process claim for failure to plead a cognizable claim.
Accordingly, the court will grant in part and deny in part the
defendants' motion for reconsideration.
A. Factual Background
By way of background, on October 13, 1999, plaintiffs M.K. and
Evelyn M. Conway filed the complaint initiating the present
action. On April 12, 1999, the plaintiffs filed an amended
complaint adding M.D.E., R.B., Grace Tilden, Vivian Green, and
George D. Mitford as plaintiffs.*fn1 By order dated August 4,
1999, the court approved the voluntary dismissal without
prejudice of plaintiff Vivian Green's claims. By order dated
March 3, 2000, the court approved the voluntary dismissal
without prejudice of plaintiff M.D.E.'s claims. Accordingly,
plaintiffs M.K, Evelyn M. Conway, R.B., Grace Tilden, and George
D. Mitford remain as plaintiffs in this action.
The plaintiffs claim that the defendants have "willfully and
intentionally failed to maintain accurate, timely and complete
records pertaining to the plaintiffs in their personnel,
security and medical files so as to ensure fairness to [the]
plaintiffs and therefore have failed to comply with
5 U.S.C. § 552a(e)(5) [the Privacy Act]." See Am. Compl. ¶ 116. The
following are the plaintiffs' factual allegations relating to
the inaccuracy of the records in question.
Plaintiff M.K. complains of a letter of reprimand placed in
her personnel file in April 1997, which concerns her
responsibility for the loss of top-secret information contained
on laptop computers sold at an auction. See id. ¶¶ 15, 116a.
Plaintiff Conway complains of a finding by the CIA Human
Resources Staff/Personnel Evaluation Board concerning her
ineligibility for foreign assignment. See id. ¶¶ 23, 116b.
Plaintiff Conway avers that the CIA notified her of this finding
in March 1997. See id. ¶ 23.
Plaintiff C.T. complains of a Board of Inquiry determination
that she was not qualified for the position she held with the
CIA. See id. ¶¶ 67, 116e. This Board of Inquiry convened after
"early 1998." See id. ¶¶ 66-67. Plaintiff Mitford complains of
receiving two negative Performance Appraisal Reports ("PARs")
and two negative "spot reports" on unspecified dates in 1997,
allegedly based on false information See id. ¶¶ 81, 116g.
Plaintiff R.B. complains of inaccurate counter-intelligence
("CI") and polygraph information contained in his file. See
id. ¶ 116f. Plaintiff R.B.'s last polygraph exam took place in
February 1996. See id. ¶ 76. The court notes that plaintiff
Tilden makes no allegations relating to count IV of the amended
complaint ("Violation of the Privacy Act").
B. Procedural History
By way of procedural history in the case, on March 24, 1999,
the defendants filed a motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1), (2), (3), and (6). The
plaintiffs responded to the defendants' motion to dismiss on
August 18, 1999, and the defendants filed their reply on
September 17, 1999. On March 23, 2000, this court issued a
Memorandum Opinion and supplemental order granting in part and
denying in part the defendants' motion to dismiss. On April 20,
2001, the defendants filed a motion for reconsideration of that
order, pursuant to Federal Rule of Civil Procedure 54(b),
seeking to dismiss the plaintiffs' remaining due process and
Privacy Act claims. For the reasons that follow, the court
grants in part and denies in part the defendants' motion for
A. Legal Standard for Review of Interlocutory Judgments
A ruling which denies a motion to dismiss, in part, is an
interlocutory judgment. See In re Executive Office of the
President, 215 F.3d 20, 22 (D.C.Cir. 2000); United States v.
Rose, 28 F.3d 181, 185 (D.C.Cir. 1994) (ruling that "orders
denying motions to dismiss are not `final decisions' . . .
because such orders `ensure that litigation will continue in
the district court'" (quoting Lauro Lines s.r.l. v. Chasser,
490 U.S. 495, 498, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989))). A
district court may revise its own interlocutory decisions "at
any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties." See
FED. R. Civ. P. 54(b); see also Childers v. Slater,
197 F.R.D. 185, 190 (D.C. 2000) (citing FED.R.CIv.P. 60(b) Advisory
Committee Notes). The court notes that the standard of review
for interlocutory decisions differs from the standards applied
to final judgments under Federal Rules of Civil Procedure 59(e)
and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F. Supp.2d 42,
48 n. 6 (D.C. 2001) and United Mine Workers v. Pittston Co.,
793 F. Supp. 339, 345 (D.C. 1992) with LaRouche v. Dep't of
Treasury, 112 F. Supp.2d 48, 51-52 (D.C. 2000) and Harvey v.
District of Columbia, 949 F. Supp. 878, 879 (D.C. 1996). A
motion pursuant to Rule 59(e) to alter or amend a judgment after
its entry is rarely granted. See Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C.Cir. 1996); Harvey, 949 F. Supp. at 879.
"The primary reasons for reconsideration of [a] judgment are `an
intervening change of controlling law, the availability of new
evidence, or need to correct a clear error[,] or [to] prevent
manifest injustice.'" See Harvey, 949 F. Supp. at 879 (quoting
Nat'l Trust v. Dep't of State, 834 F. Supp. 453, 455 (D.C.
