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Doe v. United States Dep't of Justice

October 6, 2009


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



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 Justice ("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 of Civil Procedure 12(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 plaintiff's Rehabilitation Act claim, which will be dismissed without prejudice.



Plaintiff worked for the DOJ as an Assistant United States Attorney ("AUSA"). (Second Am. Compl. ("Compl.") [Dkt. 23] ¶ 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. ¶ 7.) Though the U.S. Attorney for Doe's district approved the search, Doe submitted a memorandum (the "2003 Memo") to his superiors detailing his objections. (Id. ¶ 8-9.) A series of conflicts between Doe and his superiors ensued. (Id. ¶¶ 10-11.) In late 2003, Doe took a medical leave of absence and was diagnosed with an anxiety disorder by his psychologist. (Id. ¶ 12.) He returned to work in early 2004. (Id.) In October 2006, Doe submitted a form to DOJ requesting a reasonable accommodation for his anxiety disorder. (Id. ¶ 14a.) DOJ granted the request in part in December 2006. (Id. ¶ 15a.)

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 Memo and because Doe prepared and distributed a new memorandum urging the investigation of certain bank records. (Compl.¶¶ 16-16f.) In August 2008, management informed Doe he would be transferred to the "Gun Unit, a significant demotion." (Id. ¶ 17b.) 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. ¶ 17c.) On August 11, 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. ¶ 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. ¶ 18a; Pl.'s Counterstatement of Material Facts in Dispute ("Pl.'s Counterstatement") [Dkt. 45] ¶ 2b.) On the same day, the office requested "further medical documentation" from Doe. (Compl.¶ 19.) Doe submitted the supplementary medical information, including a letter from his psychologist, on September 5, 2008. (Id. ¶ 20.) Alarmed by the letter, the office's Accommodation Coordinator informed the temporary acting U.S. Attorney of its contents.*fn1 (Pl.'s Opp'n to Defs.' Mot. ("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.¶ 21.) It 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 of that 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. (Id. at 63-65; Compl. ¶ 24.) DOJ subsequently revoked Doe's security clearance. (Compl. ¶ 21c.) On September 11, 2008, Doe was publicly escorted out of his office. On October 10, 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. ¶ 25)), informing him he had been terminated. (Pl.'s Opp'n, Ex. 12.) On November 4, 2008, Doe submitted a follow-up letter from his psychologist asserting that he was not a security threat and that he was a "reliable, trustworthy individual." (Id., Ex. 14.) 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.*fn2 (Compl.¶ 26; Pl.'s Opp'n, Ex. 15.)


On February 11, 2009, Doe appealed his removal to the MSPB, requested his case be placed under seal, and asked to proceed under a pseudonym. (Compl. ¶ 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. (Id. ¶¶ 27a-b.) Portions of Doe's personnel and medical records were subsequently disclosed as part of the MSPB's published decision. (Id. ¶ 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 of the MSPB to remove his private records from its public decision. (Dkt. 17.) 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 ¶ 16.)

Doe also requested and was granted unemployment compensation from the Unemployment Commission of his home state. (Compl. ¶ 27e.) USAO then disclosed the "Notice of Proposed Removal Letter" and the "final decision" letter to a third-party contractor, Talkx,*fn3 which appealed the award on DOJ's behalf, submitting the documents as support for its position. (Id. ¶ 27e; Defs.' Statement of Material Facts ¶ 11 [Dkt. 39].) "Within hours" of receiving Doe's response, the Commission denied DOJ's appeal. (Pl.'s Counterstatement ¶ 11g; Pl.'s Opp'n, Ex. 18.) Plaintiff alleges that the protected materials released by DOJ "now are in the public record." (Compl. ¶ 27e.)


Plaintiff brought suit in this jurisdiction on March 3, 2009, after being granted his request to file under a pseudonym. (Dkt. 1-3.) On April 10, 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 plaintiff's motion in part, barring the MSPB from placing plaintiff's records in the public domain. (Dkt. 17.) On May 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 May 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.

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 ¶¶ (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. (Id. ¶¶ 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. ¶¶ 31, 49.) He alleges that the MSPB and DOJ also violated the Privacy Act by disclosing his records to the public. (Id. ¶ 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. (Id. ¶¶ 58-59.)

Defendants have moved to dismiss under Fed. R. Civ. P. 12(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. Plaintiff opposes dismissal and summary judgment and has filed a Rule 56(f) affidavit requesting further discovery.



Defendants have moved to dismiss the plaintiff's 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 summary judgment." 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 to judgment 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." Harris, 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. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).


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. 614, 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 of Pers. Mgmt., 828 F.2d 32, 38 (D.C. Cir. 1987). "Put simply, the Act 'safeguards the public from unwarranted collection, maintenance, use and dissemination of ...

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