John Doe v. Joseph Digenova

WALD, STARR, compensation. Stanley Before EDWARDS and ment asked Doe to meet him Judges. on November Circuit and offered arrange appointed counsel before the Opinion for the Court filed Circuit meeting. meeting Stanley At the apprised Judge WALD. court-appointed Doe and his counsel of the him, against gave evidence oppor- Doe the Opinion concurring in judgment filed tunity plead guilty to multiple felony Judge Circuit STARR. charges, attempted and to enlist Doe’s as- WALD, Judge. Circuit ongoing investigation. sistance in an appeals John Doe from the district day On the meeting, of that without no- summary judgment granting court’s order counsel, tice Stanley to Doe or his caused a dismissing Doe’s defendants and suit grand jury subpoena to be issued to the damages, injunctive, declaratory for Director of the Veterans’ Administration appeal relief. The involves the United production file, for the of Doe’s claim “in- grand Attorney’s States to issue a cluding any medical records maintained for jury subpoena for veteran’s medical compliance claimant.” J.A. at 10. In records, and the Administration’s Veterans’ with the terms of subpoena, the VA (“VA”) authority to release a veteran’s turned Doe’s medical records over to two response grand jury Metropolitan Department medical records Police officers. These subpoena. argues variety Doe that a records contained information about psychiatric statutory provisions pro- Doe’s treatment in the constitutional and Veter- ans’ Administration’s mental and the release of his health clinic hibited conclude, diagnosed schizophre- what has been as records We con- case. paranoia. nia trary to the district court’s determination below, that VA’s disclosure Upon learning of the VA’s release of records was not authorized under 38 U.S.C. records, psychiatric Doe’s Doe’s counsel in- 3301, and remand the case to the district formed the AUSA that he believed that court for a redetermination of Doe’s other legal rights privacy Doe’s in the of his statutory arguments and constitutional violated, medical records had been light of that conclusion. legal threatened to take action unless the

prosecutor specified steps took certain protect confidentiality.2 Negotiations their I. THE BACKGROUND agreement over an broke off when Doe’s 22, 1981, On October Assistant United counsel asserted that he would not be satis- (“AUSA” Attorney Stanley States David anything fied with less than a district court “Stanley”) sent a letter to John Doe1advis- embodying consent order his demands. ing being investigated him that he was grand jury concerning allegations 6, 1982, that he January On Doe filed com- payments unemploy- plaint3 had received false alleging the district court Harris, plaintiff-appellant granted (D.C.Cir.1982). 1. The leave to Doe v. proceed pseudonym under the “John Doe” following 3.Doe named the defendants: Charles Order of the United States District Court for the Ruff, Attorney F.C. United States for the District Ruff, District of Columbia. Doe v. No. 82-0025 Columbia; Stanley, David (D.D.C. 1982), Assistant United reprinted Jan. in J.A. at 8-9. Attorney Columbia; States for the District of Metropolitan prosecutor Department 2. Doe’s counsel demanded that the Police of the District Columbia; (1) VA; (2) Sgt. Yatty, Metropolitan return the records to the tender all Edward counsel; (3) copies Department Columbia; to Doe’s Police seal notes of the District of Smith, Sgt. possible Reginald Metropolitan made from the records for dentiary Depart- later evi- Police use; (4) Columbia; presentation ment of the Morgan, make no District of Essie Director, (5) Office, jury; Washington Regional records to the allow no fur- United records; Administration; (6) ther dissemination of the States Veterans’ Nimmo, make Robert P. records; Affairs, no further efforts to Administrator obtain Doe's of Veterans’ Unit- make no use of ed States the information con- Veterans’ Administration. The Honor- Stanley party tained in the able records. Harris was once a to this opportunity object. disclosure of his VA notice and subpoena and the Id. rights.4 his addition Finally, possi- records violated the court held that the relief, declaratory Doe his bility damages kept suit money vital. the files be the court to order that Thus, asked at 114. the court remanded to Id. counsel, to his to order that transferred the district court for consideration relating to the files be present had assertions that he AUSA’s claiming reason do so would breach person- and that all interest in the records grand jury secrecy rule. Fed.R.Crim.P. read the records had been instruct- nel who 6(e). did, however, justifi- He set forth this contents, divulge their made it ed not to he sub- affidavit which in a sealed cation unlikely” there be “extremely would court, mitted to the district and he invited divulgence further of the information. power the court to use its its to disclose court reversed the dis appeal, this On 6(e)(3)(C)(i) contents under Fed.R.Crim.P. holding the ease was court’s trict (disclosure may so directed be made “when Harris, (D.C. 696 F.2d 109 moot. Doe by preliminarily a court to or in connection Cir.1982). explained ap that it The court judicial proceeding”). with a “from the record that Doe remains peared Stanley that his second reason asserted investigation receipt for fraudulent under issuing for was that compensation, unemployment and that talking Mr. after with Doe and his attor- he indicted is the likelihood that will be might ney, appeared it that Mr. Doe be ex appropriately described as reasonable insanity defense preparing to assert Moreover, the pectation.” Id. at 112. might brought any charges that continued to as court found that the VA him, and I felt that it would be disclosure, against sup legality of the and sert the such a important to ascertain whether again not plied no indication that it would available, affording might be and how files him defense disclose Doe’s without capacity United States as successor in his action court left for the district court’s "discrete deter- Ruff, Joseph diGenova suc- and Attorney to Mr. mination on separate question” remand the Attorney Judge United States Harris as ceeded complaint presents Doe’s a claim on Nimmo was Mr. defendant. as a named equitable relief appropriately granted. by Harry Walters as Administrator N. succeeded Harris, Doe v. 696 F.2d at 112. The district the ac- defendant in and as a Affairs of Veterans’ yet court has not had occasion to address this tion. question, and in view disposition of our of this case, claims on the 4. Doe based his constitutional too deem it advisable that the amendments, fourth, fifth, and the and sixth first be by considered the district court. alleged privacy. Doe also constitutional privi- physician-patient the D.C. violations of 6.Doe’s FTCA claim is only against directed lege, the D.C. Mental Code D.C. VA’s action in disclosing the records—not the AUSA’sefforts to obtain them. See Standard Code Act of D.C. Information Health (1981), and the federal stat- 6-2001-6-2062 §§ ute Form Claim Damage, Death, Injury, or confidentiality governing of veterans’ reprinted (claim in J.A. at 4 damages sub- VA, by 38 U.S.C. 3301 maintained records mitted to Veterans' claiming Administration and Statute”). ("Veterans’ Finally, Doe al- Records privacy "invasion of upon based the disclosure process leged AUSAhad abused by the Veterans' Administration of the claim- issuing subpoena. psychiatric ant’s records”). and medical Doe sought has Although damages that there was a live “case never it found from the individual sense, controversy” in the constitutional defendants in this suit. be, strong might before such a defense S.Ct. any (1977). the course of

