UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ROBERT FLECK,
Plaintiff,
v. Civil Action No. 18-1452 (RDM) DEPARTMENT OF VETERANS AFFAIRS, OFFICE OF THE INSPECTOR GENERAL,
Defendant.
MEMORANDUM OPINION AND ORDER
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 US 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
2 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).
3 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
4 “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
1 The Court presumes that Plaintiff refers to this document as a “proposal letter” because it proposed a factual finding concerning Plaintiff’s conduct as well as specific consequences for his alleged behavior. See Dkt. 12 at 12 (Am. Compl. ¶ 79).
5 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
6 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.
II. LEGAL STANDARD
“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
7 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, in such a way as to have an
adverse effect on an individual.” Id. § 552a(g)(1)(D). Plaintiffs may recover damages in such
suits if they establish that the agency “acted in a manner which was intentional or willful.” Id. §
552a(g)(4).
Section 552a(e)(6) of the Privacy Act provides that
[e]ach agency that maintains a system of records shall . . . prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes.
Subsection (b)(2), in turn, covers disclosures required under the Freedom of Information Act. 5
U.S.C. § 552a(b)(2).
In order to state a claim for damages under 5 U.S.C. §§ 552a(g)(1)(C) & (D), a plaintiff
must allege that
(1) he has been aggrieved by an adverse determination; (2) [the defendant- agency] failed to maintain his 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.
Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657 (D.C. Cir. 1996) (citations omitted); see also
Feldman v. CIA, 797 F. Supp. 2d 29, 44 (D.D.C. 2011).
8 A. Count I
In Count I, Plaintiff alleges that the VA OIG violated 5 U.S.C. § 552a(g)(1)(C) by
“fail[ing] to maintain [a] record concerning [him] with such accuracy, relevance, timeliness, and
completeness as [was] necessary to assure fairness in” a determination based on that record,
leading to an adverse determination against Plaintiff. Dkt. 12 at 17 (Am. Compl. ¶ 115).
Defendant moves to dismiss Count I on two grounds, arguing that (1) the record in question falls
under an exemption from the Privacy Act’s requirements; and (2) Plaintiff has failed to state a
claim for damages because he has not alleged: (a) an adverse determination; (b) an actionable
inaccuracy; (c) a causal connection; or (d) damages. The Court addresses each argument in turn.
1. Exemption
First, Defendant argues that Count I should be dismissed because “[t]he investigative
report at issue is part of a system of records that the VA has exempted from the requirements of
[§] 552a(e)(5) and from the civil remedy provisions of [§] 552a(g) pursuant to 5 U.S.C.
§ 552a(j)(2).” Dkt. 14 at 5. Defendant brings its motion under either Federal Rule of Civil
Procedure 12(b)(1) or 12(b)(6). Id. Plaintiff responds that the exemption is inapplicable. Dkt.
17 at 16–18.
The Court begins by rejecting Defendant’s argument that the Court is without subject-
matter jurisdiction to consider Count I. Defendant’s contention that the exemption precludes
Plaintiff’s claim goes to the merits of the claim and not to the Court’s jurisdiction to consider it.
See Mosby v. Hunt, No. 10-5296, 2011 WL 3240492 at *1 (D.C. Cir. Jul. 6, 2011) (affirming the
district court’s dismissal because the plaintiff “could not sustain a claim under the Privacy Act”
due to an exemption, not because the court lacked jurisdiction); Doe v. Naval Air Station, 768
F.2d 1229, 1230–33 (11th Cir. 1985) (per curiam) (analyzing a motion to dismiss based on the
9 applicability of certain Privacy Act exemptions based on whether the plaintiff had stated a claim,
not whether the court had jurisdiction).
Turning to the exemption itself, “[t]he head of any agency may promulgate rules . . . to
exempt any system of records within the agency” from several of the Privacy Act’s requirements
under certain circumstances. 5 U.S.C. § 552a(j)(2). One such circumstance is where the system
of records is:
maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities,
id., and
consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports or informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
Id.
