Rosado-Montes v. United States of America (Department of Veterans Affairs) et al
Filing
15
OPINION AND ORDER. GRANTED in part and DENIED in part 6 MOTION to dismiss. Signed by Judge Salvador E. Casellas on 3/31/2014.(AVB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
1
2
3
LESLIE ROSADO-MONTES,
Plaintiff,
4
v.
5
6
Civil No. 13-1158 (SEC)
UNITED STATES OF AMERICA, ET
AL.,
7
Defendants.
8
9
OPINION AND ORDER
10
Before the Court are the defendants’ motion to dismiss (Docket # 6), the plaintiff’s
11
opposition thereto (Docket # 9), and the defendants’ reply. Docket # 14. After reviewing the
12
filings and the applicable law, the defendants’ motion is GRANTED in part and DENIED in
13
part.
14
Factual and Procedural Background
15
This is a case under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
16
2671-2680, concerning the alleged unlawful disclosure of plaintiff Leslie Rosado-Montes’
17
18
(Rosado) confidential medical information. Rosado also alleges violations under the
Constitution, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L.
No. 104-191,110 Stat.1936 (1996), and the Privacy Act, 5 U.S.C. § 552a. The defendants are
19
the United States of America; the Department of Veterans Affairs, the institution who oversees
20
21
the Veteran’s Hospital in San Juan, Puerto Rico (VH); Eric Holder, the Attorney General; Rosa
Emilia Rodríguez, the United States Attorney for the District of Puerto Rico; and Eric Shinseki,
22
the Secretary of the Department of Veterans Affairs. The well-pleaded facts in the
23
complaint—extending every reasonable inference in Rosado’s favor, see A.G. ex rel. Maddox
24
v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)—are as follows.
25
The events giving rise to this suit occurred at the VH, during May and June, 2009.
26
Docket # 1, ¶ 12. On May 23, Rosado, a veteran who had been working as a “resident nursing
1
2
Page 2
Civil No. 13-1158 (SEC)
student” at the VH, “began feeling a strong pain in his lower back and groin,” id. He promptly
was admitted to the VH’s emergency room, where doctors treated him. Id. at ¶ 13. Eight days
3
later, a doctor told him “that he was doing well and they had cured him of all his medical
4
5
6
conditions.” Id. at ¶ 17. A confused Rosado “asked the doctor to explain to him what was
happening.” Id. The doctor obliged, informing him that he had “Syphilis and Chlamydia” Id.
HIV tests, the doctor further informed Rosado, were administered. Id. ¶ 19.
7
During his hospitalization, Rosado told Margieliz Quintero and Victor Sánchez — a
8
“classmate” and his “best friend,” respectively — about his diagnosis. Id. ¶¶ 14, 26. “He was
9
assured by both of them that it would be kept confidential.” Id. ¶ 26. According to the
10
complaint, however, his other classmates “access[ed] his medical records.” Id. ¶ 30. “A couple
11
of days later,” Rosado was released and resumed his “nursing training” at the VH. Id. ¶ 28. As
12
it happened, Rosado tested negative for HIV, id. ¶ 27, though, shortly thereafter he “began to
13
feel intense abdominal pain, and was admitted once again” to the VH. Id. ¶ 30. This time, he
14
15
requested to be hospitalized in a different floor, “to avoid his classmates being able to access
his medical record,” id. ¶ 30. The VH granted his request. And he was hospitalized for eight
more days. Id.
16
According to the complaint, after he returned “to his training,” another nurse told him,
17
18
“in a mocking manner if he had kissed a man in the mouth.” Id. ¶ 31. “As time went by,” the
complaint avers, Rosado’s classmates “continued to speak about “sexual[ly] transmitted
19
diseases,” all while pointing at him in the hallways and “whisper[ing] in his presence.” Id. ¶ 35.
20
In the same time frame, María Biascochea, “the lead nurse of the eight floor,” id. ¶ 33, met with
21
Rosado and told him that “his classmates had complained about him.” Id. ¶ 37. Then,
22
Biascochea allegedly “confessed she had access to [his] [medical] record because she needed
23
to know who he really was.” Id. She also explained that she wanted to confirm comments
24
regarding Rosado’s “mental conditions” that, according to the complaint, were made by the
25
director of the nursing internship program. Id.
