REGGIE B. WALTON, District Judge.
Robert Kursar, the plaintiff in this civil case, seeks declaratory and injunctive relief, monetary damages, and the referral of certain individuals for criminal prosecution for various alleged violations of the Federal Privacy Act, 5 U.S.C. § 552a(g)(1) (2006), and the Fifth Amendment of the United States Constitution, that he contends were committed by the Transportation Security Administration ("TSA"), TSA Special Agent in Charge William Blake, Jr., and other unknown TSA officials, First Amended Complaint ("Am. Compl.") ¶¶ 1-6. Currently before the Court is the defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and for summary judgment pursuant to Federal Rule of Civil Procedure 56, as well as Kursar's cross-motion for summary judgment. Upon consideration of Kursar's amended complaint, the defendants' motion to dismiss or for judgment, Kursar's cross-motion for summary judgment, and all relevant documents and exhibits attached to those submissions,
Kursar "is a dual [United States] and Canadian citizen," Am. Compl. ¶ 3, who, in 1994, was enlisted in the Washington State Army National Guard ("Washington National Guard") as a warrant officer while also employed at the Whatcom County Sheriff's Office in the state of Washington, Plaintiff's Statement of Material Facts As to Which There is No Genuine Issue ("Pl.'s Stmt. of Facts") ¶ 1. "In or about October 1995," the Whatcom County Sheriff's Office conducted "an internal investigation into [his] use of military leave and [his] admittedly ill-advised decision to use [his] law enforcement credentials in order to gain access to a scuba-diving course." Pl.'s Opp'n, Ex. 4 (Declaration of Robert Kursar ("Kursar Decl.")) ¶ 5. As a result of the investigation, the Whatcom County Sheriff's Office terminated Kursar's employment in January 1996. Id. ¶ 6. At the time of the investigation, Kursar "voluntarily" submitted his resignation to the Washington National Guard at the request of his supervisor. Id. ¶ 7. Kursar's supervisor informed him that the Washington National Guard was considering whether to also conduct an internal investigation into his "fraudulent" use of his "law enforcement credentials," and whether such behavior warranted an adverse discharge. Pl.'s Stmt. of Facts ¶ 2; Pl.'s Opp'n, Ex. 4 (Kursar Decl.) ¶ 7. In July 1996, the Washington National Guard completed its investigation, which led to Kursar being offered the option of proceeding with his resignation and receiving a general discharge under honorable conditions, or appearing before "a Board of Inquiry" for "an elimination proceeding." Pl.'s Opp'n, Ex. 4 (Kursar Decl.) ¶ 7; Pl.'s Stmt. of Facts ¶ 3. Kursar "decided to accept the offer" of proceeding with his resignation. Pl.'s Opp'n, Ex. 4 (Kursar Decl.) ¶ 7.
On January 23, 1997, Kursar enlisted in the United States Army Reserve. Id. ¶ 9. Several months later, the Army Central Clearance Facility "temporarily suspended" Kursar's security clearance when it discovered that he had been terminated from his earlier position with the Whatcom County Sheriff's Office.
Seeking redress, Kursar challenged his termination with the Merit Systems Protection Board ("MSPB") in March of 2003, alleging that the TSA violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("Employment Rights Act"). Id. ¶ 13. However, an administrative law judge concluded that he was not entitled to relief, and the MSPB and Federal Circuit ultimately affirmed. See Kursar v. Dep't of Homeland Sec., 301 Fed.Appx. 992, 992 (Fed.Cir.2008).
Kursar then filed his initial complaint in this matter on November 6, 2007. Proceeding pro se, Kursar alleged in Counts One and Two of his complaint that the TSA violated his rights under the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act ("APA"), 5 U.S.C. § 552 (2006), when it terminated his employment, Compl. ¶¶ 20-26, ¶ 31. In Count Three of the complaint, Kursar requested a "[n]ame-[c]learing [h]earing" to vindicate the TSA's alleged violation of his due process rights. Id. ¶¶ 34-45. Kursar further alleged in Counts Four through Six that the TSA violated the Privacy Act by failing to collect information directly from him and maintain accurate and complete records before terminating his employment, id. ¶¶ 46-58, by failing to maintain accurate and complete records following his termination, id. ¶¶ 59-70; and by disseminating inaccurate information regarding his termination, id. ¶¶ 71-82.
