UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) ANICA ASHBOURNE, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-752 (EGS) ) DONNA HANSBERRY, et. al. ) ) Defendants. ) )
MEMORANDUM OPINION AND ORDER
Plaintiff 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. 1
Pending before the Court is (1) defendants’ motion to dismiss
1 Ms. Ashbourne also purports to sue defendants under the Fourteenth Amendment. However, the Fourteenth Amendment applies only to states and not to the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954). 1 Ms. Ashbourne’s complaint, see Defs.’ Mot. to Dismiss, ECF No.
8; 2 (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 grounds.
I. Ms. Ashbourne’s Claims Against the Treasury Secretary and the Individual Treasury Employees are Dismissed
Ms. 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,
2 Government counsel does not represent three of the individual defendants—Donna Prestia, Thomas Harker, and James Trommatter—in their individual capacities because these individuals have not been served and have not sought legal representation from government counsel. See Defs.’ Mot. to Dismiss, ECF No. 8 at 1, n.1. Government counsel “advises that the claims against them should be dismissed for reasons also applicable to the other individual defendants and present[s its arguments on behalf of all defendants] as a statement of interest.” Id. (citing 28 U.S.C. § 517 (“[A]ny officer of the Department of Justice, may be sent to . . . any . . . district in the United States to attend to the interests of the United States in a suit pending in a court of the United States.”)) 2 7. The defendants move to dismiss these claims against as barred
under the doctrine of res judicata. 3 See Defs.’ Mot. to Dismiss,
ECF No. 8 at 14-15. 4 In Ashbourne v. Hansberry (“Ashbourne I”),
Ms. Ashbourne sued the same defendants for allegedly violating
the Privacy Act and the Fifth Amendment. 5 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).
“The 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
3 Defendants make several other arguments in support of their motion to dismiss, although it is not altogether clear whether these arguments pertain to all of the defendants or just the DHS defendants. See generally, Defs.’ Mot. to Dismiss, ECF No. 8. Regardless, the Court need not reach these additional arguments. 4 When citing electronic filings throughout this opinion, the
Court cites to the ECF page number, not the page number of the filed document. 5 Ms. Ashbourne brought her due process claim pursuant to 42
U.S.C. § 1983. See Ashbourne I, Civ. No. 12-1153-BAH, 2015 WL 11303198 at *5 n. 6 (D.D.C. Nov. 24, 2015). 3 (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 omitted).
In 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”),
4 245 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). 6
Ms. 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.
6 See Case No. 17-5136 (oral argument scheduled for April 30, 2018). 5 II. Ms. Ashbourne’s Claims Against the DHS Employees in Their Individual Capacities are Dismissed
Ms. 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.
Ms. 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.
Federal Rule of Civil Procedure 4(i)(3) requires that
government employees sued in their individual capacities be
6 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).
The 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
7 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 capacities. 7
Regarding 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 request.
Despite 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
7 Because the Court dismissed these claims against these defendants in their individual capacities pursuant to FRCP 4(m), the Court need not reach the defendants’ other arguments. See Defs.’ Mot. to Dismiss, ECF No. 8 at 12-22. 8 interest of judicial economy. 8 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.
Ms. 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)).
The law 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
8“[T]he interest of judicial economy is served by reaching the merits of [Ms. Ashbourne’s] claims against [individual defendants Mr. Trommatter and Mr. Harker] at this time, rather than delaying the inevitable by allowing [Ms. Ashbourne] to file another lawsuit against those Defendants containing the same meritless claims.” McManus v. District of Columbia, 530 F. Supp. 2d 46, 68 (D.D.C. 2007)(citing cf. Simpkins v. District of Columbia, 108 F.3d 366, 369–70 (D.C. Cir. 1997)(affirming district court's dismissal on the merits, notwithstanding the plaintiff’s failure to properly serve)). 9 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.
III. Ms. Ashbourne Stated a Privacy Act Claim Against the DHS Defendants in Their Official Capacities
The 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.
To 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
10 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.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.
Cir. 1994). As applicable here, a “pro se complaint is entitled
to liberal construction.” Washington v. Geren, 675 F. Supp. 2d
26, 31 (D.D.C. 2009) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)).
