MUMME v. UNITED STATES DEPARTMENT OF LABOR

150 F. Supp.2d 162 (2001) | Cited 0 times | D. Maine | July 17, 2001

ORDER RECONSIDERING PRIOR ORDER

Before the Court are Defendants' Motion for Reconsideration (Docket#29) and Plaintiff's Motion for Reconsideration (Docket #30), bothchallenging the Order Regarding Defendants' Motion to Dismiss (Docket#27). In its prior Order, the Court converted Defendants' Second Motionto Dismiss (Docket #23) into a summary judgment motion, which the Courtgranted in part and denied in part. In the present cross motions,Plaintiff argues that entering partial summary judgment against one ofhis claims was inappropriate, and Defendants argue that the Courtoverlooked one of their arguments and that a complete summary judgmentagainst Plaintiff's claims is warranted. Also before the Court isPlaintiff's Motion to Amend Complaint (Docket #39). For the reasonsdiscussed below, the Court GRANTS Defendants' Motion forReconsideration, DENIES Plaintiff's Motion for Reconsideration, andDENIES Plaintiff's Motion to Amend Complaint.

I. STANDARD OF REVIEW

Because partial summary judgment is an interlocutory order that doesnot completely dispose of a case, the Court has wide discretion toreconsider it. See, e.g., Instituto de Educacion Universal Corp. v.United States Dep't of Educ., 209 F.3d 18, 24 (1st Cir. 2000) (districtcourts generally have broad discretion when considering a motion forreconsideration); Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 748n. 3 (1st Cir. 1995) (district court may revisit partial summary judgmentorders). When reconsidering the prior Order, the Court continues to applythe summary judgment standard.

The Court grants a motion for summary judgment "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as toany material fact and that the moving party is entitled to a judgment asa matter of law." Fed.R.Civ.P. 56(c). The Court must view the facts "inthe light most amicable to the party contesting summary judgment,indulging all reasonable inferences in that party's favor." Pagano v.Frank, 983 F.2d 343, 347 (1st Cir. 1993). When considering Defendants'arguments that Plaintiff has failed to state a claim upon which reliefcan be based, the Court views the factual record pursuant to this summaryjudgment standard.

II. BACKGROUND

The Court already has outlined the majority of the factual elements ofthis case in Mumme v. United States, No. 00-CV-103-B, 2001 WL 80084, at*1-*2 (D.Me. Jan. 29, 2001). Plaintiff Christian Mumme was an inspectorfor the United States Department of Treasury Customs Service. In 1986,Mumme suffered an employment-related back injury, which rendered himpermanently disabled and unable to work. Since then, he has been receivingdisability and medical benefits from the Government.

In 1995, the Department of Labor allegedly began to investigate Mummebased on a suspicion that he no longer was disabled, but rather wasmalingering and defrauding the United States. Mumme argues that whileinvestigating him, the Department of Labor compiled an erroneous recordpertaining to him and his activities. Moreover, Mumme claims that theDepartment of Labor has violated the Privacy Act by withholding portionsof that record from him and by sharing certain portions of it with Dr.John Bradford, who performed a medical examination of Plaintiff anddetermined that Mumme was no longer disabled.

Central to Mumme's claims, he avers that the Government has fabricatedfalse evidence showing him performing strenuous construction workinconsistent with a debilitating back injury. Specifically, Mumme allegesthat on the morning of November 9, 1995, a pair of federal agentssurveilled two persons, Ronald Sullivan and another man, who were workingon Mumme's property. Mumme had hired the two men to build an addition tohis house. According to sworn affidavits by Mr. Mumme, his wife GailMumme, and Sullivan, Mr. Mumme was away from his home that morning untilnoon.

One of Mumme's neighbors, Laura Snyder, testified in an affidavit thatshe watched two suspicious men in a dark blue automobile videotaping themen working in Mumme's yard, and that the two mysterious observersdeparted just before noon. According to Mumme, the two unknown men werefederal agents operating in conjunction with the Department of Labor.Mumme came to this conclusion after meeting with Dr. John Bradford, whoexamined Mumme on behalf of the Government on March 23, 1998. Prior toMumme's appointment with the doctor, the Department of Labor allegedlysent Bradford certain materials regarding Mumme's physical condition.Among these materials, the Government allegedly transmitted to Bradfordits report on Mumme, a suggested list of medical findings and a videotaperecorded by the Government agents during the morning of November 9,1995.

According to Plaintiff's speculative averments, the Department of Laborsent the tape to Dr. Bradford and told him that it showed Mr. Mumme doingconstruction work in his yard, in an effort to induce Dr. Bradford tobelieve that Plaintiff was engaging in strenuous activity inconsistentwith his claims that he suffers from a permanent disability. Plaintiffimplies that Defendants acted with the hope that Dr. Bradford would viewthe video and mistake the persons featured in that video for Mr. Mumme.After examining Plaintiff, Dr. Bradford drafted a medical report, whichhe later submitted to the Department of Labor. In the medical report,Dr. Bradford relies on the contents of the videotape in making hisdetermination that Plaintiff is medically fit to work. (Medical Reportdated March 25, 1998, at 5 (Docket #38, Attach.) ("unless thecontradictory evidence on the video can be reasonably explained, then Isee no reason why Mr.Mumme cannot undertake the position of customsinspector.").)

