Doe v. DiGenova, 84-5571

Decision Date17 December 1985
Docket NumberNo. 84-5571,84-5571
PartiesJohn DOE, Appellant, v. Joseph DiGENOVA, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-00025).

Michael A. Lubin, Washington, D.C., for appellant.

Charles F. Flynn, Asst. U.S. Atty., with whom Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees.

Arthur B. Spitzer, Elizabeth Symonds and Nancy L. Cook, Washington, D.C., were on brief, for American Civil Liberties Union Fund of the National Capital Area, amicus curiae, urging reversal.

Armin U. Kuder and Walter G. Birkel, Washington, D.C., were on brief, for Washington Psychiatric Society, amicus curiae, urging remand with modifications.

Before WALD, EDWARDS and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Opinion concurring in the judgment filed by Circuit Judge STARR.

WALD, Circuit Judge.

John Doe appeals from the district court's order granting summary judgment to the defendants and dismissing Doe's suit for damages, injunctive, and declaratory relief. The appeal involves the United States Attorney's right to issue a grand jury subpoena for a veteran's medical records, and the Veterans' Administration's ("VA") authority to release a veteran's medical records in response to a grand jury subpoena. Doe argues that a variety of constitutional and statutory provisions prohibited the subpoena and the release of his records in this case. We conclude, contrary to the district court's determination below, that the VA's disclosure of the records was not authorized under 38 U.S.C. Sec. 3301, and remand the case to the district court for a redetermination of Doe's other statutory and constitutional arguments in light of that conclusion.

I. THE BACKGROUND

On October 22, 1981, Assistant United States Attorney David Stanley ("AUSA" or "Stanley") sent a letter to John Doe 1 advising him that he was being investigated by a grand jury concerning allegations that he had received false payments of unemployment compensation. Stanley asked Doe to meet with him on November 3, and offered to arrange for appointed counsel before the meeting. At the meeting Stanley apprised Doe and his court-appointed counsel of the evidence against him, gave Doe the opportunity to plead guilty to multiple felony charges, and attempted to enlist Doe's assistance in an ongoing investigation.

On the day of that meeting, without notice to Doe or his counsel, Stanley caused a grand jury subpoena to be issued to the Director of the Veterans' Administration for the production of Doe's claim file, "including any medical records maintained for the claimant." J.A. at 10. In compliance with the terms of the subpoena, the VA turned Doe's medical records over to two Metropolitan Police Department officers. These records contained information about Doe's psychiatric treatment in the Veterans' Administration's mental health clinic for what has been diagnosed as schizophrenia paranoia.

Upon learning of the VA's release of Doe's psychiatric records, Doe's counsel informed the AUSA that he believed that Doe's legal rights in the privacy of his medical records had been violated, and threatened to take legal action unless the prosecutor took certain specified steps to protect their confidentiality. 2 Negotiations over an agreement broke off when Doe's counsel asserted that he would not be satisfied with anything less than a district court consent order embodying his demands.

On January 6, 1982, Doe filed a complaint 3 in the district court alleging that the subpoena and the disclosure of his VA records violated his rights. 4 In addition to his request for declaratory relief, Doe asked the court to order that the files be transferred to his counsel, to order that defendants' notes relating to the files be sealed, to enjoin the U.S. Attorney from further disclosing the information, to enjoin the U.S. Attorney's Office from seeking the records again, and to enjoin the VA from disclosing Doe's files in the future.

On February 26, 1982, the district court granted the defendants' motion to dismiss the case as moot. The court found that the AUSA's assertions that he had no present interest in the records and that all personnel who read the records had been instructed not to divulge their contents, made it "extremely unlikely" that there would be any further divulgence of the information.

