Colon v. United States of America, et al.

Filing 38

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/13/2018. (kns, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT :';
FOR THE DISTRICT OF MARYLAND
Southern Division
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CLAIRE COLON,

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Plaintiff,

Case No.: G.III-17-775

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v.

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UNITED STATES OF AMERICA, et {tl.,

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Defendants.

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MEMORANDUM

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OPINION

Plaintiff Claire Colon liles suit against Delcndants the United States of America ("United
Statcs"). the Department of Defense ("DOD"). Dr. David Kassop. and Dr. Steven Berkowitz.
seeking $5.000.000 plus punitive damages. attorney's fecs. and costs lor the violation of various
federal and state laws relating to the access and distribution of her conlidentialmedical

records.

Specifically. Colon alleges the United States violated the Federal Tort Claims Act ("FTCA"). 28
U.s.c. ~~ 1346(b). 2671 el seq.: DOD violated the Privacy Act. 5 U.S.c. ~ 552a: and Kassop
and Berkowitz violated the Fifih. Ninth. and Fourteenth Amendments. the Maryland
Confidentiality of Medical Records Act ("MCMRA "), Md. Code Ann. Health Gen. ~ 4-30 leI.
seq .. and committed a novel tort under Maryland law-the

negligent access and disclosure of

protected health inllmnation. Now pending are Defendants' motions to dismiss under Federal
Rules ofCivill'rocedure

12(b)(I) and 12(b)(6). The parties have fully briefed the issues. and no

oral argument is necessary. See Local Rules 105.6 (D. Md. 2016). For the reasons set lorth
below. the motions to dismiss of the United States, Kassop. and Berkowitz are granted. and
DOD's motion to dismiss is denied.

I.

BACKGROUND1
Claire Colon is a citizen and resident of Hawaii who joined the Army in May 2004. ECF

No. 19 ~~ 1.9. Kassop is a citizen and resident of North Carolina employed as a cardiologist by
the Department of the Army at Fort Bragg. North Carolina and licensed to practice medicine in
Maryland. Id ~ 2. Berkowitz is a citizen and resident of Maryland. employed as a psychologist
by the Department of the Army at Fort Meade. Maryland and licensed to practice medicine in
Maryland. Id ~ 3.
This dispute arises out of Kassop and Berkowitz's alleged access and distribution of
Colon's protected health records. While deployed in Iraq in the mid-2000s. Colon was assaulted
by three fellow soldiers. Id. '110. That trauma was compounded when Colon experienced postpartum depression following the pregnancies of her two oldest children in the late-2000s. Id
Eventually Colon sought professional help through the Army to address these mental health
issues. Id. Ultimately. a medical diagnosis led Colon to medically retire from the Army as a
Captain with an Honorable Discharge on April 22. 2014. Id. ~ I 1.
Colon engaged in an extramarital affair with Major Christian Wollenburg beginning in
.June 2009.1d.

'1 12. As a result of the extramarital

affair. Colon and Wollenburg had a daughter.

who was born in Bethesda. Maryland on October 2. 20 IO. Id ,j 12. Alier their daughter was
born. Colon and Wollenburg engaged in protracted litigation in the Domestic Relations Branch
of the Family Court of the District of Columbia ('.the Family Court'lld

~ 14. The Family Court

resolved a paternity suit in lavor of Wollen burg on September 12. 2013. Id Colon subsequently
filed a custody complaint. whieh took more than two years to resolve. Id.
Colon alleges that in the midst of this custody dispute. in November 2013. Wollenburg
contacted his close li'iend and fonner college roommate Kassop and asked Kassop to obtain
I

The facts are taken from the Complaint

and assumed to be true.

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Colon's

contidential

health information

for him. Id ~ 16. She alleges that Wollenburg

did so

hoping that he might be able to use her mental health issues to win custody of their child. Id At
the time. Kassop was stationed

at the Walter Reed Army Medical Center in Bethesda.

Maryland.

Id Colon alleges that Kassop complied with this request. accessing the Armed Forces Ilealth
Longitudinal

Technology

Application

by DOD and the Army-on

November

that Kassop accessed this information
able to see all ofColon's
laboratory

("AHLTA")-the

for at least forty-two

minutes. during which time he was

including clinical notes. medications.

records. Id Colon was never a patient of Kassop' s and never

granted him consent to access her records.

that Wollenburg

medical record system used

22. 2013 at shortly alier 6 p.m. Id at ~ 17. Colon alleges

private health information.

results. and radiology

medical information.

electronic

It!. Colon alleges that aner accessing her personal

Kassop then shared that information

in turn shared that information

who the Army had taskcd with investigating

with Lieutenant

Wollenburg's

Colonel Ralph Taylor. it!. ~ 1lJ.

conduct to determine

violated the Uniform Code of Military Justice ("UCM.I"") by engaging
relationship

with Colon. Id ~ 15.

and asked Berkowitz

alleges that Berkowitz
print Colon's
personal

whether he

in an adulterous

Colon further alleges that in February 2015. Wollen burg contacted
Berkowitz.

Id ~ 18. She alleges

with Wollenburg.

instructed

to obtain Colon's
employees

medical information

his own psychologist.

as well.

