Passino Vs. Social Security Administration

MOTION to Dismiss for Failure to State a Claim

N.D.N.Y.July 18, 2016

1 RICHARD S. HARTUNIAN United States Attorney Fergus Kaiser Special Assistant U.S. Attorney c/o Social Security Administration Office of General Counsel 26 Federal Plaza, Room 3904 New York, NY 10278-0004 (212) 264-2049 fergus.kaiser@ssa.gov Bar Roll No. 518633 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x KRISTERFER G. PASSINO, Plaintiff, Civil Action No. 6:16-cv-0430 (GTS/ATB) v. SOCIAL SECURITY ADMINISTRATION, Defendants. ------------------------------------------------------------x NOTICE OF MOTION PLEASE TAKE NOTICE, that on Thursday September 1, 2016, at 10:00AM, or as soon thereafter as counsel may be heard, Fergus Kaiser, Special Assistant United States Attorney for the Northern District of New York, as attorney for the Commissioner of Social Security, will apply to this Court pursuant to Local Civil Rule 7.1 and Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the instant action for mootness, failure to state a claim, and lack of subject matter jurisdiction. In support of this motion, the Court is respectfully referred to the Case 6:16-cv-00430-GTS-ATB Document 11 Filed 07/18/16 Page 1 of 4 2 attached Memorandum of Law, and requests that this motion be decided on the papers submitted, without oral argument. RICHARD S. HARTUNIAN United States Attorney /s/ Fergus Kaiser Fergus Kaiser Special Assistant United States Attorney Case 6:16-cv-00430-GTS-ATB Document 11 Filed 07/18/16 Page 2 of 4 3 RICHARD S. HARTUNIAN United States Attorney Fergus Kaiser Special Assistant U.S. Attorney c/o Social Security Administration Office of General Counsel 26 Federal Plaza, Room 3904 New York, NY 10278-0004 (212) 264-2049 fergus.kaiser@ssa.gov Bar Roll No. 518633 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x KRISTERFER G. PASSINO, Plaintiff, Civil Action No. 6:16-cv-0430 (GTS/ATB) v. SOCIAL SECURITY ADMINISTRATION, Defendants. ------------------------------------------------------------x CERTIFICATE OF SERVICE I hereby affirm that on July 18, 2016, I electronically filed the foregoing Notice of Motion to Dismiss and Attached Memorandum, Declaration, and Exhibits with the Clerk of the District Court using the CM/ECF system which sent notification of such filing. I further certify that on July 18, 2016, I have mailed a copy of the foregoing Notice of Motion to Dismiss and Attached Memorandum, Declaration, and Exhibits by the United States Postal Service, to the following participant: Kristerfer G. Passino (pro se Plaintiff) 03-A-4904 Marcy Correctional Facility P.O. Box 3600 Case 6:16-cv-00430-GTS-ATB Document 11 Filed 07/18/16 Page 3 of 4 4 Marcy, NY 13403 /s/ Fergus Kaiser Fergus Kaiser Special Assistant United States Attorney Case 6:16-cv-00430-GTS-ATB Document 11 Filed 07/18/16 Page 4 of 4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x KRISTERFER G. PASSINO, Plaintiff, Civil Action No. 6:16-cv-0430 (GTS/ATB) v. SOCIAL SECURITY ADMINISTRATION, Defendants. ------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF THE SOCIAL SECURITY ADMINISTRATION’S MOTION TO DISMISS Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 1 of 12 i TABLE OF CONTENTS Introduction ......................................................................................................................................1 Preliminary Statement ......................................................................................................................1 Argument .........................................................................................................................................3 I. The Privacy Act ...................................................................................................................3 II. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim and pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction .................................5 A. The Standard for a Motion to Dismiss Pursuant to Rule 12(b)(6) of the Rules ...................5 B. The Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1) of the Rules ...................6 C. Plaintiff fails to state a claim pursuant to Section 552a(g) for failure to grant him access to his records and the Court lacks subject matter jurisdiction .............................................6 i. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(6) because SSA never refused to comply with his request for records ....................................................................6 ii. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(1) because it is now moot ...7 iii. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(1) because he failed to exhaust his administrative remedies ....................................................................................9 Conclusion .....................................................................................................................................10 Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 2 of 12 1 INTRODUCTION Plaintiff, Kristerfer G. Passino (Plaintiff), seeks an order directing the Defendant, the Social Security Administration (SSA or agency), to produce records pertaining to his disability determination(s). For the reasons stated herein, this Court should dismiss all of Plaintiff’s claims against SSA with prejudice, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim and/or pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction, as specified herein. PRELIMINARY STATEMENT On March 1, 2016, Plaintiff wrote the agency and requested access to “[a]ny and all records pertaining to the Disability Determination of [Plaintiff] including, but not limited to, medical records, psychiatric and/or psychological reports, notes, progress notes, test scores, neurological test reports, books, notes and any and all writings whatsoever now in your possession and under your control.” Declaration of Daniel Breheny, SSA District Manager, Area 3, Gloversville, NY Field Office (Breheny Dec.) ¶ 2; Exhibit (Ex.) A. On March 24, 2016, Plaintiff sent SSA a follow up letter inquiring about the status of his records access request. Ex. B. In response, Daniel Breheny, the agency’s district manager of the Gloversville, New York field office, sent Plaintiff a letter acknowledging the agency’s receipt of the request and explaining that SSA would conduct an extensive search of its records for the requested documents. Breheny Dec. ¶ 3; Ex. C. On April 15, 2016, prior to Mr. Breheny completing his expanded search for Plaintiff’s records, Plaintiff filed the instant suit in the Northern District of New York alleging that SSA refused to provide him with a copy of the requested records. See Breheny Dec. ¶ 4. Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 3 of 12 2 On or around May 2, 2016, Mr. Breheny completed his search of SSA’s records and determined that the paper claims folder related to Plaintiff’s applications for benefits was destroyed in accordance with the policies set forth by the U.S. National Archives and Records Management Agency. NI-47-05-1. 1 Breheny Dec. ¶ 9. Mr. Breheny located some electronic records - a Medical Continuing Disability Review and a Disability Determination and Transmittal - responsive to Plaintiff’s specific request. 2 Breheny Dec. ¶ 10; Ex. D. On July 5, 2016, SSA sent Plaintiff a letter informing him that his paper claims folder had been destroyed. Ex. E. The letter also indicated that the agency located two documents responsive to his request, namely, a Medical Continuing Disability Review and Disability Determination and Transmittal, which were enclosed. Ex. E. In his complaint, Plaintiff asserts that the agency’s actions violated the Privacy Act. 3 However, any denial of right-of-access claim pursuant to Sections 552a(d) and 552a(g) of the Privacy Act should be dismissed pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction because Plaintiff has not alleged that he exhausted his administrative remedies and his complaint is moot. Additionally, Plaintiff’s allegations do not support the conclusion that SSA improperly 1 A majority of records related to applications for disability benefits under Titles II and XVI of the Social Security Act are destroyed or deleted seven years after adjudication. See http://www.archives.gov/records-mgmt/rcs/schedules/independent-agencies/rg-0047/n1-047-05- 001_sf115.pdf. 2 A requester must reasonably describe the records sought. 5 U.S.C. § 552(a)(3)(A); 20 C.F.R. § 401.40(b). 3 In his Complaint, Plaintiff primarily alleges a violation of the Privacy Act but also cites provisions of the Freedom of Information Act (FOIA). However, as Plaintiff was seeking production of documents pertaining only to himself, the Privacy Act governs as it allows an "individual" to seek access to his own "record," where the record is maintained by the agency within a "system of records" -- i.e., is retrieved by that individual requester's name or personal identifier. 5 U.S.C. § 552a(d)(1); see 20 C.F.R. § 401.70. Furthermore, Plaintiff did not make a proper request under SSA’s FOIA regulations. See 20 C.F.R. §§ 402.130-.140. Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 4 of 12 3 withheld his records from him, providing a basis for dismissal of his access claim pursuant to Rule 12(b)(6) for failure to state a claim. Plaintiff’s claim should be dismissed in its entirety. ARGUMENT I. The Privacy Act In adopting the Privacy Act, Congress found that “’in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary . . . to regulate the collection, maintenance, use, and dissemination of information by such agencies.’” Doe v. Chao, 540 U.S. 614, 618 (2004) (citing Privacy Act of 1974, § 2(a)(5), 88 Stat. 1896). Accordingly, “[t]he Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements.” Doe, 540 U.S. at 618. The Privacy Act defines the term “record” as: [A]ny item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. 