United States District Court, N.D. Georgia, Atlanta Division
HUTCHINSON CONSULTANTS PC and DR. LESLIE HUTCHINSON, Plaintiffs,
TISHA MARIE TITUS, M.D. and RICHARD J. MILLER, M.D., in their individual capacities, and JOHN OR JANE DOE, an employee of FEDERAL OCCUPATIONAL HEATH, a non-appropriated agency within the UNITED STATES DEPARTMENT OF HEATH AND HUMAN SERVICES, in his or her individual capacity, Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., District Judge.
This matter is before the Court on Defendants Tisha Marie Titus's ("Titus"), M.D., and Richard J. Miller's ("Miller"), M.D., Motion to Dismiss Plaintiffs Hutchinson Consultants' ("HC") and Leslie Hutchinson's ("Hutchinson"), M.D., Second Amended Complaint for failure to state a claim upon which relief can be granted .
Federal Occupational Health ("FOH") is a non-appropriated agency within the United States Department of Health and Human Services ("HHS") that provides occupational health services to federal employees. FOH entered into a contract with InGenesis, Inc. ("InGenesis") that required InGenesis to provide annual medical qualifications and return to work clearances ("Clearance Services") to employees of federal law enforcement agencies. InGenesis, in turn, entered into a contract with STG International ("STG") that required STG to provide the Clearance Services. STG, in turn, entered into a contract with HC that required HC to provide Clearance Services for employees of federal law enforcement agencies ("the HC Agreement"). Defendants Titus and Miller, and an unidentified "John or Jane Doe" Defendant, are employed by FOH (sometimes collectively referred to as "Defendants"). Defendants Titus and Miller are first-level supervisors at FOH. The Second Amended Complaint does not describe Defendant Doe's role at FOH.
HC is a private corporation, based in Auburn, Georgia. The HC Agreement required HC to assist in providing Clearance Services for Court Security Officers ("CSO") and Special Security Officers ("SSO") employed by the United States Marshals Service ("USMS"). It also required HC to recommend to the Judicial Services Division of the USMS whether to approve or withhold medical clearances for CSOs and SSOs. Hutchinson is a board certified specialist in Occupational Medicine and Preventive Medicine, and a primary owner of HC. Hutchinson alleges that he has a non-verbal learning disability associated with Asperger's syndrome or high-functioning autism.
In September 2010, Hutchinson began to provide Clearance Services for CSOs and SSOs pursuant to the HC Agreement. Hutchinson received medical examination reports of CSOs and SSOs that contained health information ("PHI") protected from disclosure by the Health Insurance Portability and Accountability Act of 1996 ("HIPPA"). Sarah Ohlsson, the Administrative Coordinator for the USMS's Judicial Services Division, provided Hutchinson with medical examination reports and entered medical information on an online system known as MERITS. Plaintiff performed a substantial amount of the work at his home because he claims that due to his disability he is most productive at night. Ohlsson allegedly sent the medical examination reports to Plaintiff's home office through encrypted emails and unencrypted facsimiles. Plaintiff alleges that "FOH supervisors were aware of and had authorized Ohlsson's practices of sending and receiving medical information via fax" to his home. Second Am. Compl. at ¶ 62.
On May 16, 2013, Hutchinson received a group email from Defendant Miller. In it, Defendant Miller requested each FOH reviewing physician to bring all federal medical records to Defendant Titus's office on May 17, 2013, the day after the email was sent.
On May 17, 2013, Hutchinson met with Defendants Titus and Miller in Defendant Miller's office, and produced the medical records in his possession. An Atlanta police officer and a building security guard were present outside Defendant Miller's office when Hutchinson arrived for the meeting. Once inside Defendant Miller's office, Hutchinson participated in a conference call. Defendants Miller and Titus, along with Marcia Euwema ("Euwema"), STG's Human Resources Director, participated in the call. Euwema told Hutchinson that STG was terminating the contract with HC because of a "security breach." Id. at ¶ 72.
Hutchinson alleges that he was not aware of a "security breach, " and asked Euwema to explain the circumstances of the breach. Id. at ¶ 73. "Euwema,  Miller and  Titus  stated that they were not allowed to tell  Hutchinson about the problem." Id. Hutchinson "inquired if the problem related to the faxing of material to and from Ohlsson. Hutchinson alleges that an unidentified male voice came over the speaker phone and said that there had actually been a confidential leak.'" Id. at ¶ 74. Euwema told Hutchinson that a HIPPA breach had occurred. Id. at ¶ 74. Hutchinson contends that "all of the other participants in the conference call" refused to provide specific details regarding the alleged breach. Id. at ¶ 76.
