United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE
Dennis Nicholson, proceeding pro se, has brought an action
against the Secretary of the Navy in his official capacity,
with claims of employment discrimination and a violation of
the Health Insurance Portability and Accountability Act
("HIPAA"). Mr. Nicholson's discrimination
claims have already been dismissed. Presently before the
Court is the Defendant's Supplemental Motion to Dismiss
the HIPAA claim. Because HIP AA provides no private right of
action, the Defendant's motion will be granted, and the
HTPAA claim dismissed. Construing Plaintiffs recent filing as
a motion for reconsideration, I also conclude that
reconsideration of the previous opinion is not warranted.
Dennis Nicholson, an employee of the U.S. Department of the
Navy, brought gender and age discrimination claims against
the Secretary of the Navy in his official capacity pursuant
to Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e et seq. and the Age
Discrimination in Employment Act of 1967, as amended, 29
U.S.C. §§ 621 et seq.
alleged that he was denied an "opportunity to
compete" for a Custodial Worker position because of his
gender and age. Compl. 2. These claims have been previously
adjudicated by Judge Colleen Kollar-Kotelly. Nicholson v.
Mdbus, 257 F.Supp.3d 6, 8 (D.D.C. 2017). Judge
Kollar-Kotelly concluded that because Nicholson did not wait
180 days before filing suit after his administrative appeals
with the Equal Employment Opportunity Commission
("EEOC") as required,  his discrimination claims
had to be dismissed. Id.
apparent claim under HIPAA, 42 U.S.C. §§ 1320d
et seq., remains. Compl. 2. Mr. Nicholson alleges
that after requesting medical leave, his supervisor
"instructed him to provide specific details from [his]
doctor regarding [his] medical condition, " which
allegedly "violated" Mr. Nicholson's
"HIPAA rights." Id. Defendant now moves to
dismiss this claim. Def.'s Supp. Mot. To Dismiss, ECF No.
14 ("Supp. Mot. Dismiss"). In response, the
Plaintiff provided affidavits seemingly aimed at proving the
substance of his discrimination allegations. Pl.'s Resp.
to Def.'s Mot. To Dismiss, ECF No. 16 (hereinafter
"Mot. Reconsider"). The Court construes this filing
as a motion for reconsideration.
may move to dismiss a complaint on the ground that it
"fail[s] to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). A complaint must
contain sufficient factual allegations that, if true,
"state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In evaluating a motion to dismiss pursuant
to Rule 12(b)(6), the Court must construe the complaint in
the light most favorable to the plaintiff and accept as true
all reasonable factual inferences drawn from well-pled
factual allegations. Banrieker Ventures, LLC v.
Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). "In
determining whether a complaint fails to state a claim, [the
court] may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the
complaint and matters of which [the court] may take judicial
notice." Hurd v. District of Columbia
Gov't, 864 F.3d 671, 678 (D.C. Cir. 2017) (quoting
EEOC v. St Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997)).
filings of a pro se plaintiff are held "to less
stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner, 404 U.S. 519, 520
(1972). Accordingly, the Court can construe a pro se filing
as a motion to reconsider. Potts v. Howard University
Hosp., 623 F.Supp.2d 68 (D.D.C. 2009). Under Federal
Rule of Civil Procedure 54(b),  "any order .. . that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties ... may be revised
at any time before the entry of a judgment adj udicating all
the claims and all the parties' rights and
liabilities." This rule "recognizes [a court's]
inherent power to reconsider an interlocutory order 'as
justice requires.'" Capitol Sprinkler
Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217,
227 (D.C. Cir. 2011) (citation omitted). "While the
phrase, 'as justice requires, ' is somewhat abstract,
it is a shorthand for more concrete considerations."
Singh v. George Washington Univ., 383 F.Supp.2d 99,
101 (D.D.C. 2005) (quoting Cobell v. Norton, TLA
F.R.D. 266, 272 (D.D.C. 2004)). Those considerations include
"whether the court 'patently' misunderstood a
party, made a decision beyond the adversarial issues
presented to the court, made an error in failing to consider
controlling decisions or data, or whether a controlling or
significant change in the law or facts has occurred since the
submission of the issue to the Court." Youssef v.
Holder, 62 F.Supp.3d 96, 98 (D.D.C. 2014) (citation
There is no private right of action under HTPAA.
is fatal to the Plaintiffs HIPAA claim, "because no
private right of action exists under  HIPAA."
Johnson v. Quander, 370 F.Supp.2d 79, 100 (D.D.C.
2005), qff'd, 440 F.3d 489 (D.C. Cir. 2006). No
federal court has concluded otherwise. See Hudes v. Aetna
Life Ins. Co., 806 F.Supp.2d 180, 195 (D.D.C. 2011)
(citing Adams v. Eureka Fire Protection District,
352 Fed.Appx. 137, 138-39 (8th Cir.2009)); see also Acara
v. Banks, 470 F.3d 569, 571-72 (5th Cir. 2006)
("Every district court that has considered this issue is
in agreement that the statute does not support a private
right of action.") (collecting cases). While the D.C.
Circuit has not explicitly confirmed this interpretation, it
has come very close. In affirming the district court's
decision in Johnson, the Circuit stated: "We
have considered Johnson's other arguments-which include
claims under.. . HIPAA... and conclude that they are without
merit and do not warrant separate discussion."
Johnson, 440 F.3d at 503.
no reason to reach a different conclusion. "Instead of
creating a private right of action, HIPAA explicitly provides
for the imposition of 'penalties] for failure to comply
with [HIPAA's] requirements and standards' by the
Secretary of Health and Human Services and, under certain
circumstances, state attorneys general. Hudes, 806
F.Supp.2d at 196 (quoting 42 U.S.C. § 1320d-5). The
statute thus "specifically indicates that the Secretary
of HHS shall pursue the action against an alleged offender,
not a private individual." Logan v. Dep't of
Veterans Affairs, 357 F.Supp.2d 149, 155 (D.D.C. 2004)
(citation omitted). Accordingly, the HIPAA claim must be
There is no reason based on the law, the facts, or otherwise
why the ...