Once Mumme became aware of the investigation, he wrote several lettersto the Department asking for a complete copy of the agency's recordsrelated to him, including the disputed videotape. From May to December of1998, Plaintiff claims to have sent eight letters to several officials inthe Department of Labor. He sent seven letters to the Boston office ofthe Department of Labor's Office of Workers' Compensation Programs("OWCP"). One of the eight letters, dated August 27, 1998, was sent tothe Department of Labor's Office of Inspector General ("OIG") inWashington, D.C. The OWCP and the OIG are distinct components of theDepartment of Labor. The OWCP administers workers' compensationbenefits, while the OIG investigates potential cases of fraud. From thevarious filings, the Court understands that the OWCP maintained a "claim"file regarding Mumme, while the OIG maintained an "investigation" file ofMumme.

Plaintiff claims that the eight letters constituted requests forinformation under the Privacy Act, 5 U.S.C. § 552a. The Governmentclaims that these letters were not requests for information, but thatthey were correspondence between Mumme and the agency pertaining to hisdisability claims. Several of these letters, however, feature broadrequests for all information regarding the Department's evaluation ofMumme's disability status. The letter to the OIG specifically asked for"one unedited copy of the 11/9/95 video." (Letter from Chris Mumme toOIG, Aug. 27, 1998 (Docket #38, Attach.).)

In response to Mumme's letter to the OIG dated August 27, 1998, OIGDisclosure Officer Pamela Davis sent a letter to Mumme on December 14,1998. In the December 14th letter, Davis stated that the OIG was refusingMumme's request on the ground that disclosure would interfere with lawenforcement proceedings or pending investigations. Mumme claims that heappealed that agency action by sending two letters, dated January 16, 1999and January 27, 1999, to the Solicitor of Labor in Washington, D.C.1The Department of Labor acknowledges the January 16th appeal, butmaintains that there was no appeal letter dated January 27th. TheDepartment of Labor claims that it responded to the January 16th appealby partially reversing the OIG's prior decision and releasing to Mummeonly the non-privileged portions of its investigation file on August 17,1999.

Peter Galvin, an official in the Labor Department, stated in a swornaffidavit that the OWCP has given Mumme everything in its claim file,i.e., all information that the OWCP possessed regarding him. Plaintiffhas not disputed this allegation. The OIG, however, is a slightlydifferent story. Unsatisfied with the redacted file sent to him on August17, 1999, Plaintiff complains to the Court that the OIG improperly haswithheld information from him, in particular the videotape allegedly madeon November 9, 1995 by federal agents. The Department of Labor assertsthat Mumme never appealed the agency's decision to submit to him aredacted version of his investigation file on August 17, 1999. Inresponse, Mumme argues that he never received a "response letter" datedAugust 17, 1999. (See Pl. Resp. Br. at 2, ¶ 4 (Docket #25).)

Apparently, sometime in the last few months Mumme somehow obtained acopy of the notorious videotape. Consequently, Defendants argue thatMumme's documentrequest claims are now moot because he already hasreceived the videotape "from another agency of the Federal government."(Defs. Reply Br. at 3 (Docket #44).) In his recent filings, Mummediscusses the contents of this videotape, implicitly acknowledging thathe has had access to the tape. Also, the record suggests that theGovernment continues to pay Plaintiff disability benefits and to coverhis medical expenses.

III. DISCUSSION

Plaintiff has brought suit alleging that the Department of Labor andits Secretary have violated the Privacy Act, 5 U.S.C. § 552a, innumerous ways: by failing to disclose certain records to him (Counts Iand III), by failing to maintain certain records concerning Plaintiff inan accurate, timely and complete manner (Count II), by not permittingPlaintiff to request that the agency amend its records pertaining toPlaintiff (Count IV), by failing to collect information directly fromPlaintiff when compiling its files about him (Count V), by wrongfullydisclosing portions of his records to a third party, Dr. Bradford (CountVI), and by failing to implement appropriate safeguards to insure thesecurity and confidentiality of the agency's records (Count VII). (SeeCompl. (Docket #1); Second Am. Compl. (Docket #18).) Also, Plaintiffclaims that Defendants violated his Fifth Amendment rights by singlinghim out for mistreatment (Count VIII). (See Compl. ¶ 8 (Docket #1).) Inaddition, Plaintiff alleges that the Department of Labor committed fraudagainst him by falsely claiming that it videotaped him performingstrenuous work inconsistent with a debilitating back injury. (See Am.Compl. (Docket #2).)2

A. Clarifying the Identities of the Defendants

Dispersed within his filings, Plaintiff also accuses the United StatesCustoms Service and the United States of America of violating the PrivacyAct. In the prior Order, the Court clarified that neither the CustomsService nor the United States are proper defendants for a Privacy Actclaim. (See Order at 4 n. 5 (Docket #27).) In his present Motion forReconsideration, Plaintiff contends that the Customs Service and theUnited States should be joined as defendants in this action.

Regarding the Customs Service, Plaintiff makes only vague andconclusory allegations against the agency. Although he hints at joiningthe Customs Service as a defendant (see Pl. Am. Mot. to Amend SchedulingOrder (Docket #6)), Plaintiff has not moved formally to join the CustomsService as a party. Moreover, adding the Customs Service as a defendantat this stage in the litigation would be highly prejudicial to theCustoms Service and the United States, especially in light of the factthat Plaintiff already has amended the Complaint twice and he has anotherMotion to Amend Complaint (Docket #39) presently pending (in whichPlaintiff makes no mention of the Customs Service). In addition, theScheduling Order (Docket #4) set the deadline for joinder of parties asAugust 18, 2000. All things considered, it would be entirelyinappropriate to permit Plaintiff to join the Customs Service as adefendant.

