Deleon v. Wilkie

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHRIS deLEON,

Plaintiff,

v. Civil Action No. 19-1250 (JEB)
ROBERT WILKIE, Secretary, Department
of Veterans Affairs, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Chris deLeon is a former employee of the Department of Veterans Affairs

Medical Center here in Washington. His stint there was short but tumultuous. In just two years,

he was involved in several altercations, including one with his superior and another with a

Medical Center visitor, the latter of which resulted in criminal assault charges. After conducting

an investigation into this incident, the agency terminated deLeon. Plaintiff responded with this

suit against the VA and several officials, asserting various constitutional and statutory causes of

action arising from his termination and other purported mistreatment. Defendants now move to

dismiss, contending that this Court lacks subject-matter jurisdiction over certain counts and that

deLeon has failed to state any claims upon which relief can be granted. Agreeing on both scores,

the Court will grant the Motion and dismiss the case.

I. Background

As it must at this stage, the Court draws the facts from the Complaint. See Sparrow v.

United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). In May 2017, deLeon began

working as a police sergeant for the Medical Center. See Compl., ¶ 6. Some nine months later,

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in February 2018, he became embroiled in a parking-lot altercation, sustaining several injuries.

Id., ¶¶ 8–9; see id., ¶ 10 (limited range of motion in his shoulder and inability to carry more than

five pounds). DeLeon’s doctor, therefore, ordered him to limit his physical activity. Id., ¶ 11.

So when Plaintiff returned to work, the agency assigned him a new role — one that met these

limitations — within the Physical Security and Training section. Id.

Shortly after, in May 2018, Defendant Elton Artis became the Medical Center’s Acting

Deputy Chief of Police. Id., ¶ 13. Among other duties, he supervised deLeon’s assigned section.

Id., ¶ 14. That month, Artis asked Plaintiff to submit an agency form that sets out an employee’s

specific work limitations. Id. Believing that he had already submitted the necessary paperwork,

deLeon refused. Id. Not so easily deterred, Artis reached out to Human Resources for Plaintiff’s

medical records. Id., ¶ 15. When deLeon learned that HR staff had been attempting to view his

records without his consent, he protested to the Deputy Chief of that department. Id., ¶ 16. His

efforts, however, met with little success. The deputy remarked that staff had the authority to

review his records; she also explained that because he was unable to fulfill his assignment’s

duties, he was going to be reassigned to a different role. Id.

Plaintiff alleges that shortly thereafter he was subjected to harassment. At one point, for

instance, Artis confronted deLeon “in an angry tone while in possession of his service weapon.”

Id., ¶ 18. Fearing for his safety, Plaintiff filed a complaint in D.C. Superior Court, where he

sought a protective order against Artis. Id. The agency then allegedly retaliated against him

through a series of workplace incidents. Id., ¶¶ 19–30. More on that later.

According to the Complaint, his ill treatment did not end there. At the beginning of

2019, the agency reassigned deLeon to an entry desk at the Medical Center, where he was

responsible for screening and processing visitors. Id., ¶¶ 29–30. While on duty there, on

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February 28, he became entangled in yet another imbroglio, this time with visitor Ilene Dadey.

Id., ¶ 31. DeLeon alleges that she, in contravention of agency policy, attempted to photograph or

videotape him. Id. Concerned for his safety, Plaintiff grabbed her arm. Id. When Artis learned

of this, he contacted the D.C. Metropolitan Police Department, which investigated the matter and

arrested deLeon for assault. Id. The agency, too, reviewed the incident and placed him on

administrative leave. Id., ¶¶ 32–34. It eventually concluded that his conduct was inappropriate

and terminated him on April 8. Id., ¶ 34. Later that month, Plaintiff appealed his termination to

the Merit Systems Protection Board — an agency whose relevance will become plain shortly.

Id.

Plaintiff, however, did not wait for an MSBP decision. On April 29, shortly after filing

his administrative appeal, he brought suit against Defendants Artis, Robyn Hardy (the Chief of

Police of the Medical Center), Stanley Staton (an Assistant Medical Director), and the agency.

