Boyd v. Chertoff

• Decision Date: 31 March 2008
• Docket Number: Civil Action No. 07-1098.
• Citation: 540 F.Supp.2d 210
• Parties: Earl M. BOYD, Plaintiff, v. Michael CHERTOFF, Secretary, United States Department of Homeland Security, Defendant.
• Court: U.S. District Court — District of Columbia

540 F.Supp.2d 210

Earl M. BOYD, Plaintiff, v. Michael CHERTOFF, Secretary, United States Department of Homeland Security, Defendant.

Civil Action No. 07-1098.

United States District Court, District of Columbia.

March 31, 2008.

COPYRIGHT MATERIAL OMITTED

Earl M. Boyd, Clinton, MD, pro se.

Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on (1) defendant's motion to dismiss the complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and (2) plaintiffs motion for a court order compelling defendant to publish "implementing instructions" as contemplated by 5 C.F.R. § 293.503.¹ Upon consideration of defendant's motion, plaintiffs motion, the oppositions and replies, and the entire record in this case, the Court will treat plaintiffs motion to compel as a motion to amend the complaint, grant the motion to amend, and then dismiss the complaint, as amended, for failure to state a claim.²

I. BACKGROUND

Pro se plaintiff Earl Boyd alleges that his employer, the Federal Protective Services ("FPS"), an agency within the Department of Homeland Security ("DHS"), has (1) improperly maintained, withheld, and compelled the disclosure of his employee medical files, and (2) failed to comply with Office of Personnel Management regulations requiring DHS to publish certain "implementing instructions" with respect to its handling of employee medical files. See Compl. ¶¶ 3.1, 7.1-7.11; Pl.'s Mot. at 1-2, 4-5. The dispute centers on Mr. Boyd's dissatisfaction with several interactions he has had with agency officials concerning his color blindness and his skin condition. The facts, reviewed in the light most favorable to plaintiff, are as follows.

A. Medical Examinations

Before he began working for FPS, Mr. Boyd served as a police officer with the District of Columbia Metropolitan Police Department ("MPD") from the late 1970s until his retirement on July 29, 2000. See Compl. ¶ 3.9. According to plaintiff, "sometime around the late 1970s," he submitted to the MPD medical documentation showing that he suffered from a skin condition called pseudofolliculitis barbae, also known as "razor bumps," which prevented close shaving. See id. ¶ 3.8. Apparently, Mr. Boyd was required to submit said documentation to the MPD in order to be permitted to wear a beard.

Mr. Boyd began working at FPS on or. about July 31, 2000. See Compl. ¶ 3.2. Some time before that date, Mr. Boyd underwent a screening examination to ensure that he was physically and psychologically qualified for the job. See id. ¶ 3.3. During that examination, the physician determined that Mr. Boyd is color blind. See id. ¶ 3.5. It appears that, normally, such a condition would render an applicant physically unfit for the position for which Mr. Boyd applied. See id. ¶¶ 4.4-4.7. FPS waived this restriction in Mr. Boyd's case and hired him. See id. ¶ 3.7. When he began working for FPS (or soon thereafter), plaintiff signed a waiver granting FPS access to all medical records in the possession of his former employer. See Compl. ¶ 3.4.³

On or about March 29, 2005, plaintiff underwent another examination. See Compl. ¶ 4. 1. Once again, the examining physician determined that Mr. Boyd is color blind. See id. ¶ 4.2. Mr. Boyd explained that he had been diagnosed with color blindness during his 2000 pre-employment screening examination and that DHS had hired him anyway. See id. ¶ 4.3. Nevertheless, on April 6, 2005, the examining physician issued a medical determination which stated that he could not recommend Mr. Boyd for his current FPS position because Mr. Boyd's color blindness placed him "outside of the prevailing medical standards" for that position. See id. ¶ 4.4. Mr. Boyd maintains that this unfavorable determination "caused [him] to be seriously concerned about his future employment with FPS." See id. ¶ 4.12. On May 26, 2005, however, the physician who issued the unfavorable medical determination learned that DHS previously had waived the applicable vision standards in Mr. Boyd's case. See id. ¶ 4. 10. Thus, on August 15, 2005, the physician issued a revised medical determination concluding that Mr. Boyd was indeed medically qualified for his position. See id. ¶ 4.13.