Kiaya Jackson and Jessica Hall to access. view. and

medical records for him. Id As a result. she alleges that Berkowitz

medical records and then shared those records with Wollenburg.
On February 24. 2015. Taylor issued an investigative

tinding that the conduct amounted
amount to adultery according

It!. ~ 20. Colon

obtained her

It!.

report into Wollenburg's

conduct.

to adultery based on a civilian and moral standard but did not

to the UCMJ standard because the relationship

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did not prejudice

the good order and discipline of the military. It!. ~ 21. In that report, Taylor detailed Colon's
personal mental health history. It!.
Colon alleges that in May 20 IS-as

well as in November 20 IS-Berkowitz

again

accessed Colon's health records. It!. ~ 22. She alleges that on those dates he also accessed her
daughter" s health records. Id.
In June and July 20 IS, the Family Court held custody hearings in the dispute between
Colon and Wollenburg. It!. at ~ 25. Colon alleges that Wollenburg distributed her private health
records to each of their allorneys and the court in anticipation of those hearings. It!. ~ 24.
Wollen burg also included Kassop and Taylor as fact witnesses in those hearings, on the grounds
that Kassop was qualitied to testify as a physician and Taylor was qualified to testify as to
Colon's mental health. Id. ~ 23. During the hearings, Wollenburg attempted to use Colon's
history of mental health issues in order to gain sole custody of their daughter. Id. ~ 25. Colon
alleges that the basis for Wollen burg's knowledge of these issues was the information he
received from Kassop and Berkowitz. It!. Ultimately. Colon and her husband were awarded
permanent sole legal custody of the child on December 24, 2015. Id. ~ 26. The Family Court
acknowledged Wollenburg's arguments regarding Colon's mental health issues but expressed no
concern ahout her ahility to be a good mother. Id
In August 2015, Colon asked the Army to investigate whether Wollenburg had accessed
her protected health information. Id.

'i 27. On Novemher

16,20 IS, the Army informed Colon

that it had discovered breaches of Colon's and her child's protected medical records, including
access by Kassop and Berkowi tz. It!.
On March 21, 2017, Colon filed an initial complaint in this Court against the United
States, Secretary of Defense James Mallis, Kassop, and Berkowitz. See ECF No. I. On July 14,

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2017 and July 20. 2017. respectively. Defendants filed motions to dismiss the initial complaint.
See ECF Nos. 12. 16. On July 30. 2017. Colon filed an Amended Complaint. which substituted
DOD for Mattis as a defendant and made a few additional changes to the initial Complaint. See
ECF No. 19. The Iiling of the Amended Complaint rendered those motions moot.
In Counts I and II. Colon sues the United States. seeking to hold the federal government
liable under the FTCA lor the acts and omissions of federal employees Kassop and Berkowitz. In
Count Ill. she sues DOD for violating the Privacy Act. fn Count IV. she sues Kassop and
Berkowitz for violating the Fifth. Ninth. and Fourteenth Amendments, and asks the Court to
extend the Bi\'ens remedy to cover the facts of this case. See Bi\'ens

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Six Unknown Nallled

Agell/.\', 403 U,S. 388 (1971). In Count V, she sues Kassop and Berkowitz for violating the
MCMRA. In Count VI. she sues Kassop and Berkowitz for the negligent access and disclosure
of protccted health information, a novel tort that has not yet been recognized in Maryland,
On August 11,2017, the United States and DOD filed a motion to dismiss Colon's
complaint for lack of subject matter jurisdiction under Rule 12(b)(l) and for failure to state a
claim under Rule 12(b)(6), See ECF No. 26. On August 14,2017, Kassop and Berkowitz filed
motions to dismiss on the same grounds. See ECF Nos. 27, 28. The Defendants' motions to
dismiss are now pending.

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II.

STANDARD OF REVIEW
A. Motion to Dismiss Pursuant

to Rule 12(h)(I)

Defendants move to dismiss the Amended Complaint. in part. pursuant to Rule 12(b)(l).
asserting that the Court lacks subject maller jurisdiction over Plaintiffs claims. The Plaintiff has
the burden of proving that subject mallerjurisdiction

exists. See

El"llI1.\' \'.

B.F. PerkillS Co.. 166

F.3d 642. 647 (4th Cir. 1999). When a defendant challenges subject maller jurisdiction pursuant
to Rule 12(b)(I) ... the district court is to regard the pleadings as mere evidence on the issue. and
may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment:'Id.

(quoting Rich/llond. Fredericksburg & Poto/llac R.R. Co.

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United

States. 945 F.2d 765. 768 (4th Cir. 1991)), The district court should grant the Rulc 12(h)(l)
motion to dismiss "only if the material jurisdictional facts arc not in dispute and the moving
party is entitled to prevail as a maller of law:' Id.
B. Motion to Dismiss Pursuant

to Rule 12(h)(6)

Defendants also move to dismiss the Amended Complaint. in part. pursuant to Rule
12(b)(6), asserting that the Amended Complaint fails to state a claim upon which relief can be
granted. To state a claim that survives a Rule 12(b)(6) motion, a complaint. relying on only wellpled factual allegations. must state at least a "plausible claim for relief" Ashcro/i \'. Iqbal, 556
U.S. 662. 679 (2009). The "mere recital of clements of a cause of action. supported only by
conclusory statements. is not sufficient to survive a motion made pursuant to Rule 12(b)(6):'
Walters \'. McAlahen. 684 F.3d 435. 439 (4th Cir. 2012). To determine whether a claim has
crossed "the line from conceivable to plausible." the court must employ a "context-specific
inquiry:' drawing on the court's "experience and common sense:' Iqbal. 556 U.S. at 679-80.
When performing this inquiry. the court accepts "all well-pled facts as true and construes these

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facts in thc light most favorable to the plaintiff in weighing the legal surticiency of the
complain!." Nemet Chel'rolet. Ltd.

