UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES HENRY LANTRY, III,

Plaintiff,

v. Civil Action No. 23-473 (RDM) FRANK KENDALL, Secretary of the U.S. Air Force, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Roughly three years ago, Plaintiff Dr. James H. Lantry III, a former extracorporeal

membrane oxygenation (“ECMO”) physician for the United States Air Force (“USAF”),

submitted a request to the USAF for documents pertaining to a USAF review board’s finding

that Lantry had committed malpractice when caring for a patient during a medical transport in

2014. Dkt. 17 at 20–21 (Def.’s SUMF ¶¶ 1–3). After his request was denied, Plaintiff filed this

lawsuit on February 17, 2023 under the Freedom of Information Act (“FOIA”),

(a)(3)(A), and the Privacy Act, 5 U.S.C. § 552a(d)(1), against the USAF, the Secretary of

the Air Force, and the Secretary of Defense (“Defendants”). See Dkt. 1 (Compl.); Dkt. 2 at 11,

14 (Am. Compl.).

Now before the Court is Defendants’ motion to dismiss or, in the alternative, for

summary judgment. See Dkt. 17. For the reasons that follow, the Court will GRANT

Defendants’ motion for summary judgment as to Plaintiff’s FOIA claim. As to Plaintiff’s

Privacy Act claim, however, the Court cannot determine, based on the present record, whether

Plaintiff ever made a request under the Privacy Act or otherwise exhausted his administrative

1 remedies and, as result, cannot decide, based on the present briefing, whether any such failure to

exhaust would pose a jurisdictional hurdle to the Court’s adjudication of the claim. The Court

will, accordingly, DENY this portion of Defendants’ motion without prejudice and will ORDER

Plaintiff to show cause as to why the Court has jurisdiction to hear his Privacy Act claim.

I. BACKGROUND

A. Factual and Procedural Background

In considering a motion to dismiss, the Court must accept as true the factual allegations

contained in the complaint, considering the complaint as a whole and including materials

attached to or incorporated by reference into the complaint. See Tellabs, Inc. v. Makor Issues &

Rts., Ltd.,

(2007); Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015). Materials incorporated by reference may also include documents “not attached

by the plaintiff, but . . . ‘referred to in the complaint and . . . integral to [the plaintiff’s] claim.’”

Banneker Ventures,

(alteration in original) (quoting Kaempe v. Myers,

(D.C. Cir. 2004)). Here, Plaintiff’s original complaint included as exhibits multiple

documents, such as Plaintiff’s FOIA request and a USAF report to the National Practitioner Data

Bank (“NPDB”) concerning the USAF’s finding of malpractice as to Plaintiff. See Dkt. 1

(Compl.). When Plaintiff amended his complaint, however, he did not once again attach these

materials to the amended complaint, though he did reference them explicitly. See, e.g., Dkt. 2 at

4 (Am. Compl. ¶ 8) (citing to “Exhibit 4” from the original complaint). The Court will,

accordingly, treat the materials that Plaintiff attached to his original complaint and referenced in

2 his amended complaint as incorporated into the amended complaint for purposes of resolving the

Defendants’ motion to dismiss. 1

Considered against this backdrop and viewed in the light most favorable to Plaintiff, the

relevant facts are as follows.

On September 4, 2014, Plaintiff was a physician and Captain in the U.S. Air Force,

responsible for operating an ECMO device during a medical transport. Dkt. 2 at 4 (Am. Compl.

¶ 5); Dkt. 17 at 20 (Def.’s SUMF ¶ 1). During that transport, a “chemical warming blanket

(Ready-Heat Disposable Blanket) was placed on [a] patient’s legs,” which “caused third degree

burns on both [of the patient’s] lower legs.” Dkt. 1-2 at 3. The patient incurred “wounds, scars

and serious nerve damage” as a result of the use of the warming blanket, and she brought a

medical malpractice claim against the USAF.

When a medical malpractice claim is made against the USAF, the military treatment

facility’s risk management program is notified. See AFI 44-119 at 214 (¶ 10.13.1); see also Dkt.