Unbeknownst to the undersigned member of the Court, Kursar filed a second complaint in this Court on the same date as his initial complaint in this matter. That matter was assigned to Judge Emmet G. Sullivan of this Court, but unlike
In November 2008, Kursar reached a settlement agreement with the Army in the second matter and received $90,000 in exchange for "full settlement and satisfaction of any and all claims" that he "may have or hereafter acquire against the United States, its agents, servants, and employees on account of the same subject matter that gave rise to the above-captioned action." Stipulation for Compromise Settlement and Release of Privacy Act Claim, Kursar v. Dep't of the Army, No. 07-2005(EGS), ¶ 4 (D.D.C. filed Nov. 6, 2007). Through this settlement agreement, all claims, "whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise" to the initial suit were settled. Id. ¶ 1. The settlement agreement was approved by Judge Sullivan on November 19, 2008. Id. at 5.
Subsequently, the undersigned member of the Court issued a memorandum opinion and order in the present case, in which Kursar's claims under the APA were dismissed for lack of subject-matter jurisdiction and his termination-related due process claim was dismissed based on res judicata. Kursar v. Transp. Sec. Admin., 581 F.Supp.2d 7, 16, 20-21 (D.D.C.2008) ("Kursar II"). Specifically, the Court concluded that judicial remedies under the APA are not available where "Congress has provided [a] plaintiff with statutory schemes and remedies through which [the plaintiff] may seek relief," id. at 15 (quoting Mittleman v. U.S. Treasury, 773 F.Supp. 442, 449 (D.D.C.1991) (Harris, J.)), and because Kursar had available to him relief under the Civil Service Reform Act of 1978, 5 U.S.C. §§ 1201-1206 (2000) (the "CSRA"), to redress his claim that he suffered an adverse personnel action, the Court dismissed his APA claims, id. at 16. The Court further held that Kursar's due process claim was precluded on res judicata grounds because "[i]n its decision resolving [his] appeal from the Board's rejection of his termination appeal, the Federal Circuit explicitly held that `[a]s a probationary employee, [Kursar] lacked a property interest in his position that entitled him to procedural protections under the Fifth Amendment's Due Process Clause.'" Id. at 20. And, in rejecting Kursar's Privacy Act claims, the Court first explained that his allegations regarding the TSA's "fail[ure] to maintain [his] records in an accurate and complete manner in violation of [Section] 552a(e)(5)," as well as his claim that the "defendants violated [Section] 552a(e)(6) by disseminating inaccurate information
After exhausting his administrative remedies concerning the TSA's alleged Privacy Act violations,
In response, the defendants request that the amended complaint be dismissed, that they be awarded judgment on the pleadings, or that they be awarded summary judgment. In support of its motion, they contend that Kursar's claims are barred by the doctrine of res judicata because he "already released these claims against the entire federal government" as a result of the settlement agreement reached in Kursar I. Def.'s Mem. at 11. In the alternative, the defendants argue that Kursar's Privacy Act claims are barred by the applicable two-year statute of limitations because he "was aware of his Privacy Act claim[s] in 2002, but waited more than five years to bring his claim." Id. at 15. Lastly, the defendants argue that they are entitled to summary judgment because Kursar "cannot show that [it] inaccurately maintained his records." Id. at 17.
In his opposition memorandum and cross-motion for summary judgment, Kursar asserts that he is not barred from raising his claims because (1) the claims in the present action do not arise from a "common nucleus of shared facts," Pl.'s Opp'n. at 18; (2) these claims were not resolved in Kursar I, id.; and (3) the settlement agreement in Kursar I did not encompass these claims, id. at 20. Kursar also disputes the defendants' assertion that his claims are barred by the two-year statute of limitations applicable to Privacy Act
As previously observed, the defendants seeks dismissal of all claims against them under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), or, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. With regards to the defendants' motion to dismiss under Rule 12(b)(1), they fail to explicitly specify their basis for being entitled to dismissal of the claims on jurisdictional grounds. The only basis the Court can extrapolate from the defendants' submissions as to why this case should be dismissed for want of jurisdiction is their assertion that the claims are barred by res judicata. But, reliance on this legal doctrine is an affirmative defense that, "while having a somewhat jurisdictional character, does not affect the subject matter jurisdiction of [a] district court."
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although Rule 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ___, U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), in order to "give the defendant fair notice of what the claim is and the grounds upon which it rests," Twombly, 550 U.S. at 555 127 S.Ct. 1955 (citation omitted). In other words, "a
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (internal quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice," Equal Emp't Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997) (footnote omitted). Although the Court must accept the plaintiffs' factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pled with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, ___ U.S. at ___, 129 S.Ct. at 1950. If "the [C]ourt finds that [a] plaintiff[] [has] failed to allege all the material elements of [his] cause of action," then the Court may dismiss the complaint without prejudice, Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 761 (D.C.Cir. 1997), or with prejudice, provided that the Court "determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (internal quotation marks and citations omitted).
