Halliburton v. United States Department of Labor Division of Energy Employees Occupational Illness Compensation et al
ORDER granting 18 Motion to Dismiss for Lack of Subject Matter Jurisdiction, by Magistrate Judge Michael J. Watanabe on 3/12/2018. Plaintiffs Complaint Docket No. 1 is DISMISSED WITHOUT PREJUDICE. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01045-MJW
JULIA MAE HALLIBURTON,
UNITED STATES DEPARTMENT OF LABOR DIVISION
OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION;
RACHEL P. LEITON, DIRECTOR OF DIVISION OF ENERGY
EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION,
DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
(DOCKET NO. 18)
Entered by Magistrate Judge Michael J. Watanabe
This case is before the Court on the consent of the parties to magistrate judge
jurisdiction. (Docket No. 12.) Now before the Court is Defendants’ Motion to Dismiss for
Lack of Subject Matter Jurisdiction (Docket No. 18), to which Plaintiff filed a response
(Docket No. 21), and Defendants filed a reply. (Docket No. 22.) The Court has carefully
considered the motion. The Court has taken judicial notice of the Court’s file and has
considered the applicable Federal Rules of Civil Procedure and case law. The Court
now being fully informed makes the following findings of fact, conclusions of law, and
Plaintiff’s husband was employed at the U.S. Department of Energy’s
Rocky Flats plant for over a decade, where he was exposed to toxic chemicals that
caused him to sustain various serious health conditions. (Docket No. 1 at ¶ 4.) Af ter his
death in 2012, Plaintiff filed series of claims for survivor benefits under the Energy
Employees Occupational Illness Compensation Program Act (the “EEOICPA”). (Id. at
¶¶ 5-6.) The Denver District Office of United States Department of Labor’s Division of
Energy Employees Occupational Illness Compensation (the “Department”)
recommended that Plaintiff’s original claim be denied, even though the Department’s
Contract Medical Consultant (“CMC”) opined that it was at least as likely than not that
Mr. Halliburton’s exposure to harmful toxic substances was a substantial factor in
aggravating, contributing to, or causing his health conditions. (Id. at ¶¶ 7-8.) The
Department’s Final Adjudication Board (“FAB”) rejected the recommendation and
remanded the case back to the Denver District Office for “additional development.” (Id.
at ¶ 9.) A second CMC report found that there was insufficient evidence to conclude
that Mr. Halliburton’s exposure to harmful toxins contributed to his health conditions
and/or his death, and Plaintiff’s claim was again denied. (Id. at ¶¶ 10-11.) After an
administrative hearing was held, the Department issued a final decision on September
22, 2015, denying Plaintiff’s claims for benefits under the EEOICPA. (Id. at ¶¶ 12-15.)
Plaintiff alleges that she was unable to file an action for administrative review of the
denial because, despite numerous written and oral requests, neither Plaintiff nor her
counsel ever received the claims file maintained by the Department. (Id. at ¶¶ 17-23.)
Plaintiff brings this action under the Privacy Act of 1974, 5 U.S.C. § 552a. She
alleges that the Department “intentionally and willfully” withheld the claims file, and
requests that the Court “compel the Department to produce an accurate copy of the
Claims File in its entirety forthwith; award Mrs. Halliburton compensatory damages,
reasonable attorneys fees and costs pursuant to 5 U.S.C. § 552a(g); [and] order the
statute of limitations for administrative review be equitably tolled.” (Id. at ¶¶ 29-30.)
On August 16, 2017, Defendants filed the subject motion. (Docket No. 18.)
Defendants argue that because the claim file has been produced, Plaintiff’s claim is
moot, and the Court lacks subject matter jurisdiction over this action. The Court agrees,
and dismisses Plaintiff’s case.
Lack of Subject Matter Jurisdiction
Under Rule 12(b)(1), a court may dismiss a complaint for “lack of jurisdiction
over the subject matter.” Fed. R. Civ. P. 12(b)(1). The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power &
Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Motions to dism iss pursuant to Rule
12(b)(1) take two forms. First, a party may attack the facial sufficiency of the complaint,
in which case the court must accept the allegations of the complaint as true. Holt v.
United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Second, if a party attacks the
factual assertions regarding subject matter jurisdiction through affidavits and other
documents, the Court may make its own findings of fact. See id. at 1003. A court’s
consideration of evidence outside the pleadings will not convert the motion to dismiss
to a motion for summary judgment under Rule 56. See id. Dismissal for lack of
jurisdiction must be without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213,
1216 (10th Cir. 2006).
