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Kursar v. Transportation Security Administration

November 22, 2010


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


Robert Kursar, the plaintiff in this civil case, seeks declaratory and injunctive relief, monetary damages, and the referral of certain individuals for criminal prosecution for various alleged violations of the Federal Privacy Act, 5 U.S.C. § 552a(g)(1) (2006), and the Fifth Amendment of the United States Constitution, that he contends were committed by the Transportation Security Administration ("TSA"), TSA Special Agent in Charge William Blake, Jr., and other unknown TSA officials, First Amended Complaint ("Am. Compl.") ¶¶ 1-6. Currently before the Court is the defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and for summary judgment pursuant to Federal Rule of Civil Procedure 56, as well as Kursar's cross-motion for summary judgment. Upon consideration of Kursar's amended complaint, the defendants' motion to dismiss or for judgment, Kursar's cross-motion for summary judgment, and all relevant documents and exhibits attached to those submissions,*fn1 the Court concludes for the reasons below that it must grant the TSA's motion to dismiss Count Two of the amended complaint, deny the TSA's motion to dismiss the remaining counts of the amended complaint but grant the TSA's motion for summary judgment as to these counts, and deny Kursar's cross-motion for summary judgment.

I. Background*fn2

Kursar "is a dual [United States] and Canadian citizen," Am. Compl. ¶ 3, who, in 1994, was enlisted in the Washington State Army National Guard ("Washington National Guard") as a warrant officer while also employed at the Whatcom County Sheriff's Office in the state of Washington, Plaintiff's Statement of Material Facts As to Which There is No Genuine Issue ("Pl.'s Stmt. of Facts") ¶ 1. "In or about October 1995," the Whatcom County Sheriff's Office conducted "an internal investigation into [his] use of military leave and [his] admittedly ill-advised decision to use [his] law enforcement credentials in order to gain access to a scuba-diving course." Pl.'s Opp'n, Ex. 4 (Declaration of Robert Kursar ("Kursar Decl.")) ¶ 5. As a result of the investigation, the Whatcom County Sheriff's Office terminated Kursar's employment in January 1996. Id. ¶ 6. At the time of the investigation, Kursar "voluntarily" submitted his resignation to the Washington National Guard at the request of his supervisor. Id.

¶ 7. Kursar's supervisor informed him that the Washington National Guard was considering whether to also conduct an internal investigation into his "fraudulent" use of his "law enforcement credentials," and whether such behavior warranted an adverse discharge. Pl's Stmt. of Facts ¶ 2; Pl.'s Opp'n, Ex. 4 (Kursar Decl.) ¶ 7. In July 1996, the Washington National Guard completed its investigation, which led to Kursar being offered the option of proceeding with his resignation and receiving a general discharge under honorable conditions, or appearing before "a Board of Inquiry" for "an elimination proceeding." Pl.'s Opp'n, Ex. 4 (Kursar Decl.) ¶ 7; Pl.'s Stmt. of Facts ¶ 3. Kursar "decided to accept the offer" of proceeding with his resignation. Pl.'s Opp'n, Ex. 4 (Kursar Decl.) ¶ 7.

On January 23, 1997, Kursar enlisted in the United States Army Reserve. Id. ¶ 9. Several months later, the Army Central Clearance Facility "temporarily suspended" Kursar's security clearance when it discovered that he had been terminated from his earlier position with the Whatcom County Sheriff's Office.*fn3 Pl.'s Stmt. of Facts ¶ 8. Kursar alleges that the Army ultimately discontinued its investigation of the incident. Id. ¶ 9.

In April 2002, Kursar was "selected for an excepted service position" with the TSA as a federal air marshal, subject to a one-year probation period. Am. Compl. ¶ 7. Shortly after he began working at the TSA, his supervisor, former Special Agent in Charge William Blake, Jr., spoke with Major Wellington Hom, who had served with Kursar in the Army. Id. ¶ 8. The day after this conversation occurred, Blake provided Kursar with notice of his termination "for submitting false or incorrect information on his employment application and Standard Form 86 ('SF[-]86')."*fn4 Id. ¶ 10. Specifically, the notice explained that "in response to question 22" on his SF-86, Kursar "failed to state that [he was] terminated from the Washington State Army/Air National Guard in June 1996," and that "in response to question 26, [he] falsely stated that [he] did not have a security clearance revoked or suspended." Def.'s Mem., Ex. D (April 25, 2002 Letter from William Blake to Robert Kursar) at 1. Although Kursar submitted a written denial to the claims and objected to the amount of time given to appeal the decision, the TSA terminated his employment by letter on May 3, 2002 and denied his request for an oral hearing. Am. Compl. ¶ 11-12. In the termination letter, Blake represented that while he "carefully considered [Kursar's] written response to the charges," he concluded that "the facts support the proposed action," and that "it will promote the efficiency of the service to terminate [him] from government employment." Def.'s Mem., Ex. G (May 3, 2002 Letter from William Blake to Robert Kursar) at 1. Kursar contends that he subsequently lost job opportunities with private employers due to the circulation of information regarding his termination from the TSA. Am. Compl. ¶¶ 15-16.

