Joel Havemann v. Michael Astrue

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-01498-ELH. Copies to all parties and the district court/agency. [999163836].. [12-2453]

Download PDF
Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 1 of 17 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2453 JOEL HAVEMANN, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:10-cv-01498-ELH) Submitted: June 12, 2013 Decided: August 1, 2013 Before WILKINSON, KING, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Allan E. Feldman, SNIDER & ASSOCIATES, LLC, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Joseph R. Baldwin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 2 of 17 PER CURIAM: On March 10, 2010, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Appellant Joel Havemann filed six requests for information with the Social Security Administration (SSA). Per 5 U.S.C. § 552(a), the SSA was required “within 20 days after” receiving the request to (1) determine “whether to comply with [Havemann] of [the] request” [its] and determination Id. § 552(a)(6)(A)(i). (2) and “immediately the reasons notify therefor.” The SSA sent Havemann six letters, dated March 16 and 17, 2010, acknowledging receipt of his requests and inviting him to inquire regarding their status if he did not hear from them in thirty days. On June 8, 2010, Havemann filed a complaint in the United States District Court for the District of Maryland, (1) alleging that the SSA had failed to comply with the deadlines imposed by 5 U.S.C. § 552(a)(6)(A) and (2) seeking “injunctive relief compelling the release and disclosure of the requested agency records.” notifications determinations: to The SSA then provided the following Havemann regarding its disclosure On August 13, 2010, it sent Havemann a letter denying Requests I, II, and IV, and partially denying Request III; on September 10, 2010, it sent a letter asking for clarification regarding Request V; and on September 13, 2010, it sent a letter communicating that 2 it would partially grant Appeal: 12-2453 Doc: 23 Request VI. Filed: 08/01/2013 Pg: 3 of 17 Later it reversed some of these determinations, but ultimately, as detailed below, it complied only partially with Havemann’s requests. As to the information that it withheld, it moved for summary judgment, maintaining that “further disclosure would constitute a ‘clearly unwarranted privacy’ under 5 U.S.C. § 552(b)(6).” invasion of personal Havemann v. Astrue, No. 10-1498, 2012 WL 4378143, at *1 (D. Md. Sept. 24, 2012). The district court granted the motion, Havemann timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1331. I. Havemann requests in is a free-lance conjunction with journalist research and for expects to publish in the National Journal. a filed story his FOIA that he He is working with Ronald Cooley, a former SSA employee who is not a party to this case. According to Cooley, Havemann’s story (or stories) “will take an in-depth look at the workings inside the SSA and, to a lesser degree, the [Veteran’s Administration (VA)], as to their administration of certain of their benefit programs, and the relevant inter-agency interactions.” This appeal involves three of Havemann’s six requests—Requests I, II, and V. A. 3 Appeal: 12-2453 Doc: 23 In married Filed: 08/01/2013 Request Pg: 4 of 17 Havemann “where couples I, both sought information members . . . were regarding applying for and/or receiving Supplemental Security Income (SSI) benefits as an ‘aged, blind or disabled individual with an eligible spouse’ and where such benefits were denied or subsequently stopped because the couple also received a pension from the Department of Veterans Affairs.” Said differently, Havemann sought records with the following three characteristics: • • • The latest “type of master record” 1 is “aged, blind or disabled individual with eligible spouse”; The record shows a denial of SSI for excess income in 1990 or later, or shows that the individual and spouse had been receiving SSI that was stopped in 1990 or later, due to excess income; The record shows that one or both members of the couple received, or began receiving, a VA benefit (pension or compensation) based on need. Havemann’s purpose for this request is to “shed light on the SSA’s handling of a regulatory policy concerning war veterans and their spouses who receive a VA pension . . . and also file for SSI benefits.” The SSA released some of the information requested. Below, we delineate the requested versus released information in the same manner as the district court. 1 The left column shows the A “master record” is a code used to indicate relevant characteristics of the individual represented by that record. 4 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 5 of 17 information requested and the right column indicates to what extent the information was released. FOIA Request I (Veteran Couple Request) Data Requested Data Released Social Security Number (SSN) Alternative Identifier or alternative identifier Current or last shown “Master Yes Record” Full Name No Address with 9-digit zip code No (only initial 5 digits of zip code released) SSI application date No Code for most recent state and No (only state code released) county of residence Current SSI status Yes Reason for SSI denial Yes Denial Date Yes Date of status change due to Yes excess income Disability Payment Code 2 Yes Ledger Account File (LAF) Code 3 Yes Date of Birth No (only year released) Earned Income Yes Unearned Income Yes Havemann challenges the SSA’s withholding of the month and day of birth, and the SSI application date. B. 2 The “disability payment disability benefit awarded. 