Lead Opinion
STRAUB, Circuit Judge, filed opinion concurring in part and dissenting in part.
Plaintiff-appellant Dorrit Matson appeals from a judgment entered in the United States District Court for the Southern District of New York (Crotty, /.), dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), her civil rights action, brought under 42 U.S.C. § 1983, against defendants-appellees, the Board of Education of the City School District of New York (the “BOE”), the City of New York (the “City”), and Richard J. Condon (collectively, the “defendants”). In the action, Matson alleged that the BOE had publicly disclosed that she suffers from fibromyalgia, in violation of her constitutional right to privacy. The disclosure occurred when, in connection with an investigation of her purported use of sick leave, the BOE made available to the public on the website of the Special Commissioner of Investigation for the New York City School District (“SCI”) a report that included Matson’s medical condition. On appeal, Matson claims: (1) the District Court erred in concluding that she failed to establish that the defendants’ disclosure of her medical condition implicated a protected privacy interest; (2) the District Court incorrectly found the BOE to be an improper party; and (3) the District Judge should have recused himself, pursuant to 28 U.S.C. § 455.
For the reasons that follow, we affirm. BACKGROUND
I. Matson as Teacher and Conductor
Matson was employed as a music teacher at Bayard Rustin Educational Complex (“Bayard Rustin”), a Manhattan public school. She also founded and serves as director and conductor of the New York Scandia Symphony (the “Scandia Symphony”), an orchestra based at Trinity Church in lower Manhattan. Beginning in at least 2003 and continuing through February 2005, Matson began taking sick leave from her duties as a music teacher. Her multiple requests for sick days did not go unnoticed by Bayard Rustin’s administration.
In November 2004, after Matson had requested three days of sick leave, Bayard Rustin’s principal, John Angelet, reminded Matson by telephone that she was scheduled to direct a school orchestra concert that week. Matson nonetheless insisted that she needed the sick leave and that she would have to miss the school orchestra concert because she was ill. She subsequently took the sick leave that she had requested. After Matson returned to school, Angelet confronted her. He stated that he knew Matson had conducted the
In January 2005, Matson was away from school on authorized medical leave for “continued therapy for recurrent bacteria infection.” During her absence, Angelet filed a complaint with the DOE’s legal department, accusing her of “theft of services.” An assistant principal at Bayard Rustin also took action, informing Condon, the SCI, that he suspected that Matson was improperly claiming sick leave in order to work as a conductor of a symphony orchestra at Trinity Church. Condon subsequently began an investigation.
In February 2005, Matson submitted an Application for Leave Without Pay for Restoration of Health (the “Application”), which was marked as confidential. Her Application was granted for a period from February 5, 2005, through June 30, 2005, and “was approved by the principal based on the physician’s certification section completed by an unnamed doctor with an illegible signature.” According to the physician’s certification, Matson suffered from fibromyalgia, which involves “neck, shoulders, and upper and lower back pain.”
After Matson submitted her Application, SCI investigators visited the office of the physician whose address was listed on the certification and spoke with the office manager for Dr. Tsai Chung Chao, who had completed the physician’s certification for Matson’s request for leave. Chao verified that the signature on the physician’s certification was his. Chao later spoke to one of Condon’s investigators by telephone and explained that Matson suffered from fibromyalgia, a condition brought on by physical or emotional stress. He added that Matson had complained that her professional relationship with school administrators was strained and caused her stress. Chao informed the investigator that Mat-son needed time off from her DOE position but explained that she could be able to conduct an orchestra — even though she was suffering from fibromyalgia — because she would be away from the environment which caused the stress that resulted in the onset of her condition.
