UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KRISTINA GLINES,
Plaintiff, v. Civil Action No. 24-cv-1222
DEPARTMENT OF DEFENSE, et al.
Defendants.
MEMORANDUM OPINION
Plaintiff Kristina Glines brings claims under the Fifth Amendment’s Due Process Clause,
Title VII, the Administrative Procedure Act, the Freedom of Information Act, and the Privacy Act
over the loss of her job at the Navy. Defendants moved for partial dismissal of Counts V through
X of Plaintiff’s Complaint for failure to state a claim, improper venue, and for lack of jurisdiction. 1
Defs.’ Mot. for Partial Dismissal and Mem. in Support Thereof at 1–37, ECF No. 7 (“Defs.’ Mot.”).
Plaintiff separately moved for a preliminary injunction on Counts I through IV, her Freedom of
Information Act and Privacy Act claims, to expedite records that she believes are necessary to
litigate her other claims. Pl.’s Mot. for Emergency Prelim. Inj. and Mem. in Support Thereof at
1–21, ECF No. 9 (“Pl.’s Mot.”).
Because the court either lacks subject matter jurisdiction, is the improper venue, or Plaintiff
fails to state a claim, the court will GRANT Defendants’ Partial Motion to Dismiss Counts V
1 When referring to a component of the Department of Defense, such as the Defense Criminal Investigative Service, the Counterintelligence and Security Agency, or the Office of the Inspector General, the court will collectively refer to the “Department,” unless a specific reference is necessary.
Page 1 of 26 through X. And because no preliminary injunction factor weighs in favor of her Freedom of
Information Act and Privacy Act claims, the court will DENY Plaintiff’s Motion for a Preliminary
Injunction on Counts I through IV.
I. BACKGROUND
A. Security Clearance and Employment Termination
Beginning in 2017, Plaintiff served as the Navy’s Special Access Programs Central Office
Director of Security. Compl. ¶ 10, ECF No. 1 (“Compl.”). Her job included overseeing and
executing security functions, such as validating employee security clearances, mission needs, and
accesses. Id. In April 2022, Defendant Howes became Plaintiff’s supervisor. Id. ¶ 14.
On October 11, 2022, Howes’s Chief of Staff told Plaintiff that Howes was unlikely to rate
her a five on her upcoming progress review—a score she had received just months earlier—
regardless of her performance. Plaintiff complained to the Equal Employment Opportunity
(“EEO”) investigator, id. ¶¶ 15–16, accusing Howes of creating a hostile work environment for
the women in the office whom he supervised, especially older women. Id. ¶¶ 16–17. Plaintiff
claimed that women “mostly in their 40s or older” received worse performance ratings compared
to men and were “pressured out or removed.” Id. ¶ 17.
A day later, on October 12, Department officials contacted Plaintiff to ask her to voluntarily
participate in an interview regarding a criminal investigation of a company part-owned by
Plaintiff’s husband. Id. ¶ 18. That same day, before the interview, Howes directed that Plaintiff’s
security clearance be revoked, and recommended that she be indefinitely suspended. Id. ¶ 19.
Plaintiff’s interview did not result in criminal or other action, and the Department closed
its investigation of Plaintiff a couple weeks later, on October 26. Id. ¶ 38.
Page 2 of 26 Plaintiff’s security clearance remained revoked, however, and her employment status in
jeopardy. On November 3, she was given an opportunity to respond to the Navy’s pending
employment decision and submitted a memorandum accusing the Navy of lacking “any
comprehensive or detailed written explanation” to justify firing her. Id. ¶ 42. On November 10,
Howes responded, contending that the Department’s interview established Plaintiff’s
“culpability.” Id. ¶ 44; see also id. ¶¶ 62, 89; Compl., Ex. D at 1, ECF No. 1-10 (“Compl. Ex.
D”). The Navy fired Plaintiff on December 8, 2022, on the grounds that she used her “public
office for private gain.” Compl. ¶¶ 45, 51. It informed Plaintiff that she could appeal her firing
and security clearance revocation before the Equal Employment Opportunity Commission
(“EEOC”) or the Merit Systems Protection Board (“MSPB”). Compl., Ex. A at 000142, ECF No.
1-9 (“Compl. Ex. A”). She chose the former. Compl. ¶ 11 n.2. She then filed suit in this court,
after multiple attempts to retrieve information regarding the Department’s decisionmaking. Id.
¶¶ 96–134.
B. FOIA and Privacy Act Requests
Plaintiff submitted five Freedom of Information Act (“FOIA”) requests to three
Department agencies: the Defense Counterintelligence and Security Agency, the Office of
Inspector General, and the Navy. She sought expedited consideration of her requests to the
Inspector General and the Navy. Only the Inspector General granted that request.
i. Defense Counterintelligence and Security Agency
On November 20, 2023, Plaintiff submitted her first FOIA and Privacy Act request to the
Department’s Counterintelligence and Security Agency. Compl. Ex. I at 1–2, ECF. 1-10 (“Compl.
Ex. I”). She filed her second and third requests in March 2024. Pl.’s Ex. B at 1, ECF No. 9-3
Page 3 of 26 (Pl.’s Ex. B”). The first request sought records pertaining to Plaintiff’s security clearance
revocation and employment termination, starting in May 2021. Compl. Ex. I at 1. The second
requested the underlying records that the agency used to revoked Plaintiff’s security clearance.
Defs.’ Opp’n Mot., Ex. 1 at 1, ECF No. 13-1 (“Defs.’ Ex. 1”). And the third pertained to Plaintiff’s
background investigation. Defs.’ Opp’n Mot., Ex. 2 at 1, ECF No. 13-2 (“Defs.’ Ex. 2”).