deciding Although further on it held that these were investigation further of Mr. Doe. the “kind of matters that fell within the constitutionally protected right privacy,” Interrogatories Addressed to Answers it concluded that the limited disclosure in Stanley, reprinted Defendant David right. this case was a violation of that J.A. at 85. Throughout analysis, J.A. at 105-06. its parties cross-motions for sum- filed the court relied on the second of the hearing mary judgment, after oral ar- justifications AUSA’s determine vi- granted guments, the district court the de- —to ability possible insanity aof defense. It is First, court held fendants’ motion. not clear whether the district court ever comport- that the VA’s of the files release affidavit, did, opened the sealed but it Statute, ed Records Veterans’ certainly did not take account of its con- pro- since it came under the U.S.C. § analysis. tents in its permitting vision disclosure court, process of a United States and under Finally, summarily rejected the court provision permitting when allegations Doe’s other of constitutional vi- department required another olations since had there been no testimonial government. United States Since the dis- trigger communication to fifth amend- closure was sanctioned the Veterans’ protections, ment’s self-incrimination Statute, Records the court held that no tort proceedings since no adversarial criminal against action could rest the VA under the yet trigger had been initiated so as to FTCA. J.A. at 102. As for the AUSA’s right sixth amendment’s to counsel. J.A. actions, the court deemed appeals at 106-07. Doe all but these last reasonable, the records and found that lo- legal rulings. of the district court’s two provide liability cal does not for tort law intruding government agent where the had grounds

reasonable for the intrusion. The II. DISCUSSION district court also held that the Mental D.C. A. The Veterans’Records Statute Act, Health Information D.C. Code 6- §§ case, 2001-6-2062 had no to the relevance challenges the Doe district court’s hold- yields the local to the because law federal ing that the disclosure of his records VA’s permitted Veterans’ Record Statute which permitted by the Veterans’ Records the disclosure in this case. J.A. at 108-09. Statute. 38 U.S.C. 3301. Section 3301 § rejected The court also Doe’s claim under provides that: Physician-Patient the District of Columbia (a) files, records, reports, any All Privilege, holding D.C. Code § papers pertaining other and documents evidentiary privilege the statute is any any claim under of the laws ad- give which does not rise to a cause of ministered the Veterans’ Administra- action. J.A. at 108. tion and the names and addresses of claims, Addressing Doe’s constitutional present personnel or former of the arm- court held that Doe retained a fourth services, dependents, ed and their in the expectation privacy in the amendment possession of the Veterans’ Administra- of their confidential and records because privileged, tion shall be confidential and Nonetheless, it held that intimate nature. and no disclosure thereof shall made subpoena in was reasonable except provided in this as section. indefinite, overly broad or since was not goes excep- The on to list various statute inquiring possible insanity since into a tions, including: investigation. relevant to the defense was (2) required by process of When analyzed then Id. at 103-05. The court produced in privacy States court to be constitutional United Su- pending. preme recognized Roe, any proceeding in therein Court Whalen v. suit required by any department When areas, both of the and it there- relevant fore agency necessary other the United States to examine the stricter of the two—the Privacy Government. Act.8 The that disclosure was district held under appropriate in this case either ato Court 1. Disclosure However, the court mis- exceptions. these pro Records Statute Veterans’ takenly apply the 1976 amend- failed to vides that the Administrator shall disclose Those amendments add- ments to required by process of a Unit files “[w]hen (j), pro- ed is now subsection which what produced ed States court to be suit “[e]xcept provided in subsec- vides that as proceeding pending.” 38 U.S.C. therein (i)(l) related tion of this section [disclosures added). 3301(b)(2) (emphasis Applying any disclosure made to credit information] statute, district court held that this section shall be made to this grand jury subpoenas qualify “process.” as provisions of section accordance with language Act is differ of title 5 552a [the Act].” regard, It dis ent this however. allows (j) because Congress enacted subsection only “pursuant of a closure order Privacy Act conflicted in it knew that the competent jurisdiction.” 5 court of U.S.C. aspects the Veterans’ Records some added). is, 552a(b)(ll) It (emphasis explained The Senate Committee Statute. therefore, unnecessary for us to review the either law “in situations in which finding grand jury district court’s that a applica- apply, stricter of the two would by process” “required meets the operable. By ‘stricter’ the provisions is ble need decide whether a standard.9 We provision pro- more means the Committee grand jury subpoena is an “order of federal confidentiality of the individ- tective of competent jurisdiction” court of under Cong., S.Rep. No. 96th ual’s records.” In Act. order to answer (1976),reprinted in 1976 U.S. 2d Sess. helpful to question, it is first describe Cong. Ad. News 1308.7 Code & subpoenas way federal two statutes do conflict

this case the issued. are (a) required incorporating provisions All records or documents 7. The amendment purposes by any department or other Privacy official Act was a minor addition agency designed clarify of the U.S. Government or State series amendments compensation agency acting unemployment authority Administration’s to disclose Veterans’ capacity for the Veterans Ad- agencies. in an official to various health veterans’ records response to ministration shall be furnished in (j) purpose of subsection was to make clear The written, oral, request, from such an official or post-Privacy Act amendments did not department agency. 892, S.Rep. displace Act. See No. (1984) 1.511(b) provides that: 38 C.F.R. (1976), Cong., reprinted 2d Sess. 11 in 1976 96th (b) process of a United States Where the 1299, Cong. & Ad. News 1308. On the U.S. Code production requires of documents House, sponsor of the bill ex- floor of the (or thereof) copies contained in the records provisions plained made no sub- that the Senate claimant, a Administration file of Veterans changes area of law. See 122 stantive in this (or copies) will be such documents or records 18,629 (1976) (remarks Rep. Cong.Rec. Sat- out of which made available to the court terfield). under- This statement reflects the process has been issued. amendment, standing that even without the 1968, regulations promulgated in were These the disclosure of Act would still control Congress’ years of the Pri- six before enactment 704, H.R.Rep. No. veterans’ documents. Act, years Congress’ vacy eight before (1976). Cong., 1st Sess. 5 94th Records Statute. amendment to the Veterans’ they are inconsistent To the extent to Notwithstanding (j) the addition of subsection Act, interpretation with our incorporating the Priva- specifically the terms of contrary statute. them invalid as deem Act, cy Administration has the Veterans’ pro- regulations apply modified the two which, express no view 9.We Statute that are of the Veterans’ Records visions although longer Veterans’ no relevant in this case. relevant Statute, might still have relevance Records 1.506(a) (1984) provides that: C.F.R. some other statutes. 38 80 re- The issued grand nature are jury a. subpoenas other as federal quest, of, and in the any private discretion subpoena litigant. See Fed.R.Civ.P. 45.

