                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 LAWANDA YORK,

    Plaintiff,

      v.                                                    Civil Action No. 09–075 (CKK)
 JOHN MCHUGH, Secretary of the Army, et
 al.,

    Defendants.


                                 MEMORANDUM OPINION1
                                    (March 22, 2010)

       Plaintiff Lawanda York brings this action for an alleged violation of the Privacy Act (the

“Act”), 5 U.S.C. § 552a, by Defendant U.S. Army Reserve (“USAR” or “Defendant”).2

Specifically, York alleges that records containing personal medical information were improperly

disclosed through a shared network drive accessible to all employees in violation of the Act’s

consent requirements, see 5 U.S.C. § 552a(b). Defendant moves to dismiss the Complaint under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be

granted, arguing that the records were not within a “system of records” protected by the Act, that

York has failed to allege an actual disclosure, and that her alleged injuries were not caused by

any such disclosure. Alternatively, Defendant moves for summary judgment. However, the


       1
        Pursuant to Rule 25(d), John McHugh has been substituted for Francis J. Harvey as a
defendant in this action.
       2
         Although York has named the Secretary of the Army as a defendant in the caption of her
Complaint, her Complaint and her subsequent filings refer to the U.S. Army Reserve as the only
defendant in this action. Because the Privacy Act provides a cause of action only against an
agency, see 5 U.S.C. § 552a(g)(1), the Court shall treat the U.S. Army Reserve as the sole
defendant in this action.
parties have not yet engaged in discovery, and York has filed a motion to obtain discovery in

support of her claim pursuant to Rule 56(f). Because the Court finds that York has stated a claim

for relief in her Complaint and that discovery will assist York with her claim, the Court shall

DENY Defendant’s [6] Motion to Dismiss, DENY WITHOUT PREJUDICE Defendant’s [6]

Alternative Motion for Summary Judgment, and GRANT Plaintiff’s [11] Motion for Discovery

Pursuant to Rule 56(f).

                                       I. BACKGROUND

       The following facts are drawn from the allegations in the Complaint and any exhibits

attached thereto.3 At all times relevant to the Complaint, Plaintiff Lawanda York worked as a

Public Affairs Specialist in the Office of the Chief, Army Reserve. See Compl., Ex. 4 (3/15/2007

email from York to LTC Gerard Healy et al.). On August 31, 2006, York had a meeting with the

Director of Army Reserve Communications, Colonel Dorothy Perkins, and a personnel manager

named Sheila Bailey. See Compl., Ex. 1 (9/1/2006 Memorandum for Record). The meeting was

held in response to York’s indication to her supervisor that she was having suicidal thoughts as a

result of the pressure being put on her in the workplace. Id. The details of this meeting were

memorialized by Col. Perkins in a “Memorandum for Record” dated September 1, 2006. See id.

The Memorandum for Record contained statements made by York about her medical treatment,

and Col. Perkins wrote that “[t]his is viewed as a very serious - and potentially life-threatening -

situation and will be dealt with as such.” Id.


       3
         Because the Court does not reach Defendant’s Alternative Motion for Summary
Judgment, the Court is limited to considering the facts alleged in the complaint, any documents
attached to or incorporated in the complaint, matters of which the court may take judicial notice,
and matters of public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997).

                                                  2
       On March 14, 2007, York discovered that the Memorandum for Record created by Col.

Perkins, as well as other records pertaining to York’s medical condition, had been placed on a

shared network drive at her workplace that was accessible to all employees at the agency.

