Jarrett Carson v. Usdoa

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2022
• Docket: 21-35938
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JARRETT CARSON; JOSEPH No. 21-35938 LAWENDOWSKI; JOHN DOE, D.C. Nos. 3:15-cv-00071-JMK Plaintiffs-Appellants, 3:15-cv-00072-JMK

v. MEMORANDUM* UNITED STATES DEPARTMENT OF THE ARMY; CHRISTINE WORMUTH, Secretary of the Army,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Argued and Submitted June 7, 2022 Anchorage, Alaska

Before: HURWITZ, BRESS, and H. THOMAS, Circuit Judges.

Jarrett Carson, Joseph Lawendowski, and John Doe (Plaintiffs-Appellants)

appeal from a summary judgment in favor of the United States Department of the

Army in this Privacy Act case. See 5 U.S.C. § 522a. We have jurisdiction under 28

U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The district court’s initial partial summary judgment decision did not

constitute law of the case. Assuming without deciding that the decision conflicted

with the district court’s final summary judgment decision, law of the case “does

not preclude a court from reassessing its own legal rulings in the same case.”

Askins v. U.S. Dept. of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018). “[A]

district court has the inherent power to revisit its non-final orders, and that power is

not lost when the case is assigned mid-stream to a second judge.” Dreith v. Nu

Image, Inc., 648 F.3d 779, 787–88 (9th Cir. 2011).

2. The district court did not err in holding that the Army could lawfully

maintain an Anchorage Police Department (APD) report in Doe’s records. 5 U.S.C.

§ 522a(g)(1). The report was relevant to disciplinary proceedings, and the Army

had no obligation to expunge the report after those proceedings. Garris v. FBI, 937

F.3d 1284, 1300 (9th Cir. 2019). Doe cannot use the Privacy Act as a vehicle for a

collateral attack on an underlying employment decision. Houlihan v. Office of

Personnel Mgmt., 909 F.2d 383, 385 (9th Cir. 1990).

3. Carson and Lawendowski did not raise a genuine issue of material fact as to

whether an Army employee’s disclosure of unredacted records to Lawendowski

proximately caused the disclosure of those records to the media. The record

provides no basis for attributing the media disclosure to an intentional or willful

violation of the Privacy Act by the Army. See 5 U.S.C. § 522a(g)(4).

2 4. The district court correctly determined that none of the other alleged

disclosures was actionable. There is no evidence in the record, beyond speculation,

that any disclosure to the Governor of Alaska occurred. The disclosure of records

to the APD was permissible under the Privacy Act because it was part of a law

enforcement investigation. See 5 U.S.C. § 552a(b)(7). The records disclosed to

Doe’s counsel were properly redacted.

5. Plaintiffs-Appellants did not raise a genuine issue of material fact with

respect to the Privacy Act’s actual damages requirement. See Doe v. Chao, 540 U.S.

614, 627 (2004). As the district court concluded, Plaintiffs-Appellants cannot prove

that the Army’s alleged Privacy Act violations proximately caused their discharges

from the Army and resulting losses of salary and benefits. See Villiarimo v. Aloha

Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). Plaintiffs-Appellants offer only

speculation and their own uncorroborated testimony to support their other damages

theories.

AFFIRMED.