While a grand federal10 jury subpoena is issued authority court, under the of a United Attorney’s States Office has court has no issuing substantive involvement considerable latitude in subpoenas. particular It has subpoena government been held that unless subpoenaed is not required it. See In party re Grand Jury to make a challenges preliminary showing Proceedings (Schofield I), relevancy reasonableness issuing before 85, 486 F.2d 90 See United subpoena. States v. Dioni (3d Cir.1973) (“court prior exercises no con sio, 1, 15-16, 410 764, U.S. 93 S.Ct. 772- trol upon whatsoever” the use of subpoe 73, In re Grand (1973); 35 L.Ed.2d 67 nas). grand Nor does the jury necessarily Jury Investigation (McLean), 565 F.2d approve or even have knowledge of a sub 318, (5th Cir.1977); In re Grand 320-21 poena prior to its issuance.11 See United Jury Proceedings (Hergenroeder), 555 Santucci, States v. 624, (7th 686, (9th Cir.1977). Even when a Cir.1982) (U.S. Attorney may “fill in blank duces tecum is subpoena involved, grand jury subpoenas without prior actual hence the fourth amendment implic denied, grand jury authorization”), cert. ated,14 prior authorization for the sub 1109, 103 S.Ct. poena has See United required. been (1983); United States v. Laundry Kleen & Miller, States v. 425 U.S. 446 n. Cleaner, Inc., F.Supp. 519, (E.D.N. S.Ct. 1625 n. (1976); L.Ed.2d Y.1974) (“absence of sitting grand jury Oklahoma Press Publishing Co. v. Wall subpoena when a is issued is not disturb ing, 186, 209, 494, 505, ing” if return date is day set for a when L.Ed. 614 grand jurors session). Rather, would be in Although comply failure to grand with a grand jury subpoenas are issued at jury subpoena punishable as criminal request,12 and in the pros discretion of the contempt,15 17(c), Fed.R.Crim.P. one seek ecuting attorney case,13 just involved analysis grand jury subpoenas 10. The signed of federal and sealed but otherwise in blank to a may vary widely subpoena practice it, from the party requesting who shall fill in the blanks some states. Service, Moore v. United States Postal before it is served. Cf. (E.D.N.Y.1985). "party” speaks that the rule in the Moore, subpoena the court held that the civil did is, course, States, jury context the United order," explained constitute a "court represented by which is the United States Attor- judge approved "the who used the ney. ordered,’ words 'so and that New York law requires a ‘court order' for the issuance of sub- government 13. The does have some internal poenas type." of this Id. at 682. The court guidelines calling prior approval subpoe- distinguished practice the New York from the e.g., Department nas in certain contexts. See practice subpoenas federal where are issued Justice, Jury Federal Grand Practice 63 the clerk of the court. Id. (discussing Department's requirement that sub- poenas attorneys and members of me- news sense, "grand jury subpoena” 11. In this the term approved by appropriate Department dia be misleading, implies can be a bit inasmuch as it a official). of Justice compel testimony decision to or the delivery important of documents. It is to real- case, disposition view of our of this we do grand jury subpoena gets ize that a its name heightened not address Doe’sclaim that a fourth testimony, from the intended use of the or docu- applies amendment standard when an individu- evidence, mentary not from the source of its protectable privacy al claims a interest I, issuance. See 486 F.2d at 90. Schofield government records maintained or some party. other third 12. Rule 17 of the Federal Rules of Criminal provides Procedure that: guilty 15. Even if a is witness of criminal con- subpoena A shall be issued the clerk tempt failing comply subpoena, to with a under the seal of the court. It shall state the however, may contempt a court not use its title, civil any, name of the court and the if of the power compel compliance until it has proceeding, made person and shall command each subpoena its own determination that the meets give to whom it is directed to attend and appropriate testimony reasonableness standard. place specified at the See time and I, 88-89; subpoena, therein. The 486 see also clerk shall issue a Brown v. Schofield

81 subpoena may history sug- make a Act of 1974 to challenge a ing to Congress the district court. quash gest before what intended motion to modify subpoe term.”). a quash original passed must The court bill that be unreasonable or “compliance would provided agency na that “each federal Senate 17(c). See Fed.R.Crim.P. oppressive.” by this Act which covered maintains an Calandra, 414 v. generally United States system or file shall information make rea- 613, 4, 338, 4, n. 38 n. 94 S.Ct. efforts to serve advance notice on sonable L.Ed.2d 561 any personal individual before informa- tion on such individual is made available grand jury subpoena an “order b. Is a any person compulsory legal pro- under a court’’? 16373, Cong., Sess., cess.” H.R. 93d 2d alone, 201(g), reprinted “order Standing Act’s in Senate Committee susceptible language Operations, is to con- on United States of a court” Government hand, the one flicting Oper- constructions.16 On Senate & Committee on Government signed by ations, the clerk of subpoena Representatives, is Legisla- since House of court, is issued the name History Act tive S. court, contempt pow- (Public 93-579) it the and carries with Law No. qualifies er, argue that it plausible it is History] (emphasis Legislative [hereinafter the other of a court.” On added). explained as an “order Report The Senate does hand, “order of a court” the term permit is an purpose of section to “[t]he than of more carry with it a connotation advance notice so that he individual Thus, to court involvement. pro legal suppress appropriate steps take forma jury subpoena decide whether personal S.Rep. his data.” statutory provision we comes within (1974), Cong., No. 93d 2d Sess. guidance. other sources for must look to reprinted Legislative History at 66. history provi- legislative While bill, hand, the other made no The House well, ambiguous as two turns out to be sion did contain an provision for notice but point to that we will address other factors “pur- providing for disclosure amendment intend Congress did not the conclusion competent the order of a court of suant to subpoe- to allow had in- jurisdiction.” Congressman Butler grand jury or otherwise—unless purpose amendment “for the troduced this na— court has approved actually its issuance. perfectly clear that a lawful making it competent jurisdiction a court of order of agree with history. We Legislative i. of disclo- appropriate condition would be Eighth determination Circuit’s 36,959 (1974), Cong.Rec. re- sure.” history of the “order of legislative at 936. As History printed Legislative helpful particularly provision is court” compromise that last-minute part of the Congress perceived determining whether the House the differences between settled or the terms “court between a difference versions, agreed to the Senate and Senate “legal process.” Bruce der” approach, did not which (8th adopt the House States, Cir. United did use require notice to the individual but legislative 1980) (“There nothing in the 49-50, Concerning Credit States, Jury Subpoena Duces Tecum United Inc., (N.D.Ga.1980) (1959) (it Bureau, is the court L.Ed.2d 609 answer); Wong order’’); (not Application Credit must order a witness In re "court States, (D.C.Cir. Ying v. F.2d 776 Quash United Corporation Gim York to Newof Information testify 1956) (judge (D.Md. to must order the witness F.Supp. Jury Subpoena, Grand 526 1253 contempt). finding order”) her in 1981) (not before Jury “court with In re Grand (is (D.N.J.1980) Proceedings, F.Supp. a resolving difficulty issue look 16. The in this order”); Subpoena Tecum to re Duces "court In alone, language ing is evidenced TRW, Inc., Jury Testify Directed to Grand Before differing opinions have reached on that courts (is (E.D.Mich.1978) a “court qualifies grand jury subpoena as a whether order”). Reporting Fair Credit under the "court order” 1681(b). Compare In re Grand § Act. 15 U.S.C. language place “court order” in of the (1943) 87 L.Ed. 656 (applying same “process” terminology. scope language used statutes which although strictly analogous, not were sim- Unfortunately, legislative this history is ilar). subject conflicting interpretations. It is quite possible that the Senate would not The “order a court” language agreed have provision to the no-notice Privacy Act is virtually provi- identical to a compromise permitted had disclosure sion the Fair Credit