Under Federal Rule of Civil Procedure 56, a court will grant summary judgment when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining which facts are material, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). While the court must draw "all justifiable inferences" in the non-moving party's favor, id. at 255, 106 S.Ct. 2505, the non-moving party cannot rely on the "mere allegations or denials of his pleading" but "must set forth specific facts showing that there is a genuine issue for trial," id. at 248, 106 S.Ct. 2505. "The moving party is `entitled to a judgment as a matter of law' [when] the nonmoving party has failed to make a sufficient showing on an essential element of [the] case with respect to which [the non-moving party] has the burden of proof." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.
As an initial matter, the Court is compelled to dismiss all of the Privacy Act
The defendants allege that the plaintiff's Privacy Act claims are barred by the Act's statute of limitations. For claims arising under the Privacy Act, "[a]n action to enforce any liability ... may be brought... within two years from the date on which the cause of action arises." 5 U.S.C. § 552a(g)(5). A cause of action arises under the Privacy Act when "(1) an error was made in maintaining the plaintiff's records; (2) the plaintiff was harmed by the error; and (3) the plaintiff either knew or had reason to know of the error." Conklin v. U.S. Bureau of Prisons, 514 F.Supp.2d 1, 4 (D.D.C.2007) (Walton, J.) (citations omitted); see also Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir.1987) ("[I]n a normal Privacy Act claim, the cause of action does not arise and the statute of limitation does not begin to run until the plaintiff knows or should know of the alleged violation."). Additionally, a "new cause of action does not arise each time an adverse determination is made based on the allegedly erroneous records." Conklin, 514 F.Supp.2d at 4; see also Doe v. Thompson, 332 F.Supp.2d 124, 133 (D.D.C.2004) (Walton, J.). In the complaint here, Kursar alleges various violations of the Privacy Act in Counts One through Four, see Am. Compl. ¶¶ 32, 42, 54, 66, and thus, the time limitation imposed by Section 552a(g)(5) applies to these Counts.
To be sure, the statute of limitations period set forth in 5 U.S.C. § 552a(g)(5) is not a jurisdictional bar, Chung v. U.S.
In Count One, Kursar challenges the TSA's denial of his request to amend his employee records because he "has a legal right under the Privacy Act to have his records amended as detailed in his request and appeal." Am. Compl. ¶ 32. More specifically, he alleges in Counts Three and Four that he is entitled to relief under Section 552a(g)(1)(A) because the TSA failed to accurately maintain his records in violation of Section 552a(e)(5), id. ¶ 54, and that the agency disseminated inaccurate records without his authorization in violation of Section 552a(e)(6),
When an individual is seeking damages under the Privacy Act, exhaustion of administrative remedies is not required. Nagel v. U.S. Dep't of Health, Educ. and Welfare, 725 F.2d 1438, 1441 n. 2 (D.C.Cir. 1984). The statute of limitations thus begins to run when the plaintiff "knows or should know of the alleged violation." Tijerina, 821 F.2d at 798. Kursar's own assertions in his amended complaint indicate the dates he became aware of the alleged violation. Namely, Kursar received notification on April 25, 2002, that the TSA intended to terminate him for "submitting false or incorrect information on his employment application and Standard Form 86." Am. Compl. ¶ 10. He acknowledged receipt of this information when he replied on April 29, 2002, denying
To avoid the consequences resulting from the filing of untimely claims, courts may allow a plaintiff to bring Privacy Act claims beyond the two-year limitations period by employing the doctrine of equitable tolling to ensure that a plaintiff "is not, by dint of circumstances beyond his control, deprived of a reasonable time in which to file suit." Chung, 333 F.3d at 279 (citation and internal quotations marks omitted); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (determining that equitable tolling, which applies to private defendants, also applies to suits against the United States unless Congress has specified otherwise). "The doctrine ... applies most commonly when [a] plaintiff despite all due diligence ... is unable to obtain vital information bearing on the existence of his claim," Chung, 333 F.3d at 278 (citation and internal quotations marks omitted), such as situations involving misconduct or misrepresentation by the defendant, see Irwin, 498 U.S. at 96, 111 S.Ct. 453. However, "[f]ederal courts have typically extended equitable relief ... sparingly" and are less likely to extend it where the claimant "failed to exercise due diligence in preserving his legal rights." Irwin, 498 U.S. at 96, 111 S.Ct. 453.
