Doe v. Department of Veterans Affairs of U.S., 07-1576.

• Decision Date: 07 March 2008
• Docket Number: No. 07-1576.,07-1576.
• Citation: 519 F.3d 456
• Parties: John DOE, Plaintiff-Appellant, v. DEPARTMENT OF VETERANS AFFAIRS OF the UNITED STATES of America; Honorable R. James Nicholson, Secretary of the Department of Veterans Affairs, in his official capacity, Defendants-Appellees. Minnesota AIDS Project; Lambda Legal Defense and Education Fund; Minnkota Health Project; National Association of People with AIDS; Nebraska AIDS Project; AID Greater Des Moines, Inc., d.b.a. AIDS Project of Central Iowa, Amici on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

519 F.3d 456

John DOE, Plaintiff-Appellant, v. DEPARTMENT OF VETERANS AFFAIRS OF the UNITED STATES of America; Honorable R. James Nicholson, Secretary of the Department of Veterans Affairs, in his official capacity, Defendants-Appellees.

Minnesota AIDS Project; Lambda Legal Defense and Education Fund; Minnkota Health Project; National Association of People with AIDS; Nebraska AIDS Project; AID Greater Des Moines, Inc., d.b.a. AIDS Project of Central Iowa, Amici on Behalf of Appellant.

No. 07-1576.

United States Court of Appeals, Eighth Circuit.

Submitted: November 14, 2007.

Filed: March 7, 2008.

Katherine Logan MacKinnon, argued, St. Louis Park, MN (Denise Y. Tataryn, Minneapolis, MN, on brief); (Bebe J. Anderson, Jennifer Sinton, and David S. Buckel, New York, NY, on the brief), in support of appellant for Amici Curiae, AID Greater Des Moines Inc.; (M. William O'Brien, Meg Luger-Nikolai, and Lynn Michelson, Minneapolis, MN, on the brief), in support of appellant for Amici Curiae, Minnesota AIDS Project.

Friedrich Anson Paul Siekert, AUSA, argued, Minneapolis, MN, for appellees.

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.

MURPHY, Circuit Judge.

John Doe brought this action against the Department of Veterans Affairs, R. James Nicholson in his official capacity as the Secretary of the Department (collectively the VA), and Dr. Samuel Hall,¹ alleging that Dr. Hall improperly revealed private medical and personal information to Doe's union representative in violation of the Privacy Act, 5 U.S.C. § 552a (the Act). The district court² granted the VA's motion for summary judgment, and Doe appeals. We affirm.

I.

Doe is a veteran who was formerly employed at the Minneapolis Veterans Administration Medical Center (the Center) as a housekeeping aide. As part of the hiring process, he had a preplacement medical exam with the Center's Employee Health Service (EHS). Doe initially revealed that he was HIV positive on forms which he completed as part of the preplacement exam, and his HIV status was entered into records in his Employee Medical File (Doe's file).³

Dr. Hall, a licensed physician, formerly served as the Director of EHS. Doe occasionally used the limited medical services EHS provides to Center employees. He saw Dr. Hall in EHS on September 30, 2002 for chills and mentioned his HIV infection during that visit. Dr. Hall recorded that information in his note from the visit, which is part of Doe's file. Doe saw Dr. Hall again on February 3, 2003 to follow up on a groin injury he had received on the job. Doe again mentioned his HIV status and revealed that he had smoked marijuana to increase his appetite. Dr. Hall included that information in his note from the visit. That note is also in Doe's file and indicates that the doctor urged Doe to cease his marijuana use. Dr. Hall testified in his deposition that EHS did not see many Center employees who were HIV positive. During his deposition Doe stated that he felt that Dr. Hall's manner became condescending after he mentioned using marijuana.

Doe received a note at the beginning of his shift on February 26, 2003, instructing him to see Dr. Hall. Doe felt apprehensive about this meeting so he asked his union representative, George Rankin, to meet him at EHS. The meeting with Dr. Hall had been scheduled by Doe's supervisor, John Kangas, who was ill that day and unable to attend. Kangas had discussed Doe's frequent absences with Dr. Hall over the phone a few days earlier, however, so the doctor decided to proceed with the meeting even without Kangas to see if he could help address any problems that might be contributing to the absences. Rankin arrived at Dr. Hall's office shortly after the doctor and Doe began to talk. Doe does not dispute that he invited Rankin into the room, but he claims he first told Dr. Hall not to reveal any of his medical information to Rankin. Dr. Hall denies Doe told him that and during the meeting he mentioned both Doe's HIV positive status and his use of marijuana. Doe became upset, objected to the comments, and left the room with Rankin.