17-1 at 3 (Wolf Decl. ¶ 4 & n.2). Each military treatment facility must have a risk management

program that “focuses on identification, mitigation, and prevention of harmful patient and staff

events through a process of risk reduction strategies.” AFI 44-119 at 187 (¶ 10.2). When a

medical treatment facility receives notice of a medical malpractice claim, it secures all relevant

documents, AFI 44-119 at 214 (¶ 10.13.1), organizes a Quality of Care (“QOC”) review,

(¶ 10.13.3), and makes Standard of Care (“SOC”) determinations,

(¶ 10.13.3); see Dkt. 17-1

at 3 (Wolf Decl. ¶ 4). An SOC determination is “a peer review of a specific incident of care and

1 The Court also takes judicial notice of certain USAF guidance documents. See Department of the Air Force Guidance Memorandum to DAFI 44-119, Medical Quality Operations, https://static.e-publishing.af.mil/production/1/af_sg/publication/afi44-119/afi44-119.pdf (dated August 16, 2011) (hereafter “AFI 44-119”). See Tellabs, Inc., 551 U.S. at 322–23 (permitting a district court to take notice of information available on government websites).

3 is initiated in response to a concern about individual clinical performance and a potential breach

in the standard of care.” AFI 44-119 at 150 (¶ 8.14.2). The military treatment facility will also

notify all significantly involved practitioners of “their involvement in the medical malpractice

claim.” Id. at 214 (¶ 10.13.4). 2

The Air Force Medical Practice Review Board (“MPRB”) then reviews the actions of all

significantly involved practitioners through a process of “expert peer review.” AFI 44-119 at

215 (¶ 10.13.10). “Expert peer review” involves “an external peer review of a specific incident

of care in preparation for a medical malpractice case against the government.” Id. at 150

(¶8.14.3); see Dkt. 17-1 at 3 (Wolf Decl. ¶ 4). Following this review, the MPRB forwards its

SOC determination to the Air Force Surgeon General and makes recommendations about

whether to report the incident to the Defense Practitioner Data Bank (“DPDB”) and the National

Practitioner Data Bank (“NPDB”). AFI 44-119 at 215 (¶ 10.13.10). The process concludes

when the Air Force Surgeon General issues a final SOC determination and decides whether to

report the event to the DPDB, NPDB, and other official agencies. Id. If a significantly involved

practitioner is “found not to [have] me[t] the SOC,” then the “malpractice claim case[] [is] . . .

reported to the NPDB.” Id. at 217 (¶ 10.17.1).

In considering the medical malpractice claim stemming from the September 4 medical

transport, the “peer review board” found that Lantry “committed malpractice” due to his failure

to meet standards of care during that medical transport. Dkt. 2 at 4–5 (Am. Compl. ¶ 14); Dkt.

17 at 20 (Def.’s SUMF ¶ 1). He was informed of this finding on October 24, 2018 and advised

2 Those notifications include the “initial determination that a provider is significantly involved,” a “[p]reliminary QOC review with SOC determinations made by the [military treatment facility],” “[r]edacted expert reviews done for the attorneys adjudicating the claim, when completed,” “[p]rovider’s right to respond to any adverse SOC determination,” and “final legal and clinical SOC determinations for each malpractice claim.” Id. at 214 (¶ 10.13.4).

4 that it was “in [his] best interest to submit a response for re-consideration by the peer

expert . . . before final decisions on SOC and reporting are made.” Dkt. 1-5 at 1. In preparing

his response, Plaintiff sought information on the specific findings made by the peer review board

but alleges that he never received a copy of the relevant documents. Dkt. 2 at 5–6 (Am. Compl.

¶¶ 15–30).

The process concerning the September 4 medical transport culminated with a finding that

Lantry had violated the SOC. The USAF, accordingly, reported to the NPBD: (1) that the

incident occurred, (2) that Plaintiff had been the treating physician, and (3) that the USAF had

made a malpractice settlement payment of $150,000 to the patient as a result of the injuries the

patient had suffered. Dkt. 1-2; Dkt. 17 at 20 (Def.’s SUMF ¶ 2). The USAF also notified

Plaintiff’s state credentialing authority. Dkt. 2 at 7 (Am. Compl. ¶ 33); Dkt. 17 at 20 (Def.’s

SUMF ¶ 2).

