Dick v. Holder , 67 F. Supp. 3d 167 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL G. DICK, :
:
Plaintiff, : Civil Action No.: 13-1060 (RC)
:
v. : Re Document No.: 13
:
ERIC H. HOLDER, JR., et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION
Plaintiff Michael G. Dick (“Agent Dick”), a Special Agent with the Federal Bureau of
Investigation (“FBI”), brought this action for monetary and injunctive relief against United
States Attorney General Eric Holder, Jr. and FBI Director James Comey (collectively,
“Defendants”) in their official capacities alleging violations of the Privacy Act, 5 U.S.C. § 552a.
Agent Dick’s Privacy Act claims are based on a nationwide “Be on the Lookout” (“BOLO”)
alert that the FBI issued in response to a series of statements made by Agent Dick to agency
personnel after he was injured at a shooting range and unable to receive immediate medical
treatment. Defendants have moved to dismiss the Privacy Act causes of action under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon consideration of Defendants’ motion, and
the memoranda in support thereof and opposition thereto, the Court will grant the motion to
dismiss the Privacy Act claims. 1
1
On February 28, 2014, Agent Dick filed a first amended complaint. See generally
1st Amend. Compl., ECF No. 19. In the amended complaint, he sets forth new facts and causes
of action related to alleged employment discrimination by Defendants and the FBI. Through a
II. FACTUAL BACKGROUND
During all relevant times, Agent Dick was a GS-1811 Series Special Agent with the FBI. 2
See Compl., ECF No. 1, at ¶ 1. On the morning of May 7, 2013, Agent Dick arrived at a
shooting range in Quantico, Virginia, to undergo his quarterly firearms qualification testing. See
id. ¶ 87. While attempting to shoot a semi-automatic pistol, Agent Dick suffered an injury in the
form of a gash to his right hand between the thumb and forefinger. See id. ¶ 88. After the
instructor cleared him from the range, see id. ¶ 89, Agent Dick proceeded to the Heath Services
Unit at the Quantico Marine Corps Base, where he was asked to complete a questionnaire before
a doctor would provide treatment. See id. ¶ 90. When Agent Dick was unable to fill out the
questionnaire because of the hand injury, he left the Health Services Unit and drove to the Ready
Care Facility, which is a private healthcare provider in Stafford, Virginia. See id. ¶¶ 91-92. But
staff at the Ready Care Facility informed Agent Dick that his injury was too severe for them to
handle, and they directed him to a nearby urgent care facility for treatment. See id. ¶ 92.
After arriving at the urgent care facility, Agent Dick waited for roughly forty minutes
while a receptionist attempted to obtain approval from the Health Services Unit to begin
providing medical treatment. See id. ¶ 94. When the receptionist was unable to receive the
necessary authorization, a nurse practitioner at the facility attempted to clean Agent Dick’s
wound anyway. See id. But the severe pain from the cleaning process caused Agent Dick to
Minute Order dated February 28, 2014, the Court suggested, and the parties agreed, that the
amended complaint did not render Defendants’ motion to dismiss moot because the new
complaint left intact the allegations and claims for the Privacy Act causes of action. Because the
relevant briefs cite to the original complaint rather than the first amended complaint, the Court
refers to the original complaint throughout this Memorandum Opinion unless otherwise noted.
2
The complaint contains numerous allegations about Agent Dick’s employment
with the FBI going back for more than a decade. But because the Privacy Act claims at issue
today relate specifically to the BOLO, the Court focuses its attention only on the allegations
related to the alert.
2
pass out, see id. ¶ 95, and a physician’s assistant recommended stitches as the appropriate
treatment for the injury. See id. ¶ 96. The attending doctor, however, refused to provide further
medical treatment to Agent Dick until the facility received authorization from the Health
Services Unit. See id. at 98.
Frustrated with the Health Services Unit’s failure to grant approval for the necessary
treatment and with his hand wound still untreated, Agent Dick unsuccessfully attempted to call
the unit himself. See id. ¶¶ 99-101. At some unspecified later time, however, the FBI faxed
approval for medical treatment to the urgent care facility. See id. ¶ 101. Agent Dick then
received stitches and painkiller shots to his right hand, and he was prescribed antibiotics and
painkillers. See id. ¶ 102. After receiving this treatment, Agent Dick drove seventy-two miles
from the urgent care facility to his house. See id. ¶ 103. Upon arriving home around 12:30 or
1:00 PM, Agent Dick went to a local pharmacy to fill his prescriptions, but the pharmacist on
duty was unable to obtain authorization from the FBI to provide the medication. See id. ¶ 104.
Agent Dick then called the Health Services Unit, but he also was unable to obtain the necessary
approval. See id. ¶ 105. Still in pain and increasingly agitated by the lack of response from the
Health Services Unit, Agent Dick told a Health Services Unit employee over the telephone that
“he would personally come to the [FBI] to straighten out the approval process.” See id. Agent
Dick also “expressed displeasure at [Assistant Director of Human Resources] Bennett personally
because the Health Unit employee claimed that Mr. Bennett had limited their ability to
communicate approval authority and had revoked issuance of cell phones to facilitate and
address requests.” See id.
The next day, the FBI released a nationwide BOLO alert, which described Agent Dick as
a “Subject of Interest,” to “every conceivable local, state and federal law enforcement agency.”
3
See id. ¶¶ 106, 109. The alert included a variety of factual allegations about Agent Dick,
including that he had expressed “discord and made indirect threats to several different members
of varying divisions of both HQ and Quantico,” and that he was on “administrative leave during
a pending investigation.” Id. ¶ 106. The BOLO also stated that Agent Dick was “suspended due
to personal conduct,” and that his access to FBI Headquarters was revoked after he “made threats
against his chain of command.” Id. In addition, the BOLO contained personal information about
Agent Dick, including a “grim faced picture” of him, his social security number, and his address.
See id. Fox News ran a story about the May 8, 2013, BOLO, after which an FBI spokesman
issued a correction that the BOLO involved “a personnel matter” and there was no longer any
concern because Agent Dick had been located. Id. ¶ 109.
Through the instant lawsuit, Agent Dick alleges that after the BOLO alert, he suffered a
variety of negative consequences in his personal and professional life. For example, the FBI
allegedly suspended his security clearance the day after the BOLO was issued, 3 see id. ¶ 107,
and initiated a “Mandatory Fitness for Duty Examination” of both a psychological and
psychiatric nature on the basis that he had made a “series of disturbing statements and threats
against FBI employees,” see id. ¶¶ 113, 115. Agent Dick also allegedly “lost all outside
employment opportunities,” and was “shunned by neighbors and peers.” See id. ¶ 132. Finally,
Agent Dick asserts that his wife received information from FBI agents about his “employment
and his supposed lack of fitness and imminent termination, and was attempting to use that
information in the divorce proceedings.” Id. ¶ 112. In the complaint, Agent Dick alleges that he
did not make the threats described in the BOLO, and that he was not on administrative leave or
under investigation at the time of the alert. See id. ¶ 107.
3
In contradictory paragraphs, Agent Dick alleges that his security clearance was
suspended on both May 8, see Compl., ECF No. 1, at ¶ 111, and May 9, see id. ¶ 107.
