Viewing page 48 of 108

This transcription has been completed. Contact us with corrections.

- 32 -

Appeals stressed that the District Court's jurisdictional holding was binding only between the parties to the instant litigation and that the Smithsonian was free to re-litigate the issue against another party in a separate proceeding.

Since the July 1995 Newsletter report, the following developments have occurred. On August 4, 1995, the plaintiff filed with the Court of Appeals a Petition for Rehearing and Suggestion of Rehearing En Banc. Pursuant to the Court's order, the Smithsonian has filed its response to the petition, opposing the plaintiff's arguments set forth therein, while, of course, defending the correctness of the Court's July 11, 1995, opinion. A decision of the Court on the Petition is pending. An order granting a rehearing en banc would vacate the July 11, 1995, opinion.

As previously reported, on March 17, 1995, U.S. District Court Judge Gladys Kessler had granted a stay of further proceedings in Dong v. Smithsonian Institution, pending the decision of the U.S. Court of Appeals in Cotton I, notwithstanding the Court's own finding on February 28, 1995, that the Smithsonian Institution constitutes an agency subject to the Privacy Act, 5 U.S.C. § 552a. It will be recalled that the Dong case was brought by an employee of the Smithsonian's Hirshhorn Museum and Sculpture Garden (HMSG) on March 24, 1994. The plaintiff alleges that the Smithsonian violated the Privacy Act in the manner in which it investigated a trip she made in September 1993 to accompany a loaned HMSG painting travelling from Barcelona, Spain, to New York. The employee was suspended for five days because the trip was unauthorized. The Smithsonian had filed a motion to dismiss, asserting the opinion of the Department of Justice and Smithsonian that the Institution is not an agency covered by the Privacy Act, since coverage under the Privacy Act is defined by the same statute (the Administrative Procedure Act, 5 U.S.C. § 552(1)) as that for the Freedom of Information Act. For the reasons raised before the U.S. Court of Appeals in Cotton I, above, the Smithsonian and the Department of Justice believe the February 28, 1995, decision of Judge Kessler is erroneous. Following the U.S. Court of Appeals' July 11, 1995, opinion in Cotton I, which, as stated above, did not specifically rule on the Smithsonian's coverage under the FOIA, Judge Kessler resumed the proceedings in Dong, issuing a scheduling order on July 24, 1995, and discovery in that case is proceeding. However, in view of the discussion of the U.S. Court of Appeals in the July 11, 1995, decision, of the Institution's having foregone its opportunity to appeal the jurisdictional issue in Cotton I, the Smithsonian Institution has requested that the Department of Justice consider filing an interlocutory appeal of the February 28, 1995, decision of Judge Kessler. A decision by the Department of Justice is pending.

Lastly, the Regents had previously been advised of yet further challenges to the composition and authority of the Smithsonian Institution in the eight-count wrongful discharge/discrimination complaint in the Cotton v. Heyman (Cotton II), filed May 2, 1994, and supplemented on November 10, 1994. Answers to all counts have been filed by the Department of Justice on behalf of the Smithsonian, along with a motion to dismiss or, in the alternative, for summary judgment. Plaintiff's opposition to the motion to dismiss is pending, following the completion of the limited discovery that was granted to the plaintiff by the Court on February 28, 1995. Discovery was extended until July 30, 1995. On July 27, 1995, plaintiff filed a motion to compel a fuller