Several years later, on February 5, 2020, Plaintiff submitted a FOIA request to the USAF,

requesting “all documents pertaining to the malpractice claim [involving the September 4, 2014

medical transport] collected by the Air Force Medical Practice Review Board . . . that were used

to make a determination of medical malpractice for James Henry Lantry III,” including “any and

all additional documents that were used to make this malpractice decision resulting in

submission to the National Practitioner Data Bank.” Dkt. 1-6 at 1; Dkt. 2 at 7 (Am. Compl.

¶¶ 35–36). Remarkably, as of January 13, 2023, Lantry had yet to receive a response to his

February 2020 FOIA request. Dkt. 1-10 at 1. Plaintiff thus filed this suit seeking release of the

materials he requested. Dkt. 1 (Compl.). Plaintiff filed an amended complaint on February 28,

2023, Dkt. 2 (Am. Compl.), which the Defendants have moved to dismiss, or in the alternative,

have moved for summary judgment, Dkt. 17.

5 II. ANALYSIS

A. Freedom of Information Act Claim

The Court considers Plaintiff’s FOIA claim first. Defendants ask this Court to dismiss or,

in the alternative, to grant summary judgment in their favor on the ground that all the records

Plaintiff requested are protected from disclosure under FOIA Exemption 3. Dkt. 17 at 9–13. In

support of this argument, Defendants rely on a declaration from Colonel Lauren J. Wolf, who is

“responsible for the Air Force Surgeon General’s Clinical Quality Management program,” Dkt.

17-1 at 2 (Wolf Decl. ¶ 1), and also invoke AFI 44-119, which Defendants contend is the

principal USAF internal guidance document that pertains to its investigation of medical

malpractice claims like the one relevant here.

When considering a motion to dismiss, a court ordinarily must confine itself to the

complaint and materials properly incorporated into the complaint. If materials outside of the

complaint are considered, “[t]he normal course of action . . . is for a nominal motion to dismiss

to be treated as a motion for summary judgment.” Tele-Commc’ns of Key W., Inc. v. United

States,

(D.C. Cir. 1985); see also Fed. R. Civ. P. 12(d) (“If, on a [Rule

12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the

motion must be treated as one for summary judgment under Rule 56.”). In deciding whether it is

appropriate to convert the motion from one under Rule 12(b)(6) to one under Rule 56, “the

touchstone is fairness and whether consideration of summary judgment is appropriate, in light of

the nature of the extra-pleading material submitted, the parties’ access to sources of proof, and

the parties’ concomitant opportunity to present evidence in support or opposition to summary

judgment.” Ryan-White v. Blank,

(D.D.C. 2013).

6 Here, the Court need not convert Defendants’ motion to dismiss because they also move,

in the alternative, for summary judgment, and, although Defendants have yet to file an answer,

Rule 56 permits a party to “file a motion for summary judgment at any time until 30 days after

the close of discovery.” Fed. R. Civ. P. 56(b). Plaintiff, moreover, does not object to reaching

the merits of Defendants’ motion for summary judgment at this early stage of the litigation, and

the Court sees no unfairness in doing so. See generally Dkt. 18. Discovery is exceptionally rare

in FOIA cases, see Voinche v. FBI,

(D.D.C. 2006) (“FOIA actions are

typically resolved without discovery.”); Wheeler v. CIA,

(D.D.C . 2003)

(“Discovery is generally unavailable in FOIA actions.”); Pub. Citizen Health Rsch. Grp. v. FDA,

(D.D.C. 1998) (“Discovery is to be sparingly granted in FOIA actions.”),

aff’d in part, rev’d in part,

(D.C. Cir. 1999), and, here, Plaintiff does not seek

discovery. Instead, he merely asserts that he too should be permitted to submit “additional

responsive evidence in accordance with FRCP 56.” Dkt. 18 at 6. Defendants do not oppose that

reasonable request, leaving the Court free to decide the case on the record as it now exists.

To prevail on a motion for summary judgment, the movant must demonstrate “that there

is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In a FOIA case, a court deciding a summary judgment motion must

“ascertain whether the agency has sustained its burden of demonstrating that the documents

requested are . . . exempt from disclosure.” ACLU v. U.S. Dep’t of Just.,

(D.C. Cir.

2011) (quotation marks and citation omitted). An agency may do this by submitting declarations

that are “relatively detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (quotation marks and citation omitted), and that “describe the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

7 withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith,” Larson v. Dep’t of State,

(D.C. Cir. 2009) (quoting Miller v. Casey,

(D.C. Cir. 1984)).

