* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 14 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LEE R. PHILLIPS,

Plaintiff-Appellant,

v. SHEILA E. WIDNALL, Secretary of the Air Force, in her official capacity, and UNITED STATES AIR FORCE,

Defendants-Appellees. No. 96-2099 (D.C. No. CIV-93-1540-JP)

(D.N.M.)

ORDER AND JUDGMENT *

Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.
Plaintiff-appellant Lee R. Phillips, a former civil ian employee at Kirtland Air Force Base and a dependent spouse entitled to m edical care from the United States Air Force (USAF), brought suit in the distri ct court claiming that defendants-appellees Sheila E. Widnall and the USAF had improperly maintained records of her employment and medical care in violation of the Privacy Act, 51 The certification under Fed R. Civ. P. 54(b) was om itted from the district

court’s docket sheet and not included in the recordon appeal. When Phillips brought the certification to our attention in a “mo tion to take judicial notice,” defendants failed to respond. We construe Phillips ’ motion as a motion to supplement the record and grant the motion. -2- U.S.C. § 552a. Phillips, appearing pro se, request s review of the district court’s order of January 22, 1996, which dismissed certain of her claims for injunctive relief and damages, entered summary judgment on oth er claims, and denied her request to consolidate the instant case with a case involving her employment discrimination claims. We affirm the rulings of th e district court.
I. JURISDICTION Although neither party has raised an issue of juris diction, we must first determine the scope of our jurisdiction on appeal. See FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231 (1990) (“[F]ederal courts are under an independent obligation to examine their own jurisdiction”). Th e district court’s order of January 22, 1996, disposed of all except one of Phi llips’ claims. In a separate order entered the same day, the district court made an express determination under Fed. R. Civ. P. 54(b) that there was no just reason for delay in the entry of final judgment on the claims terminated by summary judgment. 1 Phillips filed a notice of appeal on May 3, 1996, a fter the district court denied her motion for reconsideration. Both partie s then briefed issues relating to2 This court, sua sponte, has supplemented the recordon appeal with the

district court’s order of January 21, 1997.

3 On December 3, 1996, Phillips filed a motion for en largement of time in this court, stating that the district court had ann ounced at a hearing that it would shortly enter a final order dispositive of all clai ms. We construe the motion as a motion to stay consideration of the merits of Phill ips’ appeal until the trial court had adjudicated all remaining claims and grant the motion. -3- the dismissed claims, as well as the claims on whic h summary judgment had been entered. The district court dismissed Phillips’ fi nal claim on January 21, 1997. 2 At the time Phillips filed her notice of appeal, th e district court’s order of January 22, 1996, was final and appealable with reg ard to the entry of summary judgment, but not with regard to the dismissed clai ms. See Bohn v. Park City Group , 94 F.3d 1457, 1459 (10th Cir. 1996); see also Fed. R. Civ. P. 54(b). A notice of appeal which is premature at filing becau se all claims have not been adjudicated may ripen upon disposition of the remai ning claims. See Lewis v B.F. Goodrich Co. , 850 F.2d 641, 645 (10th Cir. 1988). Moreover, no tices of appeal filed by appellants who appear before us pro se are construed liberally. Shapolia v. Los Alamos Nat’l Lab. , 992 F.2d 1033, 1036 n.3 (10th Cir. 1993). We determine that the scope of our review extends t o the claims and issues briefed by both parties. Phillips’ notice of appea l ripened as to the dismissed claims upon the adjudication of the final claim on January 27, 1997, see Lewis , 850 F.2d at 645, 3 and the language of the notice of appeal may be co nstrued to include the issues related to these claims, see Bohn , 94 F.3d at 1460. We-4-

emphasize, however, that our jurisdiction is limite d to a review of the orders that existed on May 3, 1996, when the notice of appeal w as filed. See Nolan v. United States Dep’t of Justice , 973 F.2d 843, 846 (10th Cir. 1992).
II. PRIVACY ACT CLAIMS Under the Privacy Act, 5 U.S.C. § 552a, Phillips so ught both injunctive relief and damages, based upon her allegations of i mproprieties in the way the USAF maintained her medical and employment files. The Privacy Act authorizes four civil remedies: first, injunctive relief, orde ring the agency to amend inaccurate, incomplete, irrelevant, or untimely rec ords, §§ 552a(g)(1)(A), (g)(2)(A); second, injunctive relief, ordering the agency to allow an individual access to his records, § 552a(g)(1)(B); third, dama ges for an intentional or willful failure to maintain a record “as is necessary to as sure fairness in any determination . . . made on the basis of such recor d” if the erroneous record results in an adverse determination, §§ 552a(g)(1)( C), (g)(4); and fourth, damages for any other willful or wanton failure to comply w ith the Act, “in such a way as to have an adverse effect on an individual,” §§ 552 a(g)(1)(D), (g)(4). A plaintiff must exhaust administrative remedies before asking a court to compel correction of an inaccurate record, but not when seeking damag es. Hubbard v. United States Envtl. Protection Agency Adm’r , 809 F.2d 1, 4 (D.C. Cir. 1986).-5-