Following his investigation, Condon issued a letter report on August 16, 2005, (the “Report”) to then New York City School District Chancellor Joel I. Klein confirming that Matson had repeatedly taken paid sick leave on days when she conducted the New York Scandia Symphony at Trinity Church. The Report verified Angelet’s claim that Matson conducted the Scandia Symphony on November 18, 2004, while away from school on sick leave and detailed a number of other occasions over a period of two years from 2003 to 2005 where Matson claimed paid sick leave on days when she either rehearsed or conducted the Scandia Symphony. It also noted that according to the Operations Manager for Trinity Concerts, Matson
The specific references in the Report to fibromyalgia included the following:
Dr. Chao explained that Matson suffered from chronic fatigue syndrome, known as fibromyalsia [sic]. He added that the teacher’s condition was brought on by physical or emotional stress and that Matson had complained that her professional relationship with school administrators was strained and caused her stress. The physician informed the investigator that Matson needed time off from her DOE position and that the pain caused by fibromyalsia [sic] could take months to subside. According to Dr. Chao, Matson could be able to conduct an orchestra with fibromyalsia [sic] because she would be away from the environment which caused her the stress that resulted in the onset of the condition.
Based on Condon’s investigation, the Report concluded that Matson abused the DOE’s sick leave policy. Accordingly, it recommended that Matson’s employment be terminated and that she be directed to repay any salary to which she was not entitled. Disciplinary charges later were lodged against Matson.
The SCI publicly issued its report, in accordance with its specific authority to issue reports of investigations where it would be in the best interest of the school district. See The Special Comm’r of Investigation for the New York City Sch. Dist., Exec. Order No. 11 (June 28, 1990), available at http://www.nycsci.org/pubhc/ Executive% 20Order.pdf (giving the Deputy Commissioner authority to “issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district”). The Report was made available to the public on the SCI’s internet website in August 2005, and the investigation and the Report were covered by the local press.
On August 22, 2005, while disciplinary charges were pending, Matson was involved in a car accident, suffering a cervical sprain and injuries to her back and shoulders. Apparently, she continued on unpaid medical leave after her accident, following a January 10, 2006 determination by the DOE that she was “not fit” to return to work. In March 2006, Matson applied for disability retirement. With her application, she submitted a medical report of Dr. Daniel J. Powsner, who concluded that
Matson is suffering from psychiatric illness, post-traumatic stress disorder, which is likely to remain chronic.... Recovery from this illness is not to be expected in the foreseeable future. This illness has rendered her unable to pursue her occupation as a teacher. I do not believe that any type of accommodations that could be made at her place of employment would improve her ability to work. She is totally and permanently disabled from her occupation as a teacher.
Powsner’s ultimate diagnosis was “Posh-Traumatic Stress Disorder.”
The record before us does not reveal how Matson’s employment with the school district ultimately came to an end. Apparently a disciplinary hearing had been scheduled but was terminated as indicated by an October 18, 2006 intra-departmental memorandum, which stated: “Please be
II. Proceedings in the District Court
On August 14, 2008, Matson commenced this action by filing a complaint against the defendants in the United States District Court for the Southern District of New York. In her complaint, she asserted a claim under 42 U.S.C. § 1983 and alleged that her constitutional privacy rights had been violated. Matson contended that her medical condition of fibromyalgia improperly was disclosed to the public through the Report, published on the SCI’s website, and later reported in New York City area newspapers. However, she neither challenged the SCI’s finding that she abused sick leave nor its recommendation that she be terminated. Nor did she suggest that her medical condition was a disability that would need to be accommodated. Matson sought $2 million for damages plus attorney’s fees.
On January 16, 2008, the defendants filed a motion to dismiss Matson’s complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Matson submitted two affidavits in opposition to the defendants’ motion to dismiss. In her affidavit, she alleged that the disclosure of her medical information
has affected my ability to seek other employment, as potential employers, when “googling” my name learn that I suffer from various ailments.... It has led to a belief that I am “unreliable” or “undependable”, that I would be absent, without adequate notice, thereby effecting [sic] the ability of an orchestra to perform up to expectations.
