Budik v. Ashley

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
EDITH M. BUDIK, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1949 (RBW)
)
RICANTHONY R. ASHLEY, M.D., )
)
)
Defendant. )
____________________________________)

MEMORANDUM OPINION

The pro se plaintiff in this case, Edith M. Budik, filed a complaint against the defendant,

Lieutenant Colonel Ricanthony R. Ashley (“Lt. Col. Ashley”), asserting claims of defamation

and fraud, violations of the Privacy Act, 5 U.S.C. § 552a (2012), and violations of the

Confidentiality of Medical Quality Assurance Records statute, 10 U.S.C. § 1102 (2012). See

Amended Complaint (“Compl.”) ¶¶ 3, 25-26, 30-31, 33-34, 36, Conclusion. Currently before the

Court is the defendant’s Motion to Substitute the United States and Dismiss (“Def.’s Mot.”).

Upon careful consideration of the parties’ submissions, 1 the Court concludes that the defendant’s

motion must be granted.

I. BACKGROUND

The plaintiff was employed as a staff radiologist at Landstuhl Regional Medical Center

(“Landstuhl”) in Landstuhl, Germany, from November 5, 2007, through February 25, 2008.

1
In addition to those filings already identified, the Court considered the following submissions by the parties in
reaching its decision: the Memorandum of Points and Authorities in Support of Defendant’s Motion to Substitute the
United States and Dismiss (“Def.’s Mem.”); the Plaintiff’s Response to Defendant’s Motion to Substitute United
States and Dismiss (“Pl.’s Opp’n”); and the Reply in Support of Defendant’s Motion to Substitute the United States
and Dismiss (“Def.’s Reply”).

1
Compl. ¶ 1. Lt. Col. Ashley was her supervisor. Id. ¶ 2. “As [her] supervisor, [the] [d]efendant

completed a rating . . . of [the] [p]laintiff’s clinical performance on a DA Form 5374.” 2 Id. ¶ 3;

see also id., Exhibit (“Ex.”) 20 (January 2, 2009 Declaration of Lt. Col. Ashley (“Ashley Decl.”))

at 2. Lt. Col. Ashley “initially filled out the evaluation without comments,” however, the

credentialing department told him that “if there were issues with Dr. Budik, they should be

included on the assessment.” Id., Ex. 20 (Ashley Decl.) at 2 (“[The credentialing department]

stressed that I should be sure to document any issues for future consideration on the form.”).

The credentialing department “sent the form back to [Lt. Col. Ashley] and [he] commented that

[the plaintiff] had some issues with some of the clinical staff.” Id., Ex. 20 (Ashley Decl.) at 2.

Specifically, Lt. Col. Ashley added the following comments to the plaintiff’s DA Form 5374:

“Col[.] Budik had some problems with staff interaction which resulted in several complaints and

clinicians going to other radiologists instead of her.” Id., Ex. 20 (Ashley Decl.) at 1 (internal

quotation marks omitted); see also Compl. ¶¶ 18-19.

On May 20, 2008, after the conclusion of the plaintiff’s employment at Landstuhl, she

applied for a position as a neuroradiologist at the Dartmouth-Hitchcock Medical Center

(“Dartmouth”). Id. ¶ 8. On June 25, 2008, Colonel Steven Princiotta (“Col. Princiotta”), the

Deputy Commander of Clinical Services of Landstuhl, telephoned the plaintiff. Id. ¶ 9. During

the telephone call, the “[p]laintiff inquired of the status of the Dartmouth evaluation, and [Col.]

Princiotta stated that he had not yet completed the evaluation [for] Dartmouth but would do so.”

Id. “Five days after the call from [Col.] Princiotta, on June 30, 2008, the credentialing process at

Dartmouth suddenly stopped.” Id. ¶ 11. On or around October 30, 2008, the “[p]laintiff learned

2
The DA Form 5374 is “a military performance assessment form for medical personnel.” Budik v. United States
(Budik II), 949 F. Supp. 2d 14, 18 (D.D.C. 2013), aff’d, Nos. 13-5122, 13-5123, 2013 WL 6222903 (D.C. Cir. Nov.
19, 2013).

