any part of the Act, except subsections

(b); (c) (1) and (2); (€)(4) (A) through (F); (e) (6), (7), (9),

(10), and (11); and (i), to the extent necessary to assure the

effective completion of the investigative, judicial, and

protective processes.

(i) Portions of the following systems of records are

exempted under 552a(j) to the extent authorized and

determined by the agency originating the records. The names

of the systems correspond to those published in the Federal

60a

CASE No. 1: 98-CV-00897

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

STUART M. SELDOWITZ,

Plaintiff,

THE OFFICE OF THE

INSPECTOR GENERAL, U. S.

Department of State,

Defendant.

Judge Henry H. Kennedy

August 13, 1998

AMENDED COMPLAINT

Preliminary Statement

This complaint is based upon a willful violation of the

Privacy Act, 5 U.S.C. § 552a, committed by the Defendant,

the OFFICE OF THE INSPECTOR GENERAL OF THE

UNITED STATES DEPARTMENT OF STATE, during a

False Claim Act investigation of the Plaintiff, Mr. Stuart M.

Seldowitz, a Foreign Service Officer of the U.S. Department

of State. During this investigation, the Inspector General’s

Office substituted false documents, these being rental

receipts, in place of the true and corsect, annotated, receipts

initially attached by Mr. Seldowitz to his per diem travel

voucher, which voucher was submitted by Mr. Seldowitz to

the Department of State for travel compensation. The

6la

Inspector General’s Office then utilized these false,

unannotated rental receipts in furtherance of a False Claim

Act investigation and to unlawfully coerce Mr. Seldowitz

into a fraudulently induced settlement.

Jurisdiction and Venue

1. This Court has jurisdiction over this Complaint

pursuant to 5 U.S.C. § 552a(g)(1).

2. Plaintiff, Stuart M. Seldowitz (“Mr. Seldowitz”),

resides the District cf Columbia, and this Complaint is being

brought under the Privacy Act, 5 U.S.C. § 552a; venue is

therefore proper in this District under 5 U.S.C. § 552a(g)(5).

Parties

3. Plaintiff, Mr. Seldowitz, is a resident and citizen of

the United States, and is employed as a Foreign Service

Officer with the United States Department of State.

4, The United States Department of State (“the U.S.

Department of State” or “the State Department”) is a

department of the United States, and is responsible for the

diplomatic relationship of the United States with foreign

countries, and for the negotiation and drafting of treaties

between and among the United States and foreign countries.

5. The Foreign Service is corp of professional

employees within the State Department who are responsible

for the diplomatic representation of the United States in

foreign countries and before foreign governments; the

function of the Foreign Service includes maintaining

diplomatic and consular posts and personnel in foreign

countries. |

6. The Office of the Inspector General (“OIG”) is an

62a

agency of the State Department, and is responsible for the

auditing and investigation of allegations of waste, fraud and

abuse of funds expended by the State Department and its

agencies, officials, employees, and contractors.

Definitions

7. At all times pertinent to this Complaint:

a) A Foreign Service Officer was a person, employed

by the State Department and serving in the Foreign Service,

whose duties included representing the United States in

diplomatic and consular posts in foreign countries.

b) The term "per diem” referred to a method of

payment whereby Foreign Service Officers, and other

employees of the State Department, were compensated by the

State Department for expenses incurred during temporary,

official travel.

c) the term “travel voucher” or “voucher” referred to

an official document used by employees of the State

Department to request and obtain compensation from the

State Department for expenses incurred during official travel.

The Privacy Act

8. At all times pertinent to this Complaint, the Privacy

Act, 5 U.S.C. § 552a, was in full force and effect, and

required that each federal agency which maintained a system

of records to:

(a) Maintain Accurate Records: 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

63a

necessary to assure fairness to the individual

in the determination, pursuant to 5 U.S.C. §

552a(e\(5);

(b) Assure the Accuracy of Records: make

reasonable efforts, prior to disseminating any

record about an individual to any person other

than an agency. . . , to assure that such records

are accurate, complete, timely and relevant for

agency purposes, pursuant to 5 U.S.C.

§552a(e)(6); and,

Records: 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, pursuant to 5 USC. §

552a(e){ 10).