B. Directive FPS-05-012

On July 19, 2005, FPS implemented Directive FPS-05-012, which prohibits uniformed employees (such as Mr. Boyd) from wearing beards unless they present medical documentation showing that they have a condition that makes shaving difficult or burdensome. See Compl. ¶¶ 5.1-5.3. On June 5, 2007, plaintiff's immediate supervisor, Paul Constable, sent e-mail messages to plaintiff and others to explain this soon-to-be implemented directive. See id. ¶ 6.2. In his e-mail messages, Mr. Constable stated that those who wished to wear beards would be required to submit medical documentation by September 30, 2007, and every 90 days thereafter unless the employee's doctor specified that the skin disorder necessitating a beard would last longer than 90 days. See id. ¶¶ 6.1-6.3. Mr. Boyd maintains that this request caused him to experience "a great amount of distress" because he had never been required to produce such documentation before. See id. ¶ 6.6.

In response to Mr. Constable's e-mail message, Mr. Boyd attempted to locate all of the medical files relating to him that he believed to be in DHS's possession, including the medical documentation regarding his skin condition that he had submitted to the MPD in the late 1970s. See Compl. ¶ 6.3. On June 11, 2007, he sent an e-mail message to Dennis O'Connor, his second-level supervisor, requesting access to his files under the provisions of 5 C.F.R. § 293.504(b), which requires federal agencies to "provide employees access to their own [medical records] consistent with" the Office of Personnel Management's applicable access regulations set forth in 5 C.F.R. § 297.204. See Compl. ¶ 7.4. When it became apparent that his request for access to his medical files would not be fulfilled immediately, Mr. Boyd visited his doctor and obtained new medical documentation of his skin condition. See id. ¶¶ 6.4-6.5. He submitted this new medical documentation to Mr. Constable on June 12, 2007. See id. ¶ 6.7.

Mr. Boyd filed this suit on June 19, 2007, claiming that defendant violated the Privacy Act of 1974, 5 U.S.C. § 552a, and the Office of Personnel Management's regulations governing federal agencies' maintenance of employee medical records by (1) implementing a Directive that required Mr. Boyd to disclose medical records to his supervisor; (2) failing to give him immediate access to his medical records; and (3) neglecting to maintain his records in a reasonably accurate and complete manner. See Compl. ¶¶ 7.1-7.11.⁴ On August 22, 2007, Mr. Boyd received from defendant "all of [his] pertinent occupational medical records that were contained in [DHS's] Employee Medical File System ... as of August 21, 2007." Pl.'s Mot. ¶ 13.⁵ On September 5, 2007, Mr. Boyd filed a motion to compel defendant to publish written "implementing instructions" for its management of employee files as contemplated by 5 C.F.R. § 293.503, another Office of Personnel Management regulation governing federal agencies' maintenance of employee medical records. See Pl.'s Mot.; see also 5 C.F.R. § 293.503. As noted above, the Court is treating this motion as a motion to amend, and the request in this motion as an additional claim for relief.

II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if a plaintiff fails "to state a claim upon which relief can be granted." 12(b)(6). In Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under Rule 12(b)(6). The Court noted that "Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]'" Id. at 1965 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court stated that there was no "probability requirement at the pleading stage," Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965, but "something beyond ... mere possibility ... must be alleged," id. at 1966. The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level," id. at 1965, or must be sufficient "to state a claim for relief that is plausible on its face," id. at 1274. The Court referred to this newly clarified standard as "the plausibility standard." Id. at 1968 (abandoning the "no set of facts" language from Conley v. Gibson).

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. at 2200; see also Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965; Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991). The complaint "is construed liberally in the plaintiffs' favor, and [the Court should] grant plaintiffs the benefit of all inferences that can be derived from the facts alleged."...