UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

67 M.S.P.R. 622 

Docket Number PH-0752-94-0750-I-1 

DELIA A. HALL, Appellant, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, Agency. 

Date: June 2, 1995 

M. Jefferson Euchler, Esquire, Neil C. Bonney & Associates, Virginia 

Beach, Virginia, for the appellant. 

Dianne N. Parlow, Esquire, Washington, D.C., for the agency. 

BEFORE 

Ben L. Erdreich, Chairman 

Antonio C. Amador, Member 

OPINION AND ORDER 

This case is before the Board on an interlocutory appeal from the 

administrative judge's discovery-related order issued on December 22, 

1994. The administrative judge ruled that 38 U.S.C. § 7332(b)(2)(D) 

contemplates that a party seeking access to certain confidential patient 

medical records in possession of the Department of Veterans Affairs would 

have to apply to an Article III court, i.e., a U.S. district court, because the 

Board lacks authority to order the release of such records. The appellant 

requested an interlocutory appeal of the ruling to the Board and the agency 

did not object. The administrative judge certified his ruling for review by the 

Board under 5 C.F.R. § 1201.93. For the reasons set forth below, we 

VACATE the administrative judge's ruling and RETURN the appeal to the 

regional office for further adjudication consistent with this Opinion and 

Order. 

BACKGROUND 

The agency removed the appellant from the GS-6 position of Health 

Technician, at the agency's Medical Center in Martinsburg, West Virginia, 

effective September 23, 1994. Initial Appeal File (IAF), Tab 3, Subtabs 4, 
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4a, 4c. The agency based the action on nine charges of misconduct. Id., 

Subtab 4c. Charge VI alleged that the appellant disclosed certain 

confidential information about patients at the Medical Center where she 

worked and that she gained knowledge of the matters she disclosed from 

her access to the patients' medical records through her employment. Id. 

On appeal, the appellant denied all of the charges. IAF, Tab 1. She 

initiated discovery under the Board's procedures set forth at 5 C.F.R. § 

1201.71-.75. During this process, she made various discovery requests, 

including a request for the medical records of the patients in question under 

Charge VI. IAF, Tab 9. The agency refused to release the records without a 

court order. IAF, Tabs 9, 11, 13. The appellant then moved to compel the 

release. Id., Tab 9. She argued in support of her motion, among other 

things, that she needed access to the records to determine whether they 

contained the information the agency had charged her with disclosing. She 

contended that if the records did not contain the information or if the 

records showed that the alleged disclosures were not true, then this charge 

must fail. She argued also that the agency was required to provide the 

records because it implicitly asserted that the information she allegedly 

disclosed is contained in them and is true, when it brought the charge. She 

argued further that to allow the agency to maintain the charge but to deny 

her the opportunity to investigate the assumptions underlying it is a denial 

of her right to due process. She asserted finally that the Board is 

empowered to order the release of the records pursuant to its regulations 

governing discovery. IAF, Tab 9. She made similar arguments in her brief 

on interlocutory appeal. IAF, Tab 15. 

In its response in opposition to the motion, the agency argued that 

under the provisions of 38 U.S.C. § 7332(b)(2)(D), it is prohibited from 

disclosing the medical records requested by the appellant unless ordered to 

do so by a court of competent jurisdiction. The agency asserted that neither 

a Board administrative judge, nor the Board as an entity, is a court of 

competent jurisdiction as contemplated by this statutory provision. It 

contended that to obtain the release of the records, the appellant, as the 

party requesting the information, was required to obtain a court order from 

the local U.S. district court. The agency argued finally that, if it released the 

records without such an order, it would be liable for an action against it by 

the patients involved. IAF, Tab 11. It raised similar arguments in its brief 

on interlocutory appeal. IAF, Tab 16. The administrative judge ruled that 

the statutory provision contemplates that a party seeking access to patient 

medical records would have to apply to a U.S. district court to obtain release 

of the records. He certified his ruling for interlocutory appeal to the Board. 

IAF, Tab 17. 
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ANALYSIS 

The appellant has established that her discovery request was for 

information that is relevant and material to the preparation and presentation 

of her appeal. 

