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Fleck v. Department of Veterans Affairs Office of Inspector General

United States District Court, District of Columbia

January 3, 2020

ROBERT FLECK, Plaintiff,



         Plaintiff Robert Fleck's complaint arises from the publication of a report based on an investigation that Defendant Department of Veterans Affairs, Office of the Inspector General (“VA OIG” or “OIG”) conducted into his alleged involvement in hiring his wife for a new position in the Department of Legal Affairs, Office of General Counsel, where he also worked. Dkt. 12 at 1-2, 10 (Am. Compl. ¶¶ 2, 66). He alleges that the VA OIG violated two provisions of the Privacy Act-5 U.S.C. §§ 552a(g)(1)(C) & (D)-by maintaining and publishing inaccurate information about him, which injured his reputation, caused him emotional harm, and prevented him from obtaining a higher-paying job. Id. at 17-18 (Am. Compl. ¶¶ 113-29). The VA OIG moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) & (6). Dkt. 14 at 1. It argues that two exceptions to the Privacy Act bar Plaintiff's claims, and it asserts that Plaintiff has not pleaded facts sufficient to state claims under the Act. Id. at 5-15. The Court is unpersuaded by Defendant's threshold challenges and will therefore deny its motion to dismiss.

         I. BACKGROUND

         A. Factual Background

         For purposes of the pending motion, the Court must accept the non-conclusory factual allegations set forth in the complaint as true and will also consider the report of investigation, which is referenced and for which a link is provided in the complaint. See Dentons U.S. LLP v. Republic of Guinea, 208 F.Supp.3d 330, 334-35 (D.D.C. 2016).

         Plaintiff Robert Fleck is employed as Chief Counsel of the Procurement Law Group in the Office of General Counsel (“OGC”) at the Department of Veterans Affairs (“VA”). Dkt. 12 at 3 (Am. Compl. ¶ 8). This is a Senior Executive Service position, and Plaintiff is currently compensated “at the tier two pay grade.” Id. Plaintiff previously worked as an attorney at the United States Department of the Army (“Army”), where he “won an award for his leadership and legal advice known as the Meritorious Service Award, ” along with other awards and commendations. Id. (Am. Compl. ¶¶ 10-11). Plaintiff's wife, Kristina Wiercinski, is also an attorney and currently works in the OGC's Court of Appeals Law Group. Id. (Am. Compl. ¶ 13). Before that, Wiercinski worked as an e-discovery attorney in the OGC's Real Property Law Group, and before that, she worked as an attorney alongside Plaintiff at the Army. Id. at 3- 4 (Am. Compl. ¶¶ 13-14).

         Plaintiff alleges that, in the Spring of 2016, “multiple senior counsel within [the] OGC's acquisition groups” decided to create an e-discovery attorney position to meet the groups' needs. Id. at 4 (Am. Compl. ¶¶ 15-16). During a conference call, OGC Procurement Law Group Deputy Counsel Vincent Buonocore recommended Wiercinski to Deputy General Counsel Richard Hipolit for the new position. Id. (Am. Compl. ¶ 17). Buonocore had supervised Wiercinski when she worked at Army and was therefore “very familiar with her work and qualifications.” Id. Plaintiff alleges that, although he participated in this conference call, he “did not recommend, promote or otherwise discuss . . . Wiercinski as a candidate for the position.” Id. (Am. Compl. ¶ 18). Hipolit, Plaintiff's supervisor, later asked Plaintiff to send him Wiercinski's resume, which Plaintiff did on June 17, 2016. Id. (Am. Compl. ¶¶ 19-20). Plaintiff “recused himself from any discussions regarding hiring for the e-discovery attorney position once he learned” that Wiercinski was a candidate, but some of his colleagues spoke to him about her candidacy and the hiring process and copied him on emails pertaining to those subjects. Id. at 5 (Am. Compl. ¶¶ 22-23).

