* Carl E. Stewart, Circuit Judge, concurring in the judgment only.

** Pursuant to 5th Cir. R. 47.5, the court has determ ined that this opi

nio n should not be published and is no t precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. -1- United States Court of Appeals Fifth Circuit 

## FILED April 26, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 05-20109

__________________________ PATRICK SWEENEY, Plaint iff–Appellant , versus MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY, DEPARTMENT OF HOMELAND SECURITY, Defendants–Appellees.

___________________________________________________ Appeal from the United States District Court fo r the Southern District of Texas No. 4:03-CV-5865

___________________________________________________ Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. * EDITH BROWN CLEMENT, Circuit Judge: ** In this Pri vacy Act case, the employee’s injury was not caused by th e employer’s vio lat io n of the Act’s requirements. Accordingly, we affirm the district court’s grant of summary judgment in favor of the defendant. I. FACTS AND PROCEEDINGS1 OF-612 is a standard employment form used by the federal government. It asks routi ne questions regarding, inter alia , work experience, duties, accomplishments, and education. -2- Viewing the facts in the light most favorable to th e appellant, as we must when reviewing a grant of summary judgment, the relevant events transpired as follows. Patrick Sweeney was, and remains, employed by the Department of Homeland Security (“DHS”) as a criminal investigator in Houston, Texas. In February 2003, Sweeney was info rmed by his supervisor, Edward Tarver, that he had been selected as the of fice’s nominee fo r a seventy-five day tem porary duty assignment (“TDY”), teaching at the Federal Law Enforcement Trai ning Center. Tarver informed Sweeney that he needed to complete Optional Form 612 (“OF-612”) in connection with the assignment, in o rder to detail his wo rk experience and career accomplishments. 1 Sweeney asked Tarver whether the TDY was voluntary. Tarver repeated that Sweeney had been nominated fo r the TDY and that he needed to fill out th e fo rm . Sweeney replied that he did not want the assignment, would not volunteer for the assignment, and did not want to fill out the fo rm . Tarver then ordered Sweeney to fill out the form. On February 18, Sweeney submit ted th e fo rm wit h a one-line description in t he “Work Experience” field. Tarver told Sweeney his response was insufficient and asked Sweeney to provide

a mo re com

plete description. Sweeney refused to supplement his response without a written order. Tarver gave Sweeney a wri tten order, and Sweeney com pleted the form again with slightly more description. The following day, the Assistant Special-Agent-In-Charge of the Houston office info rmed Sweeney that his answers to the form were insufficient and ordered Sweeney once again to com plete the fo rm thoroughl

y. Sweeney at first refused, repeating that he would not volunteer for the TDY. Ult imat ely, Sweeney completed the form, and when he turned it in, the Assistant Special--3-

Agent-In-Charge informed him he was no longer the office’s nominee for the position. A few mo nt hs lat er, pursuant to a fo rmal int ernal process, Sweeney received a one-day suspension for insubordination for his refusal to complete the form. The suspension cost Sweeney $301.84 i n lo st wages. Sweeney was informed that he could appeal the suspension through an int ernal grievance syst em or th rough an EEOC challenge. Eschewing any other remedy, Sweeney inst ead brought this action in district court under the Pri vacy Act (“the Act”), 5 U.S.C. § 552a. Sweeney alleged that DHS vio lat ed the Act by failing to info rm him that com pleting the fo rm was voluntary, in vio lat io n of 5 U.S.C. § 552a(e)(3)(A), and by failing t o correct records relati ng to his employment , i

n vio lat io n of 5 U.S.C. § 552a(g)(1)(A). Aft er appropri ate filings, the district court granted summary judgment to DHS. The district court f ound that DHS did not violate the Act because Sweeney’s injury was not caused by any vio lat io n of the Act’s requirements. Alternatively, the district court found that Sweeney could not pursue his claim because he had failed to exhaust administ rati ve remedies. Sweeney timely appealed to this court. II. STANDARD OF REVIEW This court reviews de novo a district court’s grant of summary judgment, using the same standards as the district court. L amar Adver. Co. v. Cont’l Cas. Co. , 396 F.3d 654, 659 (5th Cir. 2005). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together wit h the affidavit s, if any, show that there is no genuine issue of mat erial fact and that the moving party is entitled to a judgment as a mat ter of law.” F E D . R. C IV . P. 56(c). We view the evidence and all reasonable inferences in th e ligh t most f avorable to the nonmoving party
. L incoln Gen. Ins. Co. v. Reyna , 401 F.3d 347, 349 (5th Cir. 2005). S ee generally Celotex-4-

Corp. v. Catrett , 477 U.S. 317, 323–24 (1986). III. DISCUSSION A. Applicable Law The Pri vacy Act “safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records . . . by allo wing an individual to participate in ensuring that his records are accurate and properl y used.” J

acobs v. Nat’l Drug Intelligence Ctr. , 423 F.3d 512, 515 (5th Cir. 2005) (quotation om it ted) (alteration in original). The Act provides in relevant part: Each agency that maint ains a syst em of records shall

