Ashbourne v. Hansberry

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
ANICA ASHBOURNE, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-752 (EGS)
)
DONNA HANSBERRY, et. al. )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER

Plaintiff Anica Ashbourne (“Ms. Ashbourne”), an attorney

proceeding pro se, brings this action against the U.S. Treasury

Department (“Treasury”) Secretary in his official capacity and

three Treasury employees—Donna Hansberry, Donna Prestia, and

Thomas Collins—in their official and individual capacities. Ms.

Ashbourne also sues the U.S. Department of Homeland Security

(“DHS”) Secretary in his official capacity and two DHS

employees—James Trommatter and Thomas Harker—in their individual

and official capacities. Ms. Ashbourne alleges that the

defendants violated the Privacy Act, 5 U.S.C. § 552a, et seq.,

and denied her due process in violation of the Fifth Amendment. 1

Pending before the Court is (1) defendants’ motion to dismiss

1 Ms. Ashbourne also purports to sue defendants under the
Fourteenth Amendment. However, the Fourteenth Amendment applies
only to states and not to the federal government. See Bolling v.
Sharpe, 347 U.S. 497, 499-500 (1954).
1
Ms. Ashbourne’s complaint, see Defs.’ Mot. to Dismiss, ECF No.

8; 2 (2) Ms. Ashbourne’s motion for an extension of time to serve

the individual defendants and use alternative means of service

of process, see Pl.’s Service Mot., ECF No. 13; and (3) Ms.

Ashbourne’s motion to stay the case, see Pl.’s Mot. to Stay, ECF

No. 2. Upon consideration of the motions, the responses, the

replies, and the applicable law, (1) the defendants’ motion to

dismiss is GRANTED in PART and DENIED in PART; (2) Ms.

Ashbourne’s service motion is DENIED; and (3) Ms. Ashbourne’s

motion to stay is GRANTED, albeit on different grounds.

I. Ms. Ashbourne’s Claims Against the Treasury Secretary and
the Individual Treasury Employees are Dismissed

Ms. Ashbourne sues the Treasury defendants in their official

and individual capacities for Privacy Act and due process

violations, alleging they “falsified [her] personnel records and

then used those records to publicly terminate [her] amidst

stigmatizing charges of dishonesty.” Compl., ECF No. 1 ¶¶ 2-4,

2 Government counsel does not represent three of the individual
defendants—Donna Prestia, Thomas Harker, and James Trommatter—in
their individual capacities because these individuals have not
been served and have not sought legal representation from
government counsel. See Defs.’ Mot. to Dismiss, ECF No. 8 at 1,
n.1. Government counsel “advises that the claims against them
should be dismissed for reasons also applicable to the other
individual defendants and present[s its arguments on behalf of
all defendants] as a statement of interest.” Id. (citing 28
U.S.C. § 517 (“[A]ny officer of the Department of Justice, may
be sent to . . . any . . . district in the United States to
attend to the interests of the United States in a suit pending
in a court of the United States.”))
2
7. The defendants move to dismiss these claims against as barred

under the doctrine of res judicata. 3 See Defs.’ Mot. to Dismiss,

ECF No. 8 at 14-15. 4 In Ashbourne v. Hansberry (“Ashbourne I”),

Ms. Ashbourne sued the same defendants for allegedly violating

the Privacy Act and the Fifth Amendment. 5 Civ. No. 12-1153-BAH,

2015 WL 11303198 at *5 n. 6 (D.D.C. Nov. 24, 2015). Chief Judge

Howell dismissed Ms. Ashbourne’s due process claim and granted

defendants’ motion for summary judgment as to the Privacy Act

claims. Id., aff’d 703 Fed. Appx. 3 (Mem.) (D.C. Cir. 2017).

“The preclusive effect of a judgment is defined by claim

preclusion and issue preclusion, which are collectively referred

to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892

(2008). “Under claim preclusion, ‘a final judgment on the merits

of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in [a

prior] action.’” Sheppard v. District of Columbia, 791 F. Supp.

