Williams v. United States Government, et al.
Filing
37
ORDER GRANTING RESPONDENT UNITED STATES GOVERNMENT AND DEFENDANT ERIC K. SHINSEKI'S MOTION FOR SUMMARY JUDGMENT (ECF No. 27 ] AND DENYING PLAINTIFF' MOTION FOR SUMMARY JUDGMENT (ECF No. 25 ). Signed by JUDGE HELEN GILLMOR on 6/28/2013. ~ (1) Respondent United States Government and Defendant Eric K. Shinseki's Motion to Strike Plaintiff's Motion for Summary Judgment (ECF No. 30 ) is DENIED. (2) Respondent United States Government and Defendant Eric K. Shinseki's Motion for Summary Judgment (ECF No. 27 ) is GRANTED. (3) Plaintiff Eric G. Williams's Motion for Summary Judgment (ECF No. 25 ) is DENIED. (4) Plaintiff's Motion for Leave to Amend (ECF No. 34 ) is DENIED.The case is now closed. ( ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ERIC G. WILLIAMS,
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Plaintiff,
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vs.
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UNITED STATES GOVERNMENT ,
U.S. Department of Justice, 950 )
)
Pennsylvania Avenue, N.W.,
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Washington, D.C. 20530-0001,
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Respondent,
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ERIC K. SHINSEKI, Secretary of )
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the Department of Veteran
Affairs, Office of the General )
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Counsel (021B), 810 Vermont
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Avenue, N.W. Washington, DC.
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20420,
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Defendant.
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CV. NO. 12-00375-HG-KSC
ORDER GRANTING RESPONDENT UNITED STATES GOVERNMENT AND
DEFENDANT ERIC K. SHINSEKI’S MOTION FOR SUMMARY JUDGMENT
(ECF No. 27)
AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF No. 25)
Plaintiff filed suit against the Federal Government and the
Secretary of the United States Department of Veteran Affairs for
violations of the Privacy Act and related laws, and the United
States Constitution.
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The Parties filed cross motions for summary judgment.
The Government and the Secretary of the Department of
Veteran Affairs’s Motion for Summary Judgment is GRANTED.
Plaintiff’s Motion for Summary Judgment is DENIED.
PROCEDURAL HISTORY
On July 2, 2012, Pro Se Plaintiff Eric G. Williams filed a
Complaint. (ECF No. 1.)
On November 23, 2012, Plaintiff filed an Amended Complaint.
(ECF No. 11.)
On March 14, 2013, Respondent United States Government (“the
Government”) and Defendant Eric K. Shinseki (“Defendant
Shinseki”), Secretary of the United States Department of Veterans
Affairs, filed an Answer. (ECF No. 20.)
On April 22, 2013, Plaintiff filed a Motion for Summary
Judgment. (ECF
No. 25.) Plaintiff did not file a supporting
Concise Statement of Material Facts at the time of filing the
Motion for Summary Judgment.
On May 10, 2013, the Government and Defendant Shinseki filed
a Cross-Motion for Summary Judgment (ECF No. 27) and a supporting
Concise Statement of Material Facts (ECF No. 28).
On May 15, 2013, the Government and Defendant Shinseki filed
an Opposition to Plaintiff’s Motion for Summary Judgment. The
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Opposition moved to strike Plaintiff’s Motion for Summary
Judgment for failure to file a supporting Concise Statement of
Material Facts, in violation of Local Rule 56.1. (ECF No. 30.)
On May 28, 2013, Plaintiff filed a Concise Statement of
Material Facts in support of his Motion for Summary Judgment (ECF
No. 25). (ECF No. 31).
On the same day, Plaintiff filed an Opposition to the
Government and Defendant Shinseki’s Cross-Motion for Summary
Judgment. (ECF No. 32.)
On June 3, 2013, the Government and Defendant Shinseki filed
a Reply in support of their Cross-Motion for Summary Judgment.
(ECF No. 33.)
On June 10, 2013, Plaintiff filed a Memorandum entitled,
“Reply Memorandum to Quash Their Motion for Summary Judgment.”
(ECF No. 34.) Plaintiff, in the Reply, seeks leave to amend his
claims.
The Court elected to decide both Motions for Summary Judgment
(ECF Nos. 25 and 27) without a hearing, pursuant to Local Rule
7.2(d). (ECF Nos. 26 and 29.)
