United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
suit arises from Plaintiff Muriel McKoy's discharge from
her employment as a dentist with the Navy. Plaintiff claims
that Defendant violated her constitutional rights to free
speech and due process under the First and Fifth Amendments
to the United States Constitution, as well as the Privacy
Act. Before the Court is Defendant's Motion for Partial
Dismissal of the Complaint and for Partial Summary Judgment.
Defendant argues that Plaintiff's Privacy Act claim
should be dismissed for failure to exhaust and that
Plaintiff's requests to be reinstated to the Navy and to
enjoin Defendant from violating the constitutional rights of
third parties who report discrimination should be dismissed
for lack of standing. Additionally, Defendant asks the Court
to grant summary judgment on Plaintiff's Fifth Amendment
due process claim based on a failure to allege a
constitutionally protected interest.
consideration of the pleadings,  the relevant legal
authorities, and the applicable record, the Court GRANTS IN
PART and DENIES IN PART Defendant's Motion. The Court
GRANTS Defendant's motion and DISMISSES Plaintiff's
Privacy Act claim insofar as it is based on Defendant's
failure to amend personnel records as Plaintiff failed to
exhaust this claim. The Court also DISMISSES Plaintiff's
request that the Court enjoin Defendant from retaliating
against third parties who report discrimination as Plaintiff
does not have standing to request relief for third parties.
Finally, the Court DISMISSES Plaintiff's Fifth Amendment
due process claim alleging infringement of Plaintiff's
interest in a clean record with the National Practitioner
Data Bank and the New York licensing authorities as Plaintiff
has not alleged a constitutionally protected interest.
Defendant's motion is otherwise DENIED.
before the Court is Plaintiff's Motion for Leave to
Conduct Discovery. This motion was made in response to the
Court's May 23, 2018 Order that Plaintiff file a motion
explaining why, as a legal matter given the claims in this
case, she is entitled to discovery. See ECF No. 33.
Defendant contends that Plaintiff is not entitled to
discovery and that the Court should instead restrict itself
to review of the administrative record.
consideration of the pleadings,  the relevant legal
authorities, and the applicable record, the Court GRANTS IN
PART and DENIES IN PART Plaintiff's Motion. The Court
DENIES Plaintiff's motion and concludes that Plaintiff is
not entitled to discovery on her Fifth Amendment due process
claim alleging an interest in the continued practice of
dentistry with the Navy. This claim requires the Court to
evaluate an agency action made on the administrative record;
so, the Court will restrict its review to the administrative
record. But, Plaintiff's motion is GRANTED as to the
remainder of her claims as discovery on those claims is
previously filed a Motion to Dismiss or, in the Alternative,
for Summary Judgment. See ECF No. 8. And in the
Court's Memorandum Opinion granting in part and denying
in part Defendant's motion, the Court set out the factual
background of this case. See ECF No. 16; see
also McKoy v. Spencer, 271 F.Supp.3d 25, 29-30 (D.D.C.
2017). The Court incorporates its previous background section
as part of this opinion. The Court recites here only the
background essential to the Court's resolution of the
currently pending motions. The Court reserves further
presentation of the facts for the issues discussed below.
Muriel McKoy is an African American female who was previously
employed by the Navy as a dentist. Compl., ECF No. 1,
¶¶ 4, 7. Based on the results of an evaluation of
Plaintiff's work, Plaintiff's clinical dentistry
privileges were held in abeyance and then suspended.
Id. at ¶¶ 14-15. Further proceedings and
appeals led to Plaintiff being prohibited from practicing
dentistry in the Navy. Id. at ¶ 17. She was
eventually separated and discharged from the Navy.
Id. at ¶ 25.
Plaintiff filed this lawsuit alleging that the manner in
which the Navy suspended and then discharged her violated her
rights under the First and Fifth Amendments to the United
States Constitution. Id. at ¶¶ 28-36.
Plaintiff further alleges that the Navy violated the Privacy
Act by refusing to amend certain personnel records and by
disclosing Plaintiff's personnel records to various third
parties. Id. at ¶¶ 37-40. Plaintiff seeks
an injunction, a declaratory judgment, reinstatement with
removal of adverse personnel actions, rescission of
Defendant's various statements to third parties relating
to Plaintiff's separation, cessation of Defendant's
efforts to recoup the incentive pay and bonus pay Plaintiff
had received while employed by the Navy, as well as damages,
fees, costs and expenses. Id. at ¶¶ A-F.
of filing an answer to Plaintiff's complaint, Defendant
filed a Motion to Dismiss or, in the Alternative, for Summary
Judgment. See ECF No. 8. In response, the Court
dismissed Plaintiff's claim for money damages under the
First and Fifth Amendments but denied Defendant's motion
in all other respects. See generally Sept. 21, 2017
Order, ECF No. 15. Following the Court's Order, Defendant
filed its Answer to Plaintiff's Complaint. See
ECF No. 17. Thereafter, the parties disputed whether or not
Defendant had provided the complete administrative record. In
response, Plaintiff filed a Motion to compel Defendant to
supplement the administrative record, which Defendant
opposed. See generally Pl.'s Mot. to Compel
Submission of Complete Administrative Record in Response to
Court's Nov. 29, 2017 Order, ECF No. 22, and Def.'s
Opp'n to Pl.'s Mot. to Compel, ECF No. 25.