4
III. LEGAL STANDARDS
A. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court
of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Thus, to
survive a Rule 12(b)(1) motion to dismiss, a plaintiff bears the burden of establishing that a court
has subject-matter jurisdiction over his claim. See Moms Against Mercury v. FDA, 483 F.3d
824, 828 (D.C. Cir. 2007). In determining whether jurisdiction exists, a court may “consider the
complaint supplemented by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for
Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted).
“Although a court must accept as true all the factual allegations contained in the complaint when
reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the 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.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170
(D.D.C. 2007) (citations omitted).
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint
must contain sufficient factual allegations, accepted as true, to “state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
5
556 U.S. 662, 678 (2009). When performing this analysis, a court must “accept as true all of the
factual allegations contained in the complaint and draw all inferences in favor of the nonmoving
party.” Autor v. Pritzker, 740 F.3d 176, 179 (D.C. Cir. 2014). But a “pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 557). Although a court generally cannot consider matters beyond the pleadings, it
may consider “documents attached as exhibits or incorporated by reference in the complaint, or
documents upon which the plaintiff’s complaint necessarily relies even if the document is
produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss[.]” See
Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal
citations and quotation marks omitted). 4
IV. ANALYSIS
As the U.S. Court of Appeals for the District of Columbia Circuit has explained, “[t]he
Privacy Act safeguards the public from unwarranted collection, maintenance, use and
4
The Court feels compelled to address an issue that arose in Agent Dick’s
opposition to the motion to dismiss, namely his confusion about the standards under Rules
12(b)(1) and 12(b)(6). Agent Dick suggests that Defendants attempted to convert their Rule
12(b)(6) motion into one for summary judgment. See Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss,
ECF No. 15, at 1. But nowhere in their arguments do Defendants cite evidence outside the four
corners of the complaint. Instead, the only supplemental evidence on which Defendants rely
comes within their Rule 12(b)(1) analysis regarding Agent Dick’s failure to exhaust
administrative remedies. See Defs.’ Mem. Supp. Mot. Dismiss, ECF No. 13, at 25-26. When
evaluating a Rule 12(b)(1) motion, a court may consider materials outside the pleadings to
determine whether jurisdiction exists. See, e.g., Settles v. U.S. Parole Comm’n, 429 F.3d 1098,
1107 (D.C. Cir. 2005); Coal. for Underground Expansion, 333 F.3d at 198. The Court therefore
rejects Agent Dick’s attempt to supplement the complaint by attaching affidavits and other
extraneous evidence to his opposition brief which were not incorporated by reference or relied on
in the complaint itself.
6
dissemination of personal information contained in agency records … by allowing an individual
to participate in ensuring that his records are accurate and properly used, and by imposing
responsibilities on federal agencies to maintain their records accurately.” Bartel v. FAA, 725
F.2d 1403, 1407 (D.C. Cir. 1984) (footnotes omitted). Subsection (g) of the Privacy Act
provides four scenarios under which an individual may bring a civil cause of action against a
federal agency, see 5 U.S.C. § 552a(g)(1)(A)-(D), but monetary recovery for actual damages, as
opposed to injunctive relief, is available only for claims brought under two provisions: §
552a(g)(1)(C) for failure to maintain accurate records, and § 552a(g)(1)(D) for failure to comply
with other provisions of the Privacy Act if the agency acted intentionally or willfully. See id. §
552a(g)(4); Scott v. Conley, 937 F. Supp. 2d 60, 77 (D.D.C. 2013) (“Actual damages are
available in suits for failure to maintain accurate records or failure to comply with other
provisions of the law if the agency acted intentionally or willfully.”).
In Count I, Agent Dick asserts a Privacy Act claim based on the FBI’s alleged
dissemination of false information through the May 8, 2013, BOLO alert, but he does not specify
under which provisions of the Privacy Act he seeks relief. Nonetheless, the Court and the parties
agree that he asserts claims under § 552a(g)(1)(C) for failure to maintain accurate records and §
552a(g)(1)(D) for improper disclosure in violation of § 552a(b). In Count II, Agent Dick asserts
a claim under § 552a(g)(1)(D) for failure to safeguard confidential information in violation of §
552a(e)(10). Finally, in addition to his request for $10 million in monetary damages, Agent Dick
seeks injunctive relief in the form of the FBI issuing a statement that withdraws information
from the BOLO and advises the public that Agent Dick is not a threat. For the reasons discussed
below, the Court concludes that Agent Dick has failed to state a claim for monetary relief in
7
Counts I and II, and failed to exhaust the necessary administrative remedies before seeking
injunctive relief such that the Court lacks subject-matter jurisdiction over that request.
A. The Proper Defendant
Before reaching the merits of Defendants’ motion to dismiss, the Court must address
Agent Dick’s continued failure to name a proper defendant in this lawsuit. In the complaint,
Agent Dick names as defendants United States Attorney General Eric Holder, Jr., former FBI
Director Robert Mueller, III, and “Other Unknown Defendants.” 5 But the law is clear that only
federal agencies, not individuals, are the proper defendants for a Privacy Act cause of action.
See 5 U.S.C. § 552a(g)(1) (stating that an “individual may bring a civil action against the
agency”); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (“[T]he district
court properly dismissed the named individual defendants because no cause of action exists that
would entitle appellant to relief from them under the Privacy Act or FOIA.” (citations omitted));
Earle v. Holder, 815 F. Supp. 2d 176, 180 (D.D.C. 2011) (“[T]he Privacy Act does not authorize
claims against individuals.”).
In his opposition to Defendants’ motion to dismiss, Agent Dick appears to concede that
he has not named a legitimate defendant, see Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss, ECF No.
15, at 2 n.1, yet he makes no effort to correct this error through a motion or other filing. Instead,
he seems content to rely on the Court to substitute an agency as the proper defendant on his
behalf. Although the Court is surprised by Agent Dick’s dilatory approach to this issue, it
nonetheless will dismiss the Privacy Act claims against the individual defendants and substitute
the FBI as the proper defendant for these claims moving forward. See Cloonan v. Holder, 768 F.
5Pursuant to Rule 25(d), James B. Comey was substituted for former FBI Director
Mueller, and it is unclear if Agent Dick dropped the “Other Unknown Defendants” in the first
amended complaint. See 1st Amend. Compl., ECF No. 19, at ¶¶ 2-3.
8
Supp. 2d 154, 162 (D.D.C. 2011) (distinguishing the Privacy Act from the Freedom of
Information Act and explaining that “naming components as defendants under the Privacy Act is
appropriate since the statute’s plain language is clear that ‘an agency need not be a cabinet-level
agency such as the DOJ’ to be liable”) (quoting Lair v. Dep’t of Treasury, No. 03 Civ. 827, 2005
WL 645228, at *3 (D.D.C. Mar. 21, 2005)).
B. Count I: Improper Disclosure Under 5 U.S.C. §§ 552a(g)(1)(D) and 552a(b)
Subsection 552a(g)(1)(D), which is described as the Privacy Act’s “catchall” provision,
see Cacho v. Chertoff, No. 06-00292, 2006 WL 3422548, at *4 (D.D.C. Nov. 28, 2006), provides
a civil cause of action whenever a government agency “fails to comply with any other provision
of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on
an individual.” 5 U.S.C. § 552a(g)(1)(D). Thus, to state a claim for relief under the subsection,
which works in conjunction with § 552a(g)(4), a plaintiff must establish that (1) the agency
violated another provision of the Privacy Act, (2) the violation was intentional or willful, and (3)
the violation had an adverse effect on the plaintiff. See Paige v. DEA, 665 F.3d 1355, 1358-59
(D.C. Cir. 2012) (citing 5 U.S.C. §§ 552a(g)(1)(D) & 552a(g)(4)).
