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Doe v. U.S. Dep't of Labor

September 6, 2006

JOHN DOE,*FN1 PLAINTIFF,
v.
U.S. DEPARTMENT OF LABOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, John Doe, brings this action against the United States Department of Labor ("DOL") and Secretary of Labor Elaine L. Chao,*fn2 seeking both injunctive relief and damages for alleged violations of the Privacy Act, 5 U.S.C. § 552a (2000). Complaint ("Compl.") at 1. Plaintiff Doe brings his complaint as a class action on behalf of himself and all similarly-affected federal workers who have had their Federal Employees Compensation Act, 5 U.S.C. § 8101, et. seq. (2000), cases decided by the DOL's Employee Compensation Appeals Board ("ECAB").*fn3

Currently before the Court is the defendants' motion to dismiss or, in the alternative, for summary judgment ("Defs.' Mot.").*fn4 For the following reasons, the Court denies the defendants' motion with respect to the injunctive relief sought by the plaintiff but grants the motion with respect to the plaintiff's claim for damages.

I. Background

The facts alleged are as follows. The plaintiff, a former Peace Corps volunteer, Compl. ¶ 3, became ill in 1997 while serving in the Corps in a foreign country, id. ¶ 17. He filed a notice of occupational disease with the DOL's Office of Workers' Compensation Programs ("OWCP"), which the OWCP appears to have accepted, and received medical treatment for his condition. Id. ¶ 17. Two years later, while working for a different government entity, the plaintiff experienced difficulty performing his job-related duties, and consequently filed a second claim with the OWCP on December 2, 1999, for the recurrence of his disability. Id. ¶ 18. The OWCP denied this second claim on February 7, 2001, id., and the plaintiff then appealed to the ECAB, id. ¶ 19.

On August 9, 2001, the ECAB Clerk's Office sent the plaintiff a notice informing him that his appeal had been docketed. Defs.' Mem. at 7 & Ex. A(4). Enclosed with that notice were three documents: (1) the ECAB's official Rules of Procedure, promulgated at 20 C.F.R. § 501 (2006), Defs.' Mem., Ex. A(1); (2) a document entitled "Board Procedures," which explains the ECAB appeals procedures and the methods by which its decisions are made public, Defs.' Mem., Ex. A(2); and (3) a document entitled "Processing an Appeal," which provides a more condensed outline of the ECAB appellate process, Defs.' Mem., Ex. A(3). The ECAB issued its decision in the plaintiff's case on April 23, 2002, identifying him by his actual name and disclosing facts from his medical history pertaining to the claimed recurrence of his disability. Compl. ¶ 20. In addition to being sent to the plaintiff himself,*fn5 the decision was made accessible to the public in hard copy at the DOL's headquarters in Washington, D.C., along with copies that were made available to Westlaw and Lexis-Nexis and a copy that was posted on the ECAB's Internet website. Defs.' Mem. at 3 & Ex. B ¶ 6.

When the plaintiff first learned of the posting of his decision on the agency's website in October 2004, Compl. ¶ 21, he wrote to the ECAB's Office of Adjudicatory Services to request that his decision "be removed from the Internet, all publicly accessible databases, and in bound form immediately." Compl., Ex. A. The ECAB replied on October 26, 2004, denying the plaintiff's request and explaining the reasons why the ECAB believed it was both permitted and required to make its decisions public. See Compl., Ex. B. On December 9, 2004, the plaintiff sent a second request by email seeking the removal of his decision from all publicly available sources, to which the ECAB responded on December 22, 2004, again denying his request. See Compl., Ex. C.