Matson v. Bd. of Educ. of the City School District of the City of N.Y., No. 08 Civ. 7232(PAC),
In a Memorandum Order dated August 7, 2009, the District Court granted the defendants’ motion to dismiss the complaint. Id. at *4. The court also rejected the affidavits submitted by Matson and Ackers, finding that each contained new factual allegations that were not set forth in the complaint and, thus, were not properly before the court for its consideration. It stated that in any event the “factual allegations [were] wholly conclusory and speculative.” Id. at *2 n. 4. Moreover, the court found that
to the extent the Report might lead potential future employers to view Mat-son as unreliable or undependable, this would not be due to Matson’s fibromyalgia — instead, it would be because the Report concludes that Matson shirked her work responsibilities at her full-time job by claiming sick leave in order to do work she preferred.
Id.
The complaint’s reference to the Condon Report enabled the court to consider the
The court ultimately concluded that neither fibromyalgia nor a bacterial infection is a condition that gives rise to a constitutionally-protected privacy right. Unlike the serious medical conditions that courts have recognized as giving rise to a privacy right, the District Court found that “[b]oth of Matson’s disclosed conditions are a far cry from the level of seriousness associated with HTV/AIDS [and] transsexualism .... ” Id. at *3. With regard to any purported exposure to discrimination resulting from the publication of Matson’s medical condition, the District Court found that “Matson cannot point to any history of discrimination against individuals with fibromyalgia that would lead the [c]ourt to conclude that she is likely to face discrimination, hostility, or intolerance because of her condition.” Id. In addition, the court found that Matson had not alleged that the public disclosure of her medical conditions exposed her to “discrimination, hostility, or intolerance.”
On appeal, Matson argues that the District Court erred in dismissing her complaint for failing to establish that the defendants’ disclosure of her medical condition implicated a constitutionally-protected privacy interest. Specifically, Matson claims that her situation is different from that of individuals who have diminished levels of privacy, such as prisoners and those whose medical information was necessarily disclosed during a judicial hearing or as part of a public record. Instead, she argues that she has set forth a viable cause of action because private medical information was disseminated, without her permission, and that that information has exposed her to unfair discrimination.
Matson also argues that the District Court improperly dismissed the BOE as a defendant in this action when it concluded that the “BOE ceased to be the agency responsible for New York City’s public schools before the incidents giving rise to the Complaint occurred.” Matson,
ANALYSIS
I. Standard of Review
“We review de novo a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiffs favor.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A,
“For the purpose of such review, this Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Connecticut v. Am. Elec. Rawer Co.,
II. The Constitutional Right to Privacy for Medical Conditions
Matson’s privacy claim presents the question: does the Constitution protect Matson’s right to maintain the confidentiality of her fibromyalgia? As a general matter, “there exists in the United States Constitution a right to privacy protecting ‘the individual interest in avoiding disclosure of personal matters.’ ” Doe,
Our case law makes clear, however, that “the interest in the privacy of medical information will vary with the condition.” Powell,
In Doe, we explained that, as with any “serious medical condition,” “an individual’s choice to inform others that she has contracted what is at this point invariably and sadly a fatal, incurable disease [ (HIV/ AIDS) ] is one that she should normally be allowed to make for herself.”
In Powell, we applied our rationale in Doe and determined that “[l]ike HIV status as described in Doe, transsexualism is [an] unusual condition that is likely to provoke both an intense desire to preserve one’s medical confidentiality, as well as hostility and intolerance from others.” Powell,
III. Fibromyalgia and Privacy
Matson contends that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy. We do not doubt the medical seriousness of the condition. Indeed, we have held within the context of reviewing the denial of a social security disability application that “a growing number of courts, including our own, have recognized that fibromyalgia is a disabling impairment,” although “‘there are no objective tests which can conclusively confirm the disease.’ ” Green-Younger v. Barnhart,
A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right. In Doe, we explained that HIV is “sadly a fatal, incurable disease.”