Discovery is the process by which a party may obtain relevant 

information from another person or party to an appeal. 5 C.F.R. § 

1201.72(a). Relevant information includes information that appears 

reasonably calculated to lead to the discovery of admissible evidence. Id. 

The scope of discovery generally extends to any non-privileged matter that 

is relevant to the issues involved in the appeal. 5 C.F.R. § 1201.71(b). 

Where a party fails or refuses to respond fully to a discovery request, 

the requesting party may file a motion to compel discovery with the 

administrative judge. A party seeking to compel discovery must show that 

the information she seeks is relevant and material to the presentation of her 

case. 5 C.F.R. § 1201.73(c)(2)(i). 

Here, the appellant sought release of the medical records of the patients 

referred to by the agency in Charge VI. The agency charged the appellant 

with disclosing certain confidential information about patients at the Medical 

Center where she worked and gaining knowledge of the matters she 

disclosed from her access to medical records through her employment. 

Specifically, the agency alleged that: 

A. Sometime during the period between December, 1993 and April, 

1994, you stated to Patient Robert Duncan that D.S., another VA Patient, 

"has full blown AIDS.", or words to that effect. 

B. Sometime during the period between December, 1993 and April, 

1994, you stated to Patient Robert Duncan that R.P., another VA Patient, "is 

HIV positive.", or words to that effect. 

C. Sometime during the period between December, 1993 and April 

1994, you stated to Patient Robert Duncan that L.D., another VA Patient, "is 

a lesbian and began her lesbian origins while incarcerated in the Maryland 

Penal Institution.", or words to that effect. 

D. Sometime during the period between December, 1993 and April, 

1994, you stated to Patient Robert Duncan that R.B., V.B., V.H., J.C., all of 

whom are VA Patients, "have received veterans compensation.", or words to 

that effect. 

IAF, Tab 3, Subtab 4c. 

The stated purpose of the appellant's request for discovery of the 

medical records in question is to provide her with access to the basis for the 

charge and the opportunity to disprove it. IAF, Tab 9. Because the medical 

records have the tendency for resolving a disputed factual issue, i.e., 
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whether the appellant disclosed confidential patient information that she 

obtained as a result of her employment, we find that the information is 

relevant to a resolution of whether she committed the misconduct alleged by 

the agency in Charge IV. Therefore, we find that she has shown that it is 

relevant and material to the preparation and presentation of her case. See 

generally, 5 C.F.R. §§ 1201.72(b), 1201.73(c)(2)(i). 

The agency is limited by statute from providing certain confidential 

patient medical records on its own initiative without a court order. 

The agency has objected to releasing the patient medical records the 

appellant seeks on the ground that it is prohibited from doing so on its own 

initiative under the provisions of 38 U.S.C. § 7332(b)(2)(D) without an order 

from a court of competent jurisdiction. 

Title 38 U.S.C. § 7332(a)(1) provides that agency records that describe 

the identity, diagnosis, or treatment of patients for drug or alcohol abuse 

and for infection with the human immunodeficiency virus (HIV) may not be 

disclosed on the agency's own initiative except as authorized by the statute. 

Title 38 U.S.C. § 7332(b)(2)(D) provides for disclosure by the agency of 

such records 

[i]f authorized by an appropriate order of a court of competent 

jurisdiction granted after application showing good cause therefor. In 

assessing good cause the court shall weigh the public interest and the need 

for disclosure against the injury to the patient or subject, to the physicianpatient relationship, and to the treatment services. Upon the granting of 

such order, the court, in determining the extent to which any disclosure of 

all or any part of any record is necessary, shall impose appropriate 

safeguards against unauthorized disclosure. 

In discussing an identical earlier version of this statutory provision, the 

U.S. District Court stated that Congress' intent in drafting this statute was to 

have the courts consider such documents on an individual basis after a 

specific application and showing of good cause by the party seeking 

disclosure. See In Re Agent Orange Product Liability Litigation, 104 F.R.D. 

