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Cacho v. Chertoff

November 27, 2006

WILLIE CACHO, M.D., COMMANDER, U.S. PUBLIC HEALTH SERVICE, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

REDACTED MEMORANDUM OPINION

Plaintiff Willie Cacho, M.D., a medical doctor for the United States Coast Guard, is suing Michael Chertoff in his official capacity as Secretary of the Department of Homeland Security. Plaintiff claims to have suffered adverse effects when, in violation of the Privacy Act of 1974, 5 U.S.C. § 552a (2006), a Coast Guard officer disclosed information from plaintiff's medical records to other Coast Guard officers who had no "need to know." For the reasons explained herein, the Court will deny defendant's motion to dismiss but grant defendant's alternative motion for summary judgment.

BACKGROUND

Plaintiff is a medical doctor in the United States Public Health Service, assigned and attached to the Coast Guard. (Def.'s Stmt. of Mat. Facts Not in Dispute ["Def.'s Stmt."] ¶ 1; Pl.'s Resp. to Def.'s Stmt. of Facts Not in Dispute ["Pl.'s Stmt."] ¶ 1.) In November 1999, plaintiff became the flight surgeon for Air Station Miami. (Def.'s Stmt. ¶ 2; Pl.'s Stmt. ¶ 2.) A flight surgeon is a medical doctor who meets special criteria and is responsible for ensuring personnel's fitness for flight duty, as well as for addressing other flight-related medical issues. (See Def.'s Ex. A ["Med. Man."] at art. 1.B.3(e); Def.'s Stmt. ¶ 3; Pl.'s Stmt. ¶ 3.) Like pilots and other aviation personnel, flight surgeons can be "grounded" for certain medical conditions or the use of certain medications. (Def.'s Stmt. ¶¶ 5--6; Pl.'s Stmt. ¶¶ 5--6.) Flight surgeons must report their potentially disqualifying conditions and medications. (Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7.) In some instances, however, a flight surgeon suffering from a potentially disqualifying condition or taking a potentially disqualifying medication may remain flight-eligible by obtaining a medical waiver. (Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7.)

While at Air Station Miami, plaintiff had a medical condition and took a prescription medication that, absent a waiver, would have at least temporarily disqualified him from flight status. (Def.'s Stmt. ¶ 10; Pl.'s Stmt. ¶ 10.) [Redacted.] (See Def.'s Ex. I ¶ 3; DD Form 2807-1 § 30 (filed under seal as Document No. 29).) Similarly, [redacted], plaintiff omitted the fact of his medical condition and his use of medication [redacted]. (See id. §§ 8, 23, 24, 29.) Indeed, until the events giving rise to the present dispute, plaintiff disclosed neither his medical condition nor his use of medication to any superior officer, and he served as flight surgeon without first seeking the necessary medical waiver. (See Def.'s Stmt. ¶ 15; Pl.'s Stmt. ¶ 15.)

Problems arose in June 2004, when plaintiff called a meeting with Air Station Miami's chief pharmacist, Commander Alan Sokolowski, to discuss concerns about Commander Sokolowski's job performance. (Pl.'s Ex. 8 ["Cacho Decl."] ¶ 4.) Before the meeting, a noncommissioned officer witnessed Commander Sokolowski threaten plaintiff with retaliation if plaintiff took action against him (i.e., by giving him an unfavorableCommissioned Officer Effectiveness Report ("COER")). (See Pl.'s Ex. 2 at 1; Cacho Decl. ¶¶ 5, 7.) The parties agree that, at the time, Commander Sokolowski knew about plaintiff's medical condition and use of medication. (See Opp. at 10, 21; Reply at 6.) Plaintiff contends that Commander Sokolowski also knew plaintiff had not disclosed his health problems or obtained the necessary medical waiver. (Pl.'s Stmt. ¶¶ 10, 13.)

Shortly after plaintiff's meeting with Commander Sokolowski, plaintiff was placed on routine temporary duty aboard the Coast Guard Cutter Eagle. (E.g., Cacho Decl. ¶ 6.) In plaintiff's absence, Commander Stanley Gordon served as both the clinic's quality assurance coordinator, and the acting chief for the clinic and the air station's Health Services Division. (Def.'s Stmt. ¶ 16; see Pl.'s Stmt. ¶ 16 (not disputing this fact).) Commander Gordon directed Commander Sokolowski to complete a quarterly quality assurance exercise, "Monitoring and Evaluation of Health Records for Proper Procedures for Controlled Substance Prescriptions" ("M. & E."), pursuant to Article 13.H.4. of the Coast Guard Medical Manual. (Def.'s Stmt. ¶ 8; Pl.'s Stmt. ¶ 8.) The M. & E. required a review of individual medical records, and plaintiff's medical record met the criteria for review. (Def.'s Stmt. ¶ 9; see Pl.'s Stmt. ¶ 9 (agreeing that Commander Sokolowski was "authorized and required to review" certain portions of plaintiff's medical record).)