Plaintiff states that "this Court previously understood and acceptedthat the United States Government replaced DOL as the Defendant in thismatter. If that is so, the Plaintiff believes US Customs is alreadyincluded; as being part of the US Government." (Pl. Mot. for Recons. ¶ 3(Docket #30).) The Court assumes that Plaintiff makes reference to one ofPlaintiff's other lawsuits against the Government, Mumme v. UnitedStates, No. 00-CV-103-B, 2001 WL 80084, at *1 n. 1, *5 (D.Me. Jan. 29,2001). In that separate lawsuit, the Court clarified that for Plaintiff'stort claims against the Government, the United States was the appropriatedefendant, while regarding his Bivens claims, he could proceed againstthe Secretary of Labor. See id. That distinct lawsuit, of course, has nobearing on the instant matter. Moreover, as discussed in the prior Order(see Order at 4 n. 5 (Docket #27)), a claimant bringing a Privacy Actclaim must bring suit against a particular agency, not the entire UnitedStates. See 5 U.S.C. § 552a(g)(1). Thus, the United States cannot bea defendant pursuant to Plaintiff's Privacy Act claims. Therefore, theCourt will not alter its clarification that, regarding Plaintiff'sPrivacy Act claims, the only valid defendant is the Department of Labor.

As to Plaintiff's common law fraud claim, however, the United States isthe only appropriate defendant, pursuant to the Federal Tort Claims Act("FTCA"), 28 U.S.C. § 1346(b), 2671-2680. The Court treats this claimseparately below. (See infra, pp. 23-24.) Regarding Count VIII,Plaintiff's Fifth Amendment Bivens claim, the Secretary of Labor is theonly proper defendant. See, e.g., Rivera v. Riley, 209 F.3d 24, 28 (1stCir. 2000). Similarly, the Court treats Count VIII separately below. (Seeinfra, pp. 22-23.)

B. Counts I & III

Counts I and III of Plaintiff's Complaint allege that the Departmentof Labor has failed to disclose certain documents to Plaintiff inviolation of the Privacy Act.

1. Revisiting the Exhaustion Argument

Defendants argue that Plaintiff's Privacy Act claims fail because hedid not exhaust his administrative remedies. The Privacy Act does notexpressly institute administrative requirements prior to filing alawsuit. Thus, for plaintiffs seeking relief pursuant to the PrivacyAct, the exhaustion requirement is jurisprudential rather thanjurisdictional. See, e.g., Taylor v. United States Treasury Dep't,127 F.3d 470, 475-77 (5th Cir. 1997). Before a litigant may file alawsuit against a federal agency pursuant to the Privacy Act, to exhausthis administrative remedies he first must follow the procedures adoptedby that agency.

The first step for a claimant is that he or she must make a request tothe relevant agency asking for the particular relief. The Department ofLabor has issued regulations instructing claimants as to how they mustfashion their Privacy Act requests. See 29 C.F.R. § 71.2. To gainaccess to information about oneself through the mail, a claimant firstmust send the relevant Department component a request with "an example ofhis signature, which shall be notarized, or signed as an unsworndeclaration under penalty of perjury, pursuant to 28 U.S.C. § 1746."Id. § 71.2(d)(1).3 As well, "[b]oth the envelope and the requestitself should bemarked: `Privacy Act Request.'" Id. § 71.2(a).

In his Complaint, Plaintiff alleges that between May and December of1998 he sent eight letters to the Department of Labor asking forinformation regarding the Government's investigation of him. By swornaffidavit, Defendants maintain that the letters "were not Privacy Actrequests but correspondence between Mr. Mumme and the Claims Examinersprocessing his disability claims." (Peter Galvin Aff. ¶ 3 (Docket #24).)Six of these eight letters are part of the record. (See Docket #38,Attach.) Upon review of the six letters on the record, the Court agreesthat not one of them constitutes a request made pursuant to the PrivacyAct and the Department of Labor's regulations. None of Mumme's lettersare notarized or were signed as an unsworn declaration under penalty ofperjury. See 29 C.F.R. § 71.2 (d)(1). None of the six letters state"Privacy Act Request."

The record, however, does not include the other two letters, allegedlymailed on July 11, 1998 and December 29, 1998. Mr. Galvin, speaking onbehalf of the Department of Labor, avers by sworn affidavit that neitherof the two letters constituted a Privacy Act request. Such a statement,however, is not a factual averment but a legal conclusion, which theCourt need not accept. See, e.g., Hamlin v. Kennebec County Sheriff'sDep't, 728 F. Supp. 804, 806 (D.Me. 1990). Plaintiff maintains, albeit ina memorandum rather than in a sworn affidavit, that the two letters werevalid Privacy Act requests. (Pl. Resp. to Defs. Mot. for Recons. ¶¶ 2 & 3(Docket #37).) Viewing the facts in the light most favorable toPlaintiff, the Court will accept for the moment that the two letters werenotarized and included the other criteria essential to a Privacy Actrequest.