2
that [Col.] Princiotta . . . had signed the Dartmouth rating form,” id. ¶ 24 (citing Compl., Ex. 17

(Unredacted Dartmouth Professional Practice Evaluation), and that it contained the same

statement Lt. Col. Ashley had written on the plaintiff’s DA Form 5374, see Compl., Ex. 9

(Partially Redacted Dartmouth Professional Practice Evaluation) at 2-3; Compl. ¶ 24.

“On or about August 14, 2008, [the] [p]laintiff applied [for a position] as a civilian

[d]iagnostic [r]adiologist through Sterling Medical, a civilian-hiring agent for Malcolm Grow

Medical Center . . . at Andrews Air Force Base, Maryland.” Id. ¶ 12. Sterling Medical also

“received an evaluation report directly from [Landstuhl]” that included “the same ‘troublesome’

statement that had been written on the Dartmouth [rating] form.” Id. ¶¶ 16-17.

The plaintiff originally filed suit against Lt. Col. Ashley in the New York State Supreme

Court of Orange County, New York. See Notice of Removal, ECF No. 1. The case was

removed to the United States District Court for the Southern District of New York, id., and then

transferred to this Court on December 3, 2012, see December 3, 2012 Minute Entry. The

complaint asserts claims of fraud, misrepresentation, forgery, and defamation, and additionally

alleges that the defendant violated the Privacy Act and a statute governing the confidentiality of

medical quality assurance records. Compl. ¶¶ 3, 23, 26, 32, 34, 36, 38, Conclusion. The plaintiff

seeks “all available remedies at law and/or equity,” including $4,000,000 in lost wages and

$4,000,000 “for damages to her reputation in the medical community, her career, and loss of

future earnings.” Id. at Conclusion. The defendant now moves to dismiss the plaintiff’s claims

for lack of subject matter jurisdiction and for failure to state a claim for which relief can be

granted. The plaintiff opposes the motion.

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 II. STANDARDS OF REVIEW

A. Treatment of Pro Se Pleadings

The pleadings of pro se parties are to be “liberally construed, and a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations and

quotations omitted). However, even though a pro se complaint must be construed liberally, the

complaint must still “present a claim on which the [C]ourt can grant relief.” Chandler v. Roche,

215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.

Cir. 1981)).

B. Rule 12(b)(1) Motion to Dismiss

When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1),

“the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court

has subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d

172, 176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court

considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in

the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all

inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

However, “the district court may consider materials outside the pleadings in deciding whether to

grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402

F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992)).

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C. Rule 12(b)(6) Motion to Dismiss

A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint “state[s] a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to

dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.

at 556). While the Court must “assume [the] veracity” of any “well-pleaded factual allegations”

in the complaint, conclusory allegations “are not entitled to the assumption of truth.” Id. at 679.

III. LEGAL ANALYSIS

Before reaching the merits of the defendant’s motion to dismiss, the Court will first

address the defendant’s motion to substitute the United States as the defendant.

A. Substitution of the United States as the Proper Defendant for the Plaintiff’s Tort
Claims

The defendant argues that the United States is the proper defendant for the plaintiff’s tort

claims and “moves this Court to substitute the United States as [the] [d]efendant for [the]

[p]laintiff’s claims against Colonel Ashley.” Def.’s Mot. at 1; see also Def.’s Mem. at 1. The

plaintiff opposes the motion. See generally Pl.’s Opp’n.

