Reply Brief — Doe v. Department of Veterans Affairs Affairs (No. 08-467)

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No. 08-467 | DEC 2 2 2008

sienna tiara THR CLERK |

IN THE

Supreme Court of the United States

JOHN DOE,

Petitioner,

¥.

DEPARTMENT OF VETERANS AFFAIRS

OF THE UNITED STATES OF AMERICA AND

THE HONORABLE JAMES B. PEAKE,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

REPLY BRIEF FOR PETITIONER

KATHERINE LOGAN WALTER DELLINGER

MACKINNON MATTHEW M. SHORS

ATTORNEY AT LAW (Counsel of Record)

3744 Huntington Avenue KATHRYN E. TARBERT

St. Louis Park, MN 55416 O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

DENISE YEGGE TATARYN Washington, D.C. 20006

MANSFIELD TANICK & COHEN (202) 383-5300

P.A.

1700 U.S. Bank Plaza South SALLY MERMELSTEIN

220 South Sixth Street ATTORNEY AT LAW

Minneapolis, MN 55402 2440 Colfax Ave. S.

Minneapolis, MN 55405

Attorneys for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHOR T TiS occcersesssccscessevsceseneuenenen ll

REPLY BRIEF FOR PETITIONER......................000 1

ll

TABLE OF AUTHORITIES

CASES

Bartel v. FAA,

725 F.2d 1403 (D.C. Cir. 1984) ..............000 passim

Carlson v. General Servs. Admin.,

No. 04 C 7937, 2006 WL 3409150

CREED. TEL. Phew, Fi, Fe sccnecsseseinsseecerstceceeenaae 10

Fisher v. National Insts. of Health,

934 F. Supp. 464 (D.D.C. 1996) ........... eee eeeee 10

Jacobs v. Nat'l Drug Intelligence Ctr.,

423 F.3d 512 (GER Cir. ZOGS) ......ccccssecssssecevsseees 5,9

Kassel v. U.S. Veterans’ Admin..,

709 F. Supp. 1194 (D.N.H. 1989).....................0 11

Kimbrough v. United States,

ERG Ob. CS CD cceitevccsisccsevenmmveene 8

Krieger v. Fadely,

190 F.R.D. 10: CD.DG.. BO0V) i cscs ccsssveceesseessuvesssenn 10

Krueger v. Mansfield,

No. 06 C 3322, 2008 WL 2271493

GND. TH. Miner DO, BOG vsicsccscisicscovecicevassnten 10, 11

Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson,

BE Ue. Fe Ce htcieenstistniinvcecraneeeee 8

Longtin v. U.S. Dep’t of Justice,

No. 06-1302, 2006 WL 2223999

CREED... FU, S, Tee tiicsscicrncsevecierestecsctcaneae 4,11

Manuel v. Veterans Admin. Hosp.,

BOT F Bek LETS COG Ce. FD onccesesscconsssncscencen 3

Olberding v. U.S. Dep’t of Defense,

TOR FSG GE) COU Cit, TGS) esse sessvsssccascnsovitavns 8

Pilon v. U.S. Dep’t of Justice,

To 2 ae 1143 CO. Git. FOOD) cece 3

lll

TABLE OF AUTHORITIES

(continued)

Page(s)

Savarese v. U.S. Dep’t of Health, Ed. &

Welfare,

479 F. Supp. 304 (N.D. Ga. 1979).....................08 8

Stokes v. Commissioner, Social Security

Admin.,

292 F. Supp. 2d 178 (D. Me. 2003)............... coweee AO

Wilborn v. HHS,

49 F.3d 597 (9th Cir. 199B)..........ccccscscessses passim

STATUTES

ei: re ices vaninersantverierensivcvesmxccens 1, 2, 4, 5

es ae I Cisse iv evi cecestcniec ceteris passim

se i iiteictincetiitintcnieinneoncnenaven 7

ADMINISTRATIVE DECISIONS

General Servs. Admin. & Am. Fed. of

Gov't Employees Council 236,

ee ee ee vrsieeicc satin dishsathcdeorssccanaence 3

OTHER AUTHORITIES

Black’s Law Dictionary,

recs uctdnnenevienccnein 5

S. Rep. No. 93-1183; H.R. Rep. No. 93-

Rn a a s suttvmnig ee nvonns 7

Settlement & Dismissal Order, Carlson

v. Hood, No. 1:04cv7937 (N.D. III.