Compl. ¶¶ 7-11. York alleges that “[e]very employee with access to a computer can access the

files placed on the shared drive. Thousands of employees are employed by the Army and thus

could have seen Mrs. York’s confidential information and information concerning her medical

condition.” Id. ¶ 11. York had one of her colleagues confirm that she could access the records

pertaining to York. Id. ¶ 12 & Ex. 3 (3/14/2007 Memorandum for Record) ¶ 6. Immediately

after York discovered that her medical condition had been disclosed, she left work and became

physically ill, even vomiting. Id. ¶¶ 13-14. York called her therapist, who was concerned that

the improper disclosure would bring about suicidal thoughts. Id. ¶ 16. York missed time from

work and was given medication. Id. On March 15, 2007, York sent an email to LTC Gerard

Healy and LTC Rudolph Burwell asking that the files be removed from the shared drive

immediately. Id. ¶ 17 & Ex. 4 (3/15/2007 email from York to LTC Gerard Healy et al.).

                                     II. LEGAL STANDARD

        Defendant has moved for dismissal of Schmidt’s Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) and has also moved in the alternative for summary judgment pursuant

to Federal Rule of Civil Procedure 56.

       A.      Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

       The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.


                                                  3
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the

“grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions”

or “a formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan

v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

       In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must

construe the complaint in a light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994); see also

Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally

construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be

derived from the facts alleged.”). However, as the Supreme Court recently made clear, a plaintiff

must provide more than just “a sheer possibility that a defendant has acted unlawfully.” Iqbal,

129 S. Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court,

drawing on its judicial experience and common sense, to infer more than the “mere possibility of

misconduct,” the complaint has not shown that the pleader is entitled to relief. Id. at 1950.

       In evaluating a motion to dismiss under Rule 12(b)(6), the Court is limited to considering


                                                  4
the facts alleged in the complaint, any documents attached to or incorporated in the complaint,

matters of which the court may take judicial notice, and matters of public record. See EEOC v.

St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see also Vanover v.

Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff’d, 38 F. App’x 4 (D.C. Cir. 2002) (“[W]here

a document is referred to in the complaint and is central to plaintiff’s claim, such a document

attached to the motion papers may be considered without converting the motion to one for

summary judgment.”) (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.

1999)).

          B.     Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56

          Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment

“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

Under the summary judgment standard, the moving party bears the “initial responsibility of

informing the district court of the basis for [its] motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must “go

beyond the pleadings and by [its] own affidavits, or depositions, answers to interrogatories, and

admissions on file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id.

at 324 (internal citations omitted).

          Although a court should draw all inferences from the supporting records submitted by the


                                                  5
nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary

judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the

factual assertion must be capable of affecting the substantive outcome of the litigation; to be

genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-

fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.

Cir. 1987); Liberty Lobby, 477 U.S. at 251 (the court must determine “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not

sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted). “Mere allegations or denials in the adverse party’s pleadings are

insufficient to defeat an otherwise proper motion for summary judgment.” Williams v.

Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply

“show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial

responsibility of identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact, the burden shifts to the non-movant to “come forward with

‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (citing Fed. R. Civ. P.

56(e)) (emphasis in original).

                                         III. DISCUSSION

       A.      The Privacy Act

       The Privacy Act of 1974 “safeguards the public from unwarranted collection,

maintenance, use and dissemination of personal information contained in agency records.”


                                                   6
Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984). The Act provides that “[n]o agency shall

disclose any record which is contained in a system of records by any means of communication to

any person, or to another agency, except pursuant to a written request by, or with the prior written

consent of, the individual to whom the record pertains . . . .” 5 U.S.C. § 552a(b). The Act

provides exceptions for disclosure to employees who have a need for the record in the

performance of their duties, records that must be disclosed under the Freedom of Information

Act, 5 U.S.C. § 552, and various other situations not applicable here. See 5 U.S.C. § 552a(b)(1)-

(12). The Act defines a “record” as

       any item, collection, or grouping of information about an individual that is
       maintained by an agency, including, but not limited to, his education, financial
       transactions, medical history, and criminal or employment history and that contains
       his name, or the identifying number, symbol, or other identifying particular assigned
       to the individual, such as a finger or voice print or a photograph.

Id. § 552a(a)(4). The Act defines a “system of records” as “a group of any records under the

control of any agency from which information is retrieved by the name of the individual or by

some identifying number, symbol, or other identifying particular assigned to the individual.” Id.

