Doe v. Stephens

• Decision Date: 15 July 1988
• Docket Number: No. 86-5616,86-5616
• Citation: 271 U.S.App.D.C. 230,851 F.2d 1457
• Parties: John DOE, Appellant, v. Jay B. STEPHENS, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1457

851 F.2d 1457

271 U.S.App.D.C. 230

John DOE, Appellant, v. Jay B. STEPHENS, et al.

No. 86-5616.

United States Court of Appeals, District of Columbia Circuit.

Argued May 10, 1988.

Decided July 15, 1988.

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

Charles F. Flynn, Asst. U.S. Atty., with whom John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees. Joseph E. diGenova, U.S. Atty. ^* and Royce C. Lamberth, Asst. U.S. Atty., ^* Washington, D.C., also entered appearances for appellees.

Before WALD, Chief Judge, and EDWARDS and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Appellant, a veteran with a long history of psychiatric treatment, appeals from a district court judgment dismissing his various claims for relief stemming from the unauthorized release by the Veterans' Administration ("VA") of his private medical records. We affirm the dismissal of Doe's claims for monetary relief, and affirm in part and reverse in part the dismissal of Doe's claims for equitable relief.

I. BACKGROUND

The instant appeal marks the third appearance of this case before our court. The facts of Doe's claim and the early procedural history of this case are set out at length in Doe v. Harris, 696 F.2d 109 (D.C.Cir.1982) (hereinafter "Doe I" ) and Doe v. DiGenova, 779 F.2d 74 (D.C.Cir.1985) ("Doe II" ). ¹ We therefore summarize them here.

On October 22, 1981, Assistant United States Attorney ("AUSA") David Stanley informed John Doe ² by letter that he was a target for criminal prosecution in an ongoing grand jury investigation of fraudulently collected unemployment benefits. On November 3, 1981, Stanley met with Doe and his court-appointed counsel. At that meeting, Stanley informed Doe of the evidence against him, gave Doe the opportunity to plead guilty to multiple felony charges, and sought to enlist Doe's assistance in an ongoing investigation. On the same day, unbeknownst to Doe, AUSA Stanley also caused a grand jury subpoena to be issued to the director of the VA for the production of Doe's claim file and "any medical records maintained for the claimant." These records were primarily psychiatric, containing information about Doe's treatment in the VA's mental health clinic for paranoid-schizophrenia. On November 5, the VA turned over Doe's records to two metropolitan police department officers. In support of its disclosure, the VA cited two VA regulations issued pursuant to the Veterans' Records Statute, 38 U.S.C. Sec. 3301(a). See 38 C.F.R. Sec. 1.506(a) (1984); 38 C.F.R. Sec. 1.511(b) (1984). ³

Upon learning that the VA had released his client's psychiatric records, Doe's counsel informed the prosecutor that he believed that Doe's rights had been violated In Doe I, this court held that Doe's claim was not rendered moot by the representations of the U.S. Attorney's Office and the District of Columbia police that no use had been or would be made of Doe's records. The court, reversing the district court's dismissal of the case, explained that the case record suggested "that Doe remains under investigation for fraudulent receipt of unemployment compensation," and therefore that the risk was not "negligible that Doe may encounter repetition of the official conduct that gave rise to this suit." It also noted that the VA continued to assert the validity of its disclosure of Doe's records, and that the VA had not pledged not to disclose Doe's files in the future. Finally, the court observed that the possibility of money damages kept the suit vital. See 696 F.2d at 112-14.

                and that Doe would initiate legal action if the prosecutor did not take certain specified steps to protect Doe's rights.   See Doe I, 696 F.2d at 110 (listing Doe's demands).  Negotiations towards an agreement proved unavailing, and on January 6, 1982, Doe filed suit against AUSA Stanley, two VA officials, and other federal and District of Columbia law enforcement officials.  He alleged violation of his rights under the fourth, fifth, and sixth amendments of the Constitution, the D.C. patient-physician privilege, the D.C. Mental Health Information Act of 1978 (D.C. Code Sec. 6-2002(a) (1981)), and the Veterans' Records Statute, the federal law requiring that VA records be kept confidential.  Doe sought court orders transferring the files to Doe's attorney, sealing defendants' files relating to his medical records, declaring the grand jury subpoena and the VA's release of the files to have been illegal, and preventing the defendants or their agents from reacquiring or disseminating the contents of the files
                

