Doe v. United States Department of Justice ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JOHN DOE, )
)
Plaintiff, )
)
v. ) Civil Acti0n No. 09-411 (ESH)
) REDACTED
UNITED STATES DEPARTMENT )
OF JUSTICE, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff John Doe seeks money damages and injunctive and declaratory relief for the
alleged improper disclosure of his private medical records under the Privacy Act of 1974
("Privacy Act"), 5 U.S.C. § 552a, Rehabilitation Act, 29 U.S.C. § 794, and Administrative
Procedures Act, 5 U.S.C. § 706 ("APA"). Defendants include the Department of.lustice
("DOJ") and the Merit System Protection Board ("MSPB"), as well as Eric H. Holder, Jr., in his
official capacity as the Attorney General of the United States. Defendants now move to dismiss
the plaintiff’s claims pursuant to Federal Rule ofCivil Procedure l2(b)(6) or, in the alternative,
for summary judgment under Federal Rule of Civil Procedure 56. For the reasons set forth
below, defendants’ motion to dismiss, or in the alternative, for summary judgment will be
granted as to all but plaintiffs Rehabilitation Act claim, which will be dismissed without
prejudice
BACKGROUND
I. DOE’S EMPLOYMENT AT THE USAO
Plaintiff worked for the DOJ as an Assistant United States Attorney ("AUSA"). (Second
Am. Compl. ("Compl.") [Dkt. 23] jj 3.) His troubles within his local United States Attorney’s
Office ("USAO") appear to have begun in 2003, when he became embroiled in a dispute with a
law enforcement agent over an allegedly illegal search and seizure. (Id. jj 7.) Though the U.S.
Attorney for Doe’s district approved the search, Doe submitted a memorandum (the "2003
l\/lemo") to his superiors detailing his objections. (Id. jj 8-9.) A series of conflicts between Doe
and his superiors ensued. (Id. jjjj l0-l l .) In late 2003, Doe took a medical leave of absence and
was diagnosed with an anxiety disorder by his psychologist. (Id. jj l2.) He returned to work in
early 2004. (Ia’.) In October 2006, Doe submitted a form to DOJ requesting a reasonable
accommodation for his anxiety disorder. (Ia'. jj l4a.) DOJ granted the request in part in
December 2006. (Ia’. jj l5a.)
Doe alleges he again became the target of the local U.S. Attorney between March and
June of 2008, both because of a lawsuit alleging misconduct by the agent who was the subject of
the 2003 l\/Iemo and because Doe prepared and distributed a new memorandum urging the
investigation of certain bank records. (Compl. jjjj l6-l6f.) ln August 2008, management
informed Doe he would be transferred to the "Gun Unit, a significant demotion." (Id. jj l7b.)
During an August 6, 2008 meeting to discuss the transfer, Doe’s direct supervisor criticized him
for writing the 2003 Memo and the new memo and said that the USAO was "embarrassed." (Id.
jj l7c.) On August 1 l, 2008 Doe submitted a new request for a reasonable accommodation and
included a note from his psychologist explaining that the demotion would "exacerbate" his
anxiety disorder. (Id. jj 18.)
Doe alleges that, after receiving his request, the management of his office informed Jeff
Rosenblum, an attorney in the General Counsel office of the Executive Office of the United
States Attorney ("EOUSA") in Washington, D.C. that Doe was being transferred "for his
health." (Compl. jj l8a; Pl.’s Counterstatement of Material Facts in Dispute ("Pl.’s
Counterstatement") [Dkt. 45] jj 2b.) On the same day, the office requested "further medical
documentation" from Doe. (Compl. jj l9.) Doe submitted the supplementary medical
information, including a letter from his psychologist, on September 5, 2008. (ld. jj 20.) Alarmed
by the letter, the office’s Accommodation Coordinator informed the temporary acting U.S.
Attorney of its contents.l (Pl.’s Opp’n to Defs.’ l\/lot. ("Pl.’s Opp’n") [Dkt. 45], Ex. 20 at 46-47.)
According to the Coordinator’s deposition, the Coordinator then contacted the U.S. Attorney.
(Id. at 47.) Finally, the Coordinator contacted Rosenblum (id. at 48-49.), who represented DOJ
against John Doe in unrelated disciplinary and EEO proceedings at the time. (Id. at 61-62.)
Contrary to the Coordinator’s deposition, Doe’s complaint alleges that the Coordinator only
disclosed the information to an unnamed acting U.S. Attorney and to other AUSAs in the office.
(Compl. jj 21 .) lt suggests that these persons then "re-disclosed" the information to persons in
the Executive Office for United States Attorneys ("EOUSA") and the Personnel Security Section
ofthat office. (Id.)
On September 9, 2008, the Coordinator, the U.S. Attorney, the Criminal Chief for the
local USAO (Pl.’s Opp’n, Ex. 19 at 3-4), staff from the General Counsel office, and Personnel
Security staff held a conference call to discuss Doe’s status. (la’. at 63-65; Compl. jj 24.) DOJ
subsequently revoked Doe’s security clearance. (Compl. jj 2lc.) On September 1 l, 2008, Doe
' Specifically, the Accommodation Coordinator informed the tem orar actin U.S. Attorney
that Doe’s psychologist had said he as a result of
the proposed move. (Pl.’s Opp’n, Ex. 20 at 46-47.)
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was publicly escorted out of his office. On October l0, 2008, Doe received a "Notice of
Proposed Removal Letter" letter from the U.S. Attorney (referred to as the "Acting United States
Attorney" in Doe’s complaint (id. jj 25)), informing him he had been terminated. (Pl.’s Opp’n,
Ex. l2.) On November 4, 2008, Doe submitted a follow-up letter from his psychologist asserting
that he was not a security threat (Id., Ex.
l4.) The Executive Director for the EOUSA responded with a "final decision" letter removing
Doe, in which he quoted the psychologist’s original and follow-up letters.z (Compl. jj 26; Pl.’s
Opp’n, Ex. l5.)
II. POST-TERMINATION LITIGATION
On February l l, 2009, Doe appealed his removal to the MSPB, requested his case be
placed under seal, and asked to proceed under a pseudonym. (Compl. jj 27a.) The
Administrative Law Judge ("ALJ") for the MSPB denied these requests, as well as his request to
certify these decisions to the full Board. (Ia’. jjjj 27a-b.) Portions of Doe’s personnel and medical
records were subsequently disclosed as part ofthe l\/lSPB’s published decision. (Id. jj 27b.) Doe
then filed a motion requesting an Emergency Temporary Restraining Order ("TRO") (Dkt. 8) to
bar the MSPB from placing his records in the public domain and to bar the disclosure of his
records to his state Unemployment Commission. The Court stopped the Board from placing
Doe’s records in the public domain pending Doe’s request to the Chairman ofthe MSPB to
remove his private records from its public decision. (Dkt. l7.) However, the Court refused to
block the disclosure of Doe’s information to the state Commission. (Id.) The MSPB Chairman
then decided to allow Doe to proceed under a pseudonym. (Pl.’s Counterstatement jj l6.)
2 The letter uotes the s cholo ist’s relevant statement:
(Pl.’s Opp’n, Ex. 15 at l.)
Doe also requested and was granted unemployment compensation from the
Unemployment Commission of his home state. (Compl. jj 27e.) USAO then disclosed the
"Notice of Proposed Removal Letter" and the "final decision" letter to a third-party contractor,
Talkx,3 which appealed the award on DOJ’s behalf, submitting the documents as support for its
position. (Id. jj 27e; Defs.’ Statement of Material Facts jj 1 1 [Dkt. 39].) "Within hours" of
receiving Doe’s response, the Commission denied DOJ’s appeal. (Pl.’s Counterstatement jj l lg;
Pl.’s Opp’n, Ex. l8.) Plaintiff alleges that the protected materials released by DOJ "now are in
the public record." (Compl. jj 27e.)