Id., ¶ 5. He brings four claims — three constitutional and one statutory. Id., ¶¶ 35–49. The first

asserts that Defendants retaliated against him in violation of the First Amendment after he sought

a protective order against Artis. Id., ¶¶ 35–37. The second alleges that a number of agency

actions damaged his reputation and hindered his employment prospects in violation of the Fifth

Amendment. Id., ¶¶ 38–41. The third makes out Privacy Act violations based on the

nonconsensual disclosure of his personal information. Id., ¶¶ 42–44. And the fourth alleges that

Defendants, in violation of the Fourth Amendment, conspired with MPD to arrest deLeon. Id.,

¶¶ 45–49.

As recompense for the violations, he seeks, inter alia, compensatory and punitive

damages to the tune of 10 million dollars. Id. at 19. Defendants, for their part, have moved to

dismiss deLeon’s entire suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

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II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, “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)). The Court “must treat the complaint’s factual allegations as true and must grant

[the] plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow,

216 F.3d at 1113 (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). It need

not accept as true, however, “a legal conclusion couched as a factual allegation” or an inference

“unsupported by thge facts set out in the complaint.” Trudeau v. FTC, 456 F.3d 178, 193 (D.C.

Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986); then quoting Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). For a plaintiff to survive a 12(b)(6)

motion, the facts alleged in the complaint “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

Under Rule 12(b)(1), Plaintiff bears the burden of proving that the court has subject-

matter jurisdiction to hear his claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

A court also has an “affirmative obligation to ensure that it is acting within the scope of its

jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d

9, 13 (D.D.C. 2001). As such, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear

closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to

state a claim.” Id. at 13–14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice

and Procedure § 1350 (2d ed. 1987)).

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III. Analysis

As mentioned above, deLeon accuses Defendants of violating the First Amendment

(Count I), Fifth Amendment (Count II), and Privacy Act (Count III), as well as conspiring to

violate the Fourth Amendment (Count IV). See Compl., ¶¶ 35–49. The First and Fourth

Amendment claims are asserted against individual Defendants pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In contrast, the

Fifth Amendment count is brought against the agency itself in the name of the Secretary.

Although the Defendants vary depending on the count in question, the Court need not parse this

too finely at this point given the result. For ease of analysis, it will begin by addressing Counts I

and II together, as they fall for the same reasons. It will then separately analyze the remaining

ones.

A. Counts I & II

Plaintiff first claims that he suffered certain work-related harms — e.g., delayed and

arbitrarily deflated performance reviews, reduced workload and overtime potential, undesirable

assignments, and termination — that were inflicted in retaliation for engaging in speech

protected by the First Amendment. See Compl., ¶¶ 35–37 (Count I). That speech, he alleges,

consisted of filing for a protective order in Superior Court against Artis following a heated

confrontation. Id., ¶ 37. DeLeon further alleges that Defendants, through these adverse

employment actions, violated his due-process rights, harmed his reputation, and “prevented him

from obtaining employment in his chosen profession.” Id., ¶¶ 38–41 (Count II). These wrongs,

he argues, violated his Fifth Amendment rights. Id.

In moving to dismiss these two counts, Defendants contend both that subject-matter

jurisdiction is lacking and that the claims suffer from substantive defects. See Defs.’ MTD at 6–

11; Defs.’ Reply at 3–7. The Court considers these arguments in turn.

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 1. Jurisdiction

As to their first submission, Defendants maintain that deLeon has failed to exhaust his

remedies under the Civil Service Reform Act (codified as amended in scattered sections of 5

U.S.C.). See Defs.’ MTD at 6–7. Before delving into this argument, the Court offers a few

general words on the CSRA and then explains its relevance to the constitutional claims at issue

here.

Congress enacted the Act as part of a “comprehensive[] overhaul[]” of the civil-service

system. See Lindahl v. OPM, 470 U.S. 768, 773 (1985). In doing so, it “replace[d] the

haphazard arrangements for administrative and judicial review of personnel action.” United

States v. Fausto, 484 U.S. 439, 444 (1988). To reform the “outdated patchwork of statutes and

rules built up over almost a century,” Congress created “an integrated scheme of administrative

and judicial review, designed to balance the legitimate interests of various categories of federal

employees with the needs of sound and efficient administration.” Id. at 444–45. The Act

