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Ziad Akl, Md v. Kathleen Sebelius

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


September 7, 2012

ZIAD AKL, MD, PLAINTIFF,
v.
KATHLEEN SEBELIUS, ENTERED UNDER SEAL SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.

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

MEMORANDUM OPINION

Ziad Akl, the plaintiff in this civil case, seeks "legal, declaratory and injunctive relief against [defendant Kathleen Sebelius], Secretary[] of the United States Department of Health and Human Services" ("HHS"), "in [her] official capacity[,]" on the grounds that HHS violated several provisions of the Privacy Act, 5 U.S.C. § 552a (2006) ("Act"). Third Amended Complaint ("Am. Compl. III") at 1. Specifically, the plaintiff alleges, inter alia, that HHS wrongly "refused to amend" two reports about him contained in the National Practitioners' Data Bank ("NPDB"); that HHS "willfully and intentionally failed to make reasonable efforts to ensure that the [NPDB] reports" were accurate and complete; that HHS disseminated the reports without making "reasonable efforts to assure that [such reports were] . . . accurate and complete"; and that such actions created "adverse effects [for the p]laintiff[,] . . . caus[ing] him to . . . suffer damages." Am. Compl. III ¶ 73-74, 79, 90-95.

Currently before the Court is the defendant's Motion for Summary Judgment. Upon consideration of the parties' submissions, the applicable legal authorities, and the administrative record in this case,*fn1 for the reasons set forth below, the Court concludes that the defendant's Motion for Summary Judgment must be GRANTED.

I.BACKGROUND

The following facts are taken from the administrative record or are otherwise undisputed. In 2004, the Virginia Hospital Center ("Hospital Center") submitted two adverse action reports to the NPDB concerning the plaintiff. Administrative Record ("A.R.") at 0001-0005. The first report documented the Hospital Center's initial suspension of the plaintiff's clinical privileges for "unprofessional conduct that interfered with the ability of personnel to accomplish their work safely and competently," id. at 0002; see also id. at 0001-02 (entire report), and the second report documented the "permanent" revocation of the plaintiff's clinical privileges after "completion of due process proceedings and [an] appeal," id. at 0004; see also id. at 0003-05 (entire report). The plaintiff, through his attorney at the time, disputed the accuracy of the second report and requested Secretarial Review in a letter dated November 29, 2005. Id. at 0006-0010. In his request for Secretarial Review of the second report, the plaintiff claimed that the revocation of his privileges "was in retaliation for his having filed complaints of harassment against two nurses, and his subsequent complaint against the medical staff leadership who he believes was protecting the nurses." Id. at 0006. The plaintiff also noted "that the Virginia Board of Medicine exonerated [him] after conducting its own investigation," and "request[ed] that the Secretary cease disseminating the statement currently maintained by the NPDB[,] . . . investigate the entry made by [the Hospital Center] and either remove it or modify it to accurately and completely represent the truth and thus meet the agency needs as per the Privacy Act." Id. at 0009.

Upon initial review of the plaintiff's request for Secretarial Review, HHS informed the Hospital Center that the narrative description in the second report was "vague and may be subject to misinterpretation by queriers who receive the report" and requested "a correction to [the Hospital Center's] original report narrative . . . [,]stating specifically the specific nature of the inappropriate and unprofessional conduct." Id. at 0222.

On March 21, 2006, in response to HHS's request, the Hospital Center amended the second report ("Amended Second Report") and provided a more detailed narrative of the reasons for the permanent revocation of the plaintiff's clinical privileges. Id. at 0241-43, 0251-52. Unsatisfied with the amendment, the plaintiff requested that the "matter stay in a Secretarial Review status" for further consideration as to whether the report, as amended, was "accurate, complete, timely, and relevant for agency purposes." Id. at 0253 (internal quotation marks omitted). On May 4, 2006, HHS acknowledged receipt of the plaintiff's request, id. at 280, and on its own volition, pointed out that the plaintiff had not requested review of the first report and provided him with the steps necessary to do so if he was so inclined, id. at 0280-81. The plaintiff subsequently requested Secretarial Review of the first report, id. at 0282, and that report was later amended ("Amended First Report") to "correct[] the narrative description" of the action taken against the plaintiff in regards to his privileges at the Hospital Center, id. at 0316. Because of the similar language in the two amended reports and considering that the plaintiff previously requested continued Secretarial Review of the Amended Second Report due to his dissatisfaction with the corrections, HHS, on its own initiative, administratively elevated the Amended First Report to Secretarial Review status. Id.