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ConslImer(l[fclirs.com. Inc.. 591 F.3d 250. 255 (4th Cir.

2009). The Court need not, however. accept unsupported legal allegations, Re\'ene

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Charles

Cmy. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). nor must it agree with legal conclusions
couched as factual allegations. Iqhal, 556 U.S. at 678, or conclusory factual allegations dcvoid of
any reference to actual events. United Black Firefighters
1979); see also Francis
III.

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/lirst. 604 F.2d 844, 847 (4th Cir.

Giacomelli, 588 F.3d 186. 193 (4th Cir. 2009).

DISCUSSION
A. Claims Against the United States and DOl)
I.

FTCA Claims (Counts I and II) - The Feres l)octrine2

In Counts 1and II. Colon seeks to hold the Unitcd States liable under the FTC A for the
acts of Kassop and Berkowitz. The Court has no subject matter jurisdiction to hcar these claims
because cach is barrcd by the Feres doctrine, Accordingly. Counts I and II are dismissed under
Rule 12(b)(1).
The Feres doctrinc precludes scrvicc mcmbers from suing the Unitcd States governmcnt
under the FTC A for injurics that "arise out of or arc in the course of activity incident to service"
Feres \', United States. 340 U.S, 135. 146 (1950). There are three broad rationales underlying the
I'eres doctrine. "Firs!. the rclationship between the Governmcnt and members of its armcd forccs
is distinctivcly federal in character"

United States \'. Johnson. 481 U.S. 681. 689 (1987) (citing

The United States provides the follo\ving alternative arguments:
I) Count I is barred against Kassop's conduct
because he was not "acting within the scope of his office or employment"
when engaging in the alleged tortious
conduct. ECF No. 26.1 at 1 I (citing 28 U.S.C, ~ 1346(b)): 2) Counts 1 and II are barred as related to Berkowitz's
conduct because Colon only presented a claim to the DOD for Kassop's alleged tortious conduct and therefore failed
to exhaust her administrative
remedies for Berkowitz's
alleged tortious conduct ttl. at 9 (citing 28 U.S.C.
2675(a):
28 C.F.R. ~ 14,2(a)): 3) Count II is barred because the United Slales' management
orthe Army's health records
database is a discretionary
function for which the United Statcs cannot be liable under the FTCA. lei. at 15 (citing
Uniled Siaies \', GII/lnerl. 499 U.S. 315 (1991): I/"tnrook \', Uniled Siaies. 673 F.3d 36 J. 345 (4th Cir. 2012)).
Because the Court \\iill dismiss Counts J and II for lack of subject matter jurisdiction
under the Fere.'i doctrinc. the
Court need not addrcss these altcrnative arguments herein.
2

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Feres. 340 U.S. at 143: Uniled Slales v. Slandard Oil Co.. 332 U.S. 301. 305 (1947)). "Second.
the existence of ... generous statutory disability and death benetits is an indcpendent reason why
the Feres doctrine bars suit for service-related injuries." Johnson. 481 U.S. at 689. Third. suits
for servicc-related injuries are the "types of claims that if generally permitted. would involve the
judiciary in sensitive military atl'airs at the expense of military discipline and effectiveness."Id.
at 690 (quoting Uniled Slales v. Shearer. 473 U.S. 52. 59 (1985 )).
Although it is useful to keep these rationales in mind. the absence of one or more of them
is no reason to hear an FTeA claim against the government where Feres immunity would
otherwise be appropriate. Indeed. the Fourth Circuit has said the sole task of a lower court
deciding whether to apply Feres "is to assess whether appellant's injuries amse

0111

o(aclil'ily

incidenllo service:' Slewarl\'. United Slales. 90 F.3d 102. I04 (4th Cif. 1996) (emphasis in
original). ''In making this determination. [courts should be ] mindful that. since its inception. the
Feres doctrine has been broadly and pcrsuasively applied by fedcral courts ....

Indeed. thc

Supreme Court has consistently reartirmed the Feres doctrine and has sharply limited the ability
ofmcmbers of the uniformed services to recover damages under the FTCA:' Id. (internal
citations omitted). "In recent years the Supreme Court has embarked on a course dedicated to
broadening the Feres doctrine to cncompass. at a minimum, all injuries suffered by military
personnel that are even remotely related to the individual's sIal liS as a member of the military:'
Id. at 105 (internal citations omitted) (emphasis in original).

"In the nearly 70 years since the decision. Feres and its progeny have failed to produce a
specific clement-based or bright-line rule regarding what type of conduct is incident to service:'
Aikens v. Ingmll1. 811 F.3d 643. 650 (4th Cif. 2016) (internal citations omitted). "Whcre a
complaint asserts injurics that stem from the relationship between the plaintilTand the plaintilrs

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scrvicc in thc military.

It/. at 651 (intcrnal citations

thc incidcnt to scrvicc tcst is implicatcd:'

omittcd).

Put simply. a scrvicc mcmber is injured "incidcnt

to scrvicc" whcn hc is injurcd

"bccausc

of his military relationship

See Johnson. 481 U.S. at 689

("Whcre

a servicc member

relationship

with thc Govcrnmcnt."

is injured incidcnt to scrvicc-that

with the Government

.. "").

Here, thcre can be no doubt that Colon's
scrvice:'
medical

Specifically.