The Department did not respond until after Plaintiff’s second FOIA request. On March 14,
2024, in response to that request, it produced some records and withheld others under certain FOIA
and Privacy Act exemptions. Id. It also stated that some records required a third-party waiver.
Id. On March 20, 2024, the Department responded to Plaintiff’s first and third FOIA requests,
agreeing to produce some records and withholding others. Defs.’ Ex. 1 at 1.
ii. Department of Defense, Office of Inspector General
Plaintiff submitted two FOIA and Privacy Act requests to the Department’s Office of
Inspector General on November 20, 2023, and March 1, 2024, respectively. Defs.’ Opp’n Mot.,
Decl. of Mark Dorgan ¶¶ 6, 12, ECF. No. 13-8 (“Dorgan Decl.”). The Department responded to
the first on November 30, 2023, withholding any responsive records under Exemption 7(A). Id.
¶ 8. Plaintiff appealed the determination, id. ¶ 9, and on March 7, 2024 the Department responded,
once again withholding all responsive records and confirming that it had received Plaintiff’s
request for an expedited appeal. Id. ¶¶ 14–15. On March 15, 2024, both appeals were granted,
and the requests were remanded to the Inspector General’s FOIA Office for further processing. Id.
¶ 17. On March 19, 2024, the Department expedited both remanded requests. Id. ¶ 18.
On remand, the Department produced two relevant documents. On March 29, 2024, it
produced a redacted, twenty-eight-page Report of Investigation of the company that was the
Page 4 of 26 subject of Plaintiff’s interview. Id. ¶ 19; Defs.’ Ex. 3 at 1, ECF No. 13-3 (“Defs.’ Ex. 3”). On
May 21, 2024, the Department also produced a redacted 114-page transcript of Plaintiff’s interview
with the Department’s Criminal Investigative Service. Dorgan Decl. ¶ 20; Defs.’ Ex. 4 at 1, ECF
No. 13-4 (“Defs.’ Ex. 4”).
The Department maintains that it continues to search for, locate, and produce documents
responsive to Plaintiff’s other record requests. Dorgan Decl. ¶ 21. It estimates there are about
3,000 pages of responsive records. Id.
iii. Department of the Navy
On November 20, 2023, Plaintiff submitted a FOIA request to the Navy. Defs.’ Opp’n
Mot., Decl. of Richard Strong ¶ 6, ECF No. 13-9 (“Strong Decl.”). After receiving no response,
she inquired about the status of that request on March 19, 2024, and asked that her request be
expedited. Id. ¶ 9. On May 2, 2024, the Navy contacted Plaintiff to narrow the scope of her
request, and Plaintiff responded that same day with a specific list of individuals who might have
responsive documents. Id. ¶ 12. The Navy responded on May 24, 2024, explaining that it was
experiencing technical issues related to transitions in information technology and that “Plaintiff
was not entitled to expedited processing.” Id. ¶ 10; see id. ¶¶ 8–10. It also explained that because
courts have found that employees “have no right to a security clearance,” Plaintiff had no due
process rights associated with a security clearance, and therefore there was “no basis to provide
and expedited response on a theory” that Plaintiff faced a “loss of due process rights.” Defs.’
Opp’n Mot., Ex. 5 at 2, ECF. No. 13-5 (“Defs.’ Ex. 5”) (citations omitted). Despite its nearly two-
month delay in responding to Plaintiff’s request to expedite, and its denial of that request, the Navy
asserts that it is attempting to expeditiously locate and process all responsive records, estimated
Page 5 of 26 currently to be 1,600 or more pages, cautioning that there still may be some additional delay in
further production. Strong Decl. ¶¶ 13–14.
II. LEGAL STANDARDS
A. Motion to Dismiss
Plaintiff bears the burden of demonstrating that the court has subject matter jurisdiction,
given that “[t]here is a presumption against federal court jurisdiction.” Logan v. Dep’t of Veterans
Affs., 357 F. Supp. 2d 149, 153 (D.D.C. 2004) (citing McNutt v. Gen. Motors Acceptance Corp. of
Ind., 298 U.S. 178, 182–83 (1936)). The court must assume the truth of all factual allegations and
must review “the complaint liberally, granting plaintiff the benefit of all inferences that can be
derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)
(quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). “[A] court may consider such
materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has
jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
(D.D.C. 2000). Yet, “the court need not accept factual inferences drawn by plaintiffs if those
inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff’s
legal conclusions.” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting
Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)).
Dismissal is warranted if venue is improper or inconvenient under Federal Rule of Civil
Procedure 12(b)(3). Venue is proper: (1) in a district where “any defendant resides, if all
defendants are residents of the state in which the district is located”; (2) in a district in which “a
substantial part” of the events giving rise to the suit occurred; or (3) if venue would not be proper
in any district for either of those reasons, wherever the defendants are subject to personal
Page 6 of 26 jurisdiction. 28 U.S.C. § 1391(b)(1)–(3). In ruling on a motion to dismiss for improper venue,
“the court must determine whether the case falls within one of the three categories set out in
§ 1391(b). If it does, venue is proper, but, if it does not, venue is improper, and the case must be
dismissed or transferred under § 1406(a).” King v. Caliber Home Loans, Inc., 210 F. Supp. 3d
130, 133–34 (D.D.C. 2016) (alteration removed) (internal quotations and citation omitted).
Whether to transfer or dismiss a case is solely within the “sound discretion of the district court.”
Hamilton v. JP Morgan Chase Bank, 118 F. Supp. 3d 328, 333 (D.D.C. 2015).
