                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 05-1143



HAROLD HOGAN, JR.,

                                              Plaintiff - Appellant,

     versus


GORDON R. ENGLAND, Secretary, Department of
the Navy,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-04-756)


Argued:   December 1, 2005             Decided:    December 28, 2005


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:   Christopher Donald Borwhat, LAW OFFICES OF OWAIIAN M.
JONES, Fredericksburg, Virginia, for Appellant.       Jackson Lee
McGrady, U. S. MARINE CORPS, Quantico, Virginia, for Appellee. ON
BRIEF: Owaiian Jones, Chad M. Rinard, LAW OFFICES OF OWAIIAN M.
JONES, Fredericksburg, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Leslie B. McClendon, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Harold Hogan argues that the Navy violated the Privacy Act

because it failed to collect information from Hogan himself to the

“greatest extent practicable,” 5 U.S.C.A. § 552a(e)(2) (West 1996),

when it investigated allegations that he was intoxicated at work

and engaged in inappropriate behavior toward co-workers.                     The

district court granted summary judgment to the Secretary of the

Navy.    We affirm.



                                        I.

        In August 2003 Hogan worked as an electrician at the United

States     Marine   Corps    Base   in       Quantico,     Virginia.    Hogan’s

supervisors, Dale Triplett and Robert Welborn, and one of his co-

workers, Kimberly Sinclair, accused Hogan of smelling like alcohol

at work on August 13 and 14.        Sinclair also complained that Hogan

behaved inappropriately by asking her if she would come home with

him on August 13. Welborne further alleged that Hogan attempted to

engage him in an argument on August 14.                  Triplett granted Hogan

sick leave on each of those dates.

        Daniel   Rudd,   a    supervisor       at   Quantico,    conducted   an

investigation into the allegations and presented the resulting

evidence    to   William     Fennell,    the    Base’s     Facilities   Manager.

Fennell proposed that Hogan be suspended for fourteen days.               Hogan

responded by claiming that the investigation “violated [his] civil

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rights . . . with reckless disregard for the provisions of the

law.”     After meeting with Hogan and his union representative, the

Deputy Chief of Staff at Quantico, J.D. Provenzano III, suspended

Hogan for fourteen days.             Hogan filed two unsuccessful union

grievances.

      On September 14, 2004, Hogan filed an amended complaint in the

Eastern District of Virginia against Gordon England, Secretary of

the Navy (“the Secretary”).          Hogan alleged that the Navy violated

the   Privacy    Act   “by   interviewing    third    parties   .   .   .   for

information that was available by directly interviewing Hogan,” and

requested damages of $50,000, attorney’s fees, and costs.

      After discovery, the Secretary moved for summary judgment.

Hogan’s lawyer noted at the hearing on that motion that Hogan’s

complaint centered on the investigation into the intoxication

charge,    not   the   allegations    concerning    inappropriate    behavior

towards Ms. Sinclair or Mr. Welborn.            Finding no violation of the

Privacy Act, the district court granted that motion in an oral

ruling.



                                       II.

        The Privacy Act provides that “[e]ach agency that maintains a

system of records shall . . . collect information to the greatest

extent practicable directly from the subject individual when the

information      may   result   in    adverse    determinations     about   an


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individual’s    rights,   benefits,       and   privileges    under     Federal

programs.”   5 U.S.C.A. § 552a(e)(2) (West 1996) (emphasis added).

“[T]he   specific    nature   of    each    case    shapes   the      practical

considerations at stake that determine whether an agency has

fulfilled    its   obligations     under    the    Privacy   Act   to   elicit

information directly from the subject of the investigation to the

greatest extent practicable.”        Cardamone v. Cohen, 241 F.3d 520,

528 (6th Cir. 2001).

     The Act “attempts to strike a balance between the government’s

need to collect and maintain information and the privacy interests

of the persons to whom such information pertains.” Hudson v. Reno,

130 F.3d 1193, 1204 (6th Cir. 1997), partially overruled on other

grounds, Doe v. Chao, 540 U.S. 614 (2004).             It does not require

that an agency seek information only from a person it investigates,

however; the Act allows agencies to question third parties where it

would be impractical not to do so.          The Office of Management and

Budget, which promulgated guidelines for implementing the Privacy

Act, identified several occasions in which it would be appropriate

-- if not necessary -- to question a third party.            See OMB Privacy

Act Guidelines, 40 Fed. Reg. 28,948, 28,961 (July 9, 1975).*                For

example, the OMB suggested that an agency could consult third

parties when “the kind of information needed can only be obtained



     *
      These guidelines were codified at 5 C.F.R. § 293.104 (2004)
using language similar to the original OMB report.

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from a third party such as investigations of possible criminal

misconduct” or when there was a “need to insure the accuracy of

information supplied by an individual by verifying it with a third

party.”    Id.; see also Hudson, 130 F.3d at 1205 (quoting OMB

guidelines).