The allegedly

acccsscd

mcdical information

thc same clcctronic

t0l1ious conduct

individual

mcdical rccord systcm to find Colon's

private

discloscd

that took place while both were active mcmbcrs

in Count II occurred

disclose records from the military's
to do so. The Secretary

that information

to anothcr

with whom Colon was in a custody dispute stcmming

at the hands of the Secrctary

breached his duty to cxercise reasonable

authorization

at the hands of two military doctors. Thesc

military. Thc doctors then allcgedly

member of the military-an
a relationship

in Count I occurred

military.

that othcr military doctors utilized when trcating Colon while shc was an

active mcmbcr ofthc

li'OIll

by military doctors at military

she received solely because shc was a member ofthc

tortious conduct

doctors allegedly

injurics arose out of ""activity incidcnt to

her injurics arose out of her treatment

installations-trcatmcnt

is. bccausc of his military

of the military. The allegedly
of Defense. who allegedly

care in cnsuring that military employees

electronic

only access and

medical record systcm when they have

of Dcfense's

negligcnce

allegedly

created the opportunity

for the two military doctors to engage in thc conduct alleged in Count I. In other words. the
tortious acts alleged in Counts I and II were committed
used the military's

electronic

by active members of the military who

medical record system to cause Colon injuries she would never

have incurred but for her status as a member ofthc

military. For these reasons. Colon's

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injuries

arose out of "activity incident to service" and her FTCA claims against the United States are
there lore barred by the Feres doctrine.
Colon raises two primary arguments to the contrary. each of which rails. First. she argues
that her injury was not "incident to service" because the injury itself did not occur until alier she
leli the military. Second. she argues that none of the three rationales underlying the Feres
doctrine arc present.
First. the lllct that Colon's injury did not occur until alier she leli the military is
irrelevant. Indeed. the Fourth Circuit has explicitly stated: "the rocus or Feres is not upon 11'hen
the in;lIIJ' occurs or when the claim becomes actionable. rather it is concerned with when and
under what circumstances the negligent act occurs:' Kendrick \'. UniledSloles. 877 F.2d 1201,
1203-04 (4th Cir. 1989) (internal citation omitted) (cmphasis added). And while Berkowitz's
alleged unauthorized access occurred in 2015. alier Colon's discharge. the access was still
incident to her service because it related to the use and management or her active duty medical
records by a military doctor. the control of which is leli to "military discipline and
decisionmaking:'

See ChiCO

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RUlIlsfetd. 720 F.3d 505. 515 (4th Cir. 2013) ("where a complaint

asserts injuries that stem rrom the relationship between the plaintilT and the plaintiffs service in
the military. the 'incidentto
2025.2013

service' test is implicated"): see a/so Fianko \'.

u.s.. NO.I'WG-12-

WL 3873226. at *7-8 (D. Md. July 24. 2013) (noting that application of Feres in the

Fourth Circuit bars post-discharge torts when "the adjudication of Plaintifl's tort claims
unavoidably would involve the court in determining whether civilian and military members or
the Army properly performed their duties:').
Second. whether the Feres rationales are present is also not controlling because Colon's
injuries were "incident to service:' See Johnson. 481 U.S. at 687-88 ("the Feres doctrine has

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been applied consistently to bar all suits on behalf of service membcrs against the Government
based upon service-related injuries"): Uniled S/(I/es

1'.

Slan/ey. 483 U.S. 669. 682-83 (1987)

(rejecting '"a test for liability that depends on the extent to which particular suits would call into
question military discipline and decisionmaking" in favor of '"the 'incident to service" test.
[which] by contrast. provides a line that is relatively clear and that can be discerned with less
extensive inquiry into military matters"): Sle\l'arl. 90 F.3d at 104 ('"Our task. then. is to assess
whether appellant's injuries arose 0111
oj'aclil'ily inch/ell/lo serl'ice. In making this
determination. we arc mindful that. since its inception. the Feres doctrine has been broadly and
persuasively applied by federal courts:") (internal citation omitted) (emphasis in original).
In any event. two of the three Feres rationales arc present. First. the "distinetively
federal" rclationship between the Government and members of its armed forces is at issue:'
Second. resolving Colon's claims would involve the court in sensitive military albirs concerning
how to appropriately operate and manage the military's electronic records system-uecisions

the

Government makes not in isolation but within lhe context of a general strategy regarding the
proper allocation of military resources. Although the third Feres rationale is not present because
Colon cannot avail herself of '"generous statutory disability and death benefits:' that lact alone
does not warrant hearing her FTC A claims.
Simply put, because Colon's injuries were "incident to service:' the Feres doctrine bars
her from assel1ing FTCA claims against the United States. Therefore. Counts I and II are
dismissed .

.~ The Court in Fert:.\" noted that:
[the FTeA} assimilates into federal law the rules of substantive law of tile several states. among which
divergencies are notorious .... To whatever extent stale la\\' may apply to govern the relations between
soldiers or others in the anncd forces and persons outside them or non federal govemmental agencies. the
scope. nature. legal incidents and consequence orthe relation between persons in service and the
Govcnlmcnt arc fundamentally derived from federal sources and govemcd by federal authority.
Fere,\'.

340 U.S. al 142-44.

II

2.