§ 552a(a)(5). The fact that records are capable of being retrieved by name or other personal

identifier is not sufficient to transform a group of records into a “system of records”; there must

be evidence that an agency in practice retrieves information about individuals by reference to

their names or other identifiers. Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1460-61 (D.C.

Cir. 1996).

       The Privacy Act recognizes a civil action for an agency’s failure to comply with any of its

provisions when the agency’s failure has an “adverse effect on an individual.” See 5 U.S.C.

§ 552a(g)(1)(D); Doe v. Chao, 540 U.S. 614, 619 (2004) (describing the Act’s “catchall” remedy


                                                 7
for any violation having an adverse effect). The Act provides that in suits brought under this

provision, if

       the court determines that the agency acted in a manner which was intentional or
       willful, the United States shall be liable to the individual in an amount equal to the
       sum of–
               (A) actual damages sustained by the individual as a result of the refusal or
               failure, but in no case shall a person entitled to recovery receive less than
               the sum of $1,000; and

                (B) the costs of the action together with reasonable attorney fees as
                determined by the court.

5 U.S.C. § 552a(g)(4). The Supreme Court has clarified that the statutory damage award of

$1000 is available only to plaintiffs who can establish actual damages. See Doe v. Chao, 540

U.S. at 627. A plaintiff pursuing a claim for improper disclosure must show that (1) the

disclosed information is a “record” within a “system of records,”; (2) the agency improperly

disclosed the information; (3) the disclosure was willful or intentional; and (4) the disclosure

adversely affected the plaintiff, causing actual damages. Runkle v. Gonzales, 391 F. Supp. 2d

210, 238 (D.D.C. 2005).

       B.       Motion to Dismiss Under Rule 12(b)(6)

       Defendant moves to dismiss York’s Complaint on several grounds. First, Defendant

argues that the records allegedly disclosed are not “contained in a system of records” and thus not

protected from disclosure under the Act. To determine whether or not a group of records

qualifies as a “system of records,” the Court must determine if there is any evidence that the

agency in practice retrieves information about individuals by reference to their names or other

personal identifier. Henke v. U.S. Dep’t of Commerce, 83 F.3d at 1461. Although York has

attached some exhibits to her Complaint that would aid the Court in determining whether or not


                                                  8
the files placed on the shared network drive were “contained in a system of records,” the Court

finds that this issue cannot be resolved without resorting to matters outside the pleadings.

Therefore, this issue must be resolved in the context of a motion for summary judgment under

Rule 56 rather than a motion to dismiss. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule

12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under Rule 56.”); see also Krieger v.

Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (holding that plaintiff in Privacy Act case need not

identify what records are disclosed at the pleading stage).

       Defendant’s second argument in favor of dismissal is that York has failed to allege in her

Complaint that there was an actual disclosure of the records by Defendant. Defendant argues that

York alleges only that other USAR employees “could have seen” York’s records on the shared

drive. See Def.’s Mem. at 9 (citing Compl. ¶ 11). However, paragraph 20 of York’s Complaint

alleges that “[i]n violation of the Privacy Act, Defendant through Defendant Managers, revealed

the contents of those records to other of Defendant’s employees who had no reason to know such

information.” Compl. ¶ 20. This is a sufficient allegation of an actual disclosure to survive a

motion to dismiss.

       Defendant’s third argument is that York’s alleged damages do not stem from any actual

disclosure. Defendant claims that York has only alleged damages that she suffered after

discovering that her records were accessible on the shared drive, which is not the same as

damages from an actual disclosure. However, the allegations in York’s Complaint are not so

limited. See Compl. ¶¶ 21-22 (“The wrongful disclosure by the Defendant humiliated and

embarrassed Ms. York, caused her great emotional distress, sleeplessness, tension and depression


                                                 9
and damaged her professional reputation . . . . Plaintiff suffered the physical, psychic, and

monetary injury . . . because of Defendant’s improper disclosure of records.”) Moreover, the

Court does not agree with Defendant’s narrow theory of causation. The fact that York may not

have learned of any possible disclosures until the day she discovered her files were on the shared

drive does not prohibit her from recovering for any adverse effect caused by a disclosure.