BACKGROUND
On or about January 29, 2010, Unisource, a California-based
document retrieval company, provided the Veterans Administration
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(“VA”) San Francisco Medical Center with a Request for Plaintiff
Eric G. Williams’s medical records (“Records Request”), related
to all health care that he received at their facility. (Decl. Of
Jeff Mineses (“Mineses Decl.”) at ¶ 3, Ex. A, ECF No. 28.)
Plaintiff’s medical records were being sought by a third-party’s
insurance company, with whom Plaintiff had been in contact with,
in relation to an automobile accident.
The Request for Williams’s records was handled by Jeff
Mineses, a Medical Correspondence Clerk at the VA San Francisco
Medical Center. The Records Request included an Authorization to
Release Medical Records or Health Information (“Williams
Release”), signed by Plaintiff, dated January 19, 2010. (Mineses
Decl. Ex. A, ECF No. 28.) The Williams Release authorized the
release of Plaintiff’s
records “from 9/8/07 til present (For
Accident Related Treatment Only).” (Id.)
On February 2, 2010, Mineses responded to the Records
Request by producing all of Plaintiff’s medical records,
beginning on September 8, 2007, not only those related to the
“accident.” (Mineses Decl. at ¶ 6.) Mineses claims that he did
not know what accident the Williams Release referred to, and
believed his actions to be in compliance with the Privacy Act.
(Mineses Decl. at ¶¶ 6-7, ECF No. 28.)
Plaintiff’s records, some of which were outside the scope of
the Williams Release, were provided to the third-party’s
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insurance company. (Declaration of Darrell McDonald (“McDonald
Decl.”) Ex. F, ECF No. 28.)
Plaintiff initially contacted the Department of Veterans
Affairs on December 16, 2010, alleging a federal tort claim.
(Plaintiff’s Motion Ex. A, at pg. 2, ECF No. 25.) Plaintiff did
not clearly articulate how the Department of Veterans Affairs was
connected to his claim. On January 4, 2011, the General Counsel
for the Department of Veterans Affairs responded that the people
Plaintiff accused of improperly disclosing his information do not
work for the Department of Veterans Affairs. (Id.)
On or around mid-April 2011, Plaintiff submitted a complaint
to the Department of Veterans Affairs that properly articulated
his claim. (Plaintiff’s Motion Ex. A, at pg. 4, ECF No. 25.) The
VA San Francisco Medical Center, upon being notified of a
potential Privacy Act violation, conducted an internal
investigation. (McDonald Decl. Ex. B, ECF No. 28.) In August
2011, the VA determined that it had disclosed certain records
outside the scope of the Williams Release, in response to the
Records Request, in violation of the Privacy Act. (Id.)
Mineses received training and counseling from a VA Privacy
Officer on his job duties and how it related to the Privacy Act,
in response to the improper release of Plaintiff’s records.
(Mineses Decl. at ¶ 9, ECF No. 28.)
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The VA also offered Plaintiff enrollment in Equifax Personal
Solutions, at no cost, to protect him against identity theft.
(McDonald Decl. Ex. B, ECF No. 28.)
Plaintiff filed suit, alleging violations of the Privacy Act
and related laws, and his rights guaranteed by the Federal
Constitution. (ECF No. 11.)
The Parties filed cross Motions for Summary Judgment. (ECF
Nos. 25, 27.)
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). To defeat
summary judgment there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
1997).
The moving party has the initial burden of "identifying for
the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact."
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett,
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477 U.S. 317, 323 (1986)). The moving party, however, has no
burden to negate or disprove matters on which the opponent will
have the burden of proof at trial.
The moving party need not
produce any evidence at all on matters for which it does not have
the burden of proof. Celotex, 477 U.S. at 325. The moving party
must show, however, that there is no genuine issue of material
fact and that he or she is entitled to judgment as a matter of
law.
That burden is met by pointing out to the district court
that there is an absence of evidence to support the non-moving
party’s case. Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979). The opposing party must present admissible
evidence showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.”
Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).
The court views the facts in the light most favorable to the
non-moving party.
State Farm Fire & Casualty Co. v. Martin, 872
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F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of
declarations, admissions, evidence obtained through discovery,
and matters judicially noticed.