26
1
2
Page 3
Civil No. 13-1158 (SEC)
Things escalated, and Rosado complained to Kiomara Bonilla, the VH’s so-called
“privacy official.” Id. ¶ 38. According to the complaint, Bonilla told Rosado that she would
3
investigate the apparent breach of his medical information. Id. ¶ 38. “A week later,” Bonilla
4
5
furnished Rosado with a list of the employees who had accessed his records and instructed
Rosado to “mark any person that did not have authorization to view his records.” Id. ¶ 38. He
6
identified that seven employees, including Biascochea, Heriberto Quintero (Margieliz
7
Quintero’s father), and several other nurses. Id. ¶ 39.
8
After Rosado returned to school, “the situation worsened,” id. ¶ 42, after a classmate said
9
to him: “Margieliz told me you have Chlamydia, Syphilis, Hepatitis B, and that [you] were HIV
10
positive” and that she was telling everyone because it was [your] fault that her father was going
11
to lose his job.” Id. ¶ 44. Rosado filed an administrative claim with the Department of Veterans
12
Affairs and received a “Notice of Right to Sue” on September 1, 2012. Id. ¶ 47.
13
14
15
This suit ensued. Docket # 1. The complaint, alas, is an exemplar of how not to draft a
complaint. It omits the “claim for relief” (or “statement of the claim”) section, see Lexmark
Int’l, Inc. v. Static Control Components, Inc., No. 12-873, 2014 WL 1168967, *10 n. 6 (U.S.
Mar. 25, 2014) (noting that an “element of a cause of action, . . . must be adequately alleged at
16
the pleading stage in order for the case to proceed”), thereby obfuscating (unnecessarily) the
17
18
pleadings.1 Indeed, the complaint is so poorly drafted that it is difficult to determine upon what
theory the action is based. At bottom, however, Rosado appears to claim that the defendants
19
violated the FTCA, the Privacy Act, HIPAA, Title VII, and the Constitution by allowing the
20
VH’s employees unlawful access to his confidential medical information. He alleges that such
21
an illegal disclosure has caused him “moral damages and mental anguish,” Docket # 1¶ 48; and
22
that he was “humiliated, discriminated, [and] harassed . . . .” Id. ¶ 50. He seeks six million
23
dollars in damages.
24
25
1
26
See also, e.g., Boggs v. 3M Co., 527 F. App’x 415, 417 (6th Cir. 2013) (Sutton, J.) (remarking
that “while the pleading requirements of . . . Rule 8(a) are modest, . . . they are not non-existent”).
1
2
Page 4
Civil No. 13-1158 (SEC)
The defendants move to dismiss for want of subject-matter jurisdiction, see Fed. R. Civ.
3
P. 12(b)(1), and for failure to state a claim upon which relief could be granted, see Fed. R. Civ.
4
5
P. 12(b)(6). Docket # 6.2 Specifically, they claim that (1) “[t]here is no state tort analog cause
of action under HIPAA,” id., p. 4; (2) HIPAA provides no private cause of action, id., p. 6; (3)
the complaint “is outside the scope of the FTCA,” id., p. 7; and (4) the complaint fails to state
6
a claim against the individual defendants, id., p. 10. Rosado opposed. Docket # 9.
7
Standard of Review
8
Rule 12(b)(1) is the appropriate vessel for challenging a court’s subject-matter
9
jurisdiction. Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). In
10
reviewing a motion to dismiss under this rule, the court construes the plaintiffs’ allegations
11
liberally and “may consider whatever evidence has been submitted, such as . . . depositions and
12
exhibits.” Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011) (internal quotation marks and
13
citations omitted). Accordingly, courts are empowered to “[w]eigh the evidence and make
14
factual determinations, if necessary, to determine whether it has jurisdiction to hear the case.”