III. PROCEDURAL HISTORY
Plaintiff brought suit in thisjurisdiction on l\/larch 3, 2009, after being granted his request
to file under a pseudonym. (Dkt. l-3.) On April l0, 2009, plaintiff simultaneously filed an
amended complaint and sought a TRO to prevent the MSPB from making his medical and
personnel records public. (Dkt. 7-8.) This Court granted plaintiffs motion in part, barring the
MSPB from placing plaintiffs records in the public domain. (Dkt. 17.) On l\/lay 20, plaintiff
filed a motion asserting that his medical and personnel information was still available to the
public and asked the Court to order the MSPB to show cause why it should not be held in
contempt for violating the TRO. (Dkt. 24.) The Court issued the "show cause" order, to which
defendants responded on l\/Iay 28. (Dkt. 26.)
Plaintiff filed a second amended complaint on May 19, 2009 (Dkt. 23), seeking damages,
preliminary and permanent injunctive relief, declaratory relief, costs, and attorneys fees.
3 The precise name ofthis contractor is somewhat unclear. Plaintiff refers to it in his complaint
as "TALX." (Compl. jj 27e.) Plaintiff’s and defendants’ statements of facts refer to it as "Talkx
USA." (Pl.’s Counterstatement jj llb; Defs.’ Statement of Material Facts jj ll.) Although the
actual contractor appears to be named TALX, see HR, Payroll and Tax Management Solutions,
http://www.talx.com/index.asp (last visited Sept. l6, 2009), to avoid confusion, the Court will
refer to the contractor as "Talkx."
Plaintiff also asks the Court to compel DOJ to reinstate him with back pay and benefits and to
reasonably accommodate his disability. (Compl. at 22-23 jjjj (a)-(h) (prayer for relief).) Plaintiff
alleges that the DOJ violated the Privacy Act by failing to properly collect information and
maintain and operate its system of records. (la’. jjjj 38-41.) He also alleges DOJ wrongfully
disclosed his medical and personnel records to USAO officers, EOUSA officers, security
personnel, the state Unemployment Commission, and a third-party contractor. (Id. jjjj 3l, 49.)
He alleges that the MSPB and DOJ also violated the Privacy Act by disclosing his records to the
public. (Id. jj 53.) Finally, plaintiff alleges that DOJ violated the Rehabilitation Act by both
illegally discriminating against him and failing to act on his reasonable accommodation request
by engaging in an "Interactive Process," and that it violated the APA by failing to engage in the
reasonable accommodation process. (Ia'. jjjj 58-59.)
Defendants have moved to dismiss under Fed. R. Civ, P. l2(b)(6) for failure to state a
claim upon which relief can be granted, or, in the alternative. for summary judgment under Fed.
R. Civ. P. 56. Plaintiffopposes dismissal and summaryjudgment and has filed a Rule 56(f)
affidavit requesting further discovery.
ANALYSIS
I. LEGAL STANDARD
Defendants have moved to dismiss the plaintiffs claims, Fed. R. Civ. P. 12(b)(6), or, in
the alternative, for summary judgment. Fed. R. Civ. P. 56. "Having considered supplemental
documents and declarations from both parties, the Court must analyze defendants’ motion as one
for summaryjudgment." Cacho v. Chertoff No. 06-00292, 2006 WL 3422548, at *3 (D.D.C.
Nov. 28, 2006) (citing Harris v. Attorney Gen ’l, 400 F. Supp. 2d 24, 26 (D.D.C. 2005)). "Both
parties were given a reasonable opportunity to submit materials outside the pleadings," Harris,
400 F. Supp. 2d at 26, as the array of depositions and relevant documents submitted to the Court
demonstrates. "Further, an opportunity was afforded to each party to respond to the other's
submissions." Id.
A court must grant a motion for summary judgment when "there is no genuine issue as to
any material fact and . . . the moving party is entitled tojudgment as a matter of law." Fed. R.
Civ. P. 56(c). A court must "regard the non-movant's statements as true and accept all evidence
and make all inferences in the non-movant's favor." Harrz``s, 400 F. Supp. 2d at 26 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Furthermore, "any factual
assertions in the movant's affidavits will be accepted as being true unless [the opposing party]
submits his own affidavits or other documentary evidence contradicting the assertion." Neal v.
Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faullmer, 689 F.2d 100, 102 (7th
Cir. l982)).
II. PRIVACY ACT CLAIMS AGAINST DOJ
When it passed the Privacy Act, Congress declared that "in order to protect the privacy of
individuals identified in information systems maintained by federal agencies, it is necessary and
proper for the Congress to regulate the collection, maintenance, use, and dissemination of
information by such agencies." Privacy Act of 1974, Pub. L. No. 93-579, § 2(a)(5), 88 Stat.
1896. The Act provides agencies with "detailed instructions for managing their records and
provides for various sorts of civil relief to individuals aggrieved by failures on the Government's
part to comply with the requirements." Doe v. Chao, 540 U.S. 6l4, 618 (2004). These detailed
instructions and provisions for relief "protect[] individuals from injury that can result from the
bureaucratic habit of collecting and retaining information, however dated, prejudicial, or false."
Dickson v. Office ofPers. Mgml., 828 F.2d 32, 38 (D.C. Cir. l987). "Put simply, the Act
‘safeguards the public from unwarranted collection, maintenance, use and dissemination of
personal information contained in agency records . . . by allowing an individual to . . . ensur[e]
that his records are accurate and properly used."’ McCready v. Nz``cholson, 465 F.3d l, 7 (D.C.
Cir, 2006) (quoting Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984)).
Section (g) of the Act creates causes of action for four categories of agency misconduct.
5 U.S.C. § 552a(g)(1). The first two categories "cover deficient management of records," by
providing for the "correction of any inaccurate or otherwise improper material in a record" and
for "a right of access against any agency refusing to allow an individual to inspect a record kept
on him." Doe v. Chao, 540 U.S. at 618 (citing 5 U.S.C. §§ 552a(g)(1)(A)-(B)). The third
category covers "an agency’s failure to maintain an adequate record on an individual" that results
in a "determination ‘adverse"’ to that person." Id. (citing 5 U.S.C. § 552a(g)(1)(C)). The fourth
category covers any "adverse effect" from a "failure [by the agency] to hew to the terms of the
Act." Ia'. (citing 5 U.S.C. § 552a(g)(1)(D)). ln actions brought under (g)(l)(C) and (D), the
government will only be liable for "actual damages sustained by the individual as a result of the
refusal or failure." 5 U.S.C. § 552a(g)(4).
P1aintiffs claims center around the alleged failure of the agency to hew to § 552a(b) of
the Act, which forbids disclosure of "any record which is contained in a system of records by any
means of communication to any person, or to another agency, except . . . with the prior written
consent of[] the individual to whom the record pertains." 5 U.S.C. § 552a(b). Count l alleges
that the DOJ wrongfully disclosed confidential personnel records to USAO officers, EOUSA
officers, and security personnel. (Compl. jj 31.) Count III alleges that the DOJ wrongfully
disclosed plaintiffs information to the Unemployment Commission. (Ia'. jj 49.) Count IV
alleges that the MSPB and DOJ violated subsection (b) when the MSPB publicly disclosed
plaintiffs medical records as part of its published decision. ([a'. jj 53.)
