Speaker v. U.S. Dep't Of Health

• Decision Date: 22 October 2010
• Docket Number: No. 09-16154.,09-16154.
• Parties: Andrew Harley SPEAKER, Plaintiff-Appellant, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES CENTERS FOR DISEASE CONTROL AND PREVENTION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

623 F.3d 1371

Andrew Harley SPEAKER, Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES CENTERS FOR DISEASE CONTROL AND PREVENTION, Defendant-Appellee.

No. 09-16154.

United States Court of Appeals,Eleventh Circuit.

Oct. 22, 2010.

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Craig Thomas Jones, Page Perry, LLC, Atlanta, GA, for Speaker.

Mark R. Freeman, Mark B. Stern, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendant-Appelee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HULL, MARTIN and FAY, Circuit Judges.

HULL, Circuit Judge:

Plaintiff Andrew Harley Speaker (“Speaker”) sued the Defendant United States Department of Health and Human Services Centers for Disease Control and Prevention (“CDC”) for violating the Privacy Act, 5 U.S.C. § 552a, by disclosing his identity and confidential medical information relating to the treatment of his tuberculosis. Plaintiff Speaker appeals the district court's grant of Defendant CDC's motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). After review and oral argument, we reverse.

I. BACKGROUND A. Speaker's Amended Complaint

In this Rule 12(b)(6) context, we start by outlining the allegations in Plaintiff Speaker's Amended Complaint, which seeks to recover damages under the Privacy Act, 5 U.S.C. § 552a.

Speaker first tested positive for tuberculosis in March 2007. In April 2007, after undergoing tests and treatments, Speaker received a preliminary susceptibility test result suggesting an elevated diagnosis of multidrug-resistant tuberculosis (“MDR-TB”).

During the course of Speaker's treatment, several CDC employees became aware of his intention to travel to Europe in May 2007 for his wedding ceremony and honeymoon. Speaker cites e-mail records of CDC officials acknowledging the upcoming trip as evidence that the CDC was planning treatment options around these

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travel plans. CDC officials were also aware that Speaker's doctor at the Fulton County Health Department Tuberculosis Program was advising further care at the National Jewish Medical and Research Center in Denver upon Speaker's return. This contradicted later public statements by the CDC that it had no knowledge of Speaker's travel plans.

In the days leading up to his departure, Speaker claims health officials repeatedly gave assurances that he was not contagious or a threat to anyone, and that no public health official advised him against traveling abroad. On May 12, 2007, Speaker departed for Europe.

Soon afterwards, the CDC lab received test results indicating increased resistance to drug treatments. The CDC then reclassified Speaker's tuberculosis as extensively drug-resistant tuberculosis (“XDR-TB”), a more virulent strain. On May 22, Speaker was contacted in Europe by Dr. Bob Cooksey, a microbiologist in the CDC's Division of Tuberculosis Elimination, ¹ about a change in test results. Speaker immediately contacted Dr. David Kim, a CDC employee, who informed him that the CDC had elevated his tuberculosis diagnosis to XDR-TB. Dr. Kim allegedly informed him that, while his treatment options would change, he remained non-contagious.

Nevertheless, the CDC forbade Speaker from flying on a commercial airliner. Dr. Kim notified Speaker that the CDC was making arrangements to fly him back to the United States. The next day, however, Dr. Kim informed Speaker that the CDC did not have money in its budget to pay for the flight. Dr. Kim gave Speaker two options: he could charter a private flight if he wished to return to the United States for treatment, or he could check into an Italian hospital the next day.

Although he had been told by his doctor that the National Jewish Medical and Research Center in Denver presented his best treatment option, Speaker could not afford a chartered flight to the United States. Faced with the prospect of indefinite detainment in Italy, and relying upon the statements of health officials that he was not contagious, Speaker elected to disregard the CDC's travel instructions and booked a flight to Montreal on a commercial airliner. Speaker then crossed the border by car into the United States, notifying the CDC of his whereabouts. The CDC directed Speaker to check himself into Bellevue Hospital in New York City, which Speaker did. At Bellevue, Speaker was served with a federal quarantine order, the first imposed on a United States citizen since 1963. Speaker subsequently received treatment at Grady Memorial Hospital in Atlanta and the National Jewish Medical and Research Center in Denver.