After further consideration of both amended reports, the Secretary found that "there [wa]s no basis on which to conclude that the report[s] should not have been filed in the NPDB or that [they are] not accurate," id. at 0290, 0322, and that "[t]he claims" made by the plaintiff "are all beyond the scope of [the Secretary's] review," id. at 0292, 0323. Therefore, the Secretary denied the plaintiff's request to void or change the First and Second Amended Reports. Id. at 0290, 0322.

Several years later, the plaintiff requested reconsideration of the Secretary's refusal to void the reports. Id. at 0335-40. In his letters requesting reconsideration, the plaintiff raised additional issues, including claims that "the Medical Executive Committee of the [H]ospital [Center] never upheld the suspension of [his] privileges," id. at 0336, and "the Board of Directors of the [H]ospital [Center] never voted to revoke [his] privileges, id. at 0340. Because of these new claims, HHS requested more information from the Hospital Center. Id. at 0341-43. Upon review of the additional information provided by the Hospital Center, the Secretary again concluded that "the issues raised . . . [were] beyond the scope of the Secretary's review authority[,] . . . [and that] there was no basis to conclude that the report[s] should not have been filed or that for agency purposes [they were] not accurate, complete, timely or relevant." Id. at 0424-32.

On March 18, 2008, the plaintiff initiated this case challenging HHS's determination not to remove the reports from the NPDB, and seeking equitable and declaratory relief, as well as damages and attorney fees. Memorandum in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n") at 3-4. In response to the complaint, HHS moved to dismiss this case and alternatively moved for summary judgment contending that the plaintiff had failed to exhaust all "administrative remedies on his claim seeking amendment of the records," that "the statute of limitations had run for the damages claims," and that the plaintiff "had not established [t]hat he suffered an adverse agency determination as a result of the allegedly inaccurate reports." Memorandum in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem.") at 12. In resolving that motion, this Court remanded Count I of the plaintiff's original complaint to HHS so that the plaintiff could exhaust his administrative remedies and simultaneously denied without prejudice the defendant's motion. Akl v. Sebelius, Order (RBW) at 1 (D.D.C. Apr. 30, 2010 ) ("Apr. 30, 2010 Order"). On May 5, 2010, the plaintiff filed a second amended complaint and later, after he had exhausted his administrative remedies, filed his Third Amended Complaint on August 26, 2010. The defendant has again filed a motion for summary judgment.

II.STANDARD OF REVIEW

When deciding a motion for summary judgment under Federal Rule of Civil Procedure 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those "facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). While a court must draw "all justifiable inferences" in favor of the non-moving party, id. at 255, the non-moving party cannot rely on the "mere allegations or denials of his pleading" but "must set forth specific facts showing that there is a genuine issue for trial" when the movant has submitted "a properly supported motion for summary judgment," id. at 248 (internal quotation marks and citation omitted). Accordingly, "[t]he moving party is entitled to a judgment as a matter of law [when] the nonmoving party has failed to make a sufficient showing on an essential element of [the] case with respect to which [the non-moving party] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).