Plaintiff also seeks damages under (g)(1)(D) for DOJ’s violations of subsection (e) ofthe
Privacy Act, which lists "agency requirements" and generally "impos[es] responsibilities on
federal agencies to maintain their records accurately." Bartel, 725 F.2d at 1407 & n.6. In Count
ll of his complaint, plaintiff alleges (1) DOJ failed to inform him of the principal purpose for
which it intended to use his medical information, in violation of subsection (e)(3) (Compl. jj 38);
(2) DOJ failed to assure the accuracy, completeness, timeliness or relevance of its "allegations
about Plaintiff’ prior to their disclosure, in violation of subsections (e)(5) and (e)(6) (Ia’. jj 39);
(3) DOJ failed to establish rules of conduct for persons involved in the operation and
maintenance of its system of records, in violation of subsection (e)(9) (Id. jj 40); and (4) DOJ
failed to establish safeguards to protect the security and confidentiality of plaintiffs records in
violation of subsection (e)(l0) (Ia’. jj 41).
The Privacy Act’s focus on the proper "collection, maintenance, use, and dissemination"
of personal information, Krieger v. U.S. Dep ’l ofJustice, 529 F. Supp. 2d 29, 40 (D.D.C. 2008),
necessarily limits its scope. For example, "[i]t is well-established that, ‘ generally speaking, the
Privacy Act allows for correction of facts but not correction of opinions or judgments."’ Mueller
v_ Wmzer, 485 F.zd 1191, 1197 (D.C. Cir. 2007) (quoting M¢Cready, 465 F.zd ar 7). The circuit
has also stated that a "collateral attack on [an] original personnel decision" is an "imperrnissible"
use ofthe Privacy Act. Klez``man v. Dep ’t ofEnergy, 956 F.2d 335, 339 (D.C. Cir. 1992). By
extension, "it bears mention that any harm plaintiff suffered from the administrative actions
taken against him is not actionable under the Privacy Act." Cacho, 2006 WL 3422548, at *3
(citing Albrz'ghl v. UnitedSlates, 732 F.2d l8l, 190 (D.C. Cir. 1984) ("[T]he Privacy Act was not
intended to shield these employees from the vicissitudes of federal personnel management
decisions.")). See also Hanna v. Herman, 121 F. Supp. 2d 113, 124 (D.D.C. 2000) ("[P]laintiff
cannot rely on any arguable violation of the Privacy Act to collaterally attack the agency’s
decision to demote him."), a/j"d mem sub nom, Hanna v. Chao, No. 00-5433, 2001 WL 476397(D.C. Cir. Apr. 1 1, 2001). Thus, plaintiffs arguments that defendants lacked a basis to terminate
him because hisjob did not require a security clearance or because they failed to follow the
correct procedures (Pl.’s Opp’n at 6-7); that DOJ should have engaged in an interactive process
regarding his reasonable accommodation request (id. at 9-10), or that DOJ gave too much weight
to his psychologist’s first letter (z``d. at 15-19) are impermissible attacks on DOJ’s personnel
decisions and administrative actions. Therefore, they are not properly before this Court under
the guise of a Privacy Act case. Rather, these are matters within the province of the MSPB and
cannot be litigated here. The Court will thus restrict its inquiry to DOJ’s record-keeping
practices and to the alleged disclosure of plaintiffs medical and personnel records.
A. Failure to Keep Accurate Records - Subsections (e)(5) and (e)(6)
Count ll alleges that DOJ violated subsections (e)(5) and (e)(6) of the Privacy Act by
failing to keep accurate records. (Compl. jj 39.) As the D.C. Circuit recently explained, a
plaintiff must establish four elements to recover under this section:
(1) he has been aggrieved by an adverse determination; (2) the
[agency] failed to maintain his records with the degree of accuracy
necessary to assure fairness in the determination; (3) the [agency's]
reliance on the inaccurate records was the proximate cause of the
adverse determination; and (4) the [agency] acted intentionally or
willfully in failing to maintain accurate records.
Chambers v. U.S. Dep ’l oflnterz'or, 568 F.3d 998, 1006 (D.C. Cir. 2009) (quoting Deters v. U.S.
Parole Comnz ’n, 85 F.3d 655, 657 (D.C. Cir. 1996)). See also Thompson v. Dep ’l ofState, 400
F. Supp. 2d 1, 19 (D.D.C. 2005) (p1aintiff must "show not only that the inaccurate records were
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considered in making the determination, but that an error in the records caused the
determination."), ajY’a’ mem. 210 F. App’x 5 (D.C. Cir. 2006). Here, plaintiffs complaint
objects to inaccurate "conclusions drawn by lay employees" that were based on accurate records.
(Compl. jj 39.) Doe further acknowledges that DOJ included his psychologist’s follow-up letters
in his file and quoted them in the final termination letter (Pl.’s Opp’n at 16-18), so he cannot
plausibly claim that his record is incomplete. Thus, plaintiff objects not to erroneous or
incomplete records but to misinterpretation of the records by DOJ employees, for which there is
no remedy under the Privacy Act. Because plaintiff has failed to show that there was an "error in
the records," Thompson, 400 F. Supp. 2d at 19, he cannot succeed under (e)(5) or (e)(6).
B. Lack of Rules and Safeguards - Subsections (e)(9) and (e)(l0)
Plaintiff also fails to state a claim under 5 U.S.C. § 552a(e)(9) or (e)(10). To successfully
state a claim under these subsections, plaintiff must identify a "rule or safeguard . . . that [DOJ]
should have established but did not." See Chambers, 568 F.3d at 1007 n.7 (holding that plaintiff
could not sue under (e)(9) or (e)(l0) when merely alleging that the agency had failed to
"safeguard and maintain records"). Section (e)(9) also requires that DOJ "instruct" persons
involved in the maintenance of records "with respect to such rules and the requirements of this
section." 5 U.S.C. § 552a (e)(9). Plaintiffalleges that DOJ’s violations ofthe Privacy Act imply
that its rules and safeguards are "illusory." (Pl.’s Opp’n at 20.) "This argument lacks merit. . . .
[T]he DOJ has promulgated extensive regulations codified at 28 C.F.R. §§ 16.1 et seq. that
safeguard its Privacy Act-protected records, notwithstanding the allegations of a single violation
against one individual." Krieger v. U.S. Dep ’t ofJustice, 529 F. Supp. 2d at 54-55. DOJ has
issued numerous rules and regulations regarding the maintenance of records, and plaintiff has not
identified any specific failure to issue guidelines. Furthermore, although plaintiff suggests that
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DOJ violated (e)(9) by failing to formally train the Coordinator (Pl’s Opp’n at 20), the Privacy
Act does not specify how the agency must "instruct" its personnel, and plaintiff has provided no
support for his suggestion that listing rules and requirements on the Intemet is inappropriate
Therefore, this claim will be dismissed.
C. Lack of Informed Consent - Subsection (e)(3)
Subsection (e)(3) of the Privacy Act requires federal agencies maintaining systems of
records to "inform each individual whom it asks to supply information . . . [of] (B) the principal
purpose or purposes for which the information is intended to be used . . . ." 5 U.S.C. §
552a(e)(3). Plaintiffis entitled to civil remedies only ifthe violation had an "adverse effect" on
him. 5 U.S.C. § 552a(g)(l)(D). Thus, Doe "must establish that (1) [DOJ] failed to notify [him]
of the principal purpose of the investigation; (2) its actions had an adverse effect on [him]; and
(3) it willfully or intentionally violated this provision ofthe Act." Cara’amone v. Cohen, 241
F.3d 520, 529 (6th Cir. 2001). Since "an agency may not know . . . precisely how it will use
information that is yet to be gathered," "subsection (e)(3) must be interpreted to permit flexibility
so the agency can determine the specific uses for information after it has been gathered."