Defendants withheld the records requested by Plaintiff pursuant to FOIA Exemption 3.

Exemption 3 permits the withholding of records that are “specifically exempted from disclosure

by statute,” provided that such statute either “requires that the matter be withheld from the public

in such a manner as to leave no discretion on the issue” or “establishes particular criteria for

withholding or refers to particular types of matters to be withheld.”

(b)(3).

Defendants contend that

prohibits the disclosure of the records Plaintiff

requests and, thus, provides a sound basis for withholding the records under Exemption 3. Dkt.

17 at 9. Section 1102 provides that “[m]edical quality assurance records created by or for the

Department of Defense as part of a medical quality assurance program are confidential and

privileged” and that “[s]uch records may not be disclosed to any person or entity,” except as

permitted under certain exceptions.

(a). None of those exceptions apply here,

§ 1102(c), and, to the contrary, the statute unambiguously declares that the “[m]edical quality

assurance records” protected under § 1102(a) “may not be made available to any person under”

FOIA, id. § 1102(f). Clearer statutory language is seldom, if ever, found.

According to Defendants, all of the records that Plaintiff requests—that is, “all

documents . . . collected by the Air Force Medical Practice Review Board” associated with “the

malpractice claim” arising from the September 4, 2014 flight, Dkt. 1-6 at 1—are “medical

quality assurance records,” as defined by § 1102. Dkt. 17 at 9–10. That is the case, Defendants

explain, because, under the terms of the statute, a “medical quality assurance record” includes

“proceedings, records, minutes, and reports that emanate from quality assurance program

8 activities . . . and are produced or compiled by the Department of Defense as part of a medical

quality assurance program.” Id. at 9 (quoting 10 § 1102(j)(2)). A “medical quality assurance

program” is, in turn, defined by the statute as:

[A]ny peer review activity carried out . . . for the Department of Defense to assess the quality of medical care, including activities conducted by . . . review bodies responsible for quality assurance, credentials, . . . and identification and prevention of medical or dental incidents and risks.

Id. § 1102(j)(1). The Medical Practice Review Board’s process for considering claims of

medical malpractice, Defendants argue, meets this definition of a medical quality assurance

program. See Dkt. 17 at 9–10; Dkt. 17-1 at 3 (Wolf Decl. ¶ 5). The Court agrees.

The process that the MPRB employs to make determinations of malpractice involves the

use of “peer expert review.” As explained by AFI 44-119, when investigating a claim of medical

malpractice, the MPRB uses an “an external peer review of a specific incident of care.” AFI 44-

119 at 150 (¶ 8.14.3). Those expert reviewers must at “minimum” have “four years [active duty]

time, [must have] 4 years experience in [the] clinical specialty, [must be] currently practicing in

the clinical specialty,” and should “prefer[ably]” have a “board certification/national

certification.” Id. at 212 (¶ 10.11.11.4). The expert review process that the MPRB conducts,

accordingly, falls within § 1102’s broad definition of peer review, which includes “any

assessment of the quality of medical care carried out by a health care professional” and, in

particular, “any such assessment of professional performance” and “any patient safety program

root cause analysis or report.” Id. § 1102(j)(4). The Court is hard pressed to see why, given

these definitions, the process described by AFI 44-119 for the MPRB’s review would not qualify

as a medical quality assurance program. Notably, Plaintiff offers no reason to doubt that it does.

If the MPRB’s review process, as described by AFI 44-119, qualifies as a “medical

quality assurance program,” it follows that the records Plaintiff requests are exempt from

9 disclosure under FOIA. The statute defines “medical quality assurance records” broadly to

include any “proceedings, records, minutes, and reports that emanate from quality assurance

program activities . . . and are produced or compiled by the Department of Defense as part of a

medical quality assurance program.” Id. § 1102(j)(2). And here, Plaintiff requests all records

“collected by the Air Force Medical Practice Review Board . . . that were used to make a

determination of medical malpractice” relating to the November 4, 2014 flight. Dkt. 1-6 at 1.