9. At all times pertinent to this Complaint, the OIG was

subject to the requirements and restrictions of the Privacy

Act; this Act required the OIG to handle all records, obtained,

used, and maintained pursuant to its audits and investigations

of individuals, including employees of the State Department,

in accord with such requirements and restrictions.

COUNT ONE

10. The Plaintiff realleges and incorporates by reference

the allegations contained in paragraphs one through nine of

this Complaint, and further charges:

64a

The Stay in Geneva Switzerland

11. —_ In 1989, Mr. Seldowitz was assigned to the Office of

Strategic Nuclear Policy, within the Bureau of

Political/Military Affairs (“P/M Bureau”) of the State

Department.

12. Beginning in January 1990, Mr. Seldowitz served on

the United States delegation to the Nuclear and Space Talks

(“NST”), in Geneva, Switzerland. Mr. Seldowitz initially

served as part of the NST delegation, in Geneva, for

approximately four months, from January 27, 1990, to May

26, 1990, and then returned to his home in the United States;

thereafter, from June 1990 until March 1991, Mr. Seldowitz

returned to Geneva, as part of the NST delegation, on three

separate occasions for various periods of time.

13. At all times pertinent to this Complaint, Mr.

Seldowitz’s wife, Rosalinda Seldowitz, was a civil service

employee of the State Department, and, in that capacity,

served as secretary to the Deputy Negotiator on the NST’s

Defense and Space negotiating group, in Geneva,

Switzerlend.

14. At all times pertinent to this Complaint, beginning

February 8, 1990, Mr. Seldowitz and Rosalinda Seldowitz

rented the same apartment facilities, and shared those

apartment facilities and rental expenses during their stays in

Geneva, Switzerland.

15. At all times pertinent to this Complaint, Mr.

Seldowitz and Rosalinda Seldowitz were each entitled to per

diem compensation: Mr. Seldowitz’s per diem was paid by

the P/M Bureau, authorized in the amount of approximately

$160 per day, and Rocalinda Seldowitz’s per diem was paid

by the Arms Control Disarmament Agency.

65a

16. During the period February 9, 1990, through May 26,

1990, Mr. Seldowitz and Rosalinda Seldowitz rented a

private apartment located at 141 Rue de Lausanne, Geneva,

and jointly paid rent for this apartment in a (total) amount of

2,300 Swiss Francs per month. Their landlady for this

apartment gave each of them two separate receipts:

(a) the first receipt, dated February 7, 1990, was for the

period February 9 through March 31, and included a one

month security deposit; this receipt was in the amount of six

thousand three hundred twenty-two (6,322) Swiss Francs;

(b) the second receip’, dated May 9, 1990, was for

the period May, 1990, and was in the amount of two

thousand three hundred (2,300) Swiss Francs; and

the one month security deposit from the receipt dated

February 7, 1990, to pay their rent for April 1990.

Submitting the Per Diem Vouchers

17. Prior to May 30, 1990, and while in Geneva,

Switzerland, Mr. Seldowitz sought instructions and advice

from State Department personnel, including the Executive

Secretary of the NST delegation, concerning whether he and

his wife should each submit a receipt, having at face value

the full amount of their rent, as attachments to theirper diem

vouchers. Mr. Seldowitz was told that, under the

compensation system in effect at that time, the amount of per

diem a traveler was entitled to receive did not depend on the

amount which that person actually paid for lodging, and, for

this reason, the receipts provided to Mr. Seldowitz and to

Rosalinda Seldowitz by their landlady, each indicating the

frill amount of the rent jointly paid by them, were acceptable

for submission with their separate vouchers.

66a

18. | Upon return to the United States, on or about May 26,

1990, Mr. Seldowitz completed his travel voucher for his

compensation for his first stay in Geneva, Switzerland. This

travel voucher (“the May voucher”) was dated May 29, 1990,

by Mr. Seldowitz, and was submitted by him to the Executive

Office of the Bureau of Political/Military Affairs (“the P/M

Bureau”) of the State Department, in Washington, D.C., on or

about that date. In completing this voucher, Mr. Seldowitz-

followed the instructions and advice he had received while in

Geneva from the aforesaid State Department personnel.