The plaintiff then filed his complaint in this case on December 20, 2005. Compl. at 1. Counts I and II of the complaint allege violations of the Privacy Act, 5 U.S.C. § 552a, and seek both damages and an injunction compelling the removal of the plaintiff's confidential medical information from all sources available to the public.*fn6 Id. ¶¶ 30-37. On March 6, 2006, the defendants filed a motion to dismiss the complaint or, in the alternative, for an award of summary judgment. Defs.' Mot. at 1. Specifically, the defendants argue that the plaintiff's claim for injunctive relief should be dismissed for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), because he failed to exhaust his administrative remedies before bringing this action. Defs.' Mem. at 18-21. The defendants also seek summary judgment on the plaintiff's injunction claim on the grounds that the publication of the plaintiff's ECAB decision is permitted under an exception to the Privacy Act for "routine uses" of agency records, 5 U.S.C. § 552a(b)(3). Defs.' Mem. at 21. Finally, the defendants seek summary judgment with respect to plaintiff's damages claim on the basis that, inter alia, the alleged violations do not satisfy the standard of "intentional or willful" misconduct required for an award of damages under the Privacy Act.*fn7 Defs.' Mem. at 16-18.

II. The Plaintiff's Request for Discovery

As an initial matter, the Court notes that because it looks to matters outside the pleadings to address several of the defendants' arguments, it will treat the defendants' motion, where appropriate, as one for summary judgment pursuant to Federal Rule of Civil Procedure 56. Fed. R. Civ. P. 12(b); see also Flynn v. Tiede-Zoeller, 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (stating that "[t]he decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to the sound discretion of the trial court") (citation omitted). In his opposition to the defendants' motion, the plaintiff requests that the Court provide notice if it intends to treat the defendants' motion as a motion for summary judgment, in order to give the parties "an opportunity to invoke the procedures of Rule 56." Pl.'s Opp. at 1. Specifically, the plaintiff contends that the question whether the defendants' conduct was "intentional or willful" under the Privacy Act, 5 U.S.C. § 552a(g)(4), "is a factual issue appropriately resolved by discovery," Pl.'s Opp. at 11. He therefore argues that to the extent the defendants' motion is a motion for summary judgment, it should be denied or, at least, time for discovery should be allowed. Id. at 1, 2, 11. For the reasons that follow, the Court concludes that the plaintiff has been provided with both sufficient notice that the defendants' motion might be treated as a motion for summary judgment and adequate opportunity to produce affidavits and other opposing material in response to such a motion. See Fed. R. Civ. P. 56(c), (e), (f).

"When a district court converts a Rule 12(b)(6) motion to one for summary judgment, it must allow all parties both a reasonable opportunity to present all material made pertinent to such a motion by Rule 56 and a chance to pursue reasonable discovery." Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997) (quoting Fed. R. Civ. P. 12(b)(6)) (internal quotation marks and other citation omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (holding that a grant of summary judgment is mandated "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish . . . an element essential to that party's case, . . . on which that party will bear the burden of proof at trial") (citation omitted). Here, "the Court concludes that both parties have been afforded the opportunity to fully present support for their respective positions." Savage v. Scales, 310 F. Supp. 2d 122, 129-30 (D.D.C. 2004) (Walton, J.) (citations omitted). Although no discovery has yet taken place in this case, the defendants clearly indicated that they were moving, in the alternative, for summary judgment under Rule 56, Defs.' Mot. at 1, and provided within their motion a list of ostensibly undisputed material facts, Defs.' Mem. at 2-4, as well as multiple affidavits and accompanying exhibits in support of their arguments for summary judgment, Defs.' Mem., Exs. A-B. Indeed, the plaintiff's opposition acknowledges the defendants' "request for summary judgment" and observes that "[the] defendants' motion relies on documents and assertions of fact . . . [which] the Court [may] choose[] to accept . . . and thereby to treat [the] defendants' motion as a motion for summary judgment in the manner allowed by Rule 12(b)." Pl.'s Opp. at 1. Accordingly, the plaintiff was afforded adequate notice of the prospect that the Court would treat the defendants' motion as a motion for summary judgment and ample opportunity to respond to the defendants' factual assertions and materials in his opposition with opposing affidavits under Rule 56(c). See Americable Int'l v. Dep't of Navy, 129 F.3d 1271, 1274 n.5 (D.C. Cir. 1997) (holding that it was "not unfair" to the plaintiff to treat the district court's dismissal as an entry of summary judgment "[g]iven that the motions were in the alternative for summary judgment and that the parties had the opportunity to submit . . . materials in support and in opposition") (citation omitted); TeleCommunications of Key West v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985) (stating that treating a motion as one for summary judgment is "fair to both parties [when] the procedural requirements of the applicable rules were observed"); Tri-Gen v. Int'l Union of Operating Eng'rs, 433 F.3d 1024, 1029 (7th Cir. 2006) (holding that "[a]dequate notice is provided when the moving party frames its motion in the alternative as one for summary judgment") (citations omitted); Groden v. Random House, 61 F.3d 1045, 1052-53 (2d Cir. 1995) (observing that "[t]he essential inquiry is whether the [plaintiff] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings") (internal quotation marks and citation omitted).