Fed. R. Civ. P. 56(c); Celotex,
477 U.S. at 324. The opposing party cannot, however, stand on its
pleadings or simply assert that it will be able to discredit the
movant's evidence at trial. Fed. R. Civ. P. 56(e); T.W. Elec.
Serv., 809 F.2d at 630.
The opposing party cannot rest on mere
allegations or denials. Fed. R. Civ. P. 56(e); Gasaway v.
Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.
1994). When the non-moving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.
Hansen v. United States, 7 F.3d 137, 138
(9th Cir. 1993); see also National Steel Corp. v. Golden Eagle
Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).
ANALYSIS
Plaintiff’s Amended Complaint (ECF No. 11) alleges four
causes of action, arising from the Veterans Administration (“VA”)
San Francisco Medical Center’s unauthorized disclosure of his
medical records:
Count I:
Violation of the Privacy Act, 5 U.S.C. § 552a,
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Count II:
Violation of Plaintiff’s Federal Constitutional
rights, pursuant to 42 U.S.C. § 1983,
Count III: Violation of the Department of Veterans Affairs
confidentiality statute, 38 U.S.C. § 5701, and
Count IV:
Violation of the Department of Veterans Affairs
Regulation, 38 C.F.R. 1.576.
The Parties filed cross-motions for summary judgment.
I.
THE GOVERNMENT’S MOTION TO STRIKE PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT IS DENIED
Plaintiff Eric G. Williams initially filed his Motion for
Summary Judgment (ECF No. 25) without a filing a separate concise
statement of material facts, as required by Local Rule 56.1.
Local Rule 56.1 requires a party to file a separate concise
statement detailing each material fact, as to which the moving
party contends that there are no genuine issues to be tried that
are essential for the court’s determination of the summary
judgment motion.
Respondent United States Government (“the Government”) and
Defendant Eric K. Shinseki (“Defendant Shinseki”), Secretary of
the Department of Veterans Affairs, in their Opposition to
Plaintiff’s Motion for Summary Judgment, filed on May 15, 2013,
moved to strike Plaintiff’s Motion for Summary Judgment for
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failing to file a separate supporting statement of material
facts. (ECF No. 30.)
Approximately two weeks later, on May 28, 2013, Plaintiff
filed a Concise Statement of Material Facts in support of his
Motion for Summary Judgment (ECF No. 25). (ECF No. 31).
Plaintiff, who is pro se, sufficiently set forth the facts
he believes to be material and undisputed in his Motion for
Summary Judgment. Plaintiff has also now filed a Concise
Statement of Material Facts. The Government and Defendant
Shinseki were not prejudiced by pro se Plaintiff’s delay in
filing the Concise Statement.
The Motion to Strike, raised in the Opposition to
Plaintiff’s Motion for Summary Judgment (ECF No. 30), is DENIED.
II.
THE GOVERNMENT AND DEFENDANT SHINSEKI ARE ENTITLED TO
SUMMARY JUDGMENT ON ALL CLAIMS IN THE AMENDED COMPLAINT
A.
Plaintiff’s Privacy Act Claim
Plaintiff alleges that the Government and Defendant Shinseki
are liable, pursuant to the Privacy Act, 5 U.S.C. § 552a, for
releasing his medical records that exceeded the scope of his
authorization.
The Privacy Act, 5 U.S.C. § 552a, governs the disclosure of,
access to, and amendment of records that are maintained by
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federal agencies, including the Department of Veterans Affairs.
Lane v. Dep't of Interior, 523 F.3d 1128, 1138 (9th Cir. 2008). A
successful claim under the Privacy Act requires a showing that:
(1) the agency disclosed information contained within a system of
records; (2) the disclosure was improper; (3) the disclosure was
intentional or willful, and (4) the plaintiff was adversely
affected by the disclosure. Tungjunyatham v. Johanns, 500 F.
App'x 686, 689 (9th Cir. 2012)(citing Swenson v. U.S. Postal
Service, 890 F.2d 1075, 1077 (9th Cir.1989)).
It is undisputed that the VA improperly disclosed records,
which exceeded the scope of Plaintiff’s authorization.
The Government and Defendant Shinseki claim that Plaintiff’s
claim fails because the disclosure was not willful or
intentional, as required by the Privacy Act. 5 U.S.C. §
552a(g)(4).
