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Ashbourne v. Hansberry

United States District Court, District of Columbia

March 27, 2018

ANICA ASHBOURNE, Plaintiff,
v.
DONNA HANSBERRY, et. al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Emmet G. Sullivan United States District Judge.

         Plaintiff Anica Ashbourne (“Ms. Ashbourne”), an attorney proceeding pro se, brings this action against the U.S. Treasury Department (“Treasury”) Secretary in his official capacity and three Treasury employees-Donna Hansberry, Donna Prestia, and Thomas Collins-in their official and individual capacities. Ms. Ashbourne also sues the U.S. Department of Homeland Security (“DHS”) Secretary in his official capacity and two DHS employees-James Trommatter and Thomas Harker-in their individual and official capacities. Ms. Ashbourne alleges that the defendants violated the Privacy Act, 5 U.S.C. § 552a, et seq., and denied her due process in violation of the Fifth Amendment.[1]Pending before the Court is (1) defendants' motion to dismiss Ms. Ashbourne's complaint, see Defs.' Mot. to Dismiss, ECF No. 8;[2] (2) Ms. Ashbourne's motion for an extension of time to serve the individual defendants and use alternative means of service of process, see Pl.'s Service Mot., ECF No. 13; and (3) Ms.Ashbourne's motion to stay the case, see Pl.'s Mot. to Stay, ECF No. 2. Upon consideration of the motions, the responses, the replies, and the applicable law, (1) the defendants' motion to dismiss is GRANTED in PART and DENIED in PART; (2) Ms. Ashbourne's service motion is DENIED; and (3) Ms. Ashbourne's motion to stay is GRANTED, albeit on different grounds.

         I. Ms. Ashbourne's Claims Against the Treasury Secretary and the Individual Treasury Employees are Dismissed

         Ms. Ashbourne sues the Treasury defendants in their official and individual capacities for Privacy Act and due process violations, alleging they “falsified [her] personnel records and then used those records to publicly terminate [her] amidst stigmatizing charges of dishonesty.” Compl., ECF No. 1 ¶¶ 2-4, 7. The defendants move to dismiss these claims against as barred under the doctrine of res judicata.[3] See Defs.' Mot. to Dismiss, ECF No. 8 at 14-15.[4] In Ashbourne v. Hansberry (“Ashbourne I”), Ms. Ashbourne sued the same defendants for allegedly violating the Privacy Act and the Fifth Amendment.[5] Civ. No. 12-1153-BAH, 2015 WL 11303198 at *5 n. 6 (D.D.C. Nov. 24, 2015). Chief Judge Howell dismissed Ms. Ashbourne's due process claim and granted defendants' motion for summary judgment as to the Privacy Act claims. Id., aff'd 703 Fed.Appx. 3 (Mem.) (D.C. Cir. 2017).

         “The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ‘res judicata.'” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). “Under claim preclusion, ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in [a prior] action.'” Sheppard v. District of Columbia, 791 F.Supp.2d 1, 4 (D.D.C. 2011) (quoting Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002))(additional citation omitted). To determine whether the claims are barred by res judicata, the Court considers “if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Nat. Res. Def. Council v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008) (quotation and citation omitted).

         In Ashbourne I, Ms. Ashbourne sued the Treasury Department, Ms. Hansberry, Ms. Prestia, and Mr. Collins for due process and Privacy Act violations, alleging that the defendants (1) failed to maintain accurate records, (2) improperly disclosed her protected records, and (3)damaged her reputation by making “stigmatizing charges [that] were false, ” in violation of due process. See Consolidated Am. Compl., ECF No. 49 (Ashbourne I, 12-cv-1153). In this case, Ms. Ashbourne alleges that the same defendants “falsified [her] personnel records and then used those records to publicly terminate [her] amidst stigmatizing charges of dishonesty.” Compl., ECF No. 1 ¶¶ 2-4, 7. Her present case is therefore barred against the Treasury defendants because it involves the same defendants, implicates the same underlying facts, and encompasses the same Privacy Act and due process claims that were previously litigated in Ashbourne I. See 2015 WL 11303198; see also Ashbourne v. Hansberry (“Ashbourne II”), 245 F.Supp.3d 99, 103-06 (D.D.C. 2017)(dismissing as barred by res judicata Ms. Ashbourne's Title VII claims against the same defendants)(appeal pending).[6]