Although Count I of the complaint does not specify the underlying Privacy Act violation
on which the § 552a(g)(1)(D) claim rests, Agent Dick alleges that the Act “prohibits the
disclosure by a federal agency of any record contained in a system of records to any person or
another agency unless the disclosure falls within a listed exception.” Compl., ECF No. 1, at ¶
119. Defendants therefore argue, and Agent Dick concurs through his opposition to the motion
to dismiss, that Count I includes a cause of action for improper disclosure pursuant to § 552a(b)
of the Privacy Act. The Court agrees and will evaluate the claim pursuant to the requirements of
§§ 552a(g)(1)(D) and 552a(b).
9
1. Subsection 552a(b) Exemptions
Subsection 552a(b) of the Privacy Act generally prohibits government agencies from
disclosing confidential files without the consent of the individual. See Bigelow v. DOD, 217
F.3d 875, 876 (D.C. Cir. 2000). An agency, however, may legally disclose protected information
without consent if one of twelve statutory exemptions applies. See 5 U.S.C. § 552a(b)(1-12)
(listing the twelve exemptions). Defendants argue that three of the twelve exemptions are
applicable here, namely the provisions permitting disclosure “to those officers and employees of
the agency which maintains the record who have a need for the record in the performance of
their duties,” id. § 552a(b)(1); “for routine use,” id. § 552a(b)(3); and “to a person pursuant to a
showing of compelling circumstances affecting the health or safety of an individual if upon such
disclosure notification is transmitted to the last known address of such individual,” id. §
552a(b)(8). For the reasons outlined below, the Court concludes that none of the three
exemptions are applicable in this instance.
a. Subsection 552a(b)(1): Need To Know Exemption
Subsection 552a(b)(1) permits disclosure “to those officers and employees of the agency
which maintains the record who have a need for the record in the performance of their duties.”
When performing the § 552a(b)(1) inquiry, a court must ask “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, 217 F.3d at 877 (describing this inquiry as
the “point” of the exemption); see also Cacho, 2006 WL 3422548, at *4 (“What matters then is
the ‘need to know’ of the agency official who received the disclosure, not the authority of the
agency official who made the disclosure.”). The Court finds that the “need to know” exemption
does not apply for two reasons.
10
First, as Defendants acknowledge, § 552a(b)(1) does not authorize disclosure outside the
“agency,” which this Court has defined broadly to include sharing between component agencies
underneath the umbrella of the Department of Justice (“DOJ”), not just the specific agency that
originally held the information, such as the FBI in this instance. See Sussman v. U.S. Marshals
Serv., 808 F. Supp. 2d 192, 203 (D.D.C. 2011) (concluding that § 552a(b)(1) was intended to
permit disclosure of information between component agencies of the DOJ). Here, Agent Dick
alleges that the nationwide BOLO alert was issued “to every conceivable local, state and federal
law enforcement agency.” Compl., ECF No. 1, at ¶ 109. Thus, accepting this allegation as true
for the purposes of resolving Defendants’ motion, the “need to know” exemption provides no
defense to the FBI’s dispersal of information about Agent Dick to those law enforcement
officials outside the DOJ and its component agencies. Cf. In re Sealed Case, 551 F.3d 1047,
1051 (D.C. Cir. 2009) (noting that the “Privacy Act generally requires agencies to obtain written
consent for and to keep an accounting of disclosures of information outside the agency” (citing
§§ 552a(b)(1) & 552a(c)).
Second, § 552a(b)(1) does not mechanically authorize the agency-wide release of
information, which is what Defendants appear to be seeking. See Defs.’ Mem. Supp. Mot.
Dismiss, ECF No. 13, at 11. Instead, the exemption permits disclosure only “to those officers
and employees of the agency” who actually needed to receive the information. See 5 U.S.C. §
552a(b)(1). Although this exemption is not limited “only to officers and employees within a
certain office within an agency rather than to officers and employees of the entire agency,”
Hanna v. Herman, 121 F. Supp. 2d 113, 123-24 (D.D.C. 2000), a party relying on § 552a(b)(1)
still must demonstrate that each official received the “record in connection with the performance
of duties assigned to him” and that “he had to do so in order to perform those duties properly.”
11
Bigelow, 217 F.3d at 877. It is not entirely clear from the complaint who within the FBI received
the BOLO, but the Court may reasonably infer from Agent Dick’s allegations that the alert was
blasted indiscriminately throughout the agency and not just specifically to those who may have
needed to receive it in connection with their job responsibilities. Under such a situation,
permitting agency-wide distribution under § 552a(b)(1) without any showing of why each
employee needed to receive the information would allow the exception to swallow the rule; as
such, the Court cannot conclude that the FBI’s disclosure of information through the BOLO was
authorized by § 552a(b)(1).
b. Subsection 552a(b)(3): Routine Use Exemption
Another exemption to § 552a(b) permits disclosure of a protected record for a “routine
use.” 5 U.S.C. § 552a(b)(3). The Privacy Act defines “routine use” as “the use of [a] record for
a purpose which is compatible with the purpose for which it was collected.” Id. § 552a(a)(7).
The Privacy Act also states that agencies must “publish in the Federal Register upon
establishment or revision a notice of the existence and character of the system of records, which
notice shall include … each routine use of the records contained in the system, including the
categories of users and the purpose of such use.” Id. § 552a(e)(4)(D); see also Radack v. DOJ,
402 F. Supp. 2d 99, 105 (D.D.C. 2005) (“In order to ensure that people are aware of the purposes
for which their information might be disclosed, agencies are required to publish each routine use
in the Federal Register.”). Thus, to successfully invoke the “routine use” exemption, a
government agency must demonstrate both compatibility with the purpose for which the record
was collected and publication in the Federal Register. See Dep’t of the Air Force v. FLRA, 104
F.3d 1396, 1401-02 (D.C. Cir. 1997); Radack, 402 F. Supp. 2d at 105 (“The government must …
12
demonstrate both ‘compatibility’ and publication in the Federal Register in order to successfully
invoke the routine use exception.”).
In support of their motion to dismiss, Defendants argue that the publication and
compatibility elements are satisfied by citing to guidelines in the Federal Register regarding the
personnel records of federal employees held by the Office of Personnel Management. See Defs.’
Reply Mem. Supp. Mot. Dismiss, ECF No. 17, at 7-8. Specifically, the Publication of Notice of
Systems of Records addresses the routine uses of “general personnel records files[,] … reports of
personnel actions, and the documentation required in connection with these actions effected
during an employee’s Federal service.” Publication of Notice of Systems of Records, 71 Fed.