Article III of the Constitution requires that the federal courts render decisions
only where there is a live case or controversy between parties. U.S. Const. art. III, § 2.
An “actual controversy must be extant at all stages of review, not merely at the time the
complaint is filed.” Alvarez v. Smith, 558 U.S. 87, 130 (2009). If circumstances change
during the pendency of the case that extinguish a party’s legally cognizable interest in
the action, the case is moot. Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 794
(10th Cir. 2009) (quotations omitted). Mootness is an issue of subject matter jurisdiction
which can be raised at any stage of the proceedings. Kennedy v. Lubar, 273 F.3d
1293, 1301-02 (10th Cir. 2001).
Mootness has two aspects: (i) whether the issues are live; and (ii) whether the
parties have a legally cognizable interest in the outcome. See Lucero v. Bureau of
Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011). T he critical question is
“whether granting a present determination of the issues offered will have some effect in
the real world.” Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th
Cir. 1999). When circumstances change such that the court is unable to grant effective
relief that has some effect in the real world, a live case or controversy no longer exists
and the case is, therefore, moot. See McKeen v. U.S. Forest Serv., 615 F.3d 1244,
1255 (10th Cir. 2010). Demonstrating that a case is moot is a heavy burden and lies
with the party alleging that the action is moot. See id.
There are exceptions to the mootness doctrine. Thus, even if an action appears
moot on its face, a court will refrain from dismissing the action when certain
circumstances are present. The four generally recognized exceptions are: (1) the
plaintiff continues to have secondary or collateral injuries even after resolution of the
primary injury; (2) the issue is deemed a wrong capable of repetition yet evading
review; (3) the defendant voluntarily ceases an alleged illegal practice, but is free to
resume it at any time; or (4) the action is a properly certified class action suit. See Riley
v. INS, 310 F.3d 1253, 1256-57 (10th Cir. 2002).
“The Privacy Act of 1974, codified in part at 5 U.S.C. § 552a, contains a
comprehensive and detailed set of requirements for the management of confidential
records held by Executive Branch agencies.” F.A.A. v. Cooper, 566 U.S. 284, 287
(2012). “The Privacy Act was enacted to promote governmental respect for the privacy
of citizens by requiring all departments and agencies of the executive branch and their
employees to observe certain constitutional rules in the computerization, collection,
management, use, and disclosure of personal information about individuals.” Wren v.
Harris, 675 F.2d 1144, 1145-46 (10th Cir. 1982) (citations and q uotation marks
omitted). Generally speaking, the Privacy Act allows individuals to gain access to
government records on them and to request correction of inaccurate records. Jordan v.
U.S. Dep’t of Justice, 668 F.3d 1188, 1190 (10th Cir. 2011).
There are four causes of action under the Privacy Act:
first, for an agency’s failure to review the denial of an
amendment or to attach a statement of disagreement, see 5
U.S.C. § 552a(g)(1)(A); second, for an agency’s denial of
access to records, see 5 U.S.C. § 552a(g)(1)(B); third, for
an agency’s failure to maintain its records with accuracy,
relevance, timeliness, and completeness to assure fairness
in determinations, see 5 U.S.C. § 552a(g)(1)(C); and fourth,
for an agency’s failure to comply with any other Privacy Act
provision which causes an “adverse effect on an individual,”
see 5 U.S.C. § 552a(g)(1)(D).
Gowan v. U.S. Dep’t of Air Force, 148 F.3d 1182, 1187 (10th Cir. 1998).
Plaintiff’s Complaint falls squarely under 5 U.S.C. § 552a(g)(1)(B), as it requests
that the Department produce a copy of the disputed records, i.e., the claims file.
“Privacy Act cases premised upon a failure to disclose records upon the subject
individual’s request are remedied solely by injunctive relief directing the agency to
make the required disclosure.” Jackson v. Shinseki, No. 10-CV-02596-MSK-CBS, 2011
WL 3568025, at *6 (D. Colo. Aug. 9, 2011) (citing 5 U.S.C. § 552a(g)(1)(B), (g)(3)(A)),
aff’d, 526 F. App’x 814 (10th Cir. 2013). See also Gowan, 148 F.3d at 1187-88 (“For
the first two causes of action the court may award injunctive relief, and, if the plaintiff
has ‘substantially prevailed,’ it may also award attorney’s fees and costs. For the third
and fourth causes of action, if the court determines the agency acted intentionally and
willfully, it may award damages, attorney’s fees, and costs.”) (citations omitted). Plaintiff
concedes that Defendants produced the claims file on or about July 6, 2017. (Docket
No. 21 at p. 4.) In light of this production of documents, a live case or controversy no
longer exists, and Plaintiff’s Privacy Act claim is moot. See Bloom v. Soc. Sec. Admin.,
72 Fed. Appx. 733, 734 (10th Cir. 2003) (affirming dismissal of the plaintiff’s Privacy
Act disclosure claim as moot because the government “had already turned over all
requested documents to [the plaintiff]”).