eC Te 11

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Department of Justice, Office of

Information and Privacy,

Freedom of Information Act Guide &

PEO Fe CPCI ons cecscnxvesivcosvrssevecsesseesens 3, 11

REPLY BRIEF FOR PETITIONER

The Privacy Act prohibits any agency official

from disclosing to “any person,” by “any means of

communication,” any “item ... of information” that is

contained in an agency’s system of records, unless

the disclosure is made with the “prior written con-

sent of[] the individual to whom the record pertains.”

5 U.S.C. § 552a(a)(4), (b). The court of appeals nev-

ertheless held, and the Government leads its opposi-

tion by arguing, that the Act should be interpreted to

permit any agency official to disclose without au-

thorization any information he or she learns in the

process of creating an agency record, so long as the

official avoids physically retrieving a copy of that re-

cord before disclosure. The Government can point to

nothing in the Act’s text, history, or purpose that

countenances that jarring result.

The Government also fails to disprove that the

decision of the court below conflicts with the deci-

sions of the D.C. and Ninth Circuits in Bartel v.

FAA, 725 F.2d 1403 (D.C. Cir. 1984), and Wilborn v.

HHS, 49 F.3d 597 (9th Cir. 1995). The Govern-

ment’s effort to distinguish those decisions on their

facts ignores the Department of Justice’s own Pri-

vacy Act Overview and position in litigation following

Bartel, as well as decisions of numerous courts that

have given the cases a plain reading.

The Government is simply wrong in asserting

this case is not “of sufficient practical importance to

warrant” review. Opp. 14. The decision below per-

mits widespread disclosure of any information any

citizen has ever provided a record-making official—

hardly a question of little “practical importance.”

2

And that disclosure, immunized by the decision be-

Jow, undermines not only the fundamental privacy

interests the Act is designed to protect, but also gov-

ernmental and doctor-patient interests as well—

problems the Government wholly fails to address.

This Court should grant the petition.

1. As the petition explains (11-17), the courts of

appeals are divided on the question whether the Pri-

vacy Act allows an agency official to disclose a record

the official may not have retrieved but had a pri-

mary role in creating. The Ninth and D.C. Circuits

have both held, in conflict with the court below, that

the Act prohibits such disclosures. Compare Bartel,

725 F.2d at 1410-11 (Act “restrict[s] an agency offi-

cial’s discretion to disclose information in a record

that he may not have read but that he had a primary

role in creating and using”), and Wilborn, 49 F.3d at

597 (knowledge “gained by the creation of records[]

cannot be used to sidestep” the Act), with App. 9a-

12a (rejecting “argument ... [that] retrieval rule

should not apply when the contents of a record are

disclosed by the person who prepared the record”).

The Government attempts to distinguish Bartel

and Wilborn by arguing that they turned on the use

of “sophisticated information collecting methods.”

Opp. 13. But the Government fails to join issue with

the petition (13-15), which explains in some detail

why that distinction is factually and legally unten-

able. Limiting statutory coverage to instances in

which “sophisticated information collecting methods”

have been employed would leave unprotected myriad

files that, although traditionally not computerized,

contain highly private information, such as employee

medical and personnel records, 5 U.S.C. § 552a(a)(4).

3

Neither the text nor the history of the Act provides

for such a limitation. See Pet. 19 (discussing !egisla-

tive history requiring protection of manual files).