559, 575-76 (E.D.N.Y. 1985). The Board, however, is not a court pursuant 

to the provision at issue here, but an administrative agency created by 

statute. See Brumley v. Department of Transportation, 46 M.S.P.R. 666, 

680 (1991). Thus, notwithstanding our finding above regarding the 

relevance of the information the appellant seeks to discover, if the 

information is covered by this statutory provision, the Board cannot order its 

disclosure by the agency. 

The Board's discovery regulations provide a procedure for obtaining the 

release of information covered by this statutory provision. 
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The Board's regulations, however, do provide a procedure for obtaining 

the release of information through discovery that is consistent with the 

statutory limitations on the agency set forth at 38 U.S.C. § 7332(b)(2)(D). 

Under 5 C.F.R. § 1201.81, a party may request a subpoena to require the 

production of documents or other evidence under 5 U.S.C. § 1204(b)(2)(A) 

(which authorizes members of the Board, administrative law judges 

appointed by the Board, and any employee of the Board designated by the 

Board, to issue subpoenas requiring, among other things, the production of 

documentary or other evidence). Such a request is required to be supported 

by a showing that the evidence sought is relevant and reasonable in scope. 

5 C.F.R. § 1201.81. Where a subpoena has been properly effected, but the 

party upon whom it has been served fails or refuses to comply with its 

terms, the requesting party may seek enforcement through the 

administrative judge by the Board. 5 C.F.R. § 1201.85. In accordance with 

the provisions of 5 U.S.C. § 1204(c), the Board may request the appropriate 

U.S. district court to enforce compliance. We find that this procedure is 

consistent with the express authorization of 38 U.S.C. § 7332(b)(2)(D) 

allowing release of patient medical records pursuant to the order of a court 

of competent jurisdiction. See generally, Gilbreath v. Guadalupe Hospital 

Foundation, Inc., 5 F.3d 785, 791 (5th Cir. 1993). 

To establish that it is limited by the statute from providing the 

information the appellant requests, the agency must show that the records 

are covered by the statutory provision. 

To support its opposition to release of the information, the agency 

submitted an affidavit from the Acting Associate Medical Center Director. 

The affidavit attests that certain of the patients whose records are at issue in 

the allegations set forth under Charge VI are or have been patients at the 

Medical Center where the appellant was employed and describes the nature 

of the appellant's access to those records. IAF, Tab 11. Although it does 

not appear that the Board has previously addressed the burden of proof for 

invoking this specific statutory limitation on disclosure, it has addressed the 

applicability of statutory limitations against disclosure with regard to a 

somewhat analogous Federal statute that restricts disclosure of information 

during discovery. The Privacy Act (5 U.S.C. § 552a) (the Act) prohibits 

disclosure of information to any person or agency from systems of records 

without the written consent of the data's subject or of a court. Id. With 

regard to those records, the Board has held that to properly invoke the Act, 

the agency has the burden of proving that its records are covered by the 

Act. Eaks v. Department of Justice, 18 M.S.P.R. 328, 333 (1983). 

Moreover, the Board has ruled that a conclusory assertion that they are 

covered is not sufficient to meet that burden. Id. By analogy, we find that 

the agency here must show that the records it seeks to protect from 

disclosure fall within the provision of 38 U.S.C. § 7332(a)(1). If the agency 
6

can make such a showing, then it will have established that it is limited by 

the statute from providing the information the appellant requests without a 

court order. 

Accordingly, we return this appeal to the regional office for further 

proceedings. We have already determined that the information the 

appellant seeks is relevant and material to the preparation and presentation 

of her appeal. On return, the administrative judge must determine whether 

the agency has established that the records in question meet the 

requirements of the statute limiting disclosure. If he finds that it has met 

that burden, he shall provide the appellant with the opportunity to seek 

release of the patient medical records by subpoena. If she does so and the 

agency does not release them, then the administrative judge shall initiate 

appropriate action to enforce the subpoena in accordance with the provisions 

of 5 U.S.C. § 1204(c). 5 C.F.R § 1201.85; Gilbreath, at 791. 

ORDER 

This is the final order of the Merit Systems Protection Board in this 

interlocutory appeal. See 5 C.F.R. § 1201.91. 

For the Board 

Robert E. Taylor, Clerk 

Washington, D.C.