Seeking redress, Kursar challenged his termination with the Merit Systems Protection Board ("MSPB") in March of 2003, alleging that the TSA violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("Employment Rights Act"). Id. ¶ 13. However, an administrative law judge concluded that he was not entitled to relief, and the MSPB and Federal Circuit ultimately affirmed. See Kursar v. Dep't of Homeland Sec., 301 Fed. App'x 992, 992 (Fed. Cir. 2008).

Kursar then filed his initial complaint in this matter on November 6, 2007. Proceeding pro se, Kursar alleged in Counts One and Two of his complaint that the TSA violated his rights under the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act ("APA"), 5 U.S.C. § 552 (2006), when it terminated his employment, Compl. ¶¶ 20-26, ¶ 31. In Count Three of the complaint, Kursar requested a "[n]ame-[c]learing [h]earing" to vindicate the TSA's alleged violation of his due process rights. Id. ¶¶ 34-45. Kursar further alleged in Counts Four through Six that the TSA violated the Privacy Act by failing to collect information directly from him and maintain accurate and complete records before terminating his employment, id. ¶¶ 46-58, by failing to maintain accurate and complete records following his termination, id. ¶¶ 59-70; and by disseminating inaccurate information regarding his termination, id. ¶¶ 71-82.

Unbeknownst to the undersigned member of the Court, Kursar filed a second complaint in this Court on the same date as his initial complaint in this matter. That matter was assigned to Judge Emmet G. Sullivan of this Court, but unlike the complaint filed in this case, Kursar's second complaint was filed by counsel, and he proceeded in that action under the name "Alexander Kursar" rather than "Robert Kursar." Complaint, Kursar v. Dep't of the Army, No. 07-2005 (EGS) at 1 (D.D.C. filed Nov. 6, 2007) ("Kursar I"). In his second complaint, Kursar alleged various Privacy Act violations against the Department of the Army, including the intentional disclosure and release of confidential records without making reasonable efforts to assure accuracy, failure to establish and implement rules of conduct for persons involved in the records system, and failure to establish appropriate safeguards to ensure the confidentiality of records pertaining to him. Id. ¶¶ 34-36. Specifically, he alleged that the Army, without authorization, disseminated his records to a party whom he was testifying against in a bankruptcy proceeding, as well as to his former insurance company, and to a private civilian employer who was conducting a background investigation in the course of considering him for employment. Id. ¶¶ 20, 22, 23, 24, 27. Among the numerous documents at issue was information related to "his resignation from the [Washington National Guard] and reports of unfavorable information regarding his security clearance." Id. ¶ 20.

In November 2008, Kursar reached a settlement agreement with the Army in the second matter and received $90,000 in exchange for "full settlement and satisfaction of any and all claims" that he "may have or hereafter acquire against the United States, its agents, servants, and employees on account of the same subject matter that gave rise to the above-captioned action." Stipulation for Compromise Settlement and Release of Privacy Act Claim, Kursar v. Dep't of the Army, No. 07-2005 (EGS), ¶ 4 (D.D.C. filed Nov. 6, 2007). Through this settlement agreement, all claims, "whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise" to the initial suit were settled. Id. ¶ 1. The settlement agreement was approved by Judge Sullivan on November 19, 2008. Id. at 5.

