statute or by executive order of the President." Id. §
552a(e)(1). The Privacy Act also states that "upon request by
any individual to gain access to his record or to any
information pertaining to him which is contained in the system,"
the agency shall provide the individual with access to review
such records. Id. § 552a(d)(1). Finally, subject to certain
exceptions, the Privacy Act requires that "[n]o agency shall
disclose any record which is contained in a system of records by
any means of communication to any person, or to another agency,
except pursuant to a written request by, or with the prior
written consent of, the individual to whom the record pertains."
Id. § 552a(b).
Before addressing the parties' arguments, it is important to
note that the Privacy Act applies only to an "agency" as defined
by the FOIA. See 5 U.S.C. § 552a(a)(1) (expressly
incorporating the FOIA's definition of "agency").*fn3 Under
the FOIA, "agency" includes "any executive department, military
department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of
the Government (including the Executive Office of the
President), or any independent regulatory agency."
5 U.S.C. § 552(f). Though the Executive Office of the President is
expressly mentioned in the FOIA definition of "agency," the
Supreme Court has held that the FOIA's reference to "the
`Executive Office' does not include the Office of the
President." Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267
(1980).*fn4 The Kissinger Court also stated that "`the
President's immediate personal staff or units in the Executive
Office whose sole function is to advise and assist the
President' are not included within the term `agency' under the
FOIA." Id. (citing H.R. Conf. Rep. No. 93-1380, p. 15 (1974)).
A. The EOP's Motion to Dismiss
The EOP argues that the White House Office should not be
considered an "agency" subject to the Privacy Act because it is
not an agency subject to the FOIA. Flowers disagrees, suggesting
that the statutory definition of the term "agency" and the
Privacy Act's legislative history require that the Privacy Act
be applied to the EOP without exception. In support of their
positions, both Flowers and the EOP cite recent district court
opinions from this court, which decided whether the EOP was
subject to the Privacy Act. Compare Alexander v. F.B.I.,
971 F. Supp. 603, 607 (D.C. 1997) (Lamberth, J.) (holding that the
EOP was an "agency" subject to the Privacy Act), with Barr v.
Executive Office of the President, No. 99-1695, slip. op. at 6
(D.C. Aug. 9, 2000) (Green, J.L., J.) (holding that the EOP was
not an "agency" subject to the Privacy Act). See also Falwell
v. Executive Office of the President, 113 F. Supp.2d 967, 970
(W.D.Va. 2000) (holding that the Office of the President is
not subject to the Privacy Act).
Despite suggestions to the contrary,*fn5 the Alexander and
Barr opinions are not binding upon this court and do not
establish the "the law of the district." In re: Executive
Office of President, 215 F.3d 20, 24 (D.C.Cir. 2000). The
Alexander and Barr decisions do have persuasive value,
however; and this court will evaluate Judge Lamberth's and Judge
Green's analysis in making its own independent assessment of the
law as it is applied to this case.
In Alexander, Judge Lamberth held that the Privacy Act's
definition of "agency" includes the Executive Office of the
President. Judge Lamberth reasoned that the purposes of the
Privacy Act and the FOIA are quite different: the FOIA was
enacted to provide citizens with better access to government
records, while the Privacy Act was adopted to safeguard
individuals against invasions of their privacy. Alexander,
971 F. Supp. at 606. Because of these different purposes, Judge
Lamberth found that "there is no need to ignore the plain
language of the [Privacy Act] statute and limit the word
`agency' as has been done under FOIA." Id. at 606-07. Judge
Lamberth also reasoned that by providing exceptions to the FOIA
disclosure requirements, Congress and the courts recognized that
FOIA access must be limited given the intricate balance between
the public interest in information and "countervailing public
and private interests in secrecy." Id. at 606. However, Judge
Lamberth noted that "there is no evidence that the privacy
protections provided by Congress in the Privacy Act must also be
necessarily limited." Id.