Plaintiff alleges that, although his medical record qualified for M. & E. review, Commander Sokolowski was only authorized to review two specific forms (i.e.,SF600 and SF603). (See Pl.'s Stmt. ¶¶ 9, 11.) While performing the M. & E. review, or perhaps even earlier, Commander Sokolowski reviewed additional forms. (See Def.'s Stmt.¶¶ 10, 13; Pl.'s Stmt. ¶¶ 10, 13.) The additional forms revealed that plaintiff had not disclosed his health condition or his use of medication. (See id.)

Commander Sokolowski informed Commander Gordon and Lieutenant Jarvi of the omissions he had discovered. (Def.'s Stmt. ¶ 14; Pl.'s Stmt. ¶ 14.) Both Commander Gordon and Lieutenant Jarvi emailed plaintiff to inform him of their conversations with Commander Sokolowski. (Cacho Decl. ¶ 7.) Commander Gordon warned plaintiff, "[redacted]." (See Pl.'s Ex. 3 at 1.)

Shortly after learning about Commander Sokolowski's conversations with Commander Gordon and Lieutenant Jarvi, plaintiff emailed Commander Mary Fong (of the Health and Safety program office at the Coast Guard's headquarters) and Commander Patrick Marshall (of the Health and Safety program office at Maintenance and Logistics Command). (Def.'s Stmt. ¶ 15; Pl.'s Stmt. ¶ 15.) In his email, plaintiff disclosed his health problems for the first time to a superior and explained his intention to apply for a medical waiver. (Def.'s Stmt. ¶ 15; Pl.'s Stmt. ¶ 15.) In addition, plaintiff alleged that Commander Sokolowski had violated the Privacy Act and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"),Pub. L. No. 104-191, 110 Stat. 1936 (codified in relevant part at 42 U.S.C. §§ 1320d to 1320d-8), which prohibits both the improper disclosure of individually identifiable health information and the improper acquisition of such information. (Def.'s Stmt. ¶ 15; Pl.'s Stmt. ¶ 15.)

The Health and Safety program office notified plaintiff's commanding officer, Captain Keith Taylor, about plaintiff's email. (Def.'s Stmt. ¶ 18; Pl.'s Stmt. ¶ 18.) Captain Taylor then called Commander Gordon, Lieutenant Jarvi, and Commander Sokolowski into his office to discuss the matter with him and his executive officer, Commander Michael Andres. (Def.'s Stmt. ¶ 18; Pl.'s Stmt. ¶ 18.)

Thereafter, the Coast Guard initiated multiple administrative actions, some of which addressed Commander Sokolowski's conduct and others of which addressed plaintiff's health problems and his failure to disclose them. (Def.'s Stmt. ¶ 19; Pl.'s Stmt. ¶ 19.) The Coast Guard determined that Commander Sokolowski had committed a HIPAA violation warranting "[a]ppropriate . . . disciplinary action." (E.g., Pl.'s Ex. 4 at 2.) Based on plaintiff's health problems and nondisclosure, the Coast Guard also determined that plaintiff had an "unsatisfactory aeronautical adaptability;" directed him to repay the "aviation career incentive pay" he had received from November 2003 through July 2004; ordered him transferred to the Coast Guard Training Center in Cape May, New Jersey; formally revoked his designation as flight surgeon; and gave him an adverse COER. (Cmpl. ¶¶ 24, 25, 26, 28, 29; Def.'s Mem. in Supp. at 8.)

On February 17, 2006, plaintiff filed suit alleging that Commander Sokolowski's disclosures to Captain Taylor, Commander Andres, and "other individuals" violated the Privacy Act. (See Cmpl. ΒΆΒΆ 12--13.) After conducting a scheduling hearing and with the consent of both parties, the Court ordered discovery of documents related to the Coast Guard's investigations of Commander Sokolowski's conduct. See Cacho v. Chertoff, Minute Entry (D.D.C. June 28, 2006). Pursuant to the Court's order, defendant provided documents from which plaintiff learned that, "well before" discussing plaintiff's situation with Commander Gordon and Lieutenant Jarvi, [redacted]. (E.g.,Opp. at 21; see Pl.'s Ex. 7 at 1.) [Redacted.] (See id.) With the benefit of the documents that defendant provided, plaintiff now argues that Commander Sokolowski violated the Privacy Act by his disclosures to Captain Taylor, Commander ...


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