“protects covered federal employees against a broad range of personnel practices, and it supplies

a variety of causes of action and remedies to employees when their rights under the statute are

violated.” Grosdidier v. Chairman, 560 F.3d 495, 497 (D.C. Cir. 2009). By way of example,

employees must file any appeal of most major employment actions — e.g., termination —

directly to the MSPB. See 5 U.S.C. §§ 7512, 7513(d). If an employee is dissatisfied with the

Board’s ruling, only then may he seek judicial review. Id. § 7703(a)(1), (b)(1). Put otherwise,

he must first exhaust his administrative remedies. See Weaver v. U.S. Info. Agency, 87 F.3d

1429, 1433 (D.C. Cir. 1996) (“Under the CSRA, exhaustion of administrative remedies is a

jurisdictional prerequisite to suit.”); see also Gardner v. United States, 213 F.3d 735, 737 n.1

(D.C. Cir. 2000) (“The district court lacked subject matter jurisdiction of [the] claims . . .

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because [the plaintiff] failed to allege that he had exhausted his administrative remedies, as

required under the [CSRA].”).

Plaintiff, moreover, cannot escape this requirement by characterizing his disputes as

constitutional. See Steadman v. Governor, 918 F.2d 963, 967 (D.C. Cir. 1990) (“When the

statutory and constitutional claims are ‘premised on the same facts’ and the CSRA remedy

‘would have been fully effective in remedying the constitutional violation,’ exhaustion is

mandated.”) (quoting Andrade v. Lauer, 729 F.2d 1475, 1493 (D.C. Cir. 1984)). That is because

the public interest in upholding the statutory scheme created by Congress for addressing

personnel-related matters is so strong that federal employees “may not circumvent that structure

even if their claim is based . . . on the Constitution.” Id. Indeed, as the Supreme Court has

observed, the MSPB “routinely adjudicates some constitutional claims, such as claims that an

agency took an adverse employment action in violation of an employee’s [constitutional] rights,

and that these claims must be brought within the CSRA scheme.” Elgin v. U.S. Dep’t of

Treasury, 567 U.S. 1, 12 (2012).

DeLeon acknowledges that he has pursued the processes and protections afforded by the

CSRA. See, e.g., Compl., ¶ 34; Pl. Opp. at 18. He does not, moreover, dispute that his claims

are subject to exhaustion. See Pl. Opp. at 18–20. Nor could he, given that, as noted above,

courts have repeatedly affirmed the dismissal of claims arising under the Constitution in the

absence of exhaustion. See, e.g., Weaver, 87 F.3d at 1433–35 (affirming dismissal of First

Amendment claim for failure to exhaust CSRA procedures); see also Steadman, 918 F.2d at 967–

68 (reversing court’s finding of jurisdiction and rejecting due-process claim where employee had

failed to exhaust remedies).

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 With that understanding in place, the Court can make quick work of these two counts.

Nowhere in the Complaint does Plaintiff allege that he exhausted his CSRA remedies — and for

good reason. The MSPB issued its final decision nearly four months after deLeon filed this suit.

Compare Pl. Opp. at 18 (MSPB’s final decision on August 23), with Compl. (filed on April 29).

It is clear, then, that he had not satisfied the exhaustion requirement at the time he sued.

Perhaps recognizing the writing on the wall, deLeon argues that he should be permitted to

amend his pleadings. See Pl. Opp. at 19–20. In fact, he likely means to supplement the

Complaint with actions that occurred after his initial filing — i.e., the MSPB final decision. For

support, he pays lip service to Federal Rule of Civil Procedure 15 and cites several cases where

courts have granted motions to amend. Id. Under Rule 15(a), “[l]eave to amend . . . shall be

freely given when justice so requires.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.

1996). The D.C. Circuit, however, has held that a request in an opposition to a motion to dismiss

does not constitute a Rule 15(a) motion. Confederate Mem’l Ass’n, Inc. v. Hines, 995 F.2d 295,

299 (D.C. Cir. 1993) (emphasis added); accord Saunders v. Davis, 2016 WL 4921418, at *16

(D.D.C. Sept. 15, 2016). As deLeon has provided nothing more than a “bare request” in his

Opposition, without even offering the proposed amendment that the Local Rules require, the

Court will deny his request.

In any event, with certain exceptions not relevant here, adverse MSPB rulings may be

appealed to the Federal Circuit, not a district court. See 5 U.S.C. § 7703(b)(1)(A)); 28 U.S.C.