Unsurprisingly, therefore, other courts and adju-

dicators have rejected the narrow, fact-bound read-

ings of Bartel and Wilborn the Government advances

here (Opp. 13-14). See, e.g., Pilon v. U.S. Dep’t of

Justice, 73 F.3d 1111, 1118 (D.C. Cir. 1996) (Bartel

prohibits official from “circumventling] [the Act]

with respect to a record he himself initiated by sim-

ply not reviewing” it); Manuel v. Veterans Admin.

Hosp., 857 F.2d 1112, 1120 n.1 (6th Cir. 1988) (not-

ing “new ground cut by Bartel ... when disclosure is

made by a person who had a role in creating the re-

cord”); General Servs. Admin. & Am. Fed. of Gov't

Employees Council 236, 53 F.L.R.A. 925, 934 (1997)

(describing holdings of Bartel and Wilborn in broad

terms); see also infra pp. 10-11 (cases applying scriv-

ener’s exception).

The DOJ has itself rejected the narrow readings

the Government advances here, both in its Privacy

Act Overview, see Pet. 15-16; U.S. Department of

Justice, Office of Information and Privacy, Freedom

of Information Act Guide & Privacy Act Overview

917 (“Overview”),! and in other litigation. In Longtin

v. U.S. Dep’t of Justice, the DOJ attempted to quash

a third-party subpoena served upon an AUSA, argu-

ing she could not testify to her memory of informa-

' The Government attempts to backtrack from the DOJ’s

Overview by asserting the Overview does not “endorse” the

“holdings in [those cases],” Opp. 14 n.3, but the Overview does

describe those holdings. And the Overview does not, as the

Government now suggests, indicate those holdings are fact-

bound or otherwise limited. Jd.; see Overview 917-18.

4

tion learned on a phone call and later included in a

system of records because the D.C. Circuit “has held

that the release of the information is still subject to

the Privacy Act, where she participated in gathering

the information for the file in the first place.” No.

06-1302, 2006 WL 2223999, at *3 (D.D.C. Aug. 3,

2006) (quoting Pls. Mot. Exh. 4 at 3). The Govern-

ment thus recognizes and applies the same scriv-

ener’s exception Doe seeks here in contexts other

than this case.

2.a. The Government also misreads the text of

the Act, arguing that Congress (1) adopted an elabo-

rate set of rules and exceptions to prohibit and gov-

ern disclosures made by officials after a record has

already been created, but (2) freely permitted a re-

cord-maker to disclose any information he or she re-

calls from creating that same record. The Govern-

ment points to nothing in the Act’s text, history, or

purpose that could possibly justify that absurd re-

sult.

On the contrary, the text prohibiting disclosure is

straightforward and expansive. Barring exceptions

not relevant here, the Act prohibits any unauthor-

ized “disclos[ure] lof] any record which is contained

in a system of records by any means of communica-

tion to any person, or to another agency.” 5 U.S.C. §

552a(b). The Act defines “record” as “any item ... of

information about an individual that is maintained

by an agency, including ... [his] medical history,” 5

U.S.C. § 552a(aX4), and “system of records” as “a

group of any records under the control of any agency

from which information is retrieved by ... identifying

particular assigned to the individual,” 5 U.S.C.

§ 552a(aX5). Although the Act does not define what

+)

it means to “disclose,” Black’s Law Dictionary de-

fines it as “to bring into view by uncovering; to ex-

pose, to make known.” Id. at 464 (6th ed. 1991).

Applying those statutory terms, the question here

is whether Dr. Hall “[made known] any [“item ... of

information”] which is contained in a [“group of any

records under the control of [the medical center]

from which information is retrieved by the name of

the individual”].”. The answer to that question is

emphatically “yes.” Dr. Hall divulged to Doe’s union

representative Doe’s medical history, which the Gov-

ernment does not dispute was contained in a record,

Opp. 3, and maintained in a system of records. See

App. 25a-26a.

