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Kursar v. Transportation Security Administration

October 6, 2008


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


Robert Kursar, the pro se plaintiff in this civil lawsuit, seeks judgments against the Transportation Security Administration (the "TSA"), William Blake, Jr., and Does #1-10 under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (2000), the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000) (the "APA"), the Privacy Act of 1974, 5 U.S.C. § 552a (2000) (the "Privacy Act" or the "Act"), and the All Writs Act, 28 U.S.C. § 1651 (2000), as well as "[the] TSA's internal regulations and the [United States] Constitution." Complaint (the "Compl.") at 1. Currently before the Court is the defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon carefully reviewing the plaintiff's complaint, the defendants' motion, and all memoranda of law and exhibits relating to that motion,*fn1 the Court concludes that it must grant the motion in part and deny it in part for the reasons that follow.

I. Background

The following facts are alleged in the plaintiff's complaint or are matters of public record. The plaintiff, a "dual [United States] and Canadian citizen [who] currently resides in Canada," Compl. ¶ 3, "was selected" in April of 2002 "for an excepted service position within the TSA as a Federal Air Marshal," id. ¶ 7. "His appointment was subject to a one-year probation period." Id.

"On April 22, 2002," Blake, the Special Agent in Charge who supervised the plaintiff, "had a conversation with Major Wellington Y. Horn . . ., who had served with [the plaintiff] in an Army Reserve Unit in 1994 and 1995." Id. ¶ 8. The very next day, Blake "informed [the plaintiff] that there were some questions regarding his employment application and that [the plaintiff] would be relieved of his duties and placed on paid administrative suspension pending [a] further background investigation." Id. ¶ 9. Two days later, "Blake issued a written notice of his intent to terminate [the plaintiff] during his probationary period for submitting false or incorrect information on his employment application and Standard Form 86 ('SF[-]86')," otherwise known as the "'Questionnaire for National Security Positions.'" Id. ¶ 10. "Specifically, the written notice indicated that [the plaintiff] had failed to state [that] he had been terminated from the Washington Army/Air National Guard and that he had never had a security clearance revoked or suspended." Id.

The plaintiff responded to this letter in a letter of his own dated April 29, 2002, "denying that he had intentionally provided false or incorrect information" on his SF-86 and "request[ing] an oral hearing" to defend against the accusations levied by Blake. Id. ¶ 11. Nevertheless, "[the plaintiff] was advised by . . . Blake that his employment had been terminated" in a letter dated May 3, 2002, without having received his requested hearing. Id. ¶ 12. The reason given for the plaintiff's termination was that it was necessary "to promote the 'efficiency of the service.'" Id. The termination "was effective on May 8, 2002." Id.

The plaintiff timely appealed his termination to the Merit Systems Protection Board (the "Board"), "claiming that the TSA's actions had been committed in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, [5 U.S.C. § 8432b, 38 U.S.C. §§ 4301-4304, 4311-4318, 4321-4326, 4331-4333 (2000) (the 'USERRA')]." Compl. ¶ 13. The administrative judge who presided over the plaintiff's appeal conducted a hearing on the merits of the appeal on March 2-3, 2004. Kursar v. Dep't of Transp., Docket Number SE-315H-03-0187-1-2, 2004 MSPB LEXIS 1344, at *1 (Aug. 26, 2004). Ultimately, the administrative judge denied the plaintiff's appeal. Id.

The plaintiff filed a petition for review of the administrative judge's decision on October 27, 2004, arguing that he had discovered evidence "new and material" to his appeal. Kursar v. Dep't of Transp., 157 Fed. Appx. 306, 309 (Fed. Cir. Dec. 12, 2005) (unpublished opinion) ("Kursar II"). After the Board summarily rejected his petition, the plaintiff appealed that determination to the United States Court of Appeals for the Federal Circuit. Id. He raised two arguments on appeal: (1) "that he was denied due process because he was terminated without an adequate opportunity to respond to Major Horn's allegations," id., and (2) that "the Board should have granted his petition for review" based on the supposedly "new and material evidence supporting [his] USERRA claim," id. at 310.

The Federal Circuit found the plaintiff's due process claim wanting. It reasoned that "because [the plaintiff] was completing a probationary period in an excepted service position[,] . . . he . . . failed to show that he was denied procedural rights to which he was entitled." Id. at 309. However, the court was more receptive to the plaintiff's second argument, concluding that the evidence produced by the plaintiff was "at least facially material" and "appear[ed] to be 'new.'" Id. at 311. It therefore "remand[ed] th[e] case to the Board for further proceedings addressed to [the plaintiff's] new and material evidence." Id.

Pursuant to the Federal Circuit's decision, the Board remanded the plaintiff's case to an administrative judge to "assess the credibility and probative value" of the plaintiff's newly discovered evidence "and determine whether it warrants a finding that the [p]laintiff's" rights under the USERRA were violated. Kursar v. Dep't of Transp., 102 M.S.P.R. 306, 311 (2006). The administrative judge, in turn, found as a factual matter that the newly discovered evidence produced by the plaintiff was not credible. Kursar v. Dep't of Homeland Sec., Docket Number SE-315H-03-0187-B-3, 2007 MSPB LEXIS 5966, at *12-21 (Sept. 28, 2007). The plaintiff appealed this determination, but to no avail. See Kursar v. Dep't of Homeland Sec., 108 M.S.P.R. 184, 184 (2008) (denying without comment the plaintiff's appeal from the administrative judge's ruling).