pursuant Reporting Act process alone. Alternatively, (“FCRA”), 15 it is U.S.C. 1681. The conceivable that FCRA is Congress § considered quite similar synonymous, Privacy terms and that Act the Senate inasmuch simply was as it abandoning too limits provi- the notice disclosure of certain infor- sion, while allowing pursuant mation which an expects individual to be process. history The Privacy Act, kept 1681b(l) confidential. Section therefore, does not answer the provides FCRA for disclosure re- “[i]n Congress whether understood the terms as sponse to the order of a having juris- having meanings.17 different diction to issue such order.” ii. Provisions in similar statutes. Our legislative The history of the FCRA re plain review of language legislative and veals Congress consciously decided to history of Act has been incon use the “order” language and “pro not clusive as to Congress intended to cess.” Gren, See In re 825, 826- allow disclosure of records (9th Cir.1980). original Senate bill grand jury subpoena. Under these circum provided that consumer reporting “[a] stances, it appropriate to consider wheth agency may furnish a report consumer un er the use of the same language in another der following circumstances and no oth statute aids scope determination its (1) response ers: In to the order of a court in this presume one. We that when enact having jurisdiction to issue such order ...” ing legislation, new Congress is aware of 823, S. Cong., 91st (1970). 2d Sess. similar language statutes, in old and choos The bill which ultimately became House repeat es to language based on an bill, on hand, prohibited other disclo understanding of relevant law interpreting sure of “pursuant material unless legal it. See Stribling States, v. United process.” H.R. 91st Cong., 2d (8th F.2d Sess. Cir.1969) (“Where 1352-53 legislative interpretation history particular demon statute at Congress strates that doubt, very issue is in express sensitive to language and legislative issue of government’s how broad the construction of another statute access to strictly pari credit information employing materia but should be. See Gren, similar language In re and F.2d applying Against at 827. similar persons, things, cognate background, relationships the House eventually ceded to control force analogy.”); the Senate and passed accord language Senate Yuen v. Service, Internal Revenue 649 verbatim. 15 1681(b). light U.S.C. (2d 167 n. 4 Cir.), denied, cert. this history, agree with the Ninth Cir 1053, 102 454 U.S. S.Ct. 70 L.Ed.2d 588 cuit that very “this issue was before the (1981); see also Overstreet v. North Shore Congress” and that Congress clearly want Corp., 125, 131-32, ed to exclude process of a court that was session, titled, Because was late in the the Senate "Analysis of House and Compro- Senate and House did not resolve their differences in a mise Amendments to the Federal Act.” Rather, Conference Committee. 40,880 Senators Cong. Ervin (Dec. 18, Rec. 1974), reprinted Percy, Congressemen Moorhead Legislative History at generally 858. See II J. Erlenborn met and compro- hammered out a O'Reilly, Federal Disclosure 20-9- Information mise version of the bill. While there is no 20-14 (discussing enactment of Report, Act). Conference Committee the staffs of the That memorandum is silent on the choice legislators four prepare did language memorandum en- at issue here.

