Boyd v. United States

932 F.Supp.2d 830

Jonathan C. BOYD, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 2:11–CV–00948.

United States District Court,

S.D. Ohio,

Eastern Division.

March 18, 2013.

Jonathan C. Boyd, Washington Courthouse, OH, pro se.

Deborah F. Sanders, Columbus, OH, for Defendant.

OPINION AND ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant's, United States of America, Motion to Dismiss (Doc. 12). Defendant moves to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction. For the reasons stated herein, Defendant's Motion to Dismiss is DENIED.

II. BACKGROUND

A. Factual Background

Plaintiff Jonathan Boyd (“Boyd”) alleges his personal medical information was disclosed to third parties without his consent on two different occasions by employees of the United States Department of Veterans Affairs (“VA”), in violation of the Privacy Act, 5 U.S.C. § 552a.

Boyd alleges that in January of 2009, he first learned of an autumn 2008 disclosure of his health information, without his consent. Complaint, Doc. 3 at 3. According to Boyd, his wife informed him that in the fall of 2008, his physician from the Dayton VA Medical Center disclosed to his wife information regarding Boyd's medication. Id. Boyd alleges a second unauthorized disclosure occurred on August 24, 2009, when a nurse at the Dayton Veterans Affairs Medical Center Primary Health Clinic announced results of Boyd's medical test in the clinic's public area, permitting others to hear. Id. It is undisputed that Boyd was advised by the Department of Veterans Affairs on August 24, 2009 that his health information may have been compromised. Motion to Dismiss, Doc. 12 at 2.

On December 22, 2010, prior to filing this suit, Boyd filed an administrative tort claim under the Federal Tort Claims Act with the Department of Veterans Affairs. Doc. 18, Exh. 1 at 68. The VA notified Boyd of the denial of his administrative claim on April 22, 2011, stating:

[Y]ou may file suit in accordance with the Federal Tort Claims Act, sections 1346(b) and 2671–2680, title 28, United States Code, which provides that a tort claim that is administratively denied may be presented to a Federal district court for judicial consideration. Such a suit must be initiated within 6 months after the date of the mailing of this notice of final denial as shown by the date of this letter.

Doc. 18, Exh. 1 at 68. Boyd did, in fact, file this action within six months, to the day, of receiving the April 22 letter. Boyd filed a Privacy Act claim, however, rather than a Federal Tort Claims Act (“FTCA”) claim. Complaint, Doc. 3 at 2.

Boyd alleges he was advised of his rights “to sue under the Privacy Act in accordance with the Federal Tort Claims Act ... which provides that a tort claim that is denied may be brought to a federal court for consideration. This action was brought within the six month time frame allowed.” Plaintiff's Response, Doc. 16 at 3–4. Boyd apparently mistook his rights under the FTCA for those under the Privacy Act. He erroneously believed his rights under both Acts to be the same.

B. Procedural Background

Boyd filed this action against the United States on October 21, 2011; he proceeds pro se. Defendant moves to dismiss this action under F.R.C.P. 12(b)(1) for lack of subject matter jurisdiction. Motion to Dismiss, Doc. 12 at 2. Defendant argues that Boyd's claim is time-barred because he failed to file his Privacy Act claim within the relevant statute of limitationsperiod. Id. at 3. The statute of limitations for the particular Privacy Act claim raised by Plaintiff is two years from the time Plaintiff “knows or has reason to know” of the alleged violation. See Oja v. United States Army Corps of Engineers, 440 F.3d 1122, 1135 (9th Cir.2006); see also Lockett v. Potter, 259 Fed.Appx. 784, 787 (6th Cir.2008). The motion has been fully briefed and is now ripe for decision.

III. STANDARD OF REVIEW

Subject matter jurisdiction is a threshold matter that a court must decide prior to considering a claim's merits. City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 975 (S.D.Ohio 1993). Rule 12(b)(1) provides that the defendant may file a motion to dismiss based on a “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). The plaintiff has the burden of proving jurisdiction when subject matter jurisdiction is challenged. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). Attacks on subject matter jurisdiction may be either facial attacks or factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack challenges the legal sufficiency of the complaint. When considering such a challenge, the court “must take the material allegations of the petition as true and construe[ ] [them] in the light most favorable to the nonmoving party.” Id.

