MARCO A. HERNANDEZ, District Judge.
Plaintiff Tad K.L. Engman brings this action against the "Veterans Administration, Portland Medical Center," under the federal Privacy Act, 5 U.S.C. § 552a, complaining that Defendant changed his name on its medical and related records and failed to acknowledge his request to correct them. Defendant moves to dismiss, arguing that the claim is moot. While Defendant establishes that corrections have been made, Plaintiff alleges that errors persist, precluding a determination that the entire claim is moot. While the motion to dismiss was pending, Plaintiff moved to file a supplemental complaint. For the reasons explained below, I deny that motion.
In his First Amended Complaint, Plaintiff alleges that the "Portland VA Medical Center" changed his name on its medical records. First Am. Compl. at p. 3. On March 11, 2014, he requested the Enrollment Office correct his name back to the way it was.
As relief, he seeks $1,000 "plus what Court decides in damages," as well as an order that Defendant properly correct "all my records, at the VA and anywhere else," and furnish him with a certification of what has been done as to "all records including those outside the VA which have been corrected."
In a section asserting his basis for federal question jurisdiction, he cites to 5 U.S.C. §§ 551a(g)(1)(C) and (D) "as relates to" 5 U.S.C. §§ 552a(d)(2)(A) and (B).
Mootness is properly raised in a motion under Federal Rule of Civil Procedure 12(b)(1) addressing the court's subject matter jurisdiction.
Congress passed the Privacy Act to "`protect the privacy of individuals identified in information systems maintained by Federal agencies'" by regulating "`the collection, maintenance, use, and dissemination of information by such agencies.'"
Under the Privacy Act, an individual may request an amendment of a record pertaining to the individual. 5 U.S.C. § 552a(d)(2). The agency then has a duty to acknowledge the amendment request within ten days of receiving it and to "promptly" make the requested correction or inform the individual of the agency's refusal to do so. 5 U.S.C. §§ 552a(d)(2)(A) and (B).
Civil remedies for violations of subsection (d) are spelled out in 5 U.S.C. § 552a(g). Under subsection 552a(g)(1)(C), if the agency fails to maintain a record "concerning any individual with such accuracy . . . necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual[,]" the individual may bring a civil action against the agency in a United States district court. 5 U.S.C. § 552a(g)(1)(C). Although Plaintiff cites this subsection, he fails to allege that any inaccuracy in his name resulted in a determination adverse to him. Thus, this subsection provides him no relief.
But, under subsection 552a(g)(1)(D), another subsection cited by Plaintiff, he may maintain a civil action against an agency for "fail[ing] to comply with any other provision of this section . . . in such a way as to have an adverse effect on an individual[.]" 5 U.S.C. § 552a(g)(1)(D). "Adverse effect" can include emotional distress.
In support of its motion to dismiss, Defendant initially relies on the Declaration of Molly Kok, Chief of the Business Office at the Portland VA Medical Center. Kok Aug. 28, 2014 Decl. at ¶ 1. She states that in January 2014, Plaintiff's name was changed in the VA's electronic medical record, although it is unclear why.
Plaintiff offers no evidence to refute Kok's assertion that Defendant properly corrected his name on its electronic medical records by March 25, 2014, before this lawsuit was filed. Thus, this part of his claim was moot even before he commenced litigation.
Plaintiff's claim encompasses more than his medical records, however. By referring to "all portions of all my records" in "Claim I," he clearly seeks to have his name corrected on all records generated or maintained by Defendant.
In a second Declaration, Kok explains that she has entered a computer work order for computer programming changes to the visual display on the "VetLink kiosk" at the Portland VA Medical Center. Kok Oct 3, 2014 Decl. at ¶ 2. As a result, all names will appear in capital letters such as "TAD K L ENGMAN."
Additionally, Charles Wilson, a supervisor at the Intake Processing Center at the VA's Portland Regional Office, states that he has access to three types of computer records for the Veterans Administration: (1) "SHARE," which allows Regional Offices to access data sources located on different databases in multiple locations; (2) "MAP-D," which is a tool to help perform proper claims development and is used by the VA to provide customer service; and (3) "VBMS," or the Veterans' Benefit Management System, which is an electronic claims processing system. Wilson Decl. at ¶ 2. Wilson has reviewed all of these records for Plaintiff and confirms that they now all show the name of "TAD KENNETH LINNELL ENGMAN."