The Secretary of Veterans Affairs has promulgated several exemptions pursuant to 5
U.S.C. § 552a(j)(2), including exemptions for “Investigation Reports of Persons Allegedly
Involved in Irregularities Concerning VA and Federal Laws, Regulations, Programs, etc.—VA
(11 VA51)” and for “Inspector General Complaint Center Records—VA (66VA53).” 38 C.F.R.
§ 1.582(b)(1)(i) & (ii). These exemptions, however, apply only “to the extent that information in
those systems is subject to exemptions pursuant to 5 U.S.C. [§] 552a(j)(2) and (k)(2).” Id. §
1.582(b)(2). The D.C. Circuit has construed similar language in the FBI’s exemption regulations
10 “to mean that, in order to be exempted, a particular record must fulfill the statutory criteria in
whichever subsection of the Act on which the agency relies.” Lugo v. U.S. Dep’t of Justice, 214
F. Supp. 3d 32, 38 (D.D.C. 2016) (citing Vymetalik v. FBI, 785 F.2d 1090, 1094–96 (D.C. Cir.
1986); Doe v. FBI, 936 F.2d 1346, 1353 & n.8 (D.C. Cir. 1991)).
Plaintiff is therefore correct that the existence of an exemption promulgated by the
Secretary that putatively covers the disputed records does not end this matter; in addition, the
records at issue must fall within one of the statutorily-defined categories. Thus, to evaluate the
applicability of the exemption, the Court will eventually need to determine whether the VA OIG
is an “agency or component thereof which performs as its principal function any activity
pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or
reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional,
probation, pardon, or parole authorities.” 5 U.S.C. § 552a(j)(2) (emphasis added); see also
Alexander v. IRS, No. 86-0414, 1987 WL 13958, at *4 (D.D.C. Jun. 30, 1987) (noting that “only
one of the principal functions of the [IRS] Inspection Service was the investigation of criminal
conduct and that exemption (j)(2) was therefore not applicable”); Anderson v. U.S. Dep’t of
Treasury, 648 F.2d 1, 2 & n.2 (D.C. Cir. 1979) (per curiam) (noting the district court’s rejection
of an exemption claim on these grounds).
Now, however, is not the time to do so. An “exemption claim is an affirmative defense,”
which should typically “be raised in a responsive pleading, not in a motion to dismiss.”
Bassiouni v. FBI, No. 02 C 8918, 2003 WL 22227189, at *5 (N.D. Ill. Sept. 26, 2003) (citing
Fed. R. Civ. P. 8(c) and refusing to decide the applicability of a Privacy Act exemption on a
motion to dismiss); see also 100Reporters LLC v. U.S. Dep’t of Justice, 248 F. Supp. 3d 115, 131
(D.D.C. 2017) (characterizing the assertion of the applicability of a FOIA exemption as an
11 affirmative defense). Because this is not an instance in which “all the facts necessary to rule on
[the] affirmative defense are alleged on the face of the complaint,” ruling on the defense on a
motion to dismiss would be premature. Smith v. Treasury Inspector General for Tax
Administration, No. 11-2033, 2011 WL 6026040, at *3 & n.1 (D. Md. Dec. 1, 2011); see also
Lee v. FBI, 172 F. Supp. 3d 304, 308 (D.D.C. 2016) (concluding that an exemption applied on a
motion to dismiss or, in the alternative, for summary judgment, but relying on a government
declaration in order to do so). The parties dispute the factual question whether the VA OIG
“performs as its principal function any activity pertaining to the enforcement of criminal laws,” 5
U.S.C. § 552a(j)(2), and the Court cannot resolve that dispute on a motion to dismiss.
Accordingly, the Court will deny Defendant’s motion to dismiss based on the claimed
exemption.