Other courts in our Circuit have declined to extend the right of privacy to medical conditions other than those discussed in the cases noted above. See, e.g., Watson v. Wright,
Matson argues that our decision in O’Connor v. Pierson,
Citing Doe and Powell, we held in O’Connor that the plaintiff “had a protected privacy right in the medical records sought by the Board.” Id. We reasoned that “[m]edieal information in general, and information about a person’s psychiatric health and substance-abuse history in particular, is information of the most intimate kind.” Id. Also, this combination of medical conditions is one that is likely to bring about public opprobrium. See, e.g., Wisconsin v. Constantineau,
In addition, our determination that an individual need not disclose all of his medical records under the circumstances described in O’Connor does not suggest that a third party’s disclosure of one particular medical condition in every case violates the right of privacy. Indeed, the “privacy of certain medical conditions” has been “constitutionalized” only “[w]ithin narrow parameters.” Powell,
These narrow parameters have been defined, in large part, through the views of society. Historically, courts have considered on a case-by-case basis whether a disease was “contagious ... or attributed in any way to socially repugnant conduct” and whether it could be said that “society as a whole views [the disease] as directly associated with any disease which might conceivably be characterized as loathsome.” See Golub v. Enquirer/Star Group, Inc.,
In considering claims that a constitutional right of privacy attaches to various serious medical conditions, we also proceed on a case-by-case basis. In doing so, we examine all the relevant factors that cut both in favor of and against extending privacy
In addition to a determination that a medical condition is “serious,” we have also focused our constitutional analysis on whether revealing one’s condition would expose a person “not to understanding or compassion but to discrimination and intolerance.” See Doe,
Here, we discern no evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia. Matson cites to one case from the District of Massachusetts, which found that “many people diagnosed with fibromyalgia are unable to maintain gainful employment.” LaBrecque v. Sodexho USA, Inc.,
Matson has also failed to allege with specificity facts upon which to base a conclusion that she personally suffered discrimination or intolerance. The allegations of her rejected affidavit that “potential employers, when ‘googling’ [her] name learn that [she] suffer[s] from various ailments,” that she “has suffered a loss of income,” and that the “acts of the Defendants have caused [her] to suffer monetary and psychological damages” are absent from the complaint.
Matson also claims that the defendants disclosed her private medical information for the purpose of “embarrassing” and “humiliating]” her.
In an attempt to supplement the record, Matson submitted an affidavit (rejected by the District Court) of a music profession colleague stating that “public dissemination of the Plaintiffs medical condition has a severe impact upon the Plaintiff and the perception of the music world regarding the Plaintiff and possible employment,” and “[a] performing orchestra would shy away from hiring the Plaintiff because the performing orchestra fearing the perceived unreliability of the Plaintiff would loathe to put the Plaintiff in the position of the ‘face’ of said performing orchestra.” However,
CONCLUSION
Because we determine that Matson’s medical condition does not enjoy a constitutionally-protected right to privacy, we need not reach her other claim, that the District Court erred in finding that the BOE was not a proper party. In accordance with the foregoing, the judgment is affirmed.
Notes
. The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue.... People with fibromyalgia have 'tender points’ on the body. Tender points are specific places on the neck, shoulders, back, hips, arms, and legs. These points hurt when pressure is put on them.” National Institute of Arthritis and Musculoskeletal and Skin Diseases, Fast Facts About Fibromyalgia (last updated July 2009), available at http://www.niams.nih.gov/health_info/ fibromyaliga_ff.asp. Chronic Fatigue Syndrome, or CFS, and fibromyalgia are often discussed interchangeably although they are distinct medical conditions.
. The Report remains on the SCI's website and is available at: http://www.nycsci.org/ reports/08-05% 20Matson% 20Dorrit% 20Ltr.pdf. References to fibromyalgia and to a recurrent bacterial infection, however, are now redacted from the Report.