Finally, a motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive a Rule 12(b)(6)
motion, the complaint must contain enough facts to state a claim that is plausible on its face by
alleging facts that, if assumed to be true, would allow the court to draw a “reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78
(2009); Bell Atl. Co. v. Twombly, 550 U.S. 544, 555–56 (2007).
B. Motion for Preliminary Injunction
“A preliminary injunction is an extraordinary remedy that “should be granted only when
the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v.
Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail, a plaintiff bears the burden of showing
that: (1) “he is likely to succeed on the merits”; (2) “he is likely to suffer irreparable harm in the
absence of preliminary relief”; (3) “the balance of equities tips in his favor”; and (4) “an injunction
is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). When the
federal government is the opposing party, the balance of equities and public interest factors merge.
See Nken v. Holder, 556 U.S. 418, 435 (2009). Courts in this jurisdiction evaluate the four
Page 7 of 26 preliminary injunction factors on a “sliding scale”—if a “movant makes an unusually strong
showing on one of the factors, then it does not necessarily have to make as strong a showing on
another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009).
III. ANALYSIS
As it must in every case, the court must assure itself of jurisdiction. Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 101–02 (1998); Moms Against Mercury v. FDA, 483 F.3d 824,
826 (D.C. Cir. 2007) (“In every case, the jurisdictional requirements of Article III must be present
before a court may proceed to the merits.”). Accordingly, the court will consider Defendants’
jurisdictional challenges first. Defs.’ Mot. at 21–26.
i. Procedural Due Process Claims
Plaintiff brings three claims under the Fifth Amendment’s Due Process Clause. In Count
V she alleges that she was removed from duty and pay without substantive notice, save for a
memorandum stating that the Navy’s decision was based on “improper usage of public office for
private gain”; accordingly, she “had no meaningful opportunity to be heard”; Compl. ¶ 171. In
Count VI, Plaintiff alleges that she suffered more than reputational injury when she was
“effectively barred from government work due to charges calling into question [her] integrity and
honesty”; Id. ¶ 178. In Count VIII, she claims that Defendants violated her due process rights by
failing to conduct a search, timely respond, or produce responsive documents to her FOIA requests,
and that FOIA was used “as a shield to prevent the release of documents.” Id. ¶ 197.
Defendants contend that these counts must be dismissed because Plaintiff failed to exhaust
her administrative remedies under the Civil Service Reform Act (“CSRA”). Defs.’ Mot. at 21–24.
Page 8 of 26 Alternatively, they argue that Count VI should be dismissed insofar as it brings a claim under the
Federal Torts Claims Act for reputational harm because Plaintiff did not name the United States
as a defendant; and that even if she had, sovereign immunity is not waived for defamation or
misrepresentation. Id. at 24–25. Finally, they contend that Count VIII should be dismissed
because it relates only to FOIA, not constitutional due process. Id. at 23. Because Defendants’
arguments principally turn on whether the CSRA deprives this court of subject matter jurisdiction,
the court will address that issue first.
Enacted by Congress in 1978, the CSRA provides a “comprehensive system for reviewing
personnel action taken against federal employees.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 5
(2012) (quoting United States v. Fausto, 484 U.S. 439, 455 (1988)). Under the CSRA’s
“comprehensive and exclusive” remedial scheme, Grosdidier v. Chairman, Broad. Bd. of
Governors, 560 F.3d 495, 497 (D.C. Cir. 2009), cert. denied, 558 U.S. 989 (2009), an employee
may appeal a major adverse employment action—for example, termination or demotion, see 5
U.S.C. § 7512—to the MSPB, id. § 7513(d). If they do not prevail before the MSPB, the employee
may pursue judicial review in the Federal Circuit. Id. § 7703. As the Supreme Court has
explained, the CSRA “sets out the method for covered employees to obtain review of adverse
employment actions” in such “painstaking detail” that “it is fairly discernible that Congress
intended to deny [certain] employees an additional avenue of review in district court.” Elgin, 567
U.S. at 11–12.
The D.C. Circuit has likewise concluded, even before Elgin, that the CSRA’s remedial
scheme is “exclusive” and “constitutes the remedial regime for federal employment and personnel
complaints.” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009)
Page 9 of 26 (collecting cases); see also Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005). Consequently,
“covered employees appealing covered agency actions” must “proceed exclusively through the
statutory review scheme, even in cases in which the employees raise constitutional challenges to
federal statutes.” Elgin, 567 U.S. at 10; see also Steadman v. Gov., U.S. Soldiers’ Airmen’s Home,
918 F.2d 963, 967 (D.C. Cir. 1990) (“[F]ederal employees may not circumvent [the CSRA’s]
structure even if their claim is based as well on the Constitution.”).
Accordingly, the CSRA “generally deprives district courts of subject-matter jurisdiction
over claims within its ambit, that is, claims brought by covered employees challenging covered
employment actions.” Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 364 (D.D.C.
2020). There are, however, some exceptions. As relevant here, aggrieved employees may bring
their constitutional claims for equitable relief in district court if, for example, they would otherwise
be denied “any [] forum” to adjudicate their claim. Elgin, 567 U.S. at 9 (quoting Webster v. Doe,
486 U.S. 592, 603 (1988)).
Nonetheless, even for “claims arising directly under the Constitution,” the CSRA’s
exhaustion requirement is a “jurisdictional prerequisite.” Weaver v. U.S. Info Agency, 87 F.3d
1429, 1433 (D.C. Cir. 1996); see also Steadman, 918 F.2d at 967 (“When [] statutory and
constitutional claims are ‘premised on the same facts’ and the CSRA remedy ‘would have been
fully effective in remedying the constitutional violation,’ exhaustion [of CSRA remedies] is
mandated.” (quoting Andrade v. Lauer, 729 F.2d 1475, 1493 (D.C. Cir. 1984))). A claim may
escape the CSRA’s exhaustion requirement if it is a constitutional challenge that “raises issues
totally unrelated to the CSRA procedures.” Steadman, 918 F.2d at 967; see also Weaver, 87 F.3d
at 1433–34.