5 U.S.C. § 552a(a)(4). The Privacy Act defines “system of records” as “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” § 552a(a)(5). Section (d)(1) of the Privacy Act provides: (d) Access to Records.— Each agency that maintains a system of records shall— Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 5 of 12 4 (1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him . . . 5 U.S.C. § 552a(d)(1). The Privacy Act requires agencies to promulgate rules to “establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him,” and to establish appeal procedures for an adverse agency determination on a request for records. 5 U.S.C. §§ 552a(f)(3)-(4). In accordance with these provisions, the agency has established rules instructing individuals how to request their records and how to appeal any denial of their request. See 20 C.F.R. §§ 401.40, 401.70. The Privacy Act “recognizes a civil action for agency misconduct fitting within any of four categories . . . 5 U.S.C. §§ 552a(g)(1)(A)-(D), and then makes separate provision for the redress of each.” Doe v. Chao, 540 U.S. at 618. The section that creates a cause of action against a federal agency that fails to comply with (d)(1) – the right-of-access provision – is (g)(1)(B): Whenever any agency refuses to comply with an individual request under subsection (d)(1) of this section . . . the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection. 5 U.S.C. § 552a(g)(1)(B). This provision establishes “a right of access against any agency refusing to allow an individual to inspect a record kept on him.” Doe v. Chao, 540 U.S. at 618. The remedies available to a plaintiff who brings a right-of-access claim are found in section (g)(3)(A) and (B): (A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him . . . [and] Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 6 of 12 5 (B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed. 5 U.S.C. § 552a(g)(3)(A) and (B). II. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim and pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. A. The Standard for a Motion to Dismiss Pursuant to Rule 12(b)(6) of the Rules A “plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level’” in order to withstand a motion to dismiss. Armstrong Pump, Inc. v. Hartman, 745 F. Supp. 2d 227, 231 (W.D.N.Y. 2010) (citing ATSI Commc'ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007))). “[A] ‘complaint must contain sufficient factual matter, [ ], to “state a claim to relief that is plausible on its face.”’” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 570))). This requires “‘enough facts to “nudge [plaintiff's] claims across the line from conceivable to plausible.”’” Id. at 231-32 (citations omitted). “[W]here a plaintiff ‘ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.’” Purnell v. Grieg, 810 F. Supp. 2d 569, 570 (W.D.N.Y. 2011) (citing Twombly, 550 U.S. at 570). “This plausibility standard governs claims brought even by pro se litigants.” Id. at 570-71 (citations and quotations omitted). Although a document filed pro se is to be liberally construed and a pro se complaint must be held to less stringent standards than formal pleadings drafted by lawyers, “all pleadings, pro se or otherwise, must contain enough factual allegations to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. (citing Boykin v. Keycorp, 521 F.3d 202, 214 (2d Cir. 2007) (internal quotations omitted)). “Although all facts are accepted as Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 7 of 12 6 true, the district court is ‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Armstrong, 745 F. Supp. 2d at 231-32 (citations and quotations omitted). B. The Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1) of the Rules “On a motion to dismiss for lack of subject matter jurisdiction, the party asserting jurisdiction bears the burden of alleging ‘a proper basis for jurisdiction in his pleadings and must support those allegations with “competent proof” if a party opposing jurisdiction properly challenges those allegations.’” Fisher v. F.B.I., 94 F. Supp. 2d 213, 215 (D. Conn. 2000) (citation omitted). “Affidavits or other evidence outside the pleadings may be used by either party to challenge or support subject matter jurisdiction.” Id. (citation omitted). “As a general rule, if a Rule 12(b)(1) motion challenges subject matter jurisdiction facially—i.e., based on the sufficiency of the pleadings—the allegations in the pleadings are taken as true and construed in the most favorable light for the complainant.” Id. (citation omitted). C. Plaintiff fails to state a claim pursuant to Section 552a(g) for failure to grant him access to his records and the Court lacks subject matter jurisdiction Plaintiff alleges that SSA refused to provide him access to his records and asserts a claim premised on Section 552a(d) of the Privacy Act. Plaintiff’s claim should be dismissed for failure to state a claim and lack of subject matter jurisdiction. i. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(6) because SSA never refused to comply with his request for records. The Privacy Act provides a right of action only when an agency refuses to comply with an individual request under subsection (d)(1). 5 U.S.C. § 552a(g)(1)(B). However, the agency did not refuse Plaintiff access to his records and had, in fact, provided an interim response and Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 8 of 12 7 was searching for his records at the time Plaintiff filed suit. 4 Additionally, the agency has now provided Plaintiff with a copy of all records Plaintiff sought that are in the agency’s possession. Therefore, no right of action pursuant to the Privacy Act exists. ii. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(1) because it is now moot. Further, the remedy afforded by the Privacy Act in a case for failure to provide access under section 552a(d)(1) is that the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. 5 U.S.C. 552a(g)(3)(A). As noted above, SSA provided Plaintiff with the two documents responsive to his request, namely, a Medical Continuing Disability Review and Disability Determination and Transmittal on July 5, 2016. Ex. E. The fact that SSA appropriately destroyed the other records according to the applicable record retention schedules does not save Plaintiff’s claim. See Vaughn v. Danzig, 18 Fed. Appx. 122, 125 (4 th Cir. 2001) (“That destruction [according to record retention policy] did not violate federal law, as agencies are not required to retain records on the possibility that a FOIA or Privacy Act request may be submitted,”) Moreover, Plaintiff may not claim monetary damages. The Privacy Act does not confer a cause of action for money damages in a records access request case. 5 U.S.C. §§ 552a(g)(1)(B), (g)(3)(A); Quinn v. Dep’t of Health and Human Servs., 838 F. Supp. 70, 76 (W.D.N.Y. 1993) (citing Thurston v. United States, 810 F.2d 438, 447 (4 th Cir.1987)); see Haddon v. Freeh, 31 F. Supp. 2d 16, 22 (D.D.C. 1998), Benoist v. United States, No. 87-1028, slip op. at 3 (8th Cir. Nov. 4, 1987); Brown v. DOJ, No. 02-2662, slip op. at 27 (D. Ala. June 21, 2005); Haddon v. Freeh, 31 F. Supp. 2d 16, 22 (D.D.C. 1998); Vennes v. IRS, No. 5-88-36, slip op. at 6-7 (D. Minn. Oct. 4 While the FOIA allows requesters to bring an action to court prior to an agency responding, if the agency fails to meet the statutory time requirements, (see 5 U.S.C. 552(a)(6)(C)(i)), no such provision appears in the Privacy Act. Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 9 of 12 8 14, 1988) (magistrate's recommendation), adopted (D. Minn. Feb. 14, 1989), aff'd, No. 89- 5136MN (8th Cir. Oct. 13, 1989); Bentson v. Comm'r, No. 83-048-GLO-WDB, slip op. at 2 (D. Ariz. Sept. 14, 1984). The agency has provided Plaintiff with access to the records he sought that still exist. With no withholding of records to enjoin and no damages to award, there is no remedy for the Court to fashion in this case, which renders his claim moot. Polewsky v. Social Sec. Admin., No. 95-6125, 1996 WL 110179, at *2 (2d Cir. Mar. 12, 1996); Boyd v. Chertoff, 540 F. Supp. 2d 210, 216 (D.D.C. 2008); Sussman v. U.S. Dept. of Justice, No. 03 Civ. 3618(DRH)(ETB), 2006 WL 2850608, at *6 (E.D.N.Y. Sept. 30, 2006). See Cornucopia Institute v. USDA, 560 F.3d 673, 675 (7 th Cir. 2009); see also Heide v. LaHood, 406 Fed. Appx. 83, *1 (8th Cir. 2010); Urban v. U.S., 72 F.3d 94, 95 (8th Cir. 1995). Accordingly, this Court should enter judgment dismissing Plaintiff’s claim pursuant to Rule 12(b)(1). Article III, Section 2 of the U.S. Constitution limits a district court’s subject matter jurisdiction to matters that present a case or controversy. Spencer v. Kemna, 523 U.S. 1, 7 (1998). “Under Article III of the U.S. Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action” and the action should be dismissed pursuant to Rule 12(b)(1). See Doyle v. Midland Credit Management, Inc., 722 F.3d 78, 80 (2d Cir. 2013). If some circumstance deprives a plaintiff of his stake in the outcome of the litigation, at whatever point in the ligation, the case must be dismissed as moot. See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013). Here, the Court should dismiss this claim because Plaintiff’s denial of right-to-access claim under section (d)(1) of the Privacy Act is moot. Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 10 of 12 9 iii. Plaintiff’s claim should be dismissed pursuant to Rule 12(b)(1) because he failed to exhaust his administrative remedies. Finally, even if the agency was still withholding Plaintiff’s records, Plaintiff has not alleged that he exhausted his administrative remedies. For a plaintiff to obtain a civil remedy under the Privacy Act for a violation of his access rights, he must first exhaust administrative remedies. Fisher, 94 F. Supp. 2d at 216 (D. Conn. 2000) (citation omitted); Mulhern, 525 F.Supp.2d at 183, 187. SSA’s procedures for appealing a denial of access to records are set forth in 20 C.F.R. § 401.70. If, under the Privacy Act, the agency denies an individual’s request for access to his own record, SSA will advise them in writing of the reason for that denial, the name and title or position of the person responsible for the decision, and advise the individual of a right to appeal that decision. The individual must then appeal the denial decision to the Executive Director for the Office of Public Disclosure, 6401 Security Boulevard, Baltimore, MD 21235- 6401, within 30 days after of receiving the agency’s notice. 20 C.F.R. § 401.70. Here, Plaintiff does not contend that he made any such appeal to the agency. Plaintiff’s claim is, therefore, subject to dismissal pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. See Lane v. Dep’t of Justice, 1:02-CV-06555-ENVVVP, 2006 WL 1455459, at *5 (E.D.N.Y. May 22, 2006) (“where a plaintiff fails to exhaust his or her administrative remedies regarding…a Privacy Act request…, the district court lacks subject matter jurisdiction over any such claims”) (citations omitted); Mulhern, 525 F.Supp.2d at 187. Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 11 of 12 10 CONCLUSION For the foregoing reasons, SSA respectfully requests that the Court enter an order dismissing Plaintiff’s claim. SSA also respectfully requests such other relief as the Court may deem just and proper. Dated: July 18, 2016 New York, New York, Respectfully submitted, RICHARD S. HARTUNIAN United States Attorney By: /s/ Fergus Kaiser Fergus Kaiser Special Assistant U.S. Attorney c/o Social Security Administration Office of General Counsel 26 Federal Plaza, Room 3904 New York, NY 10278-0004 (212) 264-2049 fergus.kaiser@ssa.gov Bar Roll No. 51863 Of Counsel: Stephen P. Conte Regional Chief Counsel Case 6:16-cv-00430-GTS-ATB Document 11-1 Filed 07/18/16 Page 12 of 12 Case 6:16-cv-00430-GTS-ATB Document 11-2 Filed 07/18/16 Page 1 of 2 Case 6:16-cv-00430-GTS-ATB Document 11-2 Filed 07/18/16 Page 2 of 2 Exhibit A Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 1 of 10 Exhibit A Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 2 of 10 Exhibit A Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 3 of 10 Exhibit B Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 4 of 10 Exhibit C Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 5 of 10 Exhibit D Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 6 of 10 Exhibit D Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 7 of 10 Exhibit D Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 8 of 10 U.S. Department of Justice United States Attorney Northern District of New York Civil Division c/o Social Security Administration tel: (212) 264-2049 Office of the General Counsel fax: (212) 264-6372 26 Federal Plaza, Room 3904 email: fergus.kaiser@ssa.gov New York, New York 10278 June 30, 2016 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED Kristerfer Passino Dear Mr. Passino: I represent the Social Security Administration (SSA or agency) in Passino v. Comm’r Social Security, 6:16-CV-0430 in the District Court for the Northern District of New York. This letter is in response to your request, dated March 1, 2016, for “[a]ny and all records pertaining to the Disability Determination of Kristerfer G. Passino including, but not limited to, medical records, psychiatric and/or psychological reports, notes, progress notes, test scores, neurological test reports, books, notes and any and all writings whatsoever now in your possession and under your control.” In March 2016, the agency acknowledged receipt of your request and informed you that we would conduct a search of our files for the requested records. To the extent that you identified specific records,1 the agency searched for those records. Our files indicate that the paper claims folder related to your applications for disability benefits was destroyed in accordance with the policies set by the National Archives and Records Management Agency. NI-47-05- 1.2 However, we did find some electronic records that were not in your paper claims folder, which are 1 A requester must reasonably describe the records sought. 