3 code” denotes the type of The “ledger account file code” denotes the current payment status. 5 Appeal: 12-2453 Doc: 23 In Filed: 08/01/2013 Request Pg: 6 of 17 II, sought Havemann information regarding individuals who were over age sixty-five, who were receiving or entitled to SSI payments, and whose “most recent SSI record show[ed] no current receipt of [Social Security] benefits.” As to these individuals, Havemann also requested data indicating their date of enrollment in Medicare Part A and other Medicare information. Here, Havemann’s purpose is “to shed light on the SSA’s handling of referrals of SSI recipient[s] for Premium Part A Medicare . . . through Beneficiary] Program.” the QMB [Qualified Medicare The SSA released some of the data that Havemann requested, as shown below: FOIA Request II (QMB Medicare Request) Data Requested Data Released SSN or alternative identifier Alternative Identifier Citizenship/alien status Yes Current or last shown “Master Yes Record” Address with 9-digit zip code No (only initial 5 digits of zip code released) SSI application date No Code for most recent state and No (only state code county of residence released) Individual Recipient Yes Identification Code Current Payment Status Code Yes Beneficiary Identification Code Yes (BIC) Date of Birth No (only year released) LAF Code Yes Most recent federal SSI amount Yes payable Most recent federally administered Yes SSI state amount payable Hospital insurance enrollment and Yes supplemental medical insurance 6 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 7 of 17 information Havemann challenges the SSA’s withholding of the month and day of birth. C. In FOIA Request V, Havemann sought information regarding deceased “primaries” (i.e., individuals whose SSN number is recorded in the Master Beneficiary Record and on whose earnings the record record, is based) including the and the beneficiaries primary. on their purpose for this Havemann’s listed request is “to assess and publicize how well the government is administering Benefits.” Title 38 of the United States Code, Veterans’ The chart below delineates the information that the SSA released. FOIA Request V (MBR Request) Data Requested Data Released SSN of the deceased primary record No holder BIC Yes Payment Identification Code Yes Sex of Beneficiary Yes SSI entitlement and termination Yes dates Code for most recent state and No (only state released) county of residence Primary Insurance Amount (PIA) Yes Month and year of PIA Yes 9-digit zip code No Date of birth No (only year released) LAF code Yes Monthly Benefit Amount (MBA) No Monthly Benefit Payment (MBP) No 7 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 8 of 17 SSI benefit type SSI status code Havemann Yes Yes challenges the withholding of the month and day of birth, the MBA, the MBP, the county code, and the zip code. II. Although our standard of review for grants of summary judgment generally is de novo, Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011), where FOIA is involved, our review is limited to determining “(1) [whether] the district court had an adequate factual basis for the decision rendered and (2) whether upon this basis the decision reached is clearly erroneous.” Spannaus v. Dept. of Justice, 813 F.2d 1285, 1288 (4th Cir. 1987) (quoting Willard v. Internal Revenue Serv., 776 F.2d 100, 104 (4th Cir. 1985)) (collecting cases)) (internal quotation marks omitted). A. FOIA was enacted in 1967 as a means of “facilitating public access to [g]overnment documents.” of the Administrative Procedure Its predecessor, Section 3 Act (APA), 5 U.S.C. § 1002 (1964), ostensibly existed for the same purpose but, as time passed, was viewed disclosure statute.” “more as a withholding statute than a Dept. of Air Force v. Rose, 425 U.S. 352, 8 Appeal: 12-2453 360 Doc: 23 (1976) (internal Filed: 08/01/2013 (quoting EPA quotation v. marks Pg: 9 of 17 Mink, 410 U.S. omitted). 73, 79 “Congress (1973)) therefore structured a revision whose basic purpose reflected ‘a general philosophy of full agency disclosure unless information exempted under clearly delineated statutory language.’” 360–61 (quoting (1965)). But S. Rep. No. Congress’s 813, desire 89th “to is Id. at Cong. 1st Sess., 3 pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny,” id. at 361 (quoting Rose v. Dept. of Air Force, 495 F.2d 261, 263 (2d Cir. 1974)) (internal quotation marks omitted), did not produce a unfettered access to agency records. statute that provides Rather, in its current form, FOIA reflects Congress’s intent that the public’s right to information be balanced against other competing interests. issue here is the competing interest of privacy: § 552(b)(6) (Exemption 6), an agency can refuse At Per 5 U.S.C. to disclose “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” B. The parties do not dispute that Exemption 6 applies to the data at issue here. See U.S. Dept. of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (“[W]e do not think that Congress meant 9 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 10 of 17 to limit