Page 10 of 26 Plaintiff’s argument that her security clearance revocation and indefinite suspension is not
subject to the CSRA is unavailing. Pl.’s Mem. of Points and Aut. in Opp’n to Defs. Mot. for Partial
Dismissal at 11–l2, ECF No. 8 (“Pl.’s Opp’n”). The MSPB has jurisdiction over major “adverse
actions” by federal agencies—including termination—as set forth in chapter 75 of the CSRA. 5
C.F.R. § 1201.3(a)(1); accord 5 U.S.C. § 7513(d). Plaintiff was a Navy employee who could have
challenged her indefinite suspension at the MSPB. See, e.g., 5 U.S.C. § 7512 (a suspension
exceeding 14 days is appealable to MSPB); id. § 7702. Appellate review of MSPB decision lies
with the Court of Appeals for the Federal Circuit. Fausto, 484 U.S. at 446–47.
Yet Plaintiff asserts—with no rebuttal by Defendants—that even if the CSRA covers her
indefinite suspension, she satisfied its exhaustion requirement because she filed a claim with the
EEOC, not the MSPB. Pl.’s Opp’n at 29–30; see Defs.’ Mot. at 7–28. Plaintiff is at least correct
that the EEOC is an alternative venue. Plaintiff has a “mixed case—an adverse personnel action
subject to appeal to the MSPB coupled with a claim that the action was motivated by
discrimination.” Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999). She therefore can choose
between filing a “mixed case complaint” with the Navy’s EEO office, and then with the EEOC, or
filing a “mixed case appeal” directly with the MSPB. See 29 C.F.R. § 1614.302(b). By statute,
the relevant agency EEO office and the MSPB can and must address both the discrimination claim
and the appealable personnel action. See 5 U.S.C. § 7702(a). Within thirty days of a final decision,
Plaintiff can file an appeal with the MSPB or a civil discrimination action in federal district court.
See 29 C.F.R. §§ 1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a). If 120 days pass without a final
decision from the agency’s EEO office, the same avenues of appeal again become available:
Plaintiff can file either a mixed case appeal with the MSPB or a civil action in district court. See
Page 11 of 26 5 U.S.C. §§ 7702(e)(1)(A), 7702(e)(2); 29 C.F.R. §§ 1614.302(d)(1)(i), 1614.310(g); 5 C.F.R.
§ 1201.154(b)(2).
Although Plaintiff could have exhausted her administrative remedies at the EEOC, she
does not allege that she, in fact, did so. See Compl. ¶¶ 1–134. Indeed, it is unclear whether, despite
participating in a “listening session” with the Navy’s EEO, id. ¶ 11, she actually filed a complaint
with the EEO Office. Even if the court could infer as much, Plaintiff has not alleged that she
received a final order from the EEOC, or that she filed this action within 30 days of any EEOC
decision. See 29 C.F.R. §§ 1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a). Plaintiff only alleges
that she filed a claim before the EEOC on November 2, 2023, that the matter is ongoing, and that
this case is “not meant to be a substitute for the current EEO Proceedings.” Compl. ¶ 11 n.2; Pl.’s
Opp’n at 30. But an ongoing matter is not a concluded or final one. “None of the few pieces of
correspondence attached to the Complaint demonstrates that” Plaintiff has properly exhausted her
administrative remedies. Waller v. United States, No. 06-cv-1112, 2006 WL 2472781, at *2
(D.D.C. July 7, 2006). And Plaintiff has provided no information regarding the status of her EEOC
proceedings in subsequent briefing. See Pl.’s Opp’n Mot. at 21 n.15; Pls.’ Supp. to Mot. and
Request for Decision on Mot. for Emergency Prelim. Injunc. at 1–19, ECF No. 16 (“Pl.’s Supp.
Mot.”). Consequently, the court will grant Defendants’ motion to dismiss Counts V, VI, and VIII
because Plaintiff has not alleged that she has exhausted her claims before the EEOC, and thus the
court lacks subject matter jurisdiction.
ii. APA Claim
Count IX claims the Department and the Navy arbitrarily asserted that the basis for
Plaintiff’s termination was “culpability,” even though no criminal charges were filed. Compl.
Page 12 of 26 ¶¶ 202–06; Compl. Ex. D. at 1. Defendants argue that this count must be dismissed because D.C.
Circuit precedent forecloses Administrative Procedure Act (“APA”) challenges to federal
employment disputes. Defs.’ Mot. at 18–21. The court agrees.
The CSRA’s exclusive scheme for federal employment disputes similarly blocks Plaintiff’s
use of the APA to challenge her adverse employment decision—and it would do so even if the
CSRA did not provide an avenue for judicial relief. Under binding D.C. Circuit precedent, “federal
employees may not use the Administrative Procedure Act to challenge agency employment
actions.” Filebark v. U.S. Dep’t of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009); see also
Fornaro, 416 F.3d at 66–67; Graham v. Ashcroft, 358 F.3d 931, 933–35 (D.C. Cir. 2004);
Carducci v. Regan, 714 F.2d 171, 172 (D.C. Cir. 1983). Seeking to create a system for handling
federal employment disputes, Congress established the CSRA as an “integrated scheme of
administrative and judicial review, designed to balance the legitimate interests of the various
categories of federal employees with the needs of sound and efficient administration.” Fausto,
484 U.S. at 445. Federal employees therefore cannot use the APA to do an end-run around the
CSRA’s enforcement scheme because “the CSRA would be impermissibly frustrated by
permitting, for lesser personnel actions not involving constitutional claims, an access to the courts
more immediate and direct than the statute provides with regard to major adverse actions.”