2d 1, 4 (D.D.C. 2011) (quoting Drake v. FAA, 291 F.3d 59, 66

3 Defendants make several other arguments in support of their
motion to dismiss, although it is not altogether clear whether
these arguments pertain to all of the defendants or just the DHS
defendants. See generally, Defs.’ Mot. to Dismiss, ECF No. 8.
Regardless, the Court need not reach these additional arguments.
4 When citing electronic filings throughout this opinion, the

Court cites to the ECF page number, not the page number of the
filed document.
5 Ms. Ashbourne brought her due process claim pursuant to 42

U.S.C. § 1983. See Ashbourne I, Civ. No. 12-1153-BAH, 2015 WL
11303198 at *5 n. 6 (D.D.C. Nov. 24, 2015).
3
(D.C. Cir. 2002))(additional citation omitted). To determine

whether the claims are barred by res judicata, the Court

considers “if there has been prior litigation (1) involving the

same claims or cause of action, (2) between the same parties or

their privies, and (3) there has been a final, valid judgment on

the merits, (4) by a court of competent jurisdiction.” Nat. Res.

Def. Council v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008)

(quotation and citation omitted).

In Ashbourne I, Ms. Ashbourne sued the Treasury Department,

Ms. Hansberry, Ms. Prestia, and Mr. Collins for due process and

Privacy Act violations, alleging that the defendants (1) failed

to maintain accurate records, (2) improperly disclosed her

protected records, and (3)damaged her reputation by making

“stigmatizing charges [that] were false,” in violation of due

process. See Consolidated Am. Compl., ECF No. 49 (Ashbourne I,

12-cv-1153). In this case, Ms. Ashbourne alleges that the same

defendants “falsified [her] personnel records and then used

those records to publicly terminate [her] amidst stigmatizing

charges of dishonesty.” Compl., ECF No. 1 ¶¶ 2-4, 7. Her present

case is therefore barred against the Treasury defendants because

it involves the same defendants, implicates the same underlying

facts, and encompasses the same Privacy Act and due process

claims that were previously litigated in Ashbourne I. See 2015

WL 11303198; see also Ashbourne v. Hansberry (“Ashbourne II”),

4
245 F. Supp. 3d 99, 103-06 (D.D.C. 2017)(dismissing as barred by

res judicata Ms. Ashbourne’s Title VII claims against the same

defendants)(appeal pending). 6

Ms. Ashbourne’s argument to the contrary, that res judicata

does not bar her claims against the Treasury defendants because

she added new DHS defendants, is unavailing. See Pl.’s Opp’n

Mot. to Dismiss, ECF No. 11 at 6-7. Rather than alleging new

claims against the Treasury defendants, Ms. Ashbourne reasserts

the same claims that were already litigated in Ashbourne I.

Compare Compl., ECF No. 1, with Consolidated Am. Compl., ECF No.

49 (Ashbourne I, 12-cv-1153). Adding three defendants to her

complaint does not entitle her to re-litigate the same, fully

adjudicated claims against the Treasury defendants. See Sparrow

v. Reynolds, 646 F. Supp. 834, 838 (D.D.C. 1986) (dismissing

plaintiff’s claim as barred by res judicata despite the addition

of at least one new defendant). Ms. Ashbourne’s claims against

the Treasury Secretary and individual defendants Donna

Hansberry, Donna Prestia, and Thomas Collins in their individual

and official capacities are therefore DISMISSED WITH PREJUDICE.

6 See Case No. 17-5136 (oral argument scheduled for April 30,
2018).
5
 II. Ms. Ashbourne’s Claims Against the DHS Employees in Their
Individual Capacities are Dismissed

Ms. Ashbourne sues the DHS employees—Mr. Trommatter and Mr.

Harker—in their individual capacities for violations of due

process and the Privacy Act. Compl., ECF No. 1 ¶¶ 5, 6. The

defendants move to dismiss these claims pursuant to (1) Federal

Rule of Civil Procedure 12(b)(2) for lack of personal

jurisdiction; (2) Federal Rule of Civil Procedure 12(b)(4) for

insufficient process; (3) and Federal Rule of Civil Procedure

12(b)(5) for insufficient service of process. Defs.’ Mot. to

Dismiss, ECF No. 8 at 12. Defendants also move to dismiss the

Privacy Act claims because the Privacy Act does not authorize

claims against individuals. Id. at 15-16.

Ms. Ashbourne does not dispute that she has not served Mr.