On appeal, this court reversed the district court's holding that the case was moot. Doe v. Harris, 696 F.2d 109 (D.C.Cir.1982). The court explained that it appeared "from the record that Doe remains under investigation for fraudulent receipt of unemployment compensation, and that the likelihood that he will be indicted is appropriately described as a reasonable expectation." Id. at 112. Moreover, the court found that the VA continued to assert the legality of the disclosure, and supplied no indication that it would not again disclose Doe's files without affording him notice and opportunity to object. Id. at 113. Finally, the court held that the possibility of money damages kept the suit vital. Id. at 114. Thus, the court remanded to the district court for consideration of the case on its merits. 5

On remand, Doe amended his complaint to include an action for money damages against the United States Government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346, 2671-2680. 6 In the course of discovery, AUSA Stanley stated that he had two reasons for issuing the subpoena. He declined to disclose the first reason claiming that to do so would breach the grand jury secrecy rule. Fed.R.Crim.P. 6(e). He did, however, set forth this justification in a sealed affidavit which he submitted to the district court, and he invited the court to use its power to disclose its contents under Fed.R.Crim.P. 6(e)(3)(C)(i) (disclosure may be made "when so directed by a court preliminarily to or in connection with a judicial proceeding").

Stanley asserted that his second reason for issuing the subpoena was that

after talking with Mr. Doe and his attorney, it appeared that Mr. Doe might be preparing to assert an insanity defense to any charges that might be brought against him, and I felt that it would be important to ascertain whether such a defense might be available, and how strong such a defense might be, before deciding further on the course of any further investigation of Mr. Doe.

Answers to Interrogatories Addressed to Defendant David Stanley, reprinted in J.A. at 85.

The parties filed cross-motions for summary judgment, and after hearing oral arguments, the district court granted the defendants' motion. First, the court held that the VA's release of the files comported with the Veterans' Records Statute, 38 U.S.C. Sec. 3301, since it came under the provision permitting disclosure pursuant to process of a United States court, and under the provision permitting disclosure when required by another department of the United States government. Since the disclosure was sanctioned by the Veterans' Records Statute, the court held that no tort action could rest against the VA under the FTCA. J.A. at 102. As for the AUSA's actions, the court deemed the request for the records reasonable, and found that local law does not provide for tort liability where the intruding government agent had reasonable grounds for the intrusion. The district court also held that the D.C. Mental Health Information Act, D.C. Code Secs. 6-2001-6-2062 had no relevance to the case, because the local law yields to the federal Veterans' Record Statute which permitted the disclosure in this case. J.A. at 108-09. The court also rejected Doe's claim under the District of Columbia Physician-Patient Privilege, D.C. Code Sec. 14-307, holding that the statute is an evidentiary privilege which does not give rise to a cause of action. J.A. at 108.

Addressing Doe's constitutional claims, the court held that Doe retained a fourth amendment expectation of privacy in the records because of their confidential and intimate nature. Nonetheless, it held that the subpoena in question was reasonable since it was not overly broad or indefinite, and since inquiring into a possible insanity defense was relevant to the investigation. Id. at 103-05. The court then analyzed the constitutional right to privacy that the Supreme Court recognized in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Although it held that these were the "kind of matters that fell within the constitutionally protected right to privacy," it concluded that the limited disclosure in this case was not a violation of that right. J.A. at 105-06. Throughout its analysis, the court relied only on the second of the AUSA's justifications--to determine the viability of a possible insanity defense. It is not clear whether the district court ever opened the sealed affidavit, but if it did, it certainly did not take account of its contents in its analysis.

Finally, the court summarily rejected Doe's other allegations of constitutional violations since there had been no testimonial communication to trigger the fifth amendment's self-incrimination protections, and since no adversarial criminal proceedings had yet been initiated so as to trigger the sixth amendment's right to counsel. J.A. at 106-07. Doe appeals all but these last two of the district court's legal rulings.

II. DISCUSSION
A. The Veterans' Records Statute

Doe challenges the district court's holding that the VA's disclosure of his records was permitted by the Veterans' Records Statute. 38 U.S.C. Sec. 3301. Section 3301 provides that:

(a) All files, records, reports, and any other papers and documents pertaining to any claim under any of the laws administered by the Veterans' Administration and the names and addresses of...

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