Drennon-Gala v. Mukasey et al

Filing 59

ORDER and OPINION GRANTING dft's 47 Motion for Summary Judgment; GRANTING dft's 53 Motion for Extension of Time and GRANTING dft's 55 Motion for Leave to File. Signed by Judge Julie E. Carnes on 3/30/11. (jlm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

~,. CIiAM8EI'tS
U.!I.D.C. AtlMlo

MAR 302011
DON DRENNON-GALA, Plaintiff,
1
;

1

·

By'//
/~

I
1
;

CIVIL ACTION NO.(;

v.
ERIC HOLDER, U.S. ATTORNEY GENERAL, U. S. DEPARTt1ENT OF JUSTICE, FEDERAL BUREAU OF PRISONS,

Il:08-CV-3210-JEC

,

Defendants.

ORDER & OI?INION

This case is presently before the Court on defendants' Motion for Summary Judgment [47], defendants' Motion for Extension of Time to File Reply Brief [53], and plaintiff's Motion for Leave to File Sur-Reply [55]. The Court has reviewed the record and the arguments for the reasons set out below, for Summary Judgment [47] concludes that

of the parties and, defendants' defendants' Motion

should be GRANTED,

Motion for Extension of Time to File Reply Brief [53]

should be GRANTED, and plaintiff's Motion for Leave to File Sur-Reply [55] should be GRANTED.

BACKGROUND

This case involves an alleged violation of plaintiff's privacy rights. (Compl. [1].) Plaintiff is a former employee of the Federal

Bureau of Prisons ("DOJ") . Facts") (Defs.'

("BOP"), a division of the Department of Justice Statement of Material Undisputed Facts Whi ("Defs.'

[47] at 'll'll 1-2.)

he was employed by the BOP, plaintiff

was the subject of two internal investigations. During the course of those investigations,

(Id. at i i 15, 35.)
that

plaintiff claims

private information from his Office of Worker's Compensation ("OWC") file was improperly released. (Compl.
[1).)

The first investigation was conducted by Special Agent Edward Schott, on behalf of the BOP's Office of Internal Affairs. Facts [47J at
~

(Defs.'

15.)

The investigation concerned time and attendance

irregularities, and a potential conflict of interest, arising out of plaintiff's employment as a paralegal in an employment discrimination case brought by another BOP employee.' with the investigation,

(Id.
Agent

at

'll'll

15-16.)

In

conjunction

Schott

requested

plaintiff's OWC file, Institute worked. 2 ("FCI")

which was housed at the Federal Correctional Wisconsin, where plaintiff formerly

in Oxford, 17.)

(Id. at i

The attorney who handled the discrimination case was Richard Samms, plaintiff's counsel in this action. (Defs.' Facts ,47J at ~~ 15-16.) Plaintiff's OWC file was generated as a result of his prior worker's compensation claim. See Donney T. Drennon-Gala v. Dep't of Justice, Bureau of Prisons, Fed. Carr. Inst., Oxford, WI, No. 04
2

2

Agent Schott's request was directed to Mary Rubel, an Employee Services Manager at Services Manager, Ms. the FCI.

(Id.

at

'll'lI 6-7.)

As

an Employee

Rubel is required to assist agents from the

BOP's Office of Internal Affairs with investigations that may result in disciplinary action against a BOP employee. when Ms. Rubel received Agent Schott's

(Id.)

Consequently, she obtained

request,

plaintiff's OWC file and forwarded it to Schott. at 'll'J[ 19-20, 24.)

(Defs.' Facts [47j

The records in the file led Schott to conclude

that the allegations against plaintiff could not be sustained. at'll 27.)

(Id.

The second investigation was conducted by Special Agent Ronald Gossard, on behalf of the DOJ's Office of Inspector General. 'll 35.)

(Id. at

Agent Gossard's investigation concerned plaintiff's potential

misuse of position and credentials during incidents that occurred in June, 2006.

(Id. at 'll'll 34-35.)
Agent Schott

At some point during Agent Gossard's Gossard to of his belief his that

investigation, plaintiff had

informed

falsified

information at 'll'll 36-40.)

support

worker's

compensation claim. plaintiff's

(Id.