Trommatter and Mr. Harker in their individual capacities. See

generally Pl.’s Opp’n, ECF No. 11 at 8-9. In a separate motion,

She moves for an extension of time to serve them, stating that

she attempted service by mail to their home addresses, but that

the mail was marked “return to sender” and “unable to forward.”

See Pl.’s Service Mot., ECF No. 13 at 1-2. Ms. Ashbourne also

requests that the Court order government counsel to accept

service on behalf of the individual defendants. See id. at 2.

Federal Rule of Civil Procedure 4(i)(3) requires that

government employees sued in their individual capacities be

6
served as individuals within 90 days after the complaint is

filed. See Davison v. U.S. Dept. of State, 113 F. Supp. 3d 183,

194 (D.D.C. 2015)(“To serve a U.S. officer or employee in his or

her individual capacity . . . ‘a party [must] serve the United

States and also serve the officer or employee.’”)(quoting Fed.

R. Civ. P. 4(i)(3)); Fed. R. Civ. P. 4(m). A Court must extend

the plaintiff’s time to serve if she can establish good cause

for failure to serve within the 90 day timeframe. Fed. R. Civ.

P. 4(m); Battle v. District of Columbia, 21 F. Supp. 3d 42, 44-

45 (D.D.C. 2014)(“A plaintiff bears a heavy burden when

attempting to establish good cause for failure to effect service

of process . . . . good cause means a valid reason for delay.”)

(internal citations and quotations omitted). If the employee is

not timely served, the Court “must dismiss the action without

prejudice . . . or order the defendant served within a specific

period of time.” Fed. R. Civ. P. 4(m).

The complaint in this case was filed on April 24, 2017. See

Compl., ECF No. 1. Ms. Ashbourne filed her motion to extend her

time to effect service 162 days later, 72 days after service was

due. See Pl.’s Service Mot., ECF No. 13 (filed October 3, 2017).

Far from providing a “valid reason” for her inability to timely

serve Mr. Trommatter and Mr. Harker, Ms. Ashbourne provides no

reason for the delay. See Battle, 21 F. Supp. 3d at 44-45. As

such, Ms. Ashbourne has not met her burden to demonstrate good

7
cause. Mann v. Castiel, 681 F.3d 368, 375 (D.C. Cir.

2012)(affirming denial of plaintiffs’ motion to extend time to

effect service because plaintiffs did not provide a “valid

reason” to do so). Because there is no ground for the Court to

grant Ms. Ashbourne’s request and it is undisputed that these

individuals have not been served, the Court DISMISSES WITHOUT

PREJUDICE the due process claims against James Trommatter and

Thomas Harker in their individual capacities. 7

Regarding Ms. Ashbourne’s request for alternative service, the

“elementary law of agency” is “clear” that “any agent who

accepts service must be shown to have been authorized to bind

his principal by the acceptance of process.” Schwarz v. Thomas,

222 F.2d 305, 308 (D.C. Cir. 1955). For the Court to grant the

motion, the individual defendants must authorize government

counsel to accept service on their behalf. They have not done

so. See generally Defs.’ Opp’n to Service Mot., ECF No. 15.

Therefore, the Court DENIES this request.

Despite Ms. Ashbourne’s failure to properly serve these two

defendants, the Court will consider the defendants’ argument

that the Privacy Act claims should be dismissed against Mr.

Trommatter and Mr. Harker in their individual capacities in the

7 Because the Court dismissed these claims against these
defendants in their individual capacities pursuant to FRCP 4(m),
the Court need not reach the defendants’ other arguments. See
Defs.’ Mot. to Dismiss, ECF No. 8 at 12-22.
8
interest of judicial economy. 8 The defendants argue that the

Privacy Act does not authorize suits against individual

defendants. See Defs.’ Mot. to Dismiss, ECF No. 8 at 15-16.

Ms. Ashbourne argues that her claim should proceed against the

individual DHS defendants because she seeks criminal penalties

and the Privacy Act provides for criminal penalties against

individuals. See Pl.’s Opp’n Mot. to Dismiss, ECF No. 11 at 7-8

(citing 5 U.S.C. § 552a(i)).