Exemption 6 to a narrow class of files containing only a discrete kind of personal information. Rather ‘[t]he exemption [was] intended to cover detailed [g]overnment records on an individual which can be identified as applying to that individual.’” (quoting (second H.R. U.S.C.C.A.N. disclosing Rep. and No. 2428). this third 1497 alterations (1966), Accordingly, data would invasion of personal privacy.” original) reprinted we “constitute in in determine a clearly 1966 whether unwarranted 5 U.S.C. § 552(b)(6); see also Core v. U.S. Postal Serv., 730 F.2d 946, 947 (4th Cir. 1984) (“If the files fall within th[e] definition [of similar files,] the remaining issue is whether disclosure would constitute a clearly unwarranted invasion of personal privacy.”). Making “[t]his determination requires ‘a balancing of interest between the protection unnecessary of public an individual’s scrutiny, and private the affairs preservation public’s right to government information.’” of from the Id. at 948 (quoting S. Rep. No. 813). 1. We think it obvious that the beneficiaries implicated by Havemann’s requests have a privacy interest in the information that the SSA has collected about them. Individuals have a right to control dissemination of information about their person, even 10 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 11 of 17 if that “information may [already] be available to the public in some form.” U.S. Dept. of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 500 (1994); see also U.S. Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763–64 (1989) (recognizing that the concept of privacy “encompass[es] the individual’s control of information concerning his or her person” and information” that is “scattered different disclosure than of . . . bits wholesale of dissemination of individuals’ profiles that are compiled by the government and not otherwise “freely available” to the public). The more pressing question is whether release of the withheld data would enable identification of specific individuals and thus compromise beneficiaries’ privacy. Specific individuals obviously are identifiable through data that is exclusive to their person, such as a name, address, or social security identifier.” number. Such data is termed a “unique At issue here are elements of data that are not unique identifiers, but that, according to the SSA, function as unique identifiers available because information to they can identify be combined specific with other individuals. The district court agreed with the SSA’s categorization of this data and its decision to deny disclosure because of the possibility that the data could be used to single out certain beneficiaries. We find the district court’s 11 decision sound. The record Appeal: 12-2453 Doc: 23 provided to Filed: 08/01/2013 this Court Pg: 12 of 17 demonstrates that the SSA thoroughly analyzed and demonstrated the methods through which the withheld data could lead to the identification of specific individuals. The district court relied on the SSA’s analysis, and we can ascertain no reason why it should not have done so. Moreover, Havemann’s arguments to the contrary fall short because they focus on whether singular pieces of withheld data (e.g., month and day of birth, SSI application date, etc.) could lead to the identification of individuals rather than on whether those pieces of data working in combination with other information could assist in such identification. Havemann faults the SSA’s rationale for withholding this data, charging that it is speculative: “[T]he Agency withheld the date of birth from disclosure based on the premise that personal information could lead to identification of a living individual. However[,] the cases dealing with this issue hold that possibility of identification is not a sound bas[is] for nondisclosure.” But Havemann’s argument lacks merit. It is true that an agency cannot withhold information based on a “mere possibilit[y]” that an individual’s privacy will be invaded. See Department of Air Force v. Rose, 425 U.S. 352, 378 (1976) (“The legislative history is clear that Exemption 6 was directed at threats to possibilities.”). privacy interest more palpable than mere But it can withhold data if it demonstrates a 12 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 13 of 17 likelihood that releasing the information would connect private records to specific individuals. See Nat’l Ass’n of Retired Fed. Emp., 879 F.2d 873, 878 (D.C. Cir. 1989) (“Where there is a substantial probability that disclosure will cause an interference with personal privacy, it matters not that there may be two or three links in the causal chain. The concern . . . is not . . . with the number of steps that must be taken to get to the threatened effect; rather, [it is on] the likelihood that the effect will ever come to pass.”). As noted above, the SSA conducted a thorough and careful demonstration of the effect that releasing the disputed data could have. such, the disclosure district of the court data did would not err implicate in the concluding As that beneficiaries’ privacy interests. 