Thompson, 400 F. Supp. 2d at 16 n.18. Here, plaintiff alleges that DOJ violated (e)(3) by
concealing its principal purpose in requesting the medical information: to "assess his security
clearance" and "not to ensure reasonable accommodation." (Compl. jj 38.) But plaintiff has not
adduced any facts that suggest that DOJ’s "principal purpose" in requesting his information was
to assess his security clearance. Indeed, plaintiff states that the USAO "solicited from John Doe
medical information in order to provide reasonable accommodation." (Pl.’s Opp``n at l2.)
Though plaintiff alleges that "the actions of the [Coordinator] demonstrate" that this request was
a mere "pretext," (la’. at 11), the evidence he provides shows otherwise. The deposition ofthe
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Accommodation Coordinator reveals that the Coordinator was "very concemed" (ial., Ex. 20 at
47) and "alarmed" (id, Ex. 20 at 90) by the letter from plaintiffs doctor, and therefore "alerted
the appropriate officials." (Id., Ex. 20 at 91.) There is no hint of "pretext" here. Further,
plaintiff ignores the fact that it was he who asked for the reasonable accommodation.
Plaintiff has failed to provide any basis for a reasonablejury to infer that DOJ officials
"willfully or intentionally violated this provision ofthe Act" by concealing their true purpose.
"[P]roof of intent or willfulness is a necessary element of [p1aintiffs] claims, and failure to
provide supporting evidence would lead to summaryjudgment in favor of the [government]."
Sussnzan v. U.S. Marshal’s' Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007). He primarily alleges
facts relating to DOJ’s use of his information once it was collected, but fails to provide anything
beyond speculation for his claim that DOJ intentionally or willfully misled him into providing
his personal medical information. Plaintiff s theory is "fanciful at best and without support"
(Defs.’ Reply to Pl.’s Opp’n ("Defs.’ Reply") at 3 n.2), and is contradicted by the very facts he
provides. He has not shown that DOJ failed to notify him of the principal purpose of its
investigation. Summaryjudgment will therefore be granted on this claim,
D. Im proper Disclosure - Subsection (b)
Counts l-lV of plaintiffs complaint allege that DOJ violated the Privacy Act by
improperly disclosing plaintiffs private medical information to various persons inside and
outside of the agency. Privacy Act claims for monetary damages based on improper disclosure,
which arise under "catchall" subsection § 552a(g)(1)(D), have four elements: "1) the disclosed
information is a record contained within a system of records; 2) the agency improperly disclosed
the information; 3) the disclosure was willful or intentional; and 4) the disclosure adversely
affected the plaintif ." Logan v. Dep’t of Veterans Affairs, 357 F. Supp. 2d 149, 154 (D.D.C.
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2004). "The burden of prooflies with the plaintiff." Cacho, 2006 WL 3422548, at *4 (citing
Reuber v. UrziteclStates, 829 F.2d 133, 141 (D.C. Cir. 1987)). Plaintiffalleges, and the
defendants have not contested, that the disclosed information was a "record contained within a
system of records." (Compl. jj 3 l .)
The defendants instead argue that disclosure was legally proper, under either the "need to
know" (Defs.’ Mot. at 8-10), or "routine use," (Defs.’ l\/lot. at 15), exemptions to the Privacy
Act’s prohibitions on disclosure. "[T]he Privacy Act generally prohibits government agencies
from disclosing personnel files" without the consent ofthe individual. Bigelow v. Dep ’l of
Defense, 217 F.3d 875, 877 (D.C. Cir. 2000). However, an agency may properly disclose a
protected record if one ofa number of exemptions applies. 5 U.S.C. § 552a(b) (listing twelve
exemptions). lf plaintiff cannot establish that disclosure was improper, he cannot succeed under
the Privacy Act as a matter of law.
l. Need to Know -- § 552a(b)(1)
Plaintiff alleges that information was improperly distributed to DOJ security personnel,
the DOJ officials who supervised the Accommodation Coordinator, and EOUSA Attomey
Rosenblum. DOJ responds that disclosure to these officers or employees was proper because
they had "a need for the record in the performance oftheir duties." (Defs.’ Mot. 8-10; 5 U.S.C. §
552a(b)(1).)
In a § 552a(b)(1) inquiry, "what must be determined . . . is whether the official examined
the record in connection with the performance of duties assigned to him and whether he had to
do so in order to perform those duties properly." Bigelow, 217 F.3d at 877 (describing this as the
"point" ofthe exemption); see also Gamble v. Dep ’l ofthe Army, 567 F. Supp. 2d 150, 156
(D.D.C. 2008) (holding that the plaintiffs commanding officer in the Alaska National Guard had
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a "legitimate reason to access plaintiffs disciplinary record" given the "debilitating effect" of
misconduct in a military setting).4 This Court must determine "the need to know ofthe agency
official who received the disclosure . . . ." Cacho, 2006 WL 3422548, at *5.5 Thus, whether the
Accommodation Coordinator needed to know what security personnel thought of plaintiffs
medical records is irrelevant. (Pl.’s Opp’n at 6.)
Whether one agrees with defendants’ decision to revoke plaintiffs security clearance, it
cannot seriously be disputed that DOJ security personnel needed to know the contents of
plaintiffs records. The "need to know" exemption "permits the disclosure of [plaintiff s]
protected record to a supervisor who needs information contained in the record to assess
[plaintiffs] trustworthiness and make related personnel decisions." Cacho, 2006 WL 3422548,
at *6. See also Bigelow, 217 F.3d at 877 (holding that plaintiffs supervisor had a need to know
plaintiffs information where his duties included "determining eligibility . . . [for] assignment or
retention in sensitive duties"). All AUSAs must be eligible for a Level 4 security clearance.
(See Defs.’ Reply, Attach. B ("All AUSA positions and information Technology positions are
designated Level 4.").) Plaintiff was therefore required to maintain his eligibility for a security
clearance in order to remain an AUSA, even if his work did not specifically require him to be
cleared. The security personnel informed of plaintiffs mental state needed to know the
information he disclosed in order to assess his trustworthiness and "make related personnel
4 Plaintiffwrongly conflates the "need to know" and "routine use" exemptions, suggesting that
there must be "convergence" between the government’s purpose in collecting and disclosing his
information. (Pl.’s Opp’n at 11-1 3) There is no such requirement under the "need to know"
exemption. See, e.g., Bigelow, 217 F.3d at 877.
5 For this reason, plaintiffs confusion over whether the Accommodation Coordinator or the
AUSAs informed the EOUSA and security personnel about his medical records is immaterial.
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decisions" about his eligibility for security clearance. Accordingly, disclosure to the security
personnel was not improper.
Plaintiffs claims arising from the disclosure to the "Acting United States Attorney and to
AUSAs in the office with no right or need to know" also cannot succeed as a matter oflaw.
(Compl. jj 21; Pl.’s Counterstatement jjjj 6-7 (listing disclosure to "a Criminal Chief," and "the
Acting United States Attorney").) As the "highest-ranking officers" in the office, with
"supervisory and disciplinary authority over plaintif ," the Criminal Chief and Acting U.S.
Attorney had a need to know the information disclosed about plaintiff. See Cacho, 2006 WL
3422548, at *6-7 (permitting disclosure of information related to the plaintiffs eligibility for his
position to the highest-ranking officers in his office). Accora' Violti v. U.S. Air Force, 902 F.