§ 1295(a)(9). The Court, accordingly, will dismiss Counts I and II for lack of subject-matter

jurisdiction.

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 2. Merits

Although the Court finds that it lacks jurisdiction, it will also explain why Plaintiff comes

up empty on the merits.

a. First Amendment

As the reader knows, deLeon maintains that Defendants retaliated against him through a

series of workplace incidents after he filed for a protective order against Artis. See Compl., ¶ 37.

To determine whether a First Amendment violation exists in such a situation, our Circuit

uses a four-part inquiry:

First, the public employee must have spoken as a citizen on a matter
of public concern. Second, the court must consider whether the
governmental interest in promoting the efficiency of the public
service it performs through its employees outweighs the employee’s
interest, as a citizen, in commenting upon matters of public concern.
Third, the employee must show that [his] speech was a substantial
or motivating factor in prompting the retaliatory or punitive act.
Finally, the employee must refute the government employer’s
showing, if made, that it would have reached the same decision in
the absence of the protected speech.

Bowie v. Maddox, 642 F.3d 1122, 1133 (D.C. Cir. 2011) (quoting Wilburn v. Robinson, 480

F.3d 1140, 1149 (D.C. Cir. 2007)). More specifically, the first factor — which presents a

question of law — “really imposes two requirements — that the employee speak ‘as a citizen’

and that the speech be ‘on a matter of public concern.’” Hawkins v. Dist. of Columbia, 923 F.

Supp. 2d 128, 137 (D.D.C. 2013); see Thompson v. Dist. of Columbia, 428 F.3d 283, 286 (D.C.

Cir. 2005).

The Court begins and ends with the latter requirement. See LeFande v. Dist. of

Columbia, 613 F.3d 1155, 1159 (D.C. Cir. 2010) (“If the speech is not a matter of public

concern, ‘the employee has no First Amendment cause of action based on his . . . employer’s

reaction.’”) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). A matter is of public

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concern when it can “be fairly considered as relating to any matter of political, social, or other

concern to the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). Conversely, speech

about “individual personnel disputes and grievances” is not. See LeFande, 613 F.3d at 1161.

Plaintiff argues that seeking a protective order “against an angry individual [— i.e.,

Artis —] with a firearm” tackles a matter of public concern, as it involves access to “the United

States Justice System” and the “maintain[ance] [of] a safe environment.” Pl. Opp. at 20–21.

Lofty as this description may appear, caselaw cuts against his position. In Barnes v. Small, 840

F.2d 972 (D.C. Cir. 1988), for example, the court found that accusations that personnel had been

engaged in various forms of misbehavior — including a criminal “assault” — related to

employee grievances rather than matters of public concern. Id. at 975, 982–83; see also id. at

982 (explaining that “subjects of pressing import only to other employees in the speaker’s office”

do not fall under rubric of matters of public concern). As in Barnes, any purported misbehavior

that occurred at the Medical Center “is of pressing import” only to deLeon — or, at most, to

other employees in the office — not the public at large. Armed with this Circuit’s precedent, the

Court could easily dispose of the First Amendment claim on the merits.

b. Fifth Amendment

The thrust of Plaintiff’s next claim centers on a number of agency actions he disagreed

with during his time at the VA. In brief, deLeon complains that the government violated his due-

process rights by (1) issuing a “Cease and Desist Order,” prohibiting him from entering

employee offices and leaving notes, (2) reassigning him to an entry-desk role, (3) pursuing

criminal charges against him, (4) placing him on administrative leave, (5) proposing removal,

and (6) eventually terminating him. See Compl., ¶ 40. He alleges that the agency thereby

damaged his reputation and hindered his employment prospects. Id., ¶ 41.

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 “To state a claim for the denial of procedural due process, a plaintiff must allege that

(1) the government deprived [him] of a ‘liberty or property interest’ to which [he] had a

‘legitimate claim of entitlement,’ and (2) that ‘the procedures attendant upon the deprivation

were constitutionally insufficient.’” New Vision Photography Program, Inc. v. Dist. of

Columbia, 54 F. Supp. 3d 12, 28 (D.D.C. 2014) (quoting Roberts v. United States, 741 F.3d 152,

161 (D.C. Cir. 2014); then quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).