Considering both parties' arguments, the Court denied
Plaintiff's motion without prejudice. See May
23, 2018 Order, ECF No. 33. The Court explained that
Plaintiff's motion failed to address whether she was
legally entitled to discovery on her claims or whether she
was bound by the administrative record. Id.
response to the Court's Order, Plaintiff filed a Motion
for Leave to Conduct Discovery. See Pl.'s Mot.,
ECF No. 34. Defendant responded by opposing Plaintiff's
motion for discovery and also by filing a motion to dismiss
and a motion for summary judgment. See Def.'s
Mot., ECF No. 35. Both Plaintiff's and Defendant's
motions are currently before the Court.
moves to dismiss Plaintiff's Privacy Act claim, her
request for reinstatement to the Navy, and her request to
enjoin the Navy from retaliating against third parties who
report discrimination. Defendant also moves for summary
judgment on Plaintiff's Fifth Amendment due process
claim. However, in requesting summary judgment on
Plaintiff's due process claim, Defendant makes a purely
legal argument. Specifically, Defendant contends that
Plaintiff has failed to allege a constitutionally protected
interest. As the Court can resolve this legal issue by
relying on only Plaintiff's Complaint, Defendant's
motion is more properly treated as a motion to dismiss.
Accordingly, the Court will treat it as such.
Subject Matter Jurisdiction under Rule 12(b)(1)
requests dismissal under Federal Rule of Civil Procedure
12(b)(1) for lack of jurisdiction. This is the correct
standard for the dismissal of Plaintiff's Privacy Act
claims. Defendant contends that Plaintiff failed to exhaust
her Privacy Act claims, and exhaustion under the Privacy Act
is a jurisdictional requirement. See Stein v. U.S. Sec.
and Exch. Comm'n, 266 F.Supp.3d 326, 335-36 (D.D.C.
2017) (finding the court did not have jurisdiction over the
plaintiff's Privacy Act claim that he had failed to
exhaust); see also Barouch v. U.S. Dep't of
Justice, 962 F.Supp.2d 30, 67 (D.D.C. 2013) (collecting
cases treating exhaustion under the Privacy Act as
jurisdictional); see also 5 U.S.C. §§
552a(d)(1)-(3), (g)(1) (setting out the statutory requirement
for exhaustion of Privacy Act claims).
12(b)(1) also provides the correct standard for evaluating
Defendant's motion to dismiss Plaintiff's requests
for reinstatement to the Navy and for injunctive relief for
third parties. On these claims, Defendant moves for dismissal
based on lack of standing. And, standing is a jurisdictional
requirement. See Friends of Animals v. Jewell, 828
F.3d 989, 991 (D.C. Cir 2016) (affirming dismissal under
Fed.R.Civ.P. 12(b)(1) for lack of standing); see also
Food & Water Watch, Inc. v. Vislack, 808
F.3d 905, 913 (D.C. Cir. 2015) (“we must evaluate
whether they have established standing under the standard
applicable pursuant to Federal Rule of Civil Procedure
must dismiss a case pursuant to Federal Rule 12(b)(1) when it
lacks subject matter jurisdiction. In determining whether
there is jurisdiction, the 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 (D.C. Cir. 2003) (internal quotation marks omitted);
see also Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005)
(“[T]he district court may consider materials outside
the pleadings in deciding whether to grant a motion to
dismiss for lack of jurisdiction.”). “At the
motion to dismiss stage, counseled complaints, as well as
pro se complaints, are to be construed with
sufficient liberality to afford all possible inferences
favorable to the pleader on allegations of fact.”
Settles v. U.S. Parole Comm'n, 429 F.3d 1098,
1106 (D.C. Cir. 2005). In spite of the favorable inferences
that a plaintiff receives on a motion to dismiss, it remains
the plaintiff's burden to prove subject matter
jurisdiction by a preponderance of the evidence. Am. Farm
Bureau v. U.S. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90
(D.D.C. 2000). “Although a court must accept as true
all factual allegations contained in the complaint when
reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a]
plaintiff['s] 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) (internal citations and
quotation marks omitted).
Failure to State a Claim under Rule 12(b)(6)
Court will evaluate the dismissal of Plaintiff's Fifth
Amendment due process claim under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim for which
relief may be granted. Whether or not Plaintiff pled a
constitutionally protected interest goes to Plaintiff's
ability to set forth allegations, which taken as true, would
make Defendant liable for the misconduct alleged.
Accordingly, this claim will be dealt with under Rule
12(b)(6). See Bowman v. Iddon, 848 F.3d 1034,
1038-40 (D.C. Cir. 2017) (affirming dismissal under Rule
12(b)(6) when the plaintiff “identifie[d] no
constitutionally protected interest lost through
to Federal Rule 12(b)(6), a party may move to dismiss a
complaint on the grounds that it “fail[s] to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “[A] complaint [does not] suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.”
