William H. Payne v. Equal Employment Opportunity Commission 00-2021 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _____________________________________________ No. 00-2021 ______________________________________________ WILLIAM H. PAYNE, Plaintiff/Appellant, V. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants/Appellees. ______________________________________________ On Appeal from the United States District Court for the District of New Mexico ________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ________________________________________________ STATEMENT OF JURISDICTION This is an appeal from the district court's judgment granting a motion of the Equal Employment Opportunity Commission ("EEOC" or "Commission") to dismiss Plaintiff's claim under the Privacy Act, 5 U.S.C. § 552a. The district court had jurisdiction of this matter pursuant to 28 U.S.C. § 1331. A final order was entered by the district court in the case on November 24, 1999. This Court has jurisdiction over appeals from the district court's final order pursuant to 28 U.S.C. § 1291. STATEMENT OF ISSUESI. Whether the district court properly dismissed Plaintiff's Privacy Act complaint for failure to state a claim and lack of jurisdiction. II. Whether the Magistrate Judge abused his discretion by not recusing himself from the case. STATEMENT OF THE CASE I. Course of Proceedings Mr. Payne filed a complaint in federal district court on March 12, 1999, alleging, inter alia, that the EEOC<1> violated the Privacy Act, 5 U.S.C. § 552a, by disclosing documents that allegedly defamed him. (R-1.)<2> The case was assigned to Magistrate Judge Donald J. Svet pursuant to D.N.M. LR-CV-73(a). On March 24, 1999, Mr. Payne filed an affidavit to remove Judge Svet and, on the same day, signed and filed a notice of consent to proceed before Magistrate Judge Lorenzo F. Garcia (R-2, 4.) On May 12, 1999, Mr. Payne filed a second affidavit to remove Magistrate Judge Svet from the case. (R-13.) On June 2, 1999, the Chief Magistrate Judge ordered the case referred to Magistrate Judge Karen B. Molzen. (R-25.) As a result, Magistrate Judge Lorenzo F. Garcia ruled that Mr. Payne's motions to dismiss Magistrate Judge Svet were moot. (R-26.) On June 8, 1999, Mr. Payne moved to have Magistrate Judge Garcia removed from the case. (R-34.) Magistrate Judge Garcia denied that motion the following day. (R-35.) Mr. Payne's subsequent attempts to remove Magistrate Judge Garcia were also denied. (R-38, 42, 90, 91, 92, 108.) On September 9, 1999, the EEOC filed a motion to dismiss for lack of jurisdiction and failure to state a claim. (R-68.) On September 17, 1999, Mr. Payne filed a motion for summary judgment. (R-72.) Magistrate Judge Garcia declined to rule on any motions, however, because Mr. Payne had filed a notice of appeal in the Tenth Circuit on August 23, 1999, divesting the district court of jurisdiction. (R-66, 79, 80.) On November 5, 1999, the Tenth Circuit rejected Mr. Payne's appeal. On November 10, 1999, Judge Garcia issued eight orders, granting several individual defendants' motion to dismiss, striking Mr. Payne's response to a motion for sanctions, and denying several of Mr. Payne's motions. (R-88,89,90,91,92,93,94.) On November 24, 1999, Magistrate Judge Garcia dismissed Mr. Payne's claims with prejudice. (R-95, 96, 97.) On November 30, 1999, judgment was entered in favor of the EEOC, DOE, and the individually named DOE and EEOC defendants. (R-105, 106, 107.) On December 12, 1999, judgment was entered in favor of Sandia, individual Sandia employees, and defendants AT&T and Lockheed Martin. (R-112.) Mr. Payne filed a notice of appeal on January 11, 2000. (R-118.) II. Statement of Facts William Payne was terminated by Sandia in July 1992. (R-97, District Court's Memorandum and Order Granting EEOC's Motion to Dismiss, at 2) ("District Court's Order") (attached in addendum). Mr. Payne subsequently filed a wrongful discharge suit against Sandia and his complaint was summarily dismissed by the district court. (District Court's Order, at 3.) This Court affirmed that dismissal. Id. Not long after Mr. Payne was terminated, another Sandia employee, Richard Gallegos, filed a charge of age discrimination against Sandia with the EEOC's Phoenix District Office. Id. As part of the EEOC's investigation of Mr. Gallegos' disparate treatment claim, it sought information from Sandia concerning discipline imposed on similarly situated employees, including Mr. Payne. Id. This information was placed in Mr. Gallegos' charge file and released to him when he requested it