Because the MPRB’s review is a medical quality assurance program, the records “collected by

the [MPRB] . . . that were used to make a determination of medical malpractice,” id., would be

“records . . . produced or compiled . . . as part of a medical quality assurance program,”

(j)(2), and thus medical quality assurance records. In short, Plaintiff’s request for

records essentially tracks the statutory prohibition on release; he seeks records that are, by

definition, medical quality assurance records.

In response, Plaintiff advances two arguments as to why—even if the MPRB process

constitutes a medical quality assurance program in some respects—the records he seeks

nevertheless fall outside the statutory definition of “medical quality assurance records.” First, he

contends that the USAF’s conclusion that all the records he seeks were “medical quality

assurance records” is overbroad because “information existing or originating outside of a quality

assurance program does not become confidential and privileged merely by incorporating it into a

quality assurance record.” Dkt. 18 at 15 (emphasis in original) (quoting Dayton Newspapers,

Inc. v. Dep’t of Air Force,

(S.D. Ohio 1999)). But that argument

ignores the statutory text and the nature of the records that Plaintiff actually seeks. Beginning

with the language of the statute itself, § 1102 defines “medical quality assurance record” broadly

to include “the proceedings, records, minutes, and reports that emanate from quality assurance

10 program activities . . . and are produced or compiled by the Department of Defense as part of a

medical quality assurance program.”

(j)(2) (emphasis added). This definition

includes materials that did not originate with the quality assurance program but that were

collected or assembled as part of the program’s peer review process.

To be sure, § 1102(h) clarifies that “[n]othing in this section shall be construed as

limiting access to the information in a record created and maintained outside a medical quality

assurance program, including a patient’s medical records, on the grounds that the information

was presented during meetings of a review body that are part of a medical quality assurance

program.” But courts, including the one Plaintiff cites for support, have interpreted this section

to “make[] clear that an individual is not precluded from obtaining those files from an outside

source (i.e., a source other than the quality assurance program) simply because they may have

been incorporated into a quality assurance record.” Dayton Newspapers, 107 F. Supp. 2d at

917–18 (emphasis in original). Rather than limiting the confidentiality and privilege afforded by

§ 1102(a) to information that is “produced or compiled” as part of the quality assurance program,

§ 1102(h) merely clarifies that § 1102(a) does not “limit[] access” to records that are “created

and maintained outside the quality assurance program.” 10 U.S.C. 1102(h) (emphasis added).

Had Congress intended to permit the disclosure of records created outside the program but

maintained by the program (or vice versa), it would have used the disjunctive in § 1102(h).

Likewise, had Congress intended to limit the scope of the confidentiality § 1102(a) affords to

those only those records both “produced” and “compiled” by the program it would have used the

conjunctive, rather than the disjunctive.

Plaintiff’s second argument is no more persuasive. He argues that even if the process

outlined by AFI 44-119 does constitute a “medical quality assurance program,” Defendants have

11 not met their burden of showing that that process applied to the medical malpractice claim made

against him. In support of this argument, Plaintiff notes the reticulate series of events and

notifications that are supposed to transpire when a medical malpractice claim is filed. See Dkt.

18 at 7–9. He then avers that he was not informed of any of the necessary steps as required by

the AFI 44-119 process, which he says indicates that the process outlined by that directive was

not the one employed against him and, accordingly, that the records compiled for that process

might not qualify as medical quality assurance records. See id.; Dkt. 18-1 at 1–2 (Lantry Decl.

¶¶ 6–11). 3 But even viewing Plaintiff’s account of these omissions in the light most favorable to

him, as the Court must at this stage of the proceedings, see Coleman v. Duke,

(D.C. Cir. 2017), any such aberrations do not, alone, establish that the other steps outlined by

AFI 44-119—most importantly, the steps pertaining to peer review—were not taken by the

MPRB.

As an initial matter, there is ample evidence in the record that a peer expert review

consistent with AFI 44-119 occurred. Attached to Plaintiff’s first complaint, for example, is an

email to Plaintiff from a Risk Manager at the Air Force stating that “[t]he ECMO [Surgeon

General] physician expert peer review has just been completed.” Dkt. 1-5 at 1. That email goes

on to suggest that Plaintiff “submit a response for re-consideration by the peer expert, and review

by the MPRB and [the Surgeon General] before final decisions on SOC and reporting are made

by the [Surgeon General].”