. . . info rm each individual whom it asks to supply info rmation, on th e fo rm which it uses to collect the information or on a separate fo rm that can be retai ned by th e individual . . . the authori ty
. . . which authorizes the solicit ation of the info rmation and whether disclosure of such info rmation is mandatory or voluntary. 5 U.S.C. § 552a(e)(3)(A). However, the Act only provides a civil remedy when a government agency’s vio lat io n of an Act requirement causes injury: Whenever any agency . . . fails to com ply wit h any oth er provision of this section, or any rule prom

ulgated thereunder, in such a way as to have an adverse effect on an individual

. . . the individual may bring a civil action against the agency, and the district courts of the Unit ed States shall have jurisdiction in th e mat ters under the provisions of this subsection. 5 U.S.C. § 552a(g)(1)(D). The Supreme Court has held that “the reference in § 552a(g)(1)(D) to ‘adverse effect’ acts as a term of art identifying a potential plaint iff who sati sfies th e injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action wit hout suffering dismissal fo r want of standing to sue.” D oe v. Chao , 540 U.S. 614, 624 (2004). S ee also Orekoya v. Mooney , 330 F.3d 1, 7 (1st Cir. 2003), abrogated on other grounds by Doe , 540 U.S.2 As note d earlier, “OF-612” i s shorthand for “Optional Form 612,” and the word “optional” in

com mo n parlance is equivalent to “vo lunt ary .” S ee, e.g. , WEBSTER ’ S N EW WO RLD R OGET ’ S A–Z T HESAURUS 552 (Michael Agnes ed., Macmillan 1999). However, the government did not make that argument, and the facts of Sweeney’s situation make it unlikely that the parti es ever considered the fo rm “o ptional” or “voluntary” as the terms are commonly understood. -5- at 618 (“The statutory ‘adverse effect’ requirement is generally viewed as a standing requirement and

a causation requirement.

. . .”) (i nt ernal cit ation om

it ted); Q uinn v. Stone , 978 F.2d 126, 135 (3d Cir. 1992) (“[T]o state a claim under the Act, the plaint iff must also allege a causal connection between the agency vio lat io n and the adverse ef fect.”); H ewitt v. Grabicki , 794 F.2d 1373, 1379 (9th Cir. 1986) (“The Pri

vacy Act requires a causal connection between the allegedly erroneous agency record and an adverse determ

inat io n made against the individual.”); Albright v. United States , 732 F.2d 181, 186 (D.C. Cir. 1984) (noti ng the impo rtance of “t he preliminary issue of causation”); Edison v. Dep’t of the Army , 672 F.2d 840, 845 (11th Cir. 1982) (noting the “causal relationship” requirement). B. Analysis Our circuit has had few occasions to address the Privacy Act generally and no occasions to define the scope of the statutory provisions at issue here. The government clearly did not follow the Act’s requirements because the OF-612 did not indicate whether filling the form out was voluntary

or mandatory or, alt ernatively, because Sweeney’s supervisors ordered him to fill out the fo rm even though filling it out was voluntary. 2 However, we conclude that Sweeney’s injury is sufficiently attenuated from any violation of the Act’s requirements to preclude a finding of causation. Sweeney com

pla ins o f a lo ss of pay. Sweeney’s injury is not “fairly traceable,” L ujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992), to DHS’s failure to info rm him of th e voluntary nature of the OF-612. Rather, Sweeney’s loss of pay was caused by his suspension, which, in turn,3 DHS is not wholly free of blame in this situation. See Usher v. Sec’y of Health and Human Svcs. ,

721 F.2d 854 (1st C ir . 1983) (“We see no basis in the statute for an agency’s refusing to give the info rmation specified in 5 U.S.C. § 552a(e)(3).”). Sweeney’s suspension probably resulted from DHS not knowing, or not cari

ng, that filling out the OF-612 was voluntary, a fact which, if understood, would seem to excuse Sweeney’s insubordination in not f illing it out. However, the Pri vacy Act is not the proper channel by which to challenge int ernal agency disciplinary processes wit h which one disagrees. C

f. Reinbold v. Evers , 187 F.3d 348, 360 (4th Cir. 1999) (holding, in a record-correction case, that “the Pri

vacy Act does not allow a court to alter records that accurately reflect an administ rati

ve decision, nor the opi nio ns behind that administrative decision, no matter how contestable the conclusions may be”) (i nt ernal fo otnote om

it ted); Douglas v. Agricul t ural Stablization & Conservation Svc. , 33 F.3d 784, 785 (7th Cir. 1994) (same).

4 Si nce Sweeney’s injury was not caused by any DHS vio lat io n of th e Act’s requirements, we do not reach the district court’s alt ernative holding that Sweeney failed to exhaust administ rati ve remedies. Additionally, since Sweeney abandoned his record-correction claim under 5 U.S.C. § 552a(g)(1)(A), we do not review the district court’s judgment disposing of that claim. -6- was the result of an int ernal agency disciplinary action. 3 It i s possible that Sweeney’s suspension may not have occurred had DHS info rmed him that f illing o ut th e form was voluntary, but such a hypothetical counterfactual situation is not sufficient to meet th e causation requirement. Because DHS’s vio lat io n of ce r tai n of the Act’s requirements is so attenuated from Sweeney’s lat er injury, Sweeney has failed to show that any violation caused the injury of which he complains. 4 Furthermore, a ruling that Sweeney’s injury was causally linked to DHS’s failure to inform him t hat f

illing o ut the OF-612 was voluntary would lead to absurd consequences. Awarding Sweeney a mo netary statutory remedy would have no effect on the underlying disciplinary procedure that was the direct cause of Sweeney’s suspension. As Sweeney admitted at oral argument, nothing in the Pri vacy Act permits this court to address, much less correct, that adv erse determ inat io n. Sweeney would have been in the unlikely posi tion of having his st atutory rights under the Act vindicated while at the same ti me being disciplined for insubordination for his refusal to fo llo w his supervisor’s unlawful order.-7- IV. CONCLUSION The district court properl

y awarded summary judgment in favor of DHS and against Sweeney, and we AFFIRM the judgment below.