         Ms. Ashbourne's argument to the contrary, that res judicata does not bar her claims against the Treasury defendants because she added new DHS defendants, is unavailing. See Pl.'s Opp'n Mot. to Dismiss, ECF No. 11 at 6-7. Rather than alleging new claims against the Treasury defendants, Ms. Ashbourne reasserts the same claims that were already litigated in Ashbourne I. Compare Compl., ECF No. 1, with Consolidated Am. Compl., ECF No. 49 (Ashbourne I, 12-cv-1153). Adding three defendants to her complaint does not entitle her to re-litigate the same, fully adjudicated claims against the Treasury defendants. See Sparrow v. Reynolds, 646 F.Supp. 834, 838 (D.D.C. 1986) (dismissing plaintiff's claim as barred by res judicata despite the addition of at least one new defendant). Ms. Ashbourne's claims against the Treasury Secretary and individual defendants Donna Hansberry, Donna Prestia, and Thomas Collins in their individual and official capacities are therefore DISMISSED WITH PREJUDICE.

         II. Ms. Ashbourne's Claims Against the DHS Employees in Their Individual Capacities are Dismissed

         Ms. Ashbourne sues the DHS employees-Mr. Trommatter and Mr. Harker-in their individual capacities for violations of due process and the Privacy Act. Compl., ECF No. 1 ¶¶ 5, 6. The defendants move to dismiss these claims pursuant to (1) Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction; (2) Federal Rule of Civil Procedure 12(b)(4) for insufficient process; (3) and Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. Defs.' Mot. to Dismiss, ECF No. 8 at 12. Defendants also move to dismiss the Privacy Act claims because the Privacy Act does not authorize claims against individuals. Id. at 15-16.

         Ms. Ashbourne does not dispute that she has not served Mr. Trommatter and Mr. Harker in their individual capacities. See generally Pl.'s Opp'n, ECF No. 11 at 8-9. In a separate motion, She moves for an extension of time to serve them, stating that she attempted service by mail to their home addresses, but that the mail was marked “return to sender” and “unable to forward.” See Pl.'s Service Mot., ECF No. 13 at 1-2. Ms. Ashbourne also requests that the Court order government counsel to accept service on behalf of the individual defendants. See id. at 2.

         Federal Rule of Civil Procedure 4(i)(3) requires that government employees sued in their individual capacities be served as individuals within 90 days after the complaint is filed. See Davison v. U.S. Dept. of State, 113 F.Supp.3d 183, 194 (D.D.C. 2015)(“To serve a U.S. officer or employee in his or her individual capacity . . . ‘a party [must] serve the United States and also serve the officer or employee.'”)(quoting Fed.R.Civ.P. 4(i)(3)); Fed.R.Civ.P. 4(m). A Court must extend the plaintiff's time to serve if she can establish good cause for failure to serve within the 90 day timeframe. Fed.R.Civ.P. 4(m); Battle v. District of Columbia, 21 F.Supp.3d 42, 44-45 (D.D.C. 2014)(“A plaintiff bears a heavy burden when attempting to establish good cause for failure to effect service of process . . . . good cause means a valid reason for delay.”) (internal citations and quotations omitted). If the employee is not timely served, the Court “must dismiss the action without prejudice . . . or order the defendant served within a specific period of time.” Fed.R.Civ.P. 4(m).