Supp. 1331, 1337 (D. Colo. 1995) (holding disclosure ofinformation about acting head of
political science department to "political science department staff’ not improper "as a matter of
law" under need to know exception). As plaintiffs supervisors, the officers were "responsible
for ensuring that the [office] was operating safely" and therefore needed to know the information
he provided. See Cacho, 2006 WL 3422548, at *6. The Accommodations Coordinator therefore
properly disclosed plaintiffs information to them under the Privacy Act.
Plaintiff finally alleges his information was disclosed to "persons in the Executive Office
for United States Attorneys" (i.e., EOUSA Attorney Rosenblum) who "had represented the
USAO in various pending disciplinary matters against John Doe." (Compl. jj 21.) The need to
know exemption is not limited “‘only to officers and employees within a certain office within an
agency rather than to officers and employees ofthe entire agency." Hanna v. Herman, 121 F.
Supp. 2d at 123-24 (finding that disclosure to an officer within another department of the
plaintiffs agency "would be covered by the "need to know" exception as a matter of law.").
_]6_
Rosenblum’s position at the EOUSA, outside ofthe USAO, does not prevent him from having a
need to know. See ia'.
Plaintiff alleges that further discovery will support "an assertion that [Rosenblum] has
never before been involved in the reasonable accommodation process . . . implicating security
clearance issues." (Compl. jj 21(d).) 1n other words, plaintiff argues, Rosenblum had no need to
know because he was not involved in plaintiffs reasonable accommodation claim. Even so,
Rosenblum would have been entitled to access the records because he represented DOJ in
"various pending disciplinary matters" against plaintiff at the time. “‘[D]isclosure without
plaintiffs consent" is permitted under the need to know exemption when "in the course of
receiving, processing, investigating, or litigating . . . employment claims." Ivey v. Snow, No. 04-
0214, 2005 WL 2474480, at *3 (D.D.C. Aug. 30, 2005) (citing Pippirzger v. Rubin, 129 F.3d
519, 529-31 (10th Cir. 1997)). See also Glass v. U.S. Dep’t ofEriergy, No. 87-2205, 1988 WL
118408, at *1 (D.D.C. Oct. 26, 1988) (holding that disclosure of records to "counsel for the
agency . . . for defense of litigation initiated by plaintiff’ was permitted under the need to know
exemption). Rosenblum had a need to know plaintiffs records because he was litigating
plaintiffs employment claims.6 Thus, disclosure to Rosenblum was not improper under the
Privacy Act, and summaryjudgment will be granted on this claim.
6 Even taking as true plaintiffs unsupported allegations that Rosenblum had "crafted an excuse
to rid DOJ ofJohn Doe" (Pl.’s Opp’n at 2), the disclosure to Rosenblum would qualify under the
need to know exemption. The Court determines the existence of a need to know objectively,
based on the facts alleged; Rosenblum’s subjective intent is therefore immaterial. See, e.g.,
Gamble, 567 F. Supp. 2d at 156 (determining that army officer commanding plaintiffs National
Guard unit had a need to know because he had a "legitimate reason to access plaintiffs . . .
record."); Ivey, 2005 WL 2474480, at *3 (ending inquiry into whether 1RS employees had a need
to know plaintiffs records after determining the records were shared "in the course of . . .
litigating employment claims.").
_17_
2. Routine Use
Defendants argue that plaintiffs claim against DOJ for disclosing the termination letters
to the Unemployment Commission and Talkx must fail as a matter of law because ofthe "routine
use" exemption. The Privacy Act allows disclosure of records "for a routine use as defined in
subsection (a)(7) . . . and described under subsection (e)(4)(D) . . . ." Section 552a(a)(7) defines
a "routine use" as use "for a purpose which is compatible with the purpose for which [the record]
was collected." Section 552a(e)(4)(D) requires agencies to publish "each routine use ofthe
records contained in the system, including the categories of users and the purposes of such use"
in the Federal Register. Thus, merely publishing the routine use in the Federal Register will not
satisfy the Privacy Act. The use must also be "compatible" with the purpose for which the
record was collected. See U.S. Postal Serv. v. Nat’l Ass'n of Letter Carriers, 9 F.3d 138, 144-46
(D.C. Cir. 1993); Doe v. Stephens, 851 F.2d 1457, 1466-67 (D.C. Cir. 1988) (holding that
disclosing medical records pursuant to a grand jury subpoena was an invalid "routine use"
because it would not be for a compatible purpose).l
DOJ cites to the Federal Register to establish both the "compatibility" and "publication"
prongs of its "routine use" argument. (Defs.’ Reply at 13-14.) DOJ’s published routine uses
include providing information to "a . . . State . . . income security administration agency (e.g.,
State unemployment compensation agencies), when necessary to adjudicate a claim . . .
Publication ofNotice of Systems of Records, 71 Fed. Reg. at 35344. This routine use applies to
7 The precise definition of"compatibility" remains unclear in this Circuit. Judge Silberman, in a
portion of his opinion in U.S. Postal Service that was notjoined by Judge Williams, suggested
that the "compatibility requirement" should be met by showing "some meaningful degree of
convergence," or a "more concrete relationship or similarity . . . between the disclosing agency’s
purpose in gathering the information and in its disclosure.” See U.S. Postal Serv., 9 F.3d at 145
(quoting Britl v. Naval Investigative Serv., 886 F.2d 544, 548 (3rd Cir. 1989)). Ultimately,
however, he found it "not necessary to decide today the precise limitations" of the compatibility
requirement. U.S. Postal Serv., 9 F.3d at l46.
_18_
"general personnel records files . . . reports of personnel actions, and the documentation required
in connection with those actions." Ia’. at 35343. Defendant has therefore satisfied the
publication requirement as applied to the disclosure to the Unemployment Commission.
DOJ’s has similarly fulfilled the "publication" requirement for its disclosure to Talkx.
Under the Privacy Act, the federal government may transfer information to third-parties, so long
as doing so meets the definition ofa routine use. See Fatlahi v. Bureau o/Alcohol, Tobacco &
Firearms, 328 F.3d 176 (6th Cir. 2003) (holding that disclosure to third-party condominium
board was a "routine use" under the Privacy Act). Among its routine uses, DOJ has listed: "[t]o
disclose information to contractors, grantees, or volunteers performing or working on a contract,
service, grant, cooperative agreement, orjob for the Federal Govemment." 71 Fed. Reg. at
35346. The parties agree that Talkx is a "contractor" that acted as an "agent for the USA(),
appealing the award of unemployment compensation." (Compl. jj 27e. See also Defs.’ Mot. at
15.) DOJ has therefore satisfied the publication requirement.
The Court is satisfied that DOJ has established that its purpose in disclosing Doe’s
information was compatible with its purpose in collecting it. DOJ’s listed purpose for collecting
supplemental medical information is to "clearly explain the nature ofthe disability or the need
for the reasonable accommodation, or . . . otherwise clarify how the requested accommodation
will assist the employee . . . ." (Manual and Procedures for Providing Reasonable
Accommodation, Defs.’ Mot., Attach. 3 at 5.) DOJ’s listed purpose for disclosing information to
the Unemployment Commission and Talkx is "determining status, eligibility, and employee’s
rights and benefits under pertinent laws and regulations goveming Federal employment." 71
Fed. Reg. at 35343. Thus, plaintiffs records were both collected and disclosed in order to
determine the rights and benefits to which he was entitled under "pertinent" laws. DOJ collected
-19_
plaintiffs medical information to determine his legal eligibility for rights and benefits. By filing
for unemployment benefits, plaintiff raised the issue of his "eligibility, . . . rights and benefits"
before the Unemployment Commission. In its appeal ofthe Commission’s decision, DOJ
disclosed plaintiffs medical information - first to Talkx, then to the Commission - as part of its
claim that he had been fired for "just cause." (See Pl.’s Opp’n at 21-22.) In other words, DOJ
disclosed plaintiffs records to determine his eligibility for unemployment benefits. The Court
finds this purpose sufficiently compatible with DOJ’s purpose in collecting the records and, thus,
that defendant has satisfied the "compatibi|ity" requirement.