In any event, even though the Government argues that none of theletters constituted a valid Privacy Act request, the Government respondedto Plaintiff's August 27, 1998 letter with a letter dated December 14,1998 drafted by Ms. Davis, an OIG official. In that letter, Ms. Davisstated that the Department of Labor was refusing his request on theground that disclosing the documents would interfere with law enforcementproceedings or pending investigations, which may be exempted pursuant to5 U.S.C. § 552(b)(7)(A) and 552a(j)(2).

Subsequently, Plaintiff allegedly appealed Ms. Davis's refusal letterby sending two letters to the Department of Labor on January 16, 1999 andJanuary 27, 1999. The Department of Labor contends that the January 16thletter was the only valid appeal of an agency decision.4 In responseto the January 16th letter, the Department of Labor avers by affidavitthat it sent to Plaintiff the non-privileged portions of its recordsregarding him. Plaintiff argues that the Government did not comply withhis request. The Government responds that because Plaintiff neverappealed the Government's decision to send him only a redacted version ofhis file, Plaintiff has failed to exhaust his administrative remedies.

With its Second Motion to Dismiss, the Government included a Statementof Facts reiterating the representations made by Mr. Galvin, who statedin a sworn affidavit that the Government sent Plaintiff all of thenon-privileged portions of the Department of Labor's files regarding himon August 17, 1999. Plaintiff, acting pro se, responded by stating in alegal brief, not in a sworn affidavit, that he never received a"responseletter" dated August 17, 1999. (See Pl. Resp. Br. ¶ 4 (Docket #25).)Because Plaintiff rebutted Mr. Galvin's factual averment in an unswornmanner, Defendants argue that the Court should not give credence toPlaintiff's unsworn statement that he did not receive a response letterfrom Ms. Davis dated August 17, 1999.

The Court acknowledges that in its prior Order, the Court converted theGovernment's 12(b)(6) Motion to Dismiss into a Rule 56 motion for summaryjudgment. From this, Defendants argue that unless Plaintiff responds toDefendants' sworn averments with sworn averments of his own, Local Rule56 mandates that the Court disregard Plaintiff's unsworn allegations.Indeed, the local rule states that "[t]he court may disregard anystatement of fact not supported by a specific citation to record materialproperly considered on summary judgment." Local Rule 56(e).

Essentially, the Government is asking the Court to strictly applyformalistic procedural rules against Plaintiff. Procedural rules,however, cut both ways. The Court notes that the Government also did notcomply with Local Rule 56(e), which states that "[a]n assertion of factset forth in a statement of material facts shall be followed by acitation to the specific page or paragraph of identified record materialsupporting the assertion." The Government's Statement of Facts citesGalvin's affidavit as a whole, without citations to specific pages orparagraphs.

Because the Court sua sponte converted Defendants' Second Motion toDismiss into a summary judgment motion, and because neither party iswholly in compliance with Local Rule 56(e), the Court declines to enforcethe local rules in such a technical manner against Plaintiff, especiallywhen Plaintiff is acting pro se. Moreover, Plaintiff's averment — that hedid not receive a response letter dated August 17, 1999 — is notnecessarily rebutted by Mr. Galvin's allegation that the Government senta redacted file to Plaintiff on August 17th. When a component of theDepartment of Labor denies or grants only in part a request forinformation, the component must inform the requester in writing. See29 C.F.R. § 71.4. On the current record, it is not clear that Mr.Galvin's response to Plaintiff's January 16th appeal letter included anywritten explanation of the partial grant of Plaintiff's appeal asrequired by the regulation. See id. Thus, for summary judgment purposes,the Court accepts that Plaintiff never received a response letterpursuant to 29 C.F.R. § 71.4. Rather, on the present record, construedin the light most favorable to Plaintiff, it appears that he receivedonly the redacted investigation file. The purpose of a response letter isto inform the requester of the reasons behind a denial or partialdenial, and to inform the requester that he or she has a right ofappeal. Because the Court finds that Plaintiff never received a responseletter, the Court draws the reasonable inference that Plaintiff wasunaware that he could appeal the agency's partial disclosure, therebyforeclosing Defendants' argument of exhaustion.

2. Mootness

That being said, Mr. Galvin also averred by affidavit that, in 1998,the OWCP gave Plaintiff a copy of its entire OWCP file. Plaintiff doesnot dispute this. Therefore, Plaintiff's claims regarding the sevenletters that he sent to the OWCP are moot. Plaintiff, however, doesrespond to Mr. Galvin's statement by pointing out that Mr. Galvin did not"say that Plaintiff's file contains all the information DOL possesses onthe Plaintiff." (Pl. Resp. Br. ¶ 8 (Docket #25) (emphasis in original).)

The burden, however, is on Plaintiff to petition a specific componentof the Department of Labor for information. See, e.g.,29 C.F.R. § 71.2(a). Plaintiff requested information from only theOWCP and the OIG. Because Plaintiff does not dispute that the OWCP hasdisclosed all information relevant to Plaintiff, the Court now considerswhat information the OIG possesses.

Defendants argue that the OIG has conveyed to Plaintiff allnon-privileged information that it has regarding him. The "privilege"relied on by the Government are two distinct exemptions from disclosurefor investigatory purposes, codified in the Freedom of Information Act("FOIA"), 5 U.S.C. § 552(b)(7)(A), and in regulations adoptedpursuant to the Privacy Act, 5 U.S.C. § 552a(j)(2). Plaintiff arguesvociferously that it is entirely improper for the Government to deny aPrivacy Act request based on a FOIA exemption.

