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Dick v. Holder

United States District Court, D. Columbia.

September 10, 2014

MICHAEL G. DICK, Plaintiff,
ERIC H. HOLDER, JR., et al., Defendants

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For MICHAEL G. DICK, Plaintiff: Kevin E. Byrnes, GRAD, LOGAN, KLEWANS, BOWEN & BYRNES, Falls Church, VA.


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RUDOLPH CONTRERAS, United States District Judge.

Granting Defendants' Motion to Dismiss


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]


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

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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 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." 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

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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.


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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448, 361 U.S.App.D.C. 6 (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, 376 U.S.App.D.C. 18 (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, 357 U.S.App.D.C. 72 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 556 U.S. 662, 678, 129 S.Ct. 1937,

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173 L.Ed.2d 868 (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, 408 U.S.App.D.C. 42 (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]


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 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, 223 U.S.App.D.C. 297, 233 U.S.App.D.C. 297 (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

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§ 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 Counts I and II, and ...

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