The law is clear that “no [individual] cause of action exists”

under the Privacy Act. Martinez v. Bureau of Prisons, 444 F.3d

620, 624 (D.C. Cir. 2006)(citing 5 U.S.C. § 552(a)(4)(B)

(authorizing suit against an “agency”); 5 U.S.C. § 552a(g)(1)

(same)). “Only agencies . . . are subject to the . . . Privacy

Act.” Tyree v. Hope Vill., Inc., 677 F. Supp. 2d 109, 110

(D.D.C. 2009). Although section 552a(i) of the Privacy Act does

provide criminal penalties for federal government employees who

willfully violate certain aspects of the statute, Ms. Ashbourne

cannot initiate criminal proceedings against Mr. Trommatter and

8“[T]he interest of judicial economy is served by reaching the
merits of [Ms. Ashbourne’s] claims against [individual
defendants Mr. Trommatter and Mr. Harker] at this time, rather
than delaying the inevitable by allowing [Ms. Ashbourne] to file
another lawsuit against those Defendants containing the same
meritless claims.” McManus v. District of Columbia, 530 F. Supp.
2d 46, 68 (D.D.C. 2007)(citing cf. Simpkins v. District of
Columbia, 108 F.3d 366, 369–70 (D.C. Cir. 1997)(affirming
district court's dismissal on the merits, notwithstanding the
plaintiff’s failure to properly serve)).
9
Mr. Harker by filing a civil suit. See Unt v. Aerospace Corp.,

765 F.2d 1440, 1448 (9th Cir. 1985) (concluding that plaintiff

cannot state a claim under section 552a(i) because it “generates

no civil right of action”); Lapin v. Taylor, 475 F. Supp. 446,

448 (D. Haw. 1979) (concluding that the criminal penalties

section of the Privacy Act is “solely a penal provision and

creates no private right of action”); Hills v. Liberty Mut.

Ins., Civ. No. 14-328S, 2015 WL 1243337 at *2 (W.D.N.Y. March

18, 2015)(finding that section 552a(i) does not create a private

right of action against individuals). Therefore, because Ms.

Ashbourne cannot initiate a criminal suit and the Privacy Act

does not otherwise allow claims against individuals, the Privacy

Act claims against Mr. Trommatter and Mr. Harker in their

individual capacities are DISMISSED WITH PREJUDICE.

III. Ms. Ashbourne Stated a Privacy Act Claim Against the DHS
Defendants in Their Official Capacities

The defendants move to dismiss Ms. Ashbourne’s Privacy Act

claims against the DHS defendants in their official capacities

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim. Defs.’ Mot. to Dismiss, ECF No. 8 at 23-30.

To withstand a motion to dismiss, 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) (internal quotations and citations

10
omitted). A claim is facially plausible when the facts pled in

the complaint allow the court to “draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id.

The standard does not amount to a “probability requirement,” but

it does require more than a “sheer possibility that a defendant

has acted unlawfully.” Id. In making this determination, “a

judge must accept as true all of the factual allegations

contained in the complaint.” Atherton v. D.C. Office of the

Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quotations and

citations omitted). The court must also give the plaintiff the

“benefit of all inferences that can be derived from the facts

alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994). As applicable here, a “pro se complaint is entitled

to liberal construction.” Washington v. Geren, 675 F. Supp. 2d

26, 31 (D.D.C. 2009) (citing Haines v. Kerner, 404 U.S. 519, 520

(1972)).

The Privacy Act is “a comprehensive and detailed set of

requirements for the management of confidential records held by

Executive Branch agencies.” FAA v. Cooper, 566 U.S. 284, 287

(2012). The Act provides several “avenues for individuals to

seek civil remedies for any violations.” Ashbourne I, 2015 WL

11303198 at *6 (citing Doe v. Chao, 540 U.S. 614, 618 (2004)).

The two such avenues relevant to Ms. Ashbourne’s claims are

subsections (g)(1)(C) and (g)(1)(D). See Compl., ECF No. 1 ¶¶

11
24-36. “Subsection (g)(1)(C) describes an agency’s failure to

maintain an adequate record on an individual, when the result is

a determination ‘adverse’ to that person.” Doe v. Chao, 540 U.S.

at 619. “Subsection (g)(1)(D) speaks of a violation when someone

suffers an ‘adverse effect’ from any other failure to hew to the

terms of the Act.” Id.