In general terms, one has a constitutionally protected interest in one’s good name or in

being able to pursue one’s chosen profession. See Bd. of Regents of State Colleges v. Roth, 408

U.S. 564, 573 (1972) (“[W]here a person’s good name, reputation, honor, or integrity is at stake

because of what the government is doing to him,” that person’s liberty interest in on the line,

meaning that “notice and an opportunity to be heard are essential.”) (quoting Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971)).

In this Circuit, a plaintiff may avail himself of two different legal theories to establish

such a reputation-based due-process violation. See Hutchinson v. CIA, 393 F.3d 226, 231 (D.C.

Cir. 2005). The first, commonly called a “reputation plus” claim, requires “the conjunction of

official defamation and [an] adverse employment action.” O’Donnell v. Barry, 148 F.3d 1126,

1140 (D.C. Cir. 1998). Off the bat, things look poor for deLeon. This theory “requires some

form of defamatory or stigmatizing speech by the government.” Jefferson v. Harris, 170 F.

Supp. 3d 194, 205 (D.D.C. 2016); see Doe v. DOJ, 753 F.2d 1092, 1111 (D.C. Cir. 1985).

Plaintiff, however, nowhere alleges any defamatory statement, much less one connected with an

adverse action. See O’Donnell, 148 F.3d at 1140 (“[T]here is no sign that the District made any

defamatory statements about [the plaintiff] at the time of his demotion.”); Compl., ¶¶ 38–41.

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 His second option, then, is to pursue what is known as a “stigma plus” theory. This

theory — unlike the first one, which requires some form of official speech by the government —

depends only on governmental imposition of “a continuing stigma or other disability arising

from official action” that “foreclosed [the plaintiff’s] freedom to take advantage of other

employment opportunities.” O’Donnell, 148 F.3d 1140 (quoting Roth, 408 U.S. at 573).

Further, “a government action that potentially constrains future employment opportunities must

involve a tangible change in status.” Kartseva v. U.S. Dep’t of State, 37 F.3d 1524, 1527 (D.C.

Cir. 1994).

Such a change may be shown in one of two ways. The first is if the government’s actions

“formally or automatically exclude[d]” Plaintiff from future government employment

opportunities — e.g., by making “a binding determination to disqualify” him from further

employment. Id. at 1528–29. DeLeon’s Complaint contains no such claim, so he must rely on

the second path. That is, he must allege that even if the government did not make a formal

disqualification, its actions nevertheless had the “broad effect of largely precluding [him] from

pursuing [his] chosen career,” id. at 1528, or, put another way, that “his ability to pursue his

chosen profession has been ‘seriously affected, if not destroyed.’” O’Donnell, 148 F.3d at 1141–

42 (quoting Kartseva, 37 F.3d at 1529).

Here, too, Plaintiff’s Complaint falls short. He offers only the bare assertion that the

agency’s actions have “prevented him from obtaining employment in his chosen profession.”

Compl., ¶ 41. Missing from his Complaint are factual allegations that could support a finding

that he was broadly precluded from continuing his career. See Trudeau, 456 F.3d at 193.

Indeed, this Court has dismissed pleadings that contained more information than what Plaintiff

presents here. See, e.g., Jefferson, 170 F. Supp. 3d at 205–06 (noting that “episodic anecdotes of

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having had one job offer revoked, having final negotiations terminated in another, and losing a

handful of public-speaking opportunities” fail to meet standard). DeLeon’s reputation-based

claim, then, falters under this theory as well.

In addition, Defendants point out that deLeon has had, or will have, sufficient process

related to his placement on administrative leave, proposed removal, and ultimate termination.

See Defs.’ MTD at 10–11; Defs.’ Reply at 8. The Court agrees. Notably, Plaintiff’s interests in

employment are governed under the CSRA. See Fausto, 484 U.S. at 446–47. As set out above,

the Act creates procedural protections for federal employees from major adverse personnel

actions, see 5 U.S.C. § 7513, including suspension, reduction in grade, furlough, and removal.

Id. § 7512. He has already appealed these employment actions to the MSPB — a forum that has

provided him with an opportunity to be heard. See Compl., ¶ 34. To the extent he is unhappy

with the administrative ruling, moreover, he may seek judicial review (and thus obtain even more

process). See 5 U.S.C. § 7703(b)(1)(A).