The plaintiff's reliance on Amons v. District of Columbia, 231 F. Supp. 2d 109 (D.D.C. 2002) (Walton, J.), for the proposition that he should now be allowed "an opportunity to invoke the procedures of Rule 56" is wholly misplaced. Pl.'s Opp. at 1. In Amons, the defendant "attempt[ed] to unilaterally convert its previously filed motion to dismiss into one for partial summary judgment" by attaching factual submissions to its reply to the plaintiff's opposition to its dismissal motion. 231 F. Supp. 2d at 113. This Court there "conclude[d] that the timing of the attempted conversion coupled with the lack of prior notice to the plaintiff from the Court compel[led] it to consider the defendant's pleadings as solely a motion for dismissal pursuant to [Rule] 12(b)(6)." Id. In the present case, by contrast, the defendants' motion was clearly intended to seek summary judgment as an alternative, as the plaintiff himself recognized in his opposition. Pl.'s Opp. at 1. It thus cannot be said that the defendants "attempt[ed] to unilaterally convert [a] previously filed motion to dismiss," Amons, 231 F. Supp. 2d at 113, nor that the plaintiff lacked notice of the possibility that the Court might treat the defendants' motion as a motion for summary judgment under Rule 56. See Savage, 310 F. Supp. 2d at 129 (holding that the Court was not required to provide the plaintiff with additional time to submit documentary evidence in opposition to a motion for summary judgment when "notice to the parties [of the summary judgment motion] ha[d] already been provided"). To the extent that the plaintiff felt that he needed time to conduct depositions or other factual discovery before he could meaningfully oppose a motion for summary judgment, his proper recourse was to move for a continuance or a denial of the motion on those grounds pursuant to Rule 56(f). Banks v. Veneman, 402 F. Supp. 2d 43, 48 (D.D.C. 2005) (observing that "[d]enial of a summary judgment motion under Rule 56(f) is appropriate when the record is undeveloped on elements of [the] plaintiff's claim") (citation omitted).

Rule 56(f) permits courts to "deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion." Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) (citations omitted). Such an explanation must be made by affidavit, Fed. R. Civ. P. 56(f), and must "be made on personal knowledge, . . . set[ting] forth such facts as would be admissible in evidence, and . . . show[ing] affirmatively that the affiant is competent to testify to the matters stated therein," Fed. R. Civ. P. 56(e). "The party seeking discovery [under Rule 56(f)] bears the burden of identifying the facts to be discovered that would create a triable issue and why the party cannot produce those facts in opposition to the motion." Banks, 402 F. Supp. 2d at 47 (citing Byrd v. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999), cert. denied, 529 U.S. 1018 (2000) (emphasis added). "The party must also demonstrate a reasonable basis to suggest that discovery might reveal triable issues of fact." Id. (citing Carpenter v. Nat'l Mortgage Ass'n, 174 F.3d 231, 237 (D.C. Cir. 1999), cert. denied, 528 U.S. 876 (1999)).