Here, Kursar argues that equitable tolling should apply to his claim because he first sought relief before the MSPB. Pl.'s Opp'n at 22. He reasons that a favorable determination in that forum would have precluded him from securing relief from this Court. Id. at 23. Kursar also argues that "sound policy" supports tolling the statute of limitations since his concurrent litigation was addressing the same merits and seeking the same relief. Id. at 26.
The Court is not persuaded. Interestingly enough, Kursar cites multiple cases in his opposition that illustrate the trend among courts that various grievance procedures do not toll an applicable statute of limitations. Pl.'s Opp'n at 23-25 (citing multiple cases including Ramirez and Del. State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)); see Ricks, 449 U.S. at 261, 101 S.Ct. 498 ("[W]e already have held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods."); Ramirez, 594 F.Supp.2d at 64 ("Neither the filing of inmate grievances nor the submission of Privacy Act requests to the relevant agencies tolls the statute of limitations for filing a claim for damages."). While Kursar asserts that his litigation before the MSPB is distinguishable from these cases because he was seeking a judicial and not an administrative remedy, Pl.'s Opp'n at 24, the Court is not aware of any case authority recognizing that the distinction Kursar attempts to draw is of any legal significance. See Bernard, 362 F.Supp.2d at 279 (finding no authority to support tolling the statute of limitations when a plaintiff pursued a judicial remedy by filing an action in the United States Court of Federal Claims, prior to filing it in the United States District Court for the District of Columbia).
In sum, Kursar's claim for damages pursuant to section 552a(g)(1)(C) is untimely and thus is barred by the Privacy Act's two-year statute of limitations. However, his claims for injunctive relief pursuant to section 552a(g)(1)(A) are not barred as untimely, as the limitations period in which to seek such relief did not begin until after he exhausted the administrative remedies outlined in section 552a(d) and his request for that relief was denied. The Court now turns to the merits of Kursar's remaining Privacy Act claims, as well as his Fifth Amendment claim.
As to the remaining Privacy Act claims, Kursar requests relief under section 552a(g)(1)(A), see Am. Compl. ¶¶ 32, 54, 66; see also Kursar II, 581 F.Supp.2d at 17 n. 4, which provides a civil remedy "[w]henever any agency ... makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection," § 552a(g)(1)(A). "[S]ubsection (g)(1)(A) provides for the correction of any inaccurate or otherwise improper material in a record." Doe v. Chao, 540 U.S. 614, 618, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004).
Following an agency's denial of an amendment request, the plaintiff can bring a claim in federal court and "obtain de novo consideration of whether amendment is warranted." Skinner v. U.S. Dep't of Justice, 584 F.3d 1093, 1096 (D.C.Cir. 2009). "If the court so finds, it may order the agency to amend the individual's record." Id. at 1096. While the Privacy Act allows for amendment of "factual or historical" errors, it is not "a vehicle for amending the judgments of federal officials." Kleiman v. Dep't of Energy, 956 F.2d 335, 337-38 (D.C.Cir.1992) (internal quotation marks and citation omitted); see also
In bringing these claims under Section 552a(g)(1)(A), Kursar is seeking to "expunge all records or information that [are] inaccurate, derogatory[,] or infringes upon [his] express or implied constitutional or statutory rights," or, alternatively, to order the TSA "to abide by Kursar's amendment request." Am. Compl. at 16. In his cross-motion for summary judgment, Kursar specifies that his "request for relief pertains exclusively to the TSA's records memorializing the issuance of the fact-based findings and the determination that the findings demonstrated that Kursar had submitted false information on his SF-86." Pl.'s Opp'n at 33. It is important to note that Kursar is not challenging the fact that the Washington National Guard offered him the option of proceeding with his resignation (which he tendered at the request of his supervisor) and receiving a general discharge under honorable conditions, rather than facing a proceeding in which the Washington National Guard would determine whether he should be adversely discharged, Pl.'s Opp'n, Ex. 4 (Declaration of Robert Kursar) ¶ 7, as a result of his "admittedly ill-advised decision to use [his] law enforcement credentials in order to gain access to a scuba-diving course," id. ¶ 5. Nor is there any dispute that "the Army Central Clearance Facility ... temporarily suspended Kursar's security clearance in light of the conduct" relating to his improper use of his law enforcement credentials. Pl.'s Stmt. Facts ¶ 8. Rather, Kursar asserts that Blake's findings in the May 3, 2002 termination letter are false because (1) he was not required to disclose his resignation from the Washington National Guard under question 22 of his SF-86 Form, Pl.'s Opp'n at 31, which asks the applicant to disclose whether, inter alia, he had ever "[l]eft a job by mutual agreement following allegations of unsatisfactory performance" or "for other reasons under unfavorable circumstances," Def.'s Mem., Ex. D (SF-86 Form for Robert Kursar) at 7, and (2) he did not have to reveal that the Army Central Clearance Facility had temporarily suspended his security clearance under question 26, Pl.'s Opp'n at 32, which asks whether he had "ever had a clearance or access authorization denied, suspended, or revoked," Def.'s Mem., Ex. D (SF-86 Form for Robert Kursar) at 8.