Filebark, 555 F.3d at 1013 (quoting Carducci, 714 F.2d at 174). That is true regardless of whether
the CSRA “provide[s] [] employees with no judicial review.” Id. at 1014. Simply put, “what you
get under the CSRA is what you get.” Fornaro, 416 F.3d at 67.
Plaintiff argues that her APA claim is not about “actions taken,” but about “actions the
Government failed to take when such actions are required.” Pl.’s Opp’n at 20 (emphasis in
Page 13 of 26 original). This is a difference without a distinction, because “the law is clear that the relief (or lack
thereof) provided in the CSRA precludes review under” the APA. Lamb v. Holder, 82 F. Supp.
3d 416, 422 (D.D.C. 2015); Fornaro, 416 F.3d at 67 (noting that D.C. Circuit “cases have . . .
recognized” “that no remedy was available under the APA for an employment claim as to which
the CSRA provided no relief”).
The court therefore lacks subject matter jurisdiction for Count IX, and Defendants’ motion
to dismiss it will also be granted.
iii. Substantive Due Process Claim
In Count VII, Plaintiff alleges that Defendants violated the Fifth Amendment’s Equal
Protection Clause “because she received differential treatment by the government due to
membership in a protected class”—her sex and age. Compl. ¶ 182. Defendants are correct that
this claim should be dismissed because claims for discrimination in federal employment must be
brought under Title VII, if based on sex, and the Age Discrimination in Employment Act, if based
on age. Defs.’ Mot. at 27–28.
Plaintiff “cannot recast” her Title VII discrimination claim as a constitutional claim.
Rogler v. Biglow, 610 F. Supp. 2d 103, 105 (D.D.C. 2009), aff’d sub nom. Rogler v. Gallin, 402
F. App’x 530 (D.C. Cir. 2010); Ethnic Employees of the Library of Cong. v. Boorstin, 751 F.2d
1405, 1414–15, n. 12 & 13 (D.C. Cir. 1985). The Supreme Court has made clear that Title VII is
the “exclusive judicial remedy for claims of discrimination in federal employment.” Brown v.
Gen. Services. Admin., 425 U.S. 820, 835 (1976). And Title VII clearly applies to Plaintiff’s equal
protection claim because it prohibits employers from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
Page 14 of 26 individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). That is
Plaintiff’s “same basic injury.” Boorstin, 751 F.2d at 1415. District courts have routinely rejected
plaintiffs’ attempts to shoehorn a Title VII injury into another cause of action. Mitskog v. Garland,
No. 20-cv-1154, 2024 WL 1328436, at *6 (D.D.C. Mar. 28, 2024) (rejecting Bivens claim); Brown
v. Regan, 2022 WL 17735636, No. 21-cv-2565 at *3 (D.D.C. Dec. 16, 2022), aff’d, No. 22-5345,
2024 WL 1002569 (D.C. Cir. Mar. 1, 2024) (rejecting personal injury and a discrimination claim
against the EPA).
Nor can Plaintiff reframe Count VII as a Fifth Amendment Due Process claim based on
age discrimination. “It is undisputed that the ADEA provides the exclusive remedy for a federal
employee who claims age discrimination.” Chennareddy v. Bowsher, 935 F.2d 315, 318 (D.C.
Cir. 1991); Chennareddy v. Dodaro, 698 F. Supp. 2d 1, 21 n.26 (D.D.C. 2009). Moreover, even
if Plaintiff had stated a claim regarding Count VII, she did not name the proper defendants. Compl.
at 1 (naming only the Departments of Defense and Navy without specifically listing their
Secretaries in the caption of the Complaint). “The only proper defendant in a civil action under
Title VII is ‘the head of the department, agency, or unit[.]’” Nurriddin v. Bolden, 674 F. Supp. 2d
64, 81–82 (D.D.C. 2009) (quoting 42 U.S.C. § 2000e–16(c) (other citations omitted)).
Accordingly, Count VII will be dismissed for failure to state a claim.
Page 15 of 26 iv. Title VII Claim
In Count X, however, Plaintiff does make an actual Title VII claim, which Defendants
argue should be dismissed for improper venue because the allegedly unlawful employment
practice occurred in Arlington, Virginia, not the District of Columbia. 2 Defs.’ Mot. at 7–13.
Under Title VII, venue is appropriate (1) where the “employment practice is alleged to
have been committed,” (2) in “the judicial district in which the employment records relevant to
such practices are maintained and administered,” or (3) in “the judicial district in which the
aggrieved person would have worked but for the alleged unlawful employment practice.” 42
U.S.C. § 2000e-5(f)(3); see also 29 U.S.C. § 794(a)(1). “If the respondent is not found within any
such district, such an action may be brought within the judicial district in which the respondent
has his principal office.” 42 U.S.C. § 2000e-5(f)(3). A plaintiff’s failure to satisfy any of the
venue requirements means “venue is improper.” James v. Verizon Servs. Corp., 639 F. Supp. 2d
9, 12 (D.D.C. 2009) (citing 42 U.S.C. § 2000e–5(f)(3); Washington v. Gen. Elec. Corp., 686 F.
Supp. 361, 363 (D.D.C. 1988)).