The Westfall Act, 28 U.S.C. § 2679(d)(1) (2012), which is part of the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, governs certain tort claims procedures where

such claims are made against the United States or agencies or officers thereof. Under the

Westfall Act,

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 [u]pon certification by the Attorney General that the defendant employee was
acting within the scope of his office of employment at the time of the incident out
of which the claim arose, any civil action or proceeding commenced upon such
claim . . . shall be deemed an action brought against the United States . . . and the
United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1). By regulation, the Attorney General has delegated the certifying

authority to “[t]he United States Attorney for the district where the civil action or proceeding is

brought” and the United States Attorney may further delegate the authority to an Assistant

United States Attorney. 28 C.F.R. § 15.4(a) (2013); see Stokes v. Cross, 327 F.3d 1210, 1212

(D.C. Cir. 2003). The certification “does not conclusively establish as correct the substitution of

the United States as defendant in place of the employee. But it does constitute prima facie

evidence that the employee was acting within the scope of employment.” Council on Am.

Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (internal citations and

quotation marks omitted). A plaintiff who challenges the certification “bears the burden of

coming forward with specific facts rebutting the certification.” Id. (quoting Stokes, 327 F.3d at

1214); see also Wurterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009). “Once a court

determines that the federal employee acted within the scope of employment, the case is, inter

alia, restyled as an action against the United States that is governed by the Federal Tort Claims

Act.” Council on Am. Islamic Relations, 444 F.3d at 662.

The defendant submitted with its notice of removal from the New York Supreme Court to

the Southern District of New York a certification signed by Preet Bharara, the United States

Attorney for the Southern District of New York, certifying that Lt. Col. Ashley “was acting

within the scope of his employment” when the events that form the basis of the plaintiff’s claims

arose. See Notice of Removal, Ex. B (December 31, 2009 Certification). Although the plaintiff

opposes the motion, she has failed to allege specific facts to rebut the certification and the

6
presumption that the defendant was acting within the scope of his employment. See generally

Pl.’s Opp’n. Rather, she states in a conclusory fashion that the defendant’s motion to substitute

the United States should be denied because the defendant lacked authority to “spoliate a rating,”

“sequester a rating,” “rate [the] plaintiff for a second time,” and did not have the “authority to

write an adverse evaluation without substantiation of any adverse remarks.” Id. at 7.

Because the plaintiff presents no specific facts to rebut the certification, the Court must

substitute the United States as the defendant for the plaintiff’s tort claims. 3 The Court will

therefore consider the plaintiff’s tort claims as claims brought under the FTCA. See Council on

Am. Islamic Relations, 444 F.3d at 662.

B. The Plaintiff’s FTCA Claims

The defendant argues that the plaintiff’s tort claims should be dismissed for “lack[] of

subject matter jurisdiction because . . . her claims of fraud and defamation are not cognizable

under the FTCA.” Def.’s Mem. at 10. “It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a prerequisite for jurisdiction.” United

States v. Mitchell, 463 U.S. 206, 212 (1983). Although the FTCA is a waiver of the United

3
Even if the plaintiff had presented specific facts, she would have been unable to prevent the substitution of the
United States as the proper defendant for her tort claims. “Scope of employment questions are governed by the law
of the place where the employment relationship exists.” Majano v. United States, 469 F.3d 138, 141 (D.C. Cir.
2006). Here, the employment relationship arguably existed in Germany, where Lt. Col. Ashley supervised the
plaintiff. If the employment existed there, however, then the FTCA would bar the plaintiff’s tort claims. See 28
U.S.C. § 2680(k) (providing that the FTCA does not apply to “[a]ny claim arising in a foreign country”). If, on the
other hand, the relationship existed in New Hampshire, where the alleged defamatory statements were received by
Dartmouth, then the law of New Hampshire would apply. And under that law, Lt. Col. Ashley would have been
acting within the scope of his employment if adding the comments to the plaintiff’s DA Form 5374 was “authorized
by the employer or incidental to authorized duties; if it was done within the time and space limits of employment;
and if it was actuated at least in part by a purpose to serve an objective of the employer.” Aversa v. United States,
99 F.3d 1200, 1210 (1st Cir. 1996) (construing New Hampshire law). The plaintiff’s complaint and the documents
submitted with it establish that Lt. Col. Ashley was her supervisor while she was at Landstuhl and was generally
authorized to review her work, Compl. ¶ 3; see also Def.’s Reply at 5 (citing Army Reg. 40-68 ¶ 5-1(b) (2009)
(“Immediate supervisors . . . are responsible for assessing . . . staff competency.”)), that he added the comments to
the DA Form 5374 shortly after she left Landstuhl, and that the comments were added at the request of the
Landstuhl credentialing department, see Compl., Ex. 20 (Ashley Decl.) at 2. Thus, Lt. Col. Ashley was acting
within the scope of his employment under New Hampshire law.