The Privacy Act requires that each covered agency "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination." 5 U.S.C. § 552a(e)(5). "[U]pon request," an individual may gain access to an agency's records pertaining to him and may request the amendment of those records. 5 U.S.C. § 552a(d)(1), (2). If the agency refuses to amend its records upon request, 5 U.S.C. § 552a(g)(1)(A), or if the agency fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual[,] the individual may file a civil action against the agency, 5 U.S.C. § 552a(g)(1)(C); see Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C. Cir. 1992) (subsection (g) provides civil remedies for violations of subsection (e)(5)). A plaintiff must bring a claim under the Privacy Act "within two years from the date on which the cause of action arises." 5 U.S.C. § 552a(g)(5). Moreover, in a civil suit filed pursuant to subsection (g)(1)(C), if the agency's actions were willful or intentional, the court may award actual damages sustained by the individual as a result of the agency's recordkeeping failures. 5 U.S.C. § 552a(g)(4)(A).*fn2

III.LEGAL ANALYSIS

The issues before the Court are the following: (1) whether the amended reports being maintained in the NPDB by HHS concerning the plaintiff are accurate and complete; (2) whether HHS has willfully and intentionally failed to make reasonable efforts to ensure that the amended reports being maintained in the NPDB about the plaintiff are accurate and complete, and if so; (3) whether the plaintiff has suffered damages as a direct and proximate result of HHS's actions.

A.Count I of the Third Amended Complaint -- Failure to Amend The Plaintiff's Records

In this first count of his Third Amended Complaint, the plaintiff requests relief under 5 U.S.C. § 552a(g)(1)(A), see Am. Compl. III ¶ 76, which provides a civil remedy when any agency "makes a determination . . . not to amend an individual's record in accordance with his request," § 552a(g)(1)(A). Upon exhaustion of all available administrative remedies, "the subject of the contested record can bring suit in federal court and obtain de novo consideration of whether amendment is warranted." Skinner v. U.S. Dep't. of Justice & Bureau of Prisons, 584 F.3d 1093, 1096 (D.C. Cir. 2009); see also McCready v. Nicholson, 465 F.3d 1, 14 (D.C. Cir. 2006). The plaintiff has properly exhausted all of his administrative remedies; thus, this suit is properly before the Court. See Notice of Exhaustion of Remedies at 1; Apr. 30, 2010 Order at 2.

The plaintiff has the burden of showing the inaccuracy of a challenged record. Mervin v. F.T.C., 591 F.2d 821, 827 (D.C. Cir. 1978) ("[T]he ordinary rule imposing the burden of proof on the plaintiff should apply."). If the plaintiff satisfies this burden, the court "may order the agency to amend the individual's record." Skinner, 584 F.3d at 1096 (internal quotation marks and citation omitted). "[W]hen considering an amendment request, the proper inquiry for the agency is whether the challenged record is as accurate as is reasonably necessary to assure fairness to the individual in any determination which may be made about the individual on the basis of the record." Doe v. United States, 821 F.2d 694, 709 (D.C. Cir. 1987) (internal quotation marks and citation omitted). While "the Privacy Act allows for amendment of factual or historical errors[,]" it is not "a vehicle for amending the judgments of federal officials or others as those judgments are reflected in records maintained by federal agencies." Kleiman v. Dep't of Energy, 956 F.2d 335, 337-38 (D.C. Cir. 1992) (internal quotation marks and citation omitted)); McCready, 465 F.3d at 19.

De novo review requires this Court to put itself in the same position as the agency in determining whether the plaintiff's records should be amended. See Doe, 821 F.2d at 698. However, because the Privacy Act limits this Court to the correction of factual or historical errors, Kleiman, 956 F.2d at 337, it cannot pass judgment on the merits of the Hospital Center's decision to suspend and ultimately revoke the plaintiff's medical privileges, id. at 337-38. Therefore, the issue for the Court is limited to whether the amended reports should be ordered further amended or voided in light of the plaintiff's allegations.

The plaintiff alleges that the revocation of his Hospital Center medical staff appointment, "if it did indeed occur," was imposed "in bad faith and malice and was tainted by conflicts of interest." Am. Compl. III ¶ 30. He further contends that the revocation "was based on malicious actions by Hospital [Center] officials after a fictitious investigation was allegedly conducted, documents were forged, a committee was fabricated and fictitious meetings were alleged to have been held." Id. In addition, he asserts that he "was informed that the Board of Directors of the [H]ospital [Center] voted to revoke his medical staff appointment, although such vote never occurred." Id. ¶ 35. The plaintiff therefore contests the accuracy and completeness of the reports and requests that they either be voided or amended to include a statement declaring that the Hospital Center's investigation, suspension and ultimate revocation of his medical staff appointment was imposed "in bad faith and malice to obtain his silence as to malicious actions the Hospital [Center] had undertaken against him." Id. ¶ 104.