2. Failure to state a claim
Defendant also argues that Plaintiff has failed to state a plausible claim under the Privacy
Act for four different reasons: (a) he has failed to plead an adverse agency determination; (b) he
has not identified any actionable inaccuracy in the report; (c) he has not plausibly pleaded
causation; and (d) he has failed to plead actual damages or lacks standing to pursue his claims.
Dkt. 14 at 6–14. The Court addresses each argument in turn.
a. Adverse agency determination
First, Defendant argues that Plaintiff has failed to plead the existence of an actionable
adverse determination that resulted from the agency’s challenged actions. Dkt. 14 at 6–8.
Plaintiff asserts that he suffered an adverse determination when he received a letter of warning
and additional training and when “he was removed from consideration for another federal agency
job because of the [r]eport.” Dkt. 17 at 25, 27. An adverse determination occurs when a party is
12 denied “a right, benefit, entitlement, or employment by an agency which the individual could
reasonably have been expected to have been given if the record had not been deficient.” Lee v.
Geren, 480 F. Supp. 2d 198, 210 (D.D.C. 2007) (quoting Privacy Act Implementation:
Guidelines and Responsibilities, Office of Personnel Management, 40 Fed. Reg. 28,948, 28,969
(Jul. 9, 1975)); see also Ahuruonye v. U.S. Dep’t of Interior, 312 F. Supp. 3d 1, 15 n.7 (D.D.C.
2018). A 14-day suspension, for example, constitutes an adverse determination, but “the mere
issuance of a notice of proposed termination” that never occurs does not. Lee, 480 F. Supp. 2d at
210.
Plaintiff has not alleged facts that would support the conclusion that the issuance of the
warning letter, standing alone, or the additional training requirement amounted to the denial of “a
right, benefit, entitlement, or employment.” Id. (quoting 40 Fed. Reg. at 28,969). He also
alleges, however, that he was not hired for the position for which he applied at the other agency
because of the report and therefore lost the opportunity to earn a higher salary. Dkt. 14 at 14–15
(Am. Compl. ¶ 100). Plaintiff’s allegation that this other agency refused to hire him for the
position because of the report, if true, would constitute a “concrete, adverse determination.”
McCready v. Nicholson, 465 F.3d 1, 12 (D.C. Cir. 2006). Defendant has not argued that the
other agency’s failure to hire Plaintiff cannot serve as a qualifying adverse agency action because
it was taken by an agency distinct from Defendant, and the Court will therefore not address the
merits of that argument here. See 40 Fed. Reg. at 28,969 (“An individual may bring an action
under [5 U.S.C. § 552a(g)(1)(C)] only if it can be shown that the deficiency in the record resulted
in an adverse determination by the agency which maintained the record, on the basis of the
record.” (emphasis added)). Accordingly, at least for now, the Court must conclude that
Defendant’s first challenge to the substance of Plaintiff’s claim fails.
13 b. Inaccuracies
Second, Defendant argues that the alleged inaccuracies with which Plaintiff takes issue
are not factual statements but, rather, judgments and opinions, which are not actionable under the
Privacy Act. Dkt. 14 at 8–9. Plaintiff responds that the report is factually incorrect and notes
that he also challenges the report’s completeness. Dkt. 17 at 20–25. In evaluating this argument,
the Court considers the VA OIG’s report itself, Department of Veterans Affairs Office of
Inspector General, Administrative Investigation of Conflict of Interest, Nepotism, and False
Statements within the VA Office of General Counsel (March 29, 2018),
https://www.va.gov/oig/pubs/VAOIG-17-03324-123.pdf (last visited Jan. 3, 2020), which
Plaintiff incorporates by reference in his complaint, Dkt. 12 at 1–2 (Compl. ¶ 2), and which
Defendant discusses at length in its motion to dismiss, Dkt. 14 at 2 n.1, 10–11, 13–15. See Coon,
68 F. Supp. 3d at 82 (noting that the court may look to 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” (quoting Tellabs, 551 U.S. at 322)).
