Bavido v. Apfel

• Decision Date: 13 June 2000
• Docket Number: No. 98-4046,98-4046
• Parties: (7th Cir. 2000) GERALD W. BAVIDO, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of Social Security, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 743

215 F.3d 743 (7th Cir. 2000)

GERALD W. BAVIDO, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of Social Security, Defendant-Appellee.

No. 98-4046

In the United States Court of Appeals For the Seventh Circuit

Argued January 21, 2000

Decided June 13, 2000

Appeal from the United States District Court for the Central District of Illinois. No. 98 C 2079--David G. Bernthal, Magistrate Judge. [Copyrighted Material Omitted]

Before BAUER, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Gerald Bavido wants the Social Security Administration ("SSA") to let him see his medical records. He wants, moreover, direct access to the records and does not want to name a physician or other individual to receive them on his behalf, as SSA regulations require. Mr. Bavido declined to designate a representative and subsequently filed this action raising claims cognizable under the Privacy Act. The district court concluded that it lacked subject matter jurisdiction because Mr. Bavido had failed to exhaust his administrative remedies.

We believe that the district court had jurisdiction because, under the circumstances here, Mr. Bavido was not required to exhaust administrative regulations. We also conclude, in agreement with the Court of Appeals for the District of Columbia Circuit, that the current regulations are incompatible with the clear mandate of the statute. Accordingly, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

I BACKGROUND

In early 1997, Mr. Bavido began submitting written requests to SSA, asking that copies of his medical records be released directly to him. He claimed that the agency had compiled these records in connection with his application for disability benefits. The agency denied his requests because Mr. Bavido refused to comply with its regulatory requirement that he designate a representative to receive the records. According to assertions made by Mr. Bavido in the district court (the record does not contain any of the correspondence from SSA denying the requests), the agency imposed this requirement because it had determined that direct disclosure of the records to Mr. Bavido would adversely affect him. Mr. Bavido's subsequent inquiries to the agency produced no further response.

In early 1998, Mr. Bavido, proceeding pro se, submitted a form application to the district court to proceed in forma pauperis ("IFP") against SSA. In addition to providing details about his salary history and assets, Mr. Bavido specified that the nature of the action he intended to bring was that "Social Security won't give me an updated copy of my file" despite his efforts to obtain it "for over a year." After the court granted him IFP status, Mr. Bavido filed a self-prepared version of a form complaint alleging that SSA had denied him disability benefits. The single-page form complaint provided little detail, but stated that Mr. Bavido sought judicial review under 42 U.S.C. sec. 405(g) of an adverse decision of the Commissioner of Social Security and that this decision involved his "claim for Social Security file." The preprinted complaint designated the Commissioner of Social Security as the defendant. According to a docket entry in the record, return of service was promptly executed on "defendant CSS."

A hearing was held at which an assistant United States attorney appeared on behalf of the agency. According to the docket entry for the hearing, Mr. Bavido reiterated that he "simply wants his file." Shortly thereafter, SSA moved to dismiss Mr. Bavido's complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). SSA argued that dismissal was warranted because Mr. Bavido, by failing to designate a medical representative, had not followed agency procedures for requesting records and thus had not exhausted his administrative remedies. Mr. Bavido responded to the motion by challenging the requirement that he designate a representative. He stated that it would "degrade him[ ] to let someone else read his private information." Emphasizing that he "always handled my own business," he asserted that "I don't miss house payments, light bills, gas bills, so I don't need anyone else telling me whether I can read my file." Moreover, he insisted, the records in his file had nothing to do with anyone but himself: "No court, no one else for me to have to rely on. Just me."

The magistrate judge, presiding with the consent of the parties, dismissed the action for lack of subject matter jurisdiction. The judge explained that Mr. Bavido failed to exhaust his administrative remedies by refusing to follow agency regulations and to designate a representative. According to the court, Mr. Bavido had chosen the "wrong way" to obtain his records and consequently had ended up at a "dead end." Mr. Bavido filed a timely notice of appeal, and we appointed counsel to represent him.