The Government’s argument that Dr. Hall did

not violate the Act because he disclosed “informa-

tion,” and not a “record,” Opp. 7-8 & 11 n.2, wildly

misses the mark. The Act expressly states that any

“item ... of information” contained in a system of re-

cords is itself a record. 5 U.S.C. § 552a(a)(4); see,

e.g., Jacobs v. Nat'l Drug Intelligence Ctr., 423 F.3d

512, 522 (5th Cir. 2005) (agency violated Section

552a(b) when official used record to create document

and disclosed information from document). If the

Government’s contrary interpretation were correct,

any official could access a record, memorize it, and

then disclose that memorized “information” without

violating the Act. See Opp. 7 (arguing that because a

“recollection” is not “under the control of [an]

agency,” it is not within “a system of records”). The

term “record” offers no support for that breathtaking

assertion. Indeed, the Government concedes Dr.

6

Hall created a record by “recording [Doe’s medical]

information in [Doe’s] employee health file.” Opp. 3.

b. The Government next argues that the scriv-

ener’s exception (1) would impose liability beyond

Congress’s purpose; (2) has “no sound basis” in the

statutory text; and (3) would overburden federal

agencies. Opp. 8-10. None of these arguments is

persuasive.

i. First, in asserting that application of the scriv-

ener’s exception would “go well beyond what is nec-

essary to achieve thle] congressional purpose” by

imposing liability for disclosure of “information that

agency officials acquire through independent

means,” Opp. 8 (emphasis added), the Government

mistakes not only the legislative purpose behind the

Act but also the limited nature of the exception.

Bartel and Wilborn did not impose liability “simply

because [the disclosed] information also appears in

agency records.” Opp. 8. Rather, both decisions rec-

ognize that, contrary to the Government’s claims

here, Opp. 8-10, knowledge of private information

cannot properly be deemed “independent” of a record

when, as here, the knowledge was obtained in the

course of creating that record. See Wilborn, 49 F.3d

at 601; accord Bartel, 725 F.2d at 1411. The rule

Doe seeks thus does not hold liable the disclosure of

2 The Government wrongly asserts that the “court” rea-

soned that “[plersonal knowledge and memories are not in-

cluded in the terminology or definitions of the Act.” Opp. 9.

Judge Murphy alone so reasoned; Judge Gruender refused to

join that section of the opinion, and Judge Hansen rejected the

strict application of the retrieval rule entirely. See Pet. 8-9;

App. 14-15a, 19a.

7

any information that is also, coincidentally, con-

tained in an agency’s system of records.

As the petition explains (and the Government

fails to address), the Government’s argument also

disregards Congress’s purpose in passing Section

552a(b). As the Joint House and Senate Report

states, that section was, inter alia, “designed to pre-

vent ... office gossip, interoffice and interbureau

leaks of information about persons of interest in the

agency or community, or such actions as the publi-

cizing of information of a sensational or salacious

nature or of that detrimental to character or reputa-

tion.” S. Rep. No. 93-1183; H.R. Rep. No. 93-1416, at

51 (1974). As this case demonstrates, that cannot be

accomplished by the strict retrieval rule applied be-

low. The Government does not deny that its inter-

pretation of the Act makes the most memorable (and

likely the most sensitive) information also the most

likely to be disclosed. See Pet. 23-24. Nor does the

Government offer any explanation for how Congress

could have believed it would protect privacy by re-

quiring record-making officials to “collect informa-

tion ... directly from the subject individual” “to the

greatest extent practicable” and then permitting offi-

cials to disclose any information learned in that

manner. 5 U.S.C. § 552a(eX2). The rule the Gov-

ernment advocates is thus at cross-purposes with

congressional intent.

ii. The Government is also wrong that the scriv-

ener’s exception “has no sound basis in the statutory

text.” Opp. 9. As explained, supra pp. 4-5, applica-

tion of the scrivener’s exception incorporates the

statutory definitions of “record” and “system of re-

cords,” and a straightforward definition of “disclose.”