In this action Doe claims that Dr. Hall failed to comply with the Privacy Act by discussing Doe's confidential medical information in Rankin's presence without proper consent. The district court granted the VA's motion for summary judgment, concluding that because Dr. Hall had learned about Doe's HIV status and marijuana use from Doe himself rather than from a record, his actions did not violate the Act, citing Olberding v. U.S. Department of Defense, 709 F.2d 621 (8th Cir.1983) (per curiam).

Doe appeals from the grant of summary judgment to the VA, arguing that Dr. Hall's disclosure violated the plain terms and intent of the Privacy Act. He urges us to distinguish Olberding on factual and legal grounds. As a matter of public policy, he asserts that Olberding chills dialogue between doctors and patients, inhibits the necessary flow of information to the government, and leads to irrational results. The VA argues that no disclosure forbidden under the terms of the Act occurred, that Olberding controls, and that the VA would in no event be liable under the Act because of other defenses.⁴ The VA contends that public policy requires affirmance and that Dr. Hall followed the community standard of care by assuming Doe had implicitly consented to the disclosure by inviting Rankin to the meeting. Doe asserts that the VA defenses are without merit.

II.

We review de novo a district court's grant of summary judgment, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.2007). We will affirm if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir.2007); see also Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to create an issue for trial the nonmoving party must produce sufficient evidence to support a verdict in his favor based on more than "speculation, conjecture, or fantasy." Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir.2003) (internal quotation omitted); see also Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

The Privacy Act prohibits federal agencies from "disclos[ing] any record which is contained in a system of records by any means of communication to any person ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." 5 U.S.C. § 552a(b). The Act defines "record" as "any item, collection, or grouping of information about an individual that is maintained by an agency, including ... medical history ... and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(4). It defines "system of records" as a "group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5) (emphasis added). The parties do not disagree that the information revealed by Dr. Hall was contained in a record covered by the Act or that the employee health records are a system of records protected by the Act. Their dispute focuses in the first instance on whether what Dr. Hall revealed in the presence of Rankin had been retrieved from a record covered by the Act.

A.

Doe submits that a question of material fact exists as to whether Dr. Hall actually retrieved the information from his medical file prior to the disclosure, making summary judgment inappropriate. Doe now asserts that his file was with Dr. Hall during the meeting and that having the file would have been consistent with the doctor's practice. The VA responds that nothing in the record refutes Dr. Hall's declaration that he spoke solely from his recollection of information Doe told him on February 3. In his deposition Doe said only that Dr. Hall "might have had a file" during the meeting, and in answer to specific questions he testified that he "couldn't say" whether Dr. Hall consulted a file during the meeting or whether the file Dr. Hall might have had was his own file. Even viewed in the light most favorable to Doe, this evidence does not amount to more than speculation that Dr. Hall might have retrieved Doe's information from an agency record prior to disclosing it. This was insufficient to defeat the motion for summary judgment. See, e.g., Mann v. Yarnell, 497 F.3d 822, 827 (8th Cir.2007) (nonmoving party's allegations or speculations unsupported by specific facts or evidence are insufficient to withstand motion for summary judgment).

Doe contends that the retrieval rule has no basis in the statutory language of the Privacy Act and submits that Dr. Hall's actions violated the plain terms of the Act. Several amici representing the interests of people affected by HIV also argue against the application of the retrieval rule to such sensitive medical information. The VA responds that the Privacy Act does not afford any special protection to HIV status and that the Act's safeguards only apply when the source of the released information was a system of records maintained by a federal agency. Otherwise, liability might arise through the mere coincidence that disclosed information happened to be in a record even if the discloser had no familiarity with that record.

In interpreting a statute, we begin our inquiry with the language of the statute. E.g., United States v. Hansl, 439 F.3d 850, 853 (8th Cir.2006). If the plain language of the statute is unambiguous it controls. E.g., Tr. of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 (8th Cir.2006). Our role is to interpret and...