To state a claim under subsection (g)(1)(C), a plaintiff must

show that: (1) she has been “aggrieved by an adverse

determination”; (2) the agency “failed to maintain [her] records

with the degree of accuracy necessary to assure fairness in the

determination”; (3) the agency's “reliance on the inaccurate

records was the proximate cause of the adverse determination”;

and (4) the agency “acted intentionally or willfully in failing

to maintain accurate records.” Chambers v. U.S. Dep't of

Interior, 568 F.3d 998, 1006 (D.C. Cir. 2009)(quotations and

citations omitted). Ms. Ashbourne’s complaint pleads all four.

First, she alleges that the defendants deemed her unsuitable

for federal employment, “publicly terminat[ing] her.” Compl.,

ECF No. 1 ¶¶ 5, 6, 8, 20, 21. Second, she alleges that the

defendants failed to maintain accurate records by “intentionally

and deliberately fail[ing] to verify facts” and “obtain[ing]

[false] information from Donna Hansberry, Donna Prestia, and

Thomas Collins.” Id. ¶¶ 24-36. Third, Ms. Ashbourne alleges that

the defendants “intentionally and deliberately relied on

12
falsified records,” when they terminated her, knowing the

records were “outdated, inaccurate, and unreliable.” Id.

Finally, Ms. Ashbourne pled that the defendants failed to

maintain her records “intentionally and deliberately.” Id.

Accepting Ms. Ashbourne’s factual allegations as true and

drawing all reasonable inferences in her favor, it is plausible

that the DHS defendants are liable for a violation of this

section of the Privacy Act. See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009).

Ms. Ashbourne also stated an unlawful disclosure claim

pursuant subsection (g)(1)(D). To state an unlawful disclosure

claim, a plaintiff must show that “(1) the disclosed information

is a ‘record’ contained within a ‘system of records'; (2) the

agency improperly disclosed the information; (3) the disclosure

was willful or intentional; and (4) the disclosure adversely

affected the plaintiff.” Feldman v. CIA, 797 F. Supp. 2d 29, 38

(D.D.C. 2011) (quotations and citations omitted).

First, Ms. Ashbourne adequately pled that the disclosed

information was her “personnel records.” Compl., ECF No. 1 ¶¶ 5,

6, 24-36. Second, she pled that these private records were

“publicly disclosed” to her “employing client, potential

employers, and others.” Id. ¶ 31. Ms. Ashbourne also pled that

the defendants “intentionally and deliberately disseminated [the

records] . . . that they knew [were] inaccurate and defamatory.”

13
Id. ¶ 33. Finally, Ms. Ashbourne pled that this disclosure led

to her termination. Id. ¶¶ 5, 6. Again, at this stage of the

proceedings, it is plausible that the defendants are liable for

the misconduct alleged. See Iqbal, 556 U.S. at 678.

The Court notes that defendants’ relevant arguments rely on

factual allegations that are not contained within the four

corners of the Complaint, including that Ms. Ashbourne submitted

the allegedly falsified records herself, that any disclosure is

acceptable under the “routine use” exemption, and that Ms.

Ashbourne provided consent for any disclosure. See Defs.’ Mot.

to Dismiss, ECF No. 8 at 23-30. Because a motion to dismiss

“tests the legal sufficiency of a complaint,” Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), the Court may not

rely on facts asserted by defendants in their briefings.

The defendants also argue that the alleged Privacy Act claims

occurring before April 24, 2015 are time-barred because the

Privacy Act contains a two-year statute of limitations. Defs.’

Mot. to Dismiss, ECF No. 8 at 29-30 (citing 5 U.S.C. §

552a(g)(5)). “[B]ecause statute of limitations issues often

depend on contested questions of fact, dismissal is appropriate

only if the complaint on its face is conclusively time-barred.”

Bregman v. Perles, 747 F.3d 873, 875-76 (D.C. Cir. 2014)

(quoting de Csepel v. Republic of Hungary, 714 F.3d 591, 603

(D.C. Cir. 2013)). A Court should therefore “hesitate to dismiss

14
a complaint on statute of limitations grounds” unless the

defendant has met its “heavy burden” to show that the complaint

is time-barred and there is no dispute as to “when the

limitations period began.” Feld Ent., Inc. v. Am. Soc’y for the

Prevention of Cruelty to Animals, 873 F. Supp. 2d 288, 308

(D.D.C. 2012) (quoting DePippo v. Chertoff, 453 F.Supp.2d 30, 33

(D.D.C. 2006); Turner v. Afro–American Newspaper Co., 572 F.