Agent Schott then shared

owe

file with Gossard to assist in Gossard's independent (Defs.' Facts [47] at 'J['J[ 42-43.)

investigation into the matter. According to plaintiff, subsequently disclosed his

either Agent Schott or Agent Gossard OWC file to members of the public,

2190, 2005 WL 1352453. The claim culminated in a final order that was issued by the U.S. Department of Labor ("DOL") on April 26, 2005. Id.
3

specifically,

individuals

at

the

Chattanooga

Police

Department.

(Defs.' Mot. for Summ. J. [47) at Ex. 2, p. 5-6.) allegation is a sign that was posted in the

The basis for this Chattanooga Police

Department instructing employees not to allow plaintiff into secure areas of the building. The sign stated:

Please do not let a DON DRENNAN GALA go upstairs. He will flash a badge as if he is a Federal Agent, but he is not. He has some psychiatric problems. He came in today to see Shelley Parker and was escorted out of the building by two of the Captains. 6/30/06 Pat Gray per: Shelley Parker.

(Id. at Ex. 10.)
Shelley Parker is the individual responsible for posting the sign. (Defs.' Facts
[47J

at

~

62.)

Ms.

Parker directed that the

sign be posted in response to an incident in which plaintiff refused to leave the building after being asked to do so. During the incident, plaintiff stated that:

(Id. at

~~

62-63.)

nas a federal officer,

I have the right to come into the building and talk to whomever I want to," and cited 5 U.S.C. § 8331(20) (a). cited by plaintiff concerns pensions.

(Id. at

~

64.)

The law

See 5 U.S.C. § 8331(20) (a).

Plaintiff also claims that defendants disclosed the contents of his OWC file to Dr. John Vanyur and Edward Wolahan. 3 Summ.
J.

(Defs.' Mot. for

[47)

at

Ex.

2,

p. 3. )

Plaintiff's allegations concerning

these disclosures are based on a conversation that plaintiff had with

3 During the relevant time period, Dr. Vanyur was employed by the BOP as an Assistant Director of Correctional Programs. (Vanyur Decl. [47) at ~ 1.) Mr. Wolahan was employed by the BOP as a Correctional Programs Specialist. (Wolahan Decl. [47J at ~ 1.)

4

Mr. Wolahan sometime in October, 2007.

(Pl.'s Declo

[50] at

~

60.)

According to plaintiff, Mr. Wolahan asked during this conversation if plaintiff was "okay."
(Id.)

When plaintiff inquired as to why he

was asking, Mr. Wolahan relayed to plaintiff that Dr. vanyur had told him that plaintiff was no longer working at Fer as a result of some psychological problems.
( Id. )

Mr.

Wolahan,

however,

denies ever (Wolahan

asking, or being told, about plaintiff's mental condition. Declo [47] at
'll'll

3-4.)

Nevertheless,

from

this

conversation,

plaintiff surmises that "someone" must have released his medical records to Dr. John Vanyur, and that Dr. Vanyur in turn disclosed the information to Mr. Wolahan. (Pl.' s Declo [50] at
~

60.)

In sum, plaintiff cites the following disclosures in support of his action against defendants:
1)

The safety manager at Fer records to Mary Rubel.

plaintiff's OWC

2) 3)
4)

Ms. Rubel released the owe records to Agent Schott. Agent Schott Gossard. provided the owe records to Agent from

"SoIT.eone" released medical information plaintiff's owe file to Dr. John Vanyur.

5) 6)

Dr. Vanyur made statements to Edward Wolahan that came from the OWC leo "Someone" released information from the owe file to the Chattanooga Police Department. [50] and Defs.' Facts [47J.) According to plaintiff,

(Pl.'s Declo

the above disclosures were made in violation of the Privacy Act, 5
U.S.C.
§

552a (g) (4),

Rehabilitation Act
5

(the "Rehab Act") ,

42

U.S.C. (CompI.

§

12112(d), and Title VII of the Civil Rights Act of 1964. [1].)

Defendants have filed a motion for summary judgment, which is presently before the Court. 4 (Defs.' Mot. for Summ.
J.
[47J.)

Defendants concede that they made the first three disclosures, but argue that the disclosures did not violate the law. at 1-6.) (Defs.' Sr. [47 1

As to the latter three disclosures, defendants argue that

(1) there is no evidence that the disclosures occurred and (2) even assuming that they occurred, the disclosures did not violate the law.
(Id.

at 7-14.)
DISCUSSION

I.