In her motion for summary judgment, the defendant argues that the Hospital Center was required to certify that the information submitted to the NPDB was accurate and complete, and maintains that "[t]he [a]mended [r]eports were entered into the Data Bank only after HHS had reviewed [the plaintiff's] challenge to the accuracy of the two reports that [the Hospital Center] submitted in 2004." Def.'s Mem. at 14. The defendant then argues that HHS affirmatively sought to enhance the accuracy of the records by requesting that the Hospital Center provide greater details, which resulted in the submission of the amended reports. Id. Additionally, the defendant notes that when the plaintiff raised additional arguments about his records,*fn3 HHS "promptly requested that the Hospital [Center] provide support for these facts." Reply in Support of Motion for Summary Judgment ("Def.'s Reply") at 4. The defendant also catalogs the prior lawsuits brought by the plaintiff against other parties regarding the loss of his medical privileges at the Hospital Center and the dispositions of those actions to illustrate that other courts have rejected other challenges pursued by the plaintiff. Def.'s Mem. at 15.

The record before the Court supports the defendant's accounting of the facts. HHS did send a letter to the Hospital Center requesting more information regarding the validity of the plaintiff's suspension and the actions of the Hospital Center's Medical Executive Committee and Board of Directors. A.R. at 0342-43. The Hospital Center responded by stating that the suspension was valid and further explained its actions, despite having failed to provide the minutes of the meetings or other documentation, asserting that the minutes were privileged from disclosure under Virginia law. Id. at 0344-47. Specifically, the Hospital Center stated the following:

First, Dr. Akl's suspension was valid in accordance with the Hospital[] [Center's] Credential's Policy, which is attached . . . . Pursuant to the portion of the Credential[']s Policy regarding precautionary suspension of clinical privileges the President of the Hospital has the 'authority to suspend all or any portion of an individual's clinical privileges whenever failure to take such action may result in imminent danger to the health and/or safety of any individual or may interfere with the orderly operation of the Hospital.'

Second, . . . '[t]he Medical Executive Committee shall review the matter resulting in a precautionary suspension within a reasonable period and determine whether there is sufficient information to warrant a recommendation, or proceed under the investigative procedure.'

The Hospital[] [Center] upheld Dr. Akl's suspension in a January 26, 2004 meeting. The Hospital also has meeting minutes from that . . . meeting that document this decision. These meeting minutes, however, are privileged under Va. Code Ann. § 8.01-581.17, the Virginia statutory peer-review privilege. . . .

Finally, a panel of the [H]ospital's Board of Directors did uphold the revocation of Dr. Akl's privileges, as explained to Dr. Akl in an August 3, 2004 letter from [the] Chairman of the Hospital's Board of Directors . . . .

A.R. at 0344-46 (quoting the Credential's Policy). In addition, the Hospital Center provided HHS with correspondence between the Board of Directors and the plaintiff, which discussed the steps taken to suspend the plaintiff and revoke his "clinical privileges and appointment to the Hospital[] [Center's] Medical Staff," id. at 0393-94, as well as an opinion from the Circuit Court of Arlington County in Arlington, Virginia, which reviewed the privileged documents in camera and determined that

[t]he documents forwarded are extensive and authentic. They directly refute the [p]laintiff's claim about fictitious or biased committees. They reveal compliance with the [H]ospital's by-laws and Medical Staff Credential Policy.

A substantial investigation was made into the allegations against Dr. Akl. Many meetings, hearings, and conferences were held [and] attended by [the p]laintiff and, in many instances, his attorney. Extensive correspondence was exchanged.

The review panel [of the Hospital's Board] was furnished with a full record of the investigation, including materials submitted by Dr. Akl. They requested and received additional materials, including some submitted by the [p]laintiff.

Id. at 0346-47; 0396-97.