Supp. 2d 71, 72 (D.D.C. 2008)).

Defendants have not met this heavy burden because they do not

point to any specific allegation in the complaint that is time-

barred. See Defs.’ Mot. to Dismiss, ECF No. 8 at 29-30. Instead,

the defendants summarily conclude that “any claim that accrued

before April 24, 2015 is time-barred.” Id. at 30. It may well be

that some or all of Ms. Ashbourne’s Privacy Act claims are

untimely, but the defendants have not met their burden to

establish that the specific allegations that are “conclusively

time-barred.” Bregman, 747 F.3d at 875-76.

IV. Ms. Ashbourne Stated a Due Process Claim Against the DHS
Defendants in Their Official Capacities

Finally, the defendants move to dismiss Ms. Ashbourne’s due

process claim against the DHS defendants in their official

capacities for failure to state a claim. Defs.’ Mot. to Dismiss,

ECF No. 8 at 30-34. To determine whether a plaintiff stated a

due process claim, the Court must find that a plaintiff has been

15
“deprived of a protected interest” before determining if the

government’s procedures “comport with due process.” Gen. Elect.

Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (quoting Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)).

Ms. Ashbourne argues that she was denied a liberty and

property interest without due process. She first alleges that

the defendants deprived her of her property interest in her

company, Ashbourne & Company. Compl., ECF No. 1 at 1-2. However,

Ms. Ashbourne does not describe how the government deprived her

of that interest beyond a single, conclusory assertion in the

introduction of her complaint. See id. Because there are no

facts to support her allegation, it cannot withstand a motion to

dismiss. See Iqbal, 556 U.S. at 678 (“A pleading that offers

labels and conclusions . . . will not do. Nor does a complaint

suffice if it tenders naked assertions devoid of further factual

enhancement.”).

Ms. Ashbourne’s remaining argument is that she was deprived of

a liberty interest when she was “publicly terminated amidst

stigmatizing charges of dishonesty” without a “meaningful

opportunity to be heard.” Compl., ECF No. 1 at 1, ¶ 37. The

defendants argue that Ms. Ashbourne has not sufficiently pled

that she was deprived of a liberty interest because any injury

to her reputation was not accompanied by a state action that

altered her legal status. Defs.’ Mot. to Dismiss, ECF No. 8 at

16
30-31. Because Ms. Ashbourne was a government contractor, the

defendants argue that she “had no employment relationship with

the government necessary to find a liberty interest.” Id.

(citing Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th

Cir. 2012)).

“As a general rule, ‘persons whose future employment prospects

have been impaired by government defamation lack ... any

constitutional protection for the interest in reputation.’”

McGinnis v. District of Columbia, 65 F. Supp. 3d 203, 212

(D.D.C. 2014)(quoting Trifax Corp. v. District of Columbia, 314

F.3d 641, 643 (D.C. Cir. 2003)). There are, however, “narrow

exceptions” to this principle. Id. at 212-13 (citing Board of

Regents v. Roth, 408 U.S. 564 (1972)). “A claim for deprivation

of a liberty interest without due process based on allegedly

defamatory statements of government officials ... may proceed on

one of two theories: a ‘reputation-plus’ claim or a ‘stigma or

disability’ claim.” Fonville v. District of Columbia, No. 02–

2353, 38 F.Supp.3d 1, 11, 2014 WL 1427780, at *7 (D.D.C. Apr.

14, 2014). The “reputation-plus theory” is implicated when the

government makes a “charge against [the employee] that might

seriously damage his standing and associations in the community,

and does so in connection with a termination or other change in

employment status.” McGinnis, 65 F. Supp. 3d at 213 (citing

Roth, 408 U.S. at 573; O'Donnell v. Barry, 148 F.3d 1126, 1140

17
(D.C. Cir. 1998)). The stigma theory “provides a remedy where

the terminating employer imposes upon the discharged employee a

stigma or other disability that foreclosed [the plaintiff's]

freedom to take advantage of other employment opportunities.”