Plaintiff’s Title VII claim does not appear to fall within any of the Title VII venue
provisions such that this court would be the proper venue. Regarding the first venue requirement,
Plaintiff’s Navy job and the alleged harm were at the Pentagon in Arlington, Virginia, not
Washington, D.C. See e.g., Compl. ¶¶ 9–11, 207–13. Arlington was where the Navy’s decision
to suspend Plaintiff’s security clearance, to propose her indefinite suspension without pay, and to
implement the same, took place. Id. The only connection to this district is that the Pentagon also
2 Because the court resolves Count X on venue grounds, it need not address Defendants’ argument regarding whether Plaintiff’s claims are time barred. Defs.’ Mot at 16–18. Page 16 of 26 has a Washington, D.C. mailing address—but that does not change “where” Plaintiff’s harm was
“committed.” 42 U.S.C. § 2000e-5(f)(3). Nor does the last venue provision change the analysis.
Plaintiff does not allege or otherwise indicate that she planned to move to or work in Washington,
D.C. to avoid, escape, or remedy her alleged harm. See Hamilton v. Transp. Sec. Admin., 263 F.
Supp. 3d 317, 320 (D.D.C. 2016); Ellis v. Gruenberg, No. 15-cv-0025, 2015 WL 9272835, at *2
(D.D.C. Dec. 18, 2015). In fact, Defendants provided declarations indicating that Plaintiff “would
still be working at the Pentagon” had the Navy not suspended her. Def.’s Mot., Decl. of Kristen
Goodby ¶ 10, ECF No. 7-14 (“Goodby Decl.”); see also Def.’s Mot., Decl. of Kimberly Sweeney
¶ 7, ECF No. 7-16, (“Sweeney Decl.”).
Regarding Title VII’s second venue provision, the location of relevant records, the parties
dispute whether the “complete master set” of Plaintiff’s employment records, are in Arlington, or
only some of them. Defs.’ Mot. at 11; Pl.’s Opp’n at 27–28. But according to Defendants’
declaration, the employment records relevant here, involving Plaintiff’s security clearance
revocation and indefinite suspension, are all located at the Pentagon in Arlington, Virginia.
Sweeney Decl. ¶¶ 2–3, 5. To the extent that Plaintiff contends that the location of the Pentagon’s
server is consequential, the location of the actual records relevant to the claims at issue here is far
more compelling. See Hakeem v. Mayorkas, No. 22-cv-2674, 2024 WL 2383068, at *4 (D.D.C.
May 23, 2024) (finding improper venue where “plaintiff ha[d] not alleged that his employment
records are maintained in the District of Columbia”). The court is satisfied that those relevant
records are located in Virginia.
In conclusion, because Plaintiff fails to meet the relevant criteria for venue in this district,
and because Plaintiff requests transfer to the Eastern District of Virginia if venue is proper there,
Page 17 of 26 the court will order the case transferred. Hamilton v. Paulson, No. 07-cv-1365, 2008 WL 4531781,
at *3 (D.D.C. Oct. 10, 2008); Pl.’s Opp’n at 29 n.23.
Plaintiff seeks a preliminary injunction on her first four claims under FOIA and
the Privacy Act. 3 Pl.’s Mot. at 5. For Count I, she argues that the Navy “failed to answer”
her March 19, 2024, request to expedite within the 10-day statutory deadline. Pl.’s Mot. at 16.
For Count II, she contends that the Department’s Criminal Investigative Service’s denial of her
request for expedited treatment was untimely. Id. For Count III, she argues that the Department
did not move fast enough in producing its expedited investigation report, and that its production
was insufficient. Id. Finally, for Count IV, Plaintiff attempts to make a Privacy Act argument.
Id. at 15, 18–19 (using the name of the statute three times in the brief’s argument section without
making a separate argument as to what relief, distinct from FOIA, it provides). Accordingly,
Plaintiff asks the court to compel Defendants to answer the first four counts of the Complaint
within seven days and to produce the requested documents within twenty days of the court’s
judgment. Id. at 22.
As noted earlier, a preliminary injunction is an “extraordinary and drastic remedy”
that is “never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008)
(internal quotation marks and citations omitted). It “should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,
3 Plaintiff separately asks the court to find that her first four counts are conceded because Defendants failed to respond to them in its initial Partial Motion to Dismiss. Pl.’s Mot. at 5. The court declines to do so because Defendants are not required to challenge all of Plaintiff’s claims in its first responsive motion. See Fed. R. Civ. Pro. 12 (a)(4). Page 18 of 26 520 U.S. 968, 972 (1997) (internal citations and quotation marks omitted) (emphasis in
original). In order to carry her burden of persuasion, Plaintiff would have to show that
she satisfies the four Winter factors, that: (1) “[s]he is likely to succeed on the merits”; (2)
“[s]he is likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of
equities tips in [her] favor”; and (4) “an injunction is in the public interest.” 555 U.S. at 20. She
has not made such a showing.
Before analyzing each Winter factor, the court will first address the FOIA legal framework
as applied to Plaintiff’s claims.
A plaintiff who requests an expedited FOIA response must “demonstrate[] a compelling
need,” 5 U.S.C. § 552(a)(6)(E)(i)(I), unless the request falls within the “other cases” that the
agency determines also warrant expedition. Id. § 552(a)(6)(E)(i)(II). In the context of Plaintiff’s
request, a compelling need means “that a failure to obtain requested records on an expedited
basis . . . could reasonably be expected to pose an imminent threat to the life or physical safety of
an individual.” Id. § 552(a)(6)(E)(v)(I). An agency may also grant an expedited request if the
requester’s “loss of substantial due process rights is imminent.” 32 C.F.R. § 286.8(e)(1)(ii)(A).
