Kursar v. Transportation Security Administration

• Court: District Court, District of Columbia
• Decided: November 22, 2010
• Docket: Civil Action No. 2007-2001
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ROBERT KURSAR, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-2001 (RBW) ) TRANSPORTATION SECURITY ) ADMINISTRATION, et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

Robert Kursar, the plaintiff in this civil case, seeks declaratory and injunctive relief,

monetary damages, and the referral of certain individuals for criminal prosecution for various

alleged violations of the Federal Privacy Act, 5 U.S.C. § 552a(g)(1) (2006), and the Fifth

Amendment of the United States Constitution, that he contends were committed by the

Transportation Security Administration (“TSA”), TSA Special Agent in Charge William Blake,

Jr., and other unknown TSA officials, First Amended Complaint (“Am. Compl.”) ¶¶ 1-6.

Currently before the Court is the defendants’ motion to dismiss pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6), for judgment on the pleadings pursuant to Federal Rule of

Civil Procedure 12(c), and for summary judgment pursuant to Federal Rule of Civil Procedure

56, as well as Kursar’s cross-motion for summary judgment. Upon consideration of Kursar’s

amended complaint, the defendants’ motion to dismiss or for judgment, Kursar’s cross-motion

for summary judgment, and all relevant documents and exhibits attached to those submissions,1

1 In addition to Kursar’s First Amended Complaint (“Am. Compl.”), the defendants’ motion to dismiss, for judgment on the pleadings, or for summary judgment, and Kursar’s cross-motion for summary judgment, the Court (continued . . .)

1 the Court concludes for the reasons below that it must grant the TSA’s motion to dismiss Count

Two of the amended complaint, deny the TSA’s motion to dismiss the remaining counts of the

amended complaint but grant the TSA’s motion for summary judgment as to these counts, and

deny Kursar’s cross-motion for summary judgment.

I. Background2

Kursar “is a dual [United States] and Canadian citizen,” Am. Compl. ¶ 3, who, in 1994,

was enlisted in the Washington State Army National Guard (“Washington National Guard”) as a

warrant officer while also employed at the Whatcom County Sheriff’s Office in the state of

Washington, Plaintiff’s Statement of Material Facts As to Which There is No Genuine Issue

(“Pl.’s Stmt. of Facts”) ¶ 1. “In or about October 1995,” the Whatcom County Sheriff’s Office

conducted “an internal investigation into [his] use of military leave and [his] admittedly ill-

advised decision to use [his] law enforcement credentials in order to gain access to a scuba-

diving course.” Pl.’s Opp’n, Ex. 4 (Declaration of Robert Kursar (“Kursar Decl.”)) ¶ 5. As a

result of the investigation, the Whatcom County Sheriff’s Office terminated Kursar’s

employment in January 1996. Id. ¶ 6. At the time of the investigation, Kursar “voluntarily”

submitted his resignation to the Washington National Guard at the request of his supervisor. Id.

(. . . continued) considered the following documents in reaching its decision: (1) the plaintiff’s initial Complaint (“Compl.”); (2) the Defendants’ Memorandum in Support of TSA’s Motion to Dismiss, for Judgment on the Pleadings or, in the Alternative, for Summary Judgment (“Defs.’ Mem.”); (3) the Plaintiff’s Opposition to Defendants’ Motion to Dismiss, for Judgment on the Pleadings, or, in the Alternative, for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s Opp’n”); (4) Defendant Transportation Security Administration’s Reply in Further Support of its Motion to Dismiss and/or for Summary Judgment and Opposition to Plaintiff’s Cross-Motion for Summary Judgment (“Defs.’ Reply”); and (5) the Reply in Support of Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s Reply”). 2 In setting forth the factual background, the Court relies on both facts contained in the amended complaint, as well as facts derived from sources outside of the complaint. Consistent with the standards of review for the various motions that are now before the Court, see infra pp. 10-12, the Court, in deciding whether to grant the defendants’ motions under Rules 12(b)(6) and 12(c), will not consider any facts that are asserted outside of the complaint, unless those facts are of the kind that the Court may take judicial notice.

2 ¶ 7. Kursar’s supervisor informed him that the Washington National Guard was considering

whether to also conduct an internal investigation into his “fraudulent” use of his “law

enforcement credentials,” and whether such behavior warranted an adverse discharge. Pl’s Stmt.

of Facts ¶ 2; Pl.’s Opp’n, Ex. 4 (Kursar Decl.) ¶ 7. In July 1996, the Washington National Guard

completed its investigation, which led to Kursar being offered the option of proceeding with his

resignation and receiving a general discharge under honorable conditions, or appearing before “a

Board of Inquiry” for “an elimination proceeding.” Pl.’s Opp’n, Ex. 4 (Kursar Decl.) ¶ 7; Pl.’s

Stmt. of Facts ¶ 3. Kursar “decided to accept the offer” of proceeding with his resignation. Pl.’s

Opp’n, Ex. 4 (Kursar Decl.) ¶ 7.