8

Moreover, any extent to which the scrivener’s ex-

ception is divorced from the statutory text is a con-

sequence of the exception’s relation to a “judge-

created” retrieval rule (App. 15a), invented by jurists

concerned that the Act as written imposed too great

a burden on federal agencies. See, e.g., Olberding v.

U.S. Dep’t of Defense, 709 F.2d 621, 622 (8th Cir.

1983); Savarese v. U.S. Dep’t of Health, Ed. & Wel-

fare, 479 F. Supp. 304, 308 (N.D.-Ga. 1979). At most,

the Government’s objection to the textual basis of

the scrivener’s exception reflects the complications

that inevitably accompany a judicial decision to “fix”

a statute based on policy concerns. See, e.g., Lampf,

Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501

U.S. 350, 358-59 (1991) (noting “complicated” task of

settling upon a “statute” of limitations where the

“claims are of judicial creation”); see also Kimbrough

v. United States, 128 S. Ct. 558, 578 (2007) (Thomas,

J., dissenting) (“By rejecting this statutory approach,

the Booker remedial majority has left the Court with

no law to apply and forced it to assume the legisla-

tive role of devising a new sentencing scheme.”). It

is one thing to defend a “judge-created” rule on ad-

ministrative grounds; it is quite another to invoke

that same judge-made rule to attack an “exception”

that protects the heart of the Act. Even assuming

the Government is correct that Section 552a(b) needs

to be “fixed,” the court of appeals’ cure is worse than

the disease, permitting core violations to go wholly

unaddressed.

iii. The Government also urges that the court of

appeals’ interpretation of the statute is correct be-

cause Doe’s “proposed construction of the Act would

... place unwarranted burdens on federal agencies.”

9

Opp. 10. But as the Ninth and D.C. Circuits have

explained, it “hardly places an intolerable burden on

an agency to hold it liable” for disclosure of informa-

tion an employee learned “from the act of creation

itself.” Wilborn, 49 F.3d at 602; accord Bartel, 725

F.2d at 1411. Furthermore, as the petition explains

(22-23), the Act contains built-in safeguards against

excessive liability. See Jacobs, 423 F.3d at 522 (re-

jecting argument of intolerable burden because, inter

alia, (1) “the Act defines ‘system of records’ nar-

rowly’; (2) the “prohibition against disclosure is not a

strict-liability provision” but requires plaintiff to

show “disclosure was willful and had an adverse ef-

fect on him”; and (3) “twelve statutory exceptions”

guard “against unreasonable liability”).

3. The Government also errs—and errs badly—in

asserting that this case is not of “sufficient practical

importance” to warrant review. Opp. 14. The inter-

pretation of the Privacy Act adopted by the court be-

low and advanced by the Government here dramati-

cally expands the disclosures permitted under what

Congress deemed the “key provision” of the statute.

See Pet. 11. The Government does not deny the sig-

nificant policy concerns presented by agency disclo-

sure of private information, which the Government

is gathering at an ever-increasing rate. See Pet. 26.3

3 The Government’s only response to the grave practical

concerns presented by its interpretation of the Act, see Pet. 25-

27, is to suggest those “concerns are addressed by applicable

rules of medical] ethics.” Opp. 15 n.4. As the Government is

well aware, however, the Privacy Act provides Doe’s only pri-

vate remedy for Dr. Hall’s disclosure. When Doe asserted a

cause of action against Dr. Hall under a state medical privacy

statute, the Government argued the claim was barred by pre-

emption and federal immunity. Answer of Dr. Hall (first de-

10

The Government likewise offers no reason to believe

that individuals will continue to provide agencies

with the information essential to so many federal

functions when that information may be widely dis-

closed. See Pet. 26-27.

The Government also argues that the conflict pre-

sented by this case is “unlikely to affect the outcome

of a significant number of cases.” Opp. 14-15. Even

considering only reported or published decisions,

however, the issue has arisen with a frequency that

warrants review. See, e.g., Krueger v. Mansfield, No.