Based on a plain reading of the entire SF-86 Form, the Court concludes that Kursar has failed to demonstrate that he is entitled to have his records amended. Based on the undisputed facts discussed above, there can be no doubt that Kursar held a "job" within the military, that he resigned because of a mutual agreement between him and his supervisor, and that he left "following allegations of unsatisfactory
Kursar's reliance on the sworn testimony of Carolyn Donahue, an employee at the TSA, Pl.'s Opp'n at 17, does not further his cause. Donahue testified before an MSPB administrative judge that Kursar was not required to disclose his resignation from the Washington Army in response to question 22 because the SF-86 form "has [a] previous question ... about [his] military record," and thus this question pertained only to "other kind[s] of work-related experiences." Pl.'s Opp'n, Ex. 16 (MSPB testimony of Carolyn Donahue) at 2. Even assuming that her interpretation of the SF-86 is reasonable (and the Court is not persuaded that it is), it cannot be said that Blake's interpretation of question 22 is demonstrably false. As discussed in the preceding paragraph, one reasonable interpretation of question 22 is that it requires disclosure for any job, military or otherwise, that meets one of the conditions listed in the question. Thus, Donahue's testimony at best reveals an ambiguity in question 22, and it was incumbent on Blake to exercise his judgment in assessing whether Kursar (or any applicant) can be reasonably expected to disclose any adverse decisions in the military context under question 22. Notwithstanding what the Court finds to be an obvious reading of question 22, the Court concludes that Blake's conclusion was a "judgment[] of [a] federal official[]" that is not entitled to amendment under the Privacy Act. Kleiman, 956 F.2d at 337-38.
Kursar also makes much ado about the TSA's failure to "produce[] any evidence that the interim suspension of Kursar's security clearance fell within the scope of [q]uestion []26," and that the TSA failed to take steps to verify that Kursar was required to list his discharge from the Washington National Guard on his SF-86. Pl.'s Opp'n at 31-32. But all the evidence necessary for Blake to interpret the SF-86 Form is the form itself; Blake was not required to take any steps to verify the meaning of SF-86 Form because a plain reading of the question was sufficient for him to reasonably conclude that Kursar should have disclosed these adverse actions on his SF-86. In any event, the burden of proving the inaccuracy of records is on Kursar, not the TSA, Doe, 821 F.2d at 709, (Mikva, J., dissenting), and it is evident from the record that he has failed by a wide margin to put forth evidence sufficient to survive the TSA's summary judgment motion.
Kursar also seeks a "name clearing hearing," asserting that the TSA violated his liberty interest under the Due Process Clause of the Fifth Amendment without providing him "a meaningful opportunity to respond to the fact-based findings." Pl.'s Opp'n at 41. In deciding this issue, the Court must "engage in a `familiar two-part inquiry,'" to wit, "whether the plaintiff[] [was] deprived of protected property or liberty interests, and, if so, whether [he]
The Due Process Clause requires that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Kursar received just that in this instance. There is no dispute that Blake provided Kursar with a Proposed Notice of Termination on April 25, 2002, the purpose of which was "to officially notify [Kursar] of [Blake's] intent to terminate [Kursar's] employment with the [TSA]," and to notify Kursar that he was "entitled to submit a written answer to this notice of proposed termination[] and furnish any affidavits or other material in support of [his] answer." Def.'s Mem., Ex. D (April 25, 2002 letter from William Blake to Robert Kursar), at 1; see also Pl.'s Stmt. of Facts ¶ 12 (acknowledgment by Kursar that Proposed Notice of Termination was issued by Blake). On May 3, 2002, after "carefully consider[ing Kursar's] written response," Blake concluded that Kursar's explanation was insufficient to reverse the initial finding by Blake that Kursar had "submitted an official document that contained false and/or misleading information." Def.'s Mem., Ex. G (May 3, 2002 Letter from William Blake to Robert Kursar) at 1. Kursar, therefore, clearly received notice of the allegations and an opportunity to be heard; what he did not receive was the outcome that he desired, which unfortunately for him is not guaranteed by the Fifth Amendment. See Segal v. City of New York, 459 F.3d 207, 216 (2d Cir.2006) ("Because an at-will employee lacks a property interest in continued employment, she has no right to a particular outcome following an adequate name-clearing hearing; the government is simply required to provide her with an opportunity to salvage her name.")