The plaintiff filed his complaint in this Court on November 6, 2007. In addition to challenging the equities of his termination, which he alleges was based on "false and inaccurate derogatory information" provided to Blake by Major Horn, Compl. ¶ 8, the plaintiff alleges that prospective employers have refused to hire him based on the circumstances surrounding his termination by the TSA. Id. ¶¶ 15-19. Specifically, the plaintiff alleges that "while he was pursuing his administrative rights through the [Board]," he "sought employment with a private civilian employer with whom he had worked for five years prior to his acceptance of the Federal Air Marshal[] position," only to be told that the employer "could not rehire him and risk [its] own reputation" because of his termination by the TSA. Id. ¶ 15. Another prospective employer allegedly "found [the plaintiff] unsuitable for employment" and rescinded its "conditional offer of employment," id. ¶ 19, because "the TSA . . . intentionally disclosed inaccurate and defamatory information concerning [the plaintiff] to the background investigator [for the prospective employer;] namely[,] that [the plaintiff] had been terminated for submitting false or incorrect information on his SF[-]86," id. ¶ 18.

Based upon these allegations, the plaintiff raises seven claims for relief in his complaint. In Counts I and III of the complaint,*fn2 the plaintiff asserts that the TSA failed to provide him with the due process required by the United States Constitution and the APA before it terminated his employment, id. ¶¶ 20-26 (asserting lack of due process as a constitutional matter), which entitles the plaintiff to a name-clearing hearing, id. ¶¶ 34-45. The plaintiff further asserts in Count II of his complaint that the TSA also violated the APA by "den[ying] him the full administrative rights that probationary federal employees in the employ of the TSA must be provided before their employment is terminated." Id. ¶ 31.

Counts IV-VI of the plaintiff's complaint arise under the Privacy Act. In Count IV, the plaintiff asserts that the TSA violated the Privacy Act by failing to collect information directly from the plaintiff or maintain accurate and complete records before terminating his employment, id. ¶¶ 46-58, whereas in Count V he asserts that the agency has violated the Act by failing to maintain accurate and complete records since his termination, id. ¶¶ 59-70, and in Count VI he asserts that the agency violated the Act through its dissemination of inaccurate information regarding the plaintiff's termination, id. ¶¶ 71-82. Finally, the plaintiff asserts in Count VII of his complaint that the defendants have separately violated his due process rights by "intentionally interfer[ing] with [his] efforts to obtain employment in his chosen field of profession with private civilian employers." Id. ¶ 89. He seeks declaratory and equitable relief, attorney's fees and costs, and a referral of those TSA officials responsible for violating the Privacy Act for prosecution pursuant to 5 U.S.C. § 552(a)(1). Id. at 13-14.

The defendants filed their motion to dismiss on February 1, 2008. In support of their motion, the defendants argue that the Court lacks subject-matter jurisdiction over the plaintiff's APA claims because the Civil Service Reform Act of 1978, 5 U.S.C. §§ 1201-1206, 2101a, 2301-2305, 3111-3112, 3131-3136, 3327, 3391-3397, 3591-3594, 3596, 4311-4315, 4507, 4701-4706, 5361-5366, 5381-5385, 5752, 7101-7106, 7111-7123, 7131-7135, 7211, 7501-7504, 7511-7514, 7521, 7541-7543, 7702-7703 (2000) (the "CSRA"), is the only remedy available to the plaintiff for adverse employment actions, and the plaintiff does not qualify for relief under that statute. Defs.' Mem. at 10-11. The defendants further argue that the plaintiff's Privacy Act claims relating to the maintenance or dissemination of records since his termination must be dismissed for lack of subject-matter jurisdiction because the plaintiff failed to exhaust the Act's administrative remedies as to those claims. Id. at 15.

Alternatively, the defendants argue that the plaintiff's Privacy Act claims regarding post-termination conduct by the agency fail to state a claim for which relief can be granted because the TSA could disseminate information about the plaintiff's termination under the "routine use" exemption of the Privacy Act and because the cause of the plaintiff's termination is a matter of public record. Id. at 16-17. They further contend that the plaintiff's remaining Privacy Act claims should be dismissed because (1) by the plaintiff's own admission, the TSA collected written information from him directly once it received unsolicited information regarding the plaintiff's background, id. at 12-13, and (2) the records at issue here consist of subjective evaluations and opinions, which are not covered by the Privacy Act, id. at 13-15. Finally, the defendants assert that the plaintiff's due process claims, whether arising under either the Constitution or the APA, are barred by the preclusive effects of the Federal Circuit's ruling in Kursar II, id. at 6-8, and that the plaintiff had no liberty interest in his former position subject to the requirements of due process in any event, id. at 8-10. They also argue that the plaintiff already had one opportunity to clear his name by both the TSA and the Board and failed to do so. Id. at 11-12.

The plaintiff contests each of these points in his opposition. With respect to the defendants' jurisdictional arguments, he counters that the CSRA cannot preclude a court from reviewing a colorable constitutional claim, Pl.'s Opp'n at 12-14, and that the exhaustion requirements of the Privacy Act should be waived because the pursuit of such remedies would be futile, id. at 33-34. He further argues that the doctrine of res judicata does not bar him from raising his due process arguments, id. at 10-12, that he has "protected liberty interests in relation to both his reputation and his future employment," id. at 14, and that neither the TSA nor the Board permitted him the opportunity to clear his name, id. at 22-23. The plaintiff also defends the sufficiency of his various Privacy Act claims, asserting that (1) the TSA failed to consider the evidence that he submitted, and therefore failed to both properly and accurately collect it, id. at 25-26; (2) his challenge to the accuracy of the records used by the TSA to justify his termination concerns the factual allegations underlying the subjective evaluations of TSA personnel, not the ...

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