Reg. at 35343. These records “provide the basic source of factual data about a person’s Federal
employment while in the service and after his or her separation,” and are used by an agency for
“screening qualifications of employees; determining status, eligibility, and employee’s rights and
benefits under pertinent laws and regulations governing Federal employment; [and] computing
length of service.” Id. The Federal Register then identifies the following “routine use” for these
records:
To disclose pertinent information to the appropriate Federal, State, or local
agency responsible for investigating, prosecuting, enforcing, or implementing a
statute, rule, regulation, or order, when the disclosing agency becomes aware of
an indication of a violation or potential violation of civil or criminal law or
regulation.
Id. at 35348-49. Although the Court finds that the publication requirement is satisfied, it cannot
conclude that, given Agent Dick’s allegations, the compatibility element is met.
Defendants suggest that the FBI’s disclosure of information in the BOLO to law
enforcement agencies was compatible with the purpose of collecting personal information to
screen employees and determine their status. See Defs.’ Reply Mem. Supp. Mot. Dismiss, ECF
No. 17, at 8. Quite clearly, however, the information more plausibly was disclosed through the
13
BOLO not for the purpose of determining Agent Dick’s employment status or eligibility, but
rather so that other law enforcement agencies might locate, and perhaps apprehend, him. Cf.
Doe v. DOJ, 660 F. Supp. 2d 31, 48 (D.D.C. 2009) (finding that the “routine use” exemption
applied when the DOJ disclosed plaintiff’s records to determine his eligibility for unemployment
benefits because that was compatible with the purpose of collecting information to determine
employment status and eligibility).
Nonetheless, looking at the likely purpose for which the FBI initially released the
information, the Court is not convinced that the contours of the “routine use” described above
were satisfied, namely because Agent Dick’s allegations require the Court to infer that the
BOLO was not disseminated just to “appropriate Federal, State, or local agenc[ies].”
Publication of Notice of Systems of Records, 71 Fed. Reg. at 35348-49 (emphasis added).
Indeed, Agent Dick alleges that the BOLO was issued nationwide “to every conceivable local,
state and federal law enforcement agency,” even though the complaint suggests that Agent Dick
never left the D.C. metropolitan area. See Compl., ECF No. 1, at ¶ 109. The Court therefore
cannot conclude at this time that the compatibility requirement for the proscribed “routine use”
exemption was satisfied.
c. Subsection 552a(b)(8): Compelling Circumstances Exemption
The Privacy Act also permits disclosure in “compelling circumstances affecting the
health or safety of an individual if upon such disclosure notification is transmitted to the last
known address of such individual.” 5 U.S.C. § 552a(b)(8). The complaint, however, makes no
mention of Agent Dick receiving such notice, and Defendants fail to address this issue in their
motion to dismiss or through their reply memorandum after Agent Dick raised the issue in his
opposition brief. Accordingly, the Court must conclude at this time that the “compelling
14
circumstances” exemption does not apply. Cf. Stafford v. SSA, 437 F. Supp. 2d 1113, 1121
(N.D. Cal. 2006) (holding, without further analysis, that defendant-agency “cannot satisfy [the
compelling circumstances] exception … because it did not provide the requisite notice of the
disclosure to Plaintiff after making the disclosure”).
2. Elements Of A Claim Under §§ 552a(g)(1)(D) and 552a(b)
Because no exemptions apply, the Court next turns to the elements of a claim for
monetary damages under §§ 552a(g)(1)(D) and 552a(b). Thus, Agent Dick must allege the
following: (1) that the disclosed information is a “record” contained within a “system of
records”; (2) that the agency improperly disclosed the information; (3) that the disclosure was
willful or intentional; and (4) that the disclosure adversely affected him. See Reed v. Dep’t of the
Navy, 910 F. Supp. 2d 32, 40 (D.D.C. 2012); Logan v. Dep’t of Veterans Affairs, 357 F. Supp. 2d
149, 154 (D.D.C. 2004). Defendants assert that Agent Dick has failed to allege facts satisfying
each of the four elements, and the Court addresses these arguments below.
a. System of Records
The Privacy Act defines a “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 identifying number, symbol, or other identifying particular assigned to the individual[.]” 5
U.S.C. § 552a(a)(5). Thus, under the Privacy Act a “‘system of records exists only if the
information contained within the body of material is both retrievable by personal identifier and
actually retrieved by personal identifier.’” Paige v. DEA, 665 F.3d 1355, 1359 (D.C. Cir. 2012)
(quoting Maydak v. United States, 630 F.3d 166, 178 (D.C. Cir. 2010) (emphasis in original));
see also Feldman v. CIA, 797 F. Supp. 2d 29, 38 (D.D.C. 2011) (“Under the so-called ‘retrieval
rule,’ the Privacy Act only covers disclosures of information that was either directly or indirectly
15
retrieved from a system of records.” (internal citation, quotation, and alteration omitted)). By
contrast, the disclosure of information “acquired from non-record sources — such as
observation, office emails, discussions with co-workers and the ‘rumor mill’ — does not violate
the Privacy Act …, even if the information disclosed is also contained in agency records.”
Cloonan v. Holder, 768 F. Supp. 2d 154, 164 (D.D.C. 2011) (citations omitted); see also Krieger
v. DOJ, 529 F. Supp. 2d 29, 47 (D.D.C. 2008) (“Information derived solely from independent
sources is not prohibited by the statute even though identical information may be contained in an
agency system of records.”).
For the following reasons, the Court finds that, granting all reasonable inferences in favor
of Agent Dick, the complaint contains sufficient factual allegations to plausibly suggest that the
information in the BOLO was retrieved from a “system of records,” rather than from
independent sources. First, the Court can easily infer that Agent Dick’s personal identification
information — such as his date of birth, social security number, and home address — was
retrieved from his personnel file as maintained through the agency’s recordkeeping system. See
Compl., ECF No. 1, at ¶ 120. But Agent Dick’s conclusory allegation that the “false, malicious
and misleading statements [in the BOLO] … were drawn from a personal record,” creates a
closer call that requires further analysis into the other allegations in the complaint. Specifically,
in making this allegation Agent Dick is referring to the statements in the BOLO about his threats
against FBI officials, his security clearance being suspended, and him being banned from FBI
property. See, e.g., Compl., ECF No. 1, at ¶ 106 (“The BOLO claimed SA Dick could not enter
FBI spaces, had expressed ‘discord and made indirect threats to several different members of
varying divisions of both HQ and Quantico.’… The BOLO contended that his access to FBI
16
Headquarters had been revoked and that SA Dick had ‘made threats against his chain of
command.’”).
To start, there are no non-conclusory allegations regarding whether information about
Agent Dick’s alleged threats was contained in a system of records, or regarding when or how the
individuals who prepared the BOLO accessed such a system to obtain the information. Indeed,
given the near-contemporaneous timing of the alleged threats in relation to the BOLO, one
possible inference is that this information came from an independent source, such as perhaps the
direct recipient of Agent Dick’s remarks, which would be insufficient to maintain a Privacy Act
claim under §§ 552a(g)(1)(D) and 552a(b). See Feldman, 797 F. Supp. 2d at 38 (“[T]he
disclosure of information derived solely from independent sources is not prohibited by the
[Privacy Act] even though identical information may be contained in a system of records.”
(citations omitted)).