g3 adopt a seemingly and to Gren, language, a court order. not See In re 633 that weight. afforded must be provision, stricter 827.18 F.2d at to allow intended Congress If light In ambiguity of the surrounding the in the issued name any language “order” as used in the likely more have court, it would then aof Act, usage in important. its the is FCRA used in terminology process the chosen Incorporation of identical similar lan- the Ninth with Thus, agree we 3301. guage from an act a related purpose with attrib- other no matter “[w]hat that Circuit evidences some to use it in intention a this Congress, may ascribe utes similar vein.19 Stribling, See 419 F.2d at not Congress did that hardly hold can court Moreover, 1352-53. policy the considera- grand law, that know, it enacted when prompted Congress tions that to limit dis- equivalent the not subpoenas were jury FCRA, in present closure the were also in Gren, F.2d at re In order.” court a Finally, the Act. the history of the 827. FCRA demonstrates that when it was iii. purpose The and the structure of passed, Congress understood that the language specific the Act. When the of a “process” terms and “order” were differ- provision, together taken its history Although certainly dispositive, ent. not the construction, pro and other aids of not do meaning attributed to the term Con- unequivocal vide answers to FCRA, gress in probative is of the intent, congressional may a court look to meaning that should be afforded the like purpose the overall structure and of the here. term possible statute to determine of the which readings goal seems to in with the fit best The notion Congress consciously that Congress that had in mind. See Commis employ chose to language “order” Engle, Internal v. sioner Revenue the FCRA is the fact that buttressed Congress option had another to choose “ (1984) (court’s ‘duty is to find that The inter from. Veterans’ in Records Statute its fairly original pre-1976 pretation can most be said provides form which for disclo- statute, sense required by process sure “when be imbedded of a United produced being States court to with its scheme most harmonious suit or proceeding Congress pending.” general purposes therein that 38 U.S.C. with 3301(b)(2). Congress’ ”) v. Lion Oil (quoting decision not to use NLRB manifested’ language at The court's involved. jury subpoe- tion was grand question of whether The F.2d, that the defend- the effect exception divided has the FCRA come into nas subpoena jury grand is argument supra Virtu- note 16. ant’s many district courts. specious’ should be limit- court order ‘is have held that not a ally of those that all FCRA, case. have done history Kostoff context an "order” under ed to the is considering legislative Gren, set F.2d at 829 n. 5. so without Gren. out in analogy interpretation of the basis 19. On rele- examined the court in Gren also lan- be influenced statute a doubtful opinion in United Ninth of the Circuit’s vance specifi- are not guage of other statutes Cir.1978), (9th Kostoff, 585 F.2d v. States only related, per- apply to similar cally but which the “court appellate to address other referring sons, By relationships. things, or court, Kostoff, without language. order” is able to legislation, a court similar other assertion, stated of its explaining the context legislation purpose course learn jury argument “[d]efendant’s by transposing the clear intent general, and specious.” Id. 'court order’ subpoena is not a statutes sim- expressed several in one of held that: The Court Gren at 380. meaning, the court of doubtful ilar statute States government’s on United reliance probable give effect to is able Cir.1978), (9th al., Kostoff, et legislature, to establish but also intent of analysis placed. contains That case is ill system of law. uniform harmonious more It deals with here. issues involved of statutes the function to look to It is useful cred charges and bank fraud criminal mail language to determine there having similar profiles in Kos- involved The credit it fraud. possibility of reference. is a acts subject criminal were the toff charged; Statutory Singer, Construction N. Sutherland 2A files, i.e., "doctoring” of credit 1984). 53.03, (Sands ed. 4th at 554 protec- privacy or no issue of consumer thus Co., 282, 297, 330, 338, 1 to discourage the unnecessary exchange of (Frankfurter, J., L.Ed.2d 331 concur- persons information to other agencies or to ring part dissenting part)). in in In may who not be as sensitive to the collect- case, reading a fair of the statute and ing agency’s using reasons for and inter- purpose its leads to the definite conclusion preting the Cong.Rec. 40,- material.” 120 Congress did not intend to allow dis- (introduced by Congressman Moor- pursuant typical grand jury closure head), reprinted Legislative History in at subpoena. 859-60. purposes One of the stated of the Priva- To read the “order of the court” lan- cy “prevent Act was to illegal, the kind of guage permitting as pursuant disclosure unwise, overbroad, investigation and record subpoena, would gaping create a hole abiding produc- surveillance of law citizens the overall scheme of the Act. years ed in recent from actions of some jury subpoenas Grand are not necessarily investigators, overzealous curiosity and the subject any upper-level evaluation what- government administrators, of some or the supra at 79-81. They soever. See are use, wrongful cases, disclosure and some typically issued working the AUSA personal agencies.” files held Federal ease, prior approval without by the S.Rep. Cong., No. 93d 2d Sess. head of agency, grand jury, (1974),reprinted Legislative History judge. Congress’ explicit goals One of 154. At Congress the same time recog- enacting the Privacy preclude Act was to nized the need to allow for disclosure when investigators overzealous running important public “there is an policy need roughshod over an privacy, individual’s exemption.” for such P.L. No. grand jury subpoena simply does not 2(b)(5) (1974), reprinted Legislative § safeguard against danger. As one History at 501. explained district court in the context of specific exemptions that Congress the FCRA: jury “Since a primarily is established reflect a delicate balance be- prosecutor a tool of the pro and is issued limiting records, tween disclosure of court, forma clerk of the district unduly hampering government opera- guarantee there is that a is key tions. “The operating concept of the upon based a careful consideration of the Privacy Act is that rights individual must competing prosecutor's interests of the recognized and balanced in agency uses need for the information and the [individu- of information.” II O’Reilly, J. Federal privacy.” Application In re al’s] Disclosure 20-22 For Information Corp., Credit example, although permits the Act disclo- of Information (S.D.N.Y.1978). 971-72 governmental sure to another agency for civil or criminal law activity, enforcement it Moreover, reading suggested by conditions disclosure on the written re- government severely would diminish the quest of the agency, thereby head of the utility of agency provision the head of the assuring high some level evaluation of the (b)(7). provision subsection That deals need for the information. See U.S.C. exclusively with disclosure to law enforce- 522a(b)(7). Similarly, agency while an agencies, yet ment allows disclosure pursuant disclose information to a pursuant request by to a written the head use,” “routine requires the Act that such agency. light provision, of this routine “compatible pur- uses be with the unlikely Congress is intended to allow poses for is collect- [the information] prosecutors federal require- to avoid this ed,” 552a(a)(7), 5 U.S.C. and that simply by using subpoena. ment public opportunity be afforded an to com- Indeed, govern- ment on whether a routine weakness use should be 552a(e)(4)(D). suggested reading highlighted by established. 5 ment’s U.S.C. describing require memorandum the fact that it compromise would us to allow provision bill states that this “intended any subpoena— prosecutor, agency “to another it issues from ... for a civil or crimi- defendant, litigant. In all activity or civil nal law enforcement activity criminal cases, law, is by the issued is authorized of these the head the court, and carries with it agency the name of the instrumentality has made a contempt ignore those who request agency the threat written to the which main- 17; Fed.R.Civ.P. 45. it. See Fed.R.Crim.P. tains specifying particular the record in- Congress that Yet it is inconceivable portion desired and the law enforcement pursuant to ev- tended to allow disclosure activity sought.” for which the record is 5 private litigant’s whims.20 ery 552a(b)(7) added). (emphasis U.S.C. § Senate Committee that inserted the amend- argument, government During oral incorporating Privacy ment Act into construing argument advanced a novel recognized that this was one of the § language including as “order of the court” Privacy areas where the Act was stricter: provided only subpoenas for records be grand jury grand jury. [Sjection 3301(b)(3) When the is to the ... ... authorizes involved, argued, it Federal Rule of Crimi- the disclosure of information ‘when re- 6(e)’s provision secrecy is an nal Procedure quired by any department agen- or other confidentiality. We re- ample protection of cy of the United States Government.’ argument it has no basis ject this because (b)(7) Privacy Subsection of the Act also statute, legislative history. or the authorizes disclosure of information to principled way to assert that There is no agency, imposes another Federal but the court” includes the term “order of requirements three additional on the dis- grand jury subpoenas but excludes other closure—it must for a ‘civil or crimi- subpoenas that are also issued in types of activity,’ activity nal law enforcement of a court. the name law,’ must be ‘authorized and the agency seeking head of the disclosure conclude, therefore, subpoe- We request specifying must make a written qual- or otherwise—do nas— particular portion of the information competent ify as of a court of “order[s] activity enforcement desired and law 552a(b)(ll), jurisdiction” under 5 U.S.C. § instance, sought. for which it is they specifically approved by a unless are clearly imposes Privacy Act more Co., court. Stiles v. Atlantic Gas release of information restrictions on the (N.D.Ga.1978). F.Supp. We now turn Thus, than section 3301 of title 38.... of whether the disclosure provisions the stricter of the ... permitted this case was under some other apply, could re- Act would and the VA provision Act. to another Federal lease information agency only when the three additional Required By Agency Another requirements ... were satisfied. The district court also held that the Cong., 2d S.Rep. No. 94th Sess. un disclosure in this case was authorized Cong. Code & provision reprinted Records in U.S. der the the Veterans’ (1976). must, permitting “[wjhen re Ad.News As disclosure Statute agency government concedes that there was no quired by any department or other agen- from the head of the Government.” 38 written of the United States Thus, 3301(b)(3). it is again, cy the court this case. obvious Here U.S.C. § wrong provision. disclosure was not sanctioned 3301 as applied the The relevant (j).21 provision permits amended subsection Act reau, Inc., (N.D.Ga.1980) say prosecutor, a defend 20. This is not to ant, purpose litigant, (application court order furthers civil cannot submit an for or a FCRA). application parte order. ex behind camera (9th Gren, re 828 n. 3 See In Cir.1980) Eighth v. Unit (discussing procedure 21. Circuit’s decision in Word which under (8th Cir.1979), States, obtained); Jury is not to F.2d 1127 In re Grand ed court orders can be There, contrary. Concerning the court held that while Subpoena Credit Bu Duces Tecum 3. Routine Uses cuting such violation or charged with en- forcing or implementing statute, The Privacy permits Act disclosure of rule, regulation or order issued use,” information “for a routine 5 U.S.C. thereto. 552a(b)(3),which it defines as “the use of such purpose 44,743 record Fed.Reg. compat- reject We ible purpose government’s with the for which it was assertion that this routine collected.” 552a(a)(7). permits U.S.C. use The Act the disclosure here. It is clear requires that agency publish in the language provision Register, Federal at least annually, a notice this routine use deals with referral of of the existence and character of “each records to law enforcement officials routine use the records contained in the when the records themselves indicate a vio- system, including categories the of users case, lation of law. In this by contrast, purpose and the of such use.” 5 U.S.C. disclosure way was in no related to the 552a(e)(4)(D). At days least 30 prior to suspicion VA’s that the records indicated a publication use, of a routine agency violation of law. publish must “a any notice of new use or b. Routine Use 23 intended use sys- information in the Subsequent to the VA’s disclosure tem, provide and an opportunity for inter- records, of Doe’s promulgated VA two persons ested to data, submit written new routine relating uses to pur views, or arguments to agency.” suant to federal and state subpoenas. The 552a(e)(ll). U.S.C. § routine dealing use with subpoenas federal provides that:

a. Routine Use 22 Any system information this may be government urges that the dis disclosed grand a jury, to federal a Fed- closure here inwas conformance with Vet eral Court or party in litigation or a erans’ Administration Routine Use 22. Federal Agency party or to an adminis- provision That states that: trative proceeding being conducted by a In the system event that a of records Federal Agency, in order for the VA to by maintained agency carry out respond comply to and with the issuance its functions indicates a po- violation or of a subpoena. federal tential law, civil, violation Fed.Reg. 51,841 (1982) (proposed criminal or No- regulatory nature, ... 17, 1982).22 vember relevant records in system of records referred, use, as a routine The promulgation of this new routine use appropriate agency charged ... with the is not relevant our assessment what responsibility of investigating prose- or the statute meant as of November government hospital 552a(b)(7) by violated dis- competent of a court jurisdiction." How- closing requested by telephone, records ever, viola- due to recent court decisions which have Privacy tions of the give Act do not rise to an contrary, held to the Department of Medi- evidentiary exclusionary rule. Id. at 1129. Surgery cine and establishing is new two rou- uses, tine numbers 23 and which concern 22. The provided Veterans’ Administrator the fol- the release pursuant of information to a sub- lowing explanation accompanying proposal: poena Federal, from a municipal State or Questions regarding have arisen the author- grand Federal, jury; municipal or State ity under permit Act of 1974 to litigation; party or a agen- a Federal respond subpoenas disclosures ... cy party or to an proceeding administrative Federal, municipal party State or court of a being agency; conducted Federal or to a litigation respond or to to suboenas issued municipal State or agency Federal, administrative municipal State administrative functioning quasi-judicial in a capacity agencies or a functioning quasi-judicial in a capac- party proceeding to a ity. being past, In the conducted interpreted the VA has "sub- poenas" agency, such respond in order for the meaning be within the VA to subsec- (b)(ll) tion (5 comply and subpoe- Act the issuance of the U.S.C. 552a(b)(ll)) which na. authorizes disclosures of patient pursuant medical records to an "order