19. | Mr. Seldowitz attached to and made part of the May

voucher copies of his rental receipts dated February 7, 1990,

and May 9, 1990; however, to insure that the United States

would have full knowledge of his true rental expenses, Mr.

Seldowitz annotated these receipts, as submitted, as follows:

(a) for the receipt dated February 7, 1990, Mr.

Seldowitz crossed out the amount of “6,322” in Swiss Francs,

and wrote in the amount of “3,161” in Swiss Francs;

(b) for the receipt dated May 9, 1990, Mr.

Seldowitz crossed out the amount of “2,300” in Swiss Francs,

and wrote in the amount of”1,150” in Swiss Francs.

20. On or about June 1, 1990, Mr. Seldowitz received a

telephone call from a person at the Executive Office of the

P/M Bureau, who instructed Mr. Seldowitz that: (a) there was

no need to annotate receipts; (b) the per diem amouni to

which a traveler was entitled did not depend upon the amount

he or she paid for lodging; and (c) travelers were strongly

urged to not annotate their receipts. Following these

instructions, Mr. Seldowitz did not annotate future lodging

receipts when he submitted subsequent vouchers after future

travels to Geneva.

67a slag

The Investigation by the Office of the Inspector General

21. ‘In or about 1991, the Office of the Inspector General

of the Department of State began an investigation into the

submission of travel vouchers by members of the United

States delegation to the NST; among the individuals whose

travel vouchers where examined as part of this investigation

were Mr. Seldowitz and Rosalinda Seldowitz.

22. During the period 1991 through 1995, the

investigators of the OIG contacted and interviewed Mr.

Seldowitz and Rosalinda Seldowitz, and informed these

individuals that they were under investigation for submitting

false claims against the United States in that they had both

submitted vouchers with receipts specifying the full amount

of theft monthly rental expenses for the time periods they had

spent in Geneva, whereas they had each incurred only one-

half of such expenses during those-time periods.

23. During the aforesaid investigation, orally and in

writing, Mr. Seldowitz informed the OIG that he had been

instructed by State Department personnel that he could

submit his rental receipts without annotations; that he was

elligible for the frill per diem ameunt-for travel regardless of

the actual amount of his rent; that he had submitted receipts

with his first voucher, annotating these receipts so as to

indicate his true share of the rent: and that he had thereafter

been instructed by State Department personnel to not

annotate such receipts in future submittals of travel vouchers.

24. On or about May 9, 1995, Mr. Seldowitz and

Rosalinda Seldowitz received a letter from the United States

Attorney’s Office for the Eastern District of Virginia (“the

U.S. Attorney’s Office”), which letter was based upon a

report prepared by the OIG and transmitted to the US.

Attorney’s Office. This letter accused Mr. Seldowitz and

Rosalinda Seldowitz of willfully submitting false claims to

68a

the State Department in tiat they had both submitted

vouchers which included receipts specifying the full amount

of their monthly rental expenses, whereas they had each

incurred only one-half of such expenses. This letter further

threatened both Mr. Seldowitz and Rosalinda Seldowitz with

civil prosecution under the False Claim Act, 31 U.S.C. §§

3729 et seq., and was accompanied by a draft complaint of a

False Claim Act civil suit naming Mr. Seldowitz and

Rosalinda Seldowitz as defendants.

25. The above described draft complaint alleged that Mr.

Seldowitz had included in his May voucher two rental

receipts, described as follows:

One was dated February 7, 1990, signed on

the bottom by [the landlady] and “Stuart

Seldowitz” and inscribed, “Today I received

from Stuart Seldowitz the amount of 6°322 in

Swiss Francs, for the rent of Apt. #53 located

at 141 Rue de Lausanne, Geneva. This will

cover the remaining of February, until the 31

of March, also this is to include 1 month

security deposit of 2,300 S.F. which will be

returned when the appartment [sic] is

vacated.” The other receipt was dated May 9,

1990, signed at the bottom by [the landlady]

and “Stuart Seldowitz” and inscribed “Today |

received from the U.S. Mission

empioyee S. Seldowitz, the amount of 2,300

Swiss Francs to cover the rent fees for the

month of May. The Apartment is located at

141, Rue de Lausanne, #53, Geneva,

Switzerland.”