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States’ sovereign immunity, there are instances in which the United States retains its immunity.

See Marcus v. Geithner, 813 F. Supp. 2d 11, 16 (D.D.C. 2011) (citing Int’l Eng’g Co. v.

Richardson, 512 F.2d 573, 577 (D.C. Cir. 1975)). And, “any claim arising out of . . . libel,

slander, misrepresentation, [or] deceit” is not actionable under the FTCA. 28 U.S.C. § 2680(h);

see also United States v. Neustadt, 366 U.S. 696, 702 (1961); Scanwell Labs., Inc. v. Thomas,

521 F.2d 941, 947-48 (D.C. Cir. 1975). Further, the FTCA does not waive the United States’

immunity for claims of defamation. Kugel v. United States, 947 F.2d 1504, 1506 (D.C. Cir.

1991).

Here, the plaintiff asserts claims of “misrepresentation, fraud, and defamation.” Compl.

at Conclusion; see also Pl.’s Opp’n at 4 (alleging that certain documents contained “false

representation[s] of [the] plaintiff”). Because all of the plaintiff’s tort claims stem from the

allegedly false statements made by Lt. Col. Ashley, she is essentially asserting claims of “libel

slander, misrepresentation, [or] deceit,” § 2680(h), over which this Court lacks subject matter

jurisdiction. Accordingly, the Court must dismiss the plaintiff’s claims of “misrepresentation,

fraud, and defamation.” Compl. ¶¶ 17-19, 20, 23-26, 33-35.

Even if the FTCA did not bar the plaintiff’s tort claims, the Court would nonetheless lack

jurisdiction over those claims. “The FTCA ‘require[s] the plaintiff[] to file an administrative

claim with either the Department of Defense . . . or the appropriate military department before

bringing suit[]’ . . . . [and] ‘[t]he failure to exhaust administrative remedies [is] jurisdictional.’”

Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C. Cir. 2011) (citations omitted). The “[United States

Army Claims Service], a command and component of the Office of [The Judge Advocate

General], is the agency through which the [Secretary of the Army] and [The Judge Advocate

General] discharge their responsibilities for the administrative settlement of claims worldwide . .

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. .” 32 C.F.R. § 536.3(c). The Department of the Army’s regulations provide that “[c]laims

cognizable under [the FTCA] . . . are processed and settled under” Part 536 of Title 32 of the

Code of Federal Regulations. See 32 C.F.R. § 536.2(a)(iv) (2007). Part 536, among other

requirements, directs claimants to submit “[a] claim [in] a writing that contains a sum certain for

each claimant and that is signed by each claimant.” 32 C.F.R. § 536.26(a).

Here, the plaintiff did not file an appropriate complaint with the United States Army

Claims Service. Although the plaintiff filed a complaint with the Department of the Army Board

for Correction of Military Records seeking the “removal of a[n] . . . altered DA Form 5374 . . .

from her personnel file,” Compl., Ex. 23 (August 4, 2009 Letter, Department of the Army Board

for Correction of Military Records, Denial of Application) ¶ 1, there is no indication in her

complaint or the exhibits submitted with it that she ever filed an administrative claim with the

United States Army Claims Service. Indeed, this Court previously credited a declaration

submitted by the United States and relating to these same claims asserted in this case, which

stated that “no administrative claim was filed by [the plaintiff] under [the FTCA].” Budik v.