On January 23, 1997, Kursar enlisted in the United States Army Reserve. Id. ¶ 9.

Several months later, the Army Central Clearance Facility “temporarily suspended” Kursar’s

security clearance when it discovered that he had been terminated from his earlier position with

the Whatcom County Sheriff’s Office.3 Pl.’s Stmt. of Facts ¶ 8. Kursar alleges that the Army

ultimately discontinued its investigation of the incident. Id. ¶ 9.

In April 2002, Kursar was “selected for an excepted service position” with the TSA as a

federal air marshal, subject to a one-year probation period. Am. Compl. ¶ 7. Shortly after he

began working at the TSA, his supervisor, former Special Agent in Charge William Blake, Jr.,

spoke with Major Wellington Hom, who had served with Kursar in the Army. Id. ¶ 8. The day

after this conversation occurred, Blake provided Kursar with notice of his termination “for

submitting false or incorrect information on his employment application and Standard Form 86

3 The defendant disputes that the suspension was temporary. Defs.’ Reply to Pl.’s Stmt. of Facts ¶ 8.

3 (‘SF[-]86’).”4 Id. ¶ 10. Specifically, the notice explained that “in response to question 22” on

his SF-86, Kursar “failed to state that [he was] terminated from the Washington State Army/Air

National Guard in June 1996,” and that “in response to question 26, [he] falsely stated that [he]

did not have a security clearance revoked or suspended.” Def.’s Mem., Ex. D (April 25, 2002

Letter from William Blake to Robert Kursar) at 1. Although Kursar submitted a written denial to

the claims and objected to the amount of time given to appeal the decision, the TSA terminated

his employment by letter on May 3, 2002 and denied his request for an oral hearing. Am.

Compl. ¶ 11-12. In the termination letter, Blake represented that while he “carefully considered

[Kursar’s] written response to the charges,” he concluded that “the facts support the proposed

action,” and that “it will promote the efficiency of the service to terminate [him] from

government employment.” Def.’s Mem., Ex. G (May 3, 2002 Letter from William Blake to

Robert Kursar) at 1. Kursar contends that he subsequently lost job opportunities with private

employers due to the circulation of information regarding his termination from the TSA. Am.

Compl. ¶¶ 15-16.

Seeking redress, Kursar challenged his termination with the Merit Systems Protection

Board (“MSPB”) in March of 2003, alleging that the TSA violated the Uniformed Services

Employment and Reemployment Rights Act of 1994 (“Employment Rights Act”). Id. ¶ 13.

However, an administrative law judge concluded that he was not entitled to relief, and the MSPB

and Federal Circuit ultimately affirmed. See Kursar v. Dep’t of Homeland Sec., 301 Fed. App’x

992, 992 (Fed. Cir. 2008).

4 Standard Form 86 is the United States Government’s Questionnaire for National Security Positions. United States Office of Personnel Management Questionnaire for National Security Positions (2008), http://www.opm.gov/forms/pdf_fill/sf86.pdf.

4 Kursar then filed his initial complaint in this matter on November 6, 2007. Proceeding

pro se, Kursar alleged in Counts One and Two of his complaint that the TSA violated his rights

under the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act

(“APA”), 5 U.S.C. § 552 (2006), when it terminated his employment, Compl. ¶¶ 20-26, ¶ 31. In

Count Three of the complaint, Kursar requested a “[n]ame-[c]learing [h]earing” to vindicate the

TSA’s alleged violation of his due process rights. Id. ¶¶ 34-45. Kursar further alleged in Counts

Four through Six that the TSA violated the Privacy Act by failing to collect information directly

from him and maintain accurate and complete records before terminating his employment, id. ¶¶

46-58, by failing to maintain accurate and complete records following his termination, id. ¶¶ 59-

70; and by disseminating inaccurate information regarding his termination, id. ¶¶ 71-82.

Unbeknownst to the undersigned member of the Court, Kursar filed a second complaint

in this Court on the same date as his initial complaint in this matter. That matter was assigned to

Judge Emmet G. Sullivan of this Court, but unlike the complaint filed in this case, Kursar’s

second complaint was filed by counsel, and he proceeded in that action under the name

“Alexander Kursar” rather than “Robert Kursar.” Complaint, Kursar v. Dep’t of the Army, No.

07-2005 (EGS) at 1 (D.D.C. filed Nov. 6, 2007) (“Kursar I”). In his second complaint, Kursar

alleged various Privacy Act violations against the Department of the Army, including the

intentional disclosure and release of confidential records without making reasonable efforts to

assure accuracy, failure to establish and implement rules of conduct for persons involved in the

records system, and failure to establish appropriate safeguards to ensure the confidentiality of

records pertaining to him. Id. ¶¶ 34-36. Specifically, he alleged that the Army, without

authorization, disseminated his records to a party whom he was testifying against in a bankruptcy

proceeding, as well as to his former insurance company, and to a private civilian employer who

5 was conducting a background investigation in the course of considering him for employment. Id.