         The complaint in this case was filed on April 24, 2017. See Compl., ECF No. 1. Ms. Ashbourne filed her motion to extend her time to effect service 162 days later, 72 days after service was due. See Pl.'s Service Mot., ECF No. 13 (filed October 3, 2017). Far from providing a “valid reason” for her inability to timely serve Mr. Trommatter and Mr. Harker, Ms. Ashbourne provides no reason for the delay. See Battle, 21 F.Supp.3d at 44-45. As such, Ms. Ashbourne has not met her burden to demonstrate good cause. Mann v. Castiel, 681 F.3d 368, 375 (D.C. Cir. 2012)(affirming denial of plaintiffs' motion to extend time to effect service because plaintiffs did not provide a “valid reason” to do so). Because there is no ground for the Court to grant Ms. Ashbourne's request and it is undisputed that these individuals have not been served, the Court DISMISSES WITHOUT PREJUDICE the due process claims against James Trommatter and Thomas Harker in their individual capacities.[7]

         Regarding Ms. Ashbourne's request for alternative service, the “elementary law of agency” is “clear” that “any agent who accepts service must be shown to have been authorized to bind his principal by the acceptance of process.” Schwarz v. Thomas, 222 F.2d 305, 308 (D.C. Cir. 1955). For the Court to grant the motion, the individual defendants must authorize government counsel to accept service on their behalf. They have not done so. See generally Defs.' Opp'n to Service Mot., ECF No. 15. Therefore, the Court DENIES this request.

         Despite Ms. Ashbourne's failure to properly serve these two defendants, the Court will consider the defendants' argument that the Privacy Act claims should be dismissed against Mr. Trommatter and Mr. Harker in their individual capacities in the interest of judicial economy.[8] The defendants argue that the Privacy Act does not authorize suits against individual defendants. See Defs.' Mot. to Dismiss, ECF No. 8 at 15-16.

         Ms. Ashbourne argues that her claim should proceed against the individual DHS defendants because she seeks criminal penalties and the Privacy Act provides for criminal penalties against individuals. See Pl.'s Opp'n Mot. to Dismiss, ECF No. 11 at 7-8 (citing 5 U.S.C. § 552a(i)).

         The law is clear that “no [individual] cause of action exists” under the Privacy Act. Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006)(citing 5 U.S.C. § 552(a)(4)(B) (authorizing suit against an “agency”); 5 U.S.C. § 552a(g)(1) (same)). “Only agencies . . . are subject to the . . . Privacy Act.” Tyree v. Hope Vill., Inc., 677 F.Supp.2d 109, 110 (D.D.C. 2009). Although section 552a(i) of the Privacy Act does provide criminal penalties for federal government employees who willfully violate certain aspects of the statute, Ms. Ashbourne cannot initiate criminal proceedings against Mr. Trommatter and Mr. Harker by filing a civil suit. See Unt v. Aerospace Corp., 765 F.2d 1440, 1448 (9th Cir. 1985) (concluding that plaintiff cannot state a claim under section 552a(i) because it “generates no civil right of action”); Lapin v. Taylor, 475 F.Supp. 446, 448 (D. Haw. 1979) (concluding that the criminal penalties section of the Privacy Act is “solely a penal provision and creates no private right of action”); Hills v. Liberty Mut. Ins., Civ. No. 14-328S, 2015 WL 1243337 at *2 (W.D.N.Y. March 18, 2015)(finding that section 552a(i) does not create a private right of action against individuals). Therefore, because Ms. Ashbourne cannot initiate a criminal suit and the Privacy Act does not otherwise allow claims against individuals, the Privacy Act claims against Mr. Trommatter and Mr. Harker in their individual capacities are DISMISSED WITH PREJUDICE.

         III. Ms. Ashbourne Stated a Privacy Act Claim Against the DHS Defendants in Their Official Capacities

         The defendants move to dismiss Ms. Ashbourne's Privacy Act claims against the DHS defendants in their official capacities pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Defs.' Mot. to Dismiss, ECF No. 8 at 23-30.

         To withstand a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). A claim is facially plausible when the facts pled in the complaint allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The standard does not amount to a “probability requirement, ” but it does require more than a “sheer possibility that a defendant has acted unlawfully.” Id. In making this determination, “a judge must accept as true all of the factual allegations contained in the complaint.” Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quotations and citations omitted). The court must also give the plaintiff the “benefit of all inferences that can be derived from the facts alleged.” Kowal ...


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