     Interpreting the Act in light of these guidelines, courts of

appeals have uniformly held that § 552a(e)(2) does not prevent

agencies   from   interviewing         third    parties   when   investigating

subjective allegations of misconduct. Courts recognize that “[t]he

probability that, when confronted, [the accused] will advance an

explanation . . . sufficient to obviate the need to contact third

parties is minimal.”        Brune v. IRS, 861 F.2d 1284, 1287 (D.C. Cir.

1988).     This   is   so    because    most    subjective   accusations   are

“incapable of being resolved by [the individual’s] say-so”; hence,

an accused’s “denial would not obviate the need to investigate

allegations.”     Carton v. Reno, 310 F.3d 108, 112 (2d Cir. 2002).

Cf. Cardamone, 241 F.3d at 528 (noting it was “impracticable to

think that charges of employee mistreatment and harassment could be

resolved by interviewing Cardamone before others.”).

     Nevertheless, Hogan argues that this is not simply a case

about subjective allegations.             He maintains that he possessed

objective proof of his sobriety -- namely, a “Daily Dispatching

Record” indicating that he was assigned a vehicle on each day that

he was alleged to be intoxicated.            See Brief of Appellant at 14-15.


                                         5
He notes, correctly, that courts have found violations of the

Privacy Act when an agency speaks to a third party even though the

individual under investigation possesses objective proof that would

eliminate the need for any further questioning.   See, e.g., Waters

v. Thornburgh, 888 F.2d 870, 873 (D.C. Cir. 1989) (holding that

Department of Justice violated the Privacy Act by asking state bar

association to confirm that a DOJ employee took the exam when it

could have asked the employee for his admission ticket), partially

overruled on other grounds, Doe v. Chao, 540 U.S. 614 (2004).

     Hogan’s argument misunderstands the evidentiary value of the

Dispatching Record, however.    That document is not proof that

obviates the need for further investigation.   To the contrary, it

only heightens the need to question Hogan’s supervisor, Triplett,

to find out if he was the one who signed out the vehicle to Hogan

as Hogan contends, and, if so, how he could have done so given his

allegation that Hogan had the smell of alcohol on his breath.

Hence this case is not like Waters, where objective proof within

the individual’s possession could have ended the investigation

before it began.    Here, the Navy was confronted with entirely

subjective allegations of intoxication and inappropriate conduct.

Indeed, the testimony of Hogan’s co-workers was the only evidence

of his behavior.   There was simply nothing “impracticable” in the

Navy’s decision to investigate the allegations by talking to




                                 6
eyewitnesses.     To hold otherwise would be to read the “to the

greatest extent practicable” language right out of the statute.

       Hogan also complains that the Navy did not interview him

first.    This fact, by itself, does not rise to the level of a

Privacy Act violation.    So long as the agency inevitably will need

to interview both Hogan and others, the Act takes no position on

the order in which they are approached.      Indeed, one reasonably

might argue that Hogan benefitted from being interviewed late in

the process.    Cf. Carton, 310 F.3d at 112 (“[I]t might be expected

that the interviews with the complainants and others would sharpen

the issues and focus the charges in a way that would allow Carton

to respond more particularly.”).

       Because none of Hogan’s allegations make out violations of the

Privacy Act, summary judgment was appropriately entered against

him.



                                III.

       Even if Hogan had alleged a violation of the Act, he still

would not be entitled to recover the damages he seeks.    To recover

monetary damages under the Act, Hogan must show that the violation

was “intentional or willful,” 5 U.S.C. § 552a(g)(4), and that it

had an “adverse effect,” id. § 552a(g)(1)(D).    The “intentional or

willful” standard requires a mens rea “somewhat greater than gross

negligence.” Waters, 888 F.2d at 875 (quoting analysis of the 1974


                                   7
House and Senate Compromise Amendments to the Privacy Act).                     Put

another way, the violation must have been committed “without

grounds    for    believing   it    to       be   lawful,    or    by    flagrantly

disregarding others’ rights under the Act.” Scrimgeour v. Internal

Revenue, 149 F.3d 318, 326 (4th Cir. 1998) (quoting Waters, 888

F.2d at 875).     The “adverse effect” requirement            requires Hogan to

demonstrate “actual damages”; he may not presume that any given

violation produces actionable, adverse consequences.                    Doe v. Chao,

540 U.S. 614, 627 (2004).

     Hogan did not meet either of these requirements.                   Although he

asserted   that    his   employer    acted        wilfully   and    that    damages

resulted, he did not offer a single fact to substantiate either of

these claims.      We would therefore affirm the grant of summary

judgment even if Hogan had alleged a violation of the Act.



                                                                           AFFIRMED




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