15
Massachusetts Delivery Ass’n v. Coakley, 671 F.3d 33, 40 n. 8 (1st Cir. 2012) (citing Torres-
16
Negrón v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007)). When faced with a
17
18
jurisdictional challenge courts must credit the plaintiffs’ well-pleaded factual averments and
indulge every reasonable inference in the pleader’s favor. Merlonghi v. United States, 620 F.3d
50, 54 (1st Cir. 2010) (citing Valentin, 254 F.3d at 363). Nonetheless, a plaintiff faced with a
19
subject-matter jurisdiction challenge has the burden to demonstrate its existence. Johansen v.
20
21
22
United States, 506 F.3d 65, 68 (1st Cir. 2007) (citations omitted).
For its part, Rule 12(b)(6) authorizes the dismissal of a complaint that fails to state a
claim upon which relief could be granted. To avoid dismissal, a complaint must provide “a short
23
24
25
26
2
When, as here, a defendant’s subject-matter jurisdiction challenge is based on the face of the
complaint (also called a “facial attack on a complaint”), courts “merely . . . look and see if the plaintiff
has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff's]
complaint are taken as true for purposes of the motion.” Torres-Negrón v.. J & N Records, LLC, 504
F.3d 151, 162 (1st Cir. 2007).
1
2
3
4
Page 5
Civil No. 13-1158 (SEC)
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R .Civ. P.
8(a)(2). At the pleading stage, the plaintiffs need not demonstrate likelihood of success, but their
claims “‘must suggest more than a sheer possibility that a defendant has acted unlawfully.’”
García-Catalan v. United States, 734 F.3d 100, 102-03 (1st Cir. 2013) (quoting Ashcroft v.
5
Iqbal, 556 U.S. 662, 678 (2009)). In other words, a plaintiff must allege “enough facts to state
6
7
a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007). A claim has facial plausibility when a “complaint’s non-conclusory factual content . .
8
. [permits] the court to draw the reasonable inference that [each] defendant is liable for the
9
misconduct alleged.’” Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 639 (1st Cir. 2013)
10
(quoting Iqbal, 556 U.S. at 663).
11
Applicable Law and Analysis
12
For cases, such as this one, where no diversity of citizenship exists between parties,
13
“jurisdiction turns on whether the case falls within ‘federal question’ jurisdiction.” Ortiz-Bonilla
14
v. Federación de Ajedrez de Puerto Rico, Inc., 734 F.3d 28, 34 (1st Cir. 2013). Because the
15
defendants’ motion to dismiss is grounded on two different grounds—Rules 12(b)(1) and
16
17
12(b)(6)—the Court would normally consider the Rule 12(b)(1) challenge first. See, e.g., Deniz
v. Municipality of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002) (“When a court is confronted
with motions to dismiss under both Rules 12(b)(1) and 12(b)(6), it ordinarily ought to decide
18
the former before broaching the latter.” (citations omitted)). But where, as here, “both federal
19
20
jurisdiction and the existence of a federal claim turn upon whether the complaint states a federal
question, the preferable practice is to assume that jurisdiction exists and proceed to determine
21
whether the claim passes muster under Rule 12(b)(6).” Estate of Soler v. Rodríguez, 63 F.3d
22
45, 47 n. 1 (1st Cir.1995). Following this approach, the Court evaluates the plausibility of each
23
of the claims asserted by Rosado.
24
Constitutional and Title VII Claims
25
As said, Rosado’s complaint is poorly drafted, to say the least. In the first page of his
26
complaint, Rosado mentions “the Constitutional Right to Due Process under the US Constitution
1
2
Page 6
Civil No. 13-1158 (SEC)
and under supplemental jurisdiction principles in the interest of judicial efficiency and
economy.” Docket # 1 ¶ 4. In the third sentence, meanwhile, he invokes “Title VII, 42, Civil
3
Rights Act 1964 . . . .” Docket # 1 ¶ 4. These inadequately plead (and frivolous) claims are now
4
5
summarily dismissed.