. The District Court noted that while Matson alleged that her private medical information was published in New York City area newspapers, her complaint did not attach the newspaper articles or contain quotations from them. However, the court discussed an article about the Report that was published in The New York Times and concluded that the article “focused on Matson's abuse of the sick leave policy, not on the nature of her medical condition." Matson,
. Matson notes that the New York State Appellate Division has held that "the City and the Board remain separate legal entities.... The legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts.” Perez ex rel. Torres v. City of N.Y.,
. When a plaintiff does not specifically move for recusal, a judge is obliged to take such action only if circumstances indicate that his "impartiality might reasonably be questioned.” 28 U.S.C. § 455; see United States v. Bayless,
. We understand that, since our decision in Doe, the prognosis for a person infected with HIV or living with AIDS has improved, given a range of new drug treatments. Nevertheless, that symptoms of HIV and AIDS may now be managed by a variety of treatments does not call into question the seriousness of these medical conditions. The U.S. National Library of Medicine has explained that "[all-most all people infected with HIV, if not treated, will develop AIDS,” and that "there is no cure for AIDS. It is always fatal without treatment.” U.S. Nat’l Library of Med., AIDS: MedlinePlus Medical Encyclopedia (last updated May 25, 2010), http://www.nlm. nih.gov/medlineplus/ency/article/000594.htm (emphasis supplied). Moreover, we adhere to our observation in Doe that a person infected with HIV may face am "unfortunately unfeeling attitude among many in this society” and "expose[] herself not to understanding or compassion but to discrimination and intolerance.” Doe,
. The dissent proposes that the "relevant inquiry” in determining whether a constitutional right to privacy exists as to a certain medical condition is "simply whether the information concerns a serious medical condition that is highly personal.” Dissent at 71 (internal citations omitted). We think that more germane to the inquiry is whether disclosure of one's medical condition would bring about public opprobrium and would expose a person to discrimination and intolerance, not simply whether the condition is “highly personal.”
. The dissent highlights the "potentially embarrassing" nature of the "disclosed information” in concluding that fibromyalgia is the type of condition that gives rise to a constitutionally-protected privacy right. Dissent, at 75. We believe that the "potential” for embarrassment is too subjective a standard to support such a conclusion. Indeed, embarrassment is a decidedly personal emotion. While Matson may have found disclosure of her condition to be a source of embarrassment, others in the same position instead may find the Report’s disclosure of an abuse of the DOE's sick leave policy to be the source of embarrassment.
Concurrence Opinion
dissenting in part, concurring in part:
In finding that Matson has failed to state a viable claim of infringement of her privacy rights, the majority today gives the government substantial reign to publicly disseminate a person’s intimate medical information without any justification. While it is of course not the case that every bit of medical information is encompassed within the right to privacy, in my view, the majority has forged an unduly narrow understanding of what is protected. Because I believe that Matson’s allegations concerning defendants’ publication of her diagnosis of chronic fatigue syndrome (“CFS”) and/or fibromyalgia
I. Right to Privacy
Grounded in substantive due process, it is well established that the Constitution protects a person’s privacy, including “the individual interest in avoiding disclosure of personal matters.” Whalen v. Roe,
[wjithout establishing a minimum standard that individuals must meet who seek to invoke the right to privacy in medical information, Doe indicates that the constitutional right to privacy in one’s health protects information about “serious medical conditions,” especially those that are likely to provoke “not ... understanding or compassion but ... discrimination and intolerance.”
Fleming v. State Univ. of New York,
Later decisions do not raise the bar. In Powell we recognized a right to confidentiality in transsexualism, a condition which we believed to be, akin to HIV, “the unusual condition that is likely to provoke both an intense desire to preserve one’s medical confidentiality, as well as hostility and intolerance from others.”
These cases make clear that a medical condition need not be as serious as HIV or transsexualism in order to be included in the scope of privacy protection.