Dartmouth-Hitchcock Med. Ctr. (Budik I), 937 F. Supp. 2d 5, 16 (D.D.C. 2013), aff’d, No. 13-

5121, 2013 WL 6222951 (D.C. Cir. Nov. 19, 2013). Because the plaintiff has not demonstrated

that she filed an administrative claim seeking relief for her tort claims, she has not established

that she exhausted her administrative remedies as required by statute, thereby depriving this

Court of jurisdiction over those claims. 28 U.S.C. § 2675.

In sum, because the plaintiff’s claims of misrepresentation, fraud, and defamation are

barred by the FTCA due to the United States’ sovereign immunity, and moreover because she

failed to exhaust her administrative remedies with respect to those claims, the Court lacks subject

matter jurisdiction to entertain them. The Court must therefore dismiss the plaintiff’s tort claims.

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C. The Plaintiff’s Privacy Act Claims

The defendant argues, Def.’s Mem. at 14-15, that the plaintiff’s claim under the Privacy

Act is barred by issue preclusion in light of this Court’s March 7, 2013 Memorandum Opinion

and Order dismissing a related action filed by the same plaintiff. See Budik v. United States

(Budik II), 949 F. Supp. 2d 14, 28-30 (D.D.C. 2013), aff’d, Nos. 13-5122, 13-5123, 2013 WL

6222903 (D.C. Cir. Nov. 19, 2013). “Res judicata is an affirmative defense . . . [that] is []

properly brought in a pre-answer Rule 12(b)(6) motion.” Hemphill v. Kimberly-Clark Corp.,

530 F. Supp. 2d 108, 111 (D.D.C. 2008). Res judicata encompasses two doctrines governing

“[t]he preclusive effect of a judgment”: “claim preclusion and issue preclusion.” Taylor v.

Sturgell, 553 U.S. 880, 892 (2008). The doctrine of “[i]ssue preclusion . . . bars ‘successive

litigation of an issue of fact or law actually litigated and resolved in a valid court determination

essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Id.

(quoting New Hampshire v. Maine, 532 U.S. 742,748-49 (2001)). “By ‘preclud[ing] parties

from contesting matters that they have had a full and fair opportunity to litigate,’ [this] . . .

doctrine[] protect[s] against ‘the expense and vexation attending multiple lawsuits, conserv[es]

judicial resources, and foste[rs] reliance on judicial action by minimizing the possibility of

inconsistent decisions.’” Id. (quoting Montana v. United States, 440 U.S. 147, 153-54 (1979))

(some alterations in original). In determining whether issue preclusion exists, a court may take

judicial notice of “all relevant facts [that] are shown by the court’s own records,” as well as

“public records from other proceedings.” Hemphill, 530 F. Supp. 2d at 111 (citing Covad

Commc’ns v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)) (internal quotation marks

omitted).

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 Under the doctrine of issue preclusion, a plaintiff will be barred from asserting a cause of

action if

the same issue . . . being raised [was] contested by the parties and submitted for
judicial determination in the prior case, the issue [was] actually and necessarily
determined by a court of competent jurisdiction in that prior case, [and]
preclusion . . . must not work a basic unfairness to the party bound by the first
determination.

Martin v. DOJ, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha Corp. of Am. v. United

States, 961 F.2d 245, 254 (D.C. Cir. 1992)). A basic unfairness exists if “the party to be bound

lacked an incentive to litigate [the issue] in the first [cause of action], especially in comparison to

the stakes of the second [cause of action].” Otherson v. DOJ, Immigration & Naturalization

Serv., 711 F.2d 267, 273 (D.C. Cir. 1983) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill.

Found., 402 U.S. 313, 333 (1971)). When applying issue preclusion, “it is the prior judgment

that matters, not the court’s opinion explicating the judgment.” Bailey v. DiMario, 925 F. Supp.

801, 810 (D.D.C. 1995) (quoting Yamaha, 961 F.2d at 254) (internal quotation marks omitted).