The short of it is that these purported claims were not even pled as causes of action, but,
6
rather, briefly mentioned on the first page of the complaint. See id., p. 1. And such a lackluster
7
effort sounds the death knell on them. See Marrero-Rodríguez v. Municipality of San Juan, 677
8
F.3d 497, 501 (1st Cir. 2012) (“Plaintiff’s purported Fourth Amendment claim fails to meet the
9
pleading standards of Iqbal [since it] was not even pled as a claim, but only mentioned on the
10
first page of the complaint.” (citation omitted)); Fábrica de Muebles J.J. Alvarez, Incorporado
11
v. Inversiones Mendoza, Inc., 682 F.3d 26, 34 (1st Cir.2012) (affirming dismissal under Iqbal
12
“because ... statutes are briefly mentioned in the complaint . . . rather than pled as causes of
13
action ...”); see also Alicea v. Machete Music, No.12-1548, --- F.3d ----, 2014 WL 888909, at
14
15
* 6 (1st Cir. Mar. 7, 2014) (“The mere mention of a Lanham Act claim in the opening paragraph
of the plaintiffs’ complaint is not enough to make out such a claim as part of the plaintiffs’
cause of action . . . .” (citations omitted)).3 These wholly unplausible claims are, therefore,
16
DISMISSED.
17
18
19
Remaining Claims
The same conclusion could follow regarding the purported claims under HIPAA, the
Privacy Act, and the FTCA. Again, neither claim was pled as a cause of action, making them
20
21
3
22
23
24
25
26
In all events, these claims would still fail. Many reasons abound, but it suffices to name a few.
For one thing, the Privacy Act’s comprehensive remedial scheme governing the maintenance and use
of agency records precludes separate constitutional claims. See Chung v. U.S. Department of Justice,
333 F.3d 273, 274 (D.C.Cir .2003) (affirming the dismissal of constitutional claims as “encompassed
within the remedial scheme of the Privacy Act”). For another, the United States has not waived its
sovereign immunity for constitutional torts. See FDIC v. Meyer, 510 U.S. 471, 476-77 (1994); accord
Villanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011) (holding that “constitutional tort claims
are not cognizable under the FTCA”). Finally, it appears that these wholly perfunctory claims would
be time barred by the applicable statute of limitations.
1
2
Page 7
Civil No. 13-1158 (SEC)
amenable to summary dismissal for the reasons just given. In the interest of justice, however,
the Court cuts some slack to Rosado on these inadequately pleaded claims. After all, the gist of
3
Rosado’s complaint are the alleged violations of his privacy rights, so contrary to the
4
5
unplausible claims dismissed above, these (potentially plausible) claims give the defendants
some idea of the injuries Rosado claims to have suffered.
6
I.
7
The HIPAA claim is readily dispatched. The defendants are right that this court lacks
8
jurisdiction to entertain this claim, for it is beyond dispute that HIPAA creates no private cause
9
of action. E.g. Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010); Acara v. Banks, 470 F.3d 569,
10
570–72 (5th Cir. 2006). While “HIPAA provides for civil and criminal penalties to be imposed
11
on persons who improperly handle or disclose individually identifiable health information . . .[,]
12
the law specifically indicates that only the Secretary of Health and Human Services or
13
authorized state authorities may bring forth a HIPAA enforcement action.” Padilla-Ruiz v.
14
15
HIPAA
United States, 893 F. Supp. 2d 301, 309 (D.P.R. 2012) (emphasis added) (quoting Valentín
Muñoz v. Island Finance Corp., 364 F.Supp.2d 131, 136 (D.P.R. 2005)). No more is needed to
conclude that this claim fails. The defendants’ motion to dismiss is thus GRANTED on this
16
score, and this claim is DISMISSED.
17
18
II.
The Privacy Act
Rosado’s purported claim under the Privacy Act appears to stand on stronger footing.
