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DOE v. DIGENOVA

July 29, 1986

JOHN DOE, Plaintiff,
v.
JOSEPH DiGENOVA, ET AL., Defendants



The opinion of the court was delivered by: GASCH

 This case is on remand from the court of appeals. See Doe v. DiGenova, 250 U.S. App. D.C. 274, 779 F.2d 74 (D.C. Cir. 1985). Currently before the Court are the parties' cross-motions for summary judgment.

 I. BACKGROUND

 This case arises from a subpoena of plaintiff's claims file and medical records maintained by the Veterans Administration ("VA"). Plaintiff asserts that the disclosure of those records violated the Veterans' Records Statute, 38 U.S.C. § 3301, the D.C. physician-patient privilege, D.C. Code § 14-307, the D.C. Mental Health Information Act of 1980, D.C. Code § 6-2002(a), and the fourth amendment. *fn1" The amended complaint seeks declaratory and injunctive relief and an award of damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680.

 The facts giving rise to this case may be briefly summarized. On October 22, 1981, Assistant United States Attorney David Stanley notified plaintiff that he was under investigation by a grand jury concerning allegations that he had fraudulently been paid unemployment benefits. At Stanley's suggestion, plaintiff and his court-appointed counsel met with Stanley on November 3, 1981. There Stanley described the evidence against plaintiff, offered a plea bargain, and attempted to enlist plaintiff's assistance in the grand jury investigation.

 Without notice to plaintiff or his counsel, on November 3, 1981 Stanley also caused a grand jury subpoena to be issued to the Director of the VA which sought production of plaintiff's claims file, as well as "any medical records maintained for the claimant." The VA thereupon released plaintiff's records, which included information about plaintiff's psychiatric treatment at a VA clinic, to two Metropolitan Police Department officers. The VA's disclosure was made pursuant to two regulations. The first required that government records "shall be furnished in response to an official request, written, or oral," from an agency or department of the federal government. 38 C.F.R. § 1.506(a) (1984). The second regulation provided that VA records would be made available when "the process of a United States court requires the production" of such documents. Id. § 1.511(b).

 When plaintiff's counsel learned of this disclosure, he informed Stanley that he believed that plaintiff's rights had been violated and threatened legal action unless the confidentiality of the records was protected. After an attempt at negotiating an agreement failed, plaintiff filed the instant suit. On February 26, 1982, this Court granted defendant's motion to dismiss the case as moot. The court of appeals reversed that decision and remanded the case for a determination on the merits. Doe v. Harris, 225 U.S. App. D.C. 27, 696 F.2d 109 (D.C. Cir. 1982).

 During discovery after the remand, Stanley stated that there were two reasons for issuance of the subpoena. First, the ongoing grand jury investigation indicated that certain employees of the District of Columbia Department of Employment Services, including plaintiff, had been causing computers to improperly issue benefits checks to themselves and their accomplices. The grand jury also learned that some of the checks issued to plaintiff had been negotiated at Riggs National Bank. A subpoena was then issued for the records of plaintiff's bank account. Those records revealed that plaintiff also had received and negotiated U.S. Treasury checks marked "VA Comp." In view of the nature of the grand jury's investigation of plaintiff's activities, Stanley then caused the VA subpoena to be issued so as to determine the nature of plaintiff's VA claim and whether it was fraudulent or legitimate. *fn2"

 Stanley's second asserted reason for issuing the subpoena arose from his impression, formed after discussion with plaintiff and his counsel, that plaintiff might assert the insanity defense in any criminal prosecution. Stanley thus hoped "to ascertain whether such a defense might be available, and how strong such a defense might be, before deciding further on the course of any further investigation" of plaintiff.

 After limited discovery was completed, the parties filed cross-motions for summary judgment and, on July 19, 1984, this Court granted defendants' motion. The Court first held that the VA's disclosure was permissible under the Veterans' Records Statute, 38 U.S.C. § 3301. The Court then concluded that, since the disclosure was authorized by federal statute, plaintiff had no cause of action under the FTCA. The Court also held that Stanley's issuance of the subpoena was reasonable and did not constitute an invasion of privacy. The Court further held that the D.C. Mental Health Information Act was not relevant to the case because the VA's disclosure was permissible under the Veterans' Records Statute. The D.C. physician-patient privilege was held to create only an evidentiary privilege that did not give rise to a separate cause of action. With respect to plaintiff's fourth amendment claims, the Court determined that, while plaintiff had a privacy interest in the VA records, the subpoena was reasonable and not overly broad. Plaintiff's constitutional right to privacy, recognized in Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977), was held not violated because the disclosure caused by the subpoena was strictly limited. Finally, the Court concluded that no abuse of process had occurred. See Doe v. DiGenova, No. 82-0025 (D.D.C. July 19, 1984).

 On appeal, the court of appeals ruled that the Veterans' Records Statute, as modified by the Privacy Act, 5 U.S.C. § 552a, did not permit disclosure of plaintiff's records. Doe v. DiGenova, 779 F.2d at 87. The court found that the grand jury subpoena was not an "order of a court of competent jurisdiction" for purposes of the Privacy Act, 5 U.S.C. § 552a(b)(11), because it was not "specifically approved by a court." 779 F.2d at 85. The disclosure also was not permitted as "required by any department or other agency of the United States government", 38 U.S.C. § 3301(b)(3), because a head of a federal agency had not made a written request for the records. 779 F.2d at 85 (citing 5 U.S.C. § 552a(b)(7)).

 The court of appeals further determined that the disclosure was not made for a "routine use" under the Privacy Act because the routine use regulation cited by the government, 43 Fed. Reg. 44,743 (1978), was inapplicable. See 779 F.2d at 86. The court noted that a new routine use had been promulgated by the VA after the disclosure of plaintiff's records:

 
Any information in this system may be disclosed to a federal grand jury . . . in order for the VA to respond to and comply with the issuance of a federal subpoena.
 
If the district court determines that such equitable relief is appropriate, it will have to consider the validity and scope of the new routine use. We fully expect that the parties would, at that point, be given a full opportunity to brief and argue this issue.

 779 F.2d at 87.

 The court of appeals then turned to this Court's disposition of plaintiff's other claims. Because this Court's rulings on the FTCA and Mental Health Information Act claims were based upon its reading of the Veterans' Records Statute, these claims were remanded. 779 F.2d at 88-89. Plaintiff's claims for abuse of process and violation of the physician-patient privilege also were remanded. Id. at 90-91. Finally, the court stated that plaintiff's fourth amendment claims should be reached only if this Court concludes that plaintiff's claims cannot be satisfied on statutory grounds. Id. at 89.

 II. DISCUSSION

 In view of the court of appeals' direction, this Court will first examine plaintiff's statutory claims for declaratory and monetary relief and will then determine whether these claims support granting the injunctive relief sought by plaintiff.

 A. Statutory Claims

 1. Violation of Veterans, Records ...


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