Here, the plaintiff alleges that the “DA [Form] 5374 does not fall under the common use

rule” of § 552a of the Privacy Act, “as this form is protected from disclosure and not releasable

by [the] [p]laintiff’s consent.” Compl. ¶ 36. These are the same issues of law that were raised,

litigated, and decided in one of the plaintiff’s prior cases. See Budik II, 949 F. Supp. 2d at 18-

21; 28-30 (holding that the defendant did not violate the Privacy Act because the disclosure “was

compatible with the purpose for which the information was collected” and that the defendant

satisfied pre-disclosure requirements of the Act). Moreover, applying the doctrine of issue

preclusion will not “work a basic unfairness” against the plaintiff because she had an incentive to

litigate this issue in the first cause of action, in which she also argued that the release of her DA

Form 5374 was detrimental to her ability to obtain employment. Id. at 19-21. Again, here, the

11
plaintiff makes legal allegations identical to those made in the earlier cause of action, namely

that the disclosure of the DA Form 5374 or information contained therein to a medical institution

violates the Privacy Act. Compl. ¶ 25. Because the plaintiff made the same allegations and

identified the same types of employment opportunities that were lost because of the negative

evaluations, she had an incentive to litigate this issue in Budik II. Accordingly, the Court finds

that the plaintiff’s Privacy Act claim is barred by issue preclusion and therefore dismisses that

claim. 4

D. The Plaintiff’s Confidentiality of Medical Quality Assurance Records Claim

The defendant argues that it did not violate the Confidentiality of Medical Quality

Assurance Records statute, 10 U.S.C. § 1102. Def.’s Mem. at 18-19; Compl. ¶ 3. Specifically,

the defendant argues that the release of the plaintiff’s DA Form 5374 was permissible under

§ 1102(c)(1)(D), and that, in any event, the statute does not provide a private right of action

because the United States has not waived its sovereign immunity under the statute. Def.’s Mem.

at 19-20. Although the plaintiff’s claims are similar to the claims that she filed in a prior case,

Budik II, 949 F. Supp. 2d at 19-20, 26-28, the defendant does not argue that the plaintiff’s

§ 1102 claim is barred by the doctrine of res judicata. However, the Court can consider the

applicability of the doctrine sua sponte, see Stanton v. District of Columbia Court of Appeals,

127 F.3d 72, 77 (D.C. Cir. 1997) (“As res judicata belongs to courts as well as to litigants, even a
4
The plaintiff also asserts that the Army Review Board, presumably the Army Board for the Correction of Military
Records (“Army Board”), Def.’s Reply at 9 n.9, violated the Privacy Act when it “disclosed injurious information
that they knew or should have known was unsubstantiated.” Pl.’s Opp’n at 5. The plaintiff further alleges that the
Army Board failed to remove the negative comment from her file once it realized that the comment was
unsubstantiated and that the defendant had released the information in the DA Form 5374 in bad faith. Id. at 6.
These allegations have no bearing on the plaintiff’s Privacy Act claim because the Army Board is not a party to this
case, and she does not seek relief with respect to actions taken by that entity in her complaint. In any event, the
defendant is correct that the Army Board “determined that the performance evaluation containing the adverse
statement was not in [the plaintiff’s] personnel file so there was no basis to change her records.” Def.’s Reply at 9
n.9 (citing Compl., Ex. 23 (July 30, 2009 Army Board for Correction of Military Records, Record of Proceedings) at
4, 8).

12
party’s forfeiture of the right to assert it . . . does not destroy a court’s ability to consider the

issue sua sponte.”), which the Court will do.

Here, the plaintiff alleges that the transmission of her DA Form 5374 to Sterling Medical,

Malcolm Grow, and Dartmouth constituted a violation of 10 U.S.C. § 1102. See Compl. ¶¶ 24-

26; see also Pl.’s Opp’n at 5-6. As noted above, this is the same issue of law that was raised,

litigated, and decided in Budik II. See 949 F. Supp. 2d at 26-28 (discussing the application of §

1102 to the disclosure the DA Form 5374 and finding that the disclosure was permissible).