2. Having concluded that beneficiaries’ privacy interests are at stake, we evaluate whether those interests are outweighed by the public’s interest in disclosure. “the only relevant public interest Per the Supreme Court, in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’” U.S. Dept. of Defense v. Fed. Labor Rel. 13 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 Pg: 14 of 17 Auth., 510 U.S. 487, 497 (1994) (quoting Reporters Comm., 489 U.S. at 773). Havemann’s stated intent to evaluate the SSA’s administration of various benefit programs fits within FOIA’s goal of “shed[ding] statutory duties.” light on an agency’s performance of its But he fails to satisfactorily articulate how the withheld data aids his pursuits. In his brief to this Court, he avers that “to properly inform the public about SSA’s operations and associated failures, [he] needs records combinations of records that pertain to individuals.” and But the information that the SSA has already disclosed does relate to individuals, and Havemann does not indicate why it is insufficient. Havemann further maintains that “dates of birth are to essential categories of identification benefits.” As of noted eligibility by the for district certain court, however, the SSA has explained that Havemann can achieve nearly 100% accuracy on eligibility determinations with access simply to the year of birth. Thus, it is unclear how access to the month and day of beneficiaries’ birth will assist Havemann in any significant way. Having reviewed the district court’s decision and Havenmann’s arguments, we are convinced that any interest the public may have in the withheld data is sufficiently outweighed by the privacy interests that 14 would be compromised by such Appeal: 12-2453 Doc: 23 disclosure. Filed: 08/01/2013 Pg: 15 of 17 The public’s interest in disclosure of the withheld data is negligible at best. The SSA has provided significant details for more than 140 million individuals, and such details appear sufficient to allow Havemann to conduct his analysis. To the extent that they are lacking, we do not believe that the marginal gains ostensibly possible through further disclosure are worth the burdens that will likely result to beneficiaries’ privacy interests. court “had an Accordingly, we conclude that the district adequate rendered” and that its Spannaus, 813 F.2d at factual basis decision 1288. for the was not clearly Thus, we decision affirm [it] erroneous. the district court’s grant of summary judgment to the SSA. III. Havemann contends that he is entitled to attorney’s fees and costs motion to and this that the effect. district Per 5 court U.S.C. erred in denying § 552(a)(4)(E), his “[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” A complainant “substantially prevail[s]” in a case when he proves that “(1) his filing of the FOIA action was necessary to obtain the information sought and (2) the action had a ‘substantial causative effect’ on the ultimate receipt of 15 Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 that information.” (9th Cir. prevail[]” motion. 1991). in his Pg: 16 of 17 Long v. U.S. I.R.S., 932 F.2d 1309, 1313 Here, Havemann opposition to did the not SSA’s “substantially summary judgment Thus, he is not entitled to attorney’s fees connected with that endeavor. He appears to argue, however, that he is entitled to the fees associated with filing his complaint on June 8, 2010, because, as noted above, although the SSA acknowledged his requests for information within the timeframe outlined in section 552(a)(6)(A), it failed to communicate its determinations regarding disclosure within that timeframe. The filing of the complaint thus arguably “was necessary to obtain the information [Havemann] sought” and “had a ‘substantial causative effect’ on the ultimate receipt of [the] information” that the SSA did disclose. argument further, however, Id. We decline to explore this because, as the SSA points out, Havemann failed to comply with the requirements of Federal Rule of Civil Procedure 54 regarding claims for attorney’s fees. Rule 54 requires that “[a] claim for attorney’s fees . . . be made by motion”; “be filed no later than 14 days after the entry of judgment”; “specify the judgment and the statute, rule, or other grounds entitling the movant to the award”; “state the amount sought or provide a fair estimate of it”; and “disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.” 16 Fed. R. Civ. P. Appeal: 12-2453 Doc: 23 Filed: 08/01/2013 54(d)(2)(A)-(B). Pg: 17 of 17 Havemann made no such motion. We recognize that in his “Memorandum of Points and Authorities in Opposition to Defendant’s Motion for Summary Judgment,” Havemann argued that he was entitled to attorney’s fees because the SSA did not provide a substantive response to his request until after he filed his complaint in this action. But even if we reckon this argument sufficient to comply with Rule 54’s requirement that “[a] claim for attorney’s fees . . . be made by motion,” Fed. R. Civ. P. 54(d)(2)(A), we cannot ignore Havemann’s failure to “state the amount sought or provide a fair estimate of it,” Fed. R. Civ. P. 54(d)(2)(B)(iii). Because Havemann failed to make a proper plea for attorney’s fees before the district court, the district court did not err in denying his request. IV. For the reasons stated above, we affirm the judgment of the district facts court. and materials legal before We dispense with oral argument contentions are adequately the and argument Court because presented would not the in the aid the decisional process. AFFIRMED 17

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?