26. On or about June 15, 1995, Mr. Seldowitz met with

investigators from the OIG and with an Assistant U.S.

Attorney, in the U.S. Attorney’s Office in Alexandria,

69a

Virginia, for the purpose of discussing the OIG investigation

and the aforesaid letter (“the June meeting”).

27. During the June meeting, the OIG investigators and

the Assistant U.S. Attorney again stated their agencies’ threat

to bring a civil prosecution against Mr. Seldowitz and

Rosalinda Seldowitz. Mr. Seldowitz explained his position,

as previously described in paragraph twenty-three above.

28. During the June meeting, Mr. Seldowitz, asked to see

the rental receipts which he had submitted to the government.

The Assistant U.S. Attorney, in the presence of, and acting as

the agent for the investigators from the OIG, showed to him

two rental receipts dated February 7, 1990, and May 9, 1990.

Neither of these rental receipts were annotated, and both

showed the full monthly rent for each pertinent period.

29. Based upon the rental receipts showed him by the

Assistant U.S. Attorney, Mr. Seldowitz was convinced that

his memory was at fault, and that he had not submitted

annotated rental receipts as part of his May voucher.

30 For the reasons set forth in the above paragraph, and to

avoid the expense, inconvenience, risk, and the further

anguish, humiliation, and harm to his career which a civil

prosecution, defense, and trial would necessarily incur, Mr.

Seldowitz was convinced to enter into a settlement with the

OIG and the U.S. Attorney’s Office, and to enter into such

settlement within the deadline for acceptance then imposed

by those agencies, thereby terminating the OIG investigation

and the threatened civil False Claim Act prosecution.

31. Subsequent to the June meeting, Mr. Seldowitz

retained the services of an attorney, from a law firm in

Washington, D.C., (“the Law Firm”) to represent him with

regard to the above described matter, including the

settlement.

70a

32. Had Mr. Seldowitz not been shown, during the June

meeting, copies of the rental receipts, dated February 7 and

May 9, 1990, missing the written annotations which clanfied

his share of the rental expenses incurred by himself and his

wife in Geneva, Mr. Seldowitz would not have entered into

the above described settlement.

33. The above described settlement was executed on July

31, 1995. Pursuant to this settlement, Mr. Seldowitz paid to

the government fifteen thousand doliars ($15,000).

34. Mr. Seldowitz incurred attorney’s fees in the amount

of five thousand dollars ($5,000) to the Law Firm for the

representation provided by that law firm to Mr. Seldowitz

and Rosalinda Seldowitz in the above described matter.

The Discovery of the OIG’s Willful Use of False Rental

Receipts

35. During the period July 1995, through October 3,

1995, Mr. Seldowitz requested, by telephone from the

National Finance Center (“the Finance Center”) a copy of the

original May voucher, with attachments, which he had

submitted on or about May 29, 1990.

36. On or about October 5, 1995, Mr. Seldowitz received

the aforesaid voucher, with attachments, from the Finance

Center. The rental receipts which accompanied said voucher

were annotated in the method and manner described in

paragraph nineteen, above.

37. | Upon receiving the above described voucher with

attachments, Mr. Seldowitz became ?? aware that the U.S.

Attorney’s Office had possession of incorrect records, these

being the aforesaid unannotated rental receipts; however, Mr.

Seldowitz was still unaware that the OIG had willfully and

intentionally obtained, maintained, and used an incomplete

“Tila

and inaccurate record, that is, a copy of the May voucher

with attachments, in the False Claim Act investigation and

prosecution of himself and Rosalinda Seldowitz

38. On or before September 25, 1995, Mr. Seldowitz

asked the attorney, who had previously represented him in

the above described settlement, if he would ask the U.S.

Attorney’s Office for copies of the voucher with attachments

which had been supplied to that office by the OIG (“the OIG

voucher record”). This attorney agreed, and subsequently

obtained these documents from the U.S. Attorney’s Office.

39. By letter dated April 15, 1996, and postmarked April

17, 1996, the aforesaid attorney transmitted the OIG voucher

record to Mr. Seldowitz.

