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O'Donnell v. United States

argued: September 8, 1989.


Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Docket No. Civil 88-6168.

Author: Rosenn


Rosenn, Circuit Judge.

This appeal presents, among other issues, a case of primary impression in this circuit relating to the limitation, if any, of the Federal Privacy Act of 1974 on the Federal Tort Claims Act (FTCA) with respect to a person's right to sue a federal agency for an invasion of privacy. Under the FTCA the government is liable for injuries caused by a government employee "if a private person, would be liable to the claimant in accordance with the law of the place where the act of omission occurred." 28 U.S.C. ยง 1346(b). Plaintiff Thomas O'Donnell brought suit under the FTCA in the United States District Court for the Eastern District of Pennsylvania against the Veterans Administration Agency (VA) for invasion of privacy and negligent disclosure of psychiatric records.

The Government filed a motion to dismiss and, in the alternative, a motion for summary judgment. The district court, without opinion, granted the Government's motion for summary judgment. O'Donnell appealed. We affirm the district court's judgment as to plaintiff's invasion of privacy claim. We vacate the judgment and remand as to O'Donnell's statutory claim for failure to maintain the confidentiality of his psychiatric records.


The Commonwealth of Pennsylvania employed O'Donnell in its Office of Employment Security, Department of Labor and Industry, as a disabled veterans employment representative in its Hatboro office. In late 1985, O'Donnell claimed that the two Naval air stations near his office disturbed him because he suffered from a Vietnam-related post-traumatic stress disorder (PTSD). He therefore requested a transfer to the Levittown office of the Department.

His superior, James Hendricks, requested a statement from O'Donnell's Veterans Administration psychiatrist verifying O'Donnell's need for transfer and the medical basis for it. On November 21, 1985, plaintiff executed a "Request For and Consent to Release of Information" form (consent form) requesting the VA "to release the following information from the records of the organization. . . ." Unfortunately, in the space designated for the "INFORMATION REQUESTED," the Plaintiff-veteran failed to specify anything; he merely supplied the name and address of his superior, Hendricks. In the space reserved on the form for the "PURPOSE FOR WHICH THE INFORMATION IS TO BE USED," O'Donnell wrote "proof of disability" and "need for reassignment," Dr. Robert Eilers, plaintiff's VA psychiatrist, promptly prepared a letter to Hendricks opining that it "would be in the interests of Mr. O'Donnell and his treatment for him to be assigned to his former office in Bristol, Pennsylvania because of better travel time and conditions." This letter was hand delivered to plaintiff who then delivered it to Hendricks on November 21, 1985.

On December 5, 1985, at O'Donnell's request, Dr. Eilers wrote a supplemental letter to the Pennsylvania Department of Labor explaining that his prior letter recommended O'Donnell's reassignment due to the proximity of the Naval air stations "which has exacerbated symptomology of PTSD, including nightmares, flashbacks, and headaches, because of its reminders of his military experience."

On December 13, 1985, Roberta E. Fisher, a VA employee, sent a copy of Dr. Eiler's treatment summary of the plaintiff to Hendricks. This treatment summary contained the previous information about O'Donnell's post-traumatic stress disorder but also added a statement which is the genesis of this litigation:

One major problem has been [O'Donnell's] difficulty controlling his anger and impulsive behavior, which has been exacerbated by a turbulent relationship with his girlfriend, conflicts with authority figures and several legal problems.

It is unclear why the VA released this additional information or who requested it. O'Donnell contends that he never authorized the December 13 disclosure of the Eilers' treatment summary to Hendricks. He further claims that this release caused him to suffer severe mental distress, loss of reputation, and led to his dismissal by the Pennsylvania Department of Labor. The Government contends that the November 21 consent form executed by O'Donnell implicitly authorized the December 13 release.


Before examining the merits of the appeal, we address, sua sponte, the district court's failure to render an opinion. Although a district court is not required to file an opinion setting forth its reasons or findings for entering summary judgment, the failure to do so in a non-frivolous case makes it extremely difficult, and perhaps impossible, for an appellate court to discern the district court's basis for its summary judgment ruling and to effectively grant appellate review. The trial court's findings and reasons would have been especially helpful in this case where we are requested to predict what the Pennsylvania Supreme Court would hold under Pennsylvania law and can only speculate as to the district court's reasons for entering summary judgment.

In reviewing a district court's summary judgment order, we "are required to apply the same test the district court should have utilized initially." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Here, we must determine if the VA, as the party moving for summary judgment, has met its burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In forming our conclusions, we view the evidence submitted in the light most favorable to the opposing party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Any "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. See Adickes, supra, at 157-60.

If the moving party has met its burden of proof, the opposing party may not rest on "the mere allegations or denials of his pleading, but his response must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 ...

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