McCormick v. District of Columbia, 752 F.3d 980, 988 (D.C. Cir.

2014)(citations and quotations omitted).

Defendants’ contention that, as a government contractor, 9 Ms.

Ashbourne lacks a sufficient “employment relationship” to state

a liberty interest is unavailing. Defs.’ Mot. to Dismiss, ECF

No. 8 at 30-31(citing persuasive authority without citing or

addressing binding precedent). The Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) has consistently

recognized that a government contractor “may have a due process

liberty interest in avoiding the damage to their reputation and

business caused by the stigma of broad preclusion from

9 The April 22, 2015 letter that states that Ms. Ashbourne is
unsuitable for federal employment establishes that she is a
contractor. See Ex. 1, Defs.’ Mot. to Dismiss, ECF No. 8-1.
While Ms. Ashbourne does not attach the letter to her complaint,
the Court may take judicial notice of it because it is a
document “upon which the plaintiff's complaint necessarily
relies.” Ward v. District of Columbia Dep't of Youth Rehab.
Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (quoting Hinton
v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)).
Because the letter is central to Ms. Ashbourne’s claims, the
Court may consider it. Marshall v. Honeywell Tech. Solutions,
Inc., 536 F. Supp. 2d 59, 65 (D.D.C. 2008)(“[W]here a document
is referred to in the complaint and is central to the
plaintiff's claim, such a document attached to the motion papers
may be considered without converting the motion [to dismiss] to
one for summary judgment.”)
18
government contracting.” Phillips v. Mabus, 849 F. Supp. 2d 71,

83 (D.D.C. 2012) (citing Reeve Aleutian Airways, Inc. v. United

States, 982 F.2d 594, 598 (D.C. Cir. 1993)). Indeed, in Kartseva

v. Department of State, the D.C. Circuit found that the

plaintiff—a government contractor who was fired based on a State

Department internal memorandum regarding her suitability—stated

a due process claim because the government’s memo may have

“formally or automatically” excluded her from work “on some

category of future [government] contracts or from other

government employment opportunities.” 37 F.3d 1524, 1526 (D.C.

Cir. 1994). So here too.

Ms. Ashbourne sufficiently alleged that the defendants

characterized her as “negligent[],” “dishonest[],” and engaging

in “misconduct.” Compl., ECF No. 1 at ¶¶ 20-21. These

allegations are corroborated by the April 22, 2015 letter, in

which the Coast Guard determined that Ms. Ashbourne was

“unsuitable” for federal employment due to her “employment

misconduct or negligence” and her “dishonest conduct.” Ex. 1,

Defs.’ Mot. to Dismiss, ECF No. 8-1. Defendants allegedly

“publicly disclosed” this letter to Ms. Ashbourne’s “employing

client, potential employers, and others,” while knowing she

“would be terminated as a result.” Compl., ECF No. 1 ¶¶ 6, 31.

On these facts, the Court cannot determine that Ms. Ashbourne

lacks a liberty interest as a matter of law. See McGinnis, 65 F.

19
Supp. 3d at 222 (finding that the plaintiff stated a due process

claim “on the basis of the [allegedly defamatory] memo in her

personnel file, which is allegedly available to prospective

employers”).

It may well be that Ms. Ashbourne received an opportunity to

clear her name, but at this stage, the Court cannot evaluate the

sufficiency of any process afforded. See Ashbourne v. Hansberry,

703 Fed. Appx. 4, 4-5 (D.C. Cir. 2017)(finding that Ms.

Ashbourne was afforded adequate process because she could

challenge the Treasury defendants’ termination decision through

affidavits with the help of counsel). Moreover, the defendants

do not argue that Ms. Ashbourne received sufficient process. See

Defs.’ Mot. to Dismiss, ECF No. 8 at 30-32. The defendants’

motion to dismiss the due process claim is DENIED.

V. Further Proceedings are Stayed

Ms. Ashbourne moves to stay further proceedings pending the

U.S. Equal Employment Opportunity Commission’s (“EEOC”)

investigation of her Title VII complaint against DHS. See Pl.’s

Mot. to Stay, ECF No. 2. The defendants oppose, arguing both

claims can proceed separately. See Defs.’ Opp’n Mot. to Stay,

ECF No. 16.