While a court does not consider “matters outside of the pleadings” when testing the sufficiency of a claim, “ ‘[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.’ ” Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir.1997) (quoting Fed.R.Civ.P. 10(c)). If this were not the case, “a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it relied.” Id. Furthermore, where extrinsic materials “add nothing new, but, in effect, reiterate the contents of the complaint itself,” they may be considered without converting a motion to dismiss to a motion for summary judgment. Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir.1997). The chief concern when considering extrinsic materials on a motion to dismiss is that defendants seeking dismissal not suffer “any prejudicial surprise” as a result of the plaintiff including documents with its pleadings. Id. In the Sixth Circuit matters of public record may, at the court's discretion, also be considered at the dismissal stage. Kostrzewa v. City of Troy, 247 F.3d 633, 644 (6th Cir.2001).

IV. LAW AND ANALYSIS

A. Privacy Act: “No Disclosure Without Consent” Rule

Section 552a(b) of the Privacy Act prohibits a federal agency from releasing information about an individual without her consent, subject to certain exceptions not relevant here. 5 U.S.C. § 552a(b) (“No agency shall disclose any record which is contained in a system of records by any means of communications to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to twelve exceptions].”).

While the term “disclosure” is not defined by the statute, it has been interpreted broadly. See, e.g., Pippinger v. Rubin, 129 F.3d 519, 529 (10th Cir.1997) (citing legislative history to support a broad interpretation of the Privacy Act's disclosure provision). Thus, a “disclosure” may be by any means of communication, including written, oral, electronic, or mechanical. See OMB Guidelines, 40 Fed. Reg. 28,953 (July 9, 1975) (“The phrase ‘by any means of communication’ means any type disclosure (e.g. oral disclosure, written disclosure, electronic or mechanical transfers between computers of the contents of a record).”); see also, e.g., Jacobs v. Nat'l Drug Intelligence Ctr., 423 F.3d 512, 517–18 (5th Cir.2005) (“A myriad of cases has held or assumed that the Act protects against oral disclosures, as well as the nonconsensual dissemination of letters and memoranda containing information from a system of records.”) The burden of demonstrating that a disclosure by the agency has occurred rests with the Plaintiff. See, e.g., Askew v. U.S., 680 F.2d 1206, 1209–11 (8th Cir.1982) (finding the plaintiff's circumstantial evidence fell short of establishing an unlawful disclosure by the IRS). Once a plaintiff has satisfied that burden, Section 552a(g)(1)(D) governs damages for an unlawful disclosure. 5 U.S.C. § 552a(g)(1)(D).

1. Statute of Limitations

The Privacy Act provides that a claim must be brought in federal district court within two years of the alleged Privacy Act violation. 5 U.S.C. § 552a(g)(5).¹ An exception to the limitations period may arise when “an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section....” 5 U.S.C. § 552a(g)(5). In that case, a plaintiff may bring an action within two years of the discovery of the misrepresentation. Id.; see also Shearson v. Holder, 865 F.Supp.2d 850, 868–69 (N.D.Ohio 2011); Lockett, 259 Fed.Appx. at 786. The limitations period for a Privacy Act claim begins to run when the plaintiff knows or has reason to know (or “should have known”) of the alleged violation by a federal agency. See, e.g., Shearson v. Holder, 865 F.Supp.2d at 867;Lockett, 259 Fed.Appx. at 787.

2. Boyd's Claim

Boyd learned of the first disclosure incident in January, 2009, when his wife informed him that his VA doctor had disclosed Boyd's medication prescription to her in the fall of 2008. He knew about the second disclosure incident on the day it occurred, August 24, 2009, because he witnessed the alleged disclosure. Thus, the limitations periods for each cause of action would have ended in January, 2011 and on August 24, 2011 respectively.

Boyd argues, however, that his claim is not time-barred for three reasons. First, he states that the letter he received denying his administrative claim “clearly states that [he] had six months in which to file a suit in federal court.” Plaintiff's Response, Doc. 16 at 5. His federal lawsuit was in fact filed six months to the day of the receipt of his administrative claim denial letter (his denial letter is dated April 22, 2011; his federal suit was filed on October 21, 2011) ( see Doc. 18, Exh. 1 at 68; see also Plaintiff's Response, Doc. 16 at 5...