Summary Judgment Standard

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56 (c).
A

fact's materiality is
Anderson v. Liberty

determined by the controlling substantive law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

An issue is genuine when the

evidence is such that a reasonable jury could return a verdict for the nonmovant.
Id.

at 249-50.

The parties have also filed related motions for an extension of time and to file a sur-reply. (Defs.' Mot. for an Enlargement of Time [53J and PI.' s Mot. for Leave to File Sur-Reply [55).) The Court GRANTS both of those motions.
6

Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure

mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. 322 (1986). any material Celotex Corp. v. Catrett, 477 U.S. 317,

In such a situation, there can be no genuine issue as to fact, as a complete failure of proof concerning an

essential element of the non-moving party's case necessarily renders all other facts immaterial. 56(c)). The movant bears the initial responsibility of asserting the basis for his motion.
Id. Id.

at 322-23

(quoting F"D. R. Crv. P.

at

323.

However,

the movant

is not

required to negate his opponent's claim. his burden by merely "'showing' --that

The movant may discharge is, pointing out to the

district court--that there is an absence of evidence to support the non-moving party's case."
Id. at 325.

After the movant has carried

his burden, the non-moving party is then required to "go beyond the pleading" and present competent evidence designating "specific facts showing that there is a genuine issue for trial."
Id. at 324.

vlhile

the court is to view all evidence and factual inferences in a light most favorable to the non-moving party, Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988), "the mere existence of some

7

alleged

factual

dispute

between the motion

parties for

will

not

defeat

an the
n

otherwise

properly

supported

summary

judgment;

requirement is that there be nO genuine issue of material fact. Anderson, 477 U.S. at 247-48 (1986) (emphasis in original).

II.

Plaintiff's Title VII

Cla~

The basis of plaintiff's Title VII claim is unclear. various statements in plaintiff's declaration, that the claim is for retaliation.

Based on

the Court presumes [50] at 'll 47.)

(See PI.' s Decl.

In order to make out a prima facie case of retaliation, plaintiff must show that: VII, (1) he engaged in activity protected under Title

(2) he suffered an adverse employment action, and (3) there was
Crawford v. Carroll, 529 F.3d

a causal connection between the two. 961, 970 (11th Cir. 2008).

Defendants argue that plaintiff cannot

demonstrate any of the required elements of his prima facie case. (Defs.' Br. [47] at 24-25.) Defendants further contend that there is

a legitimate reason to justify any adverse employment action that plaintiff claims to have suffered.
See Sullivan
v.

Nat'l

R.R.

Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999).

Plaintiff does not respond to defendants' arguments concerning his Title VII claim. the (Pl.'s issue of Br. [50;.) VII Indeed, plaintiff's
(Id. )

pleadings

ignore

Title

altogether.

Accordingly,

the Court concludes that plaintiff has abandoned his

Title VII claim, and GRANTS defendants' motion for summary judgment on the claim.
See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
8

587, 599 (11th Cir. 1995) ("'I'here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Rather, the onus is upon

the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.") and

Otu v. Papa John's USA, Inc.,
2005) (Thrash,

400 F. Supp. 2d 1315, 1328 (t<.D. Ga. failure to respond to Defendant's

J.) (" [p]laintiff' s

legal arguments relating to a claim alone constitutes abandonment of the claim").
III. Plaintiff's Privacy Act
Cla~

In

order must

to

prevail that:

on

his (1)

claim the

under

the

Privacy

Act, or

plaintiff

show

government

intentionally

willfully failed to properly maintain the records at issue, failure proximately caused an adverse determination, plaintiff suffered actual damages as a result. and

(2) which (3) the

Perry v. Bureau of Defendants contend

Prisons,

371 F.3d :304, 1305 (11th Cir. 2004).

that plaintiff has failed to present any evidence that the alleged disclosures were "intentional" or "willful" (Defs.' or Br. that [47] he suffered

actual damages as a result of them.

at 14-19.)

Defendants argue further that the disclosures were either authorized under an exception to the Privacy Act, did not occur, or concerned information already known to the public.
(Id. )

9

A.

Ev:i.dence of!

"Intentiona~"

or

"Wi~~f!u~" Vio~ations

The

Privacy Act

does

not

impose

strict

liability for

every

"technical" violation of its provisions. 181, 189 (D.C. Cir. 1984).

Albright v. U.S., 732 F.2d

See also Perry, 371 F.3d at 1305.