Plaintiff does not appear to contest that DOJ’s use ofthe records was routine. (Pl.``s
Opp’n at 21-22.) Rather, he argues that DOJ had "no basis to appeal" and "had no ground to
challenge" his unemployment benefits. (Id.) Plaintiff does not explain why the adequacy of
DOJ’s grounds for appeal should be dispositive regarding the issue of "routine use," only that
"[i]t is important to understand the true facts," (Id. at 21.) Nor does he provide any legal
authority to support his argument that DOJ’s subjective intent in pursuing the appeal is relevant.
Plaintiff further undermines his own argument by acknowledging that "an appeal is an
affirmative act the employer may chose to take or not take." (Id.) Plaintiff may have had a good
case before the Unemployment Commission, but DOJ still retained the option of appealing.
Thus, the relative strength or weakness of DOJ’s appeal is not relevant.
Defendants have shown disclosure of plaintiffs records to the Unemployment
Commission and Talkx to be a proper "routine use," and summaryjudgment will therefore be
granted on this claim.
_20_
3. Adverse Effect
Even if DOJ’s disclosure to the Unemployment Commission and Talkx did not qualify as
a "routine use," plaintiffs claim would still fail because he has not established that he suffered
an "adverse effect" as a result of this disclosure. "Plaintiff is entitled to civil remedies under §
552a(b) only ifthe violation had an ‘adverse effect’ on him." Gamble, 567 F. Supp. 2d at 155.
The plaintiff must allege "actual damages" connected to the adverse effect to "qualify" under the
Act. Doe v. Chao, 540 U.S. 6l4, 620-27 (2004); Mandel v. U.S. Oyj‘ice ofPers. Mgmt., 244 F.
Supp. 2d 146, 153 (E.D.N.Y. 2003) (holding that plaintiff must establish a "causal connection"
between agency violation and adverse effect). Thus, plaintiff "must establish not only that he
was ‘adversely affected’ by the improper disclosure, but also that he suffered ‘some harm for
which damages can reasonably be assessed."’ Mulhern v. Gates, 525 F. Supp. 2d 174, 181-82
(D.D.C. 2007) (quoting Doe v. Chao, 540 U.S. at 621).
Plaintiff claims that he suffered "damage to career and his professional reputation and
out-of-pocket pecuniary loss" as a result ofthe disclosure to the Unemployment Commission and
Talkx. (Compl. jj 43.) But neither disclosure caused plaintiffs termination and, despite the
disclosure, plaintiff prevailed in his unemployment compensation case. Mere "self-serving,
unsupported statement[s]," consisting of "a few conclusory sentences," are "insufficient to defeat
a motion for summaryjudgment." Mulhern, 525 F. Supp. 2d at 186. For instance, plaintiff
provides no support for his assertion that the disclosure to the Unemployment Commission
"would pose an obstacle to [his] re-employment." (Pl.’s Counterstatement jj 1 1j.) Nor has he
provided evidence that the information released to the Commission or Talkx is available to the
public. Indeed, the document rejecting DOJ’s appeal does not disclose any information covered
by the Privacy Act. (Pl.’s Opp’n, Ex. 18.) Plaintiff has also not alleged that he suffered damages
_21_
from the appeal itself. As he notes, the Commission rejected DOJ’s appeal almost immediately.
(Pl.’s Counterstatement jj 1 lg.) Thus, plaintiff has provided nothing but "self-serving,
unsupported statements" as proof that DOJ’s appeal of his unemployment compensation award
caused him pecuniary damage.
Plaintiff also claims that DOJ’s disclosure caused "direct and indirect injury to
[p]laintiff s reputation, embarrassment, humiliation, anxiety, physical upset, emotional upset,
physical pain and physical suffering . . . ." (Compl. jj 43.) "To defeat a motion for summary
judgment, a plaintiff must offer evidence sufficient for ajury to find that the emotional harm he
claims to have suffered was acute, tangible, and severe enough to give rise to actual damages."
Mulhern, 525 F. Supp. 2d at 186, A "speculative claim of emotional distress allegedly caused by
others talking about [plaintiff]" is not actionable under the Privacy Act, for "while gossip may
cause an adverse effect, it does not constitute actual damages." See Gamble, 567 F. Supp. 2d at
156 (citing Doe v. Chao, 540 U.S. at 620-25) ("emotional anguish alone is insufficient, and . . . a
plaintiff must show actual damages to recover under the Privacy Act.").s Here, plaintiff"fails to
make any showing that these damages were caused by his knowledge that the DOJ" disclosed his
medical information to the Unemployment Commission and Talkx, "as opposed to any other
possible influences." Krieger v. U.S. Dep ’t ofJustice, 562 F. Supp. 2d 14, 18 (D.D.C. 2008).
8 Although "the recent trend at the District Court level has been to allow Privacy Act suits
seeking general compensatory damages, such as pain and suffering and non-pecuniary losses, to
proceed," Montemayor v. Fed. Bureau ofPrisons, No. 02-1283, 2005 U.S. Dist. LEXlS 18039,
at * 1 5 (D.D.C. Aug. 25, 2005), "[e]ven in those courts holding that non-pecuniary emotional
distress could qualify as actual damages, a level of severity beyond that which plaintiffs have
shown here has been required." Rice v. United States, 245 F.R.D. 3, 7 (D.D.C. 2007) (citing
Boya’ v. Snow, 335 F. Supp. 2d 28, 39 (D.D.C. 2004) (declining summary judgment where
plaintiff alleged "severe emotional and physical har1n, stress, sleeplessness and nightmares")).
Cf Krieger v. U.S. Dep ’t ofJustice, 529 F. Supp. 2d at 53 (holding plaintiff had stated a claim
for relief where he alleged "‘ great mental anguish and anxiety, producing physical symptoms’
based on Defendants' conduct.").
_22_
Thus, because plaintiff has failed to show he has suffered actual damages caused by the
disclosure to the Unemployment Commission and Talkx, plaintiffs claim to relief under the
Privacy Act must be rejected.
III. PRIVACY ACT CLAIMS AGAINST THE MSPB
Plaintiff fails to state a claim against the MSPB under the Privacy Act. A plaintiff "may
not collaterally attack prior decisions of the MSPB by seeking amendment of Board decisions
through use ofthe Privacy Act." Jones v. U.S. Merit Sys. Prot. Bd., No. 8:05CV80, 2005 WL
2445899, at *3 (D. Neb. Oct. 3, 2005), aff’al, 216 F. App’x 608 (8th Cir. 2007). Accord Byrnes
v. Merit Sys. Prot. Bd., No. 04-742, 2005 WL 486156, at *2 (D.D.C. Mar. 2, 2005) (holding that
the Privacy Act "cannot be used as a vehicle to ‘correct’ a substantive decision that went against
an individual's interest"). Unlike the plaintiffs in Jones and Byrnes, plaintiff does not ask the
Court to amend his record; instead he seeks damages resulting from the Board’s initial refusal to
exercise its discretion to grant him Doe status.g (Compl. at 22 jj (a) (prayer for relief).)