The Privacy Act is “a comprehensive and detailed set of
requirements for the management of confidential records held by
Executive Branch agencies.” FAA v. Cooper, 566 U.S. 284, 287
(2012). The Act provides several “avenues for individuals to
seek civil remedies for any violations.” Ashbourne I, 2015 WL
11303198 at *6 (citing Doe v. Chao, 540 U.S. 614, 618 (2004)).
The two such avenues relevant to Ms. Ashbourne’s claims are
subsections (g)(1)(C) and (g)(1)(D). See Compl., ECF No. 1 ¶¶
11 24-36. “Subsection (g)(1)(C) describes an agency’s failure to
maintain an adequate record on an individual, when the result is
a determination ‘adverse’ to that person.” Doe v. Chao, 540 U.S.
at 619. “Subsection (g)(1)(D) speaks of a violation when someone
suffers an ‘adverse effect’ from any other failure to hew to the
terms of the Act.” Id.
To state a claim under subsection (g)(1)(C), a plaintiff must
show that: (1) she has been “aggrieved by an adverse
determination”; (2) the agency “failed to maintain [her] records
with the degree of accuracy necessary to assure fairness in the
determination”; (3) the agency's “reliance on the inaccurate
records was the proximate cause of the adverse determination”;
and (4) the agency “acted intentionally or willfully in failing
to maintain accurate records.” Chambers v. U.S. Dep't of
Interior, 568 F.3d 998, 1006 (D.C. Cir. 2009)(quotations and
citations omitted). Ms. Ashbourne’s complaint pleads all four.
First, she alleges that the defendants deemed her unsuitable
for federal employment, “publicly terminat[ing] her.” Compl.,
ECF No. 1 ¶¶ 5, 6, 8, 20, 21. Second, she alleges that the
defendants failed to maintain accurate records by “intentionally
and deliberately fail[ing] to verify facts” and “obtain[ing]
[false] information from Donna Hansberry, Donna Prestia, and
Thomas Collins.” Id. ¶¶ 24-36. Third, Ms. Ashbourne alleges that
the defendants “intentionally and deliberately relied on
12 falsified records,” when they terminated her, knowing the
records were “outdated, inaccurate, and unreliable.” Id.
Finally, Ms. Ashbourne pled that the defendants failed to
maintain her records “intentionally and deliberately.” Id.
Accepting Ms. Ashbourne’s factual allegations as true and
drawing all reasonable inferences in her favor, it is plausible
that the DHS defendants are liable for a violation of this
section of the Privacy Act. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
Ms. Ashbourne also stated an unlawful disclosure claim
pursuant subsection (g)(1)(D). To state an unlawful disclosure
claim, a plaintiff must show that “(1) the disclosed information
is a ‘record’ contained within a ‘system of records'; (2) the
agency improperly disclosed the information; (3) the disclosure
was willful or intentional; and (4) the disclosure adversely
affected the plaintiff.” Feldman v. CIA, 797 F. Supp. 2d 29, 38
(D.D.C. 2011) (quotations and citations omitted).
First, Ms. Ashbourne adequately pled that the disclosed
information was her “personnel records.” Compl., ECF No. 1 ¶¶ 5,
6, 24-36. Second, she pled that these private records were
“publicly disclosed” to her “employing client, potential
employers, and others.” Id. ¶ 31. Ms. Ashbourne also pled that
the defendants “intentionally and deliberately disseminated [the
records] . . . that they knew [were] inaccurate and defamatory.”
13 Id. ¶ 33. Finally, Ms. Ashbourne pled that this disclosure led
to her termination. Id. ¶¶ 5, 6. Again, at this stage of the
proceedings, it is plausible that the defendants are liable for
the misconduct alleged. See Iqbal, 556 U.S. at 678.
The Court notes that defendants’ relevant arguments rely on
factual allegations that are not contained within the four
corners of the Complaint, including that Ms. Ashbourne submitted
the allegedly falsified records herself, that any disclosure is
acceptable under the “routine use” exemption, and that Ms.
Ashbourne provided consent for any disclosure. See Defs.’ Mot.
to Dismiss, ECF No. 8 at 23-30. Because a motion to dismiss
“tests the legal sufficiency of a complaint,” Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), the Court may not
rely on facts asserted by defendants in their briefings.
The defendants also argue that the alleged Privacy Act claims
occurring before April 24, 2015 are time-barred because the
Privacy Act contains a two-year statute of limitations. Defs.’
