for the Eastern
Thomas A. O’Donnell,
Department of Defense,
Civil Action No. 04-00101
William H. Yohn. Jr., J.
Memorandum and Order
Currently pending before the court is a motion to dismiss the plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), made by the defendants United States of America (“U.S.”) and the U.S. Department of Defense (“DOD”). The defendants contend that the court lacks subject matter jurisdiction over the plaintiff’s claims under the Federal Tort Claims Act (“FTCA”) because the Federal Employees Compensation Act (“FECA”) is his exclusive remedy and that the plaintiff’s allegations of violations of the Privacy Act fail to state a claim upon which relief can be granted. For the reasons set forth below, the motion will be denied.
I. FACTUAL & PROCEDURAL BACKGROUND n1
Plaintiff Thomas A. O’Donnell (“O’Donnell”),
is currently employed by the DOD, as an auditor of defense contracts for the
Defense Contract Audit Agency (“DCAA”), a component of the DOD that performs
audit services for defense contracts, and is based in the
In September 1994, O’Donnell received treatment from a psychiatrist for
a personal medical condition. In 1999, during a periodic security
reinvestigation, O’Donnell told investigators from the Defense Security
Services (“DSS”), a component of the DOD responsible for security clearance
investigations, of his psychiatric treatment. On
DSS transferred O’Donnell’s entire SBPR file to Washington Headquarters Services (“WHS”), a component of the DOD responsible for adjudicating personnel security clearances, under a warning stating:
This file is the property of the Defense Security Service. Contents may be disclosed only to persons whose official duties require access hereto. Contents may not be disclosed to party(s) concerned without specific authorization from the Defense Security Service.
The complaint states that
at some point DCAA headquarters in
The next day, Melby informed O’Donnell that he was in possession of the SBPR file and that he had read the contents. O’Donnell asked to see his file so he could view what Melby had read about him; Melby told O’Donnell that he was not entitled to see his own file and that he should speak with DCAA headquarters about how to gain access to his file.
Between January 11 and January 15, 2002, O’Donnell claims to have called
the DCAA headquarter’s acting Security officer,
Jennifer Lindenbaum (“Lindenbaum”),
four times in reference to reviewing his own SBPR file. On
O’Donnell claims that he only authorized the release of his psychiatric records to DSS and that he was stunned to discover that Melby and Lindenbaum had access to his actual psychiatric records. He alleges that he only signed the release because DSS informed him that it might be unable to determine his suitability for access to classified defense information without the release. O’Donnell’s understanding was that his psychiatric records were strictly confidential and would not be disclosed outside of DSS and that they would be returned to the psychiatrist after DSS review. He claims that the transfer of his confidential file from WHS to DCAA headquarters, and then to the DCAA branch office was unnecessary to schedule an independent psychiatric evaluation. He also claims that his psychiatric evaluation was in fact scheduled by someone who never read or took possession of the SBPR file.
On March 12, 2004, the defendants filed a
motion to dismiss arguing inter alia, that the plaintiff had failed to exhaust
his remedies under the Federal Tort Claims Act (“FTCA”) and the Federal
Employees Compensation Act (“FECA”), Lindenbaum and Melby were not proper parties to the lawsuit, and that the
United States had not waived sovereign immunity as to the Constitutional
claims. The plaintiff did not respond to the motion and on
II. SUBJECT MATTER JURISDICTION
I have jurisdiction to hear claims alleging
violations of the Federal Privacy Act, 5
U.S.C. § 552a, under the court’s federal question jurisdiction, 28 U.S.C. § 1331. Additionally,
jurisdiction is proper under 28 U.S.C.
§ 1346(b) when the
III. STANDARD OF REVIEW
When a defendant
challenges subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1), the plaintiff bears the burden of
persuasion. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d
1406, 1409 (3d Cir. 1991). However, the plaintiff’s burden is
light. Dugan v.
Coastal Industries, Inc., 96 F. Supp. 2d 481, 482-83 (E.D. Pa. 2000).
“A district court can grant a Rule
12(b)(1) motion to dismiss for lack of subject
matter jurisdiction based on the legal insufficiency of a claim. But dismissal
is proper only when the claim ‘clearly appears to be immaterial and made solely
for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and
frivolous.’“ Kehr Packages, 926 F.2d at 1408-1409 (quoting
In ruling on a motion to
dismiss under Fed. R. Civ. P. 12(b)(6), courts must
accept as true all well-pled allegations in the complaint, and any reasonable
inferences that may be drawn therefrom, to determine whether “under any
reasonable reading of the pleadings, the plaintiff may be entitled to relief.” Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996). Although courts must construe the
complaint in the light most favorable to the plaintiff, they need not “accept
as true unsupported conclusions and unwarranted inferences.”