40. The OIG voucher record included false rental

receipts, in that the rental receipts included in the OIG

voucher record were not annotated; and omitted documents

which were part of the May voucher, including the back page

of the voucher form itself. Further, (a) pertinent pages in the

May voucher, with attachments, obtained from the National

Finance Center, were marked with tk: letters “NFC.”

whereas the equivalent pages in the OIG voucher record did

not bear such marking; and (b) the front page of the voucher

form, as included in the OIG voucher record, had been

stamped with the word “PROCESS,” whereas that page in the

May voucher did not bear such stamp.

41. | Upon comparing the copies of the May voucher, with

attachments, received from the Finance Center with the OIG

voucher record, received from the U.S. Attomney’s Office, it

became apparent to Mr. Seldowitz that the OIG had willfully

and intentionally obtained and provided to the US.

Attorney’s Office an incomplete and inaccurate record,

specifically, an incomplete and maccurate copy of the May

voucher, with attachments, which Mr. Seldowitz had

72a

submitted to the P/M Bureau, the originals of which were

then stored by, and accessible through, the Finance Center.

42. — Inthe aforesaid manner, and at the aforesaid time, Mr.

Seldowitz became aware that the OIG had willfully and

materially misrepresented the OIG voucher record, to the

U.S. Attorney’s Office and to Mr. Seldowitz, as being a

complete and accurate copy of the May voucher, with

attachments, which Mr. Seldowitz had submitted to the P/M

Bureau.

43. For the purpose of unlawfully

; (a) coercing Mr. Seldowitz into agreeing to,

executing, and making payment upon a fraudulently induced

settlement agreement, and,

(b) inducing the U.S. Attorney’s Office into

pursuing and accepting a civil False Claim Act prosecution

against Mr. Seldowitz and Rosalinda Seldowitz, and pursuing

and accepting the resulting settlement,

the OIG willfully, intentionally, and materially

misrepresented, to the U.S. Attorney’s Office and to Mr.

Seldowitz, the OIG voucher record as being a complete and

accurate record of the May voucher, with attachments, which

Mr. Seldowitz had submitted to the P/M Bureau on or abcut

May 29, 1990.

The Charge

44. Beginning on an unknown date, and continuing until

July 31, 1995, the Office of the Inspector General of the U.S.

Department of State, and U.S. Department of State, willfully

’ and intentionally, failed to maintain the above described May

voucher, with attachments, including rental receipts, with

such accuracy, relevance, and completeness as was necessary

73a

to assure fairness in the determination relating to the

character, rights, and opportunities of Mr. Stuart M.

Seldowitz that was to be made on the basis of such record,

and, consequently, a determination was made which was

adverse to Mr. Seldowitz, this being a decision to pursue a

civil False Claim Act investigation and prosecution, and to

coerce from Mr. Seldowitz a settlement in the amount of

fifteen thousand dollars ($15,000); all in violation of 5 U.S.C.

§ 552a(g 1 XC) and (4).

45. As a result of the conduct of the Defendant, as

described in this Count, the Plaintiff, Stuart M. Seldowitz,

suffered actual damages.

COUNT TWO

46. The Plaintiff realleges and incorporates by reference

the allegations contained in paragraphs one through nine, and

paragraphs eleven through forty-three of this Complaint, and

further charges:

47. In furtherance of the aforesaid purpose, described in

paragraph forty-three. the OIG willfully and intentionally

violated the requirements and restrictions of the Privacy Act,

which Act mandated the OIG to:

(a) | Maintain Accurate Records, pursuant to 5

U.S.C. § 552a(e5);

(b) Assure the Accuracy of Records, pursuant to 5

U.S.C. § 552a(e\6); and,

in violation of 5 U.S.C. § 552a(e)(1 0).

The Charge

74a

48. Beginning on an unknown date, and continuing until

July 31, 1995, the Office of the Inspector General of the U.S.