In Barr, Judge June L. Green addressed the same issue, but
concluded that the EOP was not an "agency" subject to the
Privacy Act. Judge Green stated that "[i]t is a fair
construction of the Privacy Act to exclude the President's
immediate personal staff from the definition of `agency.'" Barr
v. Executive Office of the President, No. 99-1695(JLG), slip
op. at 6 (D.C. Aug. 9, 2000). Because the Privacy Act borrows
the FOIA definition of "agency," Judge Green reasoned that the
Privacy Act should also borrow the FOIA's exceptions as provided
in the legislative history and by judicial interpretation. See
id. Judge Green also found merit in the EOP's argument that the
term "agency" should be read to avoid constitutional questions,
for reading "agency" to include the EOP might raise
constitutional concerns about the President's ability to obtain
information and maintain Article II confidentiality. See id.
The Court of Appeals for the District of Columbia Circuit has
not decided whether the EOP is an "agency" subject to the
Privacy Act, but this Circuit's reasoning in other cases
suggests that it is not. For example, in Dong v. Smithsonian
Institution, 125 F.3d 877, 878-80 (D.C.Cir. 1997), cert.
denied, 524 U.S. 922, 118 S.Ct. 2311, 141 L.Ed.2d 169 (1998),
the Court of Appeals addressed whether the Smithsonian
Institution ("Smithsonian") was an "agency" subject to the
Privacy Act. The Dong court first recognized that the Privacy
Act expressly "borrows the definition of `agency' found in
FOIA." Id. at 878. "Hence, to be an agency under the Privacy
Act, an entity must fit into one of the categories set forth
either in [FOIA] § 552(f) or § 551(1)."*fn6 Id. at 879
Finding that the Smithsonian did not fit within the FOIA's
definition of "agency,"*fn7 the court held that the
Smithsonian was not an "agency" under the Privacy Act. See id.
Similarly, in Rushforth v. Council of Economic Advisers,
762 F.2d 1038, 1040 (D.C.Cir. 1985), this Circuit addressed whether
the Council of Economic Advisers was an "agency" subject to the
disclosure requirements of the Sunshine Act, 5 U.S.C. § 552b.
Like the Privacy Act, the Sunshine Act expressly incorporates
the FOIA definition of "agency." See Sunshine Act,
5 U.S.C. § 552b(a)(1) ("[T]he term `agency' means any agency as defined in
[FOIA] section 552(e). . . ."). Using the same rationale as
followed in Dong, the Rushforth court held that "[i]nasmuch
as the Council of Economic Advisers is not an agency for FOIA
purposes, it follows of necessity that the CEA is, under the
terms of the Sunshine Act, not subject to that statute either."
Rushforth, 762 F.2d at 1043 (emphasis added).
Applying this same reasoning and analysis, this court holds
that inasmuch as the EOP is not an "agency" subject to the FOIA,
the EOP is not an "agency" subject to the Privacy Act. The
Privacy Act expressly incorporates the FOIA's definition of
"agency," see 5 U.S.C. § 552a(a)(1), and both the Supreme
Court and this Circuit have held that the EOP's White House
Office is not an "agency" under the FOIA. See Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156,
100 S.Ct. 960, 63 L.Ed.2d 267 (1980); National Sec. Archive v.
Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.
1990). The court sees no reason to reject this logic,
particularly given that the Court of Appeals employed this same
reasoning in Rushforth and Dong.*fn8 The court,
therefore, grants the EOP's motion to dismiss and denies
Flowers' cross motion for partial summary judgment.*fn9
B. DOJ's Motion to Dismiss
In its motion to dismiss, DOJ argues that Flowers' claim that
DOJ denied her access to records should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6) because Flowers does not
allege that she submitted a Privacy Act request to DOJ. DOJ
contends that the Privacy Act requires federal agencies to
provide access to records only "upon request by any individual."
