good morning please the court garrets me with gradient associates on behalf of the public gary there are three issues essentially in this case the first issue is whether mr and i can raise a tribal issue of material fact as to whether the government did not provide adequate safeguards for his medical information second issue is whether mr i can't establish a credible vision material fact regarding his one full disclosure cause of action and the third issue is whether mastery gallo abused his discretion in denying leave to conduct discovery you submit that the answer to all those three questions is yes the lower court determined that there was not enough evidence to show an intentional violation of the privacy act intentional means something more than gross negligence means a flagrant disregard with respect to the inadequate safeguards there is knowledge going back to two thousand and seven that the hospital was aware that it had an adequate safeguards and going into september of two thousand and thirteen the safeguard s corrected that's a six year span of time in a hospital environment where medical diagnoses are very sensitive where patients serve privacy expectations him that his prognosis was the day and mr beige when questioned by mr grady how the progress of the case was going mr beige would frequently say well it's day to day and i hope to return soon and if you're in mr beige is position and attorney had been working for a gradient associate for over thirteen years it might be hard at that point to establish or admit that he had a problem and he may have not been able to establish are diagnosed himself with the problem and he was depending on the doctors to tell him what was going on and there was a lapse in communication after he had the bouts of anxiety and insomnia he had strep throat and in the process there was a divorce filing and then he had the flu i mean it was an absolute series of calamities that prevented this discovery and we brought this to the attention of magistrate gallo at the mandatory settlement conference in february and at that point magistrate gallo summarily denied that he would extend discovery which have the impact of keeping us dissuading us from filing an ex parte for relief we were working on that into late february i was trying to get a stipulation with the government and we worked probably over a week on it and the government was indicating that they were willing to stipulate to allow the discovery to take place and that fell apart because they felt that they had to get their motion on calendar once the motion was on calender the x party was denied because we of was a key witness in this case dr bravado was the person that told mr atkins that there were inadequate safeguards that the problems list could be accessed without an auditing capability and dr viral would have been question about who she told at the hospital about this problem going back to two thousand and seven and she would have disclosed that there were administrator that were on notice of this problem that's key aspect of this case because of administrators were on notice going into two thousand and seven that there were problems and they didn't fix until after two thousand and thirteen as reckless and as much more than just gross negligence mr smith but how would that have helped you  statute of limitations question because your client testified in a step position that he knew about the problem back in two thousand and nine so what additional discovery would have helped you in the statute  the additional discovery that would have helped would have pertain to the continuing violations theory and there's also an aspect of when mr atkins damages accrued we do not believe his damages crewed until the cause of action became in existence which was two thousand and eleven when mr molinos told mr racoons that there was no proper accounting function i don't think additional discovery would revealed much other than more information on continuing violations and with respect to the disclosure cause of action in the statue of limitations that cause of actions that cause of action did not come into fruition until june of two thousand and ten june twenty fourth we follow a lawsuit on june eighth two thousand and twelve within the two year statue of limitations so i've discussed the adequate safeguards cause of action the court also found that there was not an intentional violation with respect to wrongful disclosure and i will submit that the statement that was made by lieutenant commander simons in the open court or with a third party present mentioning mr  are supposed to be liberally construed there's an equally plausible inference that this party may have been present to overhear this conversation the third party didn't say anything like well guys we'll see you guys later you know catch on another time there was just a silence so maybe he wasn't participating in the discussion but there's also evidence in the sense that pratt and simon's discussed this problem with h r they took it to the h r department and the inference is that they discussed  medical diagnosis at that time too and in fact the h r department told him told both pratt and simons they were allowed to access this information as an employee issue and when mr racoons accused them of access information pratt acknowledges he had made a mistake and he said what do you want me to do beg forgiveness that's strong evidence that there's been at the very least improper access and we do disagree with the culture decision the district court decision out c there's a d c circuit court decision that was decided before a car show bigelow versus the department of the fence it's a d c circuit case two thousand to seventeen after two thousand and ten so those are the two issues the third issue with risp respect to magistrate gallo's decision there was no prejudice the would have been a prejudice connecting those to the position there was no impact on the court's calendar there was no impact on the trial date this was a mistake or inadvertence of counsel for mr racoons and mr x and suffered from that they imposed that liability on mr atkins limitations and that the inadequate safeguards only was as to the restriction of access claim but not as to the auditing claim i don't believe that the lower court determined that any of the causes of action were barred by the statute like they keep said that your restriction of access kind that it is looked at it again has he made a distinction i suspects that in violation has occurred it has to be more than just a suspicion it has to be a reasonable suspicion has to be a suspicion that a reasonable person would say yes there's been a violation in his his speculations and he put forth  and that carried with him when he transferred to the v a because if he had hired bonuses he would have had a higher higher salary when he got to the v a and then we also have a disagreement with respect to emotional distress and that whether that is an inadequate safeguard cause of action the cooper decision as united states supreme court decision and they determine when there's been improper disclosure you cannot