Therefore, the Court finds that York’s Complaint cannot be dismissed on this basis.

       Finally, Defendant contends that York does not state a claim for an intentional or willful

violation of the Act. The parties have not addressed in their briefs the legal question of whether

intent or willfulness must be pled in the Complaint or merely proven at trial. Cf. Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 510-12 (2002) (explaining that in employment discrimination cases

under Title VII, plaintiffs need not plead every element of a prima facie case of discrimination).

Regardless, however, York has specifically alleged that Defendant “willfully or intentionally

disclosed [her] personal medical information by placing it on the shared drive.” See Compl.

¶ 18. York has therefore met her burden of pleading a claim under the Privacy Act, and the

Court shall deny Defendant’s Motion to Dismiss.

       C.      Motion for Summary Judgment

       Defendant has alternatively moved for summary judgment on the same grounds as its

motion to dismiss. Based on declarations attached to its motion, Defendant argues that the

record clearly shows that the files allegedly disclosed did not come from a “system of records,”

that there is no evidence of an actual disclosure causing damages, and that there is no evidence of

intent or willfulness on the part of USAR employees. York opposes this motion and has filed an

opposition with her own declaration in support. In addition, because Defendant’s motion was


                                                 10
filed before discovery, York has also filed a motion for discovery pursuant to Rule 56(f). Rule

56(f) states that “[i]f a party opposing the motion [for summary judgment] shows by affidavit

that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be

taken, or other discovery to be undertaken; or (3) issue any other just order.” Fed. R. Civ. P.

56(f). York’s counsel has provided a declaration asserting that discovery is necessary in order to

obtain evidence regarding the nature of the records, their disclosure, and intent or willfulness by

Defendant’s employees.

        A party opposing summary judgment needs a “reasonable opportunity” to complete

discovery before responding to a summary judgment motion. Khan v. Parsons Global Servs.,

Ltd., 428 F.3d 1079, 1087 (D.C. Cir. 2005). “[I]nsufficient time or opportunity to engage in

discovery is cause to defer decision on the motion.” Id. (quotation marks and citation omitted).

A party suing under the Privacy Act is entitled to the same discovery permitted under the Federal

Rules of Civil Procedure as for any other cause of action. Laxalt v. McClatchy, 809 F.2d 885,

888 (D.C. Cir. 1987). The D.C. Circuit has previously held in a Privacy Act case that the

plaintiff should be afforded a reasonable opportunity to complete discovery before responding to

the government’s summary judgment motion. See McCready v. Nicholson, 465 F.3d 1, 19 (D.C.

Cir. 2006) (citing Khan, 428 F.3d at 1087). Defendant opposes the Rule 56(f) motion on the

ground that no amount of discovery will save York’s claim from dismissal. As explained above,

however, York has sufficiently pled a claim for violation of the Act. The Court agrees that York

should be entitled to obtain discovery to support her claim. Therefore, the Court shall grant

York’s Rule 56(f) motion for discovery.


                                                  11
       Rather than hold in abeyance Defendant’s Motion for Summary Judgment pending

discovery, the Court shall deny Defendant’s motion without prejudice. Defendant may refile its

motion after the completion of discovery.

                                     IV. CONCLUSION

       For the foregoing reasons, the Court shall DENY Defendant’s [6] Motion to Dismiss,

DENY WITHOUT PREJUDICE Defendant’s [6] Alternative Motion for Summary Judgment,

and GRANT Plaintiff’s [11] Motion for Discovery Pursuant to Rule 56(f). The Court shall hold

an initial scheduling conference with the parties to discuss how to proceed with discovery. An

appropriate Order accompanies this Memorandum Opinion.



Date: March 22, 2010

                                                         /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




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