19
The Privacy Act bars federal agencies from disclosing “any record which is contained in a
20
system of records by any means of communication to any person, or to another agency” without
21
the consent of “the individual to whom the record pertains,” unless the disclosure falls within
22
one of its narrow exceptions. 5 U.S.C. § 552a(b). To that end, the Privacy Act mandates that
23
agencies establish safeguards to protect individuals from the disclosure of confidential records
24
“which could result in substantial harm, embarrassment, inconvenience, or unfairness to any
25
individual on whom information is maintained.” 5 U.S.C. § 552a(e)(10); see Doe v. Chao, 540
26
U.S. 614, 618 (2004). Pertinently, the Act allows an aggrieved individual to sue for “actual
1
2
Page 8
Civil No. 13-1158 (SEC)
damages,” 5 U.S.C. § 552a(g)(4)(A), if the federal government intentionally or willfully violates
the Act’s requirements “in such a way as to adversely affect the individual.” F.A.A. v. Cooper,
3
132 S. Ct. 1441, 1446 (2012) (quoting § 552a(g)(1)(D)). So unlike HIPAA, the Privacy Act
4
5
6
does create a private right of action under § 552a(g), which is “limited to actions against
agencies of the federal government and does not apply to state agencies or individuals.”
Pérez-Santos v. Malavé, 23 F. App’x 11, 12 (1st Cir. 2001) (per curiam).
7
Here, the Court need not decide if Rosado has pled a plausible claim under the Privacy
8
Act. This is so because the defendants nowhere contest this claim in their motion to dismiss.
9
And Rosado’s Privacy Act claim is neither frivolous nor implausible: The Privacy Act applies
10
to the Department of Veterans Affairs, see, e.g., Hunt v. U.S. Dep’t of Veterans Affairs, 739
11
F.3d 706 (D.C. Cir. 2014) (per curiam); and according to the complaint, VH employees
12
intentionally disclosed Rosado’s confidential medical information without his consent. And
13
such a disclosure, he claims, has caused his damages.
14
15
To be sure, this claim is still subject to the Privacy Act’s two-year statute of limitations,
see Reyes v. Supervisor of Drug Enforcement Admin., 834 F.2d 1093, 1095-96 (1st Cir. 1987)
(citing U.S.C. § 552a(g)(5)), and it appears from the complaint that Rosado did not bring this
16
suit within two years of the alleged Privacy Act violations. (The alleged violations occurred in
17
18
2009, but the complaint was filed in 2013.) Yet the defendants ignore this point (which is
unsurprising given their jettisoning discussion of this claim). Still, it is unclear whether
19
exhausting administrative remedies under the FTCA could equitably toll the prescriptive period.
20
See Boyd v. United States, 932 F. Supp. 2d 830, 839 (S.D. Ohio 2013). This court need not
21
decide this issue on its own accord, however, since it does not go to its subject-matter
22
jurisdiction. See Rouse v. U.S. Dep’t of State, 567 F.3d 408, 415 (9th Cir. 2009); but see
23
Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir. 1987). While the First Circuit does not
24
appear to have taken a stance on this apparent circuit split, see Boyd, 932 F. Supp. 2d at 839
25
(collecting circuit split on this point), one would think that it would follow Rouse’s modern
26
holding, especially in light of the Supreme Court’s “endeavor[ ] in recent years to bring some
1
2
Page 9
Civil No. 13-1158 (SEC)
discipline to the use of the term jurisdictional.” Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)
(internal quotation marks omitted); see also Henderson ex rel. Henderson v. Shinseki, 131 S.
3
Ct. 1197, 1202 (2011) (noting that “[b]randing a rule as going to a court’s subject-matter
4
jurisdiction alters the normal operation of our adversarial system”); Alphas Co., Inc. v. William
5
H. Kopke, Jr., Inc., 708 F.3d 33, 37 (1st Cir. 2013) (discussing difference between jurisdictional
6
requirements and claim processing rules). The Privacy Act claim will therefore stand.
7
III.
8
Next are the defendants’ challenges to the FTCA claims. As it happens, “[t]he Privacy
9
Act does not limit the remedial rights of persons to pursue whatever remedies they may have
10
under the FTCA for violations of their interests in personal privacy.” O’Donnell v. United
11
12
FTCA
States, 891 F.2d 1079, 1085 (3d Cir. 1989).