Upon being hospitalized, Speaker alleges that “the CDC caused personally identifiable information about [him] to be improperly disclosed without his consent to law enforcement officials, the news media, and the general public as a result of the deliberate actions of the CDC and its employees or agents.” Am. Compl. ¶ 82. Speaker accuses the CDC of causing the following disclosures of his “personally identifiable information”:

a) Public disclosures to the international news media during press conferences and interviews held on or about May 29 and 30, June 1, and July 3 and 11, 2007;

b) Upon information and belief, other disclosures by CDC agents or employees

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to members of the media during the time frame of said public press conferences and interviews, including but not limited to information that enabled the media to ascertain Mr. Speaker's identity and whereabouts on or about May 29, 2007 and to publish his name on and after May 31, 2007;

c) Upon information and belief, disclosure of Mr. Speaker's identity to law enforcement officers who in turn leaked his identity to the Associated Press between May 29 and May 31, 2007;

d) Upon information and belief, confirmation of Mr. Speaker's identity to the Associated Press between May 29 and 31, 2007;

e) Upon information and belief, other disclosures made as part of a media campaign directed toward Mr. Speaker and his disease that will be identified through discovery and proven at trial.

Id. ¶ 83.

Although Speaker's Amended Complaint alleges the CDC “caused” disclosures, Speaker elsewhere in the Amended Complaint refers to the CDC “ making the aforementioned disclosures about Mr. Speaker.” Id. ¶ 84 (emphasis added). Other examples make clear that Speaker alleges direct disclosures of his identity by the CDC. See, e.g., id. ¶ 1 (referring to the CDC's “intentional, unauthorized disclosure of Plaintiff's confidential medical history”); id. ¶ 69 n. 2 (referring to “the CDC's unlawful disclosure of Mr. Speaker's identity and private health information to the world media”); id. ¶ 103 (referring to “the CDC's highly publicized release of Mr. Speaker's private information”); id. ¶ 106 (stating that “[t]he aforementioned disclosures by the Defendant CDC about Plaintiff Andrew Speaker and his status as a tuberculosis patient resulted in the release of private identifiable information”); id. ¶ 108 (referring to “identifiable private information that the Defendant released about Mr. Speaker, including but not limited to his identity, his occupation, his city of residence, his wedding travel plans, his medical history, and his present medical status”); id. ¶ 110 (stating that “unauthorized disclosures of Mr. Speaker's identifiable private information by a federal agency charged with the responsibility of maintaining the confidentiality of that information constituted a violation of the Privacy Act”); id. ¶ 112 (referring to “the CDC's intentional, unauthorized disclosure of Mr. Speaker's identifiable private information”); id. ¶ 114 (referring to “identifiable private information released to the world media by the CDC”); id. ¶ 115 (referring to “identifiable private information released by the CDC”). ²

Ultimately, Speaker's XDR-TB diagnosis proved erroneous, and his tuberculosis was downgraded back to MDR-TB.

B. CDC's Motion for Summary Judgment

On April 28, 2009, Plaintiff Speaker filed his original Complaint. On June 29, 2009,

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Defendant CDC filed an answer. Immediately after answering, the CDC, on July 2, 2009, filed a motion to stay the proceedings and a motion for summary judgment, arguing that (1) Speaker failed to satisfy the elements of a Privacy Act claim and (2) under Eleventh Circuit precedent, Speaker could not recover non-pecuniary damages under the Privacy Act. The CDC attached a “statement of material facts about which there is no genuine dispute” and various exhibits, including the CDC's statements at press conferences and the contents of newspaper articles. ³

In response, Speaker filed motions opposing the stay and summary judgment. He supplied a “statement of material facts” and a “response to defendant's statement of facts,” along with a Rule 56(f) affidavit requesting discovery.

The district court's ruling referenced the contents of some of the CDC exhibits, so we recount them here.

One CDC exhibit was the transcript of the CDC's first press conference on May 29, 2007. In that press conference, CDC Director Julie Gerberding stated that the tuberculosis patient in question, whom she did not identify by name, (1) departed Atlanta on May 12, traveling to Paris on Air France flight 385 and (2) returned to the United States on May 24, taking Czech Air flight 104 from Prague to Montreal, and crossing the border by car. Dr. Martin Cetron, the CDC's Director of the Division of Global Migration and Quarantine, identified Atlanta as the patient's home.

The CDC also attached as an exhibit an Atlanta Journal-Constitution article that appeared within 24 hours of the CDC's May 29 press conference. The article revealed that the tuberculosis patient participated in a telephone interview with the newspaper, on condition of anonymity, and reported that he was presently under federal quarantine at Grady Memorial Hospital in Atlanta.

Another CDC exhibit...