Another email purports to contain “the SOC not met,” id. at 8,

3 Plaintiff specifically notes four aberrations in the process that was followed: (1) the failure to notify him in writing that a claim had been filed (he did not find out until after the peer review panel had met and made their determination), see Dkt. 18 at 8; (2) the failure to provide him a particular form (which, on Plaintiff’s telling, was required by AFI 44-119, Chapter 8), see id.; (3) the failure to provide him a copy of the SOC determination (which, on his telling, was required by AFI 44-119, ¶ 10.11.3), see id. at 8–9; and (4) the fact that his superiors were unaware that the QOC proceeding had been initiated, see id. at 7.

12 determination and a discussion about how Plaintiff might best refute that SOC finding follows,

id. at 8–12. Finally, it is established that a medical malpractice finding was made by the MPRB

and that the incident was reported to the relevant professional boards by the Air Force Surgeon

General.

Beyond identifying a handful of asserted, procedural irregularities, Plaintiff does not

dispute that a peer review actually took place or cite to any evidence to that effect. Instead, he

contends that he was not informed, at the time, that a peer review process pursuant to AFI 44-

119 was being conducted. But the lack of notification to him (and his superiors) that the peer

review process had transpired does not negate the evidence that steps were, in fact, taken

consistent with AFI 44-119. And Plaintiff provides no account of how the steps that all parties

seem to agree transpired—the SOC finding, the MPRB review, and the report to the professional

boards by the Air Force Surgeon General—could have transpired outside of the processes

outlined in AFI 44-119.

In her declaration, moreover, Colonel Wolf attests, under the penalty of perjury, that (1)

the procedures of AFI 44-119 were followed and (2) “no documents collected or considered by

the MPRB [in conducting its QOC review] would fall outside the definition of ‘proceedings,

records, minutes, and reports . . . produced or compiled’ as part of the quality assurance

program.” See Dkt. 17-1 at 4 (Wolf Decl. ¶ 6); see id. at 4–5 (Wolf Decl. ¶¶ 4–6). Her

declaration, submitted on behalf of an agency, is entitled to “a presumption of good faith, which

cannot be rebutted by purely speculative claims.” SafeCard,

(internal quotation

marks and citation omitted). Plaintiff, in turn, fails to offer any evidence that would justify

negating Colonel Wolf’s representation that the MPRB determination involved “peer review

activity carried out . . . for the Department of Defense to assess the quality of medical care.” 10

(j)(4). As a result, his argument that the MPRB did not follow the procedures

outlined in AFI 44-119 amounts to “purely speculative claims.”

For these reasons, the process undertaken by the USAF in investigating the medical

malpractice claim against Plaintiff constituted a “medical quality assurance program,” and the

documents Plaintiff seeks were “produced or complied” for that program. They are, accordingly,

protected from disclosure under

(a) and FOIA Exemption 3. With this

conclusion in hand, the Court offers two final observations. First, because the documents are, by

their very nature, exempted from disclosure, it would not be possible for the agency to segregate

and release any non-exempt material from the exempt medical quality assurance records. See

Flete-Garcia v. U.S. Marshals Serv.,

, 436 (D.D.C. 2020) (noting that an

agency must separate “the exempt from the non-exempt portions of the document” (internal

quotation marks and citation omitted)); Stolt-Nielsen Transp. Grp., Ltd. v. United States,

(D.C. Cir. 2008). Second, FOIA’s foreseeable-harm requirement does not apply

to the “disclosure of information prohibited from disclosure by law, or otherwise exempt from

disclosure under” Exemption 3. 5 US.C. § 552(a)(8)(B).

The Court will, accordingly, grant summary judgment in favor of Defendants with

respect to Plaintiff’s FOIA claim.

B. Privacy Act Claim

Plaintiff’s amended complaint also contains a Privacy Act claim. The Privacy Act

provides that “each agency that maintains a system of records” must, “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). Plaintiff alleges that

14 Defendants violated the Privacy Act when they declined to respond to his FOIA request and

“produce a complete and unredacted records supporting the conclusion that [he] had engaged in

medical malpractice, failed to meet a standard of care, and the decision to report those

conclusions to the NPDB.” Dkt. 2 at 15 (Am. Compl.). Plaintiff has accordingly brought suit

under § 552a(g)(1), which provides that “[w]henever 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.” 5 U.S.C. § 552a(g)(1)(B).