We review de novo the trial court’s dismissal and summary judgment rulings. See Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 854 (10th Cir. 1996) (dismissal for failure to state a claim); Kaul v. S tephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (summary judgment). We uphold a dismiss al under Fed. R. Civ. P. 12(b)(6) only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to rel ief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff. Fuller v. Norton , 86 F.3d 1016, 1020 (10th Cir. 1996). Summary judgment is appropriate if the pleadings, d epositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to judgment as a matter of law. See Kaul , 83 F.3d at 1212. “Conclusory allegations that are unsubstantiated do not create an issue of fact and are insufficient to oppose summary judgment.” Elsken v . Network Multi-Family Sec. Corp. , 49 F.3d 1470, 1476 (10th Cir. 1995). The major issue concerning Phillips’ medical files relates to a physician’s notation to the effect that Phillips was probably d ependent upon a prescription medication. The notation reflected the physician’s medical conclusion, which he based upon a number of objective factors and Philli ps’ own complaints of neck and low back pain. Phillips disputed the validity of this conclusion. At her-6-

request, the USAF reviewed it, then informed her inwriting of its determination that the notation would remain in her file. In the district court, Phillips sought an order requiring defendants to amend the record and, in addition, an award of damages for emotional distress, embarrassment, and difficulties in obtaining proper medical treatment. The Privacy Act does not permit a court to alter do cuments that accurately reflect an agency decision, no matter how contestab le the conclusion may be. See Douglas v. Agric. Stabilization & Conservation Serv

. , 33 F.3d 784, 785 (7th Cir. 1994). Phillips is not entitled to court-ordered amendment of her record. Her equitable remedy is limited to placing in her file “‘a concise statement setting forth [her] reasons for . . . disagreement with the refusal of the agency’ to delete or correct its record.” Id . (quoting 5 U.S.C. § 552a(d)(3)). For the same re asons, the reference to a probable drug dependency cannot form the basis for an award of damages under the Privacy Act. The district court was correct in entering summary judgment on the claims arising from this no tation. Phillips also asserts that she was not allowed acce ss to her medical records and that the records are incomplete. Because she d id not exhaust administrative remedies on her access claim, the trial court’s dis missal of the request for injunctive relief was proper. Furthermore, Phillip s’ conclusory statements4 The term “nonappropriated fund instrumentality” den otes an organization

whose monies are not received by congressional appr opriation, and whose employees are paid primarily from income generated by the activity itself. Perez v. Army & Air Force Exch. Serv. , 680 F.2d 779, 780 (D.C. Cir. 1982). Functions of nonappropriated fund instrumentalities include p roviding merchandise and services to authorized patrons and furnishing entertainment to military personnel (continued...) -7- concerning damages resulting from the allegedly inc omplete records do not create a genuine issue of material fact sufficient to with stand summary judgment. Phillips made similar claims concerning the way def endants maintained her employment records. Alleged inaccuracies and omiss ions in her employment files formed the basis of her claim for damages to remedyloss of a promotion and other benefits of employment. As the district court determined, this is not a recognizable claim under the Privacy Act. Where th e Civil Service Reform Act (CSRA), Pub. L. 95-454, 92 Stat. 1111 (codified in various sections of 5 U.S.C.), precludes review of a personnel decision, the Priva cy Act does not vest the court with jurisdiction to conduct such a review. Hender son v. Social Security Admin. , 908 F.2d 559, 560-61 (10th Cir. 1990). The CSRA pr ovides the exclusive remedial scheme for review of Phillips’ claims related to her position as a nonappropriated fund instrumentality employee. See McAuliffe v. Rice , 966 F.2d 979, 981 (5th Cir. 1992) (holding CSRA furnishes th e exclusive set of remedies available to federal employees of all types, includ ing nonappropriated fund instrumentality employees). 44 (...continued)

at Army and Air Force installations. Id

.
5 The employment discrimination claims made in CIV 94 -1044 M were originally a part of the instant action. In an ord er filed August 9, 1994, the district court dismissed these claims for failure t o exhaust administrative remedies. -8- We agree with the district court that the Privacy A ct does not provide the court with jurisdiction to review the allegedly pro hibited personnel practices. Moreover, Phillips’ request for an order requiring the defendants to restore documents to her files and to expunge a reference t o her exercise of First Amendment rights was subject to dismissal for failure to exhaust administrative remedies. We have carefully reviewed the entire record and th e parties’ submissions. We find that the district court did not err in disp osing of Phillips’ Privacy Act claims in its order of January 22, 1996, and we aff irm.
II. MOTION TO CONSOLIDATE We also affirm the district court’s denial of Phill ips’ motion to consolidate the instant case with CIV No. 94-1044 M, a case she had filed alleging violations of Title VII, 42 U.S.C. §§ 2000e-2000e-17, and the Rehabilitation Act, 29 U.S.C. §§ 701-96i. 5This determination is a matter committed to the d iscretion of the district court. See Petromanagement Corp. v. Acme-Thomas Joint Venture , 835-9-

F.2d 1329, 1334 (10th Cir. 1988). We do not find that the trial court abused its discretion in denying the motion to consolidate.
III. CONCLUSION The judgment of the district court is AFFIRMED. Ph illips’ motion to strike appellees’ brief is denied. The brief was timely f iled within thirty days after service of Phillips’ brief. See Fed. R. App. P. 31(a). The mandate shall issue forthwith. Entered for the Court

William F. Downes District Judge