Deneen Harris v. US, No. 10-2019 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2019 DENEEN HARRIS; JESSIE HARVEY; JOSEPH BRADLEY; STEVEN HYDE; LINDA REID; JANAKIBAI THEOGARAJ; FRED TYRRELL; BARBARA WILLIAMS; LINDA TYREE, Plaintiffs Appellants, v. UNITED STATES OF AMERICA, Defendant Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:10-cv-00027-REP) Submitted: March 1, 2011 Decided: March 17, 2011 Before MOTZ, KING, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Stephen Domenic Scavuzzo, McLean, Virginia, for Appellants. Neil H. MacBride, United States Attorney, Robin Perrin Meier, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Deneen Harris, Jessie Harvey, Joseph Bradley, Steven Hyde, Linda Reid, Janakibai Theogaraj, Linda Tyree, Fred Tyrrell, and Barbara Williams (collectively, Plaintiffs ) filed suit against the United States pursuant to the Federal Tort Claims Act ( FTCA ), 28 U.S.C. §§ 2671-2680 (2006). Plaintiffs are all present and former employees of Hunter Holmes McGuire Veterans Affairs Medical Center ( VAMC ) in Richmond, Virginia. As a basis for the FTCA claim, the complaint relied on federal and state constitutional law, federal statutory and regulatory law, and a provision of the Virginia Health Records Privacy The Act ( VHRPA ), Government filed Va. a Code motion to Ann. § 32.1-127.1:03 dismiss the (2010). complaint, and after a hearing, a magistrate judge recommended granting the Government s motion. The district court adopted the recommendation over Plaintiffs objections, and Plaintiffs noted a timely appeal. We affirm. On appeal, Plaintiffs arguments all address whether the district court erred in holding the VHRPA does not create a private cause of action. They argue that the district judge erred in dismissing their claim on the grounds that they alleged a seizure and not a disclosure. This Court reviews a district court s Rule 12(b)(1), (6) dismissal de novo. Philips v. 2 Pitt Cnty. Mem l Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009); 497 F.3d 379, 382 (4th Cir. 2007). dismiss a complaint for lack of Etape v. Chertoff, A district court should subject matter jurisdiction pursuant to Rule 12(b)(1) if it fails to allege facts upon which subject matter jurisdictional jurisdiction allegations can in the be based complaint or are if not the true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). district court 12(b)(6) if, should accepting dismiss all a complaint well-pleaded pursuant allegations to in A Rule the complaint as true and drawing all reasonable factual inferences in the plaintiff s favor, the complaint does not allege enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Because Plaintiffs brought this action under the FTCA, their claims are governed by the law of Virginia, the state where the alleged tortious government conduct occurred. 28 U.S.C. § 1346(b)(1) (2006). See The United States is only liable under circumstances where a private person would be liable to the claimant. Id. Assuming, without deciding, that the VHRPA does provide a private right of action, we conclude that the district court properly dismissed the complaint. disclosure of an individual s health The statute prohibits records, except when permitted or required by this section or by other provisions of 3 state law. alleged in Va. the Code Ann. complaint § 32.1-127.1:03(A). state only that agents The facts from the Department of Veterans Affairs Office of Inspector General ( VA OIG ) seized records without a warrant, without probable cause, [and] without written authorization, not that the records were disclosed to any third party. Furthermore, even if VA OIG s actions constitute a disclosure, disclosure to law enforcement officials is permitted if the health care entity believes in good faith that information disclosed constitutes evidence of a crime. Code Ann. § 32.1-127.1:03(D)(31). the Va. We conclude that Plaintiffs bare allegation that the VA OIG did not act in good faith is insufficient Ashcroft v. to circumvent Iqbal, 129 Corp., 550 U.S. at 555. S. this Ct. statutory 1937, 1949 exception. (2009); See Bell Atl. Federal law grants inspectors general broad authority to have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable establishment which relate to programs and operations with respect to which that Inspector General has responsibilities. 5 U.S.C. app. § 6(a)(1) (2006). Accordingly, we affirm the district court s judgment. We dispense with oral argument 4 because the facts and legal contentions are adequately presented in the materials before the court and would not aid the decisional process. AFFIRMED 5

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