Courts will grant a motion to dismiss under Fed. R. Civ. P. 12(b)(6)
if a plaintiff can prove no set of facts to support the allegations that would
entitle her to relief. See Hishon v. King & Spalding, 467
A. Claims Brought Pursuant to the FTCA (Counts VII, X)
In Counts VII and X the plaintiff asserts
violations of the FTCA, 28 U.S.C. §§
1346 and 2679, claiming
the United States is responsible for: (1) disclosing his psychiatric records to
WHS without his express written authorization to do so, in violation of
Pennsylvania’s Mental Health Procedures Act, 50 P.S. §§ 7111 and 7113
(Count VII), and (2) the tort of intrusion upon seclusion as a result of the
reading of his confidential SBPR file by Melby and Lindenbaum (Count X). See Compl.
P85-89, 99-107. The plaintiff claims to have suffered “embarrassment,
humiliation, emotional distress, and an invasion of his privacy” because of the
The government argues that the court lacks
subject matter jurisdiction over the plaintiff’s claims, because the FECA, 5 U.S.C. §§ 8101-8152, provides an
exclusive comprehensive remedy to a federal employee for work related injuries.
Def. Br. 7-9. Therefore the plaintiff is barred from pursuing claims under the
FTCA because his exclusive remedies, if any, are under the FECA.
The FECA provides that “the
The court concludes that there is a substantial question of FECA coverage in this case. The parties dispute whether the emotional harms allegedly suffered by plaintiff are “injuries” that fall within the coverage of the FECA. While some courts have held that emotional distress injuries are not covered by FECA, other courts have declared that FECA encompasses emotional distress claims. Compare Lucente v. Bolger, No. 84-4176, 1985 U.S. Dist. Lexis 19248, at *2 (E.D. Pa. 1985) (“incidents involving federal employees that give rise to psychological harm such as mental anguish and humiliation have been found by the Secretary to be covered by FECA”), Tippetts v. United States, 308 F.3d 1091, 1094 (10th Cir. 2002) (finding that claims of intentional infliction of emotional distress and invasion of privacy presented a “substantial question of coverage” under FECA), McDaniel v. United States, 970 F.2d 194, 198 (6th Cir. 1992) (“we agree [with the Secretary of Labor] that FECA covers McDaniel’s claims” for negligent and intentional infliction of emotional distress), Castro v. United States, 757 F. Supp. 1149, 1151 (W.D. Wash. 1991) (because FECA covers emotional injuries, claim for intentional infliction of emotional distress under FTCA is barred), with Lawrence v. United States, 631 F. Supp. 631 (E.D.Pa. 1982) (“FECA does not provide coverage for mental suffering, humiliation, embarrassment or loss of employment. . . .”), Sheehan v. United States, 896 F.2d 1168, 1174 (9th Cir. 1990), amended, reh’g denied, en banc, 917 F.2d 424 (9th Cir. 1990) (finding that FECA compensates only for physical harm and the plaintiff’s alleged injury, emotional distress, is divorced from a claim of physical harm and therefore does not fall within the scope of FECA coverage), De Ford v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983) (viewing intentional discrimination as not causing an injury subject to FECA coverage).
The Employee Compensation Board (“ECAB”) has held explicitly that the FECA covers emotional injuries under certain circumstances. See In re Cutler, 28 ECAB 125, 1976 ECAB Lexis 44 (1976), In re Walker, 42 ECAB 603, 1991 ECAB Lexis 667 (1991), In re Meisenburg, 44 ECAB 527, 529, 1993 ECAB Lexis 2338 (1993). Where a disability n5 results from an employee’s emotional reaction to his regular or specially assigned work duties or to a requirement imposed by the employment, the disability comes within the coverage of the FECA. In re Cutler, 28 ECAB 125 (1976). The Deputy Director for Federal Employees’ Compensation, Edward G. Duncan, in an advisory opinion specifically addressing the question of FECA coverage for O’Donnell’s claims, concluded that “there is a significant possibility that the plaintiff may be covered under FECA,” for the claims raised in this action. Def. Br. Exh. A, 3. O’Donnell’s injuries arose from the handling of his security file as part of the reinvestigation of his security clearance, which is a requirement imposed by his employment as a defense contract auditor for the DOD. Under these circumstances, I can not say with certainty that the Secretary of Labor would find that the plaintiff’s claims are not covered by the FECA; therefore, a substantial question of FECA coverage exists.
Accordingly, the defendants’ motion to dismiss is denied. I will place these claims in civil suspense until the Secretary of Labor determines whether the FECA covers plaintiff’s tort claim for emotional injuries. Di Pippa v. United States, 687 F.2d 14, 20 (3d Cir. 1982) (holding that the appropriate remedy when there is a substantial question of FECA coverage is to stay proceedings in the action until the Secretary resolves the question of coverage, and not to dismiss the claim). The plaintiff should therefore pursue this claim under FECA, 5 U.S.C. § 8101, et seq. n6 If the Secretary of Labor concludes that plaintiff’s claim falls within the purview of FECA, then FECA is plaintiff’s exclusive remedy. However, if the Secretary concludes that plaintiff’s injury is not governed by FECA, I will then address the merits of plaintiff’s emotional distress and intrusion upon seclusion claims.