Kursar does not contest the fact that he had an opportunity to respond to the Notice of Proposed Termination. Rather, he argues that he did not receive a meaningful hearing because Blake "gave Kursar's written response nothing more than a mere cursory glance." Pl.'s Opp'n at 44. Yet, Kursar presents no evidence to this effect. But even setting aside the question of whether Kursar received an adequate pre-termination hearing, Kursar has still been afforded all of the process that he is due because he was afforded the opportunity after his termination to amend his records pursuant to the Privacy Act. As stated in the amended complaint, Kursar is simply asking for an opportunity to "refute and/or challenge the accuracy of the information underlying the fact-based findings that resulted in [his] termination," Am. Compl. at 16, which is the assertion of "no more than the right to submit evidence," Dickson v. Office of Pers. Mgmt., 828 F.2d 32, 41 (D.C.Cir.1987). Such relief "is precisely equivalent to that afforded him as of right under the Privacy Act," id., and Kursar exercised that right by seeking amendment of his records with the TSA.
"[T]he Privacy Act does not allow a court to alter records that accurately reflect an administrative decision, nor the opinions behind that administrative decision, no matter how contestable the conclusions may be." Leighton v. Cent. Intel. Agency, 412 F.Supp.2d 30, 38 (D.D.C.2006) (Oberdorfer, J.) (quoting Reinbold v. Evers, 187 F.3d 348, 360 (4th Cir.1999)). And, it is apparent from the record before the Court that Kursar's complaint is premised on nothing more than a challenge to a decision made by a federal official in construing two non-technical questions listed on a SF-86 Form. While Kursar may disagree with defendant Blake's interpretation of the SF-86 Form, his official judgment is not entitled to amendment under the Privacy Act. As for Kursar's damages claim under the Privacy Act, the record conclusively establishes that his claim is barred by Section 552a(g)(5) because more than two years had passed between the time he received notice of what he believed to be an inaccurate termination notice and the filing of the present lawsuit. Finally, Kursar is not entitled to any additional relief under the Due Process Clause of the Fifth Amendment, because even assuming that he has established the deprivation of a liberty interest, he has been afforded all of the process that he is constitutionally due.
Accordingly, the Court will grant in part and deny in part the defendants' motion to dismiss, deny as moot the defendants' motion for judgment on the pleadings, grant in part and deny in part as moot the defendants' motion for summary judgment, and deny the plaintiff's cross-motion for summary judgment.
Nonetheless, dismissal under the circumstances presented in Kursar II was unwarranted even under Rule 12(b)(6). Although it is true that Kursar did not plead a specific request for damages, he did request that the Court "[g]rant such other relief as [it] may deem just and proper," Compl. at 14. In such circumstances, the Court should not have dismissed the complaint "for failure to seek the technically appropriate remedy when the availability of some relief is readily apparent on the face of the complaint." Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1104 (D.C.Cir. 1985). Rather, "[t]he proper course of action at that point was to grant the plaintiff leave to amend [his] complaint ... or to read such a... request into the prayer for `other ... relief.'" Id. While the Court did invite Kursar to seek leave to amend his complaint, Kursar II, 581 F.Supp.2d at 20 n. 5, dismissal of the plaintiff's claims at that time was inappropriate nonetheless.
In the amended complaint, Kursar relies only on Section 552a(g)(1)(A) as the basis for obtaining relief from the TSA for its alleged violations of Sections 552a(e)(5) and 552a(e)(6). The Court acknowledges that Kursar may have relied on Kursar II in pleading his claims, and while it appears at first blush that the interests of justice would require the Court to grant him leave to further amend his complaint to assert relief under Section 552a(g)(1)(C), the Court is convinced that any claim that he could make under that section for purported violations of Sections 552a(e)(5) and 552a(e)(6) are time-barred for the identical reasons that his Section 552a(g)(1)(C) claim under Count Two is also barred. See infra pp. 166-68.
