Even if the disclosure of plaintiff's records was tortious under District of Columbia law, liability under the FTCA would be barred by 28 U.S.C. § 2680(a). That provision excludes from FTCA coverage "any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid."
The court of appeals noted that the disclosure in this case was made pursuant to two VA regulations which "seem, on their faces, to authorize the disclosure of Doe's records" and intimated that the 28 U.S.C. § 2680(a) exception thus might preclude liability under the FTCA. See 779 F.2d at 88 n.26. Plaintiff has advanced no arguments which lead this Court to a contrary conclusion. While plaintiff argues that Stanley's issuance of the subpoena was negligent as a result of the Attorney General's guidelines, see 28 C.F.R. § 59.1(b), this Court has already found that those guidelines simply do not apply to this case. Nor has plaintiff established that VA officials, acting in apparent conformity with applicable regulations, were negligent in releasing the records. In sum, there is nothing in the record to indicate that any individuals involved in the disclosure of plaintiff's records failed to exercise due care.
Because the Court concludes that the release and disclosure of plaintiff's records was not tortious, and because 28 U.S.C. § 2680(a) precludes imposition of liability, plaintiff's claim for damages under the FTCA must be denied.
B. Availability of Injunctive Relief
The Court has concluded that the release and disclosure of plaintiff's records violated only the provisions of the Privacy Act, as incorporated into the Veterans' Records Statute. The Court thus must consider whether that statutory violation authorizes the entry of "a remedial court order requiring (a) return of the records to Doe, (b) exclusion of the information from the grand jury, and (c) no further disclosure by the U.S. Attorney or his staff[.]" Doe v. DiGenova, 779 F.2d at 89. The Court holds that it does not.
The Privacy Act permits entry of injunctive relief for only two specified violations, neither of which occurred in this case. See 5 U.S.C. § 552a(g)(2)(A)-(B). Courts in this jurisdiction have construed the Privacy Act to preclude injunctive relief in all other cases. See Hastings v. Judicial Conference of the United States, 248 U.S. App. D.C. 180, 770 F.2d 1093, 1104 (D.C. Cir. 1985), cert. denied, 477 U.S. 904, 54 U.S.L.W. 3840, 91 L. Ed. 2d 562, 106 S. Ct. 3272 (1986); Houston v. United States Dep't of Treasury, 494 F. Supp. 24, 29 (D.D.C. 1979). This construction is founded upon the principle that "when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies." National Railroad Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 453, 458, 38 L. Ed. 2d 646, 94 S. Ct. 690 (1974). Accordingly, the remedial injunctive relief sought by plaintiff is not authorized by the Privacy Act. The Court thus need not consider whether the new routine use promulgated by the VA precludes entry of such relief. See Doe v. DiGenova, 779 F.2d at 89.
Even if the injunctive relief sought by plaintiff were authorized, the Court would conclude that no injunction should issue under the circumstances of this case. The Court views this case as "so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant." Chamber of Commerce v. United States Dept. of Energy, 200 U.S. App. D.C. 236, 627 F.2d 289, 291 (D.C. Cir. 1980) (per curiam); see also Community for Creative Non-Violence v. Hess, 240 U.S. App. D.C. 321, 745 F.2d 697 (D.C. Cir. 1984).
The only copy of plaintiff's records, apart from that maintained by the VA, is held by this Court under seal, with the protection against disclosure provided with that status. See Fed. R. Civ. P. 26(c); Fed. R. Crim. P. 6(e)(6). Further disclosure of the contents of the records is barred by the rule of grand jury secrecy. See Fed. R. Crim. P. 6(e). Finally, while plaintiff asserts that his records may be subject to future disclosure by the VA under the new routine use regulation, there is no evidence in the record to justify this fear. Absent such evidence, the Court cannot conclude "that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." United States v. W.T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1953).
C. Constitutional Claims
Having determined that plaintiff's requests for relief may not be satisfied on statutory grounds, the Court now turns to plaintiff's claims that the subpoena violated his rights under the fourth amendment and that the disclosure of his records improperly impinged upon his constitutional right to privacy.
1. Fourth Amendment Claims
In its earlier decision, this Court found that plaintiff retained an expectation of privacy in his VA records. The Court concluded, however, that the subpoena for those records did not violate the fourth amendment because the subpoena was not overly broad or indefinite, the agency issuing the subpoena was authorized to conduct the investigation it was conducting, and the materials sought through the subpoena were relevant to that investigation. See Doe v. DiGenova, mem. at 6-7 (citing United States v. Miller, 425 U.S. 435, 445, 48 L. Ed. 2d 71, 96 S. Ct. 1619 (1976); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208, 90 L. Ed. 614, 66 S. Ct. 494 (1946)). The Court sees no need to reconsider this decision. Indeed, the holding is buttressed by the unsealing of the Stanley affidavit. In view of Stanley's reasonable suspicion that plaintiff might be defrauding the VA, his subpoena of the records was proper and wholly consistent with the grand jury's purpose. See United States v. Calandra, 414 U.S. at 343-44.
