Dr. Shaller contested his dismissal from the Veterans Administration after he protested substandard care of patients on ventilators by persons untrained in same. 
 (in which Dr. David Shaller lost his VA job when he protested substandard treatment--
Telephone: Dr. Shaller. 717 288 5441, office; at home: 717 287 8524) 
Plaintiff: VS. : 3: CV 90-9069
Filed Scranton 

Defendant PER CTC 
Sep 30 1991 
------------------------------- MEMORANDUM AND ORDER--------------------------

Presently before the Court is a motion to dismiss based on lack of jurisdiction filed by the Defendant. The matter has been fully briefed and is ripe for disposition. For the reasons 
stated below, we shall grant the motion in part, and deny the motion in part. The court shall also provide for an amended practice order to allow this matter to proceed. 

This action was filed under the Federal Privacy Act by Dr. David A. Shaller against the Department of Veterans Affairs. It is the Plaintiff's belief that a proficiency report dated November 30, 1988, "contains false and misleading statements, misrepresentations, and inaccuracies." Document #10 at 2. In reliance on these alleged inaccuracies, the Plaintiff believes he received "an improper rating" of "low satisfactory". Id. 

The United States Attorney has moved to dismiss this matter based on jurisdictional grounds. It is the Defendant's belief that Dr. Shaller is using the Privacy Act in an inappropriate context- 
i.e., as a weapon to attempt collaterally to attack an agency's determination as to his work performance. The Privacy Act should be used, according to defense counsel, to allow for the 
correction of factual inaccuracies and is not to be used to change managerial opinions or conclusions. Thus, this court "is powerless" to fulfill the Plaintiff's request. Doc. No. 7 at 5. 

Moreover, counsel contends that since there is a comprehensive remedial scheme for viewing such personal matters, jurisdiction is lacking before the district court. Id. at 6. 

The Plaintiff, however, counters that he is attempting only to correct factual inaccuracies culminating in an improper rating of "low satisfactory". Plaintiff's counsel  believes that Doctor Shaller has no other legal avenue to pursue the results of his case and that the action is properly filed under the Privacy Act. 


The Defendant has moved to dismiss this action believing that this court has no power to act on the Plaintiff's claim. Jurisdiction is deemed not to lie where the federal claim asserted is immaterial, insubstantial or frivolous. See Sassower v. Dosal, 744 F.Supp. 908 (D. Minn. 1990) citing Franklin v. Oregon Welfare Division, 662 F.2d 1337, 1342 (9th Cir. 1981). 

As the United States Supreme Court stated in Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 

(1946): [A) suit may sometimes be dismissed for want of jurisdiction where the alleged claim under . . . federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such  claim is wholly insubstantial and frivolous. 2 Sassower, 744 F.Supp at 909, accord Hagans v. Lavine, 415 
U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 

(1974): Little is needed, however, for a plaintiff to assert a claim sufficient to give the federal court jurisdiction. Where the complaint "is so drawn as to seek recovery directly under the Constitution or laws of the United States," the district court must entertain the suit unless the federal claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous". Spencer v. Casavilla, 903 F.2d 171, 173 (2d Cir..1990), citing Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 775, 90 L.Ed. 939 (1946). 


The first grounds under the Privacy Act filed by the Plaintiff is a citation to 5 U.S.C. S. 552(a)(g)(1)(A). This section has been described the "amendment provision" because it is used to amend an inaccurate record. The Defendant argues that before this Court can venture to amend any matter presented to it under this provision, we must determine whether or not, the Plaintiff seeks to have the factual matters remedied or, instead, seeks to have agency personnel determinations reviewed. Document #7 at 4; Pellerin v. Veterans Administration, 790 F. 2d 1553 (11th Cir. 1986). The Defendant correctly asserts that the Privacy Act only allows for amendment of factual or historical errors and is not a vehicle to amend judgments of federal officials reflected in the records. Hubbard v. Environmental Protection Agency, 809 
3 F.2d 1 (D.C. Cir. 1986); Bevlins v. Plummer, 613 F. 2d 767, 768 (9th Cir. 1980); Tuesburg v. H.U.D., 652 F.Supp. 1044, 1048 (E.D. Mo. 1987); Roders v. United States Department of 
Labor, 607 F. Supp. 97 (N.D. Ca. 1985). 