B. Claims Brought Pursuant to the Privacy Act (I-III)
In Counts I-III, the plaintiff claims that the defendants violated various provisions of the Privacy Act, 5 U.S.C. § 552a and numerous DOD regulations, including: (1) willful and intentional disclosure of O’Donnell’s SBPR file in violation of 5 U.S.C. §§ 552a(b) and (e)(10) (Count I); (2) DOD’s three month delay in providing the plaintiff with access to his security file in violation of 5 U.S.C. §§ 552a(d) and (e)(10) (Count II); and (3) failure to implement adequate procedures to safeguard the confidentiality of security background files of employees, in violation of 5 U.S.C. § 552a(e)(10) (Count III). Compl. PP61-63, 65-68, 70-73.
The Privacy Act provides that an individual may bring a civil action against an agency, when the agency “fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.” 5 U.S.C. § 552a (g)(1)(D). To state a claim under 5 U.S.C. § 552a (g)(1)(D) for a violation of the Act’s central prohibition against disclosure, 5 U.S.C. § 552a (b), “a plaintiff must advance evidence to support a jury’s finding of four necessary elements: (1) the information is covered by the Act as a record contained in a system of records; (2) the agency ‘disclosed’ the information; (3) the disclosure had an adverse effect on the plaintiff . . .; and (4) the disclosure was ‘willful or intentional.’“ Quinn v. Stone, 978 F.2d 126, 131 (3d Cir. 1992).
The defendants claim that the plaintiff has
failed to allege facts in support of elements (2) and (4). They argue that the
plaintiff fails to state a claim because the information “disclosed” falls
within an exception to 5 U.S.C. § 552a
(b) which allows disclosures under certain circumstances. They contend
that the alleged actions fall within either the exception which allows
disclosures when agency employees have a “need to know”, 5 U.S.C. § 552a(b)(1),
or the “routine use” exception to the Privacy Act, 5 U.S.C. § 552a(b)(3). n7 Def. Br.
9-13. The defendants also argue that the plaintiff has failed to state a claim
because the actions in question were not “intentional or willful.” Def. Br.
13-14. The plaintiff argues in opposition that Melby
and Lindenbaum had no need for his SBPR file to
perform their duties. Pl. Br. 8-15. O’Donnell claims
that the “routine use” exception only applies to inter-agency disclosures, not
intra-agency disclosures, and that this information was not necessary for a “routine
use.” Pl. Br. 15-17. The plaintiff also argues that
the complaint does allege intentional and willful conduct. Pl.
1. The “Need to Know” Exception to Disclosure - 5 U.S.C. § 552a (b)(1)
5 U.S.C. § 552a (b)(1), known as the “need to know” exception, allows for disclosure “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” The defendants claim that both Lindenbaum and Melby needed to know the information contained in the plaintiff’s personnel file to evaluate whether O’Donnell should have continuing access to classified documents. Def. Br. 9-11.
However, the allegations in the complaint,
which are controlling at this juncture of the litigation, are to the contrary.
The plaintiff clearly alleges in his complaint that “no one has ever
articulated any reasons why Lindenbaum or Melby needed to read Mr. O’Donnell’s file. No valid reasons
exist.” Compl. PP42, 45, 53. The plaintiff
claims that DCAA (in the person of Lindenbaum and Melby) received his SBPR file for the sole purpose of
scheduling his independent psychiatric evaluation. Compl. P39. He then goes on
to state that “neither possession nor reading of the confidential files was
necessary for this purpose.”
2. The “Routine Use” Exception to Disclosure - 5 U.S.C. § 552a (b)(3)
5 U.S.C. § 552a (b)(3), known as the “routine use” exception to the prohibition on disclosure under the Privacy Act, allows disclosure “for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section.” The Privacy Act defines the term “routine use” to mean “with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.” n8 5 U.S.C. § 552a (a)(7). “Agencies that maintain a system of records are required to publish in the Federal Register a notice of ‘each routine use of the records contained in the system, including the categories of users and the purpose of each use.’“ Pippinger v. Rubin, 129 F.3d 519, 532 (10th Cir. 1997) (citing 5 U.S.C. § 552a (e)(4)(D)). The DOD has set up “common blanket routine uses for all DoD-maintained systems of records” and “unless a system notice specifically excludes a system from a given blanket routine use, all blanket routine uses apply.” 32 C.F.R. § 310.41 (e)(5). A list of DOD blanket routine uses provides:
C. Routine Use--Disclosure of Requested Information
A record from a system of records maintained by a Component may be disclosed to a federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency’s decision on the matter.