When Ms. Davis refused Plaintiff's request, however, she cited not onlyFOIA, but also section 552a(j)(2), which is part of the Privacy Act. Herletter refers to 5 U.S.C. § 552a(j)(2), which authorizes theSecretary of Labor to promulgate regulations establishing exemptions fromdisclosures of certain types of documents. Pursuant to the Privacy Act,the implementing regulation exempts information held by the OIG, thedisclosure of which would impede law enforcement investigations. See29 C.F.R. § 71.50.5 Plaintiff has not rebutted the Government'sreliance on this exemption, which unquestionably applies to Privacy Actrequests.

Moreover, the only document that Plaintiff specified had been left outof the OIG's disclosure was the videotape. See 29 C.F.R. § 71.2(b)("A request for access to records must describe the records sought insufficient detail. . . ."). Other than the videotape, Plaintiff does notspecifically identify any other materials that he would like the OIG todisclose. Mr. Galvin, however, states in an affidavit that "the LaborDepartment does not possess a surveillance video of plaintiff." (GalvinAff. ¶ 5 (Docket #24).) Furthermore, Plaintiff has come to possess thevideotape. Thus, Plaintiff's request for the videotape is moot. BecausePlaintiff has received a copy of his entire OWCP file, because he has notdisputed the OIG's reliance on the Privacy Act exemption, because he hashad access to the videotape, and because he has not specified any otherdocuments that he would like to receive, Plaintiff apparently hasobtained all that he can from the Department of Labor, rendering moot hisclaims that Defendants failed to disclose information to him.

C. Count II

Count II of the Complaint claims that Defendants failed to maintaincertain records concerning Plaintiff in an accurate, timely and completemanner in violation of the Privacy Act. Plaintiff initiated this lawsuitby filing a cursory Complaint featuring little more than conclusoryaccusations. (See Compl. (Docket #1).) The Magistrate Judge orderedPlaintiff to file an amended complaint elaborating on his eight counts.(See Order to Show Cause (Docket #16).) To comply, Plaintiff filed theSecond Amended Complaint, in which he added nothing of substance to CountII. Thus, the Court finds that Count II fails to meet the noticerequirements of Rule 8(a)(1). See, e.g., Conley v. Gibson, 355 U.S. 41,47(1957).6 Moreover, by not proffering sufficient facts to supportthis count, Plaintiff has not met the standard of Rule 56. Therefore, theCourt finds that Count II fails.

D. Count IV

In the Second Amended Complaint, Plaintiff explains that becauseDefendants allegedly have failed to disclose all information that theypossess regarding him, they constructively have prevented him from beingable to request that the agency amend its records pertaining to him. Sucha theory, although innovative, does not support a cause of actionpursuant to the Privacy Act. The Privacy Act authorizes a private cause ofaction against a federal agency for: refusing to amend an individual'srecord, refusing to comply with an individual's request for information,failing to maintain records accurately and completely, or otherwisefailing to comply with the Privacy Act in such a way that it causes theclaimant an adverse effect. See 5 U.S.C. § 552a(g)(1). Moreover,Plaintiff's argument relies upon the premise that the Government hasfailed to disclose information, as alleged in Counts I and III. TheCourt, however, already has found that Counts I and III fail because theclaims are moot or otherwise fail to state a claim upon which relief canbe granted. The Court similarly finds that Count IV fails to state aclaim upon which relief may be granted.

E. Count V

The Privacy Act states that each federal agency must "collectinformation to the greatest extent practicable directly from the subjectindividual when the information may result in adverse determinationsabout an individual's rights, benefits, and privileges under Federalprograms." 5 U.S.C. § 552a(e)(2). Plaintiff may bring suit against theDepartment of Labor for violating this section pursuant to5 U.S.C. § 552a(g)(1)(D), which creates a cause of action if anagency "fails to comply with any other provision of this section, or anyrule promulgated thereunder, in such a way as to have an adverse effecton an individual."

Plaintiff, however, has made no allegations supporting his claim thatDefendants failed to collect information to the greatest extentpracticable directly from the subject individual. He argues that becauseno federal agents directly asked him any questions, it must follow thatthe Department of Labor has violated section 552a(e)(2). When conductinga criminal investigation of an individual, however, it may not bepracticable for the investigating officers to collect information viadirect questioning of the individual. See, e.g., Cardamone v. Cohen,241 F.3d 520, 528 (6th Cir. 2001). In support of Count V, Plaintiff citesa letter written by Ms. Davis on June 23, 2000. The record, however, doesnot include a letter written by Ms. Davis dated June 23, 2000. Perhaps

Plaintiff meant to reference the December 14, 1998 letter written byMs. Davis. The Court, however, finds the December 14, 1998 letter to beirrelevant to Count V. (See Letter by Pamela Davis to ChrisMumme datedDec. 14, 1998 (Docket #25, Attach.).) Furthermore, Plaintiff has offeredno arguments to demonstrate that by collecting information via avenuesother than directly from Plaintiff himself, the agency has caused him anadverse effect. See 5 U.S.C. § 552(g)(1)(D). Thus, there are nogenuine issues of material fact regarding Count V, and Defendants areentitled to judgment as a matter of law.