The Defendant has categorized the Plaintiff's challenge as having this court amend the agency's determination that he was rated "low-satisfactory". This court must acknowledge that we are powerless to do such an act. The Privacy Act does not contemplate that a court will constitute itself as a personnel rating authority to substitute its judgment for the evaluation of performance conducted by a government employee's superiors. Hewitt v. Grabicki, 794 F.2d 1373, 1378 (9th Cir. 1986) citing Turner v. Department of Army, 447 F.Supp. 1207, 1212-13 (D. D.C. 1978), aff"d mem., 593 F.2d 1372 (D.C. Cir. 1979). 

In the strikingly similar case of Hewitt, supra, the court affirmed the granting of summary judgment against a doctor employed by the Veteran's Administration who sought to have corrections made to his proficiency report. The court denied his claim indicating that since there was no substantial 
dispute concerning the basic underlying facts, the court could not involve itself with the judgments made by the plaintiff's supervisors. 

Thus, the factual record is an item which can be addressed under the Privacy Act. The conclusions and characterizations made by a superior can not be addressed under the Act unless 
such judgments are made in reliance on a clearly erroneous factual record. As articulated in Hewitt: 

A court should be very hesitant to second-guess subjective evaluations and observations by an employee"s superiors where such matters are within the competence and experience of those superiors. The trial court should, however, carefully review the record to eliminate clear mistakes of fact, inaccurate opinions based solely upon such erroneous facts, and plainly irresponsible 
judgments of performance or character. See R.R. v Department of Army, 482 F.Supp. 770, 773-74 (D. D.C. 1980). The simplest test is to ask whether the allegation is that the record is inaccurate or instead that the authorized preparer of the record, although basing his judgment on accurate facts, reached the wrong conclusion -- whether amendment of the record is sought 
as to a matter of fact as opposed to expression of a judgment based on reliable facts. Russell, The Effect of the Privacy Act on Correction of Military Records, 79 Mil.L.Rev. 135, 142-145 (1978).
Hewitt, 794 F.2d at 1378-79. 

In this case, Shaller's complaint is a hybrid in that it is directed at both alleged factual inaccuracies and incorrect conclusions. Our concern is with the former factual inaccuracies they maybe addressed by this court. For example, Dr. Shaller was held responsible for delinquent discharge summaries in the disputed proficiency report. The alleged factual failure to timely maintain 
medical records resulted in his supervisor's judgment to rate Shaller "low satisfactory" in Category I of the proficiency report. See Complaint, Doc. No. 1, Exhibit A. 

The Plaintiff maintains, however, that he was not delinquent with any medical records and that, in his capacity as Chief Physician, he had not completed any discharge summaries in four years. Id., Exhibits B and F. 

Yet he was never cited for such "delinquent" medical records until after he began to expose alleged improprieties at the hospital. Moreover, the proficiency report cited Dr. Shaller's failure to sufficiently supervise the nurse practitioners as a reason for rating him low satisfactory. Id., Exhibit A. The Plaintiff stresses, however, that he was "not the "Supervisor" for the Nurse Practitioners" and was being held "accountable in areas where I have no authority". I-d. at B and F. Once 
again, the Doctor believes that he was being singled out in retaliation for his complaints about the quality of care at the hospital. 

At this point, it is unclear whether the inaccurate opinions based, in part, upon alleged erroneous facts can be addressed by this court. Under the circumstance, however, we believe that the challenge to the disputed factual record must go forward on the presumption that these alleged inaccuracies will expose any improprieties that may have occurred. 

Accordingly, as to the claim brought under 5 U. S. C. S 552 (a) (g) (1) (A) , the Defendant's motion is denied. 