Privacy Act Claim (Count III)

Unlike Colon's FTC A claims, CoJon's Privacy Act claim is not barrcd by thc Feres
doctrine. See Cummings v. DepaJ'/mel1l (!f the Navy, 279 F.3d 1051. 1056-57 (D.C. Cir. 2002)
("Although judicial rcluctance to impinge on military matters is understandablc in many
contcxts, it is unjustified in this setting: as we have discusscd, the Congress clearly enlisted the
federal courts to inquire into potential military violations ofthc Privacy Act:') (cmphasis in
original).
The parties agrec that the government has waived sovereign immunity and consented to
be sued under the Privacy Act only whcre thc plaintifThas suffcrcd "actual damages:' See FAA.
v. Cooper, 566 U.S. 284, 299 (2012). Thc DOD contcnds. howcver, that Colon has not pled
"actual damages:' ECF No. 26-1 at 26-28.4 But Colon's Amcnded Complaint states that she
"sufTered actual damages when she paid for medical serviccs and transportation to and from
medical services to address thc trauma she suffered as a result of the intentional and/or willfiJl
disclosures of her private health records:' ECF No. 19 ~ 55. It also statcs that "as a result of Dr.
Kassop and Dr. Bcrkowitz's violation ofthc Privacy Act. PlaintifThas suffercd adverse and
harm fiJI efJects and actual damages, including, but not limited to, mental distress. emotional
trauma, fear of rcceiving mcdical treatmcnt. embarrassment, humiliation, and costs for thcrapy
sessions:' It!. ~ 56. Thus, Count III of the Amended Complaint clearly alleges both emotional
damages and actual damagcs.
Colon cannot recover for any emotional damages suffered as a result of a Privacy Act
violation. Howcvcr, to the extent "she paid for medical services and transportation to and from
medical services" and paid "costs for therapy sessions:' "to addrcss the trauma shc sufJercd as a

, Pin cites to documents tiled onlhe Court's electronic tiling system (CM/ECF) refer to the page numbers generated
by that system.

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rcsult of the intcntional and/or willful disclosures of her private health records:' she can recovcr.
Thc causation argumcnt raised by the DOD. that Colon's therapy sessions wcre not causcd by
any violation ofthc Privacy Act. see ECF No. 26-1 at 27-28. may ultimately preclude Colon
from recovcring thc actual damages shc has pled. It does not. however. alter the fact that she has
pled such damages. Accordingly. Count 1II ofColon's

complaint survives to the extent she

alleges she suftered actual damages as a result of a violation of the Privacy Act.
B. Claims against Kassop and Berkowitz
I. Bh'ens Claim (Count IV)
In Count IV. Colon attempts to bring a Bivens action against Kassop and Berkowitz
based on alleged constitutional violations. The Court lacks subject matter jurisdiction to hear this
claim because it is barred by an outgrowth of the Feres doctrine: the doctrine of intra-military
immunity. Accordingly. Count IV is dismissed under Rule 12{b)(1).
Whereas the Feres doctrine prohibits servicemen from suing the government under the
FTCA. the related doctrine of intra-military immunity prohibits serviccmen Irom bringing suits
for service-related injuries in other contexts. Onc such context is where a serviceman seeks to
bring a Bivens action against another serviceman to redress an injury suftered "incident to
service:' In Stanley. 483 U.S. at 684. the Supreme Court unequivocally held: "no Bivens remedy
is available for injuries that 'arise out of or are in the course of activity incident to service ....
(internal citation omitted). In light ofS/an/ey ... the law is now settled that Bil'ens suits arc never
permitted for constitutional violations arising Irom military servicc. no matter how severe the

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injury or how egregious the rights infringement:'

Erwin Chemerinsky. Federal Jurisdiction 622

(5th ed. 2007).;
For the reasons set forth above. Colon's injuries "arise out of activity incident to service:'
See Section liLA. I. supra. Therefore. the doctrine of intra-military immunity bars Colon from
bringing a Bi\'ens action based on her injuries. Accordingly. Count IV is dismissed.
2. State Law Claims (Counts V and VI)
i.

Intra-Military

Immunity

While the doctrine of intra-military immunity serves as an absolute bar to a plaintiffs
Bivens action against fellow military personnel. the doctrine only bars state statutory or tort
claims where a plaintiffs

injury is "incident to service" and lhe defendant is sued for

"performing a military act. •. See Kenneally \'. Bayer. 760 F.Supp. 503. 505 (D. Md. 1990).
In imposing the "military acC requirement in Kenneally. Judge Ramsey relied on the
Tenth Circuit's opinion in Durant

I'.

Nenell1an. 884 F.2d 1350 (10th Cir. 1989). In Durant. the

Tenth Circuit rightly acknowledged the distinetion between the Feres doctrine and the intramilitary immunity doctrine. Id. at 1352 ("cases in which liability is asserted by servicemen
against military actors for acts committed within the context of military service" are not ..true
Feres cases because the claims asserted are not founded upon the FTCi\ and the liability of the
United States is not implicated."). The Tenth Circuit recognized that the intra-military immunity
doctrine is based on only one of the rationales underlying Feres: courts should not interfere with

~ In addition to the intr~-ll1ilitary immunity doctrine. the Supreme COllrt has made it clear that courts should not
extend 8i\'ens to new contexts where "Congress has provided what it considers adequate rcmcdiallllcchanisllls for
constitutional violations:' or where there are "special factors counseling hesitation:' Sclnl'eikL'r \'. Chi/icky. 487 US.
412.423 (1988). Here. the Privacy Act provides an adequate remedial mechanism for Colon"s constitutional
violations. See. e.g .. Wilson \'. UMy, 535 F3d 697. 707 (D.C. Cir. 1008) ("The failure of the Privacy Act 10 provide
complete relief to [plaintiftl. however. does not undermine its status as a 'comprehensive scheme' that stops liS from
providing additional remedies under Bil'ells."). Further. "a Bil'l.!l1S action arising frolll a service-connected injury is
foreclosed by 'special factor counseling hesitation ..•. Uniled Slales \'. Slan/~r. 483 U.S. 669. 705 (1987) (internal
citation omitted).