F. Count VI

Count VI alleges that Defendants made a wrongful disclosure ofinformation to a third party. The Privacy Act mandates 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 prior written consent of, the individual to whom the record pertains. . .

5 U.S.C. § 552a(b). Plaintiff argues that prior to his physicalexamination on March, 23, 1998, the Department of Labor transmitted toDr. Bradford inaccurate and misleading materials, specifically a reporton Mumme, a suggested list of medical findings and the videotape.

Defendants contend that Plaintiff has failed to demonstrate that adisclosure was made within the meaning of the Privacy Act. Plaintiff,however, stated in his Second Amended Complaint that the Department ofLabor had sent to Dr. Bradford the materials listed above. In response,Mr. Galvin did not dispute that disclosures had been made, rather hemaintained that he was "unaware of any disclosures from plaintiff's claimfile which did not comport with the terms of the Privacy Act." (GalvinAff. ¶ 6 (Docket #24).) Again, this is a legal conclusion, not a factualaverment. In addition, the claim file is maintained by the OWCP, but theGovernment makes no allegation regarding possible disclosures from theinvestigation file held by the OIG.

Even if the Government did make a disclosure, however, it argues thatany such disclosure was permissible pursuant to a Privacy Act exceptionauthorizing agencies to disclose information for a "routine use." See5 U.S.C. § 552a(b)(3). The Privacy Act vaguely defines "routine use"as "the use of such record for a purpose which is compatible with thepurpose for which it was collected." 5 U.S.C. § 552a(a)(7). Inaddition, the Privacy Act instructs each agency to state periodically inthe Federal Register the agency's routine uses of different types ofinformation. In the most recent posting by the Department of Labordefining "routine use" in the Federal Register, the agency states, amongother things:

(2) in the course of investigating the potential oractual violation of any law, whether civil, criminal orregulatory in nature, or during the course of a trial orhearing, or the preparation for a trial or hearing forsuch violation, a record may be disseminated to afederal, state, local or foreign agency, or to anindividual or organization, if there is reason tobelieve that such agency, individual or organizationpossesses information or is responsible for acquiringinformation relating to the investigation, trial orhearing and the dissemination is reasonably necessary toelicit such information or to obtain the cooperation ofa witness or an informant. . .

66 Fed. Reg. 36,593 (2001). Defendants argue that as part of theirinvestigation into whether Plaintiff was committing health care fraudagainst the United States, it was appropriate to send certain informationto Dr. Bradford before he examined Plaintiff. Thus, Dr. Bradfordqualifies as an "individual" to whom the Department of Labor disclosedinformation in the courseof investigating Plaintiff for a potentialviolation of the law. See id. Therefore, the disclosure was a routineuse.

Even if the disclosure to Dr. Bradford was a routine use, however,Plaintiff argues that it nonetheless violates the Privacy Act because thedisclosure was inaccurate and it misled Dr. Bradford. Indeed, the Actrequires that agencies maintain reasonably accurate records. See5 U.S.C. § 552a(e)(5), 552a(e)(6).

Plaintiff, however, overlooks that one of the essential requirements ofmaking a successful claim challenging an improper disclosure pursuant tothe Privacy Act is that Plaintiff must substantiate that the agencydisclosed information "which was contained in a system of records." See,e.g., Beaulieu v. United States, 865 F.2d 1351, 1352 (1st Cir. 1989). TheAct defines "system of records" as "a group of any records under thecontrol of any agency from which information is retrieved by the name ofthe individual or by some identifying number, symbol, or otheridentifying particular assigned to the individual."5 U.S.C. § 552a(a)(5).

In Beaulieu, the federal Government argued that the plaintiffchallenging a disclosure pursuant to the Privacy Act must allege that thedisclosure was of information which was contained in a system ofrecords. In response, the plaintiff contended that her failure to state"`eight conclusory buzzwords'" in her complaint was merely a formalisticoversight that should not undermine the substance of her pleading. Seeid. Agreeing with the Government, the First Circuit ruled that "theso-called buzzwords are the whole substance of the statute, as previouslyemphasized." Id. "A mere reference to a statute is not enough; this is toreduce the concept of notice pleading to the point of no return. . . .Simply to state that a claim is made under a named statute is not a shortand plain statement of what the claim is." Id. Even though the Court mustconstrue liberally pro se plaintiffs, "pro se status does not insulate aparty from complying with procedural and substantive law." See Ahmed v.Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). Plaintiff fails to allegein Count VI that the allegedly improper disclosure was of informationcontained in a system of records, and therefore he cannot state a claimpursuant to the Privacy Act for an illegal disclosure. See Beaulieu, 865F.2d at 1352.7

Moreover, it is not clear that Plaintiff has suffered an "adverseeffect" based on the alleged inaccurate disclosure, as required by5 U.S.C. § 552a(g)(1)(D). Even though Dr. Bradford concluded in hismedical report that based on what he saw on the videotape Plaintiff wasmalingering, the record indicates that the Department of Labor continuesto issue checks to Plaintiff for disability coverage and to pay for hismedical benefits. Thus, Plaintiff has not established an adverse effectstemming from the allegedly illegal disclosure.