B. Count III

Next up are Plaintiff’s two Privacy Act claims, and some background may prove useful.

Congress enacted the Act to “provide certain safeguards for an individual against an invasion of

privacy.” Pub. L. No. 93–579, § 2(b), 88 Stat. 1896 (codified as amended at 5 U.S.C. § 552a).

To that end, it imposes several requirements on federal agencies concerning, among other things,

the dissemination of an individual’s personal information. See 5 U.S.C. § 552a(a)(4)–(5).

Section § 552a(b), for example, broadly “prohibits government agencies from disclosing

confidential files without the consent of the individual.” Dick v. Holder, 67 F. Supp. 3d 167, 177

(D.D.C. 2014) (citing Bigelow v. U.S. Dep’t of Def., 217 F.3d 875, 876 (D.C. Cir. 2000)). This

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broad proscription, however, is subject to 12 exceptions — one of which will become relevant

shortly. See 5 U.S.C. § 552a(b)(1)–(12).

Separately, the Act also allows for civil remedies. Id. § 552a(g). To recover monetary

compensation, “a plaintiff must establish: (1) a violation of a Privacy Act provision, (2) that the

[agency’s] decision . . . was intentional or willful, (3) that the [violation] caused adverse effects,

and (4) that the plaintiff[] suffered actual damages.” Thompson v. U.S. Dep’t of State, 400 F.

Supp. 2d 1, 8 (D.D.C. 2005) (alterations and omissions in original) (quoting Albright v. United

States, 732 F.2d 181, 184 (D.C. Cir. 1984)) (internal quotation marks omitted).

Plaintiff alleges that the VA violated § 552a(b) on two occasions: first, when Artis

reviewed his personnel records with an HR staff member; and second, when Artis disclosed to

Dadey the agency’s pending disciplinary action against deLeon. See Compl., ¶¶ 43–44.

Defendants rejoin that these claims are infirm on three grounds: (1) the Act does not authorize

suits against individuals; (2) Plaintiff fails to allege actual damages; and (3) the disclosures did

not violate the Act. See Defs.’ MTD at 20–25. As set out below, Defendants go three for three.

1. Proper Defendants

To start, the Act “creates a cause of action against only federal government agencies,” not

individual officials like Artis, Hardy, and Staton. See Abdelfattah v. DHS, 787 F.3d 524, 533

n.4 (D.C. Cir. 2015); Dick, 67 F. Supp. 3d at 176 (“[T]he law is clear that only federal agencies,

not individuals, are the proper defendants for a Privacy Act cause of action.”); see also 5 U.S.C.

§ 552a(g)(1) (authorizing suit against “agency”). Courts, as a result, routinely dismiss these

claims when they are lodged against individual defendants. See, e.g., Abdelfattah, 787 F.3d at

533 n.4 (affirming sua sponte dismissal of Privacy Act claims against individual officials). To

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the extent these claims are asserted against any individual Defendant other than the agency, see

Compl., ¶ 5, they fail as a matter of law.

2. Actual Damages

Even if the Act allows for a cause of action against the VA, represented here in the

person of its Secretary, Plaintiff still does not prevail. As mentioned above, a party can recover

under the Act only if he establishes “actual damages.” 5 U.S.C. § 552a(g)(4). Such damages,

the Supreme Court has explained, are “limited to proven pecuniary or economic harm” and

“must be specially pleaded.” FAA v. Cooper, 566 U.S. 284, 295, 299 (2012). By contrast, non-

economic damages, including “loss of reputation, shame, mortification, injury to the feeling and

the like” are not covered under the Act. Id. at 296–99. A plaintiff, moreover, must allege

“actual damages” connected to a violation of the Act. See Doe v. Chao, 540 U.S. 614, 620–27

(2004). Put differently, he “must establish not only that he was ‘adversely affected’ by the

improper disclosure, but also that he suffered ‘some harm for which damages can reasonably be

assessed.’” Mulhern v. Gates, 525 F. Supp. 2d 174, 181–82 (D.D.C. 2007) (quoting Doe, 540

U.S. at 621).