Department of State, and the U.S. Department of State,

willfully and intentionally, failed to obtain, maintain, and use

the above described May voucher, with attachments,

including the rental receipts, in accord the above described

provisions of the Privacy Act, in such as way as to have an

adverse effect upon Mr. Seldowitz, this adverse effect being:

(a) an unlawfully coerced settlement, of a wrongfully

threatened False Claim Act prosecution, in the amount of

fifteen thousand dollars ($15,000); (b) the legal fees

expended by Mr. Seldowitz for representation during the

negotiation of this settlement, in the amount of five thousand

dollars ($5,000); (c) the mental anguish and humiliation of

Mr. Seldowitz during the investigation leading to the

wrongfully threatened False Claim Act prosecution; and (d)

the resulting damage to the reputation, career, and career

opportunities of Mr. Seldowitz as a result of the

investigation, the threatened civil prosecution, and the

unlawfully coerced settlement; each violation of the above

described provisions of the Privacy Act being in violation of

5 U.S.C. § 552a(g)1)(D) and (4).

49. As a result of the conduct of the Defendant, as

described in this Count, the Plaintiff, Stuart M. Seldowitz,

suffered actual damages.

COUNT THREE

50. The Plaintiff realleges and incorporates by reference

the allegations contained in paragraphs one through nine,

paragraphs eleven through forty-three, and paragraoh ‘orty-

seven of this Complaint, and further charges:

51. At all times pertinent to this Complaint, the Privacy

Act, pursuant to 5 U.S.C. § 552a(d)(2), required each federal

agency maintaining a system of records to permit an

75a

individual to request an amendment of a record pertaining to

him; and required such agency, promptly thereafter, to either:

(a) make any correction of any portion of such

record which the individual believes is not accurate, relevant,

timely, or complete; or —

(b) inform the individual of its refusal to amend

such record in accordance with his request. _

52. By letter dated March 25, 1998, Mr. Seldowitz

requested, pursuant to the above described provision of the

Privacy Act, that the OIG:

(a) | amend the OIG voucher record to accurately

reflect the annotated rental receipts and the complete travel

voucher request submitted by Mr. Seldowitz to the P/M

Btreau of the State Department on or about May 29, 1990;

and

_(b) — amend the Inspector General’s Report and any

other files, records or conclusions regarding this matter

within the OIG to demonstrate that Mr. Se!dowitz submitted

accurate and annotated receipts, and a complete and accurate

travel voucher request, as described above. :

53. By letter dated April 7, 1998, the Deputy Counsel of

the OIG informed Mr. Seldowitz that the OIG would neither

amend the OIG voucher and other OIG records as requested,

nor make a decision refusing to amend such records, such

letter stating:

We understand that the Federal Bureau of Investigation

(FBI) is currently conducting a review of the issues

raised by Mr. Seldowitz, on behalf of the PCIE

[President’s Council on Integrity arid Efficiency].

Accordingly, it would be inappropriate to respond or to

76a

comment upon those issues until the conclusion of that

review.

54. By letter dated May 13, 1998, Mr. Seldowitz repeated

the aforesaid request to the Office of IRM Programs and

Services of the State Department (“the IRM Office”). By

letter dated June 1, 1998, the IRM Office notified Mr.

Seldowitz that it saw “no prospect of action being taken by

the OIG” on Mr. Seldowitz request to amend the OIG

voucher and other OIG records until completion of the above

described PCIE review.

55. Stuart M. Seldowitz has exhausted his administrative

remedies pursuant to 5 U.S.C. §

552a(d\(3); attached to this Complaint is a letter issued on

June 22, 1998, by the Appeals Officer of the IRM Office.

The Charge

56. Beginning on April 7, 1998, and continuing until the

date of this Amended Complaint, the Office of the Inspector

General of the U.S. Department of State, and the U.S.

Department of State, have:

(a) refused to amend the OIG voucher record to

accurately reflect the annotated rental receipts and the

complete travel voucher request submitted by Mr. Seldowitz

to the P/M Bureau of the State Department on or about May

29, 1990;

(b) refused to amend the Inspector General’s

- Report and any other flies, records or conclusions regarding

this matter within the OIG to demonstrate that Mr. Seldowitz

submitted accurate and annotated receipts, and a complete

77a

and accurate travel voucher request, as described above; and

conformity with 5 U.S.C. § 552a(d\3); all in violation of 5

U.S.C. § 552a(g\ 1A).

Request for Relief

The Plaintiff, Mr. Seldowitz, hereby demands and

seeks that judgment be enter

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.