5 U.S.C. § 552a(d)(1); see also 5
44 U.S.C. § 552a(g)(1)(B) (noting that civil remedies are available
when an agency refuses to comply with "an individual request").
Because Flowers made no request to DOJ, there could be no
refusal to comply with "an individual request," DOJ maintains.
Flowers responds that she properly pled a claim for damages for
the maintenance and dissemination of records under
5 U.S.C. § 552a(b), e(1), and g(1)(D). Flowers argues that there is no
requirement that a plaintiff submit a Privacy Act request to an
agency before filing a claim for damages under these
Both parties offer accurate statements of law. Flowers is
correct that under the Privacy Act an individual need not
request records from an agency as a prerequisite to filing a
damages suit against that agency for the unlawful maintenance
and dissemination of records. See, e.g.,
5 U.S.C. § 552a(e)(1) and (g)(1)(D); see also Haase v. Sessions,
893 F.2d 370, 374-75 (D.C.Cir. 1990) (citing Nagel v. United States
Dep't of Health Educ. & Welfare, 725 F.2d 1438, 1441 (D.C.Cir.
1984)). However, this response does not address DOJ's
equally-correct assertion that Flowers may not claim that DOJ
unlawfully "refus[ed] to allow Plaintiff access to records" when
Flowers did not even ask DOJ for access to records. Compl. ¶
24. Indeed, there can be no denial of access, when a request for
such access was not made. Nowhere in Flowers' Complaint (or in
her pleadings) does she allege that she submitted a Privacy Act
request to DOJ. By not requesting such records, Flowers has
failed to exhaust her administrative remedies with respect to
the denial of access claim, and the court lacks subject matter
jurisdiction to hear that issue. See Muhammad v. United States
Bureau of Prisons, 789 F. Supp. 449, 450 (D.C. 1992) (dismissing
Privacy Act claim because "[p]laintiff's failure to request the
documents directly from the agencies constitutes a failure to
exhaust administrative remedies."). Accordingly, DOJ's motion to
dismiss the denial of access claim is granted.
C. DOJ's Motion for Judgment on the Pleadings*fn10
Next, DOJ argues that the remaining portions of Flowers'
Complaint — for the unlawful maintenance and dissemination of
files — should be dismissed under Rule 12(b)(1) because Flowers
fails to allege facts that establish this court's jurisdiction
and under Rule 12(b)(6) because the Complaint fails to state a
claim and fails to provide DOJ with fair notice of Flowers'
allegations. DOJ further contends that the Complaint is devoid
of "any identifiable action of any kind by DOJ or the FBI
specifically with respect to the plaintiff." Def.'s Mot. for J.
on Pleadings or Summ. J. at 5. Flowers responds that she has
adequately stated a claim for relief under the liberal pleading
requirements and has provided DOJ with sufficient notice of her
claims. Flowers also maintains that she is entitled to plead
various facts "on information and belief" because the facts at
issue are solely within DOJ's knowledge.
The most significant deficiency in Flowers' Complaint is that
it fails to allege facts that establish this court's subject
matter jurisdiction. The Privacy Act includes a two-year statute
of limitations period, see 5 U.S.C. § 552a(g)(5), and failure
to file a Privacy Act claim within the
two-year period is jurisdictional. It is well-settled that an
"untimely complaint deprives the district court of subject
matter jurisdiction." Griffin v. United States Parole Comm'n,
192 F.3d 1081, 1082 (D.C.Cir. 1999) (affirming dismissal of
Privacy Act claim for lack of subject matter jurisdiction). And
it is Flowers' responsibility, as the party seeking the court's
jurisdiction, to "allege in [her] pleadings the facts essential
to show jurisdiction." McNttt v. General Motors Acceptance
Corp., 298 U.S. 178, 179, 56 S.Ct. 780, 80 L.Ed. 1135 (1936);
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct.