Plaintiff has not met that burden here. To begin, the Complaint is devoid of allegations

that either incident — i.e., the disclosure of his personnel records or of his pending disciplinary

action — caused him to suffer any actual damages. See Cooper, 566 U.S. at 295 (special

damages “must be specially pleaded”). The best Plaintiff can do is point out in his Opposition

that the second disclosure led to his termination, loss of benefits and wages, as well as criminal

charges. See Pl. Opp. at 29 (citing Compl., ¶¶ 47–48). Yet, the paragraphs in the Complaint on

which he relies do not contain any allegations that either purported violation of the Act caused

him pecuniary injury. See Middlebrooks v. Goodwin Corp., 722 F. Supp. 2d 82, 87 n.4 (D.D.C.

15
2010) (“[P]laintiff failed to include these allegations in her complaint, and plaintiff may not

amend her complaint by the briefs in opposition to a motion to dismiss.”); Perkins v. Vance-

Cooks, 886 F. Supp. 2d 22, 29 n.5 (D.D.C. 2012) (“It is settled law in this circuit that a plaintiff

may not raise new allegations in this manner.”). Further, it is implausible for Plaintiff to claim

that the disclosures of information — rather than his admitted use of physical force against a

visitor — resulted in the monetary damages here. See Iqbal, 556 U.S. at 678.

3. Violations

DeLeon’s claims hit yet another snag: they fail to plead any underlying violation of the

Act. Start with the allegation that Artis reviewed Plaintiff’s personnel records with HR staff.

See Compl., ¶¶ 15, 44. As noted, Congress articulated a number of exceptions to the Act’s

disclosure restrictions. See 5 U.S.C. § 552a(b)(1)–(12). Defendants invoke § 552a(b)(1), which

allows for intra-agency disclosure of records to officers and employees “who have a need for the

record in the performance of their duties.” Defs.’ MTD at 23–24. In considering a disclosure

under this exception, “[w]hat must be determined . . . is whether the official examined the record

in connection with the performance of duties assigned to him and whether he had to do so in

order to perform those duties properly.” Bigelow v. U.S. Dep’t of Def., 217 F.3d at 877; accord

Doe v. DOJ, 660 F. Supp. 2d 31, 44–46 (D.D.C. 2009).

The first disclosure here squarely implicates this exception. Readers might recall that

Artis reviewed Plaintiff’s personnel records in May 2018. See Compl., ¶ 15. At that time, he

managed the Physical and Security Training section — the section where deLeon worked. Id.,

¶ 13. He, in effect, supervised Plaintiff. Additionally, he was aware that deLeon had been

injured in a parking-lot incident in which he sustained several injuries. Id., ¶¶ 9, 14. He asked

Plaintiff to submit agency paperwork that would inform management of the injured employee’s

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capabilities. Id., ¶ 14. DeLeon, however, refused. Id. Only then did Artis review Plaintiff’s

records. Id. DeLeon nowhere alleges that Artis did so for purposes unrelated to his duties. Id.,

¶¶ 16, 42–44. Defendants, in turn, maintain that such a review would fall exclusively within

Artis’s management role — that is, it would contribute to his understanding his subordinate’s

medical limitations. See Defs.’ MTD at 23–24 (citing 5 U.S.C. § 552a(b)(1)). Tellingly,

Plaintiff fails to challenge this position in his Opposition. See Pl. Opp. at 28–29.

As for the second purported disclosure, the Court need not look to any of the statutory

exceptions. The Act prohibits the nonconsensual disclosure of “any record which is contained in

a system of records by any means of communication.” 5 U.S.C. § 552a(b). It defines “system of

records” as “a group of any records under the control of any agency from which information is

retrieved by the name of the individual or by some [other] identifying [information].” Id.

§ 552a(a)(5) (emphasis added). This definition — which incorporates the requirement that

information “is retrieved” — has given rise to the so-called “retrieval rule.” Mulhern, 525 F.

Supp. 2d at 183.

Simply put, this rule provides that the statute “only covers [the nonconsensual]

disclosures of information which was either directly or indirectly retrieved from a system of

records.” Doe v. U.S. Dep’t of Treasury, 706 F. Supp. 2d 1, 6 (D.D.C. 2009) (quoting Fisher v.