32 C.F.R. Part 310, Appendix C .
There is insufficient information at this time to decide whether Melby’s and Lindenbaum’s review of O’Donnell’s SBPR file falls within the routine use exception. However, the plaintiff does not allege that the DCAA received the SBPR file in response to a request. The complaint repeatedly contends that Lindenbaum and Melby’s review of his psychiatric records was not necessary for determining the retention of his security clearance. Compl. PP40, 42, 45, 53. Because it is unclear from the face of the plaintiff’s complaint that the routine use exception applies, the motion to dismiss will be denied.
3. Intentional or Willful Disclosure - 5 U.S.C. § 552a (g)(4)
Though the Privacy Act permits a civil
action under 5 U.S.C. § 552a (g)(1)(D) against an agency for its unprotected
disclosures which have an adverse effect, a plaintiff may recover damages only
when the agency “acted in a manner which was intentional or willful.” 5 U.S.C. § 552a (g)(4),
see Britt v. Naval Investigative
Service, 886 F.2d 544, 551 (3d Cir. 1989). The intentional or willful
standard is viewed as “somewhat greater than gross negligence.” Britt, 886 F.2d at 551.
This standard requires a plaintiff to show that an agency “committed the act
without grounds for believing it to be lawful, or by flagrantly disregarding
others’ rights under the Act.”
The plaintiff pleads sufficient facts to state a claim that the DOD
willfully or intentionally violated his rights under the Privacy Act. On a
motion to dismiss, the court must accept as true the factual allegations in the
complaint and all reasonable inferences that can be drawn therefrom. Holder v. City of
The defendants’ motion to dismiss will be denied. A substantial question exists as to whether O’Donnell’s FTCA claims are covered by FECA, such that FECA is his exclusive remedy. These claims will be placed in civil suspense until the Secretary of Labor determines whether FECA covers plaintiff’s tort claim for emotional injuries. Therefore the defendant’s motion to dismiss Counts VII and X will be denied.
The defendants’ motion to dismiss the plaintiff’s claims under the Privacy Act for failure to state a claim will also be denied. It is unclear from the face of the complaint that the “routine use” exception or the “need to know” exception apply. O’Donnell has alleged sufficient facts to show that the defendant’s conduct was intentional or willful. Therefore the defendant’s motion to dismiss Counts I-III will be denied. An appropriate order follows.
And now, this -- day of January 2006, upon
consideration of the motion of defendants the
(1) Defendants’ motion to dismiss plaintiff’s claims of emotional distress and intrusion upon seclusion under the FTCA in Counts VII and X is DENIED.
(2) Counts VII and X are placed in civil suspense, pending a decision of the Secretary of Labor on whether plaintiff’s FTCA claims are preempted by FECA.
(3) Defendants’ motion to dismiss plaintiff’s claims under the Privacy Act, 5 U.S.C. § 552a in Counts I-III is DENIED.
status conference by telephone with reference to the trial scheduled for
William H. Yohn. Jr., J.
1 The factual account accepts all allegations in the complaint as true. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
2 The plaintiff’s attorney claimed he was inadvertently late in filing a response and that dismissal of the plaintiff’s claim would result in manifest injustice. The government concurred in this motion, upon the plaintiff’s agreement to dismiss Lindenbaum and Melby from the complaint. See Motion for Reconsideration, PP3-6, 13.
defendants claim that “the changed circumstances are that the only claims now
remaining in this case are those brought by plaintiff under the Federal Tort
Claims Act, 28 U.S.C. § 2671, et seq., and the Federal Privacy Act, 5 U.S.C. §
552a.” Def. Br. 6. However, because the
motion under Rule 12(b)(1) may take the form of either
a factual or a facial challenge to subject matter jurisdiction. See Singer v.
Commissioner, No. 99-2783, 2000
Though FECA has a three year statute of limitations, there is an exception
where an immediate superior had actual knowledge of the injury within 30 days. 5 U.S.C. § 8122(a). The complaint states that Melby, O’Donnell’s superior, was aware of the plaintiff’s
concerns surrounding access to his SBPR file from the conversation that took
7 The defendants appear to argue that the “need to know” and “routine use” exceptions, 5 U.S.C. § 552a (b)(1) and (3), would absolve the defendants from any violation of the Privacy Act. However, though the plaintiff brings various claims under the Privacy Act, only Count I alleges disclosure violations of 5 U.S.C. § 552a (b), to which the “need to know” and “routine use” exceptions would apply.
Though the plaintiff argues “routine use” should be defined as it is in 32
C.F.R. § 310.4 to mean “the disclosure of a record outside of the Department of
Defense,” this court believes that the term “routine use” is sufficiently
defined by the Privacy Act. See Pl.