There likewise are no direct factual allegations regarding whether information about
Agent Dick’s security clearance being suspended was contained in, and subsequently retrieved
from, a system of records before being disclosed through the BOLO. In fact, if one of Agent
Dick’s allegations is correct, his security clearance was not suspended until May 9, the day after
the BOLO, so it would be implausible to infer that an official record of his suspension existed
before the suspension occurred. See Compl., ECF No. 1, at ¶ 107. Agent Dick also alleges,
however, that his clearance was suspended on May 8, see id. ¶ 111, which increases the
plausibility that this information was contained in a system of records at some point in time
before the BOLO was released. A similar analysis applies to statements in the BOLO about
Agent Dick being banned from FBI Headquarters, see id. ¶ 107, as there are no direct allegations
suggesting that such information ever was contained in a system of records.
17
Nonetheless, the Court is satisfied that Agent Dick has alleged sufficient facts to raise a
plausible claim that the information described above was contained in a system of records at
some point in time before being retrieved and inserted into the BOLO. First, given that the
personal background details about Agent Dick were likely retrieved from a system of personnel
records, it is reasonable to infer that the FBI did the same thing for the other information in the
BOLO about Agent Dick’s employment status and the alleged threats. Second, Agent Dick’s
threats were allegedly made to a different unit within the FBI (the Health Services Unit) than the
unit that released the BOLO (the Intelligence and Liaison Office), so the information had to have
been transferred within the agency at some time, and one plausible method of that occurring was
through a common system of records shared by the FBI units. Third, the FBI is a very large law
enforcement agency, so it is more plausible that the agency compiled information for the BOLO
from an internal system of records than from separately talking to each employee who directly
interacted with Agent Dick. Thus, though it is a close call, for purposes of this motion the Court
is willing to assume that Agent Dick has satisfied this element of the Privacy Act claim.
b. Adverse Effects And Causation
Next, even if some or all of the information disclosed through the BOLO was contained
in and retrieved from a system of records, civil remedies are available only when the government
agency made a disclosure “in such a way as to have an adverse effect on [the plaintiff].” 5
U.S.C. § 552a(g)(1)(D); see also Gamble v. Dep’t of the Army, 567 F. Supp. 2d 150, 155 (D.D.C.
2008) (“Plaintiff is entitled to civil remedies under § 552a(b) only if the violation had an
‘adverse effect’ on him.”). Agent Dick asserts a variety of effects he allegedly suffered after the
BOLO, including that he was suspended from work without pay, his security clearance was
suspended, he was required to attend a mandatory fitness for duty examination, he lost outside
18
employment opportunities, he was shunned by neighbors and peers, and information from the
BOLO was used in his divorce and child custody proceedings. See Compl., ECF No. 1, at ¶¶
111, 113, 132; Am. Compl., ECF No. 19, at ¶¶ 215-16. Accepting that these events qualify as
adverse effects under § 552a(g)(1)(D) for the limited purpose of the immediate discussion, Agent
Dick fails to provide allegations plausibly suggesting a causal link between the BOLO and the
adverse effects.
For example, Agent Dick alleges that his wife “received information from Bureau
agents,” not the BOLO, regarding his employment, so the Court cannot reasonably infer
causation for that alleged adverse effect. See id. ¶ 112. The same is true for the mandatory
fitness test. Agent Dick alleges that the FBI “has stated as grounds for its examination that
Plaintiff made a ‘series of disturbing statements and threats against FBI employees.’” Id. ¶ 115.
The plain language of the complaint therefore only suggests that it was Agent Dick’s
independent actions, not the BOLO — which merely describes his actions in far more limited
terms — that prompted the FBI to mandate testing. There likewise is no basis to infer that
information in the BOLO caused the FBI to suspend Agent Dick’s security clearance because the
BOLO itself stated that his clearance already was suspended at the time the alert was issued. See
id. ¶ 106. And even if Agent Dick was suspended the day after the BOLO, as he suggests in a
contradictory allegation, see id. ¶ 107, the BOLO specified that Agent Dick was “suspended due
to personal conduct,” namely the threatening comments he allegedly made, not because of any
separate information contained exclusively in the BOLO. See id. ¶ 106; cf. Pippinger v. Rubin,
129 F.3d 519, 530-31 (10th Cir. 1997) (explaining that “the mere fact that information contained
in Pippinger’s personnel files was well-known in his workplace does not give rise to an inference
that such knowledge was widespread because of a disclosure from Pippinger’s personnel files,”
19
because the Privacy Act “does not prevent federal employees or officials from talking — even
gossiping — about anything of which they have non-record-based knowledge” (citation
omitted)). For similar reasons, Agent Dick’s conclusory allegation that he “has lost all outside
employment opportunities as a result of the BOLO” does not withstand even cursory analysis.
The complaint provides no allegations about the jobs for which Agent Dick applied or about
what role the BOLO played in any employer’s decision, including whether any potential
employer even knew the BOLO existed.
Finally, the Court cannot reasonably infer that Agent Dick’s suspension without pay,
which occurred on June 19, 2013, was directly traceable to the BOLO. See Am. Compl., ECF
No. 19, at ¶ 215. As Agent Dick alleges in the amended complaint, “[t]he suspension was
ostensibly to determine whether [Agent] Dick’s conduct presented a security issue[.]… Its real
reason for the suspension was because it perceived [Agent] Dick as mentally impaired.” Id. ¶
216. Whether the actual impetus for the suspension was Agent Dick’s conduct or the agency’s
alleged belief that he was mentally impaired, both of those factors are separate and independent
from the BOLO. Indeed, the BOLO may in fact be a manifestation of the FBI’s misplaced
beliefs about Agent Dick’s mental condition, but that does not mean the BOLO itself actually
caused the suspension, as opposed to factors independent from the alert. The same holds true if
the suspension was based on Agent Dick’s alleged threatening conduct because though the
BOLO may have briefly described some of that behavior, the allegations in the complaint
suggest only that the conduct prompted the suspension, not the description of that conduct in the
BOLO. The Court therefore concludes that the complaint fails to allege facts plausibly
suggesting that any of the alleged adverse effects were caused by the disclosure of information in
the BOLO, rather than from an independent source not covered by the Privacy Act.
20
Accordingly, Agent Dick’s § 552a(g)(1)(D) claim in Count I must be dismissed, and the Court
need not consider the remaining elements.
C. Count I: Failure To Maintain Accurate Records Under 5 U.S.C. § 552a(g)(1)(C)
Subsection 552a(g)(1)(C) of the Privacy Act affords a cause of action for monetary
damages whenever an agency
fails to maintain any record concerning any individual with such accuracy,
relevance, timeliness, and completeness as is necessary to assure fairness in any
determination relating to the qualifications, character, rights, or opportunities of,
or benefits to the individual that may be made on the basis of such record, and
consequently a determination is made which is adverse to the individual.
5 U.S.C. § 552a(g)(1)(C). This subsection thus provides a civil remedy if an agency fails to
satisfy the standard in § 552a(e)(5), which imposes a statutory duty to “maintain all records
which are used by the agency in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to
the individual in the determination.” Id. § 552a(e)(5); see also Deters v. U.S. Parole Comm’n,
85 F.3d 655, 660 (D.C. Cir. 1996) (“Subsection (g)(1)(C) provides a civil remedy if an agency
fails to satisfy the standard in subsection (e)(5) ‘and consequently a determination is made which
is adverse to the individual.’” (quoting 5 U.S.C. § 552a(g)(1)(C)). A plaintiff seeking damages
for failure to maintain records “must sue under subsection (g)(1)(C) and not subsection
(g)(1)(D).” Deters, 85 F.3d at 660.