recover for emotional distress but they didn't have in front of it the added inadequate safeguard cause of action under the ten of the privacy act five fifty to eighty ten it's vociferously spells out that when there's inadequate safeguards people are going to be emotionally upset they're going to be embarrassed they're going to have a sense of humiliation they're going to be very paranoid about what type of information is being disclosed by the government that's different than the improper disclosure cause of action because in the improper disclosure cause of action there's nothing spelled out about emotional distress so we believe that this case is different from the cooper decision and it's an issue that has not yet been decided by the supreme court you're relying on that language that which could result in substantial harm embarrassment inconvenience or variance it's spelled out specifically in the statute the legislature intended that there be emotional distress damages for  of action and if you think about it what type of damages exist for an inadequate safeguard cause of action you can have injunctive relief for an adequate safeguards you know it's going to be next to impossible to establish monetary los them to implements safeguards like mandatory injunction i don't think the injunctive relief is something that is available for an adequate safeguards not for an adequate safeguards and i'd like to reserve some time good morning may it please the court assistant united states attorney katherine parker for the absolutely secretary raymond made us district judge carrie l's decision was thorough and thoughtful and legally correct and should be affirmed the district court was careful to parse a public plea to four different theories for a violation of the privacy act and those four theories appear at page forty eight of the excerpts of record three of the theories relate to safeguards the fourth relates to disclosure and i will address the disclosure theory last as to the first safeguards theory this is the theory that there is a problem list in the medical records system to which access is not listed restricted to the same extent that access is restricted to the full medical records this is the theory regarding which the district court found that the cause of action is time barred it is to court correctly found that mr acton's learned of this issue in two thousand and nine and this evidence of it is from mr akron's deposition pages one fifty five of the excerpts of record which continues at page two of the supplemental excerpts of record the district court correctly found that mr out his became aware of this issue in two law regarding this doctrine in the reply brief here in this court the continuous violation nocturne does not apply here and that is because the case cited by a patent is a title seven case this is a privacy case the language that congress used in those two statutes to set the statutes of limitation is very different in title seven what is relevant is when the unlawful employment practice quote occurred and in that context in the title seven cont under a hostile work environment theory there could be a series of conduct that occurs over a period of time and therefore courts apply the continuous violation you are looking at the privacy  congress and in acting the privacy act you use different wording for the statute of limitations and said that a call an action must be filed from within two years from the date on which a cause of action arose therefore had to file suit in two thousand and nine there hadn't been any adverse action or nothing had happened to him so every employee could just go in and file a lawsuit because they became aware of the practice even though it had exactly rationed he found his annual bonuses and this is a quote from the record his annual bonuses were unusually low in two thousand and eight two thousand and nine and two thousand and ten also mr atkins had begun to six fact suspect the other employees were aware of his went so far as to say that hearsay and rumors are enough to trigger that obvious that obligation to investigate here as of two thousand and nine to investigate this he could have he could have sought an audit he could have spoken with people he could have you've done any number of things and didn't do any of those things and waited three years to file his cause about my real problem with this case is i feel that the record is just so intentional or will fall or reckless even act by the hospital and how it handled people's medical records which are subject to the privacy act why wasn't it an abus magistrate judge viewing the course of discovery on the fact that mr bass had been present during the telephonic conference during which the dates were set for the case that he should have known of that date not to diligently to conduct point there's some level of civility and compassion that has to enter into these decisions absolutely and mr atkins could have made a showing that there was some discovery that he needed to oppose t and did not follow the the procedural steps to make that showing the party application was brought to the magistrate judge who denied it without opposition the opportunity to appeal that to the district judge and to rule seventy two was not taken advantage of by the plaintiff at that time when the motion for summary judgment was filed there was simply a mention in a footnote of rule fifty six d which is the former rule fifty six f which allows a party to make a showing that it needs additional evidence to oppose a summary judgment motion there was no showing that the depositions that were requested would have made any difference to the summary judgment result the only request that was made in the district court at that time were for three witnesses dr mary viro who's a physician lisa has who is a social worker so there are users of all to a system and then a name was raised at that time of someone named the district judge overruled the government's hearsay objections to that evidence mr atkins had the opportunity to put into the record his version his characterization of his conversations with those witnesses the district court did not overrule those objections considered the evidence but found that even taking it taking those witness statements mr acton's characterization of those witness statements that there simply was not enough evidence to show any willful violation of the privacy act with regards to the safeguards claim and those are that that was the only discovery that was specifically right requested in the district court and therefore the district court looked at the request to have been made found that there were other attorneys who there had been no explanation of why they did not seek an extension of discovery or served discovery and as to mr bates the record reflects that in the timeframe leading up to the discovery cutoff the discovery cutoff was january first january thirty first of two thousand and fourteen that mr extensively defended mr atkins at his deposition in the prior month under some are third of two thousand thirteen and that's in the excerpts of record at one thirty four