II DISCUSSION

Although Mr. Bavido's complaint and the district court's order assert jurisdiction under 42 U.S.C. sec. 405(g), jurisdiction is based properly on the Privacy Act, 5 U.S.C. sec. 552a(g)(1).¹ The Act authorizes individuals to bring suit in the district court to challenge an agency's refusal to disclose records pertaining to them. It fosters "the principle that an individual should to the greatest extent possible be in control of information about him which is given to the government." Darst v. Social Sec. Admin., 172 F.3d 1065, 1067 (8th Cir. 1999) (citation and internal quotation marks omitted); cf. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1229 (7th Cir. 1993) ("The desire for privacy . . . is a mysterious but deep fact about human personality. It deserves and in our society receives legal protection."). Appellate jurisdiction is based upon 28 U.S.C. sec. 1291.

A.

At the outset, we note that Kenneth Apfel, in his capacity as SSA Commissioner, is not a proper party defendant in this Privacy Act action. The Privacy Act authorizes suit only against an agency, and not an individual. See 5 U.S.C. sec. 552a(g)(1). Several courts, including our own, have held that individual officers of federal agencies are not proper parties to a Privacy Act action.²

Improper denomination of defendants may be waived by the government. See Scruggs v. United States, 929 F.2d 305, 305-06 (7th Cir. 1991) (defendant in Privacy Act action improperly designated as "United States"); see also Smith v. United States Dist. Court Officers, 203 F.3d 440, 442 (7th Cir. 2000) (defendants in access-to- judicial-records suit designated as "unnamed officers of the district court"). At oral argument, SSA admitted that it had received proper notice in this case and that it did not dispute its designation as defendant. It, moreover, had fully defended the action from its inception. Accordingly, SSA has waived any objection as to the naming of the proper party defendant.³

B.

SSA has predicated most of its arguments in this case on the proposition that Mr. Bavido has failed to exhaust his administrative remedies because he did not make a proper Privacy Act request. The district court accepted the agency's position and insisted on exhaustion. It concluded that Mr. Bavido failed to exhaust his administrative remedies because his request under the Privacy Act did not comport with SSA's procedural requirements for access to medical records. Specifically, the court held that Mr. Bavido had not met the requirements of 20 C.F.R. sec. 401.55(b)(ii), which requires the requesting individual to designate a representative, who can be a "physician, other health professional, or other responsible individual," to receive those records. A representative "must" be named before the agency will consider a request. See id. In addition, the court continued, Mr. Bavido's refusal to designate a representative prevented him from exhausting his appellate remedies within the agency. Under the regulations, a requesting individual who declines to name a representative may not administratively appeal SSA's refusal to provide access: If we refuse to release a medical record because you did not designate a representative (sec. 401.55) to receive the material, that refusal is not a formal denial of access and, therefore, may not be appealed to the Commissioner. 20 C.F.R. sec. 401.70(c) (emphasis added).

Mr. Bavido thus finds himself trapped. He cannot exhaust internal agency remedies unless he formally designates a representative to receive his records. To name such a representative would amount to conceding his case. As the Supreme Court has noted, exhaustion is unnecessary "where the challenge is to the adequacy of the agency procedure itself, such that 'the question of the adequacy of the administrative remedy . . . [is] for all practical purposes identical with the merits of [the plaintiff's] lawsuit.'" McCarthy v. Madigan, 503 U.S. 140, 148 (1992) (citation and quotation marks omitted). See also Taylor v. United States Treasury Dep't, 127 F.3d 470, 477 (5th Cir. 1997); Benavides v. United States Bureau of Prisons, 995 F.2d 269, 271 & n.1 (D.C. Cir. 1993). Here, SSA's administrative remedies do not allow Mr. Bavido to challenge the agency's procedure governing access to records. Exhaustion therefore is not required.

C.

Mr. Bavido argues that the Social Security regulations governing access to medical records violate the "letter, spirit, and intent" of the Privacy Act. This statute, he contends, requires governmental agencies to establish a procedure for disclosing records to an individual. SSA regulations, however, condition access (and the right to administrative appeal) on designation of a representative who has complete discretion regarding disclosure of the records. See 20 C.F.R. sec.sec. 401.55(b)(1), 401.70(c).

The agency asserts that Mr. Bavido did not address this issue before the district court and that, therefore, it is waived. Contrary to the agency's contention, however, Mr. Bavido's pro...