In my view, Matson has adequately alleged the unwarranted disclosure of just such information. As the majority acknowledges, fibromyalgia is a serious medical condition, which “a growing number of courts, including our own, have recognized ... [a]s a disabling impairment.” Green-Younger v. Barnhart,
More germane to the inquiry of what type of information is entitled to privacy protection is the consideration, highlighted by Doe and Powell, of whether a medical condition has the potential to provoke discrimination, hostility, or intolerance. We have never strictly required this factor in order to find a protected interest, but it is nevertheless a useful consideration in discerning whether the information in question is sufficiently personal. In this regard, the majority faults Matson for failing to provide “evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia” and/or CFS. Ante at 67. That requires too much of a complaint. Indeed, neither the Doe nor Powell complaints alleged the widespread societal discrimination and intolerance invoked in their respective opinions. (Am. Compl., Devilla v. Schriver, No. 92-cv-206 (W.D.N.Y. May 28, 1999); Compl., Doe v. City of New York, No. 92-cv-8044 (S.D.N.Y. Nov. 3, 1992).)
The notice pleading standard of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the defendant fair notice of what the ... claim is and the ground upon which it rests.” Bell Atl. Corp. v. Twombly,
Matson’s complaint alleges that on or about August 17, 2005, defendants publicly disclosed her private medical information via the Report that they published on vari
CFS is properly viewed as plausibly stigmatizing in at least two respects. Although the etiology of CFS is not well understood, various studies have linked it to one or more infectious diseases.
The majority’s purported reasons for the contrary conclusion do not withstand scrutiny. Rebuffing Matson’s citation to LaBrecque v. Sodexho USA, Inc.,
The statement in Rankin v. New York Pub. Library, No. 98 Civ. 4821,
The majority’s reference to the fibromyalgia drug Lyrica (noted first by the District Court) is also puzzling. Neither the majority nor the District Court explain how the fact of televised advertisements for a drug treatment bears on the issue of whether a condition is highly personal or carries social stigma.
In short, the lack of any express allegation of past societal discrimination against those with CFS and/or fibromyalgia does not doom Matson’s complaint.
The majority also treats as significant the lack of any proper allegation that Matson herself was discriminated against following disclosure. However, while whether the plaintiff actually suffered discrimination or was otherwise harmed by such disclosure is relevant to the issue of damages should liability be found, it is not the proper focus in determining the scope of the privacy right. Instead, in using discrimination as a proxy for ascertaining whether information is sufficiently personal to be protected, the proper consideration is the ex ante likelihood of stigmatization from the unwanted disclosure. Cf. Powell,
In light of the above, I believe that information concerning a person’s diagnosis of CFS and/or fibromyalgia falls comfortably within the ambit of plausible constitutional privacy protection as established by Whalen, Doe, and their progeny. It is entirely plausible that the disclosed information is of the type that is highly personal and potentially embarrassing, such that one would and normally should be able to choose whether to inform others that she suffers from these serious conditions.
The existence of a privacy right is of course not alone sufficient to constitute a constitutional violation. Even where there is a protectable interest in the confidentiality of information, that right may be waived. Powell,
Matson has also alleged unwarranted disclosure. Defendants have not argued that, if Matson’s medical information were protected, they would have been justified in releasing it. That the SCI has the authority to — and apparently regularly does — publicly issue investigative reports does not in itself supply an adequate justification for publicly disseminating Mat-son’s medical information. There is no indication why the public dissemination of
Where a plaintiff challenges executive action, however, only “conduct that ‘shocks the conscience[ ]’ will subject the government to liability for a substantive due process violation.”
Both the majority and the District Court pay excessive attention to the suggestion that Matson abused her sick-leave time during her employment with the BOE. Such actions, even if true, are wholly irrelevant to whether Matson’s medical diagnoses are the type of information entitled to privacy protection and serve only to unnecessarily paint an unflattering picture of Matson. This is especially so given that the disciplinary charges against Matson have been withdrawn. What was not — • and cannot be — -withdrawn, however, is the public dissemination of Matson’s intimate medical information.
For the foregoing reasons, I believe the District Court’s decision should be reversed. A Whalen/Doe privacy claim in the medical context, while not unbounded, is not so narrowly limited to the extreme privacy violations at issue in our previous cases and is broad enough to cover Mat-son’s privacy claim. Matson has alleged an unauthorized and unwarranted disclosure of potentially protected information sufficient to withstand a motion to dismiss. Accordingly, I respectfully dissent.