Based on the above discussion, Count VI fails to meet the requirementsof notice pleading. See Beaulieu, 865 F.2d at 1352. Looking to the factson the record, the Court also finds that no genuine issue of materialfact remains with regard to Count VI, and therefore, Defendants areentitled to judgment as a matter of law on Count VI.

G. Count VII

Count VII alleges that Defendants failed to establish appropriateadministrative, technical, and physical safeguards to insure the securityand confidentiality of records. Plaintiff, however, has not provided anyfacts to support this claim. Even after the Magistrate Judge instructedPlaintiff to elaborate on the initial Complaint, Plaintiff has notcontributed anything of substance to Count VII in either the AmendedComplaint or the Second Amended Complaint.8 Therefore, the Courtfinds that Count VII fails to state a claim upon which relief can begranted. Moreover, by not proffering sufficient facts to support thiscount, Plaintiff has not met the standard of Rule 56. Thus, Count VIIfails.

H. Count VIII

In Count VIII, Plaintiff claims that Defendants have violated his FifthAmendment rights by singling him out for mistreatment. First, even afterthe Magistrate Judge instructed Plaintiff to elaborate on his initialComplaint, he has said absolutely nothing more regarding Count VIII inhis Amended Complaint, Second Amended Complaint or elsewhere.9Second, Plaintiff proffers no facts supporting his claim that theGovernment has singled him out wrongly. Third, the Court already hasanalyzed and dismissed Plaintiff's Fifth Amendment arguments, based onthe same set of circumstances, in one of Plaintiff's other lawsuits. SeeMumme v. United States, No. 00-CV-103-B, 2001 WL 80084, at *5-*6 (D.Me.Jan. 29, 2001) (Mumme has no Fifth Amendment Bivens claim because theGovernment has not withdrawn his disability or medical benefits, and ifthe Government did withdraw those benefits, Mumme would have apost-deprivation remedy). Therefore, the Court finds that Count VIII failsto meet the notice requirements of Rule 8(a)(1). Moreover, by notproffering sufficient facts to support this count, Plaintiff has not metthe standard of Rule 56. Thus, Count VIII fails.

I. Fraud

In the first Amended Complaint (Docket #2), Plaintiff makes a claim ofcommonlaw fraud against Defendants.10 In the previous Order, theCourt entered partial summary judgment in Defendants' favor onPlaintiff's claim of fraud. Plaintiff asks the Court to reconsider thatruling.

Plaintiff argues that OIG agents have committed fraud against him bymaking the false claim that they videotaped Plaintiff while he wasperforming construction work in his yard on the morning of November 9,1995, when in fact, according to Plaintiff, he was not performing anysuch construction. Plaintiff argues that this videotape — which is notpart of the record — depicts other persons working in Plaintiff's yard.According to Plaintiff, however, the Department of Labor sent the tape toDr. Bradford and told him that the tape depicts Mr. Mumme doingconstruction work in his back yard, in an effort to induce Dr. Bradfordto believe that Plaintiff was engaging in strenuous activity inconsistentwith his claims that he suffers from a permanent disability. Plaintiffimplies that Defendants acted with the hope that Dr. Bradford would viewthe video, mistake the persons featured in that video for Mr. Mumme, thenmake an inaccurate medical diagnosis that Plaintiff is no longerdisabled. After examining Plaintiff, Dr. Bradford drafted a medicalreport which he later submitted to the Department of Labor. In themedical report, Dr. Bradford relies on the contents of the videotape inmaking his determination that Plaintiff is medically able to work. (SeeMedical Report dated March 25, 1998, at 5 (Docket #38, Attach.).)

The principle of sovereign immunity generally bars all tort claimsagainst the United States. The United States, however, has waivedsovereign immunity for a number of tort claims, as specified in theFederal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680. TheFTCA features several exceptions, whereby the United States reserves itssovereign immunity against tort liability. See, e.g., Mumme v. UnitedStates Dep't of Labor, No. 00-CV-103-B, 2001 WL 80084, at *3 (D.Me. Jan.29, 2001).

In particular, the United States is immune from "[a]ny claim arisingout of . . . libel, slander, misrepresentation, [or] deceit."28 U.S.C. § 2680(h); see, e.g., McNeily v. LABORUnited States,6 F.3d 343, 348-49 (5th Cir. 1993) (United States immune to claim ofcommon law fraud based upon misrepresentations of fact). Central toPlaintiff's fraud claim is that the United States misrepresented materialfacts to Dr. Bradford. The United States retains sovereign immunityagainst such a claim. See id. In addition, the record indicates thatPlaintiff never gave the United States notice prior to initiating thislawsuit that he would bring a tort fraud claim, as required by the FTCA.See 28 U.S.C. § 2675(a); Dynamic Image Techs., Inc. v. UnitedStates, 221 F.3d 34, 39 (1st Cir. 2000). For these reasons, Defendantsare entitled to judgment as a matter of law against Plaintiff's fraudclaim.