“[T]he Privacy Act ‘allows for correction of facts but not correction of opinions or
judgments.’” McCready, 465 F.3d at 19 (citation omitted). The D.C. Circuit has, on one hand,
characterized an “appraisal of [the plaintiff’s] relative [job] performance in a variety of
categories during the covered period, as well as [a] recommendation regarding promotion,” as “a
classic statement of an author’s subjective judgment,” and therefore not actionable under the
Privacy Act. Mueller v. Winter, 485 F.3d 1191, 1197 (D.C. Cir. 2007); see also White v. Office
of Pers. Mgmt., 787 F.2d 660, 663 (D.C. Cir. 1986). On the other, it has treated an agency’s
determination whether a plaintiff was present at a meeting as a question of “‘fact’ capable of
verification.” McCready, 465 F.3d at 19. Even “findings [that] require[] the weighing of
14 conflicting evidence” may still qualify as factual findings that are not shielded from Privacy Act
review as judgments or opinions. Geren, 480 F. Supp. 2d at 207–08.
At this stage of the proceeding, the Court must “draw all inferences in favor of the
[Plaintiff].” Maxwell v. Snow, 409 F.3d 354, 356 (D.C. Cir. 2005) (quoting Ctr. for Law &
Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005)). Applying that standard and
accepting Plaintiff’s allegations as true, there is ample basis to conclude that the report contained
factual inaccuracies or omitted significant information rendering it factually inaccurate or
materially incomplete. Although the report’s determinations that Plaintiff (1) advocated for his
wife’s selection, (2) shared confidential information with his wife before she was selected for the
position, and (3) lied to investigators, Department of Veterans Affairs Office of Inspector
General, Administrative Investigation of Conflict of Interest, Nepotism, and False Statements
within the VA Office of General Counsel at 13–14, are “findings [that] required the weighing of
conflicting evidence,” they are nonetheless factual in nature and do not merely represent
opinions of the investigators, see Geren, 480 F. Supp. 2d at 207–08. In those respects, the report
details the investigators’ account of what occurred; it is not subjective in the same way as is an
“appraisal of [the plaintiff’s] relative [job] performance in a variety of categories” or a
“recommendation regarding promotion.” Mueller, 485 F.3d at 1197.
Plaintiff plausibly alleges that the report’s conclusions that he advocated for Wiercinski
as a candidate and was involved in the selection process, shared confidential information with
her prior to her selection for the job, and lied when interviewed by investigators were
inaccurate.2 See Feldman, 797 F. Supp. 2d at 46 (requiring that a complaint indicate “specific
2 The Court notes that the report does acknowledge Plaintiff’s side of the story in several places and therefore does not present the same inaccuracy or incompleteness concerns as would “a
15 facts contained in the [report] that are alleged to be inaccurate or erroneous”). The Plaintiff
alleges, for example, that he recused himself from the hiring process; did not advocate for his
wife; only shared confidential information with her once she had been selected; and did not lie to
investigators. At the pleading stage, the Court “must assume the truth of all well-pleaded
allegations.” Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). He also
plausibly alleges that the VA OIG intentionally excluded a substantial body of evidence that
contradicted its factual findings; that the report’s authors cherry-picked interview content that
painted Plaintiff’s conduct in the most negative light; and that they did not interview a key player
who would have exculpated Plaintiff. These allegations are sufficient at this stage of the
proceeding.
c. Causation
Third, Defendant argues that Plaintiff has failed to plead facts that could plausibly
support the conclusion that the VA OIG’s publication of the report led to the other agency’s
failure to hire him. Dkt. 14 at 10. At this stage of the proceeding, Plaintiff must simply plead “a
‘causal connection’ between the agency violation and the adverse effect.’” Lugo, 214 F. Supp.