«7 government the VA disclosed Doe’s records.23 liable for “tort day however, claims, is, very in the same manner use rele- and to the same The new routine private extent as a individual under injunctive like to Doe’s vant circumstances.” 28 U.S.C. 2674. against further disclo- declaratory relief of his records sure Doe asserts that the disclosure of his subpoena. If the district court deter- jury gives confidential medical records rise to a appropri- equitable relief is mines that such Columbia, tort action in the District ate,24 validity to consider the it will have place place. where disclosure took routine use. We scope of the new First, he claims that the disclosure violated would, at that fully expect parties the District of Columbia Mental In- Health given opportunity a full to brief point, be formation Act of D.C. Code 6- §§ argue this issue. provides 2001—6-2062. That Act collector, facility, mental health data “[n]o Summary Act Issues agent employee of a mental health government’s reviewing all of the After professional, facility mental health or data Privacy Act’s exceptions to the proffered permit collector shall disclose or the disclo- disclosure of prohibition on nonconsenual sure of mental health information to records, conclude that none of person, including employer.” medical we an D.C. Code 6-2002(a). exceptions governed Negligent this ease. violators of the § Thus, court’s deter- equal reverse the district Act are liable in an amount to dam- we ages, plus was no violation of the the cost of the action and rea- mination that there 6-2061(a). attorneys’ fees. Records Statute. sonable Veterans’ § Willful or intentional are violators liable Federal Tort Claims Act B. The manner, except liability the same that for $1,000. damages is not to be less than Act The Federal Tort Claims 6-2061(b). § (“FTCA”) govern makes the United States damages “caused ment liable for Additionally, Doe asserts that disclosure negligent wrongful act or omission of or a tortious invasion of of the records was any employee government of the while act privacy under District of Columbia law. ing scope employ of his office or within propo cites a of cases for the Doe number ment, the Unit recog under circumstances where sition that the District of Columbia States, person, private tort, ed would be Corp. nizes this Black v. Sheraton of America, (D.C.Cir.1977); to the claimant accordance F.2d 531 liable 564 (D.C.Cir.), Dodd, place where the act or omis 410 F.2d 701 the law Pearson v. 947, 2021, denied, 1346. Unless 89 S.Ct. 23 sion occurred.” 28 U.S.C. cert. (1969), very points and government action falls under one of L.Ed.2d 465 holding phy- recent case that breach of the exceptions contained 28 U.S.C. express opinion eq argues promul- on whether such fact the VA 24. We 23. Doe gated supra routine use demonstrates that the See a new uitable relief should be afforded. previously. permitted The was not Community disclosure See also Creative Non- note 5. hand, asserts that the new Hess, 697, (D.C.Cir. VA on the other 700 Violence v. simply intended to make the routine use was 1984) (beyond satisfying itself that the constitu existing supra See note 22. Since law clearer. controversy" is requirement "case or of tional satisfied, equally plausible, we deem either alternative must examine whether the dis promulgation a new consider the of do not pute of '“is so attenuated that considerations determination of use relevant to our routine comity prudence counsel the court to and ... prior meant to the new routine what the law hand, power stay to withhold relief it has its use. v. Commerce (quoting grant”’) Chamber important that even if a routine to note It is 289, Energy, Dep’t United States applies, affects the Act. use (D.C.Cir.1980)). this determination to We leave might then be the Records Statute The Veterans’ to evaluate which is better able district court statutes, any of the two “stricter” central to a determination the factual matters provisions. to conform with its would still have currently dispute is. just how “attenuated” supra 78-79. sician-patient is an actionable tort The privilege C. D.C. Mental Health Information in the District of Columbia. Vassiliades v. Act Bros., 492 Garfinckel’s, Brooks A.2d 580 As an element of both his FTCA (D.C.1985). relief, equitable action and his court dismissed Doe’s FTCA district Doe claimed that the VA’s disclosure of his