Iqbal, 556 U.S. at 678. “In evaluating a
motion to dismiss, the Court must accept the factual
allegations in the complaint as true and draw all reasonable
inferences in favor of plaintiff.” Nat'l Postal
Prof'l Nurses v. U.S. Postal Serv., 461 F.Supp.2d
24, 27 (D.D.C. 2006).
DISCUSSION OF DEFENDANT'S MOTION
motion, Defendant requests that the Court dismiss
Plaintiff's Privacy Act claim for failure to exhaust and
dismiss Plaintiff's requests for reinstatement to the
Navy and for relief for third parties on standing grounds.
Additionally, Defendant requests that the Court grant summary
judgment on Plaintiff's Fifth Amendment due process claim
for failure to allege a constitutionally protected interest.
But, for the reasons provided above, Defendant's request
for summary judgment on Plaintiff's due process claim
will also be treated as a motion to dismiss. See
Supra Sec. II. The Court will address each request in
Dismissal of Plaintiff's Privacy Act Claim
argues that the Court should dismiss Plaintiff's Privacy
Act claim as it has not been exhausted. Plaintiff states two
types of violations of the Privacy Act, one involving
disclosure of records and one involving the failure to amend
records. First, Plaintiff claims that Defendant violated the
Privacy Act by disclosing: (1) to the National Practitioner
Data Bank and the New York licensing authorities that her
clinical privileges were revoked for substandard or
inadequate care; (2) to credit agencies that she was indebted
to the Navy for the incentive pay she received each year she
was in service; and (3) to her school that her discharge was
less than honorable. Compl., ECF No. 1, ¶¶ 39-40.
Second, Plaintiff contends that the Navy “violated the
Privacy Act by recording in Plaintiff's personnel file
that she practiced substandard dentistry which required the
revocation of her clinical privileges.” Id.
The Court will separately address both types of Privacy Act
Privacy Act Violation-Disclosure
Court will first address Plaintiff's Privacy Act
allegation involving the disclosure of personnel records to
third parties. Defendant argues that these claims should be
dismissed for failure to exhaust. This Circuit
“distinguishe[s] between Privacy Act suits seeking
correction of agency records and suits seeking damages for
inaccurate records. While plaintiffs must request agency
amendment of allegedly inaccurate records before suing to
compel amendment, exhaustion of administrative remedies is
not required where an individual seeks damages” for
inaccurate records. Hubbard v. U.S. Envtl. Prot. Agency
Adm'r, 809 F.2d 1, 4 (D.C. Cir. 1986) (internal
quotation marks omitted).
disclosure claims under the Privacy Act did not require the
exhaustion of remedies because the claims do not involve a
request for amendment to personnel records. Instead,
Plaintiff is seeking damages for Defendant's allegedly
unlawful disclosure of personnel records. And, a claim
seeking damages for the unlawful disclosure of personnel
records does not require exhaustion. See Nagel v. U.S.
Dep't of Health, Educ. and Welfare, 725 F.2d 1438,
1441 n.2 (D.C. Cir. 1984) (explaining that exhaustion is not
required when an individual seeks damages for records);
see also Flowers v. the Exec. Office of the
President, 142 F.Supp.2d 38, 44 (D.C. Cir. 2001)
(explaining that a plaintiff does not have to seek agency
action before a plaintiff files a damages suit against an
agency for the unlawful maintenance and dissemination of
Defendant contends that this Court cannot grant Plaintiff
relief for the disclosure of “false” personnel
information because Plaintiff cannot use the Privacy Act to
challenge the substance of the Navy's decision revoking
Plaintiff's dentistry credentials. Defs.' Reply, ECF
No. 41, 2-3. But, Plaintiff's challenges under the
Privacy Act do not necessarily require that the Court
evaluate the substance of the Navy's decision on
Plaintiff's credentialing. As Plaintiff explains,
“[e]ven if Defendant's clinical privilege
revocation is proper, it is still subject to special
conditions in order to disseminate that internal information
to external parties.” Pl.'s Opp'n, ECF No. 40,
9 (emphasis omitted). Accordingly, Plaintiff has properly
alleged Privacy Act disclosure violations which did not
Plaintiff was not required to exhaust Defendant's alleged
disclosure violations under the Privacy Act, Defendant asks
the Court to dismiss Plaintiff's Privacy Act claim on the
grounds that Plaintiff failed to allege pecuniary damages.
Specifically, Defendant argues that disclosing
Plaintiff's personnel records did not result in an
actionable adverse agency determination because Plaintiff was
not denied a right, benefit, entitlement, or employment.
the motion-to-dismiss stage, the Court finds that Plaintiff
has sufficiently plead damages. Plaintiff alleged that, due
to Defendant's disclosures, she was denied educational
benefits, her credit score decreased, and she could not
continue her career as a dentist. Compl., ECF No. 1,
¶¶ 24-27. On the current record, it is unclear
whether or not Plaintiff will be able to sufficiently connect
her damages to Defendant's alleged ...