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sensitive military affairs because doing so risks military discipline and effectiveness. !d at 1353
(citing Chappell

I'.

Wallace.

462 U.S. 296 (1983)). Indeed. when one serviceman sues another

serviceman. the distinctively federal relationship between the Government and members of its
armed forces is not implicated. nor can the serviceman avail himself of a generous system of
statutory disability and death benelits. The Tenth Circuit also recognized that although "evolving
jurisprudence has created a zone of protection fllr military actors. immunizing actions and
decisions which involved military authority from scrutiny by civilian courts:' ..this zone was
never intended to protect the persollal

ocls

of an individual when those acts in no way implicate

the function or authority of the military," Dllra/1/. 884 r.2d at 1353 (emphasis added).
Recognizing these facts. the Tenth Circuit imposed an additional requirement for
invoking intra-military immunity where one serviceman brings a common law tort claim against
another serviceman: the defendant must be sued for performing a "military act," !d at 1354.
Although the Tenth Circuit was the first to explicitly adopt this requiremcnt. it noted that other
courts had implicitly imposed the same requirement. See id. ("courts have granted immunity to
persons whose lIIililm)'

alilhorily

is the basis for a plaintiffs claim ofliability") (emphasis

added).
The Fourth Circuit has never explicitly adopted the "military act" requirement of Dllra/1/
and Kelllleally.

However, it has done so implicitly. In 7i-erice

I'.

S1I1II111011S.
755

F.2d 108 I. 1084-

85 (4th Cir. 1985). where the Fourth Circuit held that Feres barred a common law tort claim
between enlisted military personnel and their superiors. the court noted that the defendant was
engaged in a military-rather

than a personal-act.

In that case. plaintiffs superior was sued for

punishing plaintiffs minor infraction unduly harshly. which allegedly led to plaintitrs death. !d

15

The punishment handed down by the naval onicer in his supervisory capacity-unduly
not-was

harsh or

uncquivocally a "military act". and the courl was reluctant to disturb it. Id. at 1084.
Moreover. in each a/lll ere,)' casc cited in Trerice. thc defendant was sued fiJr cngaging

in a military act. In Bass

I'.

ParsollS. 577 F.Supp. 944 (S.D.W.V. 1984). dcfcndants wcrc Anny

doctors.ld. at 945. I'laintilTwas injurcd during basic training and soughtmcdical

treatment. Id.

He subsequcntly sued the Army doctors for their alleged negligencc. Id. at 946. Thc doctors'
treatmcnt ofplaintilrs

military injury was unequivocally a "military act." In Sigler \'. l.eVal1.

485 F.Supp. 185 (D. Md. 1980). plaintiffs wcrc the family mcmbcrs ofa fonner
counterintelligcnce

agent in thc Army. Id. at 188. Plaintiffs sued various military officials for

actions Icading to thc agent's dcath. Id. Plaintiffs alleged that alier dcfcndants discovered thc
agent was planning to write a book exposing confidential information. they interrogated him
extensively for days. ultimately causing his dcath. Id. at 188-89. Whcther the interrogation
violated the law. thc military officials e1early engaged in such conduct in their military-rathcr
than thcir personal-capacities.

Accordingly. they wcrc cach engagcd in a "military act:' In

Mol/no\\' \'. Col/on. 716 F.2d 627 (9th Cir. 1983). defclldants werc plaintiffs superiors in the Air
Forcc. They were sued for ignoring plainti ffs warnings rcgarding thc safcty of a jet that
subsequently crashed. Id. at 628. Plaintiffs superiors' dccision to cxcrcise their discretion by
ignoring plaintiffs warning was uncquivocally a "military act:' In Le\\'is

I'.

Uniled Slales. 663

F.2d 889 (9th Cir. 1981). plaintiff was a Marine who dicd in a planc crash. and plaintiffs cstate
sought to sue thc serviccmcn who maintained. operated. and controlled the aircrafi. Id. at 890. In
maintaining. operating. and controlling the aircraft those individuals were also clearly cngaged in
a "military act:' Finally. in Bailey \'. Van Buskirk. 345 F.2d 298 (9th Cir. 1965). defendants werc
army medical surgeons. Plaintiff was injured and wcnt to the surgeons to bc opcrated upon. Id. at

16

298. He subsequently sued them for their alleged negligence. Id. The surgeons' treatment of
plaintifrs

military injury was unequivocally a "military act." These cases eonfirm that the Fourth

Circuit has implicitly adopted the requirement adopted explicitly in Duranl and Kennea/~l': a
serviceman can invoke intra-military immunity to bar a common law tort suit brought by another
serviceman i[he is sued for committing a "military"-as

opposed to a personal-"act,"

Here. neither Kassop nor Berkowitz is being sued for performing a "military act,"
Instead. each is being sued for accessing and sharing Colon's medical records as a lavor to
Wollenburg. with whom each had a personal relationship. The Amended Complaint alleges that
each doctor did this favor not as part of his military duties. but instead out ofa desire to help
Wollenburg. Indeed. Colon alleges that Kassop accessed and shared hcr confidcntial health
records because he wanted to help Wollen burg. who was his close friend. roommate. and a
groomsman in his wedding. ECF No. 19 ~ 16. Colon alleges that Berkowitz directed his
subordinates to access, view and print Colon's medical records because he too wanted to help
Wollenburg. who was his patient. Id. ~ 20. Because the Amended Complaint alleges that each of
the doctors acted in his personal capacity-and

outsidc the scope of his military authority-there

is no rationale lor affording either immunity. Regulating the doctors' conduct would not involve
courts in sensitive military affairs or risk interfering with military discipline and effectiveness.
Instead. it would prevent military doctors from using their privileged access to the military
electronic records system for private aims. In short. because Kassop and Berkowitz are being
sued for performing personal-rather

than military-acts.

they cannot invoke the doctrine of

intra-military immunity in order to bar Colon from bringing Count VI.