Mot. to Dismiss, ECF No. 8 at 29-30 (citing 5 U.S.C. §
552a(g)(5)). “[B]ecause statute of limitations issues often
depend on contested questions of fact, dismissal is appropriate
only if the complaint on its face is conclusively time-barred.”
Bregman v. Perles, 747 F.3d 873, 875-76 (D.C. Cir. 2014)
(quoting de Csepel v. Republic of Hungary, 714 F.3d 591, 603
(D.C. Cir. 2013)). A Court should therefore “hesitate to dismiss
14 a complaint on statute of limitations grounds” unless the
defendant has met its “heavy burden” to show that the complaint
is time-barred and there is no dispute as to “when the
limitations period began.” Feld Ent., Inc. v. Am. Soc’y for the
Prevention of Cruelty to Animals, 873 F. Supp. 2d 288, 308
(D.D.C. 2012) (quoting DePippo v. Chertoff, 453 F.Supp.2d 30, 33
(D.D.C. 2006); Turner v. Afro–American Newspaper Co., 572 F.
Supp. 2d 71, 72 (D.D.C. 2008)).
Defendants have not met this heavy burden because they do not
point to any specific allegation in the complaint that is time-
barred. See Defs.’ Mot. to Dismiss, ECF No. 8 at 29-30. Instead,
the defendants summarily conclude that “any claim that accrued
before April 24, 2015 is time-barred.” Id. at 30. It may well be
that some or all of Ms. Ashbourne’s Privacy Act claims are
untimely, but the defendants have not met their burden to
establish that the specific allegations that are “conclusively
time-barred.” Bregman, 747 F.3d at 875-76.
IV. Ms. Ashbourne Stated a Due Process Claim Against the DHS Defendants in Their Official Capacities
Finally, the defendants move to dismiss Ms. Ashbourne’s due
process claim against the DHS defendants in their official
capacities for failure to state a claim. Defs.’ Mot. to Dismiss,
ECF No. 8 at 30-34. To determine whether a plaintiff stated a
due process claim, the Court must find that a plaintiff has been
15 “deprived of a protected interest” before determining if the
government’s procedures “comport with due process.” Gen. Elect.
Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (quoting Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)).
Ms. Ashbourne argues that she was denied a liberty and
property interest without due process. She first alleges that
the defendants deprived her of her property interest in her
company, Ashbourne & Company. Compl., ECF No. 1 at 1-2. However,
Ms. Ashbourne does not describe how the government deprived her
of that interest beyond a single, conclusory assertion in the
introduction of her complaint. See id. Because there are no
facts to support her allegation, it cannot withstand a motion to
dismiss. See Iqbal, 556 U.S. at 678 (“A pleading that offers
labels and conclusions . . . will not do. Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.”).
Ms. Ashbourne’s remaining argument is that she was deprived of
a liberty interest when she was “publicly terminated amidst
stigmatizing charges of dishonesty” without a “meaningful
opportunity to be heard.” Compl., ECF No. 1 at 1, ¶ 37. The
defendants argue that Ms. Ashbourne has not sufficiently pled
that she was deprived of a liberty interest because any injury
to her reputation was not accompanied by a state action that
altered her legal status. Defs.’ Mot. to Dismiss, ECF No. 8 at
16 30-31. Because Ms. Ashbourne was a government contractor, the
defendants argue that she “had no employment relationship with
the government necessary to find a liberty interest.” Id.
(citing Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th
Cir. 2012)).
“As a general rule, ‘persons whose future employment prospects
have been impaired by government defamation lack ... any
constitutional protection for the interest in reputation.’”
McGinnis v. District of Columbia, 65 F. Supp. 3d 203, 212
(D.D.C. 2014)(quoting Trifax Corp. v. District of Columbia, 314
F.3d 641, 643 (D.C. Cir. 2003)). There are, however, “narrow
exceptions” to this principle. Id. at 212-13 (citing Board of
Regents v. Roth, 408 U.S. 564 (1972)). “A claim for deprivation
of a liberty interest without due process based on allegedly
defamatory statements of government officials ... may proceed on
one of two theories: a ‘reputation-plus’ claim or a ‘stigma or
disability’ claim.” Fonville v. District of Columbia, No. 02–
2353, 38 F.Supp.3d 1, 11, 2014 WL 1427780, at *7 (D.D.C. Apr.