Whether to expedite record production is within the agency’s discretion, but its decision “shall be
provided” “within 10 days after the . . . request[.]” Id. § 552(A)(6)(E)(ii)(I). Even if it denies
expedited treatment, the agency still “shall process as soon as practicable any request for records.”
Id. § 552(a)(6)(E)(iii).”
Page 19 of 26 ii. Likelihood of Success on Freedom of Information Act and Privacy Act Claims
a. The Navy FOIA Request
Plaintiff argues that the Navy “failed to answer” her March 19, 2024, request to expedite
within the 10-day deadline. Pl.’s Mot. at 16. The Navy responded on May 28, 2024—months
later. Id. In its response, it claimed that the delay was caused by “administrative errors from the
transition in [FOIA technology platforms].” Defs.’ Ex. 5 at 1. It also argued that Plaintiff did not
demonstrate that she was entitled to expedited processing because: (i) she needed the requested
information to prepare for a civil proceeding before Defense Criminal Investigative Service, which
has concluded; (ii) the need for the information for use in civil proceedings is generally insufficient
for expedition; and (iii) the request did not provide details regarding why the records were needed
and warranted expedited processing pursuant to regulation. Id. at 2.
“The presumption of agency delay raised by failing to respond to an expedited request . . .
is certainly rebuttable if the agency presents credible evidence that disclosure within such time
period is truly not practicable.” Elec. Priv. Info. Ctr. v. Dep’t of Just., 416 F. Supp. 2d 30, 39
(D.D.C. 2006). According to the Navy’s declarant, its delay was due to a technology transfer.
Strong Decl. ¶ 8. That suffices to rebut the presumption here.
To the extent that Plaintiff also challenges whether the Navy improperly denied her request
for expedited treatment, the court finds that she is also unlikely to succeed on the merits of that
claim as well. The Navy explained in its denial that Plaintiff “did not [] articulate how, specifically,
a lack of expedited processing would result in a loss of her due process rights.” Defs.’ Ex. 5 at 2.
It went on to note that “[c]ourts have determined that employees have no right to a security
clearance.” Id. Therefore, it found “no basis to provide an expedited response on a theory that
Page 20 of 26 [Plaintiff] faces an imminent loss of due process rights.” Id. The court finds that the Navy’s
explanation was “reasoned.” Judulang v. Holder, 565 U.S. 42, 53 (2011) (noting that agencies
have a duty to engage in “reasoned decisionmaking,” which may be found if “the decision was
based on a consideration of the relevant factors” and was not otherwise a “clear error of judgment”
(internal quotations and citations omitted)).
b. The Department’s FOIA Request
Plaintiff argues that she is likely to succeed on the merits of her expedited FOIA claim
because the Department: (i) failed to produce the report within the 20-business day deadline for
expedited requests and did not provide a date by which it would comply pursuant to 5 U.S.C.
§ 552(a)(6)(B)(i); and (ii) never provided the attachments to the report nor the video of Plaintiff’s
interview. Pl.’s Mot. at 16. She therefore seeks production of the report within 20 calendar days.
Id. at 22. Defendants argue that FOIA does not “dictate a specific, compressed scheduled for
processing a request, even when those requests are expedited.” Defs.’ Opp’n at 9. Further, they
argue that despite Plaintiff’s complaints about the records she received, she “has not demonstrated
that the relevant agencies failed to conduct a reasonable search within the meaning of FOIA or that
any redactions were improperly applied.” Id. at 11. The court agrees with Defendants on both
fronts.
To start, Plaintiff’s first argument rests on a misunderstanding of FOIA, which requires
agencies to respond to expedited requests “10 days after the date of the request,” 5 U.S.C.
§ 552(a)(6)(E)(ii)(I), not 20 days, and engage in “expeditious consideration of administrative
appeals,” without a prescribed timeline. Id. § 552(a)(6)(E)(ii)(II). FOIA does not require the
agency to provide a date to respond to Plaintiff’s expedited request if it needs an extension, only
Page 21 of 26 that the agency “may” extend a written notice of no more than “ten working days” “setting forth
the unusual circumstances for such extension and the date on which a determination is expected to
be dispatched.” Id. § 552(a)(6)(B)(i). Here, while it is unclear when Plaintiff requested an
expedited appeal of her second FOIA appeal, the Department at least “received” it on March 7,
2024. Dorgan Decl. ¶ 15. Assuming that Plaintiff filed her expedited request the same day that
the Department received it, the Department notified Plaintiff that her expedited request had been
granted on March 19, 2024—8 business days later, well within the 10-day timeframe. Id. ¶ 18.
More importantly, even if the Department had been tardy in responding to the request for
expedited treatment, that still would not weigh in Plaintiff’s favor. The “penalty” for failing to
meet FOIA’s 10-business day timeline is not the imposition of another explicit timeline, but rather
“that the agency cannot rely on the administrative exhaustion requirement to keep cases from
getting into court.” Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,
711 F.3d 180, 189 (D.C. Cir. 2013). Once FOIA’s deadlines have passed, “the agency may
continue to process the request, and the court (if suit has been filed) will supervise the agency’s
ongoing progress, ensuring that the agency continues to exercise due diligence in processing the
request.” Id; see also Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 10 (D.D.C. 2015)
(FOIA deadlines “serve[] primarily as a means to obtain immediate judicial supervision over an
agency’s response to an outstanding FOIA request.”). Given the Department’s unrebutted
representations that they continue to actively process Plaintiff’s other requests, reviewing
potentially responsive records of 3,000 or more pages, Dorgan Decl. ¶¶ 18–20, the court finds that
Plaintiff has not established a likelihood of success on this claim.
