United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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).
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.
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).
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).
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).
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).
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,
” 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.
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).
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.
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.
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
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