“A trial court has broad discretion to stay all proceedings in

an action pending the resolution of independent proceedings

elsewhere.” Hisler v. Gallaudet Univ., 344 F. Supp. 2d 29, 35

20
(D.D.C. 2004)(citing Landis v. N. Am. Co., 299 U.S. 248, 254

(1936)). “Indeed, a trial court may, with propriety, find it is

efficient for its own docket and the fairest course for the

parties to enter a stay of an action before it, pending

resolution of independent proceedings which bear upon the case.”

Id. (quoting Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d

857, 863-64 (9th Cir. 1979)). The burden rests with the movant,

who “must make out a clear case of hardship or inequity in being

required to go forward.” Landis, 299 U.S. at 255.

According to Ms. Ashbourne, her procedural predicament is that

she is currently unable to bring a Title VII discrimination

claim because she has not exhausted her EEOC administrative

remedies. Pl.’s Mot. to Stay, ECF No. 2. However, the Privacy

Act’s statute of limitations would have prevented her from

bringing the Privacy Act claims if she waited for EEOC

adjudication. Id. The defendants argue that Ms. Ashbourne will

continue to retain the right to bring her Title VII claims after

EEOC adjudication. Defs.’ Opp’n Mot. to Stay, ECF No. 16 at 6.

However, Ms. Ashbourne was in this same procedural posture in

Ashbourne II. In that case, Judge Kollar-Kotelly found that Ms.

Ashbourne’s Title VII claims against the Treasury defendants,

brought after Ashbourne I, were barred by res judicata. The

Court found that Ms. Ashbourne “could have pursued her Title VII

claims . . . but did not seek to amend the complaint . . ., nor

21
has [she] presented any credible evidence that she sought a stay

. . . to pursue her appeal with the EEOC.” Ashbourne II, 245 F.

Supp. 3d at 105(appeal pending).

If this Court does not stay the proceedings and the D.C.

Circuit affirms Judge Kollar-Kotelly’s decision in Ashbourne II,

Ms. Ashbourne may be barred from bringing her Title VII claim(s)

in the future. See Ashbourne II, 245 F. Supp. 3d at 105. At this

point, the Court finds that Ms. Ashbourne makes out a “clear

case of hardship or inequity in being required to go forward.”

Landis, 299 U.S. at 255. Furthermore, on this record, the Court

cannot determine whether Ms. Ashbourne “has been fully able to

bring [her Title VII] claims before this Court for more than

four months,” as defendants argue. Defs.’ Opp’n Mot. to Stay 4-

5, ECF No. 16.

Ms. Ashbourne’s motion to stay is GRANTED, albeit not on Ms.

Ashbourne’s terms. Rather than stay the case pending EEOC

adjudication, the case is stayed pending the D.C. Circuit’s

decision in Ashbourne II. The parties are directed to file on

the docket their recommendations for further proceedings within

fifteen days of the D.C. Circuit’s decision in Ashbourne II,

Case No. 17-5136.

VI. Conclusion

Accordingly, for the reasons set forth in this Memorandum

Opinion it is HEREBY ORDERED that:

22
 (1) the defendants’ motion to dismiss [ECF No. 8] is GRANTED

in PART and DENIED in PART;

(a) all claims against the Treasury Secretary and the

individual Treasury defendants Donna Hansberry, Donna

Prestia, and Thomas Collins are DISMISSED WITH PREJUDICE;

(b) the due process claims against James Trommatter and

Thomas Harker in their individual capacities are DISMISSED

WITHOUT PREJUDICE;

(c) the Privacy Act claims against James Trommatter and

Thomas Harker in their individual capacities are DISMISSED

WITH PREJUDICE;

(d) the Privacy Act claims against the DHS Secretary, James

Trommatter and Thomas Harker in their official capacities

shall go forward after the stay is lifted; and

(d) the due process claims against the DHS Secretary, James

Trommatter and Thomas Harker in their official capacities

shall go forward after the stay is lifted;

(2) Ms. Ashbourne’s service motion [ECF No. 13] is DENIED; and

(3) Ms. Ashbourne’s motion to stay [ECF No. 2] is GRANTED. The

case is hereby stayed pending the D.C. Circuit’s decision in

Ashbourne II, Case No. 17-5136.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
March 27, 2018

23