In Banks, the plaintiff filed an affidavit pursuant to Rule 56(f) arguing that "the lack of discovery should preclude summary judgment" because she "need[ed] to develop [additional] facts [through] the discovery process." Id. Here, while the plaintiff's opposition and the declaration of his attorney, Pl.'s Opp., Ex. A (Declaration of Michael J. Hannon) ("Hannon Decl."), could be construed as "identifying the facts to be discovered that would [purportedly] create a triable issue," Banks, 402 F. Supp. 2d at 47 (citation omitted), the plaintiff has utterly failed to "adequately explain[] why [he] cannot [now] present by affidavit facts needed to defeat the motion," Strang, 864 F.2d at 861, nor has he "demonstrate[d] a reasonable basis to suggest that discovery might reveal" these facts in light of his apparent inability to present them at this time, Banks, 402 F. Supp. 2d at 47 (citation omitted); see generally Pl.'s Opp., Hannon Decl. In short, in opposing the defendants' motion for summary judgment, the plaintiff has submitted nothing which indicates "that [he] cannot for reasons stated present by affidavit facts essential to justify [his] opposition."*fn8 Fed. R. Civ. P. 56(f). Based on this fundamental defect alone, the Court would be justified in declining to grant the plaintiff, who has been "given reasonable opportunity to present all material made pertinent to [a motion for summary judgment]," Fed. R. Civ. P. 12(b)(6), leave to conduct discovery and to more fully develop the factual record. Crawford v. Signet Bank, 179 F.3d 926, 927 n.2 (D.C. Cir. 1999) (affirming denial of a plaintiff's motion to extend discovery because the plaintiff did not make the showing required by Rule 56(f)); In re Technical Land, 175 B.R. 792, 796 (D.D.C. 1994) (holding that "[b]ecause the defendant[s] not only failed to submit Rule 56(f) affidavits, but also because they merely mentioned in their opposition general areas about which they wished to conduct discovery," the defendants were not entitled to a continuance for discovery purposes); see Americable Int'l, 129 F.3d at 1274 n.5 (holding that it was "not unfair" to the plaintiff to treat the district court's dismissal as an entry of summary judgment "[g]iven that the motions were in the alternative for summary judgment and that the parties had the opportunity to submit . . . materials in support and in opposition") (citation omitted).

Moreover, as discussed more fully in Part IV.B infra, the Court notes that even were it to allow the plaintiff time to conduct factual discovery, he has alleged no facts that would preclude summary judgment to the defendants on his damages claim. Cf. id. (stating that the Court "would also affirm dismissal . . . under Rule 12(b)(6) because . . . the allegations of the complaint, construed in the light most favorable to [the plaintiff], reveal that [it] can prove no set of facts that would entitle it to relief") (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984)). That is, assuming arguendo that the plaintiff was able through factual discovery to substantiate the allegations set forth in his opposition and in the Hannon Declaration-that "[the] defendants have for some time known about the problem that publishing [ECAB] decisions on the Internet is causing, that federal employees are suffering damages, and that [the] defendants have turned a deaf ear to their complaints," Pl.'s Opp. at 11-it is clear under applicable caselaw that nothing the plaintiff has alleged would amount to "intentional or willful" conduct as required by the Privacy Act, 5 U.S.C. § 552a(g)(4). Thus, it would be utterly futile to grant the plaintiff a continuance under Rule 56(f) to adduce additional facts through "depositions, answers to interrogatories, or . . . affidavits." Fed. R. Civ. P. 56(e). The Court will therefore resolve the defendants' motion to dismiss and, where appropriate, address the motion as one for summary judgment on the strength of the factual materials currently before it.

III. Standards of Review

A. Motions to Dismiss Under Rule 12(b)(6)

When adjudicating a motion for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the Court must view all the allegations and facts in the complaint in the light most favorable to the plaintiff, and it must grant the plaintiff the benefit of all inferences that can be derived from those facts. Barr. v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court may only consider the facts alleged in the complaint, any documents attached as exhibits, and matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). "A court should not dismiss a complaint pursuant to Rule 12(b)(6) for failure to state a claim 'unless it appears beyond doubt that the plaintiff can prove no set of ...


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