II. BOE As Defendant
In addition to dismissing Matson’s complaint for failure to state a claim, the District Court concluded that even if the privacy claim were viable, the BOE would not be a proper defendant. The majority’s disposition obviated its need to address Matson’s argument that the dismissal of the BOE was erroneous; because I would reinstate Matson’s privacy claim, I briefly address this issue.
In separately dismissing the BOE, the District Court first noted that in 2002 the BOE was stripped of its status as a semi-autonomous agency and renamed the New York City Department of Education (“DOE”). Matson v. Bd. of Educ., No. 08 Civ 7232,
First, while the District Court is largely correct that, following the 2002 amendments to the Education Law, the BOE is now frequently referred to as the DOE, e.g., D.D. ex rel. V.D. v. New York City Bd. of Educ.,
Matson has sued the BOE (as one of three defendants along with the City and the SCI) and nothing about the BOE’s creation of an additional broader entity would appear to require suits against the DOE instead of the BOE.
Notably, defendants do not now and did not below suggest otherwise, as one would certainly expect the BOE or the City to have done if there were a wholesale prohibition on suits against the BOE.
For these reasons, there is no additional barrier to Matson’s suit against the BOE at this juncture and I would reverse the decision of the District Court in this regard as well.
III. Sua Sponte Recusal
Finally, though not raised below, Matson now claims that the District Judge erred in failing to sua sponte recuse himself from this matter. As there is no basis to find that the Judge’s “impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), I concur in the majority’s conclusion that recusal was not required. I offer but two additional observations in direct response to Matson’s claims that the Judge’s previous employment with the City of New York and his niece’s current employment with the DOE present disqualifying conflicts.
A judge’s prior governmental service, even with the same entity appearing before the judge as a party, does not automatically require recusal. Rather, prior governmental service disqualifies a judge from presiding over a matter only if the judge directly participated in the matter in some capacity or expressed an opinion concerning the merits of the particular case. 28 U.S.C. § 455(b)(3); accord Code of Judicial Conduct for United States Judges Canon 3(C)(1)(e), available at http://www.
Nor was the District Judge required to recuse himself on account of his niece’s employment with the DOE. Matson contends that his niece is a “high level executive” of the BOE or the DOE. (Matson Br. 54.) Were that true, Matson’s claim might have some bite. A judge shall disqualify himself if a “person within the third degree of relationship to” him— which includes one’s niece — “[i]s a party to the proceeding, or an offer, director, or trustee of a party.” 28 U.S.C. § 455(b)(5)(i); accord CJC Canon 3(C)(1)(d)®. But the document Matson cites in support of her assertion suggests no more than that the District Judge’s niece is the head of a single subsidiary office within the DOE — the Office of Multiple Pathways to Graduation — wholly unconnected to Matson, her employment, or the issues presented in this case. The niece’s capacity as such does not present any problems.
CONCLUSION
In sum, I believe that Matson has adequately stated a claim of a privacy violation and, accordingly, would reverse the District Court’s grant of defendants’ motion to dismiss and reinstate the claim with respect to all three defendants. Because the majority concludes otherwise, I respectfully dissent. I concur only in the rejection of Matson’s claim that the District Judge should have sua sponte recused himself.
. As an initial matter, contrary to the Report’s disclosure that Matson suffers from "chronic fatigue syndrome, known as fibromyalsia [sic],” as the majority notes, see ante at 59 n. 1, the two conditions are in fact related but distinct. See Chronic Fatigue Syndrome: Alternative Medicine, Mayo Clinic, http://www. mayoclinic.com/health/chronic-fatiguesyndrome/DS003 95/DSECTION=alternative-medicine (last visited Dec. 22, 2010) (describing fibromyalgia as "a disease that is considered similar to CFS”). Nevertheless, though the Report states that Matson has CFS, and though Matson complains about the public dissemination of her illnesses of “fibromyalgia and/or chronic fatigue syndrome” (e.g., Matson Br. 37, 38), the majority discusses only fibromyalgia, noting that the conditions are often discussed interchangeably. Because both the parties and the majority largely treat the two conditions as one, and because they are similar, I shall for the most part likewise not dwell on any differences between the conditions for purposes of this analysis.
