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September 28, 1994

EDWARD A. HARRY, Plaintiff

The opinion of the court was delivered by: RICHARD P. CONABOY

 Presently before the Court is Defendant's Motion for Summary Judgment (Doc.No. 15) to which Plaintiff has responded and Plaintiff's Motion for Summary Judgment on the issue of liability (Doc.No. 18). The Defendant has responded to the motion. We have carefully reviewed the proffered arguments. For the reasons stated below, we grant the Defendant's Motion for Summary Judgment.


 On September 30, 1992, Plaintiff initiated this Privacy Act-wrongful disclosure action against his employer, United States Postal Service (hereinafter "USPS") and the Postmaster General. On April 19, 1993 Plaintiff filed an amended complaint seeking relief for violations of the Privacy Act of 1974, 5 U.S.C. ยง 522(a) et seq. (1977). Plaintiff claims the violations were in three forms: (1) an intentional failure to maintain his records; (2) intentional disclosure of confidential information; and (3) failing to respond to request for documents made pursuant to the Privacy Act.

 On July 21, 1993, Defendant filed a Motion for Summary Judgment alleging, inter alia, that Plaintiff's claims should be dismissed for failure to meet the statute of limitations and that the Plaintiff's complaints are not actionable under the Privacy Act. (Doc.No. 15). Before responding to the Defendant's motion, the Plaintiff then filed a Motion for Summary Judgment on the issue of liability. (Doc.No. 18). On August 9, 1993, Plaintiff filed his opposition to Defendant's Motion for Summary Judgment. (Doc.No. 21). Shortly thereafter, on August 23, 1993, Defendants reply brief to Plaintiff's motion was submitted. (Doc.No. 23).


 On June 27, 1988, Harry and the USPS entered into a settlement agreement in a hearing before Mary M. Cleland, EEOC Administrative Law Judge. In return for a cash settlement and an adjustment of annual leave, Harry agreed to withdraw all EEO complaints, grievances, NLRB claims, and Privacy Act complaints up through the date of the agreement. Both parties agreed to keep the terms of the settlement confidential. The ALJ noted that "the agency has agreed not to disclose to anyone the terms of the agreement except for those individuals necessary to accomplish the terms of the settlement agreement; in other words, to pay (Harry the sum of money . . . and to credit . . . (his) annual leave . . . ." See D-1 Statement of Material Facts.

 On December 8, 1988, Plaintiff Harry made a request to Tom Bly, Postmaster of the Hazleton office of the USPS, to review his personnel and medical records. *fn1" (Doc.No.10, amended complaint at P 8). On January 26, 1989, Plaintiff Harry examined his files in the Hazleton Post Office. He claims that during the review he discovered errors in their maintenance. Specifically, he contends that certain records were incorrectly purged and others, which he had never seen before, were wrongfully retained. In addition, Harry found a problem with the file cabinet being unlocked in an unrestricted area of the post office. Subsequently Mr. Bly placed all files pertaining to Harry in a locked cabinet in his office. Nevertheless, on April 1, 1988, Harry filed a formal EEOC complaint claiming handicap discrimination and the improper storage and filing of his files. In response, on May 5, 1989, the Postal Service issued a final agency determination denying his claims.

 In granting a request to reopen on January 24, 1990, the EEOC upheld the USPS decision to deny the discrimination action on the ground that EEO contact was untimely, but ordered the USPS to consider the Privacy Act claim, since the issue was not addressed in the agency's determination and was timely raised. The EEOC placed the date when Harry discovered that documents concerning him were allegedly purged and misfiled as January 29, 1989.

 On August 14, 1990 and October 9, 1990, Harry entered into settlement agreements with the USPS, in which he withdrew his Privacy Act claims (his EEO complaint). Harry then proceeded to contact Congressman Paul Kanjorski by letter dated June 13, 1990. The letter concerned the Privacy Act violations he believed the Postal Service committed. It specifically requested the Congressman's "help and intercession" in obtaining a "full and independent investigation into the reluctance of the USPS and the U.S.Attorney's Office to investigate this Privacy Act Complaint." (Doc.No. 10, Amended Complaint).

 Although Plaintiff seems to take issue with how thorough the investigation was, the Inspection service did initiate an investigation and on June 25, 1991, Barbara Burnhauser, a postal inspector did submit a report to Clauson. Attached to her final report was a copy of an EEO Settlement Agreement between Harry and USPS.

 Following the receipt of Ms. Tagen's letter and Burnhauser's report, Clauson wrote to Congressman Kanjorski again on September 6, 1991. In his letter Clauson stated that in the 1988 settlement, Harry had agreed to withdraw all grievances, Privacy Act claims and congressional inquiries. He further indicated that additional settlements were reached on August 14 and October, 1990. He went on to describe, according to the accounts of the different postmasters, the maintenance of Harry's files. (Doc.No.10, amended complaint, Exh."F").

 On October 29, 1991, Harry wrote to Joseph E. Stokes, Manager of EEOC Complaint Processing in the USPS Harrisburg Division complaining that the unwarranted disclosure of the terms of the 1988 Settlement Agreement constituted a violation of the Privacy Act. Congressman Kanjorski also wrote to Clauson to this effect on February 5, 1992. (Doc.No.10, amended complaint, Exh."I"). Clauson responded to the Congressman on June 8, 1992. In his letter, Clauson provided additional details pertaining to the maintenance of Harry's files, and indicated that Harry had authorized the disclosure of some of the terms of the 1988 settlement agreement. (Doc.No. 10, amended complaint, Exh."J"). In an attempt to disprove Defendant's assertion that he authorized disclosure, Plaintiff Harry, on June 8, 1992, sent a request to Raymond Monroe, Division Manager of the USPS asking for copies of his files and specfically requesting any document indicating his authorization of the disclosure of the confidential settlement terms. See Exh."A" to Harry Declaration.


 Federal Rule of Civil Procedure 56(c) requires that we render summary judgment " . . . forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "This standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-8, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis in original).

 Accordingly, in order for a moving party to prevail on a motion for summary judgment, the party must show two things: (a) that there is no genuine issue as to any material fact, and b) that the party is entitled to judgment as a matter of law. F.R.C.P. 56(c); See 7 Wright & Miller, Federal Practice and Procedure; Civil Section 2712. A fact is "material" if proof of its existence or nonexistence would effect the outcome of the lawsuit under the law applicable to the case. Anderson, 477 U.S. at 248; Levendos v. Stern Entertainment Inc., 860 F.2d 1227, 1233 (3d Cir. 1988). An issue of material fact is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. *fn2" Anderson, 477 U.S. at 257; Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir. 1987); Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).

 In determining whether an issue of material fact does exist, all inferences must be drawn against the moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988); 6 J. Moore, Moore's Federal Practice P56.04[2]. In order to stave off a summary judgment motion, however, the non-moving party may not rest on the bare allegations contained in his or her pleadings. Once the moving party has satisfied its burden of identifying evidence which demonstrates an absence of a genuine issue of material fact, see Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988), the nonmoving party is required by Federal Rule of Civil Procedure 56(e) *fn3" to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When Rule 56(e) shifts the burden of proof to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of ...

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