UNITED STATES DISTRICT COURT
FOR THE I)ISTRICT OF COLUl\/IBIA

 

DENNIS NICHQLSON
Plaintiff,
v.. Case'No. l:lG-cv-2006 (TNM)

RICHARD V. SPENCER, SECRETARY,
DEPARTMENT OF THE NAVYl

Defendant_

 

 

MEMORANDUM ()PINION
Plaintiff Dennis Nicholson proceeding pro se, has brought an action against the Secr_etary
_ of the Navy 1n his official capacity, with claims of employment discrimination and a violation of
the Health Insurance Portability and Accountability Act (“I-]]PAA”) Mr. Nicholson s
discrimination claims have already been dismissed.; Presently before the Court is the
_' Defendant’s Supplemental Motion to Dismiss the I-IIPAA claim_ Because_I-IIPAA provides no
' private right of action, the Defendant’s motion Will be granted, and the HIPAA claim dismissed
Construing Plaintit`t"s recent filing as a motion for reco-nsideration, I also conclude that
reconsideration of the previous opinion is not Warranted. 7
n I. Ba(:kgrloundl
lP_laintiff.-Dennis Nicholson,l an employee of the U. S. -Department of the Navy, brought
gender-and age discrimination claims against the Secretary of the Navy in his official capacity
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. -

and the Age Discrimination in Employment Act of 1967, as `amended, 29 U.S.C. §§ 621 et seq.

 

1 Pursuant to Fed R. Civ P 25(d) the current Secretary of the Navy has been substituted for
Raymond Edwin Mabus; Jr., his predecessor 1

 

 

 

Nicholson alleged that he Was denied an “opportunity to compete’_’ for a Custodial Worker `
position because of his gender and age. Cornpl_ 2. These claims have been previously
adjudicated by Judge Colleen Kollar»Kotelly.2 Nicholson v. Mabus, 257 F_ Supp. 3d 6, 8
‘ (D.D.C. 2017). Judge Kollar-Koteily concluded that because Nicholson did not wait 180 days
before filing suit after his administrative appeals with the Equal Ernployment Opportunity
Commission (“EEOC”) as required,3 his discrimination claims had to be dismissed Id.

An apparent claim under I-HPAA, 42 U_S.C. §§ 1320d et seq., remains Compl. 2. _Mr.
Nicholson alleges that after requesting medical leave, his supervisor “instructed him to provide
l specific details from [his] doctor regarding [his] medical condition,” which allegedly “v_iolated”
Mr. Nich`ols`o_n’s “HIPAA-`rights_”' Id. `Def`endant now moves to dismiss this claim. Def`.’s Supp.
Mot. To Dismiss, ECF No. 14 (“Supp. Mot. Dismiss”). fn response, the Plaintiff provided n
affidavits seemingly aimed at proving the substance of his discrimination allegations Pl.’s _Resp.
to Def`.-’s Mot. To Dismiss, ECF No. 16 (hereinafter “Mot. Reconsider”). The Court construes
this filing las a motion for reconsideration

II. Legal Standards

A party may move to dismiss a complaint on the ground that it “fail[s] to state a claim
upon which relief can be granted-.” Fed. R. Civ. P. 12(b)(6). A complaint must contain sufficient
factual allegations that,` if true, “state a claim to relief that is plausible on its face_” BellAtl.
Corp. v. Twombly, 550 US 544, 570 t2007). In evaluating a motion to dismiss pursuant to Rule
12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and

accept as true all reasonable factual inferences drawn from well-pled factual allegations

 

_2 This case was reassigned to me on November 3, 2017.

3 The Court further found there were no equitable factors that excused a premature filing Id.

2

 

Bann'eker Ventures, LLC v. Graham, 798 F_3d 1119, 1129 (D.C. Cir. 2015).` "‘In determining
whether a complaint fails to state a claim, [the court] may consider only the facts alleged in the
complaint, any documents either attached to or incorporated in the complaint and matters of
which [the court] may take judicial inotice.” Hurd v. District of Coluinbz`a Gov ’i, 864 F.3d 671,
678 (D.C. Cir. 20l7) (quoting EEOC v. St. Francis_Xavier Parochicrl Sch., 117 F.3d 621, 624

- (D.C. Cir. 1997))_

The filings of a pro se plaintiff are held “to less stringent standards than formal pleadings
drafted by lawyers.” ‘Hetl`nes v.. Kemer, 404 U_S.. 519, 520 (1972). Accordingiy7 the Court can
construe a pro se filing as a motion to reconsider. Potts v. -Howard Universily Hosp., 623 F_
Supp. 2d 68 (D.D.C. 2009). lUnder Federal Rule of Ci_vil Procedure 54(b),4 “any order . . . that
adjudicates fewer than all the claims or the rights and liabilities of` fewer than all the parties . . .
may be revised at any time before the entry of a judgment adjudicating all the claims and-all the
parties’ rights and liabilities.” This rule “recognizes [a courtis] inherent power to reconsider an
interlocutory order‘ as justice requires Capz`tol Sprinklel [nspection, Inc. v Guest Ser'vs., Inc.
630 F 3d 217, 227 (D.C. Cir. 2011) (citation omitted). “While the phrase,‘ as justice requires,’ is '
' _ somewhat abs_tract,.it is a shorthand for more concrete considerations.” Singh v. George
Washington Um`v., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (quoting Cobell v. Norton, 224 F.R.D.
266, 272 (D.D.C. 2004))_ _Those considerations include “whether the court ‘patently’
misunderstood a party, made a decision beyond the adversarial issues presented to the court,

made an error in failing to consider controlling decisions or data, or whether a controlling or

 

4 Here, the proper standard is not “Rule 60(b)(6) [which] applies only to final judgements or " `

_ orders, [but instead is] Rul'e 54(b) [which] applies to interlocutory orders that adjudicate fewer
than all the claims in a given case,” since the previous decision did not adjudicate the remaining
I-IIPAA claim._ See Lewis v. UniredStates, 290 F. Supp. 2d'1, 3 (D.D;C_ 2003)

3 .