so there's been no showing that would be the district court didn't have in front of it anything that would rise to the level of justifying additional discovery under will fifty sixty and therefore did not abuse its discretion in denying that request and that is the standard his abuse of discretion standard pioneer case is a case interpreting a specific bankruptcy and the for his not is not relevant in this context he's made the district court did apply the statute of limitations only as to one theory in the case which is that the access to the problem missed as to the statute of limitations could apply to the audit capabilities of as well as indicated in the government's brief the mr atkins testified in his deposition that he was aware of that in two thousand and nine s well not appears at page one fifty eight of the excerpts of record and furthermore there's an emphasis on the length of time of this alleged issue in the briefs the appellant indicated that there was a four year time span here and argument counsel has extended that to six years the simply no evidence in the record success to suggest that that is true and that the hospital was made aware of a problem at some given date and simply ignored it for a period of years that's not the hospital's practice and it's not reflected by the record the there is no date in the record associated with the alleged report by mary of r o two hospital administrators the discussion of that is that page two of four of the excerpts of record and there's no date associated with that and there's simply no evidence at all in the record to support the argument made this morning that a report was made as early as two thousand and seven moreover the record also does not support that there was a problem that continued until two thousand and thirteen there's been and there's no support for it in the record to the contrary it's confirmed in the record by lisa hess that as of the fall of two thousand and ten as to mr x and specific medical condition the problem list did not show that information and mr atkins confirmed that himself and his declaration that that was the case in late two thousand and ten and that his confirmation of that appears at page two ten of the excerpts of record simply there is no evidence to support a long standing problem that was ignored by the hospital finally as to the disclosure cause of action the district court carefully reviewed the evidence provided by mr atkins and how that it would be too speculative to find that there had been a disclosure of information which was gleaned from a privacy act system of records and as to the hallway conversation that was recorded even if the court had found that a third party was present the district court looked at the substance of that conversation and said it's not even clear that there was a disclosure of any information regarding mr atkins and south there were just there was a discussion of acupuncture and a discussion of what the benefits of acupuncture are not that there was any information about mr atkins disclosed to anyone at that time and finally regarding the alleged human resources conversation the evidence does not even support that that conversation  apologize i don't have the case at my fingertips but the case law allows disclosure specifically to the person who the record pertains to and i know this in the context of if you make a privacy act requests for record the agency can give you your own records i also wanted to address on that topic the weather access is can be a privacy act violation the only case that the government in that  found below where there was the caught your case and i apologize the bigelow case hadn't been cited and hadn't been brought to the court's attention a supplemental for you and therefore not prepared to address it if the court would like for their briefing on that case i'd be happy to look at it and provide it however the culture court was very careful to analyze the linguist's of the privacy act and the language of him and found that looking at both of those statutes we cannot imply in the privacy context  action for violation of the privacy act but the privacy act covers a much broader section of documents and records that hipaa does does not that's true that's true so you would necessarily read them  the privacy act covers a much broader range of documents totally unrelated to what hip colors in the context of hipaa however the congress has legislated in the area of many things related to medical records but specifically access to medical records and had declined to provide a cause of action so if you can visualize this is a venn diagram and you have on one side and then a much larger circle it's that area where the thank you very much and with that i would again reiterate how thorough the district court was in carefully parsing the elements of plaintiff's theory and finding that the evidence there simply was not enough evidence to support a privacy act like to address the argument that mr atkins was not identified as the person that would have benefited from the acupuncture because in that discussion mr jack and says i don't know what i would use acupuncture for maybe for relaxation and things like that the response from commander simons was yeah relaxation but it also helps for counts meaning blood counts that was a statement that was specific it was actually recorded was and is recorded that's correct and there's a transcript that's been a part of the record but there's a asterisks before the word counts for blogger you know it's i don't recall that there was aspects i do know that there was asterix are there yonder but i do know that the reference was clearly to blood counts and that's something that had particular application to mr atkins and night of his condition with respect to the boy or decision and whether m suspicion is significant in the sense that it prompts the statue limitations the better decision is the rose decision from the ninth circuit and in that case rose they said that needs to be reasonable you have to either know the violation or you have to have a reasonable believe that the violation has occurred it's not just a mere suspicion there's been an argument that hearsay and rumors are significant enough to prompt a statue of limitations that's not what happened and boy or the person boy it was told specifically that was there was a memo in his personnel file with derogatory information and he knew that that information specifically pertain to him in mr racoons case he knew that generally information was available to other people that didn't have a need to know but he didn't know that it was specifically a political to him with regard to investigation there is a an argument that mr acton's had  responsibility upon suspicion to investigate the issue he requested an odd it and the audit did not show that people had accessed this information that he suspected had access to information but  audit didn't show everything that it should have shown because you had this problems list that was accessible that everyone that did not have an audit capacity so that he did investigate the issue and the information was