Nat’l Insts. of Health, 934 F. Supp. 464, 473 (D.D.C. 1996)). From this, it follows that the

statute does not prohibit the disclosure of information acquired from independent sources — e.g.,

“observation, office emails, discussions with co-workers and the ‘rumor mill’” — “even if the

information disclosed is also contained in agency records.” Cloonan v. Holder, 768 F. Supp. 2d

154, 164 (D.D.C. 2011); see Krieger v. DOJ, 529 F. Supp. 2d 29, 47 (D.D.C. 2008) (finding no

violation where agent disclosed information — derived from firsthand impressions — outside of

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agency). At its core, this rule ensures that the Act “does not create a monastic vow of silence

which prohibits governmental employees from telling others what they saw and heard merely

because what they saw or heard may also be a topic of a record in a protective file.” Cloonan,

768 F. Supp. 2d at 164 (quoting Krieger, 529 F. Supp. 2d at 47).

DeLeon’s beef is that Artis allegedly informed Dadey that the VA had taken disciplinary

action against him. See Compl., ¶ 44. Yet, as Defendants point out, nowhere does deLeon

maintain that Artis retrieved any record in the course of making that statement. See Defs.’ MTD

24–25; Compl., ¶¶ 42–44. Nor does he even attempt to rebut this position in his Opposition. See

Pl. Opp. at 28–29. Further, it is important to remember that Artis had personal knowledge of

Plaintiff’s physical altercation with Dadey and would have known about any ensuing disciplinary

action. See Compl., ¶ 31. As several courts have explained, the disclosure of information

acquired from an independent source — including personal knowledge — does not violate the

Act. See, e.g., Cloonan, 768 F. Supp. 2d at 164. The Court will thus dismiss both of Plaintiff’s

claims under the Act.

C. Count IV

DeLeon’s final count is anchored in the Fourth Amendment’s guarantee against

unreasonable seizures. See Compl., ¶¶ 45–49. He alleges that Defendants conspired to violate

this constitutional provision by causing his arrest following the February 28 incident with visitor

Dadey. Id., ¶ 47. This one fares no better than the others.

At the outset, the Court notes that, as a general matter, only governmental actors can

violate the Fourth Amendment. And although Defendants are federal agents employed by the

VA, MPD inflicted the purported constitutional injury here, see Compl., ¶¶ 45–49 — i.e., the

unlawful detention of Plaintiff. Defendants arguably can incur liability for a Fourth Amendment

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violation in a case of this kind by conspiring with MPD. Cf., e.g., Gramenos v. Jewel Cos., Inc.,

797 F.2d 432, 435 (7th Cir. 1986) (“Although private parties call on the aid of state law ‘without

the grounds to do so’, when the private decision may ‘in no way be attributed to a state rule or a

state decision’, the private parties are not state actors. There must be a conspiracy, an agreement

on a joint course of action in which the private party and the state have a common goal.”)

(citation omitted) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 940 (1982); then citing

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)). To support a civil-conspiracy claim, the

Complaint must present factual allegations of an actual effort or plan among Defendants and

MPD to violate Plaintiff’s constitutional rights. See Morgan v. Dist. of Columbia, 550 F. Supp.

465, 470 (D.D.C. 1982).

This does not exist here. As evidence, deLeon points to Artis’s call to the police

following the altercation, as well as his “thumbs up” to the officers and his unsubstantiated

“personal relationship” with them. See Compl., ¶¶ 31, 47. He also alleges that Artis “coached”

Dadey on what to say to the police and separately “pressure[d] the MPD to pursue assault

charges.” Id., ¶ 47. As for Hardy and Staton, deLeon offers only the bare assertion that they had

knowledge of and consented to Artis’s actions. Id. These allegations are simply not enough.

They fall far short of raising a plausible inference that any Defendant was part of a concerted

agreement with the police to violate his constitutional rights. See Brady v. Livingood, 360 F.

Supp. 2d 94, 104 (D.D.C. 2004) (“A plaintiff must set forth more than just conclusory allegations

of an agreement to sustain a claim of conspiracy against a motion to dismiss.”). Plaintiff’s

Fourth Amendment claim, therefore, fails as a matter of law.

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IV. Conclusion

For these reasons, the Court will grant Defendant’s Motion to Dismiss. A separate Order

consistent with this Opinion will be issued this day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge

Date: January 14, 2020

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