Before a person may bring a Privacy Act claim to compel disclosure, however, that

person must first exhaust administrative remedies. Many judges in this district view this

requirement as jurisdictional. See e.g., Mulhern v. Gates,

(D.D.C.

2007) (“Premature Privacy Act suits [for improperly withheld documents] are dismissed for lack

of subject matter jurisdiction.” (citing Dickson v. Off. of Pers. Mgmt.,

, 40–41 (D.C.

Cir. 1987))); Sandoval v. U.S. Dep’t of Just.,

(D.D.C. 2017) (“[T]he

exhaustion requirement under the Privacy Act is jurisdictional.”); Stein v. SEC,

(D.D.C. 2017) (same). Others have viewed the exhaustion of the Privacy Act’s

administrative process as an element of a claim under the Act. See Bain v. Off. of Att’y Gen.,

, 42 (D.D.C. 2022) (“But the D.C. Circuit has never gone that far [as to call

exhaustion a jurisdictional requirement]. It has instead called exhaustion of the Privacy Act’s

administrative process a ‘prerequisite to bringing civil suit to compel amendment’ and a

‘requirement[]’ that has been ‘incorporate[d]’ into the ‘cause[] of action.’ (alterations in original)

(first quoting Nagel v. U.S. Dep’t of Health, Educ., & Welfare,

(D.C. Cir.

1984); then quoting Haase v. Sessions,

(D.C. Cir. 1990))).

15 This distinction at least arguably matters here because the Court cannot reach the

Defendants’ arguments relating to the merits of Plaintiff’s Privacy Act claim without first

ensuring that it has jurisdiction to do so. And nothing in Plaintiff’s complaint or attachments

thereto indicates that Plaintiff has exhausted his Privacy Act Claim. To the contrary, Plaintiff

does not allege that he ever filed a request under the Privacy Act with the USAF, and, based on

the Court’s review of his request, it appears that he never did so. See Dkt. 2 at 7 (Am. Compl.

¶ 35);

at 14–15 (Am. Compl.); Dkt. 1-6 at 1–2. Indeed, his request stated only that “[t]his is a

request under the Freedom of Information Act.” Dkt. 1-6 at 1.

Exhausting administrative remedies under the Privacy Act requires more than merely

asking for the documents. “To properly exhaust administrative remedies, a plaintiff must submit

a Privacy Act request to the agency and seek review within the agency under the agency’s

regulations.” Mulhern,

(citations omitted); see e.g., Blazy v. Tenet,

(D.D.C. 1997) (dismissing a Privacy Act claim for failure to exhaust when the

plaintiff had not followed agency regulations for how to submit a Privacy Act request, sent a

letter requesting documents to the wrong individual, and “nowhere mention[ed] the Privacy

Act”); cf. Dickson, 828 F.2d at 40–41 (holding that futility does not excuse a failure to exhaust

under the Privacy Act). Accordingly, nothing presently before the Court suggests that the

process necessary to exhaust a Privacy Act claim was followed by Plaintiff. Or put even more

directly, Plaintiff does not allege—and there is no evidence that—he ever made, or that the

USAF ever considered and rejected, a request for access to records under the Privacy Act.

Neither party, however, has briefed this issue, and resolving it is necessary before the

Court can consider whether Plaintiff has otherwise stated a plausible Privacy Act claim. As a

result, the Court will direct that Plaintiff show cause as to why this Court has jurisdiction to

16 consider his Privacy Act claim. Defendants may then reply to Plaintiff’s response with their

view on the jurisdictional issue. For now, Defendants’ motion to dismiss is denied without

prejudice as premature.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss, Dkt. 17, is DENIED without

prejudice, and Defendants’ motion for summary judgment, Dkt. 17, is GRANTED as to Count I.

Plaintiff is further ORDERED to show cause, on or before April 12, 2024, why the Court has

subject matter jurisdiction over Count II of the amended complaint, Dkt. 2. It is further

ORDERED that Defendants shall respond to Plaintiff’s submission on or before April 26, 2024.

Finally, Defendants’ motion to dismiss or, in the alternative, for summary judgment, Dkt. 17, as

to Count II is DENIED without prejudice, pending resolution of the threshold, jurisdictional

question.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 31, 2024

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