2. Violation of Right to Privacy
In Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977), the Supreme Court recognized a constitutional right to avoid disclosure of confidential materials about an individual that are already in the possession of the government. Id. at 599-600. This Court previously rejected plaintiff's claim of violation of that right on the grounds that the disclosure effected by the subpoena was strictly limited in scope and that the records were protected from further disclosure under the grand jury secrecy rule. See Doe v. DiGenova, mem. at 7-8. The Court adheres to this holding.
As the Supreme Court explained in Whalen and in Nixon v. Administrator of General Services, 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977), the determination of whether a constitutional invasion of privacy has occurred involves balancing the extent of the disclosure, the protections against additional disclosure, and the public interest favoring disclosure. Even when psychiatric information is involved, the constitutional right to privacy is not absolute. See In re Zuniga, 714 F.2d 632, 641 (6th Cir.), cert. denied, 464 U.S. 983, 78 L. Ed. 2d 361, 104 S. Ct. 426 (1983); United States v. Lindstrom, 698 F.2d 1154, 1167 (11th Cir. 1983); Caesar v. Mountanos, 542 F.2d 1064, 1068 (9th Cir. 1976), cert. denied, 430 U.S. 954, 51 L. Ed. 2d 804, 97 S. Ct. 1598 (1977).
Here plaintiff's VA records were seen by only a small number of persons, and plaintiff is protected from further disclosure by the rule of grand jury secrecy. See In re Zuniga, 714 F.2d at 642 (noting protection afforded by grand jury secrecy rule in right to privacy context); see also Nixon v. Administrator of General Services, 433 U.S. at 458 (noting protections against disclosure); Whalen v. Roe, 429 U.S. at 600-03 (same); Trade Waste Management Ass'n, Inc. v. Hughey, 780 F.2d 221, 234 (3d Cir. 1985) (same). Moreover, the government clearly has a substantial interest in investigating potential fraud. See Whalen v. Roe, 429 U.S. at 598 (noting state's "vital interest" in controlling distribution and preventing misuse of dangerous drugs); Ramie v. City of Hedwig Village, 765 F.2d 490, 492-93 (5th Cir. 1985) (noting legitimate governmental interest in investigating crime), cert. denied, 474 U.S. 1062, 106 S. Ct. 809, 88 L. Ed. 2d 784 (1986). In view of these considerations, the Court concludes that no constitutional invasion of privacy occurred in this case.
The United States Court of Appeals for the Sixth Circuit reached a similar conclusion in In re Zuniga. There a grand jury had issued subpoenas duces tecum for psychiatric records in connection with an investigation of alleged schemes to defraud health insurance plans. 714 F.2d at 634. The court found that release of the records pursuant to the subpoenas would not result in an unconstitutional invasion of privacy because the rule of grand jury secrecy would result in disclosure "only to the minimal extent necessary to promote a proper governmental interest." Id. at 642. The court added, "weighing the slight intrusion on the plaintiff's privacy interest against the need for the grand jury to conduct an effective and comprehensive investigation into alleged violation of the law, the Court concludes that enforcement of the subpoenas does not unconstitutionally infringe on the rights of patients." Id. That rationale applies with equal force to the case at bar. Cf. In re Witness Before the Special October 1981 Grand Jury, 722 F.2d 349, 353 (7th Cir. 1983) (first amendment does not prevent grand jury from investigating Medicare or Medicaid fraud by subpoenaing doctor's patient records).
The Court holds that plaintiff is entitled to a declaration that the disclosure of his VA records violated the Veterans' Records Statute and the Privacy Act. Accordingly, plaintiff's motion for summary judgment is granted to that extent. As to plaintiff's other statutory and constitutional claims and requests for declaratory, monetary, and injunctive relief, plaintiff's motion for summary judgment is denied and defendants' motion for summary judgment is granted.
Upon consideration of the parties' cross-motions for summary judgment, the memoranda of points and authorities in support thereof and in opposition thereto, and the parties having been heard in open court thereon, and for the the reasons stated in the accompanying memorandum, it is by the Court this 29th day of July, 1986,
ORDERED that, with respect to his request for a declaration that the disclosure of his Veterans Administration records violated the Veterans' Records Statute and the Privacy Act, plaintiff's motion for summary judgment be, and hereby is, granted because the subpoena was not an order of a court of competent jurisdiction and was not a written request from the head of a federal agency, and because disclosure was not authorized by a then-existing "routine use" regulation; and it is further
ORDERED that, as to plaintiff's other statutory and constitutional claims for declaratory, monetary, and injunctive relief, plaintiff's motion for summary judgment be, and hereby is, denied, and defendants' motion for summary judgment be, and hereby is, granted.