. In fact, though the majority emphasizes the narrow confines of the right to privacy, we do not appear to have ever rejected a privacy claim concerning medical information on the grounds that the information is not encompassed within the right to confidentiality. Indeed, even many of the lower court cases defendants cite in support of their argument that Matson’s medical information is not entitled to protection find not that the information is not protected, but that disclosure of the information was justified. See infra at 75 - 76 for discussion of when protected information may be disclosed without infringing on the right to privacy.
. And though Powell arose following a jury trial, there is no indication that any evidence of societal discrimination was even offered at trial. That said, both the Doe and Powell plaintiffs did allege actual discrimination against themselves following disclosure. Powell,
. Some studies link CFS to a virus from the same family as HIV. Denise Grady, Vims is Found in Many with Chronic Fatigue Syndrome, N.Y. Times, Oct. 9, 2002, at A14. These viruses "insert themselves into their hosts' genetic material and stay for life.” Id. While other studies challenge this correlation, at this point the American Red Cross will not accept blood donations from those with CFS, and the U.S. Food and Drug Administration is considering a similar ban. Simeon Bennett, Mouse Vims Link to Chronic Fatigue Syndrome is Challenged in Four Studies, Bloom-berg, Dec. 21, 2010, http://www.bloomberg. com/news/prin1/2010-12-21/mouse-virus-linkto-chronic-fatigue-syndrome-is-challenged-in-four-studies.html (last visited Dec. 22, 2010).
. Genital herpes — which would appear to meet the majority’s definition of a condition entitled to privacy protection, see ante at 67-68 (suggesting that information about sexually transmitted diseases would carry sufficient opprobrium to be protected) — also has a drug therapy, Valtrex, commonly advertised on television. See, e.g., CBS News, 2V Drug Ads Too Emotional, Study Shows, Jan. 29, 2007, http ://www. cbsnews. com/stories/2007/01/29/ health/webmd/main2411011.shtml (last visited Dec. 22, 2010) (describing television advertisement for Valtrex). Moreover, although the majority acknowledges the existence of a variety of drugs to manage HIV, it does not go on to consider that drug makers frequently advertise these drugs too. See, e.g., Ron Leuty, FDA: Gilead Ad For Truvada ‘Misleading,’ S.F. Bus. Times, Apr. 9, 2010; Rebecca Ruiz, Ten Misleading Drug Ads, Forbes.com, Feb. 2, 2010, http://www.forbes.com/2010/02/02/ drug-advertising-lipitor-lifestyle-health-phar maceuticals-safety.html (last visited Dec. 22, 2010) (mentioning Abbott Laboratories’ advertisement for the HIV drug Kaletra);
. These rules are significantly loosened in the prison context. Prison officials impinge on an inmate’s right to privacy "only to the extent that their actions are [not] reasonably related to legitimate penological interests.” Powell,
. Indeed, the BOE has repeatedly been sued in its own name for alleged wrongs committed after 2002 without discussion. E.g., Weintraub v. Bd. of Educ.,
. Although in their brief below, defendants repeatedly referenced the "BOE," on appeal they state that, following the District Court’s lead, they will refer to the BOE as the DOE. (Defs.’ Br. 3 n. 2.) Still, however, they do not argue that the DOE is not a proper party for the broad reason that the DOE cannot be sued in its own name. (In fact, on appeal, defendants do not in any way defend the District Court’s separate dismissal of the BOE/DOE.)
In any event, its name as the New York City Department of Education notwithstanding, the DOE does not appear to be a city department within the contemplation of the City Charter. As we have previously observed, "departments of the City of New York typically, perhaps uniformly, have been created by the City Charter, which does not create a New York City Department of Education.” Xi-mines,