for litigation. Id. at 5. Mr. Payne later obtained the documents indirectly from Mr. Gallegos and posted them on various Internet web cites. Id. at 4-5. It is the information contained in the employment records given to the EEOC by Sandia that Mr. Payne alleges was unlawfully disclosed. Prior to giving the documents to the EEOC, Sandia removed the names of the employees and substituted numbers for purposes of identification. Id. at 3-4. Two of the three documents in question contain no reference to Mr. Payne, either by name or by number. Id. at 3. The third document is a Sandia termination of employment notice with a number substituted for the employee's name. At the bottom of that document, however, the signature of "W.H. Payne" appears. No other reference to Mr. Payne is contained in the document. Id. at 3-4. Mr. Payne filed a claim in March 1999, alleging that the EEOC and various individual EEOC employees violated the Privacy Act by providing that document to Mr. Gallegos as part of his case file. (R-1.) In two decisions issued on November 24, 1999, the district court dismissed all claims against the EEOC and its employees. (R-96, 97.) In its decision dismissing the lawsuit against the individuals, the court ruled that the Privacy Act provides a cause of action against agencies of the federal government but does not afford a civil remedy against individual officers or employees. (R-96.) The court also held that Mr. Payne failed to effect proper service of process and dismissed his claims with prejudice.<3> The district court also granted the Commission's motion to dismiss for failure to state a claim and lack of jurisdiction. (R-97.) The court ruled that even accepting the Plaintiff's allegations as true, he did not, and cannot, state a claim for violation of the Privacy Act. Id. at 8. The court agreed with the EEOC that the Privacy Act was inapplicable to the documents in question because they were neither maintained nor retrievable by Mr. Payne's name. Id. at 7. The court held that the Privacy Act does not prohibit disclosure to a charging party of information in his charge file that happens to reference a third person such as Plaintiff. Id. SUMMARY OF ARGUMENT In his brief, Mr. Payne argues that the district court erred in dismissing his Privacy Act claim. Based on the undisputed evidence in the record, however, it is clear that the ruling of the district court was proper. The EEOC released a charge file to the charging party in an age discrimination case that contained one document with Mr. Payne's signature on it. That file is indexed and retrievable solely by the charging party's name and not by Mr. Payne's name; thus, Mr. Payne cannot demonstrate, as he must, that this information was contained in a "system of records." Based on this fact, the district court properly determined that Mr. Payne could not maintain a Privacy Act claim. Furthermore, the record fails to demonstrate, as mandated by the Privacy Act, that the disclosure of the allegedly defamatory information by the EEOC was "willful or intentional," or that it caused any "adverse effect." In addition, Magistrate Judge Garcia was well within his discretion in rejecting Mr. Payne's attempts to disqualify him from the case. Mr. Payne's requests to disqualify the Magistrate Judge, after actively participating in proceedings before the court, were necessarily untimely. Furthermore, a party may file only one such affidavit in any case, and it is undisputed that Mr. Payne filed over ten here. Finally, Mr. Payne's attempts to remove the Magistrate Judge were legally insufficient because he failed to make a showing of either actual or apparent bias. The district court therefore properly rejected Mr. Payne's recusal requests. ARGUMENTI. THE MAGISTRATE JUDGE PROPERLY DISMISSED MR. PAYNE'S COMPLAINT FOR FAILURE TO STATE A CLAIM AND LACK OF JURISDICTION UNDER THE PRIVACY ACT A. Standard of Review This Court reviews a Rule 12(b)(6) motion to dismiss for failure to state a claim de novo. See Bauchman ex rel. Bauchman v. West High Sch., 132 F.3d 542, 550 (10th Cir. 1997). A claim may be dismissed under Rule 12(b)(6) where the party asserts a legal theory that is not cognizable as a matter of law or because the party's complaint fails to allege sufficient facts to support a cognizable legal claim. See Whitney v. State of New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997). A pro se plaintiff's pleadings are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Pro se status, however, "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). B. The Magistrate Judge Properly Dismissed Mr. Payne's Complaint for Failure to State a Claim and Lack of Jurisdiction Under the Privacy Act The Privacy Act of 1974 controls the government's collection and dissemination of information and the maintenance of its records. See Gowan v. United States Dept. of Air Force, 148 F.3d 1182, 1187 (10th Cir. 1998). The Act provides that "[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or another agency, except pursuant to a written request by, or with the prior written consent of the individual to whom the record pertains. . . ." 