5 U.S.C. §552(a)(3)(A); 20 C.F.R. § 401.40(b)). The Privacy Act (5 U.S.C. §552(a)(3)(a)) may be accessed online at: https://www.gpo.gov/fdsys/pkg/USCODE-2011-title5/pdf/USCODE-2011-title5-partI-chap5-subchapII- sec552.pdfThe Social Security Administration regulation 20 C.F.R. § 401.40 may be accessed online at: https://www.ssa.gov/OP_Home/cfr20/401/401-0040.htm 2 http://www.archives.gov/records-mgmt/rcs/schedules/independent-agencies/rg-0047/n1-047-05- 001_sf115.pdf Exhibit E Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 9 of 10 responsive to your specific request. After concluding our search, we located two disability determination transmittals, which are attached. If you have any questions or concerns, please let me know. Sincerely, /s/ Fergus Kaiser Fergus Kaiser Special Assistant U.S. Attorney Exhibit E Case 6:16-cv-00430-GTS-ATB Document 11-3 Filed 07/18/16 Page 10 of 10 Vaughn v. Danzig, 18 Fed.Appx. 122 (2001) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 18 Fed.Appx. 122 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fourth Circuit Rule 32.1 (Find CTA4 Rule 32.1) United States Court of Appeals, Fourth Circuit. Phillip A. VAUGHN, Plaintiff–Appellant, v. Richard DANZIG, Secretary of the Navy, Defendant–Appellee. No. 00–2562. | Submitted July 31, 2001. | Decided Sept. 7, 2001. Discharged serviceman sued the Secretary of the Navy, claiming wrongful discharge and violation of the Privacy Act. The United States District Court for the Eastern District of Virginia, at Newport News. Henry Coke Morgan, Jr., J., granted summary judgment to the Secretary, and serviceman appealed. The Court of Appeals held that: (1) serviceman had no valid property interest, protected by due process, in continued service in the Navy; (2) serviceman did not show a violation of his liberty interests; and (3) the Privacy Act was not violated by the destruction of the record of nonjudicial punishment of the serviceman. Affirmed. West Headnotes (6) [1] Constitutional Law Armed Services Serviceman who was not discharged prior to the expiration of his enlistment contract had no valid property interest, protected by due process, in continued service in the Navy. U.S.C.A. Const.Amend. 5. Cases that cite this headnote [2] Armed Services Discharge Constitutional Law Discharge or separation Serviceman who did not demonstrate that any statements made by the Navy in connection with his discharge were false did not show a violation of his liberty interests, protected by due process. U.S.C.A. Const.Amend. 5. Cases that cite this headnote [3] Armed Services Grounds in general Assuming that Navy regulation required consideration of rehabilitation prior to discharge, no violation was shown, where serviceman's record for the period of his last enlistment reflected several instances of counseling, alcohol rehabilitation treatment, advice that his conduct was unacceptable, and offers of assistance in correcting his deficiencies. Cases that cite this headnote [4] Armed Services Discharge, retirement, and resignation in general According appropriate weight to an internal Navy regulation in evaluating whether a particular member will be permitted to continue in the service inherently requires that discretion be exercised by military commanders. Cases that cite this headnote [5] Records Regulations limiting access; offenses The Privacy Act, requiring an agency to maintain an accurate record where such record may be used to determine the rights, benefits, opportunities, or fitness of an Case 6:16-cv-00430-GTS-ATB Document 11-4 Filed 07/18/16 Page 1 of 3 Vaughn v. Danzig, 18 Fed.Appx. 122 (2001) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 individual, was not violated by the destruction of the record of nonjudicial punishment of a member of the Navy, where, at the time of member's discharge from the Navy, the record was maintained in the files of his unit, and the record was not destroyed until later, pursuant to Navy records retention policy. U.S.C.A. Const.Amend. 5; 5 U.S.C.A. § 552a. Cases that cite this headnote [6] Records Regulations limiting access; offenses Agencies are not required to retain records on the possibility that a Freedom of Information Act (FOIA) or Privacy Act request may be submitted. 5 U.S.C.A. §§ 552, 552a. Cases that cite this headnote *123 Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Henry C. Morgan, Jr., District Judge. (CA–99–150, CA–00–40). Attorneys and Law Firms Chester L. Smith, Virginia Beach, VA, for appellant. Kenneth E. Melson, United States Attorney, Lawrence R. Leonard, Managing Assistant United States Attorney, Norfolk, VA, for appellee. Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior Circuit Judge. OPINION PER CURIAM. **1 Philip A. Vaughn appeals the district court's order granting summary judgment to Defendant on his claims that he was wrongfully discharged from the United *124 States Navy, and that the destruction of disciplinary records violated the Privacy Act, 5 U.S.C.A. § 552a (West 1996 & Supp.2001). Finding no error, we affirm. We review a grant of summary judgment de novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988). Summary judgment is properly granted when there are no genuine issues of material fact and when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251– 52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether the moving party has shown that there is no genuine issue of material fact, a court must assess the factual evidence and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir.1996) (en banc). [1] [2] Vaughn first claims that the district court erred in concluding that his due process rights were not violated because no property or liberty interests were violated by his discharge. Our review of the record convinces us that, because Vaughn was not discharged prior to the expiration of his enlistment contract, he had no valid property interest in continued service in the Navy. Vaughn has also not demonstrated that any statements made by the Navy in connection with his discharge were false, and therefore has not shown a violation of his liberty interests. See Guerra v. Scruggs, 942 F.2d 270, 278–79 (4th Cir.1991). [3] [4] Vaughn also argues that the district court erred in concluding that his discharge did not violate Navy personnel regulations. He specifically contends that the Navy failed to consider rehabilitation, as required by the regulation, and thus improperly decided to discharge him. Assuming, without deciding, that the regulation in question requires such consideration, we find no error in the district court's conclusion. A review of Vaughn's service record for the period of his last enlistment reflects several instances of counseling, alcohol rehabilitation treatment, advice that his conduct was unacceptable, and offers of assistance in correcting his deficiencies. Moreover, as correctly noted by the district court, according appropriate weight to an internal Navy regulation in evaluating whether a particular member will be permitted to continue in the service inherently requires that discretion be exercised by military commanders. The Supreme Court has clearly circumscribed the role of courts called upon to review such discretionary decisions. Thus, judgments required in the unique context of the military are entitled to a high degree of deference. See Goldman v. Weinberger, 475 U.S. 503, 506–08, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986); Chappell v. Wallace, 462 U.S. 296, Case 6:16-cv-00430-GTS-ATB Document 11-4 Filed 07/18/16 Page 2 of 3 Vaughn v. Danzig, 18 Fed.Appx. 122 (2001) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 300–05, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). We discern no abuse of discretion in the circumstances of this case. **2 [5] Vaughn's final argument on appeal is that the district court erred in concluding that the Navy did not violate federal law by destroying the record of his disciplinary proceedings held in October 1996. Vaughn specifically cites a provision of the Privacy Act that provides for civil remedies if an agency fails to maintain an accurate record where such record may be used to determine the rights, benefits, opportunities, or fitness of the individual. Vaughn's reliance on this provision is misplaced. The record indicates that, at the time of the adverse action in this case, Vaughn's discharge from the Navy in February 1997, the record of his nonjudicial punishment was maintained in the files of his unit. The record was destroyed in *125 May 1999, pursuant to Navy records retention policy. Accordingly, the provision of the Privacy Act Vaughn relies upon on appeal was not violated by the destruction of his record. Although Vaughn seems to argue that the Privacy Act requires that records be maintained in perpetuity, he has cited no authority for that position. [6] Moreover, as noted by the Government in its brief, Vaughn's telephonic request for the record before it was destroyed did not comply with the requirement for submitting a request under the Freedom of Information Act, Privacy Act, or Navy regulations implementing those statutes. When he complied with these procedures by submitting a written request for the record, it no longer existed, having been destroyed in accordance with Navy policy. That destruction did not violate federal law, as agencies are not required to retain records on the possibility that a FOIA or Privacy Act request may be submitted. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155 n. 9, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (no obligation to retain records prior to a FOIA request). We therefore affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED. All Citations 18 Fed.Appx. 122, 2001 WL 1023212 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 6:16-cv-00430-GTS-ATB Document 11-4 Filed 07/18/16 Page 3 of 3