United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
G. Sullivan United States District Judge.
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.Pending before the Court is
(1) defendants' motion to dismiss Ms. Ashbourne's
complaint, see Defs.' Mot. to Dismiss, ECF No.
(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
Ms. Ashbourne's Claims Against the Treasury Secretary and
the Individual Treasury Employees are Dismissed
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. See Defs.' Mot. to Dismiss,
ECF No. 8 at 14-15. In Ashbourne v. Hansberry
(“Ashbourne I”), Ms. Ashbourne sued the
same defendants for allegedly violating the Privacy Act and
the Fifth Amendment. 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).
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
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).
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.
Ms. Ashbourne's Claims Against the DHS Employees in Their
Individual Capacities are Dismissed
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.
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.
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).
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
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
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. 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.
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)).
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.
Ms. Ashbourne Stated a Privacy Act Claim Against the DHS
Defendants in Their Official Capacities
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.
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.”