06 C 3322, 2008 WL 2271493, at *8 (N.D. Ill. May

30, 2008) (citing decision below and immunizing dis-

closure of medical records not retrieved); Carlson v.

General Servs. Admin., No. 04 C 7937, 2006 WL

3409150, at *4 (N.D. Ill. Nov. 21, 2006) (rejecting ar-

gument that Act “d[id] not apply” where official

“compiled the [offending] e-mail from his own mem-

ory and did not ‘retrieve’ any of the information from

a record”); Stokes v. Commissioner, Social Security

Admin., 292 F. Supp. 2d 178, 181 (D. Me. 2003) (cit-

ing Bartel and Wilborn and rejecting reliance on re-

trieval rule); Krieger v. Fadely, 199 F.R.D. 10, 13

(D.D.C. 2001) (relevant discovery would include

whether “[defendant] authorized or conducted an in-

vestigation” and disclosed results without authoriza-

tion, “even though she may not have actually re-

trieved the information about the investigation”);

Fisher v. National Insts. of Health, 934 F. Supp. 464,

474 (D.D.C. 1996) (recognizing scrivener’s exception

fense); Answer of Department of Veterans Affairs (same). And

it is unclear what solution the Government believes medical

ethics will provide; they did not prevent disclosure here.

11

but concluding plaintiff failed to demonstrate offi-

cials leained disclosed information “through direct

involvement in the investigation”); Kassel v. U.S.

Veterans’ Admin., 709 F. Supp. 1194, 1201-02

(D.N.H. 1989) (rejecting reliance on retrieval rule

when discloser played key role in relevant litigation

and may have created record); see also Longtin, su-

pra (scrivener’s exception governs Government’s

third-party discovery).

As noted in the petition (25), the published cases

are also just the tip of the iceberg. and difficulties in

interpreting the Privacy Act have been exacerbated

by “the fact that many Privacy Act cases are unpub-

lished district court decisions.” Overview 889. Many

Privacy Act cases are brought by pro se litigants and

present limited prospects of damages, making it un-

surprising that the cases that survive to appellate

review are somewhat limited. See, e.g., Krueger,

2008 WL 2271493 (counsel denied; no appeal). Pos-

sible appeals are winnowed further by settlements

occurring after courts have applied the scrivener’s

exception to deny motions for judgment premised on

the retrieval rule. See, e.g., Settlement & Dismissal

Order, Carlson v. Hood, No. 1:04cv7937 (N.D. Ill.

May 22, 2007).

4. As Judge Schiltz recognized, this case presents

a highly suitable vehicle for resolving the proper ap-

plication of the scrivener’s exception. App. 27a.

Given the steady stream of cases implicating the ex-

ception but both the limited number of suitable vehi-

cles and the utmost importance of the question pre-

sented, this case presents an overdue opportunity to

resolve a conflict over the proper interpretation of a

statute that has long troubled the lower courts.

12

Unless and until this Court acts, the conflict will

persist, vast amounts of personal information will be

at risk for disclosure, and courts will continue to

mangle the Act beyond recognition in the name of

bureaucratic convenience. This Court should grant

review, resolve the conflict, and restore the privacy

abolished below.

CONCLUSION

The petition should be granted.

KATHERINE LOGAN

MACKINNON

ATTORNEY AT LAW

3744 Huntington Avenue

St. Louis Park, MN 55416

DENISE YEGGE TATARYN

MANSFIELD & TANICK

220 S. Sixth Street

1700 Pillsbury Center, S.

Minneapolis, MN 55402

December 22, 2008

Respectfully submitted,

WALTER DELLINGER

MATTHEW M. SHORS

(Counsel of Record)

KATHRYN E. TARBERT

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

SALLY MERMELSTEIN

ATTORNEY AT LAW

2440 Colfax Ave. S.

Minneapolis, MN 55405