An agency acts in a willful or intentional manner if it acts
without grounds for believing it to be lawful, or flagrantly
disregards the plaintiff's rights under the Privacy Act. See
Covert v. Harrington, 876 F.2d 751, 756-57 (9th Cir. 1989).
Willful or intentional conduct is that which “amount[s] to more
than gross negligence.” Willborn v. HHS, 49 F.3d 597, 602 (9th
Cir. 1995)(quoting Johnston v. Horne, 875 F.2d 1415, 1422 (9th
Cir. 1989)).
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The Records Request from Unisource sought “any and all
documents and medical records pertaining to the examination,
care, diagnosis, and treatment” of Plaintiff, without any
limitation. (Mineses Decl. Ex. A, ECF No. 28.) Plaintiff’s
authorization only provided for release of his hospital summary
and outpatient treatment notes “from 9/8/2007 til present (For
Accident Related Treatment Only).” (Id.) Plaintiff’s Release
limited disclosure to records related to his accident, but did
not detail what accident.
Plaintiff claims that his Release was clear because the only
accident was the September 8, 2007 accident. He contends that the
Release never should have been processed if ambiguity existed.
(Plaintiff’s Opposition at pg. 2, ECF No. 32.)
Plaintiff’s contentions do not show willful or negligent
agency conduct. The VA Records Clerk handling the request, Jeff
Mineses, released only those records from September 8, 2007, even
though the Unisource Request for information sought all records
for Plaintiff, regardless of date. The fact that Mineses
attempted to comply with Williams’s authorization, shows Mineses
intent to comply with the Privacy Act. See Sullivan v. Veterans
Admin., 617 F.Supp. 258, 262 (D.D.C. 1985) (“While the VA was not
completely successful in deleting all the personally identifiable
references to plaintiff, its attempt to do so demonstrates that
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agency's consideration of and concern for plaintiff's privacy
interests.”).
The VA’s attempts to remedy or mitigate the effects of the
disclosure also show lack of willful or intentional agency
action. In response to Plaintiff’s concerns, the VA provided
Mineses with training regarding the Privacy Act and offered
Plaintiff enrollment, at no cost, in a service to protect against
identity theft. Such attempts to remedy an improper action may be
considered in determining whether an agency’s action was willful
or intentional. Sterling v. United States, 826 F. Supp. 570, 572
(D.D.C. 1993) aff'd, No. 93-5264, 1994 WL 88894 (D.C. Cir. Mar.
11, 1994).
Plaintiff, to support his claim that the VA’s violation was
willful or intentional, claims that the VA’s San Francisco
Regional Counsel initially denied negligence and refused to
investigate his complaint. (Plaintiff’s Motion at pg. 2, Ex. A,
ECF No. 25; Plaintiff’s Opposition at pg. 3, ECF No. 32.)
Plaintiff refers to a Letter, dated January 4, 2011, from the VA
Regional Counsel, which states:
Your administrative tort claim alleged that the
[VA] was responsible for the unauthorized release of
personally identifiable information by Kimberly Waters,
Attorney at Law. You further allege that Ms. Waters is
employed by the Law Offices of Michael McKone. You have
not alleged that either Ms. Waters or the Law Offices
of Michael McKone are the employee or agents of the
[VA].
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Since neither Kimberly Waters nor the Law Offices
of Michael McKone are the employee or agent of the
United States, the [VA] has no responsibility or
liability in this action. Accordingly, your claim is
now denied.
(Plaintiff’s Motion Ex A., ECF No. 25.) The letter went on to
instruct Plaintiff how he might appeal the decision. (Id.)
The VA denied Plaintiff’s complaint due to Plaintiff’s
inaccurate description of his claim. The person accused of
wrongdoing in Plaintiff’s complaint was the attorney for the
third-party’s insurance carrier, who ultimately received the
improperly released information, not the person who released the
information. The VA’s denial, based on Plaintiff’s inaccurate
description of his allegation, does not support a finding of
willfulness or intentional agency conduct in violation of the
Privacy Act.
Plaintiff’s Privacy Act claim is DISMISSED.
B.
Plaintiff’s 42 U.S.C. §
1983 Claim
Plaintiff’s 42 U.S.C. § 1983 claim generally alleges that
the disclosure of his records violated his Federal Constitutional
rights.
