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BAKER v. UNITED STATES

October 22, 1996

DANIEL (DANNY) BAKER, et al., Plaintiffs,
v.
THE UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: LARIMER

 This action is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiffs, Daniel Baker ("Baker") and Peter DeFranco ("DeFranco"), commenced this action against the United States ("defendant"), alleging negligent or otherwise wrongful acts or omissions by employees of the Veterans Administration ("VA") employed at the Veterans' Administration Medical Center in Canandaigua, New York ("VAMC").

 Pending before me are defendant's motion for judgment on the pleadings as to DeFranco's claim and plaintiffs' motion for leave to file an amended complaint.

 I. FACTUAL BACKGROUND

 Baker and DeFranco were simultaneously both patients and employees at VAMC, where Baker worked as a counselor, and DeFranco worked as an addiction therapist. In this lawsuit, plaintiffs complain about actions of various VAMC employees and, in particular, about their counselor and coworker, Dr. Richard Lyman ("Lyman"), a certified psychologist.

 Specifically, Baker maintains that between July and September 1991, Lyman disclosed certain confidential information regarding Baker which he obtained during their counseling sessions. Baker claims further that, during this same period, certain VAMC employees falsified his records. Baker alleges that when he complained about these unlawful disclosures, as well as other unlawful practices at VAMC, Lyman and other VAMC employees retaliated against him with harassment and punishment.

 DeFranco claims that in June 1991, after having observed incidents of patient abuse by Lyman, he reported Lyman to the Chief of Psychology Service at VAMC. Further, DeFranco aided an investigation concerning unauthorized disclosures of patient confidences by Lyman and other VAMC employees. DeFranco maintains that as a result of his actions, Lyman and other VAMC employees retaliated against him in a variety of ways.

 Defendant moves for judgment on the pleadings as to DeFranco's cause of action. According to defendant, the retaliation DeFranco complains of constitutes adverse personnel action under the Civil Service Reform Act ("CSRA"). Because the CSRA provides comprehensive and exclusive procedures for settling work-related controversies between civil service employees and their employees, claims arising out of a federal-employment relationship governed by the CSRA may not be brought under the FTCA. Defendant maintains that DeFranco's employment relationship with the Veterans Administration is governed by the CSRA, and, therefore, DeFranco is foreclosed from suing under the FTCA.

 Plaintiffs initially opposed defendant's motion for judgment on the pleadings, alleging that it was not exactly clear what DeFranco's employment status was at the VAMC and whether he was even protected by the CSRA. *fn1" Because the specific employment status was information in the possession of defendant, and because there had been no discovery on this issue, plaintiffs argued that the motion was premature and should be denied.

 Defendant responded with an affidavit of the Assistant Chief of Human Resources Management Service for the VAMC stating that DeFranco's positions with the VAMC--first, as a psychology technician and then, as an addiction therapist--were both civil service positions covered by the CSRA.

 In light of this affidavit, plaintiffs' counsel agreed at oral argument that DeFranco was an employee covered by the CSRA, and, therefore, given the relevant case law, including Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983), DeFranco's FTCA claim should be dismissed. Accordingly, defendant's motion for judgment on the pleadings as to DeFranco's cause of action is granted.

 Defendant opposes plaintiffs' motion to amend as futile. According to defendant, all the amended causes of action would be subject to immediate dismissal.

 II. DISCUSSION

 Plaintiffs seek leave to amend the complaint to allege four causes of action. Before granting leave to amend, I must consider whether the proposed amended causes of action state claims upon which relief can be granted. If not, amendment would be futile and leave must be denied. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

 1. First Amended Cause of Action

 Baker maintains that between July and September 1991, Lyman disclosed personal and confidential information from Baker's medical and personnel records to third parties without his consent. Further, during this same period, VAMC employees altered and falsified Baker's medical and personnel records. After Baker complained about these unlawful disclosures, Lyman and other VAMC employees harassed and tormented him.

 Baker asserts that these actions violated the Privacy Act, the FTCA, and the statute governing the confidentiality of veterans' ...


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