In her response, Plaintiff does not address or rebut the extensive authority cited
by Defendants that the production of documents moots a Privacy Act claim brought
under 552a(g)(1)(B). Instead, she asserts that she brought her claim under subsections
(g)(1)(B) and (g)(1)(D). Plaintiff argues that because her remedies under (g)(1)(D) are
not limited to injunctive relief, her claim is not mooted by the production of the claims
file. Plaintiff’s contention is unpersuasive. Section 552a(g)(1)(D) is a “catchall” provision
that provides that damages may be awarded when an agency “fails to comply with any
other provision of this section.” (emphasis added). The failure to respond to records
requests is explicitly contemplated by subsection (g)(1)(B), and the only available
remedy is injunctive relief. Allowing a plaintiff to bring a failure to disclose records claim
under the catchall provision, which allows monetary damages, would therefore
contravene the plain language the Privacy Act.
Moreover, although a plaintiff who has”substantially prevailed” in Privacy Act
action litigation may be entitled to an award attorney’s fees and costs, see 5 U.S.C. §
552a(g)(3)(B), this prospective recovery alone cannot save Plaintiff’s Privacy Act claim.
It is “‘indisputable that a claim for attorney’s fees is not part of the merits of the action
to which the fees pertain.’” Anderson v. U.S. Dep’t of Health & Human Servs., 3 F.3d
1383, 1385 (10th Cir. 1993) (quoting Budinich v. Becton Dickinson & Co., 486 U.S.
196, 200 (1988)). See also Lapka v. Chertoff, 517 F.3d 974, 987 (7th Cir. 2008) (“The
fees and costs issue is not enough to keep the merits of [the plaintiff’s] Privacy Act
Dismissing the action as moot, however, does not affect Plaintiff’s right to seek
attorney’s fees; “the fee request survives independently under the court’s equitable
jurisdiction.” Anderson, 3 F.3d at 1385. Nevertheless, the Plaintiff is not entitled to an
award of attorney’s fees. Plaintiff is required to show that she is both eligible for an
attorney’s fee award and that she is entitled to it. Gowan, 148 F.3d at 1195. To show
eligibility for the award, Plaintiff must show that she has “substantially prevailed” on her
claim, which means that her “lawsuit was reasonably necessary and substantially
caused the requested records to be released.” Id. If Plaintiff has “substantially
prevailed,” the Court must evaluate four factors to decide whether she is entitled to an
award: “‘(1) the benefit to the public, if any, derived from the case; (2) the commercial
benefit to the complainant; (3) the nature of the complainant’s interest in the records
sought; and (4) whether the government’s withholding of the records had a reasonable
basis in the law.’” Id. (quoting Anderson v. Secretary of Health and Human Serv., 80
F.3d 1500, 1504 (10th Cir.1996)).
Although Plaintiff may be considered the prevailing party because the disclosure
of the claims file was likely motivated by her Complaint, the Court does not find that
she is entitled to an award of attorney’s fees. Plaintiff’s suit was for her personal benefit
rather than for the benefit of the public interest and she gained no commercial benefit
from the disclosure of the records. Accordingly, her claim for attorney’s fees is
Finally, Plaintiff argues that the Court should apply equitable tolling to her claims
for benefits under the EEOICPA. However, that issue is not before the Court. Plaintiff’s
claim for relief in this case was brought pursuant to the Privacy Act. It is not an action
for administrative review of the Department’s denial of her claims for benefits. Plaintiff
is free to file such an action, and raise her equitable tolling argument in the appropriate
forum. This Court will not address it here.
Based upon the foregoing, it is hereby ORDERED that Defendants’ Motion to
Dismiss for Lack of Subject Matter Jurisdiction (Docket No. 18) is GRANTED and that
Plaintiff’s Complaint (Docket No. 1) is DISMISSED WITHOUT PREJUDICE.
BY THE COURT
Date: March 12, 2018
s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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