Subsequently, the undersigned member of the Court issued a memorandum opinion and order in the present case, in which Kursar's claims under the APA were dismissed for lack of subject-matter jurisdiction and his termination-related due process claim was dismissed based on res judicata. Kursar v. Transp. Sec. Admin., 581 F. Supp. 2d 7, 16, 20-21 (D.D.C. 2008) ("Kursar II"). Specifically, the Court concluded that judicial remedies under the APA are not available where "Congress has provided [a] plaintiff with statutory schemes and remedies through which [the plaintiff] may seek relief," id. at 15 (quoting Mittleman v. U.S. Treasury, 773 F. Supp. 442, 449 (D.D.C. 1991) (Harris, J.)), and because Kursar had available to him relief under the Civil Service Reform Act of 1978, 5 U.S.C. §§ 1201-1206 (2000) (the "CSRA"), to redress his claim that he suffered an adverse personnel action, the Court dismissed his APA claims, id. at 16. The Court further held that Kursar's due process claim was precluded on res judicata grounds because "[i]n its decision resolving [his] appeal from the Board's rejection of his termination appeal, the Federal Circuit explicitly held that '[a]s a probationary employee, [Kursar] lacked a property interest in his position that entitled him to procedural protections under the Fifth Amendment's Due Process Clause.'" Id. at 20. And, in rejecting Kursar's Privacy Act claims, the Court first explained that his allegations regarding the TSA's "fail[ure] to maintain [his] records in an accurate and complete manner in violation of [Section] 552a(e)(5)," as well as his claim that the "defendants violated [Section] 552a(e)(6) by disseminating inaccurate information from his Privacy Act System of Records to at least one private civilian employer," id. at 17 n.4 (internal quotation marks and brackets omitted), could only be brought under Section 552a(g)(1)(A), id. The Court went on to conclude that Kursar was required to exhaust all administrative remedies for any claims under Section 552a(g)(1)(A), and for that reason the Court was compelled to dismiss these two claims for lack of subject-matter jurisdiction. Id. at 18. As for Kursar's third Privacy Act claim under Section 552a(g)(1)(C), the Court dismissed that claim for lack of subject-matter jurisdiction because he did "not request damages in his complaint," and because the Court lacked authorization to grant equitable relief under that section, Kursar lacked standing to bring that claim.*fn5 Id. at 19. Finally, the Court declined to dismiss the plaintiff's name-clearing hearing and Fifth Amendment claims, concluding that because a name-clearing hearing was a remedy request and not a cause of action, it remained a possible remedy available to the plaintiff so long as his Fifth Amendment liberty interest claim remained a "viable cause of action." Id. at 21.

After exhausting his administrative remedies concerning the TSA's alleged Privacy Act violations,*fn6 Kursar, now represented by counsel, filed an amended complaint in the present case on March 16, 2009. Specifically, he alleges in Count One that he "has a legal right under the Privacy Act to have his records amended as detailed in his request and appeal, and that the TSA violated [Section] 552a(g)(1)(A) by failing to comply with that request." Am. Compl. ¶ 32. He further alleges in Count Two that the TSA, Blake, and other unknown TSA officials "failed to maintain Kursar's records with such accuracy, relevance, timeliness[,] and completeness as is reasonably necessary to denote the basis for [his] termination," id. ¶ 41, and that they failed to "collect information" underlying his termination "directly from Kursar," which "resulted in adverse determinations . . . in violation of [Sections] 552a(e)(2), (g)(1)(C), and (g)(4)(A)," id. ¶ 42. In Count Three, Kursar alleges that the defendants failed to accurately maintain his records pursuant to Sections 552a(e)(5) and (g)(1)(A). Id. ¶ 53-54. Moreover, Kursar alleges in Count Four that the defendants "failed to make reasonable efforts to assure that [his] records [were] accurate, complete, timely, and relevant for agency purposes" before "disseminating [his] records . . . to persons other than an agency," id. ¶ 65, in violation of sections 552a(e)(6) and (g)(1)(A), id. ¶ 66. Finally, Kursar asserts in Count Five that the defendants "failed to accord Kursar any due process and denied him the full administrative rights that probationary federal employees in the employ of the TSA must be provided before their employment is terminated." Id. ¶ 73.

In response, the defendants request that the amended complaint be dismissed, that they be awarded judgment on the pleadings, or that they be awarded summary judgment. In support of its motion, they contend that Kursar's claims are barred by the doctrine of res judicata because he "already released these claims against the entire federal government" as a result of the settlement agreement reached in Kursar I. Def.'s Mem. at 11. In the alternative, the defendants argue that Kursar's Privacy Act claims are barred by the applicable two-year statute of limitations because he "was aware of his Privacy Act claim[s] in 2002, but waited more than five years to bring his claim." Id. at 15. Lastly, the defendants argue that they are entitled to summary judgment because Kursar "cannot show that [it] inaccurately maintained his records." Id. at 17.

In his opposition memorandum and cross-motion for summary judgment, Kursar asserts that he is not barred from raising his claims because (1) the claims in the present action do not arise from a "common nucleus of shared facts," Pl.'s Opp'n. at 18; (2) these claims were not resolved in Kursar I, id.; and (3) the settlement agreement in Kursar I did not encompass these claims, id. at 20. Kursar also disputes the defendants' assertion that his claims are barred by the two-year statute of limitations applicable to Privacy Act claims on the grounds that the limitations period was tolled due to the litigation before the MSPB, id. at 22, and that as to Count Four, he "did not know or have reason to know of the [TSA's alleged] unlawful dissemination of" his records, id. at 28. Finally, ...

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