By its

plain terms, the Act requires a showing of "willful" or "intentional" conduct. 5 U.S.C. § 552a(g) (4). This standard requires more than
Edison v. Dep't of the

mere negligence, or even gross negligence.
Army,

672 F.2d 840, 846 (11th Cir. 1982).

Rather, to recover under

the Privacy Act, disregarded" his

plaintiff must show that defendants "flagrantly rights under the Act, or that they acted in a

"patently egregious" manner such that anyone should have known that their conduct was unlawful. 1242 (D.C. Cir. 1987).
Laningham V. U.S. Navy, 813 F.2d 1236,

See also Albright, 732 F.2d at 189.

Plaintiff does not present any evidence, or offer any argument, to suggest that any of the government agents or employees involved in this case acted "willfullyfl or with a "flagrant disregard" for his privacy rights. (Pl.'s Br.
[SOl.)

In fact, plaintiff ignores the After a careful, independent

element of intent altogether. review of the record, element of

(Id. )

the Court finds no evidence to support this claim. Accordingly, the Court
GRANTS

plaintiff's

defendants' motion for summary judgment as to plaintiff's Privacy Act claim.

10

B.

Evidence of Actual Damages
there is no

Even assuming that plaintiff could show intent, evidence that plaintiff suffered actual damages.

In the Eleventh
Fanin v.

Circuit, actual damages requires proof of pecuniary losses.

u.s.

Dep't of Veterans Affairs, 572 F.3d 868, 872 (11th Cir. 2009).

"Pecuniary losses" do not include "generalized mental injuries, loss of reputation,
Id. at 872-73.

embarrassment or other non-quantifiable injuries."

Again, plaintiff does not respond to defendants' argument that he has failed to establish the damages element of his Privacy Act claim. (Pl.'s Br. [50].) Moreover, plaintiff admitted in discovery

that he has no information to SUbstantiate his claim to have suffered lost wages or other pecuniary losses as a disclosures. Under binding (Defs.' Eleventh Mot. for Summ.
J.

result of the alleged at Ex. 3, p. 9-11.) claims of

[47]

Circuit

precedent,

plaintiff's

"mental distress, embarrassment, shame, are barred from consideration. this additional reason, the

[and] damage to reputation" For for

See Panin, 572 F.3d at 872-73.

Court

GRANTS

defendants'

motion

summary judgment as to plaintiff's Privacy Act claim.

c.

The Alleged Disclosures

In addition to the above fundamental defects, it is clear that the alleged disclosures do not support any claim for relief under the Pri vacy Act. As discussed below, the internal disclosures were (1) there is

lawful under the Act.

As to the public di sclosures,
11

insufficient evidence to permit a occurred likewise summary and (2) assuming The under Court the the

reasonable inference that they occurred, they motion were for

disclosures
GRANTS

lawful. judgment

thus

defendants' on these

Privacy

Act

additional,

alternative grounds. 1. The Internal Disclosures contains the several exceptions of certain to its general and

Privacy Act against

prohibition information.

disclosure

documents

See 5 U.S.C. § 552a(b).

One such exception allows for

the disclosure of records "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."

Id. at § 552a(b) (1).

The "need to

know" exception authorizes disclosure where the records in question are necessary to make disciplinary decisions regarding the individual to whom the record pertains. 671 F.2d 402, 410 (10th

Id.

See also Hernandez v. Alexander,
1982) (applying the need to :mow

Cir.

exception).

The Court agrees with defendants that the disclosures to

Ms. Rubel, Agent Schott, and Agent Gossard fall under the need to "now exception. Plaintiff investigations concedes by Agents that he was and the subject when of lawful internal

Schott

Gossard
~~

the

disclosures occurred. further, that the

(Defs.' Facts [47] at under

15, 35.)

He admits, directly

allegations

investigation

were

related to misconduct

involving his worker's

compensation claim.