         The OGC posted the position opening on August 12, 2016, and Wiercinski formally applied six days later. Id. (Am. Compl. ¶¶ 25-26). A Best Qualified panel of three Real Property Law Group employees was convened to select a candidate for the position; Plaintiff was not involved in this process. Id. (Am. Compl. ¶¶ 27-28). Plaintiff asserts that “at least one member of the Best Qualified panel considered . . . Wiercinski to be . . . far and away the best candidate, ” and all three evaluated Wiercinski as “Exceptional.” Id. (Am. Compl. ¶¶ 29-30). The panel recommended to the Chief Counsel of the Real Property Law Group that he select Wiercinski for the position. Id. at 6 (Am. Compl. ¶ 35).

         Plaintiff alleges that, “[a]round this same time, . . . Wiercinski had also applied for and was in consideration for other openings within the VA's Information Law Group” and that, accordingly, the Chief Counsel of the Real Property Law Group communicated to Wiercinski her selection for the e-discovery position by telephone in mid-September 2016, so that she would not accept another job offer. Id. at 6 (Am. Compl. ¶¶ 34, 36). Wiercinski accepted the e-discovery position and then informed Plaintiff of her acceptance of the offer. Id. at 6-7 (Am. Compl. ¶¶ 37, 39).

         Plaintiff alleges that, “on September 30, 2016, [he] forwarded [his wife] an e-mail initially sent to him on May 5, 2016 listing the VA's e-discovery issues, ” which he characterizes as “helpful background information for [her] as she prepared for her new role.” Id. at 7 (Am. Compl. ¶ 40). On October 4, 2016, Wiercinski was “officially selected for the position, ” and “Wiercinski received her official offer letter on October 5, 2016.” Id. (Am. Compl. ¶¶ 41-42). She began work in the new position on January 8, 2017 and “has performed her job well, winning . . . awards.” Id. (Am. Compl. ¶¶ 43-45).

         Plaintiff alleges that, in early- to mid-2017, the OIG initiated an investigation into his conduct in the course of the hiring process and Wiercinski's selection for the e-discovery role. Id. (Am. Compl. ¶ 46). He alleges that the OIG conducted multiple interviews as part of the investigation. Id. at 7-8 (Am. Compl. ¶ 46-49). He asserts that four of his colleagues who were interviewed informed the OIG investigators that Plaintiff “had no participation or influence in the hiring of . . . Wiercinski, and that [she] was independently rated the best qualified candidate.” Id. at 8 (Am. Compl. ¶ 51). Plaintiff alleges that the OIG investigators ignored evidence that cast him and his behavior in a favorable light and, instead, “undertook questionable interview tactics” to elicit unfavorable evidence. Id. at 8-9 (Am. Compl. ¶¶ 53-57). Plaintiff also alleges that the OIG investigators failed to interview Buonocore, despite the fact that multiple witnesses informed them that it was Buonocore who had first recommended Wiercinski for the position. Id. at 9 (Am. Compl. ¶¶ 61-62). In September 2017, the OIG investigators interviewed both Plaintiff and Wiercinski; Plaintiff asserts that they both “provided thorough and truthful responses.” Id. (Am. Compl. ¶ 60).

         The OIG produced a report regarding Plaintiff's conduct, which it shared with the VA Deputy Secretary and the OGC. Id. at 11 (Am. Compl. ¶¶ 74, 77). Plaintiff alleges that this “report's finding and conclusions were based on purposefully incomplete and inaccurate information.” Id. at 10 (Am. Compl. ¶ 69). He further alleges that the report “intentionally omitted . . . interview testimony[, such as that of Benjamin Diliberto, ] and all other exculpatory evidence and statements favorable to [him], ” including any mention of Buonocore or his role in recommending Wiercinski. Id. (Am. Compl. ¶¶ 70-71). The report recommended that the VA Deputy Secretary, the OGC, and Human Resources should decide what administrative action to take against Fleck and Wiercinski, how much salary to claw back from Wiercinski, and whether Wiercinski should remain at the same pay grade. It also recommended that the VA Deputy Secretary and the VA Designated Agency Ethics Official ensure that Plaintiff's department receive appropriate ethics training. Id. at 11 (Am. Compl. ¶ 73). Plaintiff alleges that the OIG intentionally failed to provide the VA Deputy Secretary with the underlying investigatory materials and only provided the OGC with select documents, which he claims were “cherry picked by [the] OIG to include only the most unfavorable documents and testimony from the investigation.” Id. at 11-12 (Am. Compl. ¶¶ 74-81).