3d at 41 (quoting Doe v. U.S. Dep’t of Justice, 660 F. Supp. 2d 31, 49 (D.D.C. 2009)); see also
Deters, 85 F.3d at 657 (requiring that “reliance on the inaccurate records [be] the proximate
cause of the adverse determination”). He has done so. He alleges that he was not hired for the
new job because of the report’s inaccuracies or incompleteness. The timeline of the publication
record embracing only one side’s story.” Deters, 85 F.3d at 658–59 (quoting Doe, 821 F.2d at 700); see also Feldman, 797 F. Supp. 2d at 47 (noting that the report in question included both the agents’ and the plaintiff’s accounts of what had been said during an interview). But Plaintiff alleges that the report is incomplete because it often leaves his contradictory account standing alone and excludes other witnesses’ corroborating interviews.
16 of the report, Plaintiff’s job application, and his interview is not entirely clear from the face of
the amended complaint. Defendant reads Plaintiff’s complaint to allege that he had applied for
the other agency position after the publication of the report and argues that the report could not
have caused the second agency to decide not to hire him because the report was available when it
decided to interview Plaintiff. In response, Plaintiff asserts: “The fact that [he] was invited for
an interview prior to the issuance of the [r]eport confirms his qualification and suitability.” Dkt.
17 at 30 (emphasis added). Plaintiff argues that the intervening publication of the report and the
agency’s subsequent failure to hire him supports an inference of causation. Id.
Drawing all “reasonable inferences from [the amended complaint’s] allegations in the
plaintiff’s favor,” the Court concludes that Plaintiff has sufficiently alleged that the report caused
the second agency to fail to hire him. Sissel, 760 F.3d at 4. The close proximity of the
publication of the report to that agency’s failure to hire him could support an inference of
causation. See Hamilton v. Geithner, 666 F.3d 1344, 1357–58 (D.C. Cir. 2012) (stating that
close temporal proximity may support an inference of causation in the context of retaliation
claims). The Court’s conclusion, moreover, does not turn on the outcome of the parties’ timeline
dispute. Even if the report was published prior to the second agency’s invitation for an
interview, it is plausible that the second agency learned of the report only after making that
invitation but decided not to hire him after seeing the report. See Bartel, 725 F.2d at 1406
(actionable adverse determination where Plaintiff was asked to interview following the
dissemination of unfavorable reports and then informed at the interview that he would not be
hired).
17 d. Pecuniary damages
Fourth, Defendant argues that Plaintiff has failed to allege facts that would support the
conclusion that he suffered pecuniary damages as a result of the alleged inaccuracies and
omissions of the report. Dkt. 14 at 12–14. Under the Privacy Act, plaintiffs may recover
“‘actual damages sustained by the individual as a result of’ the agency’s failure to properly
maintain the record.” Skinner v. U.S. Dep’t of Justice, 584 F.3d 1093, 1097 (D.C. Cir. 2009)
(quoting 5 U.S.C. § 552a(g)(4)). In Federal Aviation Administration v. Cooper, 566 U.S. 284
(2012), the Supreme Court held that actual damages under the Privacy Act are limited to
pecuniary harms and do not extend to recoveries for “loss of reputation, shame, mortification,
injury to the feelings,” etc. Id. at 295–97 (quoting 1 D. Haggard, Cooley on Torts § 164 (4th ed.
1932)). The Court concludes that Plaintiff’s allegation that he was denied a position that would
have paid him more than his present job, although lacking in detail, suffices at the pleading
stage; he has plausibly alleged both a necessary element of his claim and that he has standing.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
B. Count II
Count II alleges that Defendant violated 5 U.S.C. § 552a(g)(1)(D) by publicly
disseminating the report after failing to “make reasonable efforts to assure that [it was] accurate,
complete, timely, and relevant for agency purposes,” as is required by 5 U.S.C. § 552a(e)(6),
thereby harming Plaintiff. Defendant challenges Count II on several grounds. First, it reasserts
its arguments, addressed above, that Plaintiff has failed to state a claim because he has not
alleged an adverse determination, an actionable inaccuracy, a causal connection, or damages.
