On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Civil Action No. 90-01822)
Before: Becker, Nygaard and Higginbotham, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
In 1723, England responded to an upsurge of poaching by passing the Black Act, prescribing the death penalty for those who, in any of the King's forests, "unlawfully and wilfully hunt, wound, kill, destroy, or steal any red or fallow deer."*fn1 Even for its time, such a penalty was harsh, but the hunting of deer was a matter of vital economic concern for that agrarian society. While deer-hunting is no longer punishable by death and is indeed now seen more as a sport than as a livelihood, the issues presented by this appeal touch upon a concern which is considered equally vital by our present-day society: privacy. By improperly disclosing information about a pair of deer hunters, information that was protected by the Privacy Act, government employees here may have impermissibly intruded into the private space of the appellants. In reversing the district court's grant of summary judgment for the appellees and remanding the case, we will consider several issues concerning the scope of the Privacy Act and the requirements for maintaining a suit for damages under its provisions. Because of the labyrinth of the Privacy Act, we must write extensively to demonstrate why there are some genuine material facts which may be in dispute and which thus preclude the granting of summary judgment on some issues.
I. Facts and Procedural History
Appellants Randall Quinn (Quinn) and Marianne Merritt (Merritt) are married to each other and work at the Letterkenny Army Depot (LEAD) in Chambersburg, Pennsylvania as civilian employees. Appellee Michael P.W. Stone is the Secretary of the Army*fn2 and the second appellee is the Department of the Army.*fn3 At LEAD, Quinn is a natural resource manager and Merritt is an environmentalist. Quinn is responsible for controlling the deer population on LEAD property by setting the length of the hunting season and determining the types of deer to be killed.
In the fall of 1989, Quinn investigated the possibility of contracting LEAD game law enforcement duties to the Pennsylvania Game Commission (PGC). If realized, this plan would have reduced the number of overtime hours worked by Security employees at LEAD. Quinn's proposal was apparently never implemented. Additionally, Quinn decided that the length of the 1989-90 deer hunting season on LEAD property should be extended in order to reduce the deer population which was above the recommended level. For similar wildlife management reasons, Quinn also decided that piebald ("white") deer, previously off-limits to hunters, should be killed that year. Captain Beth Muench, in charge of security at LEAD, opposed the extension of the hunting season, citing logistical and staffing problems that the extension would create. Lieutenant George Statler (Statler), the LEAD Hunting and Fishing Coordinator, who worked in the Security Division, also opposed the extension of the season and the killing of the piebald deer. According to appellants, these work-related disputes provided the impetus for the subsequent alleged disclosures of information by members of the Security Division at LEAD.
In addition to their professional interest in LEAD's wildlife, Quinn and Merritt are both deer hunters and hunt deer on LEAD property with other hunters. Quinn and Merritt are registered with the Pennsylvania Game Commission and possess valid Pennsylvania hunting licenses. Quinn and Merritt also have "bonus tags" which allow the holder to kill one additional deer during the hunting season. Both also possess valid LEAD hunting permits.
On January 6, 1990, Quinn and Merritt went hunting on LEAD property. At check-in Post 2, both Quinn and Merritt complied with the LEAD procedures whereby all hunters are required to produce their Pennsylvania hunting licenses and LEAD hunting permits. As part of this check-in procedure, the LEAD Security employees annotate a computer-generated hunting roster, which lists all hunters with LEAD hunting permits. Each entry on this roster corresponds to a single hunter and consists of:
a. the LEAD permit number
b. the Pennsylvania hunting license number
c. the name of the hunter
d. the address of the hunter
e. the phone number of the hunter.*fn4
The hunting roster is computer-generated at the beginning of the hunting day, with the check-in time, check-out time, and kill information added by hand as the day progresses.
The computer-generated LEAD hunting roster for January 6, 1990 incorrectly gave separate addresses and phone numbers for Quinn and Merritt. The roster indicated that Quinn lived at an address in St. Thomas, Pennsylvania and Merritt in Chambersburg, Pennsylvania. Both parties agree that Merritt's listed address was incorrect and out-of-date. Apparently, her prior address was never changed in the LEAD files, even though Merritt had written her new address on her LEAD hunting permit application, her LEAD hunting license, her application for a Pennsylvania hunting license, and her Pennsylvania hunting license for the 1988-89 and 1989-90 hunting seasons.