         On February 9, 2018, the VA Deputy Secretary informed the OIG that he had reviewed its report, agreed with its findings, and was taking steps in line with its recommendations. Id. at 11 (Am. Compl. ¶ 75). “On March 23, 2018, the VA Deputy General Counsel of Legal Operations issued a proposal letter that cited [Plaintiff] on charges of conduct unbecoming and disclosing sensitive information, ”[1] recommending his demotion. Id. at 12 (Am. Compl. ¶ 79). Plaintiff alleges that the “OIG had pressured the Deputy General Counsel of Legal Operations” to issue this letter. Id. (Am. Compl. ¶ 82). Plaintiff responded to this proposal letter, including by offering additional evidence that he asserts was omitted from the initial report. Id. (Compl. ¶ 83). On April 13, 2018, James Byrne, the VA's General Counsel, issued a decision concluding that Plaintiff had not committed conduct unbecoming but that he had shared sensitive information with Wiercinski prior to her formal acceptance of the position. Id. (Am. Compl. ¶ 84).

         The OIG also referred its findings that Plaintiff and Wiercinski had made false statements and that Plaintiff had a conflict of interest in the hiring process to the United States Attorney's Office, which declined to prosecute either Plaintiff or Wiercinski. Id. at 13 (Am. Compl. ¶ 88). On March 29, 2018, the OIG published its report, titled “Administrative Investigation of Conflict of Interest, Nepotism, and False Statements within the VA Office of General Counsel, ” on its website. Id. (Am. Compl. ¶ 92). The report received some attention in the press. Id. at 14 (Am. Compl. ¶ 97).

         Plaintiff alleges that the report “irreparably damaged” his “professional reputation and career prospects.” Id. (Am. Compl. ¶ 99). He asserts that he “applied for and received an interview for an attorney opening” with another government agency, which would have paid him more than his present job. Id. (Am. Compl. ¶ 100). Plaintiff interviewed for the position one week after the publication of the OIG report; he was informed the following day that he was no longer under consideration for the job. Id. at 16 (Am. Compl. ¶ 100).

         B. Procedural History

         On June 20, 2018, Plaintiff filed a two-count complaint alleging violations of §§ 552a(g)(1)(C) & (D) of the Privacy Act. Dkt. 1. He filed an amended complaint on October 5, 2018. See Dkt. 14. Defendant moved to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Dkt. 14; Plaintiff opposed that motion, Dkt. 17; Dkt. 18, and Defendant replied to Plaintiff's opposition, Dkt. 20.


         “To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the ‘complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Coon v. Wood, 68 F.Supp.3d 77, 81 (D.D.C. 2014) (quoting Wood v. Moss, 572 U.S. 744, 757-58 (2014)). The plaintiff must plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The court assumes the truth of all well-pleaded factual allegations . . . and construes reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept the plaintiff's legal conclusions as correct.” Sissel v. U.S. Dep't of Health & Human Servs., 760 F.3d 1, 5 (D.C. Cir. 2014) (internal citation omitted). The Court may consider sources such as “documents incorporated [into] the complaint by reference, and matters of which a court may take judicial notice” in deciding a 12(b)(6) motion to dismiss. Coon, 68 F.Supp.3d at 82 (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

         III. ANALYSIS

         The Privacy Act “safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records.” Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996) (quoting Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984)). It mandates that “[e]ach agency that maintains a system of records . . . maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). If an agency fails to do so, and “consequently a determination is made which is adverse to the individual, ” the individual may sue the agency in federal district court. Id. § 552a(g)(1)(C). Individuals may also sue if the agency “fails to comply with any other provision of this section, or any rule promulgated thereunder, ...

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