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12/17/82 John Doe, v. Stanley S. Harris

December 17, 1982





Appeal from the United States District Court for the District of Columbia.


Wright and Ginsburg, Circuit Judges, and McGowan, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Ginsburg.


Plaintiff-appellant Doe appeals from the district court's refusal to entertain his claim for declaratory and injunctive relief and its dismissal of his complaint as moot. We hold that Doe's complaint retains vitality. Accordingly, we reverse the district court's judgment and remand the case for further proceedings. I. BACKGROUND

A. Facts

On October 22, 1981, an Assistant United States Attorney informed Doe, by letter, that he was a target for criminal prosecution in a pending grand jury investigation of fraudulent collection of unemployment compensation. The letter proposed a November 3, 1981, meeting between Doe and the prosecutor, and informed Doe that if he could not afford counsel he could be represented by a court-appointed attorney at the meeting. The purpose of the meeting was to apprise Doe of the evidence against him, provide him an opportunity to plead guilty to multiple felony charges, and enlist his cooperation in the investigation.

The day before the meeting, November 2, the prosecutor informed Doe's appointed counsel of the grand jury investigation. On November 3 the prosecutor subpoenaed Doe's claim file, and any medical records, maintained for Doe, from the Veterans Administration . The principal medical records involved were psychiatric; Doe had undergone treatment by VA doctors for paranoid-schizophrenia. On November 5, without notifying Doe or his attorney, the VA turned over the requested records.

When Doe's counsel learned of the VA's release of the psychiatric records, he informed the prosecutor that Doe's rights had been violated and that Doe would initiate legal action if the prosecutor did not take specified steps to protect Doe's rights. Doe demanded that the prosecutor (1) return the records to the VA; (2) tender all copies to Doe's counsel; (3) seal any notes made from the records for possible later evidentiary use; (4) make no presentation of the records to the grand jury; (5) allow no further dissemination of the records; (6) make no further efforts to obtain Doe's records; and (7) make no use of the information contained in the records. A week later, Doe added a demand that this relief be embodied in a district court consent order. Brief for Appellees at 4. Defendant-appellees imply they were willing to comply with (1)-(7), id. at 4. It is undisputed, however, that the United States Attorney's Office would not agree to any acknowledgement that Doe's rights had been violated or to a consent decree incorporating the specific relief Doe requested. Doe states categorically that defendant-appellees never offered to accede to any of his requests prior to the commencement of this action. Reply Brief for Appellant at 6.

Doe filed suit on January 6, 1982, naming as defendants the Assistant United States Attorney who subpoenaed the VA records, other federal and District of Columbia law enforcement officials, and two VA officials. His complaint alleged violation of his rights under the fourth, fifth, and sixth amendments, the D.C. patient-physician privilege, the D.C. Mental Health Information Act of 1978 (D.C. Code § 6-2002(a) (1981)), and federal law requiring that VA records be kept confidential (38 U.S.C. § 3301(a)). Cf. Hawaii Psychiatric Society v. Ariyoshi, 481 F. Supp. 1028 (D.Hawaii 1979). Doe sought court orders that the files be transferred to Doe's counsel and that defendants' notes relating to the files be sealed, a judgment declaring the subpoena and release of his medical files illegal, and an injunction barring the defendants "or anyone acting on their behalf" from reacquiring the files or disseminating their contents.

On January 19, without interposing an answer to the complaint, the federal defendants moved to dismiss the case as moot. Declarations submitted by officers of the United States Attorney's Office and the District of Columbia Metropolitan Police Department informed the district court that no use had been made of the VA records in connection with the grand jury matter, that in fact the records were of no value to the investigation concerning fraudulent collection of unemployment compensation, and that defendant law enforcement officers contemplated no future acquisition or use of the records. Brief for Appellees at 5-6. The declarations also asserted that no copies of the records had been made, that no notes had been taken, and that few persons had had access to the records. The defendants offered to surrender the documents to the district court. On February 26, 1982, the district court granted the defendants' motion to file the documents under seal, and dismissed the entire action as moot.

B. The Davis test as applied by the district court

In County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979), the Supreme Court restated the two conditions that must be satisfied if a federal court is to dismiss a case as moot. First, the court must conclude "with assurance that 'there is no reasonable expectation . . . ' that the alleged violation will recur" (citing United States v. W.T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1953); SEC v. Medical Committee For Human Rights, 404 U.S. 403, 30 L. Ed. 2d 560, 92 S. Ct. 577 (1972)). Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975), clarifies that in non-class actions such as this one the chance of recurrence must be evaluated with reference to the expectation that "the same complaining party [will] be subjected to the same action again." Second, under the Davis formulation, it must be plain that "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation" (citing DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974); Indiana Employment Security Division v. Burney, 409 U.S. 540, 35 L. Ed. 2d 62, 93 S. Ct. 883 (1974)).1 The district court identified as the pivotal question "whether the facts of [Doe's] case meet the tests set out in Davis."2

The first Davis condition -- no expectation of recurrence -- was met, according to the district court, because officials of the D.C. Metropolitan Police and the United States Attorney's Office represented that no one in their offices would divulge the contents of Doe's files or seek to reacquire the files from the VA. Memorandum Opinion, supra note 2, at 3-4. Doe argued that these assurances were inadequate to establish the absence of any reasonable expectation of recurrence of an official demand for and surrender of the VA records without notice to Doe. The court rejected Doe's argument as insubstantial. As the district court viewed the case, the Assistant United States Attorney's declaration that the psychiatric files were useless to the grand jury investigation ...

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