12

(Id.l

The relevance of plaintiff's OWC file to both investigations
(Id. at 'lI 27.)

is not in dispute. led Schott

Indeed, the records in the file against plaintiff.
(Id. )

to dismiss

the allegations

Under the circumstances, the need to know exception to the Privacy Act clearly appl 533-34 (6th Cir.
See Mount v. U.S. Postal Serv.,

79 F.3d 531, for

1996) (when

individuals

who

are

responsible

employment and/or disciplinary decisions have at least an arguable need to access medical records, disclosure violate the Privacy Act). Plaintiff argues that the need to know exception is not as the records does not

applicable because the DOL maintains the records in question, opposed to defendants. directly (CompL contradicts [1) at 'lI 6.) the (PL's Br. [50) at 9-10.) in

This argument complaint.

allegations

plaintiff's

Moreover,

if the Court were to accept this element of plaintiff's to properly maintain the If indeed it was OWC file, then

argument, it would negate another prima fa Privacy Act claim: record in question. the DOL that that the agency fail

See Perry, 371 F.3d at 1305.

improperly

disclosed

pIa

ff's

plaintiff should have filed suit against the DOL, not the BOP and the DOJ.
See also Hernandez,

671 F.2d at 410

("[ilf the records were such

maintained by

[another agency]

and disclosed by it,

actions could not be the basis for liability here since plaintiff did not bring his civil action against that agency").

13

2.

Additional Disclosures

While the above internal disclosures are admitted, defendants contend that there is no evidence to support plaintiff's allegations that defendants disclosed any information to the Chattanooga Police Department, Dr. Vanyur, or Mr. Wolahan. Further, defendants (Defs.' Br.
[47]

at 7-11.)

argue that because the

information allegedly

disclosed was already public, necessarily fail. on both points. (a) Plaintiff's

plaintiff's Privacy Act claim must The Court agrees with defendants

(Id. at 11-14.)

There is no evidence of a P4blic disclosure. allegation of an improper disclosure to the

Chattanooga Police Department is premised entirely on the fact that the police department posted a sign indicating that plaintiff should not be allowed access to secure areas of the building because he had previously demanded access on the false premise that he was a federal agent and because Mot. by he was believed to have
J.
[47]

psychiatric problems. 5-6.) The sign was in which

(Defs.' posted

for Summ.

at Ex. response

2, to

p. an

Shelley

Parker

in

incident

plaintiff refused to leave the building when asked to do so and cited federal law that he claimed (incorrectly) gave him the authority to stay. (Defs.' Facts
[47]

at

srsr

62-64.)

Plaintiff denies this (See

account, and claims that he did not delay leaving when asked. Pl.'s Br. [50] at 15-16.)

Consequently, plaintiff presumes that the

only thing that could have led the police to conclude that he had

14

~psychiatric

problems" was the disclosure of his OWC file.

lId. )

As a result of plaintiff's inadequate responses to defendants' statement of material facts, the Court must accept as true

defendants' account of why the Chattanooga Police Department posted the sign concerning plaintiff. case, the evidence precludes
See

L.R.

56.1(B) (2), NDGa. inference

In any any

a

reasonable

that

disclosure to the Chattanooga Police Department occurred.

At the

earliest, the disclosures at issue began in August, 2006, when Ms. Rubel first sent plaintiff's OWC file to Agent Schott. [47] at
~~

(Defs.' Facts

19-20.)

However, the sign concerning plaintiff was posted (Defs.' Mot. for Summ.

by the Chattanooga police on June, 30, 2006. J. [47] at Ex. 10.)

Thus, the sign could not possibly be linked to

any disclosure by Schott or Gossard. As for the disclosures to Dr. Vanyur and Mr. Wolahan,

plaintiff's allegations are based entirely on a vague account of a conversation in October, 2007, during which Mr. Wolahan allegedly Vanyur had (Pl.' s

asked plaintiff if he was

"okay" and stated that Dr.

indicated that plaintiff was having psychological problems. Decl. [50].)

Based on this conversation, plaintiff surmises that

"someone" released his medical records to Dr. Vanyur, and that Dr. Vanyur disclosed the information to Mr. Wolahan.
(Id. )

However,

plaintiff does not offer any specifics concerning who might have disclosed the
Walker v. U.S.,

information or when the disclosure occurred.

See

1998 WL 637360 at *13 (E.D. La. 1998) (dismissing a

15

Privacy Act

claim where

the

plaintiff

failed

to

state when Nor does

the he

information was

disseminated or who disclosed it).

present any evidence to rebut both Dr.

Vanyur and Mr.

Wolahan's

testimony that the alleged disclosures did not take place. Wolahan Decl. [47] at , 4 and Vanyur Decl. [47] at , 3.)

(See

Plaintiff argues that he does not need direct evidence of a Privacy Act violation, as the circumstantial evidence in this case is sufficient. (Plo' s Br. [50 J . ) In support of this argument, (D.C. Cir.

plaintiff cites Doe v. 2003). fact as

U.S.