action, holding that since the disclosure psychiatric records violated the District of by the was sanctioned Veterans’ Records Mental Health Information Columbia Act Statute, 3301, no tort cause of U.S.C. § 1978, D.C. Code 6-2001—6-2062. §§ (citing action available. J.A. at 102-03 was 6-2002(a) provides Section Act that: States, v. Flowers United professional, No mental health mental (W.D.Okla.1964), aff'd, 348 F.2d 910 collector, facility, health employ- data (10th Cir.1965), denied, cert. agent profes- ee or of a mental health L.Ed.2d 481 Alter sional, facility mental health or data col- natively, held that the court since the inva permit lector shall disclose or the disclo- reasonable,, privacy sion of it did not sure any of mental health information to give rise to cause of action under the law person, including employer. District Columbia. J.A. at 103 Act defines a “data collector” as (citing May Department Grabou Stores person (including government agency Co., (D.C.1983); 462 A.2d Jack thereof) part regularly engages who in the Columbia, son v. District A.2d practice assembling evaluating client (D.C.1980)). Finally, the court held information, mental health D.C. Code 6-§ the District of Columbia Mental 2001(4), civil, and creates both Information Act of Health 1978 did not criminal, 6-2062, liability for certain is, by create a cause of action because it its types of violations. Section 6-2075 of the terms, inapplicable own when in conflict however, provides, “[n]othing act in any (citing with federal law. J.A. at 109 chapter shall be construed to necessar- District Columbia Institute Mental of of ily require noncompliance or excuse D.C., Hygiene v. Medical Service 474 of any provision any of federal law.” 831, (D.C.1984)). A.2d The district court never determined All three of the district court’s reasons whether the VA’s disclosure of Doe’s dismissing Doe’s FTCA claim were records came within the terms of this stat- premised holding on its that the disclosure Instead, ute. it held that permissible “inasmuch as this this case was under the Vet- section can be read to be erans’ Records In inconsistent with Statute.25 view of our regulations the federal permit- conclusion that the district statutes and court erred disclosure, holding ting yield that the Veterans’ Records the local law must to Statute disclosure, permitted regulations.” the federal law and we remand the J.A. at liability issue of FTCA to it for reconsidera- 109. The law that the district court saw as was, course, conflicting tion.26 provisions 25. The court’s determination provision that the VA’s ac- additional one: the effect of the FTCA statute, tion was and that the Dis- ”[a]ny upon that forecloses claim based an act inappli- trict of Columbia Mental Health Act is employee government, or omission cable, were, course, directly based on its care, exercising due in the execution of a statute reading of the Veterans' Records Statute. Al- regulation, whether or not such statute or though government the determination that the 2680(a) regulation (em- be valid.” 28 U.S.C. § action was reasonable under District of Colum- added). seem, phasis regulations The VA on directly reading bia law was not as linked to the faces, their to authorize the disclosure of Doe’s 3301, unprepared say of presence we are that the Thus, supra records. See note 8. the district controlling or absence of statute has whether, notwithstanding court should consider effect on whether an intrusion is reasonable. no holding regulations permitting our VA statute, contrary disclosure were to the Doe’s is, indeed, way 26. We in intimate that thére FTCAclaim still fails. liability Many open questions under the FTCA. Indeed, opinion remain. our itself creates an may up that it Records Statute held not be taken is “one left the Veterans’ primarily appeals, to the court light here. In of our to be allowed disclosure cases,” Records exercised on the facts of individual determination that the Veterans’ disclosure, properly courts have been reluctant ad did not allow this Statute opposing party dress an issue where the to the district court the remand adequate opportuni has not had a fair and Mental Health Information ty dispute See Sin the material issues. case, in this prohibited Act the disclosure 120, gleton, 428 U.S. at 2877; 96 S.Ct. at what, has on any, effect its violation Proctor v. State Farm Mutual Auto. In requests for relief. Doe’s various Co., surance 308, (D.C.Cir.) 675 F.2d D. Doe’s Claims Constitutional (deciding question parties where made major part presentation issue “a of their claims, statutory In addition to his both District Court and to this court equitable asked the district court Doe denied, 839, cert. appeal”), 459 U.S. amendment, fourth relief under 86, (1982); American S.Ct. privacy constitutional under the Employees, Federation Government Court Whal Supreme recognized by the Carmen, AFL-CIO v. 815, 669 F.2d 820 n. Roe, 869, 589, 97 S.Ct. en v. 429 U.S. (D.C.Cir.1981) (deciding issue where all Because it decided L.Ed.2d parties had addressed and its resolution prohibit did not the statutes doubt). has, beyond When the issue records, court was the district of Doe’s through parties, no fault of the not been constitutional compelled to address Doe’s forum, argued appro briefed it dismissed. arguments, both of which priate disposition typically to remand the our determination that view of generally case the district court. permit did not Veterans’ Records Statute 552, 556, Helvering, Hormel v. disclosure, quite possible that all of it is 721, Dis (1941); 85 L.Ed. 1037 S.Ct. relief that Doe should be afforded can Inc., Florida, trict v. Air Columbia statutory grounds. The be fashioned on (D.C.Cir.1984); British F.2d 1084-85 availability on the of full relief basis Authority Airways Board v. Port Newof turn, however, might statutes on two is- York, (2nd Cir.1977); Doe argued neither nor sues that were briefed McMillan, 1311 n. 10 First, do statutes before this court: part, part, rev’d in (D.C.Cir.1972), aff'd requiring authorize a remedial court order 2018, 36 L.Ed.2d 912 412 U.S. 93 S.Ct. Doe, (b) (a) of the records to exclu- return 249, Reily, v. (1973); Johnston of the information from the sion (D.C.Cir.1947). (c) by jury, and no further disclosure remand, Upon the district court should Second, does Attorney or his staff? U.S. Doe’s claims can first determine whether routine use promulgation of the new they statutory grounds. If be satisfied stat- preclude prospective relief under the not, can, not, it need and should con then since, valid, if it is the VA now ute arguments. the constitutional sider records disclose veterans’ 528, 543, Lavine, Hagans v. subpoenas? (1974); 1372, 1382, L.Ed.2d 577 S.Ct. rule, course, general that a Resources v. “It is the Dep’t Human California Java, appellate 1347, 1350, court does not consider 121, 124, federal 402 U.S. 91 S.Ct. Singleton (1971); Dandridge v. passed upon Wil issue not below.” 28 L.Ed.2d 666 120, 2868, liams, 106, 471, 475-76, 1153, Wulff, v. 428 U.S. S.Ct. 90 S.Ct. 397 U.S. (1976); accord Ashwan 1156-57, (1970); L.Ed.2d 826 25 L.Ed.2d Miller, TVA, 231, 234, 288, 346-47, Youakim v. der v. 425 U.S. 297 U.S. 56 S.Ct. (1936) (Brandeis, 1399, 1401, (1976); 466, 482-83, 80 L.Ed. 688 S.Ct. If, however, J., the court de Taylor, concurring). 557 n. California requested has that the relief Doe 1040 n. 1 L.Ed.2d 1034 termines through the stat- accomplished questions what cannot While the issue of be utes, it will have to address the constitu- rejected district court Doe’s claim tional issues. point, At that district under stating that the privilege § court should consider holding whether our is an evidentiary one which give does not today that the disclosure was not rise sanc- to a cause of action. J.A. at 108. In by tioned support Veterans’ Records Statute of this conclusion the the. district court analysis affects the Logan cited district court v. District Columbia, 447 used in its first F.Supp. 1328, consideration of the (D.D.C.1978). consti- In Lo- tutional gan, issues.27 plaintiff brought a tort action

alleging that injured he was by the Admin- istrator of the District of Columbia Narcot- E. Physician-Patient Privilege ics Treatment Administration’s Doe also asked the district court to press that plaintiff was an illicit declare that the disclosure awas violation drug user. part As claim, of his tort he of the physician-patient privilege as codified alleged violation of 14-307. The court at D.C. Code 14-307. (a) Subsection rejected Logan’s claim under the statute that provides statute that: because plaintiff “the not cited cases ha[d] from jurisdiction In the Federal that have courts held that the District of the privilege or the physician-patient Columbia and District of rela- Columbia courts tionship gives rise physician to a cause surgeon action.” mental health Id. at 1335. professional as defined District Columbia Mental Health Information Act The fact that 14-307 give does not rise (D.C.Code, of 1978 sec. 6-1611 [6-2001] to an action tort28 says nothing, how- seq.) may et permitted, without ever, about injunctive or declarato- person afflicted, the consent of the or of ry relief is protect available to patient legal his representative, disclose against physician’s or mental pro- health information, nature, confidential in its fessional’s avowed intention not to abide acquired he has in attending a client the statute’s terms. We do not hold that professional capacity and that was available, such relief is or even that the necessary to enable him to act applies statute in this hold, case. We do capacity, whether the information was however, the district clearly obtained from the client or his fami- erred in dismissing the claim on the basis ly or from person persons in that it did. Given the fact that we are charge of him. remanding the bulk of Doe’s claims express 27. We no view on statutory whether our decision issue necessitates remand on these di- that the disclosure was not sanctioned verse Ironically, as well. claims allu- statute has an effect on Doe's claims under the sion to their merits occurs in the concurrence’s amendment, fourth right and under the constitutional gratuitous characterization of them as "novel” privacy. possible It that the district “dubious,” and in its citation of a case court’s determination on this issue was infected finding no constitutional to nondisclosure by its conclusion that the statute allowed disclo- private information. Id. at 92 & n. 2. and, therefore, sure that the statute could not justifiable have contributed to of expectation Doe’s 28. Much of the Logan court’s discussion in fo- privacy, statutory or that analysis the affected cused on whether District of Columbia rec- law parts other analysis. of its constitutional ognized a common-law cause of action for puzzled by areWe charge the concurrence’s breach confidentiality of physician- the of the that we expound have seen sundry "fit to on patient privilege. The court’s conclusion this on issues,” legal engaged and in "abstract discus- may longer issue no accurate view the of rights sion of novel constitutional of dubious District of Appeals’ Columbia Court recent applicability.” Op. Cone. at 92. To the con- Garfinckel’s, decision in Vassiliades v. Brooks trary: Aside from regarding our conclusions the Bros., (D.C.1985) (recognizing A.2d Act, Veterans’ Records Statute the physician-patient tort of privilege). breach of we repeatedly have and explicitly declined to decision, however, ap- Vassiliades does not express ourselves on the merits of the various pear directly Logan analysis affect the court’s rights that Doe complaint. asserted in his Our of § 14-307. mention of these on solely other claims is focused explaining why our decision on main determination, crime, subpoena investigate remand not to district court delay viability yet would be but to evaluate the of a issue as well. Since to be this this, determining scope insanity by our asserted defense. Had in- avoided deed, today, only we think that the inter- privilege been the reason behind the sub- served if this justice poena, will best be this court ests of would be troubled. The addressing aspects priv- is, however, court avoids fact that the AUSA has never yet district court has not ilege which the exploration possible asserted that of Doe’s upon. passed supra p. 89. insanity defense was the reason for subpoena. Because the alternative rea- F. Process Abuse prompted subpoe- son that him to issue the grand jury, na involved matters before the court to Finally, asked the district Doe Stanley AUSA a sealed affidavit submitted issuance of the that the AUSA’s declare court, suggested with the district pro- subpoena was an abuse of authority the court use its under Federal treated this claim The district court cess. First, 6(e)(3)(C)(i) Rule of Criminal Procedure Doe comprising two elements. as permit disclosure of the con- grand affidavit’s abused the claimed that the AUSA tents. The district court never ruled on invading process by the confidential jury Second, this motion. relationship. Doe physician-patient process abused the argued that the AUSA opportunity This court has had the subpoena explore using grand jury to view the affidavit and believes that it is insanity defense viability possible claim process. relevant Doe’s of abuse of that Doe had never asserted. Consequently, we remand to the district extent that the court considered To the ruling government’s court29 for a on the process claim to involve the the abuse of motion that the contents of affidavit be invaded a issue of whether plaintiff disclosed—at least to the and his privacy physician-pa- created zone of must, The district court counsel.30 indistinguishable privilege, it is tient course, deciding exercise its discretion in supra pp. Doe’s constitutional claims. See the contents of the whether to disclose 88-89. Whether or not the existence of a Douglas affidavit. See Oil Co. v. Petrol statutory privilege has common-law Northwest, 211, 218-23, Stops justified expecta- effect on an individual’s 1667, 1672-75, (1979); 60 L.Ed.2d 156 S.Ct. confidentiality is an privacy tions of Pittsburgh Plate Glass Co. v. United address, issue which district 395, 399-400, States, 360 U.S. necessary if it deems it to address 1237, 1240-41, (1959). supra n. constitutional issues at all. See 27. III. CONCLUSION reviewed Doe’s claims of error We have

