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Engman v. Veterans Administration Portland Medical Center

United States District Court, D. Oregon

January 16, 2015

TAD K.L. ENGMAN, Plaintiff,

Tad K.L. Engman, Beaverton, Oregon, Plaintiff Pro Se.

S. Amanda Marshall, UNITED STATES ATTORNEY, District of Oregon, Kevin Danielson, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon, Attorneys for Defendant.


MARCO A. HERNANDEZ, District Judge.

Plaintiff Tad K.L. Engman brings this action against the "Veterans Administration, Portland Medical Center, " under the federal Privacy Act, 5 U.S.C. § 552a, complaining that Defendant changed his name on its medical and related records and failed to acknowledge his request to correct them. Defendant moves to dismiss, arguing that the claim is moot. While Defendant establishes that corrections have been made, Plaintiff alleges that errors persist, precluding a determination that the entire claim is moot. While the motion to dismiss was pending, Plaintiff moved to file a supplemental complaint. For the reasons explained below, I deny that motion.


In his First Amended Complaint, Plaintiff alleges that the "Portland VA Medical Center" changed his name on its medical records. First Am. Compl. at p. 3. On March 11, 2014, he requested the Enrollment Office correct his name back to the way it was. Id . He alleges that the request was received by mail on March 12, 2014. At the time he filed his original Complaint on May 2, 2014, and again in his First Amended Complaint filed on May 29, 2014, Plaintiff stated that Defendant had not acknowledged his request and had not yet corrected "all portions of all my records." Id .; Compl. at p. 3. He further alleged that Defendant's failure to correct his name has caused him extreme stress and mental trauma. First Am. Compl. at p. 3.

As relief, he seeks $1, 000 "plus what Court decides in damages, " as well as an order that Defendant properly correct "all my records, at the VA and anywhere else, " and furnish him with a certification of what has been done as to "all records including those outside the VA which have been corrected." Id. at p. 5. He also seeks costs and attorney's fees. Id.

In a section asserting his basis for federal question jurisdiction, he cites to 5 U.S.C. §§ 551a(g)(1)(C) and (D) "as relates to" 5 U.S.C. §§ 552a(d)(2)(A) and (B). Id. at p. 3.


Mootness is properly raised in a motion under Federal Rule of Civil Procedure 12(b)(1) addressing the court's subject matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In assessing a "factual attack" on federal jurisdiction which "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction[, ]" Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), the court "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Id .; see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (in resolving a Rule 12(b)(1) motion, the court may consider evidence outside the pleadings to resolve factual disputes). The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Safe Air, 373 F.3d at 1039.


Congress passed the Privacy Act to "protect the privacy of individuals identified in information systems maintained by Federal agencies'" by regulating "the collection, maintenance, use, and dissemination of information by such agencies.'" Doe v. Chao, 540 U.S. 614, 618 (2004) (quoting Privacy Act of 1974, § 2(a)(5), 88 Stat. 1896). The Privacy Act gives "detailed instructions" to federal agencies for managing their records and "provides for various sorts of civil relief to individuals aggrieved by" the government's failure to comply with the requirements. Id.

Under the Privacy Act, an individual may request an amendment of a record pertaining to the individual. 5 U.S.C. § 552a(d)(2). The agency then has a duty to acknowledge the amendment request within ten days of receiving it and to "promptly" make the requested correction or inform the individual of the agency's refusal to do so. 5 U.S.C. §§ 552a(d)(2)(A) and (B).

Civil remedies for violations of subsection (d) are spelled out in 5 U.S.C. § 552a(g). Under subsection 552a(g)(1)(C), if the agency fails to maintain a record "concerning any individual with such accuracy... necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual[, ]" the individual may bring a civil action against the agency in a United States district court. 5 U.S.C. § 552a(g)(1)(C). Although Plaintiff ...

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