5 U.S.C. § 552a(b). To state a claim for a violation of the Privacy Act's prohibition against disclosure,<4> a plaintiff must demonstrate: (1) the information came from a "record" in a "system of records;" (2) it was communicated to someone else; (3) the communication was without the individual's consent or does not fall within one of the statute's exceptions; (4) the communication was made willfully or intentionally; and (5) the communication caused an "adverse effect" on the individual. See Gowan, 148 F.3d at 1193. The Privacy Act defines a "system of records" as "any group of records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5). We argued below, and the district court agreed, that Mr. Payne cannot make this showing because "Payne's name is not contained in a 'system of records' since the challenged documents are neither maintained nor indexed by Payne's name, nor can they be retrieved by Payne's name." (R-68; R-97, District Court's Order, at 7). Here, the record reveals that the Sandia documents were contained in an EEOC charge file that was created for the purpose of investigating an age discrimination charge filed by a third party, Mr. Gallegos.<5> It is undisputed that any such charge file would be indexed and retrievable by the charging party's name and not by Mr. Payne's name.<6> This fact is fatal to Mr. Payne's claim. See Rice v. United States, 166 F.3d 1088, 1092 n.4 (10th Cir. 1999) (holding that the Privacy Act "requires that the disclosed information come from a 'system of records'"); Wren v. Heckler, 744 F.2d 86, 88 (10th Cir. 1984) (same); Thomas v. Department of Energy, 719 F.2d 342, 345 (10th Cir. 1983) (applying "system of records" restriction to a disclosure claim under Privacy Act); see also Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989) (noting "system of records" is "the all-out basic requirement of the [Privacy] Act").<7> Furthermore, Mr. Payne has alleged only that documents were released to Mr. Gallegos. Nothing in the Privacy Act prohibits disclosure of a charge investigative file to the charging party to whom the file pertains. Such a disclosure would be in accordance with the Privacy Act and the EEOC's Privacy Act procedures. See Wren v. Harris, 675 F.2d 1144, 1146 (10th Cir. 1982) (noting that "when the individual to whom the information pertains is also the individual requesting the information, the Privacy Act presumes that disclosure to that individual will occur"); see also Privacy Act System Notice, 59 Fed. Reg. at 11057-058. That a third party's name is merely mentioned in a document of this sort, therefore, does not support a Privacy Act claim. See Voelker v. IRS, 646 F.2d 332, 333 (8th Cir. 1981)(noting that if Congress intended to prohibit disclosure of information "in one person's record that pertains to another person" it could have added an additional exemption to the Privacy Act); Crompton v. United States, 843 F. Supp. 751, 756 (D.D.C. 1994), aff'd on other grounds, 59 F.3d 1400 (D.C. Cir. 1995). The district court agreed, holding that "[t]he mere fact that Payne's signature appears on a document that ultimately was released to Gallegos does not elevate this claim to a violation of the law." (R-97, District Court's Order, at 8.) The court therefore concluded that the Privacy Act was not implicated and declined to consider any further issues related to the claim. Id. In addition, Mr. Payne has failed to demonstrate the additional factors necessary to support a Privacy Act claim. For example, he has presented no evidence of any "intentional or willful" conduct by the EEOC or any "adverse effect" as a result of the disclosure of the document to Mr. Gallegos. The Privacy Act defines "intentional or willful" as "action so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful, or conduct committed without grounds for believing it to be lawful or action flagrantly disregrading others' rights under the Act." 5 U.S.C. § 552a(g)(4). To be entitled to the civil remedy provided by the