Page 22 of 26 Plaintiff’s challenge to the redacted Report of Investigation that the Department produced
to her is also unlikely to succeed on the merits. Plaintiff cannot bypass the “oft-protracted” FOIA
process, in which the Department must justify its redactions in the normal course. Elec. Priv. Info.
Ctr. v. Dep’t of Just., 15 F. Supp. 3d 32, 39 n.9 (D.D.C. 2014) (noting that the plaintiff “cite[d] no
authority requiring this Court to order submission of the index on such an abbreviated timetable”).
To the extent Plaintiff seeks to know why certain portions were redacted, that explanation is
typically provided in a Vaughn index filed in conjunction with a summary judgment motion.
Schwarz v. Dep’t of Treasury, 131 F.Supp.2d 142, 147 (D.D.C. 2000). That is the context in which
the court ordinarily considers the adequacy of a search. See Cheeseman v. U.S. Dep’t of Def., 2023
WL 4350031, at *2 (D.D.C. May 9, 2023); Aguiar v. DEA, 865 F.3d 730, 738 (D.C. Cir. 2017).
No reason exists here, and the Plaintiff articulates none, to avert the normal FOIA process, and
“require [the Department] to create an index and declaration justifying its decision to withhold
certain documents until the agency has completed processing [Plaintiff’s] FOIA request and the
parties have had an opportunity to negotiate regarding any documents that are withheld.” Elec.
Priv. Info. Ctr., 15 F. Supp. at 46 n.9.
c. Privacy Act Claim
Finally, although Plaintiff’s Motion mentions the “Privacy Act” eight times, it contains no
legal arguments as to why Plaintiff is entitled to relief on that claim. Pl.’s Mot. at 5, 10, 15, 18–
19. Similarly, Plaintiff’s argument about the Department’s Criminal Investigative Service’s
alleged delay in denying her FOIA request is essentially one sentence. Id. at 16 (“The only
document that DCIS provided after Ms. Glines filed suit was a heavily redacted transcript of Ms.
Glines’ interview which both includes and redacts other exculpatory and mitigating information,
Page 23 of 26 such that the exculpatory information is not fully available to Ms. Glines.”). “A party forfeits an
argument by failing to raise it in his opening brief.” Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C.
Cir. 2019); Walker v. District of Columbia, 2024 WL 4133622, at *3 (D.D.C. Sept. 10, 2024).
Consequently, the court will consider Plaintiff’s likelihood of success arguments with respect to
those two claims as forfeited.
iii. Irreparable Harm
Plaintiff claims that she will suffer loss of income, reputation, friends, and accrued legal
fees if she is denied relief. Pl.’s Mot. at 17–18. But none of these factors rise to the level of
irreparable harm, and Plaintiff has not demonstrated how the delay in producing responsive
documents would cause the harms she alleges. To be sure, courts have found that “the mere fact
that economic losses may be unrecoverable does not, in and of itself, compel a finding of
irreparable harm.” Nat’l Min. Ass’n v. Jackson, 768 F. Supp. 2d 34, 52–53 (D.D.C. 2011). The
harms Plaintiff complains of are neither “certain” nor “great.” Wis. Gas Co. v. FERC, 758 F.2d
669, 674 (D.C. Cir. 1985) (per curiam).
iv. Remaining Factors Governing Preliminary Relief
Finally, “the balance of equities” and “the public interest,” Aamer v. Obama, 742 F.3d
1023, 1044 (D.C. Cir. 2014), here favor Defendants. Imposing a compressed deadline on
Defendants for processing would run the risk of overburdening them and could even lead to the
mistaken release of protected information. See Daily Caller, 152 F. Supp. 3d at 14 (“Requiring
the agency to process and produce [requested] materials under an abbreviated deadline raises a
significant risk of inadvertent disclosure of records properly subject to exemption under FOIA.”).
And requiring production by a date certain, without any legitimate basis for doing so, might
Page 24 of 26 actually disrupt FOIA’s expedited processing regime rather than implement it. See Elec. Privacy
Info. Ctr., 15 F. Supp. at 47 (“[A]llowing [a plaintiff] to jump to the head of the line would upset
the agency’s processes and be detrimental to the other expedited requesters, some of whom may
have even more pressing needs.”).
Courts in this district routinely deny requests for preliminary injunctions in FOIA cases.
See, e.g., Long v. Dep’t of Homeland Sec., 436 F. Supp. 2d 38, 44 (D.D.C. 2006) (denying motion
for preliminary injunction to compel processing within twenty days given the “broad scope of
plaintiff’s requests,” explaining that “[t]he government has not yet had a chance to review its files,
prepare and file a dispositive motion, and provide the Court the information necessary to make a
decision on any material that might be subject to an exemption”); Progress v. Consumer Fin. Prot.
Bureau, No. 17-cv-686, 2017 WL 1750263, at *1 (D.D.C. May 4, 2017) (denying request for a
preliminary injunction mandating expedited processing and production where requester failed to
show a likelihood of success on the merits and irreparable harm). This court sees no basis for
departing from that course here, and Plaintiff has provided none.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT Defendants’ Partial Motion to Dismiss.
Counts V–X of Plaintiff’s Complaint will be DISMISSED WITHOUT PREJUDICE. Count X
will be TRANSFERRED to the United States District Court for the Eastern District of Virginia.
Plaintiff’s Motion for a Preliminary Injunction on Counts I–IV will be DENIED. Accordingly,
Plaintiff’s Supplemental Motion for a Preliminary Injunction will be DENIED AS MOOT. A
separate order shall follow.
Date: April 25, 2025
Page 25 of 26 Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 26 of 26