17

II.

Federal Enclave Doctrine

While the doctrine of intra-military immunity does not bar Colon's state law claims. the
Federal Enclave doctrine does. Specifically. the alleged MCMRA violations and negligent access
and disclosure of protect cd health information occurred on two differcnt "fcderal cnclavcs:'
where such causes of action are not applicable. Accordingly. Counts V and VI arc dismissed
undcr Rule 12(b)(6).
Article I ofthc Constitution states Congress shall have the powcr:
to exercise Legislation in all Cascs whatsoever ovcr such District[sj ... as may.
by Cession of particular States ... becomc the Seat of thc government of the
United Statcs. and to cxereise likc authority over all Placcs purchased by thc
Conscnt of the Lcgislature of the State in which the Same shall be. for thc
Erection of Forts. Magazines. Arsenals. Dock-Yards. and othcr needfull3uildings.
U.S. Cons\. Art. I.

* 8, cl. 17. This constitutional

provision has givcn rise to the federal enclave

doctrinc. Generally speaking. the federal enclave doctrinc establishes that the federal government
obtains the right to choose whether state or fedcral law govcrns a tcrritory from the time it exel1s
exclusive jurisdiction over that territory.
Determining whether application of a particular state law is barred by the !Cderal enclave
doctrine requires two steps. Firs\. the Court must determine whether the conduct at issue
occurred on a federal enclave. "The United States acquires exclusive jurisdiction ovcr a federal
enclave ifit acquires the land by conscnt of the state legislature:' See Boul/mer v. Clew/am/
Consl. Inc.. No. RDB-II-224,

2011 WL 2976868. at *2 (D. Md. July 21. 2011) (citing I'au/ v.

Uniled Slales. 371 U.S. 245. 267 (1963)). Second. whcre it is established that the conduct
occurred on a federal enclave, the Court must determine whethcr thc lederal govemmcnt has
decided to makc thc particular statc law at issuc applicable on that fedcral cnclavc. Thc gcncral
rule for identifying whcthcr a statc law is applicable on a fedcral enclave is as follows: a statc

18

law in e/Tect at the time of cessation continues in effect as long as it does not conflict with
federal purposes. but a subsequent state law has no effect unless (1) at the time of cessation the
state specifically retained jurisdiction over the subject matter at issue or (2) Congress speci/ically
authorized the enforcement of the state law on the federal enclave. See. e.g. Stokes \'. Adair. 265
F.2d 662. 665 (4th Cir. 1959): Upstate Citizens/hI' Equal .. Inc.

1'.

United Slates. 841 F.3d 556.

571 (2d Cir. 2016): Allison \'. Boeing Laser Tech. Sen's .. 689 F.3d 1234. 1235 (10th Cir. 2012):
Cooper \'. S. Cal. Edison Co.. 170 Fed. Appx. 496. 497 (9th Cir 2006): Koren

1'.

i'vlartin Mariel/a

Sen's .. 997 F. Supp. 196.202 (D. P.R. 1998).
In this case. the parties agree that the Maryland legislature ceded both Fort Meade and the
Walter Reed Medical Center to the United States and that both territories are therefiJre federal
enclaves. See ECF Nos. 27-1 at 13-14: 28 at 1: 34 at 24. They disagree about whether the federal
government has decided to make the state laws at issue applicable on these two federal enclaves.
Maryland transferred jurisdiction over Fort Meade in 1906. See Baltimore Gas ami Elec. Co. ".
United States. 133 F. Supp. 2d 721. 742 (D. Md. 200 I). It transferred jurisdiction over the Walter
Reed Medical Center-formerly

known as the National Naval Medical Center-in

1938. See

BOII/lmer. 20 II WI. 2976868 at *2: United States \'. Collins. No. 05-1387M. 2006 WI. 278548 at
*1 (D. Md . .Jan. 31. 2006): 61 Op. Atty Gen. Md. 441. 1976 Md. AG LEXIS 120. at *1-2 (1976).
The MCMRA was enacted in 1990. See Md. Code Ann. Health Gen .. ~ 4-301 etseq. No case has
been identified where the tort of negligent access and disclosure of protected health information
has been recognized in Maryland. There/ore. these claims only apply on these federal enclaves if
Congress specifically authorized their enforcement or if Maryland specifically retained
jurisdiction over the subject matter at issue. Colon advances both arguments but each fails.