Nevertheless, plaintiff attempts to achieve the same forbidden objective as the plaintiffs in Jones
and Byrnes: relitigating issues already decided by the ALJ. Plaintiff collaterally attacks the
MSPB’s decision not to redact his information and reargues at length the merits ofthe ALJ’s
ruling. (Pl.’s Opp’n at 22-26.) His claim for damages against the MSPB invites the Court to
9 Because plaintiff claims that he has suffered damages from the disclosure of his confidential
medical records, the MSPB’s decision to allow him to proceed under a pseudonym does not
moot his claims, The Supreme Court has held that "it must be plain that "interim relief or events
have completely and irrevocably eradicated the effects of the alleged violation" for a claim to be
moot. Doe v. Harris, 696 F.2d 109, 11 1 (D.C. Cir. 1982) (quoting County ofLos Angeles v.
Davis, 440 U.S. 621, 625 (1979)). Plaintiff "asserts injury stemming from the undisputed fact
that his files were sought and released; this injury, he contends, has not been wholly eradicated
and warrants redress." Doe v. Harris, 696 F.2d at 1 13-14. To the extent plaintiff sustained
damages from the disclosure by the l\/ISPB, his claims are not moot, although his claim for
injunctive relief has been mooted by the l\/lSPB’s decision.
_23_
penalize the Board for exercising its administrative discretion. The Privacy Act does not extend
this far (nor is it clear that this Court has any jurisdiction over‘a decision by the ALJ).'O
Even if plaintiff could bring his claim against the MSPB under the Privacy Act, he would
be unable to succeed. A Privacy Act claim for monetary damages based on improper disclosure
- which arises under the "catchall" category codified at § 552a(g)( l)(D) - has four elements:
"the disclosed information is a record contained within a system of records; 2) the agency
improperly disclosed the information; 3) the disclosure was willful or intentional; and 4) the
disclosure adversely affected the plaintiff." Logan, 357 F. Supp. 2d at 154 (citing 5 U.S.C. §
552a(g)(1)(D)). To satisfy the "willful or intentional" requirement, "[t]he violation must be so
patently egregious and unlawful that anyone undertaking the conduct should have known it
unlawful." Sussman, 494 F.3d at 1122 (quoting Deters, 85 F.3d at 660).
Plaintiff cannot provide any facts to support a plausible inference that the ALJ’s refusal
to grant Doe status or that the public release of the MSPB decision was "patently egregious" or
"unlawful." "[P]roofofintent or willfulness is a necessary element of [plaintiffs] claims, and
failure to provide supporting evidence would lead to summary judgment in favor ofthe
[government]." Id. at 1 122. ln Doe v, U.S. Dep ’t ofLabor, the case plaintiff primarily relies
upon to support his claim against the MSPB, the Court dismissed plaintiffs claims for damages
against the government for publishing his medical information in an administrative decision,
10 Doe v. Dep ’t ofLabor, which examined a decision by the Employee Compensation Appeals
Board not to redact the plaintiffs medical records, is distinguishable. See 451 F. Supp. 2d 156,
171-76 (D.D.C. 2006), vacated by settlement, 2007 U.S. Dist. LEXIS 36605 (D.D.C. 2007). The
Department of Labor "apparently conced[ed]" that the records were disclosed under the meaning
ofthe Privacy Act and defended the disclosure as a "routine use." Id. at 171 -72. Thus, the court
evaluated the ECAB’s decision as an affirmative act of disclosure rather than an administrative
judgment. Compare id. with Jones, 2005 WL 2445899, at *3 (distinguishing between the
"collection, maintenance, use and dissemination of personal information" at issue under the
Privacy Act and the MSPB’s role in "adjudicat[ing] disagreements and pronounc[ing] decisions
after inquiry and deliberation").
_24_
because the plaintiff had failed to show disclosure was willful or intentional. 451 F. Supp. 2d at
176-80. Here, as in Department of Labor, plaintiff has failed to show that defendant MSPB
"should have known that failing to redact the plaintiffs name from his . . . decision was a Privacy
Act violation." 1d. at 179-80. Indeed, defendants argue that the MSPB had a legal obligation to
do so under the Freedom ofinformation Act ("FOIA"). (Defs.’ l\/lot at 17-21 (citing 5 U.S.C. §
552(a)(2)).) Whether the Board was obligated to release plaintiffs information (and the FOIA
exemption for "personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(6), suggests
that it was not), plaintiff has not established that MSPB’s action were "patently egregious and
unlawful." Plaintiff cannot show that disclosure was willful or intentional, and thus, defendants’
motion to dismiss, or in the alternative for summary judgment is granted."
IV. REHABILITATION ACT CLAIMS
Plaintiff has asked the Court to stay or dismiss his Rehabilitation Act claim because the
MSPB has "modified the Board’s previous decision" and will "consider [his] claims ofdisability
discrimination and retaliation." (Pl.’s Opp’n at 26.) Although the Federal Circuit has “exclusive
jurisdiction" over appeals from MSPB orders or decisions, the district courts have jurisdiction in
"[c]ases ofdiscrimination." Downey v. Runyon, 160 F.3d 139, 143 (2d Cir. 1998). District
courts also havejurisdiction over appeals in mixed cases, which involve "adverse personnel
action[s] subject to appeal to the MSPB coupled with . . . claim[s] that the action was motivated
ll Although Count V of plaintiffs complaint alleges that both DOJ and the MSPB violated
the Privacy Act by disclosing his medical information in the MSPB decision (Compl. jj 53),
he alleges no facts in his complaint and makes no argument in his brief to support his claim
against DOJ. Because the MSPB was responsible for the disclosure and plaintiff has failed to
provide any support for his claim that the DOJ caused the disclosure, he cannot show that
"[DOJ] improperly disclosed the information," Logan, 357 F. Supp. 2d at 154, and cannot
succeed against DOJ under the Privacy Act as a matter of law.
_25_
by discrimination." Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999). Plaintiffs claim alleges
both "disability discrimination and retaliation" and therefore appears to be a mixed case under
the Rehabilitation Act. (See Pl.’s Opp’n at 26.)
An employee "adversely affected or aggrieved by afnal order or decision ofthe Merit
Systems Protection Board may obtain judicial review." 5 U.S.C. § 7703(a)(1) (emphasis added).
By limiting "judicial review to employees ‘aggrieved by the final disposition’ oftheir
administrative ‘complaint,"’ the statute "thereby mandat[es] administrative exhaustion." Spinelli``
v. Gross, 446 F.3d 159, 162 (D.C. Cir. 2006) (internal citations omitted). This requirement is no
"mere technicality," for it "serves the important purposes of giving the charged party notice of
the claim and ‘narrow[ing] the issues for prompt adjudication and decision.’” Alexander v.
Tomlinson, 507 F. Supp. 2d 2, 20 (D.D.C. 2007) (quoting Park v. Howard Univ., 71 F.3d 904,
907 (D.C. Cir. 1995)). Plaintiffis therefore entitled to review "when the MSPB issues an
adverse ‘final decision’ or ‘final order’ concerning" his case.lz When "the Board grants a
petition for review or a cross petition for review, or reopens or dismisses a case, the decision of
the Board is final ifit disposes ofthe entire action." 5 C.F.R. § 1201.1 13. As plaintiffhimself
notes, the MSPB is currently reviewing his case (Pl.’s Opp’n at 26) and has not disposed ofthe
entire action. Therefore, there is no final decision for this Court to review. The Court lacks
jurisdiction over the claim and will dismiss it without prejudice. See Howard v. Gutierrez, 474
12 A plaintiffis also entitled to file for relief under the Rehabilitation Act where the MSPB has
taken no judicially reviewable action and 120 days have passed since he filed his appeal. Evono
v. Reno, 216 F.3d 1105, 1109 (D.C. Cir. 2000); Downey, 160 F.3d at 145 & n.6 (citing 5 U.S.C.