To survive the motion to dismiss, Agent Dick must allege facts showing that: (1) he was
aggrieved by an adverse determination; (2) the FBI failed to maintain his records with the degree
of accuracy necessary to assure fairness in the determination; (3) the FBI’s reliance on the
inaccurate records was the proximate cause of the adverse determination; and (4) the FBI acted
intentionally or willfully in failing to maintain accurate records. See Chambers v. Dep’t of
Interior, 568 F.3d 998, 1007 (D.C. Cir. 2009); Gard v. Dep’t of Educ., 789 F. Supp. 2d 96, 106
21
(D.D.C. 2011). But as is explained below, the Court finds that the BOLO is exempt from the
Privacy Act’s maintenance requirement, so Agent Dick’s claim fails as a matter of law. In
addition, even if the BOLO was not exempt, the Court finds that the claim requires dismissal
because Agent Dick again fails to establish causation between the BOLO and the alleged harm.
1. Statutory Exemption Of Certain FBI Records
As a threshold matter, Defendants argue that Agent Dick’s claim for monetary damages
under § 552a(g)(1)(C) fails because, pursuant to 28 C.F.R. § 16.96, the FBI’s Central Records
System is exempt from the maintenance requirement of § 552a(e)(5). See Defs.’ Mem. Supp.
Mot. Dismiss, ECF No. 13, at 20. Exemption (j)(2) of the Privacy Act allows the head of a law
enforcement agency to promulgate rules to exempt “any system of records” consisting of
“information compiled for the purpose of a criminal investigation, including reports of
informants or investigators, and associated with an identifiable individual.” 5 U.S.C. §
552a(j)(2)(B). The Attorney General has established regulations pursuant to this subsection that
exempt materials in the FBI’s Central Records System from various provisions of the Privacy
Act — including the maintenance requirement of § 552a(e)(5) — provided that the records at
issue were compiled for a law enforcement purpose. See 28 C.F.R. § 16.96(a); Doe v. FBI, 936
F.2d 1346, 1353 (D.C. Cir. 1991) (“Although both subsections (j) and (k) refer to ‘systems of
records,’ we have previously held that 28 C.F.R. § 16.96 (1990), the FBI exemption regulation
respecting its CRS [Central Records System], does not remove that entire filing system from the
requirements of the Act; rather, CRS documents qualify for exemption only if they constitute law
enforcement records within the meaning of the statute.”); cf. Vymetalik v. FBI, 785 F.2d 1090,
1095 (D.C. Cir. 1986) (discussing the broad contours of the Privacy Act and the law enforcement
exemptions).
22
Agent Dick argues that the exemption in 28 C.F.R. § 16.96 does not apply because
Defendants have “not stated a law enforcement purpose for the BOLO or the information it
contained.” Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss, ECF No. 15, at 19. Such an argument is
untenable, however, because the BOLO, at the time it was issued, clearly served a law
enforcement purpose in locating Agent Dick and warning others about potential risks if they
came into contact with him. Thus, to the extent Agent Dick seeks monetary damages for the
FBI’s alleged failure to maintain accurate information in the BOLO, his claim fails.
2. Adverse Determination And Causation
Even if the FBI record was not exempt from the Privacy Act’s maintenance requirement,
Agent Dick’s allegations still would fail to satisfy the necessary elements of a claim under §
552a(g)(1)(C). Pursuant to this subsection, Agent Dick must allege, among other things, that he
was aggrieved by an adverse determination, which is defined as a decision “resulting in the
denial of a right, benefit, entitlement, or employment by an agency which the individual could
reasonably have been expected to have been given if the record had not been deficient.” Lee v.
Geren, 480 F. Supp. 2d 198, 210 (D.D.C. 2007) (citing Privacy Act Implementation: Guidelines
and Responsibilities, Office of Personnel Management, 40 Fed. Reg. at 28,969 (July 9, 1975)).
In the original complaint, Agent Dick alleges that the BOLO caused the FBI to suspend his
security clearance and force him to submit to a mandatory fitness for duty examination. See
Compl., ECF No. 1, at ¶¶ 111, 113, 131. In addition, Agent Dick alleges in the amended
complaint that the FBI suspended him indefinitely without pay on June 19, 2013. See Am.
Compl., ECF No. 19, at ¶¶ 215-16.
A suspension from work, even if temporary, qualifies as an adverse determination under
the Privacy Act, so Agent Dick has alleged at least one event that satisfies § 552a(g)(1)(C). See
23
Lee, 480 F. Supp. 2d at 210 (stating that the “adverse determination” was plaintiff’s fourteen-day
suspension). On the other hand, although his security clearance was suspended pending further
review, no final decision has yet been made that would rise to the level of an adverse
determination for purposes of the Privacy Act. See Am. Compl., ECF No. 19, at ¶ 223; Prows v.
DOJ, No. 87-1657, 1988 WL 8256, at *6 (D.D.C. 1988) (finding no adverse determination when
plaintiff-prisoner was concerned that the Parole Commission might deny him parole on the basis
of erroneous information in his file, but no such adverse determination had yet been made).
Likewise, the mandatory fitness requirement appears not to constitute an adverse determination
for purposes of the Privacy Act because, to date, it has denied him no right or privilege of
employment, but rather has imposed only a condition of employment which Agent Dick is
separately challenging. See Am. Compl., ECF No. 19, at ¶¶ 176-202.
Agent Dick’s other allegations about lost outside employment opportunities, being
shunned by neighbors and peers, and having the BOLO used as evidence at his divorce
proceedings also do not amount to adverse determinations by an agency. See Lee, 480 F. Supp.
2d at 210. For example, in Chambers v. Department of the Interior, the plaintiff alleged that a
lost record hampered her ability to apply for government jobs. 568 F.3d 998, 1007 (D.D.C.
2009). The Court held that “[s]uch an adverse effect … is not enough to make out a claim under
subsection (g)(1)(C), which requires a specific ‘adverse determination’ resulting from an
agency’s failure to maintain accurate records.” Id. (footnote omitted); see also Lee, 480 F. Supp.
2d at 210 (“Plaintiff also alleges generally that the Army’s refusal to amend his records has
adversely affected his ‘prospects for future employment, whether governmental or non-
governmental,’ but he has not alleged any corresponding concrete, adverse determinations, as he
must to state an adverse-determination claim.” (citation omitted)). Thus, these alleged
24
consequences do not qualify under § 552a(g)(1)(C) because they do not rise to the level of a
“concrete” determination made by the agency. See McCready v. Nicholson, 465 F.3d 1, 12 (D.C.
Cir. 2006) (“Quite simply, the text of the statute conditions relief upon a concrete, adverse
determination.”); see also Doe v. FBI, 718 F. Supp. 90, 105 (D.D.C. 1989) (stating that
“[r]eputational injury simply does not qualify” as an adverse determination under §
552a(g)(1)(C)).