The FTCA, the avenue by which individuals may sue the United States government for
the tortious conduct of its employees, Mahon v. United States, 742 F.3d 11, 12 (1st Cir. 2014),
13
permits individuals to sue the government “for injury or loss of property, or personal injury or
14
15
death caused by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Such a
16
waiver of sovereign immunity, however, is a “limited waiver,” Sánchez ex rel. D.R.-S. v. United
17
States, 671 F.3d 86, 107 (1st Cir. 2012), “giving federal courts jurisdiction over civil claims
18
against the government . . . under circumstances where the United States, if a private person,
19
would be liable to the claimant in accordance with the law of the place where the act or
20
omission occurred. Sánchez v. United States, 740 F.3d 47, 50 (1st Cir. 2014) (quoting 28 U.S.C.
21
§ 1346(b)(1)).
22
As related, the defendants first contend that the FTCA claim fails because “there is no
23
state tort analog to a cause of action under HIPPA.” Docket # 6, p. 4. Maybe so. But their
24
25
argument misses the point. Federal law “cannot function as the source of FTCA liability,”
Bolduc v. United States, 402 F.3d 50, 56 (1st Cir. 2005), which is why “[t]he United States
waives sovereign immunity ‘under circumstances’ where local law would make a ‘private
26
1
2
Page 10
Civil No. 13-1158 (SEC)
person’ liable in tort.” United States v. Olson, 546 U.S. 43, 44 (2005) (emphasis omitted). And,
as correctly argued by Rosado — but ignored by the defendants — the Puerto Rico Supreme
3
Court has recognized tort claims for invasion of privacy, e.g., Rios-Piñeiro v. United States,
4
713 F.3d 688, 693 (1st Cir. 2013) (citing and construing Puerto Rico law), having held that this
5
tort claim “operates ex proprio vigore and [is] enforceable between private individuals.” Colón
6
v. Romero Barceló, 12 P.R. Offic. Trans. 718, 722 (1982) (collecting Puerto Rico case law); see
7
also CMI Capital Mkt. Inv., LLC v. González-Toro, 520 F.3d 58, 64 (1st Cir. 2008) (“[i]t is an
8
oft-cited precept of Puerto Rico law that the concept of fault is as broad as the behavior of
9
human beings, and that it includes any fault that causes harm or injury.” (citations and internal
10
quotation marks omitted)). The upshot is that “claims for violations to dignity and privacy
11
12
protections . . . brought under the Puerto Rico Constitution translate into suits amenable to
FTCA liability.” Rosario v. United States, 538 F. Supp. 2d 480, 493 (D.P.R. 2008); cf. Díaz
Reyes v. United States, 770 F. Supp. 58, 63 (D.P.R. 1991) (noting that Puerto Rico “has never
13
fashioned a court-made rule requiring disclosure of medical conditions to third parties”), aff’d
14
sub nom. Dias Reyes v. United States, 971 F.2d 744 (1st Cir. 1992).
15
The defendants next contend that Rosado’s claims fall “outside the scope of the FTCA,”
16
maintaining that the complaint’s allegations show that the employees who accessed the medical
17
records “acted outside the scope of their employment.” Docket # 6, p. 9; see Rodríguez v.
18
United States, 455 F.2d 940, 942 (1st Cir.1972) (per curiam) (“That the government employee
19
who caused the particular injury was in the course of his employment is one of the basic
20
requirements” of a FTCA claim). They say that the allegations in the complaint itself “show
21
the employees who accessed Plaintiff’s medical records did not have a need to know this
22
information to perform this jobs, and accessing this information was not part of their duties.”
23
Docket # 6, p. 8. But this undeveloped argument is unamenable to disposition at the pleadings
24
25
stage.
“Whether or not a particular act is within the scope of employment is a matter to be
determined in accordance with the law of the place in which the alleged negligent act or
26
1
2
Page 11
Civil No. 13-1158 (SEC)
omission occurred.” Borrego v. United States, 790 F.2d 5, 6 (1st Cir. 1986). But the defendants
neglect to discuss, much less apply, the three elements — adopted by the Puerto Rico Supreme
3
Court — that determine whether or not employees act within the scope of their employment. See
4
Attallah v. United States, 955 F.2d 776, 782 (1st Cir. 1992) (construing and discussing Puerto
5
Rico law on this point). And that omission suffices to summarily deny their request. “[L]itigants
6
should not seriously expect to obtain a remedy without doing the necessary leg work first.”