§ 7702(€)(1)). Plaintiff appealed his removal to the MSPB on February 11, 2009. (Compl. jj
27a.) Plaintiff filed his claim under the Rehabilitation Act as part of his Second Amended
Complaint on May 19, 2009. (Dkt. 23.) Because 120 days had not elapsed between the day
p|aintifffiled his MSPB appeal and the day he filed his Rehabilitation Act claims, this Court may
not assertjurisdiction under this provision.
_26_
F. Supp. 2d 41, 51 (D.D.C. 2007) ("[l]f[plaintiffj had pled the Rehabilitation Act claim in her
initial complaint, it would have . . . been dismissed without prejudice for failure to exhaust.").m
V. APA CLAIMS
The Court will grant defendants’ motion to dismiss plaintiffs claim under the APA.
"The APA does not provide an independent basis for subject matterjurisdiction.” West v.
Jackson, 538 F. Supp. 2d 12, 21 (D.D.C. 2008) (citing Your Home Visiting Nurse Servs., Inc. v.
Shalala, 525 U.S. 449, 456-58 (1999) (noting that the Court has "long held" thejudicial review
provision of the APA is not an independent grant of jurisdiction)). Rather, the APA provides
that final agency action is subject to judicial review where there is no other adequate remedy. 5
U.S.C. § 704. Under the Rehabilitation Act, plaintiff has a right to bring an action before the
MSPB for defendant’s failure to make a "final determination of a reasonable accommodation."
(Compl. jj 63.) This is "adequate to redress discrimination" and so "precludes a remedy under
the APA." West, 538 F. Supp. 2d at 21. Cf Radack, 402 F. Supp. 2d at 104 (no comparable
adequate remedy under the Privacy Act for agency’s disclosure of records in violation ofits own
internal policies). Because the Rehabilitation Act provides an adequate remedy, plaintiff may
not, as a matter of law, sue under the APA.
VI. RULE 56(F) AFFIDAVIT
Summaryjudgment should be entered "after adequate time for discovery." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Thus, under Federal Rule of Civil Procedure 56(f), "a court
may deny a motion for summary judgment or order a continuance ifthe party opposing the
motion ‘shows by affidavit that, for specified reasons, it cannot present facts essential tojustify
'3 Because the Court has dismissed plaintiffs Rehabilitation Act claim, it is unnecessary for it to
consider defendants’ request to dismiss or transfer the claim for improper venue. (Defs.’ Mot. at
31-33.)
_27-
its opposition."’ Citizens for Responsibility & Ethics in Wash. v. Leavitt, 577 F. Supp. 2d 427,
433-34 (D.D.C. 2008) (quoting Fed. R. Civ. P. 56(1)). "ln this regard, the opponent of summary
judgment must provide the ‘requisite specificity’ tojustify his request for discovery." Brookens
v. Solis, 616 F. Supp. 2d 81, 96 (D.D.C. 2009).
Plaintiffs affidavit does not comply with the requirements of Rule 56(f) and cannot
justify a continuance. He has not "stated concretely why [he] could not, absent discovery,
present by affidavit facts essential to justify [his] opposition" to summary judgment and has
omitted "specific reasons demonstrating the necessity and utility of discovery to fend off
summaryjudgment.” Strang v. U.S. Arms Control & DisarmamentAgency, 864 F.2d 859, 861
(D.C. Cir. 1989). Plaintiff has already conducted extensive discovery. He has deposed key
USAO personnel at length, including the Accommodation Coordinator, the Criminal Chief, the
U.S. Attorney, and the EOUSA head of security. (Pl.’s Opp’n, Exs. 19-22.) There are numerous
documents obtained from the government in the record. (See generally Defs.’ Mot. Exs. 1-3;
Pl.’s Opp’n, Exs. 1, 3, 5, 12, 15, 18.) Plaintiffs ability to question his "key" witnesses at length
and the extensive administrative record he submits suggest that summaryjudgment is not
premature. See Ikossi v. Dep ’t ofNavy, 516 F.3d 1037, 1046-47 (D.C. Cir. 2008) (holding
district court abused discretion in granting summaryjudgment where plaintiff lacked "key . . .
testimony" and had only a "limited record" of administrative proceedings).
Plaintiff s affidavit merely lists facts which he plans to discover, with no authority or
explanation for why they are relevant to his clai1ns. The Court does not need to evaluate whether
DOJ employees subjectively believed security personnel had a need to know plaintiffs medical
records (Pl.’s Rule 56(f) Aff``. jj 3), because the intent ofthe disclosing party does not affect the
"need to know" analysis. See supra Part II.D. l. Similarly, Rosenblum’s "actions and motives,"
_23_
(Pl.’s Rule 56(f) Aff``. jj 7), do not affect the legitimacy of DOJ’s disclosures under the "need to
know" or "routine use" exemptions. Nor would "discovery ofthe persons involved in" the
appeal to the Unemployment Commission or "how or why" the information was provided
produce relevant information. (Id. jj 6.) Plaintiff cites no law to support his request for
discovery of DOJ’s decision-making process prior to a routine use. Indeed, the "routine use"
exemption requires only that the use be published and compatible with the purpose for which the
information was collected, making DOJ’s process irrelevant.
Finally, plaintiff has not demonstrated the necessity or utility of discovering "all ofthe
persons or entities to whom his medical information was disclosed." (Pl.’s Rule 56(1‘) Aff. jj 5.)
First, plaintiff has not "specifically explain[ed] what [his] proposed discovery would likely
reveal and why that revelation would advance the plaintiffs' case." Graham v, Mukasey, 608 F.
Supp. 2d 50, 54 (D.D.C. 2009). "A Rule 56(f) motion for additional discovery is not designed to
allow ‘fishing expeditions."’ Id. Even if he had provided the necessary details, plaintiff would
be unable to show that disclosure to these unknown persons caused an "adverse effect" under the
"catchall" provision ofthe Privacy Act. 5 U.S.C. § 552a(g)(1)(D), Where plaintiff 1eams ofa
disclosure "only after initiating the present action . . . plaintiff cannot prove that he suffered
emotional harm" as a result, "as a matter of law." Cacho, 2006 WL 3422548, at *8. Thus,
plaintiff would not be able to recover damages for any disclosures of which he is currently
unaware. Finally, even if he could prove that suffered harm as a result, it would be difficult to
imagine how disclosures to these unknown persons or entities would be "patently egregious or
unlawful" under the Privacy Act, Sussman, 494 F.3d at 1122, given that all of the other alleged
disclosures were proper either under the "need to know" or "routine use" exemptions.
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Although summary judgment "ordinarily ‘is proper only after the plaintiff has been given
adequate time for discovery,"’ here there is no reason to believe "the information plaintiff seeks
through discovery is . . . necessary to decide this case." C itizens for Responsibility & Ethics in
Wash., 577 F. Supp. 2d at 434 (quoting First Chi. Int'l v. United Exch. Co., 836 F.2d 1375, 1380
(D.C. Cir. 1988)). "Thus discovery is not likely to reveal any triable issue of fact." Id. The
Court will therefore deny the plaintiffs motion for Rule 56({) discovery.
CONCLUSION
For the foregoing reasons, the Court will grant the defendants’ motion to dismiss, or in
the alternative, for summary judgment and will dismiss with prejudice all of plaintiffs claims,
except his claim under the Rehabilitation Act, which will be dismissed without prejudice. An
Order consistent with this l\/lemorandum Opinion is also being issued this date.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 6, 2009
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