Plaintiffs allege that Defendants Miller and Titus and the John Doe Defendant communicated to unidentified third parties that (1) the contract with STG was terminated because of a "data breach" and a "confidential leak, " (2) Plaintiffs caused the "data breach" and "confidential leak, " and (3) as a consequence of the communications, Hutchinson lost "other contracts and consulting opportunities that he is qualified to perform." Id. at ¶ 81-85.
B. Procedural History
On October 28, 2013, Plaintiffs filed a ten count (10) Complaint against FOH and a Doe Defendant, in his or her official and individual capacities. In the original Complaint, Plaintiffs alleged that Defendants (1) violated the substantive and procedural components of the Due Process Clause by terminating Plaintiffs' contract with STG, (2) violated the Equal Protection Clause by treating Hutchinson differently from similarly-situated contractors because of his disability, and (3) tortiously interfered with Plaintiffs' business relations by inducing third parties not to enter into or continue a business relationship with HC.
On January 6, 2014, FOH moved to dismiss the original Complaint on the grounds that the Court lacked subject-matter jurisdiction because Plaintiffs filed this action against FOH without providing notice of their claim to HHS, as required by the Federal Tort Claims Act. FOH further claimed that the United States Court of Federal Claims has jurisdiction over FOH with respect to Plaintiffs' claims based on HC's contract with STG.
On February 26, 2014, the Court granted Plaintiffs' Motion to file an Amended Complaint. That day, Plaintiffs filed their Amended Complaint to include claims against a Doe Defendant based on the deprivation of a property and liberty interest, under the Due Process Clause, and the denial of equal protection, under the Equal Protection Clause. In the Amended Complaint, Plaintiffs did not name FOH as a defendant in the action.
On March 14, 2014, Plaintiffs moved to file a Second Amended Complaint, which, on March 18, 2014, the Court granted. In the Second Amended Complaint, Plaintiffs assert claims against Defendants Titus, Miller, and a Doe Defendant, in their individual capacities, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971). Count I of the Second Amended Complaint alleges that Defendants violated Plaintiffs' substantive Due Process rights in violation of the Due Process Clause by "interfering with Plaintiffs' interests in working on current and future contracts and other [federal] projects." Second Am. Compl. at ¶ 89. Plaintiffs contend that "Defendants' unlawful action of accusing  Hutchinson of a HIPPA violation and a data security breach, which resulted in terminating  HC's contract, was done with the premeditated intent of preventing Plaintiffs from working [as consultants to FOH] and was done maliciously and in bad faith. Such bad faith actions violate Plaintiffs substantive due process rights." Id. at ¶ 91.
In Count II of the Second Amended Complaint, Plaintiffs allege that Defendants violated Plaintiffs' equal protection rights under the Equal Protection Clause by "treat[ing] [Plaintiffs] differently from other similarly-situated contractors in that Defendants are maliciously prosecuting them due to [Hutchinson's] disabilities." Id. at ¶ 95.
In Count III of the Second Amended Complaint, Plaintiffs allege that Defendants violated Plaintiffs' procedural Due Process right to bid and work on contracts for FOH and other federal agencies by "wrongfully accusing  Hutchinson of a HIPPA violation and a data security breach, which resulted in FOH's termination of  HC's contract...." Id. at ¶¶ 100-101.
On July 13, 2014, Defendants Titus and Miller moved, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Second Amended Complaint on two grounds. First, that the Plaintiffs fail to state a claim against Defendant Titus and Miller upon which relief can be granted. Second, that Defendants Titus and Miller are otherwise entitled to qualified immunity. Alternatively, and for the same reasons, Defendants Titus and Miller move for summary judgment on Plaintiffs' claims.
On August 1, 2014, Plaintiffs replied to the Defendants' Motion to Dismiss the Second Amended Complaint, and moved to stay the time to respond to Defendants' Motion for Summary Judgment. On August 6, 2014, the Court agreed first to consider the Motion to Dismiss and stayed the time for Plaintiffs to respond to Defendants' Motion for Summary Judgment. The Court ordered that if the pending Motion to Dismiss is denied, Plaintiffs are ...