19

First. Colon claims Congress specifically authorized the enforcemcnt ofthc state laws at
issue when it passed 28 U.S.C. ~ 500 I. But Colon fails to recognize that this statute. li:mneriy 16
U.S.c. ~ 457. likely pertains only to wrongful death and survival actions or, at most. physical
injury to onc's person. See .faille.\' Stell'art & Co. \', Sac!raku/a. 309 U.S. 94, 100 (1940) (citing to
16 U.S.C. ~ 457 as related to "rights of action for accidcntal death by ncgligence or wrongful
act"); Ferehee \'. ChelTon Chelll. Co .. 736 F.2d 1529. 1533 (D.C. Cir. 1984) (citing 16 U.S.c. ~
457 and noting that "thc substantive clements of the cause of action crcated by the federal
wTongful death act arc thus defined by reference to state law"): lv/organ \'. Unitet! Sli/te.\'. 709
F.2d 580, 582 (9th Cir. 1983) (noting that 16 U.S.c. ~ 457 is "merely a federal wrongful death
statute. paralleling similar state statutes, designed to give a right of recovery ti:Jrdeaths occurring
on property within the exclusivc jurisdiction of the United States"). But .\'ee S/1II1"01I'
MorellO Entel]Jrises. LLe. No. 3-16-cv-02844-L-KSC.

I'.

Gino

2017 WL 1550162. at *3 (S.D. Ca. May

1.2017) (finding that 28 U.S.c. ~ 5001(b) covers "physical injury sustained by one's person").
With only minor changes. 28 U.S.C. ~ 5001 tracks thc language of its predecessor, 16
U.S.c. ~ 457. 28 U.S.c. ~ 5001(a) establishes that a state's wrongfiil death statute applies where
death occurs on a federal enclave. 28 U.S.c. ~ 5001(b) clarifies that "in a civil action brought to
recover on account of an injury sustained in a place described in subsection (a). the rights of the
parties shall be governed by the law of the State in which the place is located." PlaintitTargues
that subsection (b) should be read to mean that all state tort law and state statutes apply on
federal enclaves. But to read subsection (b) that way would bc to allow it to swallow the federal
enclave doctrine whole. which there is no indication Congress wished to do when it passed 28
U.S.c. ~ 5001. See

S/1II1"01I'.

2017 WI, 1550162. at *3 (noting that interpretation covering any

injury would be co-extensive with Article III standing and that "fsJuch a result would be

20

inconsistent with the more than eighty years of Federal Enclave Doctrine jurisprudence .. :').
Colon does not assert either a wrongful death or a survival claim or a physical injury to the

S 5001

person." Therefore, 28 U.S.c.

does not authorize the enforcement of her state law claims

on these two federal enclaves.
Second. Colon claims Maryland specifically retained jurisdiction over the subject matter
at issue when it passed what is now Md. Code. Ann" Gen. Prov"

S 6-20 I. The

initial version of

this law became effective on October 1. 1984. See id. ("Former State Government
added by Acts 1984. c. 284.

S

S

14-102.

1. efI Oct. 1. 1984."). For one, a state statute promulgated ({lieI'

the cessation of a federal enclave cannot possibly be the vehicle by which a state retains
jurisdiction over a particular subject matter on that federal enclave. Indeed. once thc federal
enclave has been ceded, the./ederal go)'emmel1l has exclusive authority to detennine the choice
of law on that federal enclave. Moreover.

S 6-201

by its own tenns "does not affect the

jurisdiction and authority of the State over land. or persons. property. and transactions on the
land. that the United States or a unit of the United States acquired on or before May 31. 1943."
Both Fort Meade and the Walter Reed Medical Center were ceded to the United States prior to
May 31, 1943. Therefore, this statute cannot possibly affect the applicability of state law on these
federal enclaves.
Thus. (I) the MCMRA and the tort of negligent access and disclosure of protected health
infolll1ation are state laws not in existence at the time Fort Meade and the Walter Reed Medical
Center were ceded by Maryland to the United States: (2) Congress did not specifically authorize
the enforcement of either of these state laws on either Fort Meade or the Walter Reed Medical
Center: and (3) Maryland did not specifically retain jurisdiction over the subject matter covered
(,As indicated above. the court in Shurmf. and others. have extended

* 5001(h)

to cover "physical injury sustained

by onc"s person." Sf!t! Siluro1\'. 2017 WL 1550162. at *3. This broader interpretation would stillnol cover the injury
at issue here. so this Court need not resolve whether ~ 500 I (b) can be extended that far.

21

by these state laws when it ceded Fort Meade and the Walter Reed Medical Center to the United
States. For these reasons, neither the MCMRA nor the novel tort Colon asserts is applicable on
either of these federal enclaves. Accordingly. Counts V and VI are dismissed.)

IV.

CONCLUSION
For the foregoing reasons, the United States and DOD's Motion to Dismiss. ECF No. 26.

is granted in part. and denied in part. Kassop and Berkowitz's Motions to Dismiss. ECF Nos. 27
and 28. are granted. A separate Order follows.

Dated: March /!>.2018

I

&:/t--

GEORGE J. HAZEL
United States District Judge

7 Similar to claims against the United States. because the Court finds that the Federal Enclave Doctrine bars Colon's
claims against Kassop and Berkowitz, the Court need not address their alternative arguments. including: \vhether the
DOD directive preempts application of the MCMRA against Kassop and Berkowitz. ECF No. 27-1 at 13: Colon
adequately alleged that Berkowitz acted in bad faith as required by the MCMRA. id. at 18: the MCMRA provides an

exclusive statutory remedy such that Colon cannot bring a cOllllllon-la\\' tort claim.
forecloses Colon's claims against Kassop and Berkowitz. ill. at 21.

22

id.;

the FTCA 'sjudgmcnt bar