The Court therefore finds that Agent Dick has alleged an adverse determination at least
through his suspension without pay. The mandatory fitness examination and suspended security
clearance are closer calls, but even if the Court accepts them as adverse determinations, they are
insufficient for maintaining the Privacy Act claim because causation is absent. Specifically, it is
not enough to simply allege that an adverse determination occurred; instead, Agent Dick also
must demonstrate that the FBI’s reliance on the allegedly inaccurate record caused that
determination. See Lee, 480 F. Supp. 2d at 210; Thompson v. Dep’t of State, 400 F. Supp. 2d 1,
19 (D.D.C. 2005) (explaining that a plaintiff must “show not only that the inaccurate records
were considered in making the determination, but that an error in the records caused the
determination” (emphasis in original)). The Court, however, already has determined that the
complaint lacks sufficient allegations from which it can reasonably infer that the BOLO caused
Agent Dick to be suspended without pay, and even if the Court accepts that the security
clearance suspension or mandatory fitness examination constitutes an adverse determination
under § 552a(g)(1)(C), dismissal is required for these events as well because, for the same
reasons as in the § 552a(g)(1)(D) analysis, the complaint fails to state a plausible claim that any
information in the BOLO, let alone any specific inaccurate information, caused the
determinations. As such, the Court must dismiss Agent Dick’s § 552a(g)(1)(C) claim.
25
D. Count II: Failure To Safeguard Records Under 5 U.S.C. §§ 552a(g)(1)(D) and
552a(e)(10)
In Count II, Agent Dick alleges that the FBI violated § 552a(e)(10) of the Privacy Act “in
that it utterly failed to safeguard Plaintiff’s confidential protected personnel and employment
information from being disseminated in a way that could cause ‘harm, embarrassment,
inconvenience, or unfairness’ to Plaintiff.” Compl., ECF No. 1, at ¶ 134. Subsection
552a(e)(10) requires an agency to “establish appropriate administrative, technical and physical
safeguards to insure the security and confidentiality of records.” 5 U.S.C. § 552a(e)(10). To
maintain a civil action under this subsection through § 552a(g)(1)(D), a “plaintiff must identify a
rule or safeguard … that [DOJ] should have established but did not.” Doe v. DOJ, 660 F. Supp.
2d 31, 43 (D.D.C. 2009) (internal citation and quotation omitted; alteration in original); see also
Chambers v. Dep’t of Interior, 568 F.3d 998, 1007 n.7 (D.C. Cir. 2009) (holding that plaintiff’s §
552a(e)(10) claim failed because he “has not identified any rule or safeguard … that [the
defendant-agency] should have established but did not”).
The DOJ, and by extension the FBI, has “‘promulgated extensive regulations codified at
28 C.F.R. §§ 16.1 et seq. that safeguard its Privacy Act-protected records[.]’” Doe, 660 F. Supp.
2d at 43 (quoting Krieger v. DOJ, 529 F. Supp. 2d 29, 54-55 (D.D.C. 2008)). The DOJ also has
“issued numerous rules and regulations regarding the maintenance of records,” see id., and Agent
Dick has failed to identify any rule or safeguard that was breached or that should have been in
place but was not. See Gard v. U.S. Dep’t of Educ., 789 F. Supp. 2d 96, 109-10 (D.D.C. 2011)
(granting summary judgment when “the case record contains no evidence that [the defendant-
agency’s] record system lacked adequate safeguards or that any information from [plaintiff’s]
file was released because of a breach in that system’s integrity”); Kvech v. Holder, No. 10-545,
26
2011 U.S. Dist. LEXIS 105541, at *20 n.11 (D.D.C. Sept. 19, 2011) (rejecting § 552a(e)(10)
claim when there was “nothing in [the] complaint which might indicate that the employees
obtained the information because the FBI’s ‘administrative and technical safeguards’ were
insufficient ‘for the adequate protection of the confidentiality of the particular information it
keeps.’” (citations omitted)); cf. Pilon v. DOJ, 796 F. Supp. 7, 12-13 (D.D.C. 1992) (finding that
§ 552a(e)(10)’s inadequate safeguard element was satisfied when plaintiff “pleaded that the
disclosures which are the subject of this lawsuit occurred after the [DOJ] became aware of
several prior disclosures regarding this plaintiff and several requests for investigation and
corrective action”). Because Agent Dick fails to allege facts plausibly showing a § 552a(e)(10)
violation, the Court must grant Defendants’ motion to dismiss Count II.
E. Injunctive Relief As To Counts I And II
In his Prayer for Relief, Agent Dick requests “injunctive and mandamus type relief” in
the form of the FBI issuing a “statement that withdraws the information contained in the BOLO
and advises law enforcement and the public at large that Special Agent Dick is not a threat.”
Compl., ECF No. 1, Prayer For Relief ¶ D. It is well settled that this Court lacks jurisdiction
when a plaintiff fails to exhaust administrative remedies before seeking injunctive relief under §
552a(g)(1)(A). See, e.g., Dickson v. Office of Pers. Mgmt., 828 F.2d 32, 41 (D.C. Cir. 1987);
Kursar v. TSA, 581 F. Supp. 2d 7, 17 (D.D.C. 2008). This is because § 552a(g)(1)(A) only
permits an individual to bring a civil action against an agency when “an agency ... makes a
determination under [§ 552a(d)(3)] not to amend an individual’s record in accordance with his
request, or fails to make such review in conformity with that subsection.” Subsection
552a(d)(3), in turn, establishes the administrative procedure a party must follow when seeking to
27
amend an agency record. See 5 U.S.C. § 552a(d)(3); see also McCready v. Nicholson, 465 F.3d
1, 14 (D.C. Cir. 2006) (discussing §§ 552a(g)(1)(A) & 552a(d)(3)).
Defendants move to dismiss Agent Dick’s request for injunctive relief under Rule
12(b)(1) on the basis that the Court lacks jurisdiction to hear the claim because Agent Dick has
not exhausted the administrative remedies. In response, Agent Dick does not argue that he has
exhausted the administrative procedures delineated in § 552a(d)(3). Instead, he offers four
arguments for why injunctive relief remains available as a remedy for his Privacy Act claims in
Counts I and II: first, exhaustion was not required because he seeks injunctive relief under §
552a(g)(1)(D), not the correction of an administrative record under § 552a(g)(1)(A); second,
exhaustion was not required because the FBI never advised him of the administrative review
process; third, even if exhaustion was required, doing so was futile; and fourth, policy
considerations require the Court to ignore the exhaustion rule. See Pl.’s Mem. Opp’n Defs.’
Mot. Dismiss, ECF No. 15, at 24-27. For the reasons discussed below, the Court rejects each of
these arguments.
To start, despite Agent Dick’s suggestion that there is confusion surrounding the issue,
this Court recently held in Scott v. Conley, 937 F. Supp. 2d 60, 79 (D.D.C. 2013), as well as in
other earlier cases, that injunctive relief is not available as a remedy for claims under §§
552a(g)(1)(C) or 552a(g)(1)(D). See also Kursar, 581 F. Supp. 2d at 19 (explaining that
injunctive relief is available under §§ 552a(g)(1)(A) and 552a(g)(1)(B), not § 552a(g)(1)(C));
AFGE v. Hawley, 543 F. Supp. 2d 44, 54 (D.D.C. 2008) (dismissing request for injunctive relief
because the Privacy Act authorizes such relief only in §§ 552a(g)(1)(A) and 552a(g)(1)(B)
claims, and plaintiff brought suit under § 552a(g)(1)(D)); McNeill v. IRS, No. 93-2204, 1995
U.S. Dist. LEXIS 2372, at *9 (D.D.C. Feb. 7, 1995) (“The [Privacy] Act provides for injunctive
28
relief in two specific situations — to correct an incorrect record [in § 552a(g)(1)(A)], and to
produce records improperly withheld [in § 552a(g)(1)(B)] — neither of which apply to Plaintiff.