7
Silverstrand Investments v. AMAG Pharm., Inc., 707 F.3d 95, 107 (1st Cir.), cert. denied, 134
8
S. Ct. 174 (2013).
9
In all events, from the facts alleged in the complaint, and drawing all reasonable
10
inferences in Rosado’s favor, it is not implausible that the unauthorized access and disclosure
11
12
of Rosado’s medical information benefited — if only minimally — the VH. See Borrego, 790
F.2d at 7 (noting that an employee’s desire to “serve, benefit or further” her employer’s interest
is the “fundamental consideration” in determining whether her acts fall within the scope of
13
employment (citation and internal quotation marks omitted)). According to the complaint,
14
15
Biascochea accessed his medical records to, among other things, inform other VH employees
about Rosado’s “mental problems and . . . high suicide risk.” Docket # 1, ¶ 40. And common
16
sense supports the reasonable inference that Biascochea did that out of concern for the
17
workplace safety. Cf. A.G. ex rel. Maddox v. v. Elsevier, Inc., 732 F.3d 77, 83 (1st Cir. 2013)
18
(drawing on common sense to assess plausibility standard).
19
Discovery will shed light on the nature and extent of the employees’ access and
20
disclosure of Rosado’s medical information, and whether the VH benefited therefrom. Cf.
21
Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012) (Boudin, J.) (“[s]ome latitude may
22
be appropriate where a plausible claim may be indicated based on what is known at least where,
23
as here, some of the information needed may be in the control of [the] defendants.” (alteration
24
25
in original; citation and internal quotation marks omitted)). For now the Court need only decide
that Rosado may proceed beyond the pleading stage. Of course, with the necessary evidentiary
support, the defendants may still succeed on this score at the summary-judgment stage, see
26
1
2
Page 12
Civil No. 13-1158 (SEC)
Vernet v. Serrano-Torres, 566 F.3d 254, 262 (1st Cir. 2009), but, at this plaintiff-friendly stage,
the defendants’ request to dismiss Rosado’s FTCA claim is DENIED.
3
Individual Defendants
4
Lastly, the individual defendants — Eric Holder, Rosa Emilia Rodríguez, and Eric
5
Shinseki — seek dismissal from the claims asserted against them. They maintain that none of
6
the statutes alluded to by Rosado provides a cause of action against them. Failing to concede
7
(as he must), Rosado opposes. But his riposte is neither sound nor intelligible, see Docket # 9,
8
p. 13, and comes perilously close to contravening Rule 11; see Fed. R. Civ. P. 11(b)(2) (legal
9
contentions must be “warranted by existing law or by a nonfrivolous argument for the extension,
10
modification, or reversal of existing law or the establishment of new law”). The claims against
11
12
the individual defendants fail at the starting gate.
Starting with the FTCA, it is settled beyond hope of contradiction that the only proper
defendant in an FTCA action is the United States. E.g., Roman v. Townsend, 224 F.3d 24, 27
13
(1st Cir. 2000). The same is true with respect to the Privacy Act Claim; no individual liability
14
15
attaches, as the only proper defendant is the “agency” — here the Department of Veterans
Affairs. See, e.g., Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C.Cir. 2006) (per
16
curiam); Perez-Santos, 23 F. App’x at 12. To say more on this point would be pointless. All the
17
claims against the individual defendants are, therefore, DISMISSED. Barring the Privacy Act
18
claim, all other claims against the Department of Veterans Affairs are also DISMISSED. E.g.,
19
Walters v. Smith, 409 F. App’x 782, 784 (5th Cir. 2011) (per curiam).
20
Conclusion
21
For the reasons stated, the defendants’ motion to dismiss is GRANTED in part and
22
DENIED in part. The only surviving claims are those under the Privacy Act and the FTCA
23
against the Department of Veterans Affairs and the United States, respectively. All other claims,
24
25
including those against the individual defendants, are DISMISSED with prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of March, 2014.
26
s/Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?