Second, Defendant argues that, because the VA OIG must post its reports on its public website, it
is exempt from actions under 5 U.S.C. § 552a(b)(2) based on the publication of such reports.
18 Third, Defendant asserts that Plaintiff has not alleged facts that would plausibly support the
inference that the agency failed to “make reasonable efforts to assure that [the] record[] [was]
accurate.” 5 U.S.C. § 552a(e)(6). The Court is unpersuaded.
1. Failure to state a claim
The Court rejects Defendant’s challenges to Count II’s pleading of an adverse
determination, an actionable inaccuracy, a causal connection, and pecuniary damages for the
reasons explained above.
2. FOIA exception
When the material at issue is released pursuant to a FOIA request, the Privacy Act’s
normal prohibition on disseminating records without “mak[ing] reasonable efforts to assure that
[they] are accurate, complete, timely, and relevant for agency purposes” is inoperative. 5 U.S.C.
§ 552a(e)(6). That exception, however, comes with its own proviso. In Bartel v. Federal
Aviation Administration, the D.C. Circuit concluded that, “[o]nly when the agency is faced with
a FOIA request for information that is not within a FOIA exemption, and therefore has no
discretion but to disclose the information, does the FOIA exception to the Privacy Act come into
play.” 725 F.2d at 1411–12.
Defendant asserts that, under 38 U.S.C. § 312(c)(1)(C), the VA OIG is statutorily
“obligated to ‘post the work product on the Internet website of the Inspector General’ within ‘3
days after the work product is submitted in final form to the Secretary,’” Dkt. 14 at 15 (quoting
38 U.S.C. § 312(c)(1)(C)), and that, accordingly, “the record at issue here constitutes a record
that would be required to be released under FOIA,” id. But Defendant does not develop any
connection between 38 U.S.C. § 312(c)(1)(C)’s mandate and FOIA, address Bartel’s requirement
that the agency be “faced with a FOIA request for information” in order for the FOIA exception
19 to the Privacy Act to “come into play,” 725 F.2d at 1411–12, or cite any authority establishing
the relevance of 38 U.S.C. § 312(c)(1)(C) to the Privacy Act’s FOIA exception. And Defendant
does not explain what impact, if any, 38 U.S.C. § 312(c)(2)’s direction that “[n]othing in this
subsection shall be construed to authorize the public disclosure of information that is specifically
prohibited from disclosure by any other provision of law” might have on its argument. To be
sure, Bartel also mentions another “possible [Privacy Act] exception . . . for information that is
traditionally released by an agency to the public without a[] FOIA request,” but the D.C. Circuit
declined to decide “whether such an exception is proper, or if so what its exact scope may be.”
Bartel, 725 F.2d at 1413; see also Chang v. Dep’t of Navy, 314 F. Supp. 2d 35, 42–44 (D.D.C.
2004) (discussing such an exception). Because Defendant does not explain how 38 U.S.C. §
312(c)(1)(C) satisfies the FOIA exemption to the Privacy Act and does not develop the
“possible” argument left open in Bartel, the Court will not venture into that territory alone. See
Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[I]t is not the obligation of the
Court to research and construct the legal arguments available to the parties.” (citation omitted)).
The Court will therefore deny Defendant’s motion to dismiss on the ground of a FOIA exception.
3. Reasonable efforts to ensure accuracy
Finally, Defendant argues—in two sentences—that Plaintiff has not “allege[d] sufficient
facts that the agency failed to ‘make reasonable efforts to assure that [the report was] accurate’ as
required by 5 U.S.C. § 552a(e)(6). Dkt. 14 at 16. Defendant provides no legal analysis
addressing what constitutes a reasonable effort to ensure accuracy or why Plaintiff’s allegations
that the VA OIG ignored specific exculpatory evidence does not suffice to state a claim. The
Court, accordingly, will not consider this unsupported contention.
20 CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss, Dkt. 14, is hereby DENIED.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: January 3, 2020