1993)). Motions pursuant to Rule 60(b) may be granted for
similar reasons. See FED. R. Civ. P. 60(b); see also
LaRouche, 112 F. Supp.2d at 51-52. Reconsideration of an
interlocutory decision, however, is available under the
standard, "as justice requires." See Childers, 197 F.R.D. at
190 (citing FED. R. Civ. P. 60(b) Advisory Committee Notes).
B. The Court Does Not Dismiss Count IV ("Violation of the
Privacy Act") of the Plaintiffs' Amended Complaint Since the
Plaintiffs' Claims Are Not Conclusively Time-Barred by the
Applicable Statute of Limitations
The defendants ask the court to reconsider the portion of the
court's decision of March 23, 2000, which denied in part the
defendants' motion to dismiss. The defendants argue that the
limitations period has run on the plaintiffs' claims, and the
claims should be dismissed for this reason. See Def.'s Mot.
for Recons. at 3-7. The plaintiffs argue that the defendants
have not met the standard for Rule 59(e) and therefore the court
should not grant the motion for reconsideration. See Pl.'s
Resp. at 1-2. As stated earlier, however, a defendant does not
have to meet the standard of Rule 59(e) in order for the court
to reconsider the denial of such a motion to dismiss since the
proper motion for reconsideration is pursuant to Rule 54(b) of
the Federal Rules of Civil Procedure. See FED. R. CIV. P.
54(b); Muwekma Tribe, 133 F. Supp.2d at 48 n. 6.
The court now turns to the merits of the defendants' argument
concerning the limitations period. It is clear that a civil
claim brought under the Privacy Act must be brought "within two
years from the date on which the cause of action arises." See
5 U.S.C. § 552a(g)(5). The cause of action arises when the
plaintiff knew or should have known of the alleged
violation of the Privacy Act. See Griffin v. United States
Parole Comm'n, 192 F.3d 1081, 1082 (D.C.Cir. 1999) (affirming
dismissal of a Privacy Act claim for failure to file within the
limitations period); Tijerina v. Walters, 821 F.2d 789, 798
(D.C.Cir. 1987) (reversing the district court's dismissal of a
claim where the plaintiff, "in the exercise of reasonable
diligence, could not have known of the government's allegedly
wrongful conduct"). As discussed later in this opinion, some of
the plaintiffs' Privacy Act claims have been filed within the
limitations period, as in Tijerina. See Tijerina, 821 F.2d at
798. With respect to the plaintiffs' other Privacy Act claims,
it is unclear from the face of the complaint whether the
plaintiffs timely filed those claims. What is clear is that
"[f]ailure to file a claim within this two-year period deprives
the district court of subject-matter jurisdiction." Id.
Further, the plaintiffs must allege facts in their pleadings
essential to show jurisdiction. See FW/PBS, Inc. v. Dallas,
493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990);
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182,
56 S.Ct. 780, 80 L.Ed. 1135 (1936). This rule, however, does not
extend to the complaint's factual averments evincing the timely
filing of claims under the applicable statute of limitations.
See Firestone, 76 F.3d at 1209-10. To the contrary, the
statute of limitations is an affirmative defense that does not
need to be anticipated and rebutted by the complaint. See FED.
R. CIV. P. 8(c); Firestone, 76 F.3d at 1209-10; Jones v.
Rogers Memorial Hospital, 442 F.2d 773, 775 (D.C.Cir. 1971). As
such, even if the plaintiffs have not alleged illegal conduct of
the defendants that the plaintiffs first knew or should have
known within the limitations period, the Privacy Act claim
should not be dismissed for lack of subject-matter
jurisdiction. See Firestone, 76 F.3d at 1209. In further
support of this reasoning, the D.C. Circuit has remarked that:
[t]here is an inherent problem in using a motion to
dismiss for purposes of raising a statute of
limitations defense. Although it is true that a
complaint sometimes discloses such defects on its
face, it is more likely that the plaintiff can raise
factual setoffs to such an affirmative defense . . .
We do not hold that the use of a motion to dismiss is
always improper to raise a statute of limitations
defense, but we do suggest that a responding party
often imposes an undue burden on the trial court and
impedes the orderly administration of the lawsuit
when he relies on a motion to dismiss to raise such
an affirmative defense.
Richards v. Mileski, 662 F.2d 65, 73 (D.C.Cir. 1981).
1. The court does not dismiss plaintiff M.K.'s Privacy Act
Turning first to plaintiff M.K.'s claim, she complains of a
letter of reprimand placed in her personnel file. See Am.
Compl. ¶¶ 15, 116a. Plaintiff M.K. was a party to the original
complaint filed January 13, 1999. Plaintiff M.K. clearly could
not have been aware of that letter of reprimand being placed in
her personnel file until it was actually placed in that file in
April 1997. See id. Therefore, because the plaintiff asserted
her claims before the end of the limitations period, the court
determines that plaintiff M.K.'s cause of action is not
time-barred by the limitations period, and the court will not
dismiss the claim. See Tijerina, 821 F.2d at 798.