Based on the foregoing record, this Court finds that the plaintiff's allegations regarding the inaccuracy of the amended reports are not supported by that record, and that the plaintiff has failed to provide any additional proof to meet his burden of demonstrating the inaccuracy of the records. See Mervin, 591 F.2d at 827 (stating that when a plaintiff requests amendment of allegedly inaccurate records, "the ordinary rule imposing the burden of proof on the plaintiff" applies). Moreover, the plaintiff's challenges to the accuracy of the records go more to the judgment and opinions of the underlying decision to revoke the plaintiff's credentials than to the historical facts themselves. This Court cannot grant a request to amend the record to include descriptive opinions of the Hospital Center's actions such as that it acted "in bad faith," with "malice," or that its conduct was "malicious." Accord Kleiman, 956 F.2d at 337 (stating that a plaintiff's "record can be accurate (or inaccurate) only in relation to the state of affairs it is meant to describe," and finding that the plaintiff's records accurately and "correctly reflect[ed] the [job] position to which [he] officially was assigned," despite the fact that the work he actually performed "may have entitled to him to be placed in a different category, carrying a different job description," and that such "error is not the stuff of which Privacy Act suits are made"). The amendments requested by the plaintiff would require the Court to characterize and pass judgment on the Hospital Center's underlying decisions. And, such an order would violate the Court's limited role in a Privacy Act case, which is to ensure that an agency record accurately and correctly reflects "the state of affairs it is meant to describe." Id. at 337-38 (further holding that the Privacy Act does not allow amendment of the judgments reflected in the challenged records, but only the correction of factual errors).

Therefore, the Court finds in favor of the defendant on Count I of the Third Amended Complaint and grants the defendant's motion for summary judgment on that count.

B.Count II of the Third Amended Complaint -- Failure to Maintain Accurate and Complete Records

In this count of his complaint, the plaintiff requests relief under 5 U.S.C. § 552a(g)(1)(C), see Am. Compl. III ¶ 88, which authorizes a civil action whenever any agency "fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination . . . and consequently a determination is made which is adverse to the individual, " § 552a(g)(1)(C). To satisfy this claim, the plaintiff must show that (1) HHS failed to maintain his records with the degree of accuracy and completeness necessary to assure fairness in a determination; (2) HHS "acted intentionally or willfully in failing to maintain accurate records"; (3) he "has been aggrieved by an adverse determination"; and (4) HHS's "reliance on the inaccurate records was the proximate cause of the adverse determination." Deters v. U.S. Parole Comm'n, 85 F.3d 655, 657 (D.C. Cir. 1996).

Initially, the plaintiff must show that HHS failed to maintain the plaintiff's records accurately and completely. "As long as the information contained in an agency's files is capable of being verified, then, under sections (e)(5) and (g)(1)(C) of the Act, the agency must take reasonable steps to maintain the accuracy of the information to assure fairness to the individual." Sellers, 959 F.2d at 312. Even where the records contain judgments and opinions, the agency has a limited responsibility to vet "the evaluations" because "if a negative or damaging response were based on a demonstrably false premise, the agency would not be permitted to retain the evaluation." White v. Office of Pers. Mgmt., 787 F.2d 660, 662 (D.C. Cir. 1986). However, "[w]here a subjective evaluation is based on a multitude of factors . . . and there are various ways of characterizing some of the underlying events, . . . it is proper to retain and rely on [the evaluation]." Id.

The plaintiff alleges that HHS failed to maintain his records properly because they are inaccurate and incomplete, Am. Compl. III ¶ 78, and that the Agency did not make reasonable efforts to ensure the record's accuracy, Pl.'s Opp'n at 8-9. As support for this claim, the plaintiff incorporates his same arguments proffered in support of Count I, "reiterating that the Reports are . . . inaccurate and incomplete." Id. at 48.

