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Ziad Akl, Md v. Kathleen Sebelius

September 7, 2012


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


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.


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.


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 ...

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