J. Plaintiff's Motion to Amend Complaint

Plaintiff also has filed a Motion to Amend Complaint (Docket #39) toadd a count of "obstruction of civil justice" based on two allegations:(1) that the Government conspired to deprive Plaintiff of his requestedrecords, and (2) that because the Government did not disclose toPlaintiff his requested records, it led to the unfair dismissal of one ofhis other lawsuits against the Government, Mumme v. United States Dep'tof Labor, No. 00-CV-103-B, 2001 WL 80084 (D.Me. Jan. 29, 2001), and theunfair dismissal of his wife's lawsuit against the Government, Mumme v.United States Dep't of Labor, No. 00-CV-104-B, 2001 WL 80083 (D.Me. Jan.29, 2001). In theMotion, Plaintiff implies that he could not havebrought this claim earlier because he "only recently learned of theillegality of these actions." (See Pl. Mot. to Amend Compl. ¶ 3 (Docket#39).)

Objecting to Plaintiff adding this claim, Defendants argue that such anamendment to the Complaint would be futile, unfairly prejudicial toDefendants, and would only cause further delay. The Court agrees. First,"obstruction of civil justice" is not a valid cause of action. Second,Plaintiff's new legal theory stems from the same facts as his Privacy Actrequest claims, that the Government wrongfully failed to disclose certaindocuments to him. If the Court were to treat this new claim as madepursuant to the Privacy Act, adding such a claim would be futile becausethe Court simply would treat it in the same way that the Court istreating Counts I and III. Third, the Court finds that granting theMotion to Amend Complaint at this late stage in the litigation would beunfairly prejudicial to Defendants and would cause unnecessary delay.Fourth, Plaintiff already has amended his Complaint twice. Therefore, theCourt denies Plaintiff's Motion to Amend Complaint.

IV. CONCLUSION

Based on the foregoing discussion, the Court GRANTS Defendants' Motionfor Reconsideration (Docket #29). The Court DENIES Plaintiff's Motion forReconsideration (Docket #30). The Court finds that Defendants areentitled to summary judgment against all of Plaintiff's claims. The CourtDENIES Plaintiff's Motion to Amend Complaint (Docket #39).

SO ORDERED.

1. Although Davis's letter is part of the record, Mumme's allegedappeals are not.

2. Plaintiff makes no mention of either his Fifth Amendment claim orfraud claim in the Second Amended Complaint. (See Second Am. Compl.(Docket #18).) In the Second Amended Complaint, however, Plaintiffspecifically asks the Court to treat the Second Amended Complaint "inconjunction with Plaintiff's previous amendment and original pleadings."Id. at 2. Because the Court reads pro se pleadings liberally, the Courtrecognizes the Fifth Amendment and fraud claims.

3. The requirements differ for a claimant who goes to the Departmentof Labor's offices in person to request information.

4. Defendants do make clear whether they did not receive the January27th letter, or whether they received the letter but that they do notconsider it to constitute a Privacy Act appeal.

5. Not only does 29 C.F.R. § 71.50 exempt information collectedfor criminal investigations, but also 5 U.S.C. § 552a(d)(5) exemptsfrom disclosure information collected in reasonable anticipation of acivil action or proceeding.

6. Specifically, Count II of the original Complaint states in whole,"In addition, the Agency failed to maintain certain records, concerningclaimant/plaintiff, in an accurate, timely, and complete manner; inviolation of the Privacy Act." (Compl. ¶ 2 (Docket #1).) Plaintiff saysnothing regarding Count II in the Amended Complaint. In the SecondAmended Complaint, all that Plaintiff states with regard to Count II is,"As in Count I." (Second Am. Compl. ¶ 2 (Docket #18).) As discussedabove, Count I charges the Government with wrongly refusing Plaintiff'srequests for information, and has nothing to do with allegedlymaintaining inaccurate records.

7. In Count I of Plaintiff's original Complaint, he complains that theOWCP maintained "records in a system of records" and wrongfully refusedto comply with his requests for those records. (Compl. ¶ 1 (Docket #1).)Plaintiff does not allege, however, that the allegedly improperdisclosure was from information contained in a system of records, neitherin Count VI nor elsewhere in his complaints or affidavits.

8. Specifically, Count VII of the original Complaint states in whole,

The Agency failed to establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records, and to protect against any anticipated threats or hazards to their security or integrity; which could result in substantial harm, embarrassment, inconvenience, or unfairness to claimant/plaintiff, on whom information is maintained; in violation of the Privacy Act.

(Compl. ¶ 7 (Docket #1). Plaintiff says nothing regarding Count VII inthe Amended Complaint. In the Second Amended Complaint, all thatPlaintiff states with regard to Count VII is "As in all the foregoingCounts, but especially see materials included with the 6/23/2000 letterto Plaintiff, of DOL/OIG Disclosure Officer Pam Davis." (Second Am.Compl. ¶ 7 (Docket #18).) Nothing in Plaintiff's other Counts addressesthe adequacy of the safeguards established by the Department of Labor forits records. Again, a letter written by Ms. Davis dated June 23, 2000 isnot part of the record. In addition, Ms. Davis's December 14, 1998 lettersheds no light on Count VII. (See Letter by Pamela Davis to Chris Mummedated Dec. 14, 1998 (Docket #25, Attach.).)

9. Count VIII reads in whole, "Lastly, by virtue of the foregoingcounts, the Agency erred in that it treated claimant/plaintiff in amanner apart from other petitioners of Federal records; consequentlyviolating claimant/plaintiff's 5th Amendment rights to equal protectionunder the law, and due process." (Compl. ¶ 8 (Docket #1).) Neither theAmended Complaint nor the Second Amended Complaint says anything relatingto Count VIII.

10. Plaintiff does not designate this claim as a numbered count.

Back to top