The Act provides for injunctions in no other circumstances.” (citations omitted)). Thus, to the
extent Agent Dick attempts to rely on § 552a(g)(1)(D) as the basis for seeking injunctive relief in
Counts I and II, that request fails as a matter of law.
Next, broadly construing Agent Dick’s request as one for amendment of an
administrative record — which is at least to some extent what he seeks by asking the FBI to
withdraw the BOLO and issue a public correction — the Court lacks subject-matter jurisdiction
to hear the claim unless he first exhausted the administrative remedies. This is because
subsection 552a(g)(1)(A) provides a civil remedy only after an agency makes a final
determination as outlined in § 552a(d)(3), which provides the steps a party must take before
filing for injunctive relief in a district court. See McCready, 465 F.3d at 14; Dickson v. Office of
Personnel Mgmt., 828 F.2d 32, 40 (D.C. Cir. 1987); see also Haase v. Sessions, 893 F.2d 370,
373 (D.C. Cir. 1990) (explaining that § 552a(g)(1)(A) requires a plaintiff to “initially seek an
amendment or access from the [pertinent] agency and even seek review within the agency before
coming to court”). Consequently, premature Privacy Act suits in this Circuit are dismissed for
lack of subject-matter jurisdiction, rather than under the judicial exhaustion doctrine. See, e.g.,
Barouch v. DOJ, 962 F. Supp. 2d 30, 67 (D.D.C. 2013) (“[F]ailure to exhaust administrative
remedies under the Privacy Act is a jurisdictional deficiency because exhaustion is required by
statute.”); Kursar, 581 F. Supp. 2d at 18 (dismissing Privacy Act claims brought without
exhaustion of administrative remedies for lack of subject-matter jurisdiction); Mulhern v. Gates,
525 F. Supp. 2d 174, 187 (D.D.C. 2007) (same).
29
With this background in mind, the Court turns to Agent Dick’s arguments for not
requiring exhaustion. First, his suggestion that exhaustion was futile fails as a matter of law.
This Court already has explained that “[b]ecause in a Privacy Act case, exhaustion is an express
statutory prerequisite to the exercise of jurisdiction by a federal court, the Court cannot excuse
the requirement on the basis of futility.” Kursar, 581 F. Supp. 2d at 18 (internal citations,
quotations, and alterations omitted); see also Murphy v. United States, 121 F. Supp. 2d 21, 28
(D.D.C. 2000) (“Plaintiff’s belief that resort to administrative remedies would be futile does not
excuse his failure to exhaust. In a Privacy Act case, exhaustion is an express statutory
prerequisite to the exercise of jurisdiction by a federal court and vague and conclusory
allegations provide no basis for us to short-circuit the exhaustion requirement.” (internal
citations, quotations, and alterations omitted)). For the same reason, Agent Dick’s argument that
exhaustion is not required because the FBI failed to inform him about the administrative review
process is not grounds to circumvent the jurisdictional exhaustion requirement and therefore is
without merit. 6
Second, Agent Dick argues that the Court should overlook the exhaustion requirement
because Congress “could not have envisioned that courts would be powerless to fully remedy
agency abuse when it passed an Act specifically designed to prevent government abuses of an
individual’s privacy rights.” Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss, ECF No. 15, at 27. Agent
Dick misunderstands, however, that Congress itself wrote and passed the Privacy Act, including
the jurisdictional exhaustion requirement, and the Court cannot ignore a clear Congressional
6
Agent Dick’s reliance on Harper v. Kobelinski, 589 F.2d 721 (D.C. Cir. 1978) is
misplaced. In Harper, the agency failed to comply with a provision in the Privacy Act by not
informing plaintiff of his right to seek administrative review of the agency’s denial of his request
to amend records. Agent Dick, on the other hand, fails to allege that any request was made to the
FBI in the first place, let alone that the FBI failed to provide accurate information in response.
30
mandate about the limits of its jurisdiction. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.
804, 807 (1986). In addition, by including a jurisdictional exhaustion requirement in the Privacy
Act, Congress chose to emphasize other values over providing a remedy for all privacy
violations, such as protecting an agency’s independence to collect and maintain records
necessary for carrying out its duties. See Dickson, 828 F.2d at 40 (“The Privacy Act itself
represents the compromise reached by Congress between a citizen’s right to correct inaccurate
records and the government’s need to assemble critical information for responsible employment
decisionmaking.”). It is not the Court’s province to rebalance these values, and as such, Agent
Dick’s policy argument is unpersuasive.
Finally, turning back to the complaint and § 552a(g)(1)(A), the Court finds that Agent
Dick has failed to allege that he made a single step towards, let alone completed, exhausting
administrative remedies before filing suit, and the evidence provided by Defendants confirms
this fact. 7 See Hardy Decl., ECF No. 13-2, at ¶ 4 (stating that the FBI has no record of Agent
Dick requesting to amend his administrative record); see also 28 C.F.R. § 16.46 (describing the
process for requesting amendment or correction of records held by the DOJ or its component
agencies, such as the FBI); Banks v. Lappin, 539 F. Supp. 2d 228, 236 (D.D.C. 2008) (discussing
28 C.F.R. § 16.46). Because Agent Dick has not satisfied this requirement for obtaining
injunctive relief under § 552a(g)(1)(A), the Court concludes that it lacks subject-matter
7
Agent Dick also argues that “an attempt at correction” was made in the form of
multiple emails from his attorney to the FBI. See Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss, ECF
No. 15, at 27 (citing Emails from Byrnes to FBI, ECF No. 15-3, Ex. C at 3-4). But as the FBI
points out, “the exhibits attached to the Byrnes Declaration establish that Plaintiff has never
requested any correction of the BOLO; instead, what Plaintiff characterizes as ‘an attempt at
correction’ consisted of emails and letters promising litigation and urging the FBI to contact
Plaintiff’s counsel to discuss settlement or resolution.” Defs.’ Reply Mem. Supp. Mot. Dismiss,
ECF No. 17, at 17. Clearly, such “attempts” do not satisfy the processes set out by § 552a(d)(3)
and the DOJ’s regulations, 28 C.F.R. § 16.46.
31
jurisdiction over the claim. See, e.g., Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir.
1986) (dismissing § 552a(g)(1)(A) claim for failure to exhaust administrative remedies when
appellant “never asked the agency to make any specific amendments to his records” before filing
suit); Kursar v. TSA, 581 F. Supp. 2d 7, 17 (D.D.C. 2008) (dismissing claim for lack of subject-
matter jurisdiction because “plaintiff’s failure to exhaust the administrative remedies provided by
§ 552a(d) forecloses any relief under § 552a(g)(1)(A)”).
V. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Privacy Act causes of
action for monetary and injunctive relief in Counts I and II is GRANTED. An order consistent
with this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 10, 2014 RUDOLPH CONTRERAS
United States District Judge
32