O'Donnell v. U.S.

• Decision Date: 15 December 1989
• Docket Number: No. 89-1363,89-1363
• Citation: 891 F.2d 1079
• Parties: Thomas J. O'DONNELL, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

Page 1079

891 F.2d 1079

58 USLW 2384

Thomas J. O'DONNELL, Appellant, v. UNITED STATES of America.

No. 89-1363.

United States Court of Appeals, Third Circuit.

Argued Sept. 8, 1989.

Decided Dec. 15, 1989.

Edward J. Daly, Jeffrey S. Pearson (Argued), Philadelphia, Pa., for appellant.

Michael M. Baylson, U.S. Atty., James G. Sheehan, Asst. U.S. Atty., Lois W. Davis (Argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents, among other issues, a case of primary impression in this circuit relating to the limitation, if any, of the Federal Privacy Act of 1974 on the Federal Tort Claims Act (FTCA) with respect to a person's right to sue a federal agency for an invasion of privacy. Under the FTCA the government is liable for injuries caused by a government employee "if a private person, would be liable to the claimant in accordance with the law of the place where the act of omission occurred." 28 U.S.C. § 1346(b). Plaintiff Thomas O'Donnell brought suit under the FTCA in the United States District Court for the Eastern District of Pennsylvania against the Veterans Administration Agency (VA) for invasion of privacy and negligent disclosure of psychiatric records.

The Government filed a motion to dismiss and, in the alternative, a motion for summary judgment. The district court, without opinion, granted the Government's motion for summary judgment. O'Donnell appealed. We affirm the district court's judgment as to plaintiff's invasion of privacy claim. We vacate the judgment and remand as to O'Donnell's statutory claim for failure to maintain the confidentiality of his psychiatric records.

I.

The Commonwealth of Pennsylvania employed O'Donnell in its Office of Employment Security, Department of Labor and Industry, as a disabled veterans employment representative in its Hatboro office. In late 1985, O'Donnell claimed that the two Naval air stations near his office disturbed him because he suffered from a Vietnam-related post-traumatic stress disorder (PTSD). He therefore requested a transfer to the Levittown office of the Department.

His superior, James Hendricks, requested a statement from O'Donnell's Veterans Administration psychiatrist verifying O'Donnell's need for transfer and the medical basis for it. On November 21, 1985, plaintiff executed a "Request For and Consent to Release of Information" form (consent form) requesting the VA "to release the following information from the records of the organization...." Unfortunately, in the space designated for the "INFORMATION REQUESTED," the plaintiff-veteran failed to specify anything; he merely supplied the name and address of his superior, Hendricks. In the space reserved on the form for the "PURPOSE FOR WHICH THE INFORMATION IS TO BE USED," O'Donnell wrote "proof of disability" and "need for reassignment." Dr. Robert Eilers, plaintiff's VA psychiatrist, promptly prepared a letter to Hendricks opining that it "would be in the interests of Mr. O'Donnell and his treatment for him to be assigned to his former office in Bristol, Pennsylvania because of better travel time and conditions." This letter was hand delivered to plaintiff who then delivered it to Hendricks on November 21, 1985.

On December 5, 1985, at O'Donnell's request, Dr. Eilers wrote a supplemental letter to the Pennsylvania Department of Labor explaining that his prior letter recommended O'Donnell's reassignment due to the proximity of the Naval air stations "which has exacerbated symptomology of PTSD, including nightmares, flashbacks, and headaches, because of its reminders of his military experience."

On December 13, 1985, Roberta E. Fisher, a VA employee, sent a copy of Dr. Eiler's treatment summary of the plaintiff to Hendricks. This treatment summary contained the previous information about O'Donnell's post-traumatic stress disorder but also added a statement which is the genesis of this litigation:

One major problem has been [O'Donnell's] difficulty controlling his anger and impulsive behavior, which has been exacerbated by a turbulent relationship with his girlfriend, conflicts with authority figures and several legal problems.