Act, a plaintiff must establish that the agency acted in such a manner. See Pippinger v. Rubin, 159 F.3d 519, 530 (10th Cir. 1997). Mr. Payne has alleged no actions by the EEOC even remotely suggestive of this level of conduct. Similarly, Mr. Payne has not demonstrated any "adverse effect" by the disclosure of the information to Mr. Gallegos. To state a claim under the Privacy Act, a plaintiff must allege a causal connection between the agency violation and an adverse effect. See Quinn v. Stone, 978 F.2d 126, 135 (3d Cir. 1992). While allegations of embarrassment due to public disclosure of personal information have been held sufficient to satisfy this element, see Parks v. IRS, 618 F.2d 677, 682-83 (10th Cir. 1980), it is undisputed that Mr. Payne publicly posted this information himself on the Internet. Although Mr. Payne alleges that the actions of the EEOC have eliminated his future employment possibilities, he has not offered evidence or an explanation of how that is so. (Payne Brief at 7.) Similarly, he has not demonstrated how the EEOC's actions contributed in any way to him allegedly losing "security clearance and SCI access." Id. Mr. Payne therefore cannot demonstrate the necessary causal connection between agency action and adverse effect. In sum, Mr. Payne has failed to demonstrate that the information disclosed by the EEOC was contained in a "system of records" retrievable or indexed under his name, that the disclosure was willful or intentional, or that it caused him any adverse effect. The district court therefore correctly determined that Mr. Payne did not state a cognizable claim under the Privacy Act and properly ruled that it had no jurisdiction to consider the claims. II. THE MAGISTRATE JUDGE PROPERLY DECLINED TO RECUSE HIMSELF FROM THE CASE A. Standard of Review This court will review the denial of a motion to recuse only for an abuse of discretion. See United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). B. The Magistrate Did Not Abuse His Discretion in Refusing to Recuse Himself From the Case Mr. Payne's affidavit to recuse was filed pursuant to 28 U.S.C. § 144. To prevail on a motion under 28 U.S.C. § 144 to recuse a judge, the litigant must file a timely and sufficient affidavit establishing that the judge has a personal bias or prejudice. See Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987). An affidavit filed in support of recusal is construed against the affiant, and there is a substantial burden on the moving party to demonstrate that the judge is not impartial. Id. The affidavit of bias and prejudice in this case was neither timely made nor legally sufficient. First, as to timeliness, the statute requires that the filing of an affidavit must occur prior to a litigant's participation in the proceedings or any affirmative action by the court. See Hall v. Burkett, 391 F. Supp. 237 (W.D. Okla. 1975). Here, prior to filing his affidavit to recuse Magistrate Judge Garcia, Mr. Payne filed a notice consenting to the assignment of Garcia to act as trial judge in the case and an affidavit attempting to remove Magistrate Judge Svet from the case. (R-4, 13.) He also filed a response to Defendant's answer (R-7), a motion for order of service (R-10), a motion for order to accept discovery plan (R-11), a second motion for order of service (R-12), and five motions for reconsideration. (R-15, 30, 31, 32, 33.) It is therefore clear from this record that Mr. Payne actively participated in the proceedings prior to filing the affidavit to recuse Magistrate Judge Garcia and, therefore, the affidavit was untimely. In addition, Mr. Payne offered no reason for the delay in filing the affidavit, and simply alleged (after Magistrate Judge Garcia had ruled against him numerous times) that there was bias against him. That is insufficient. See Hall, 391 F. Supp. at 241 (noting that affiant must demonstrate good cause for any delay in filing). Furthermore, 28 U.S.C. § 144 provides that "[a] party may only file one such affidavit in any case." This requirement has been strictly construed, even in regard to pro se plaintiffs. See In Re Schaefer, 154 B.R. 227, 230 (S.D. Tex. 1993). Here, Mr. Payne filed his first affidavit to disqualify Magistrate Judge Svet on March 24, 1999. Magistrate Judge Garcia therefore properly denied his June 8, 1999 affidavit as untimely under the terms of 28 U.S.C. § 144. United States v. Anderson, 433 F.2d 856, 859 (6th Cir. 1967). For the same reason, Magistrate Judge Garcia properly denied Mr. Payne's subsequent attempts to disqualify him from the case. Next, Magistrate