With these Declarations, Defendant attempts to establish that all the records over which it has access have been corrected to accurately reflect Plaintiff's name. "Article III of the Constitution limits federal courts to the adjudication of actual, ongoing cases or controversies between litigants."
While the Declarations indicate that Plaintiff's electronic medical record has been corrected, that computer programming changes have been made so that displays on the kiosk and in billing statements will correctly reflect Plaintiff's name, and that the three other types of records which Defendant accesses are correctly displaying Plaintiff's name, Plaintiff, in a separate filing, contends that he received a co-pay billing statement on October 29, 2014 which incorrectly displayed his name and that the kiosk at Defendant's Hillsboro Clinic did not correctly display his name on November 21, 2014.
Plaintiff also seeks damages, costs, and attorney's fees. Under subsection 552a(g)(1)(4), an individual suing for a violation of subsection 552a(g)(1)(D) is entitled to "actual damages," costs, and attorney's fees but only if "the court determines that the agency acted in a manner which was intentional or willful[.]" 5 U.S.C. § 552a(g)(1)(4). Defendant argues that Plaintiff is not entitled to actual damages because he did not allege that the VA's actions were intentional or willful and because "actual damages" under the Privacy Act do not include damages for emotional or mental distress.
I agree with Defendant. In his First Amended Complaint, Plaintiff fails to allege that Defendant's actions were intentional or willful. Thus, under section 552a(g)(1)(4), Plaintiff is not entitled to any monetary relief. Furthermore, even if Plaintiff had included an intentional or willful allegation in the operative pleading, Plaintiff would be limited to "actual damages" which do not include damages for emotional distress or mental anguish, the only damages Plaintiff alleges.
Thus, even if Plaintiff had alleged intentional or willful conduct, and even if Plaintiff could sustain his allegation that Defendant violated the Privacy Act and did so intentionally or willfully, Plaintiff cannot obtain emotional distress damages or attorney's fees. Moreover, contrary to Plaintiff's demand, no jury trial is allowed for his Privacy Act claim.
On December 14, 2014, Plaintiff moved for leave to file a supplemental complaint under Federal Rule of Civil Procedure 15(d). The May 13, 2014 Discovery and Pretrial Scheduling Order provided that any amended or supplemental pleadings allowed under Rule 15 must be filed within 120 days of the date of that Order (meaning by September 9, 2014). The motion to supplement was filed more than three months after that deadline and therefore is denied.
Even if I considered the merits of the motion, I deny it. Rule 15(d) provides that "the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d). "The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims which arise after the initial pleadings are filed."
As I understand Plaintiff's proposed supplemental complaint, he attempts to add several new causes of action including that Defendant has violated the "disclosure statutes" under the Privacy Act and has somehow also violated provisions of the Privacy Act regarding (1) the maintenance of records used in making a determination about the individual, (2) the dissemination of records to persons other than an agency, (3) the establishment of rules and safeguards for persons involved in the design, development, operation, or maintenance of a records system, and (4) the establishment of administrative, technical, and physical safeguards insuring the security and confidentiality of records.
Plaintiff also appears to assert new claims based on the American Declaration of the Rights and Duties of Man and the United Nations Universal Declaration of Human Rights.
The purported claims based on the American Declaration of the Rights and Duties of Man, the United Nations Universal Declaration of Human Rights, and on any alleged due process violations are separate and distinct causes of action which are not appropriately brought in a supplemental complaint. Additionally, because none of the proposed new claims are supported by sufficient factual allegations, they fail to state a claim.
Defendant's motion to dismiss [31] is granted in part and denied in part. The motion is denied as to Plaintiff's non-medical records. The motion is granted as to Plaintiff's medical records, as to any defendant other than "Veterans' Administration Portland Medical Center" (the only named defendant), and as to any claim for damages, costs, and attorney's fees. Plaintiff's motion to for leave to file a supplemental complaint [56] is denied.
IT IS SO ORDERED.