For many of the same reasons the Court granted the defendant summary judgment on Count I, the Court finds that the plaintiff has not met his burden of showing that HHS failed to maintain his records accurately and completely. HHS made reasonable efforts to verify the accuracy and completeness of the information by requesting more detailed accounts, which resulted in the submission of the two amended reports, A.R. at 0222, 0294, and by requesting additional information from the Hospital Center when the plaintiff raised additional arguments, id. at 0341-43. As mentioned above, the non-moving party's opposition to a motion for summary judgment must contain "more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial." Webb v. Magaw, 880 F. Supp. 20, 23 (D.D.C. 1995). Although the Court has considered the facts in the light most favorable to the plaintiff, the record in this case simply does not support his allegations.

Even assuming there was sufficient support to show that the records were inaccurate; the plaintiff must also show that HHS's failure to maintain accurate records was willful and intentional. Accordingly, the plaintiff must prove that HHS "acted with something greater than gross negligence." Tijerina v. Walters,821 F.2d 789, 799 (D.C. Cir. 1987). Thus, "the violation must be so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful." Laningham v. United States Navy,813 F.2d 1236, 1242 (D.C. Cir. 1987) (internal quotation marks and citation omitted). Here, even if the records were inaccurate, there is still nothing in the record to support a finding that the violation was patently egregious or that HHS acted in a manner that exceeded gross negligence. Having failed to demonstrate that the agency acted willfully and intentionally, the plaintiff's claim fails in this respect also. See Perry v. Block, 684 F.2d 121, 129 (D.C. Cir. 1982) (affirming dismissal of the plaintiff's claim because there was "no evidence submitted by [the plaintiff to] suggest[] that the" agency's actions "were willful or deliberate in the sense demanded by the Privacy Act").

Accordingly, the plaintiff has failed to meet his burden of establishing at least two of the four elements necessary to prevail on the claim asserted in Count II of his Third Amended Complaint. These failings are fatal; therefore, the defendant is entitled to summary judgment on this Count. Compare Toolasprashad v. BOP, 286 F.3d 576, 586 (D.C. Cir. 2002) (holding that the plaintiff's damages claim could move forward because he satisfied "the four required elements of a damages claim" (emphasis added)).

C.Count III of the Third Amended Complaint -- Failure to Assure Records are Accurate and Complete Prior to Dissemination

Finally, the plaintiff requests relief in Count III of his Third Amended Complaint under 5 U.S.C. § 552a(e)(6) and (g)(1)(D). Am. Compl. III ¶¶ 96-97. Section 552a(e)(6) specifically requires that "prior to disseminating any record about an individual to any person other than an agency, . . . [the disseminating agency must] make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes, while § 552a(g)(1)(D) authorizes a civil suit against any agency for a violation of the Privacy Act not otherwise specified in § 552a(g)(1).

To satisfy this claim, the plaintiff must establish each of the following four elements: (1) "the disclosed information is a record contained within a system of records; (2) the agency improperly disclosed the information; (3) the disclosure was willful or intentional; and (4) the disclosure adversely affected the plaintiff." Doe v. U.S. Dept. of Justice, 660 F. Supp. 2d 31, 51 (D.D.C. 2009) (quoting Logan v. Dep't of Veterans Affairs, 357 F. Supp. 2d 149, 154 (D.D.C. 2004)). The fact that the amended reports are maintained within a system of records is not in dispute. However, as previously discussed in the analysis of Count II, to show that HHS willfully or intentionally disclosed the information improperly as required by the third element, "the violation must be so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful." Laningham, 813 F.2d at 1242; see also Doe, 660 F. Supp. 2d at 51. The Court has already found that the plaintiff has failed to demonstrate that the alleged violation was patently egregious, and the absence of such a showing is also fatal to Count III. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007) (holding that "proof of intent or willfulness is a necessary element of [the plaintiff's] claim[], and failure to provide supporting evidence would lead to summary judgment in favor" of the defendant). Therefore, the plaintiff has failed to satisfy the requirements of Count III, and the defendant is entitled to summary judgment on this Count.

IV.CONCLUSION

For the foregoing reasons, the Court concludes that the defendant's motion for summary judgment must be granted on all of the claims asserted in the plaintiff's Third Amended Complaint.

SO ORDERED.*fn4


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