FAA Contractor Off Hook in Worker Privacy Suit

March 20, 2013 – In The News

A New Jersey federal judge ruled Tuesday that government contractor Magellan Health Services Inc. didn't violate the federal Right to Privacy Act when it informed the Federal Aviation Administration about an FAA employee's alleged drinking problems, saying the act applies only to federal agencies.

U.S. District Judge Joseph Rodriguez tossed Magellan from Robert Repetto's lawsuit, saying the company's status as a FAA contractor isn't enough to bring it under the civil remedies provision of the Right to Privacy Act.

“The fact that federal agencies are the exclusive subjects of every statutory provision strongly suggests that Congress only intended the Privacy Act to apply to such agencies and not to private individuals, and the case law interpreting the scope of the civil remedies provision is consistent with this plain reading analysis,” Judge Rodriguez said.

The FAA requires its air traffic control specialists to receive a medical clearance before working the job. Repetto, who was hired by the FAA in 2007, lost his medical clearance in 2010 after he was charged with driving under the influence, according to Repetto's July complaint.

Repetto's DUI charges were eventually dropped on the merits, but the FAA refused to reinstate Repetto's medical clearance, even after Repetto gave copies of his not guilty verdict, police report and Breathalyzer results to his superiors, the complaint says.

The agency ordered Repetto to undergo three different substance abuse evaluations in order to determine whether it should restore his clearance, and the third evaluation was conducted through the agency's Employee Assistance Program, a work-based program that provides confidential assessments and short-term counseling to employees who have personal or work-related problems. The program is administered by Magellan, according to the complaint.

Repetto contends that a Magellan manager who did not interview or clinically evaluate him told his Magellan counselor to diagnose him with “psychoactive substance abuse” before Repetto even met with the counselor. The counselor found that Repetto did not have an alcohol abuse problem, but when the manager wrote a report to the FAA, she diagnosed Repetto with alcohol abuse and recommended a treatment plan.

Repetto asked the FAA to remove his Breathalyzer results and alleged alcohol abuse diagnosis from his medical record. But when the agency refused, he sued Magellan, the manager and the FAA, alleging violations of the federal Right to Privacy Act.

But Judge Rodriguez said the the Act exclusively mentions federal agencies, which indicates that government agencies, not private entities, are the intended targets of the law. Judge Rodriguez said Repetto failed to show that Magellan, a private health care managing company and FAA contractor, is an agency that falls under the civil action provision of the act.

And although government contractors are subject to some provisions of the Right to Privacy Act, Judge Rodriguez noted that those provisions don't include civil remedies, which Repetto sought.

Attorneys for both parties did not immediately respond to requests for comment.

Repetto is represented by James C. DeZao.

Magellan Health Services is represented by Catherine Thea Barbieri of Fox Rothschild LLP.

The case is Robert Repetto v. Magellan Health Services/EAP et al., case number 1:12-cv-04108, in the U.S. District Court for the District of New Jersey.