A plaintiff bringing a 42 U.S.C. § 1983 claim must show:
(1) that a right secured by the Constitution or laws of the
United States was violated, and (2) that the violation was
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committed by a person acting under the color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff has failed to allege a Federal Constitutional
right that was violated as a result of the disclosure of his
records. There is also no evidence to support that Mineses or
other VA employees were acting under the color of state law in
releasing the records.
Plaintiff’s 42 U.S.C. § 1983 claim is DISMISSED.
C. Plaintiff’s 38 U.S.C. § 5701 Claim
Plaintiff alleges a violation of the Department of Veterans
Affairs’s confidentiality statute, 38 U.S.C. § 5701(j), which
provides that disclosures are subject to the Privacy Act.
The VA’s confidentiality statute does not establish a cause
of action for the improper disclosure of medical records. Ellis
v. Multnomah Cnty., No. CV-04-150-HU, 2004 WL 1636539, at *5 (D.
Or. July 15, 2004). The cause of action would arise under the
Privacy Act.
Plaintiff’s claim for violation of 38 U.S.C. § 5701 is
DISMISSED.
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D. Plaintiff’s 38 C.F.R. § 1.576 Claim
Plaintiff’s final cause of action alleges a violation of 38
C.F.R. § 1.576.
The regulation at issue, 38 C.F.R. § 1.576, details the VA’s
duties in disclosing records in its custody and sets forth
criminal penalties for violations of the Privacy Act. 38 C.F.R.
§ 1.576(e). The regulation does not create a civil cause of
action, independent of one arising under the Privacy Act, 5
U.S.C. §
552a(g)(1). Unt v. Aerospace Corp, 765 F.2d 1440, 1448
(9th Cir. 1985)(criminal penalty provision of the Privacy Act
does not create a civil right of action).
Plaintiff’s 38 C.F.R. § 1.576 claim is DISMISSED.
III. PLAINTIFF’S REQUEST FOR LEAVE TO AMEND
Plaintiff seeks leave to amend his claims. (Plaintiff’s
Reply at pgs. 7-10, ECF No. 34.) Plaintiff seeks to include the
allegation that the Government and Defendant Shinseki violated
his right to privacy by releasing unauthorized medical and
confidential information to a third party. Plaintiff also wishes
to include information regarding breach of confidentiality
through the release of medical information gained under the
physician-patient privilege.
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A court should grant leave to amend a complaint “unless
amendment would cause prejudice to the opposing party, is sought
in bad faith, is futile, or creates undue delay.” Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992).
Plaintiff cannot establish a viable claim, through the
proposed amendments or otherwise. Amendment would be futile.
Plaintiff’s request for leave to amend (ECF No. 34) is
DENIED.
CONCLUSION
For the foregoing reasons,
(1)
Respondent United States Government and Defendant Eric
K. Shinseki’s Motion to Strike Plaintiff’s Motion for
Summary Judgment (ECF No. 30) is DENIED.
(2)
Respondent United States Government and Defendant Eric
K. Shinseki’s Motion for Summary Judgment (ECF No. 27)
is GRANTED.
//
//
//
//
//
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(3)
Plaintiff Eric G. Williams’s Motion for Summary
Judgment (ECF No. 25) is DENIED.
(4)
Plaintiff’s Motion for Leave to Amend (ECF No. 34) is
DENIED.
The case is now closed.
IT IS SO ORDERED.
DATED:
June 28, 2013, Honolulu, Hawaii.
/S/ Helen Gillmor
Helen Gillmor
United States District Judge
ERIC G. WILLIAMS v. UNITED STATES GOVERNMENT, U.S. Department of
Justics, 950 Pennsylvania Avenue, N.W., Washington, D.C. 205300001; ERIC K. SHINKSEKI, Secretary of the Department of Veteran
Affairs, Office of the General Counsel (021B), 810 Vermont
Avenue, N.W., Washington, D.C. 20420; Civ. No. 12-00375-HG-KSC;
ORDER GRANTING RESPONDENT UNITED STATES GOVERNMENT AND DEFENDANT
ERIC K. SHINSEKI’S MOTION FOR SUMMARY JUDGMENT (ECF No. 27) AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF No. 25).
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