Again, a plaintiff is precluded from asserting a cause of action where the same issue was

previously “contested by the parties and submitted for judicial determination in the prior case,

the issue [was] actually and necessarily determined by a court of competent jurisdiction in that

prior case,” and applying the doctrine will not result in unfairness to the party bound by the

previous ruling. See Martin, 488 F.3d at 454 (D.C. Cir. 2007) (citation omitted). As is the case

with the plaintiff’s Privacy Act claim, she had the opportunity in Budik II to litigate the issue of

disclosure under § 1102, and thus no basic unfairness results from applying the doctrine of res

judicata in this case. In fact, this is exactly a situation where the doctrine should be invoked.

See Taylor, 553 U.S. 880, 892 (“By ‘preclud[ing] parties from contesting matters that they have

had a full and fair opportunity to litigate,’” the doctrine of res judicata “protect[s] against ‘the

expense and vexation attending multiple lawsuits, conserv[es] judicial resources, and foste[rs]

reliance on judicial action by minimizing the possibility of inconsistent decisions.’” (citation

omitted)). Accordingly, the Court finds that the plaintiff’s 10 U.S.C. § 1102 claim is barred by

the issue preclusion component of res judicata and therefore the claim is dismissed. 5

5
To the extent that the plaintiff attempts to argue that the defendant acted in bad faith in releasing the form, see Pl.’s
Opp’n at 5, the Court notes that § 1102 is a procedural statute that provides no remedy for a bad faith disclosure.
(continued . . .)

13
E. The Plaintiff’s Request for Correction of Her Military Record

In her opposition to the defendant’s motion to dismiss, the plaintiff, for the first time in

this case, asks the Court to “disturb[] the unfair, arbitrary and capricious ruling by the Army

Board [for Correction of Military Records (“Army Board”)] . . . to not strike the unsubstantiated

comments or to not remove the entire document from [her] record.” Pl.’s Opp’n at 4; see also id.

at 7 (“[T]he Court should disturb the decision of the [Army Board] . . . not to strike or entirely

remove the [DA Form 5374]” from her record). The defendant correctly notes in response,

Def.’s Reply at 12, that the plaintiff failed to request that the Court review any Army Board

decisions in either her complaint or her amended complaint.

It is a well-established principle of law in this Circuit that a plaintiff may not amend her

complaint by making new allegations in her opposition brief. See Larson v. Northrop Corp., 21

F.3d 1164, 1173-74 (D.C. Cir. 1994) (affirming district court’s grant of summary judgment in

favor of defendant where plaintiff “failed to plead” a new cause of action, “raised the issue for

the first time in his opposition to . . . [the defendant’s] motion,” and had not adequately pleaded

the new cause of action in his complaint). Furthermore, the Court cannot envision how it could

order the Army Board to amend the plaintiff’s military record to remove the statements at issue

given the Board’s “determin[ation] that the performance evaluation containing the adverse

statement was not in [the plaintiff’s] personnel file so there was no basis to change her records.”

Compl., Ex. 23 (July 30, 2009 Army Board for Correction of Military Records, Record of

Proceedings) at 4, 8. Finally, the plaintiff’s claim, even if submitted as a proper amendment of

her complaint, would be barred by the doctrine of res judicata. See Budik II, 949 F. Supp. 2d at

(. . . continued)
Rather, the statute provides a remedy for willful disclosure only when a disclosure is made “other than as provided”
in the statute. See 10 U.S.C. § 1102(k).

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30-33 (dismissing the plaintiff’s claim for correction of her military record), aff’d, 2013 WL

6222903, at *1 (“Appellant has not shown that the refusal of the Army Board for the Correction

of Military Records to remove an unfavorable comment was arbitrary, capricious, contrary to

law, or unsupported by substantial evidence.”). The Court therefore denies the plaintiff’s

requests to “disturb the decision” of the Army Board.

IV. CONCLUSION

For the foregoing reasons, the Court will grant the defendant’s Motion to Substitute the

United States and Dismiss. 6

SO ORDERED this 14th day of April, 2014.

REGGIE B. WALTON
United States District Judge

6
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

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