It is unclear why the VA released this additional information or who requested it. O'Donnell contends that he never authorized the December 13 disclosure of the Eilers' treatment summary to Hendricks. He further claims that this release caused him to suffer severe mental distress, loss of reputation, and led to his dismissal by the Pennsylvania Department of Labor. The Government contends that the November 21 consent form executed by O'Donnell implicitly authorized the December 13 release.

II.

Before examining the merits of the appeal, we address, sua sponte, the district court's failure to render an opinion. Although a district court is not required to file an opinion setting forth its reasons or findings for entering summary judgment, the failure to do so in a non-frivolous case makes it extremely difficult, and perhaps impossible, for an appellate court to discern the district court's basis for its summary judgment ruling and to effectively grant appellate review. The trial court's findings and reasons would have been especially helpful in this case where we are requested to predict what the Pennsylvania Supreme Court would hold under Pennsylvania law and can only speculate as to the district court's reasons for entering summary judgment.

In reviewing a district court's summary judgment order, we "are required to apply the same test the district court should have utilized initially." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Here, we must determine if the VA, as the party moving for summary judgment, has met its burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). In forming our conclusions, we view the evidence submitted in the light most favorable to the opposing party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Any "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. See Adickes, supra, at 157-60, 90 S.Ct. at 1608-09.

If the moving party has met its burden of proof, the opposing party may not rest on "the mere allegations or denials of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With these standards in mind, we turn to O'Donnell's claims.

III.

O'Donnell predicated his suit on a theory that the FTCA permits an action against the United States for the common law tort of invasion of privacy. He contends that Pennsylvania law applies and that the December 13, 1985 disclosure of his treatment summary by Fisher constituted an unwarranted invasion of his right to privacy. O'Donnell also asserts that the aforesaid disclosure of his treatment summary by VA employees is actionable under applicable Pennsylvania law because it resulted from the negligence of the defendant, acting by and through its agents and servants, in failing to secure the confidentiality of plaintiff's psychiatric records. We turn first to O'Donnell's claim that the release of the summary treatment on December 13 amounted to an invasion of his right to privacy.

A.

O'Donnell asserts that, under Aquino v. Bulletin Co., 190 Pa.Super. 528, 154 A.2d 422 (1959), Pennsylvania would recognize his invasion of privacy claim for the Government's "unreasonable and serious interference with [his] interest" in not having his treatment summary record disclosed to his employer. The cause of action for invasion of privacy, however, is not one tort but a complex of four. See Marks v. Bell Telephone Co. of Pa., 460 Pa. 73, 331 A.2d 424, 430 (1975). In his complaint, O'Donnell did not allege which specific tort of invasion of his privacy had been committed. At oral argument, however, his counsel stated that O'Donnell premised his privacy claim on the subtort of "intrusion upon seclusion," which is defined under 652B of the Restatement (Second) of Torts. ¹

Section 652B of the Restatement (Second) of Torts, however, requires an intentional intrusion. It provides:

One who intentionally intrudes, physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

The Restatement (Second) of Torts § 8 defines "intent" to mean:

... that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.

Though intent is defined, the Restatement does not define "intrusion." Webster's defines "intrude" to mean to thrust oneself in without invitation, permission, or welcome. ² The comments and illustrations to Section 652B disclose that an "intrusion upon seclusion" claim usually involves a defendant who does not believe that he has either the necessary personal permission or legal authority to do the intrusive act. ³

We conclude that an actor commits an intentional intrusion only if he believes, or is substantially certain, that he lacks the necessary legal or personal permission to commit the intrusive act. We emphasize that the intrusion, as well as the action, must be intentional. The Restatement supports this conclusion and, as noted, see footnote 1 supra, Pennsylvania courts have consistently followed the Restatement in this area of tort law. Therefore, we predict that, if presented with a similar case, the Pennsylvania Supreme Court would adopt our conclusion as to what makes an intrusion upon seclusion intentional.

Here, the VA believed it had O'Donnell's permission to...