Doe also claimed that the AUSA abused that the district court he used and have concluded process jury when judge vis-a- ing should make determination point would be ill-advised for us at this 29. It disclosure); government’s Party explore propriety either Socialist Workers’ vis the just Grubisic, (7th Cir.1980) (sug one of the two factors that actions based on it, express opinion it claims motivated or to gesting for disclosure should be party the contents of an affidavit that one grand jury’s supervised to court that submitted activities); has never seen. Investigation Jury In re Grand 1975-2 Producers, Inc., Associated Milk decide We it to the district court to leave (5th Cir.), (approving proce 1300-01 familiarity it has sufficient grand jury judge judge presid dure wherein investiga grand jury proceeding and related ing proceeding is needed where information motion, tions, pass judgment on the or wheth denied, decision), cert. are both involved in request for disclosure should be transfer er the L.Ed.2d 1135 98 S.Ct. judge supervised to the district court who red the v. Petrol Co., however, Douglas Oil The Court in Douglas grand jury proceeding. See Oil Co. impose any procedure on the Northwest, 211, 225-31, careful not to one Stops 1667, 1676-79, at S.Ct. at 1679. courts. 441 U.S. (discussing factors to be considered in determin legal say ferent framework. Suffice it to holding that the VA’s disclosure erred may fully statute. Our ex- was authorized that the District Court Doe’s files legal court on that issue doing parties’ of the district for not the re- cused reversal for the district some new issues creates search for them.1 consider, places other issues court to Privacy significance As to the light. in a different We already passed on application to the veterans disclosure Act’s therefore, have, that the most determined statute, heartily I concur in the court’s is to re- prudent for us to follow course judgment grand jury subpoena that a sim- to the dis- mand the bulk of Doe’s claims rigorous pliciter satisfy does not the more light reconsideration trict court for Congress im- requirements chose to statutory holding. our pose process by on the disclosure means of Reversed and remanded. conclusion, I the Act. reach this however, repairing without welter STARR, Judge, concurring in Circuit arising decisional law under the Fair Credit judgment. question, I Reporting Act. On that would considerably less than This case involves day. wait another Our determination eloquent eye. It also stands as meets the particular that this disclosure ran afoul testimony imperfections and fallibili- Act’s strictures does indeed litigation process. Today we hold ty warrant a remand to the District Court for legal fell into error the District Court light further of the sub- consideration recognize superseding it failed to when stantially landscape. legal altered to the veter- effects of the 1976amendment said, being say That I would no more. incorporated provisions that ans disclosure court, however, expound sees fit Yet, Privacy Act. in fairness to the recognition sundry legal despite issues its Court, District neither Mr. Doe’s counsel very plaintiff may that on remand the well un- nor counsel for the Government had See, at all. e.g., be entitled to no relief important earthed this alteration to the Maj.Op. at 86-87 & n. 88 n. 26. governing statutory during sojourn law setting singularly I particular, find this court; trial to the con- of this case inappropriate for an abstract discussion of parties litigated the case trary, the below rights appli- novel constitutional of dubious recognizing applicability without ever cability.2 appeal, the Act. Even on parties struggle mightily over continued to that, statutory unbe-

issues of construction them, the case.

known to were irrelevant to very of a

It was arrival

helpful brief in this court that amicus dawned,

light suddenly parties altogether dif-

found themselves within however, DeSanti, grounds); may, J.P. v. 1. The District Court have made constitutional cf. (6th Cir.1981) (holding have been "the the case more difficult than it need general right by refusing encompass to rule on the Government’s Constitution does not information"). highly private relevant materials contained to nondisclosure of But (noting Maj. Op. in abstract Maj. Op. sealed affidavit be disclosed. See at n. see heightened possibility 91. fourth amend- that “some may apply ment standard” under certain ill-de- (recognizing Op. at 90 Maj. circumstances); well-estab- at 89-90 & n. 27 id. fined (discussing possible applicability of the fourth principle not consider lished that a court should pri- already arguments amendment and "constitutional unless it has constitutional vacy"). that case cannot be decided on non- determined notes defendants’ case on its merits.5 sealed, Attorney from enjoin the U.S. remand, complaint On Doe amended his information, disclosing the to en- further money damages include action for from seek- Attorney’s Office join against the United States Government un- again, enjoin and to the VA ing the records (“FTCA”), der the Federal Tort Claims Act in the future. disclosing Doe’s files 28 U.S.C. 2671-2680.6 In the §§ February 26, the district court On discovery, Stanley course AUSA stated motion to dismiss granted the defendants’ issuing that he had reasons for two as moot. The court found the case subpoena. He declined to the first disclose

Case Details

Case Name: John Doe v. Joseph Digenova

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 17, 1985

Citation: 779 F.2d 74

Docket Number: 84-5571

Court Abbreviation: D.C. Cir.