The second grounds cited by the Plaintiff is the section of the Privacy Act allowing for damages for inaccurate records. See 5 U.S.C. S 552a (g) (1) (C) . In order to bring a damages claim under this provision, an individual must show that (1) an inaccurate record (2) proximately caused (3) an 
adverse determination concerning him. See Johnston v. Horne, 875 F.2d 1415, 1422-24 (9th Cir. 1989) ; Hubbard v. EPA, 809 F. 2d 1, 7-10 (D. C. Cir 1986) Hewitt, supra. TheDefendant 
claims that this court has no jurisdiction over the damage claim for basically two reasons: (1) there is a grievance procedure available to the Plaintiff to address personnel matters that precludes review by this court; and (2) there has been no showing that Plaintiff satisfied the standard for presenting a damage claim under the Privacy Act. 

As to the first contention, we acknowledge that the Privacy Act was not intended to supplant or circumvent established grievance procedures available to Federal employees, for to hold otherwise would undermine the effectiveness of agency grievance systems. See McDowell v. Cheney, 718 F.Supp. 1531, 1543 (M.D. Ga 1989); Henderson v. Social Security Administration, 716 F.Supp. 15, 16-17 (D. Kansas 1989). In this case, however, the Plaintiff is not looking for the remedies of reinstated or promotion traditional sought in personnel matters, but rather, like the 
Plaintiff in Doe v. F.B.I., 718 F.Supp. 90, 101-02 at n. 14 (D.D.C. 1989), correction or expungement of the record are more of a concern in this case. 

Moreover, the Privacy Act permits an individual to recover damages for an adverse personnel action actually caused by an inaccurate or incomplete record. See Doe, 718 F. Supp. at 102 citing Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988). In this case, Plaintiff Shaller believes that 
his application for employment with the University of North Carolina KRON Scholars Program was rejected based upon the adverse and inaccurate information contained in the proficiency report. Whether this is true can not be resolved on a motion to dismiss based on jurisdictional challenge. The burden lies with the Plaintiff when, at the appropriate time, he is placed to the test of proving his case. This may occur under Rule 56 disposition or at trial, but it can not be addressed at this stage of the proceedings. 

Accordingly, as to the claim brought under 5 U.S.C. S552a(g)(1)(C), the Defendant"s motion is denied. 

Finally, Plaintiff-has cited 5 U.S.C. S 552a(d) in an attempt to demonstrate the difficulty he has encountered in obtaining his records. From the briefs submitted by the parties, it would appear that there are no records that are missing or unobtainable, just that bureaucratic red tape has caused the Plaintiff to go though the "proper channels" before he obtained his records. To the extent that any claim has been presented, it does not appear to be substantial in nature. See Sassower v. Dosal, 744 F.Supp. 908 (D. Minn. 1990). 

Accordingly, to the extent that this portion of the Plaintiff's claim is immaterial, we shall grant the 
Defendant's motion. 

An appropriate Order is attached. 

Richard P. Conaboy, Chief Judge 
Middle District of Pennsylvania 
DATE: 9/30/91 

Plaintiff : 
VS. : 3: CV 90-2069 
----------------------------------- ORDER-------------------------------------

NOW, this 30th day of September, 1991, IT IS ORDERED THAT: 

1. The Defendant's motion to dismiss is granted in part and denied in part. 

2. As to the Plaintiff's claims presented under 5 U.S.C. 552(a)(g)(1)(A) and (C), the Defendant's motion is denied. 

3. As to the Plaintiff's claim presented under 5 U.S.C. 552a(d), the Defendant's motion is granted. 

4. The following revised scheduling order is provided: 

(a) Trial Date - This matter is removed from the December 1991 trial list and placed on the June 1992 trial list. 

(b) Discovery - All discovery shall be completed on or beforeFebruary 20, 1992. 

(c) Motions - All dispositive motions shall be filed on or before April 15, 1992. All other motions shall be filed by May 15, 1992. 

(d) Experts - Plaintiff shall supply the Defendant with the name and report of any expert on or before March 1, 1992. Defendant shall supply the Plaintiff with the name and report of any expert on or before April 1, 1992. 

(e) other provisions of the Practice Order are to be observed, including the need periodic status reports to the court. 

Richard P. Conaboy, Chief Judge 
Middle District of Pennsylvania 
DATE: 9/30/91