596, 107 L.Ed.2d 603 (1990). Moreover, the court may not infer
jurisdiction "argumentatively from averments in [Flowers']
pleadings," Bender v. Williamsport Area School Dist.,
475 U.S. 534, 547, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986), for
jurisdiction must "affirmatively and distinctly" appear in the
complaint. Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145,
69 L.Ed. 413 (1925).
Here Flowers' Complaint fails to provide any factual
assertions to indicate when DOJ's unlawful conduct occurred or
when Flowers knew or had reason to know of DOJ's unlawful
activities with respect to her rights. See Tijerina v.
Walters, 821 F.2d 789, 798 (D.C.Cir. 1987) (holding that the
Privacy Act's statute of limitations begins when the plaintiff
knew or had reason to know of the alleged violation). Without
these basic factual assertions, the court has no basis to
determine whether Flowers' claims satisfy the applicable
limitations period. The court notes that Flowers filed her
Complaint on December 21, 1999, and any unlawful conduct that
Flowers knew or had reason to know about before December 21,
1997, would not be subject to this court's jurisdiction.*fn11
Notably, Flowers never addresses the statute of limitations
issue in her Complaint, nor does she provide any direct response
to DOJ's arguments raising the statute of limitations
defense.*fn12 This omission is quite fatal, as the court
cannot proceed if Flowers has not established the court's
jurisdiction to hear her claims. See Griffin v. United States
Parole Comm'n, 192 F.3d 1081,
1082 (D.C.Cir. 1999) (affirming dismissal of Privacy Act claim
for lack of subject matter jurisdiction).
Alternatively, even if this court did have jurisdiction to
hear Flowers' remaining claims, the court would dismiss the
Complaint under Rule 12(b)(6) because the Complaint fails to
state a claim and fails to allege facts sufficient to put DOJ on
notice. It is well-settled that a complaint should not be
dismissed for failure to state a claim unless "the plaintiff can
prove no set of facts in support of [her] claim which would
entitle [her] to relief." Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Under the liberal
pleading standards, the court must construe Flowers' Complaint
in the light most favorable to her and grant her the benefit of
all inferences that can be derived from the facts alleged. See
Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979).
However, "the court need not accept inferences drawn by
plaintiffs if such inferences are unsupported by the facts set
out in the complaint. Nor must the court accept legal
conclusions cast in the form of factual allegations." Kowal v.
MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994)
(citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932,
92 L.Ed.2d 209 (1986)).
Here, as DOJ contends, Flowers fails to allege any facts to
support her claim that DOJ maintained and disseminated
confidential information on her. The only factual assertions
offered in Flowers' Complaint involve comments made about
Juanita Broaddrick — an individual who is not a party to this
suit.*fn13 See Compl. ¶¶ 16-19. In her Complaint, Flowers
quotes Lanny Davis, a former Special Counsel to President
Clinton, who appeared on a December 16, 1999, FOX television
program, as stating that Broaddrick made statements to the FBI
that were inconsistent with her previous comments. See Compl.
¶ 17. Flowers surmises that Davis could not have known what
Broaddrick said to the FBI unless the FBI maintained and
disseminated confidential records on Broaddrick. See Compl. ¶
18. The problem with this argument is that Davis' comments,
which the court accepts as true for purposes of this motion, do
not even mention Flowers. Nor do the comments provide any
factual basis to support Flowers' claims that DOJ maintained and
disseminated records on her. Insofar as Flowers attempts to
speculate that she, as a "perceived adversary" of the Clinton
Administration, suffered "similar and/or identical treatment" as
Broaddrick, Compl. ¶ 20, the court notes that there is not a
single fact in Flowers' Complaint (or in her pleadings) to
support such an inference. See Briscoe v. LaHue, 663 F.2d 713,
723 (7th Cir. 1981), affd on other grounds, 460 U.S. 325, 103
S.Ct. 1108, 75 L.Ed.2d 96 (1983) ("[C]onclusory allegations
unsupported by any factual assertions will not withstand a
motion to dismiss."). Moreover, this Circuit has held that even
under the liberal pleading standards "sweeping and unwarranted
averments of fact" without any underlying factual basis will not
be deemed admitted for purposes of a motion to dismiss.
Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir. 1987).
Still, Flowers contends that she is not required to allege any
facts in support of her claim, because she provides a short and
plain statement of her allegations. It is true that Flowers need
not provide extensive factual details in her complaint, but her
"short and plain statement" must at
least include some factual assertions to put DOJ on notice of
"the event being sued upon." 5 C. Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1202 at 69-70 (1990).
Citing comments made about a person who is not a party to this
case will not do. DOJ has no way of knowing what alleged conduct
it engaged in with respect to Flowers or when such conduct
occurred. This is not a situation where Flowers' Complaint
merely fails to provide details of DOJ's unlawful activities;
rather, the Complaint fails to provide any facts whatsoever to
advise DOJ or the court of the unlawful "event" of which Flowers
In spite of these deficiencies, Flowers maintains that her
Complaint is sufficient because she pleads "on information and
belief" that DOJ maintained and disseminated confidential
information from her files. Pl.'s Opp'n to Def.'s Mot. for J. on
Pleadings or Summ. J. at 8-9. In general, pleadings on
information and belief are permitted when the necessary
information lies within defendant's control. See In re
Craftmatic Sec. Litig., 890 F.2d 628, 646 (3d Cir. 1989).
"Nonetheless, standards for pleadings on information and belief
must be construed consistent with the purposes of [Fed.R.Civ.P.]
9(b), which attempts in part to prevent the filing of a
complaint as a pretext for the discovery of unknown wrongs."
Kowal v. MCI Communications Corp., 16 F.3d 1271, 1279 n. 3
(D.C.Cir. 1994). The Kowal court expressly affirmed a district
court's determination that pleadings on information and belief
require "an allegation that the necessary information lies
within the defendant's control, and that such allegations must
also be accompanied by a statement of the facts upon which the
allegations are based." Id. (emphasis added). In the present
case, Flowers does not provide any statement of the facts upon
which she bases her allegations. Furthermore, even if Flowers
does not have access to the specific records that were allegedly
disclosed, which she is not required to provide at the pleading
stage, see Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.
2000), she should still be able to offer some factual assertion
to indicate when she knew or had reason to know of DOJ's
unlawful maintenance and disclosure of her files. Again, merely
citing comments made about another individual who is not a party
to this case will not suffice. Nor will the court accept
Flowers' conjecture that DOJ conspired to disclose damaging
information on Flowers, when Flowers' Complaint (and her
pleadings) fail to allege any facts to support such a claim.
See Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981)
(holding that the plaintiff "is required to allege something in
the way of facts before [her] allegations of conspiracy may be
deemed to state a claim . . . mere conjecture that there has
been a conspiracy is not enough").
To reiterate, Flowers has failed to provide factual assertions
to establish the court's subject matter jurisdiction, and the
court has no way to determine whether Flowers' claims satisfy
the two-year limitations period. Though the court construes
Flowers' Complaint liberally and in the light most favorable to
her, the Complaint is nonetheless devoid of essential facts
necessary to put DOJ on notice of the event upon which Flowers
complains. Finally, given the paucity of factual allegations,
the Complaint fails to state a claim against DOJ for violations
of the Privacy Act.*fn14
For the foregoing reasons, the court grants the EOP's motion
to dismiss, denies Flowers' cross motion for partial summary
judgment, grants DOJ's motion to dismiss the denial of access
claim, and grants DOJ's motion for judgment on the pleadings or,
in the alternative, for summary judgment. An appropriate order
accompanies this memorandum opinion.
ORDER AND JUDGMENT
Pursuant to Fed.R.Civ.P. 58 and for the reasons stated by the
court in its memorandum docketed this same day, it is this ___
day of March, 2001, hereby
ORDERED and ADJUDGED that the complaint in this case is