Judge Garcia properly ruled that Mr. Payne's affidavits were legally insufficient. To disqualify a judge, a movant must demonstrate that a reasonable person, knowing all the circumstances, would harbor doubts about the judge's impartiality. See Cauthon v. Rogers, 116 F.3d 1334, 1336 (10th Cir. 1997). Conclusions, rumors, beliefs, and opinions are not sufficient to form a basis for disqualification of a judge. See Hinman, 831 F.2d at 939. "The affidavit must state with required particularity the identifying facts of time, place, persons, occasion, and circumstances." Id. Here, even viewing his motion liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), Mr. Payne's affidavit contained only a conclusory assertion that Magistrate Judge Garcia was biased and prejudiced. Mr. Payne merely stated that Magistrate Judge Garcia had not yet removed Magistrate Judge Svet from the case, that he was biased, that he failed to correct "false statements," and that he "disregard and flaunted" the laws of the United States." Based on these conclusory assertions, with no factual basis to support them, Mr. Payne's petition seeking the recusal of the district court judge was insufficient as a matter of law. See Burger, 964 F.2d at 1070; Singer v. Wadman, 745 F.2d 606, 608 (10th Cir. 1984). In sum, Mr. Payne's requests to disqualify Magistrate Judge Garcia were untimely and excessive, and he failed to make a sufficient showing of either actual or apparent bias or prejudice. There was, therefore, no abuse of discretion in denying the motion. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997); Willner v. University of Kan., 848 F.2d 1023, 1026-28 (10th Cir. 1988). CONCLUSION For the foregoing reasons, the Commission urges this Court to affirm the judgment of the district court. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _________________________ LISA J. BANKS Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4772 April 10, 2000STATEMENT REGARDING ORAL ARGUMENT The Commission does not believe that oral argument is warranted in this case. This Court can decide the issues presented on appeal based solely on the record below. There are neither complex facts nor complex legal arguments involved in the case and oral argument would not materially assist the Court in resolving the issues presented. 1 Mr. Payne also named as defendants the Department of Energy ("DOE"), Sandia National Laboratories ("Sandia"), American Telephone and Telegraph Corporation ("AT&T"), and Lockheed Martin Corporation ("Lockheed Martin"). 2 Entries in the record, found in the district court docket sheet, are cited to as "R" followed by the docket entry number. 3 The United States Attorney for the District of New Mexico represents the EEOC individuals. 4 The Privacy Act provides four causes of action: (1) for an agency's failure to review the denial of an amendment or to attach a state of disagreement; (2) for an agency's denial of access to records; (3) for an agency's failure to maintain its records with accuracy, relevance, timeliness, and completeness to assure fairness in determinations; and (4) for an agency's failure to comply with any other Privacy Act provision that causes an "adverse effect on an individual." See 5 U.S.C. §§ 552(a)(g)(1)(A)-(D). 5 EEOC case files in age discrimination cases are maintained in the Privacy Act system of records called "EEOC-1." See EEOC, Privacy Act of 1974: Publication of Notices of Systems and Records and Proposed New Routine Uses, 59 Fed. Reg. 11056, 11057-58 (March 9, 1994) ("Privacy Act System Notice"). Individuals covered by this system are "persons . . . who file charges or complaints with EEOC alleging that an employer . . . has violated the Age Discrimination in Employment Act of 1967 or the Equal Pay Act of 1963." Id. at 11057. 6 The EEOC's Privacy Act System Notice provides that charge files are "cross-indexed by charging party name, employer name, and charge number" and "may be retrieved by any of the above three indexes." Privacy Act System Notice, 59 Fed. Reg. 11056, 11058. 7 To the extent that Mr. Payne argues in his brief that records should be indexed by a third party's name (see Payne Brief at 7), we would note that a retrieval system indexed to every name that may appear in the EEOC's investigatory records would be extremely burdensome, if not impossible, to create or sustain. More importantly, it would serve no useful purpose to the Commission's law enforcement responsibilities to index records in such a way and there is no requirement, statutory or otherwise, for us to do so.