 

 

significant change in the law or facts has occurred since the submission of the issue to the
Court.” Youssefv. Holder, 62 F. Supp. 3d 9_6, 98 (D.D`C. 2014) (citation omitted).
IlI. Analysis n

A. There is no private right of action under HIPAA.

The law is fatal to the Plaintiff’ s H]PAA claim, “because no private right of action exists
under [] I-IIPAA__” Johnson v. Quander, 370 F_ Supp. 2d 79, 100 (D.D_C_- 2005),_a]f*d, 440 'F.3d
489 (D.C. Cir. 2006). No federal court has concluded otherwise See Hudes v. Aetna Life Ins.
Co., 806 F.Supp.2d 180, 195 (D.D.C. 201`1) (citing Adams v. Eureka Fire Proz‘ection Dism'ct,
552 Fed.Appx. 137, 138-39 (8th Cir_2009));_see also Acara v. Banks, 470 F.3d 569, 571-72 (5th .
Cir. 2006) (‘,‘Every district court that has considered this issue is in agreement that the statute
does not support a private right of action.”) (collecting cases). While the D.C Circuit has not
explicitly confirmed this interpretation, it has come very close_ In affirming the district court’s-
decision in Johnson, the Circuit_stated: “We have considered Johnson’s other arguments»-which
include claims under t . . HIPAA .. . . and conclude that they are without-merit and do_ not warrant
separate discussion._” Johnson, 440 F.3d at 503.

I see no reason to reach a different conclusion .“Instead of creating a private right of
action, H]PAA explicitly.provides for the imposition of ‘penalt[ies] for failure to comply with
-[HIPAA’ s-] requirements and standards’ by the Secretary of Health and Human Services and,
under certain circumstances, state attorneys general Hudes, 806 F. Supp. 2d at 196 (quoting 42
U.S.VC. § 1320d_-5). rl`he statute thus “specifically indicates that the Secretary of HHS shall
pursue the action against an alleged offender, not a private individual.” Logan v._ Dep ’r of
Vetemns Ajj‘airs, 357 F_Supp.Zd 149, 155 (D.D.C. 2004) (citation omitted). Accordingly, the '

HIPAA claim must be dismissed ' _

 

B. There is no reason based on the law, the facts, or otherwise why the previous
judgment should be reconsidered.

In response to the Supplemental Motion to Dismiss, the Plaintiff filed affidavits
apparently aimed at providing evidentiary support for his dismissed discrimination arguments l
will construe this filing liberally, as a motion to reconsider See Chee)l;s v. Fort Myer Consir.,
722 F Supp. 2d 93, 107 (D.D.C. 2010) (quoting Haz'nes v. Kerner, 404 U..S_ 519, 520 (1972)).
However, the Plaintiff has failed to demonstrate any need for reconsideration

First, no intervening change in any relevant law has occurred The original dismissal was
premised on the statutory requirement that a plaintiff who has filed charges with the EEOC must
“wait 180 days, absent final action by the EEOC, before filing a lawsuit in the federal district
court.” Murthy v. Vilsack, 609 F.3d 460, 465 (D.C. Cir. 2010) (citing 42 U.S.C. § 2000e-l6(c));
Nicholson, 257 F Supp. 3d'at 8. That requirement is still enshrined in the st_atute, and Murthy is
still good law. See Maybank v. Speer, 251 F. Supp. 3d 204, 207 (D.D.C. 2017) (applying Murthy
and 42 U.S.C. § 2000e~16(c))_ n n

Second, only the discovery of new evidence norpreviously available may be reason for
reconsideration Parker, 221 F_ Supp. 3d at 2. Even if the Plaintiff’ s evidence -qualified,s
- substantive evidence of discrimination has no bearing on whether Mr. Nicholson in fact waited
180 daysbefore filing a suit in-' federal district court, or whether there were equitable factors
explaining why he was not able to do so. See Unired Srates v. Dynamic Visions,_ fries-321 FR._D
14, 18 (D.D.C. 2017) (supplemental evidence, even if admitted, would not support the argument
f`or reconsideration). No newly-discovered evidence has been presented to suggest that ludge

Kollar.-Kotelly’s legal conclusion should not stand.

 

-5 All of the evidence presented m the motion for reconsideration comes from 2014 but the
Plaintiff’s complaint was filed on Octobe_r 7 2016

5

 

Mr. Nicholson has pointed to no clear error in this case; neither has there been a
misunderstanding of the parties nor a decision beyond the adversarial issues presented to the
Court. See Youssefv. Holder, 62 F.Supp.3d 96, 98 (D.D.C.l 2014.).

Accordingly, the motion to reconsider must be denied.

IV. Conclusion

For the foregoing reasons, the Defendant’s Supplernental Motion to Disniiss will be

granted', and the lil[PA'A claim will be dismissed with prejudice Additionally, the Plaintiff s

Motion to Reconsider will be denied A separate order will issue.

 

D_ated: March 30, 2018

United States District fudge