In the aftermath of Doe I, Doe amended his complaint to seek money damages against the United States based upon the VA's disclosure of his records. This claim rested upon the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346, 2671-2680. ⁴ Pretrial discovery followed, during which AUSA Stanley stated that he had issued the subpoena for Doe's medical records (as opposed merely to his VA claim file) for two reasons. He declined at that time to identify the first reason on the grounds that doing so would violate the grand jury secrecy rule of Fed.R.Crim.P. 6(e). He did, however, set forth the reason in a sealed affidavit submitted to the district court, and he invited that court to exercise its authority to disclose the contents of that affidavit under Fed.R.Crim.P. 6(e)(3)(C)(i). The second reason for issuing the subpoena, Stanley stated, was that his meeting with Doe and his counsel had suggested "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."

On cross-motions for summary judgment, the district court granted defendants' motion, concluding that the release of the claim file was authorized by the Veterans' Records Statute. In Doe II, however, this court reversed. It held that the Veterans' Records Statute, as modified by the Privacy Act, did not permit disclosure of Doe's records, and that disclosure had not been made for a "routine use" exempt from Privacy Act strictures under 5 U.S.C. Sec. 552a(b)(3). See 779 F.2d at 78-87. Accordingly, the court invalidated the VA regulations in question to the extent they were inconsistent with the Privacy Act. See id. at 79 n. 8. It remanded the bulk of Doe's claims for reconsideration.

On remand, the first of AUSA Stanley's two reasons for securing the subpoena of Doe's medical files emerged, as the parties agreed to unseal Stanley's affidavit and the district court determined that doing so was On cross-motions for summary judgment on remand, the district court entered a declaratory judgment, in accord with Doe II, that the VA's disclosure of Doe's records violated the Veterans' Records Statute and the Privacy Act. However, the court, in its July 29, 1986 order granted summary judgment for appellees on all of Doe's remaining claims. See Doe v. DiGenova, 642 F.Supp. 624 (D.D.C.1986) (hereinafter "District Court Opinion "). Doe's appeal followed.

                appropriate under Fed.R.Crim.P. 6(e)(3)(C)(i).  The grand jury investigation, the Stanley affidavit stated, had indicated that certain employees of the District of Columbia Department of Employment Services, including Doe, had caused computers to issue benefits checks to themselves and others, and that Doe himself had received and negotiated U.S. Treasury checks marked "VA Comp."    Stanley had therefore caused the VA subpoena to issue in order to appraise plaintiff's VA benefits claim and to determine whether it was fraudulent or legitimate.  Doe was, however, never indicted in connection with this investigation
                

II. DISCUSSION

A. Doe's Claims for Money Damages

We turn first to Doe's claims for money damages under the FTCA. That act makes the United States government liable for damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b). Unless the government action in question falls within one of the exceptions enumerated by 28 U.S.C. Sec. 2680, the government is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. Sec. 2674.

In this case, Doe bases his FTCA claims upon alleged violations of the physician-patient privilege and the District of Columbia Mental Health Information Act, and upon the VA's alleged abuse of process, tortious invasion of privacy by intrusion, and breach of a confidential relationship. The district court, however, found distinct flaws in each of these five claims. Moreover, it found that even if the disclosure of Doe's records had been unlawful under any of these theories, liability based upon the VA's actions would be barred by the FTCA exclusion contained in 28 U.S.C. Sec. 2680(a). See District Court Opinion at 632-33. That provision excludes from FTCA coverage "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation [is] valid."

Like the district court, we find that the 28 U.S.C. Sec. 2680(a) exclusion squarely blocks appellant's claim for damages based upon the actions of the VA. Doe's argument for damages from the VA boils down to his assertion that the release of his medical records was unlawful. See Brief for Appellant at 39. Yet although it is true, as Doe II establishes, that the VA was unauthorized to release Doe's records in response to the grand jury subpoena, the mere fact of governmental illegality does not of itself establish...