14, 2014). The “reputation-plus theory” is implicated when the
government makes a “charge against [the employee] that might
seriously damage his standing and associations in the community,
and does so in connection with a termination or other change in
employment status.” McGinnis, 65 F. Supp. 3d at 213 (citing
Roth, 408 U.S. at 573; O'Donnell v. Barry, 148 F.3d 1126, 1140
17 (D.C. Cir. 1998)). The stigma theory “provides a remedy where
the terminating employer imposes upon the discharged employee a
stigma or other disability that foreclosed [the plaintiff's]
freedom to take advantage of other employment opportunities.”
McCormick v. District of Columbia, 752 F.3d 980, 988 (D.C. Cir.
2014)(citations and quotations omitted).
Defendants’ contention that, as a government contractor, 9 Ms.
Ashbourne lacks a sufficient “employment relationship” to state
a liberty interest is unavailing. Defs.’ Mot. to Dismiss, ECF
No. 8 at 30-31(citing persuasive authority without citing or
addressing binding precedent). The Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) has consistently
recognized that a government contractor “may have a due process
liberty interest in avoiding the damage to their reputation and
business caused by the stigma of broad preclusion from
9 The April 22, 2015 letter that states that Ms. Ashbourne is unsuitable for federal employment establishes that she is a contractor. See Ex. 1, Defs.’ Mot. to Dismiss, ECF No. 8-1. While Ms. Ashbourne does not attach the letter to her complaint, the Court may take judicial notice of it because it is a document “upon which the plaintiff's complaint necessarily relies.” Ward v. District of Columbia Dep't of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (quoting Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). Because the letter is central to Ms. Ashbourne’s claims, the Court may consider it. Marshall v. Honeywell Tech. Solutions, Inc., 536 F. Supp. 2d 59, 65 (D.D.C. 2008)(“[W]here a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion [to dismiss] to one for summary judgment.”) 18 government contracting.” Phillips v. Mabus, 849 F. Supp. 2d 71,
83 (D.D.C. 2012) (citing Reeve Aleutian Airways, Inc. v. United
States, 982 F.2d 594, 598 (D.C. Cir. 1993)). Indeed, in Kartseva
v. Department of State, the D.C. Circuit found that the
plaintiff—a government contractor who was fired based on a State
Department internal memorandum regarding her suitability—stated
a due process claim because the government’s memo may have
“formally or automatically” excluded her from work “on some
category of future [government] contracts or from other
government employment opportunities.” 37 F.3d 1524, 1526 (D.C.
Cir. 1994). So here too.
Ms. Ashbourne sufficiently alleged that the defendants
characterized her as “negligent[],” “dishonest[],” and engaging
in “misconduct.” Compl., ECF No. 1 at ¶¶ 20-21. These
allegations are corroborated by the April 22, 2015 letter, in
which the Coast Guard determined that Ms. Ashbourne was
“unsuitable” for federal employment due to her “employment
misconduct or negligence” and her “dishonest conduct.” Ex. 1,
Defs.’ Mot. to Dismiss, ECF No. 8-1. Defendants allegedly
“publicly disclosed” this letter to Ms. Ashbourne’s “employing
client, potential employers, and others,” while knowing she
“would be terminated as a result.” Compl., ECF No. 1 ¶¶ 6, 31.
On these facts, the Court cannot determine that Ms. Ashbourne
lacks a liberty interest as a matter of law. See McGinnis, 65 F.
19 Supp. 3d at 222 (finding that the plaintiff stated a due process
claim “on the basis of the [allegedly defamatory] memo in her
personnel file, which is allegedly available to prospective
employers”).
It may well be that Ms. Ashbourne received an opportunity to
clear her name, but at this stage, the Court cannot evaluate the
sufficiency of any process afforded. See Ashbourne v. Hansberry,
703 Fed. Appx. 4, 4-5 (D.C. Cir. 2017)(finding that Ms.
Ashbourne was afforded adequate process because she could
challenge the Treasury defendants’ termination decision through
affidavits with the help of counsel). Moreover, the defendants
do not argue that Ms. Ashbourne received sufficient process. See
Defs.’ Mot. to Dismiss, ECF No. 8 at 30-32. The defendants’
motion to dismiss the due process claim is DENIED.
V. Further Proceedings are Stayed
Ms. Ashbourne moves to stay further proceedings pending the
U.S. Equal Employment Opportunity Commission’s (“EEOC”)
investigation of her Title VII complaint against DHS. See Pl.’s
Mot. to Stay, ECF No. 2. The defendants oppose, arguing both
claims can proceed separately. See Defs.’ Opp’n Mot. to Stay,
ECF No. 16.