Two of Security personnel conducting the check-in at Post 2 during the day were Lark Myers (Myers) and Statler. Statler personally observed Quinn and Merritt checking in to hunt. Shortly after Quinn and Merritt checked in, Myers mentioned to Statler that Quinn had previously brought a deer to Myers' fiance's butcher shop to be butchered. Statler questioned how Quinn could still be hunting this season if he had already killed one deer. Statler reviewed the roster and found Quinn's name. Statler then looked for Quinn's wife's name but did not recognize Merritt's name. He then asked Myers what Quinn's wife's name was and Myers told him that she thought Merritt continued to go by the name of Merritt after her marriage to Quinn. Statler again reviewed the hunting roster and found Merritt's entry. Statler noted that the home address listed for Merritt was different from that listed for Quinn and remarked on this to Myers.
Later that morning, Statler reported to David Miller (Miller), an investigator in LEAD Security, the information that Quinn and Merritt were hunting and that they had taken a deer to be butchered earlier during the hunting season. Miller then informed Jody Eyer (Eyer), a part-time Deputy Wildlife Conservation Officer with the Pennsylvania Game Commission, of Quinn's and Merritt's hunting even though Quinn had previously killed a deer that season. Eyer believed that there were grounds to suspect that a hunting violation had occurred since a hunter is generally allowed to kill only one deer a season. Eyer contacted Statler and spoke with him directly. He also reviewed the hunting roster. Eyer turned the case over to Frank Clark (Clark), a full-time PGC Wildlife Conservation Officer, for investigation, although Eyer continued to aid in the investigation.
On January 9, 1990, LEAD's Miller met with PGC's Clark. In this meeting, Clark reviewed the hunting roster generated at Post 2 and noted the discrepancies between Quinn's and Merritt's listed addresses. To Clark, the two addresses raised the possibility that Quinn and Merritt "had used two addresses to illegally obtain two sets of hunting licenses." At this meeting, Clark requested that LEAD review available files to determine the correct addresses. LEAD investigator Fox (Fox) did so but was unable to determine the correct addresses.
After the January 9, 1990 meeting, Clark checked the local telephone book. Quinn's address and telephone number were listed, but Merritt's home address was not listed. Clark thus contacted the agent (K-Mart) which had issued Merritt's Pennsylvania hunting license and obtained Merritt's hunting license application. Merritt had listed her address on this application as being the same as Quinn's. Clark thus concluded that there was no evidence that Quinn and Merritt had improperly used separate addresses to obtain two sets of hunting licenses.
Clark nevertheless continued his investigation and confirmed through interviews with witnesses at the butcher's shop that Quinn had brought a deer to the butcher's prior to hunting at LEAD. Clark then interviewed Quinn on February 28, 1990. Quinn told Clark that he and Merritt had obtained "bonus tags" for another Pennsylvania county and that Merritt had killed the deer that was brought to the butcher's in that other county. Clark asked to see the bonus tags to verify the story. Quinn agreed to show Clark the bonus tags which were at Quinn's home. Quinn arranged a later meeting and gave Clark the address of his house and directions there. On March 3, 1990, Clark went to Quinn's home where Quinn produced the valid bonus tags.
As we explain in more detail below, the parties dispute exactly when and how, but both agree that Clark received from LEAD Security at some point between Feb. 27, 1990 and March 5, 1990 information that indicated Merritt was in fact working on Dec. 11, 1989, the day that Merritt killed the first deer. It is not in dispute that on March 5, 1990, Fox went and obtained from Barbara Davis in LEAD's Finance and Accounting Office the information that Merritt's time card showed that she worked a full eight hours on Dec. 11, 1989. At a later point, Fox corrected the information Clark had initially received and told Clark that Merritt's supervisor had not properly completed the agency time cards and that Merritt was in fact not working on Dec. 11, 1989. Having determined there was no evidence to charge Quinn or Merritt with hunting violations, Clark closed his investigation.*fn5
The appellants allege that both suffered occupational and health damage as a result of the disclosures. Quinn alleges that he suffered damage to his professional image, reputation, integrity and working relationship with LEAD and PGC personnel. Merritt alleges that her reputation for "law-abidingness and integrity" was damaged. Quinn also alleges suffering from stress, headaches, hypertension, chest pains, sinusitis, nervousness, and inability to sleep. Merritt alleges she suffered stress, nervousness, and inability to sleep. Both allege they suffered emotional anguish.
Quinn and Merritt filed separate actions alleging violations of the Privacy Act, 5 U.S.C. § 552a, and seeking an order directing the Army to purge its files of records relating to the plaintiffs and damages for violations of the Act. The district court granted the defendants' motion to consolidate the actions and on September 18, 1991 granted the defendants' motion for summary judgment. Plaintiffs filed a timely appeal. Subject matter jurisdiction is based on 5 U.S.C. § 552a(g). We have appellate jurisdiction under 28 U.S.C. § 1291.
In reviewing a grant of summary judgment, we apply the same standard the district court should have used initially. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). We must reverse unless it is plain that no genuine issue as to a material fact remains for trial and ...