Postal Serv.,

317 F.3d 339

In Doe, the Court found that there was a genuine dispute of to whether the plaintiff's supervisor had disclosed the
Id. at 342.

plaintiff's HIV status to his co-workers.

However, the

Doe court did not simply rely on the plaintiff's statement that a
disclosure had occurred, but instead considered the testimony of one of the plaintiff's co-workers who said that "he first Doe's HIV status from an acting supervisor."
Id.

learned of

Additionally, the

court relied on testimony from "[tJhree other co-workers [who] said either that [the supervisor] had told them directly about Doe's HIV status or that they overheard [the supervisorl telling others of it."
Id.

There is no similar evidence in this case. (b) Even assuming 'I'he information was already pub 1 ic. the public disclosures occurred, they do not

support a Privacy Act claim.

'I'he Privacy Act only protects against

the public disclosure of information that has not yet been disclosed.

16

See FDIC v. Dye,

642 F.2d 833, 836 (5th Cir.

1981) (the "release of
5

public information to the same 'public' is not a disclosure") Broad. Corp.
V.

and Cox

Cohn, 420 U.S. 469, 494-95 (1975) (holding that there

is no cause of action for invasion of privacy when the information is already available to the public). Information concerning plaintiff's

"psychiatric condition" was already a matter of public record before any alleged public disclosure oceurred. As mentioned, the earliest disclosure occurred in August, 2006. However, the fact that plaintiff previously had been diagnosed with a "psychiatric condition" entered the public domain when the DOL issued its April 26, 2005 decision in plaintiff's worker's

compensation appeal. Bureau of Prisons,

See Donney T. Drennon-Gala v. Dep't of Justice, Fed. Corr. Inst., Oxford, WI, No. 04-2190, 56

E.C.A.B. 469, 2005 WL 1352453 (April 26, 2005). is available "diagnosed in print or online, states [and] that

The opinion, which plaintiff had been

[with]

anxiety disorder

clinical depression" and

that his "persecutory ideation seemed an appropriate response to real threats." Id. at 471. Additionally, a separate psychiatrist was

cited in the opinion as having diagnosed plaintiff with "a major depressive disorder and [an) anxiety disorder" Id. at 474.

Because the DOL decision is freely available to the public in

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business of September 30, 1981.

17

multiple formats, there is no question that the information contained therein was disclosed to the public upon its publication. U.S.
Army

See Oja v. (9th
~

Corps

of

Eng'rs,

440

F.3d

1122,

1130-31

. . . . J..r.

.

2006) ("[olnce information has been published on a website or print media, there is no further act required by the publisher to make the information available to the public"). As such, the public

disclosures alleged by plaintiff are not actionable under the Privacy Act.

IV.

P1aintiff's Rehab Act C1aim
Plaintiff's claim under the Rehab Act is similarly flawed. As the the

an

initial

matter, of

the

regUlations

that

specifically govern records 10.10. state The that

confidentiality Privacy Act provide that:

worker's

compensation C.F.R.
§

controls.

See 20

regulations

All records relating to claims for benefits, including copies of such records maintained by an employer, are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided in the Freedom of Information Act and the Privacy Act of 1974.

Id.
Moreover, the confidentiality requirements of the Rehab Act only apply to two types of documents: (1) "voluntary medical examinations

which are part of an employee health program available to employees," and (2) authorized "inquiries [by an employerl into the ability of an employee to perform job-related functions."
§

42 U.S.C.

12112 (d) (4) (B)

and (C).

The records at issue in this case do not

18

fall within either category. (11 th Cir. provisions

See Cash v. Smith, 231 F.3d 1301, 1307

2000) (discussing the parameters of the confidentiality of the Rehab Act). Accordingly, the Court

GRANTS

defendants' motion for summary judgment on the Rehab Act claim. CONCLUSION For the foregoing reasons, the Court GRANTS defendants' Motion for Summary Judgment [47], GRANTS defendants' Motion for Extension of Time to File Reply Brief [53], and GRANTS plaintiff's Motion for

Leave to File Surreply [55]. action.

The clerk is directed to CLOSE this

SO ORDERED, this

day of March, 2011.

j

~E~{~IW'
~
ULIE CARNES

CHIEF UNITED STATES DISTRICT JUDGE

19