“A trial court has broad discretion to stay all proceedings in
an action pending the resolution of independent proceedings
elsewhere.” Hisler v. Gallaudet Univ., 344 F. Supp. 2d 29, 35
20 (D.D.C. 2004)(citing Landis v. N. Am. Co., 299 U.S. 248, 254
(1936)). “Indeed, a trial court may, with propriety, find it is
efficient for its own docket and the fairest course for the
parties to enter a stay of an action before it, pending
resolution of independent proceedings which bear upon the case.”
Id. (quoting Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d
857, 863-64 (9th Cir. 1979)). The burden rests with the movant,
who “must make out a clear case of hardship or inequity in being
required to go forward.” Landis, 299 U.S. at 255.
According to Ms. Ashbourne, her procedural predicament is that
she is currently unable to bring a Title VII discrimination
claim because she has not exhausted her EEOC administrative
remedies. Pl.’s Mot. to Stay, ECF No. 2. However, the Privacy
Act’s statute of limitations would have prevented her from
bringing the Privacy Act claims if she waited for EEOC
adjudication. Id. The defendants argue that Ms. Ashbourne will
continue to retain the right to bring her Title VII claims after
EEOC adjudication. Defs.’ Opp’n Mot. to Stay, ECF No. 16 at 6.
However, Ms. Ashbourne was in this same procedural posture in
Ashbourne II. In that case, Judge Kollar-Kotelly found that Ms.
Ashbourne’s Title VII claims against the Treasury defendants,
brought after Ashbourne I, were barred by res judicata. The
Court found that Ms. Ashbourne “could have pursued her Title VII
claims . . . but did not seek to amend the complaint . . ., nor
21 has [she] presented any credible evidence that she sought a stay
. . . to pursue her appeal with the EEOC.” Ashbourne II, 245 F.
Supp. 3d at 105(appeal pending).
If this Court does not stay the proceedings and the D.C.
Circuit affirms Judge Kollar-Kotelly’s decision in Ashbourne II,
Ms. Ashbourne may be barred from bringing her Title VII claim(s)
in the future. See Ashbourne II, 245 F. Supp. 3d at 105. At this
point, the Court finds that Ms. Ashbourne makes out a “clear
case of hardship or inequity in being required to go forward.”
Landis, 299 U.S. at 255. Furthermore, on this record, the Court
cannot determine whether Ms. Ashbourne “has been fully able to
bring [her Title VII] claims before this Court for more than
four months,” as defendants argue. Defs.’ Opp’n Mot. to Stay 4-
5, ECF No. 16.
Ms. Ashbourne’s motion to stay is GRANTED, albeit not on Ms.
Ashbourne’s terms. Rather than stay the case pending EEOC
adjudication, the case is stayed pending the D.C. Circuit’s
decision in Ashbourne II. The parties are directed to file on
the docket their recommendations for further proceedings within
fifteen days of the D.C. Circuit’s decision in Ashbourne II,
Case No. 17-5136.
VI. Conclusion
Accordingly, for the reasons set forth in this Memorandum
Opinion it is HEREBY ORDERED that:
22 (1) the defendants’ motion to dismiss [ECF No. 8] is GRANTED
in PART and DENIED in PART;
(a) all claims against the Treasury Secretary and the
individual Treasury defendants Donna Hansberry, Donna
Prestia, and Thomas Collins are DISMISSED WITH PREJUDICE;
(b) the due process claims against James Trommatter and
Thomas Harker in their individual capacities are DISMISSED
WITHOUT PREJUDICE;
(c) the Privacy Act claims against James Trommatter and
WITH PREJUDICE;
(d) the Privacy Act claims against the DHS Secretary, James
Trommatter and Thomas Harker in their official capacities
shall go forward after the stay is lifted; and
(d) the due process claims against the DHS Secretary, James
shall go forward after the stay is lifted;
(2) Ms. Ashbourne’s service motion [ECF No. 13] is DENIED; and
(3) Ms. Ashbourne’s motion to stay [ECF No. 2] is GRANTED. The
case is hereby stayed pending the D.C. Circuit’s decision in
Ashbourne II, Case No. 17-5136.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge March 27, 2018