One More Avenue of Appeal? Using the Privacy Act to Challenge A Suspension

A federal court found that a GS-15 federal employee was seeking judicial review of a personnel decision to suspend him by using the Privacy Act as an end-run around Civil Service Reform Act procedures. The case took three years.

Critics of the federal personnel appeals process point out that there are too many overlapping avenues of appeal, the system is too complex, and it takes far too long to resolve a case. A recent U.S. district court decision addressed an attempt by a civilian Army employee to challenge a 14-day suspension using the Privacy Act. The court didn’t buy it, but it took more than 3 years between the initiation of discipline and the court’s decision. (Lee v. Geren, Acting Secretary of the Army, D.D.C. Civil Action No. 06-884 (JDB), 3/29/07) The facts are as related by the court’s decision.

The Army launched an investigation into Mr. Lee’s conduct in late 2003. The investigating officer found that Lee has falsified the resume he submitted to get his GS-15 job and had misused his government cell phone. (Opinion, p. 2)

The agency proposed Lee’s removal, and after considering his reply, the deciding official found the evidence supported the two reasons—falsification of his resume and misuse of government property. However, the penalty was reduced to a 14-day suspension. (pp. 2-3)

Mr. Lee apparently decided not to file a grievance, which was his only recourse under the Civil Service Reform Act to challenge a 14-day suspension. Instead, he filed a discrimination complaint (age, race, sex, and disability). When that was dismissed, he then submitted a Privacy Act request asking that his records be amended to in effect wipe out the evidence relating to the falsification charge. (p. 3)

The Army declined to make the changes that Lee wanted. He went to the district court, seeking an order to correct his records as well as an award of damages. The government argued that Lee’s Privacy Act claims are nothing more than a collateral attack on the minor adverse personnel action and therefore are within the purview of the Civil Service Reform Act. It asked the court to dismiss the complaint, or, alternatively, to enter summary judgment for the agency. (p. 7)

After an exhaustive analysis of cases in the D.C. as well as the other circuits, the court sided with the agency: “…the Court agrees that plaintiff should not be allowed to use the Privacy Act as an ‘end-run’around the CSRA.”

With regard to Lee’s specific requests for amendment of his records, Judge Bates stated: “The Court does agree, however, that the true aim of plaintiff’s amendment claim is to obtain judicial review of a personnel decision. Taking his amendment requests one by one, it becomes clear that plaintiff is not challenging the accuracy of his records so much as asking this Court to rewrite his employment history.” (p. 16)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.