¶¶ 20, 22, 23, 24, 27. Among the numerous documents at issue was information related to “his

resignation from the [Washington National Guard] and reports of unfavorable information

regarding his security clearance.” Id. ¶ 20.

In November 2008, Kursar reached a settlement agreement with the Army in the second

matter and received $90,000 in exchange for “full settlement and satisfaction of any and all

claims” that he “may have or hereafter acquire against the United States, its agents, servants, and

employees on account of the same subject matter that gave rise to the above-captioned action.”

Stipulation for Compromise Settlement and Release of Privacy Act Claim, Kursar v. Dep’t of the

Army, No. 07-2005 (EGS), ¶ 4 (D.D.C. filed Nov. 6, 2007). Through this settlement agreement,

all claims, “whether known or unknown, arising directly or indirectly from the acts or omissions

that gave rise” to the initial suit were settled. Id. ¶ 1. The settlement agreement was approved by

Judge Sullivan on November 19, 2008. Id. at 5.

Subsequently, the undersigned member of the Court issued a memorandum opinion and

order in the present case, in which Kursar’s claims under the APA were dismissed for lack of

subject-matter jurisdiction and his termination-related due process claim was dismissed based on

res judicata. Kursar v. Transp. Sec. Admin., 581 F. Supp. 2d 7, 16, 20-21 (D.D.C. 2008)

(“Kursar II”). Specifically, the Court concluded that judicial remedies under the APA are not

available where “Congress has provided [a] plaintiff with statutory schemes and remedies

through which [the plaintiff] may seek relief,” id. at 15 (quoting Mittleman v. U.S. Treasury, 773

F. Supp. 442, 449 (D.D.C. 1991) (Harris, J.)), and because Kursar had available to him relief

under the Civil Service Reform Act of 1978, 5 U.S.C. §§ 1201-1206 (2000) (the “CSRA”), to

redress his claim that he suffered an adverse personnel action, the Court dismissed his APA

6 claims, id. at 16. The Court further held that Kursar’s due process claim was precluded on res

judicata grounds because “[i]n its decision resolving [his] appeal from the Board’s rejection of

his termination appeal, the Federal Circuit explicitly held that ‘[a]s a probationary employee,

[Kursar] lacked a property interest in his position that entitled him to procedural protections

under the Fifth Amendment’s Due Process Clause.’” Id. at 20. And, in rejecting Kursar’s

Privacy Act claims, the Court first explained that his allegations regarding the TSA’s “fail[ure]

to maintain [his] records in an accurate and complete manner in violation of [Section]

552a(e)(5),” as well as his claim that the “defendants violated [Section] 552a(e)(6) by

disseminating inaccurate information from his Privacy Act System of Records to at least one

private civilian employer,” id. at 17 n.4 (internal quotation marks and brackets omitted), could

only be brought under Section 552a(g)(1)(A), id. The Court went on to conclude that Kursar was

required to exhaust all administrative remedies for any claims under Section 552a(g)(1)(A), and

for that reason the Court was compelled to dismiss these two claims for lack of subject-matter

jurisdiction. Id. at 18. As for Kursar’s third Privacy Act claim under Section 552a(g)(1)(C), the

Court dismissed that claim for lack of subject-matter jurisdiction because he did “not request

damages in his complaint,” and because the Court lacked authorization to grant equitable relief

under that section, Kursar lacked standing to bring that claim.5 Id. at 19. Finally, the Court

5 Upon further reflection, the Court’s dismissal for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) was in error. Dismissal for want of subject-matter jurisdiction is appropriate only where the Court lacks the “statutory or constitutional power to adjudicate [a] case,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998), which is distinguishable from a dismissal for failure to state a claim upon which relief can be granted, which constitutes “a ruling on the merits with res judicata effect,” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). Indeed, the Court has jurisdiction where “the right of the [plaintiff] to recover under [his] complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another.” Steel Co., 523 U.S. at 89 (quoting Bell v. Hood, 327 U.S. 678, 685 (1946)). And here, Kursar’s inability to obtain injunctive relief under the Privacy Act is a result of the District of Columbia Circuit’s construction of the Privacy Act. See Hastings v. Judicial Conference, 770 F.2d 1093, 1104 (D.C. Cir. 1985) (concluding that equitable relief is not available under the Privacy Act because “such relief [is] not . . . among those expressly made available to remedy past disclosures”); Parks v. Internal Revenue Serv., 618 F.2d 677, 684 (10th Cir. 1980) (observing that because the Privacy Act expressly authorizes injunctive relief “in only two (continued . . .)

7 declined to dismiss the plaintiff’s name-clearing hearing and Fifth Amendment claims,

concluding that because a name-clearing hearing was a remedy request and not a cause of action,

it remained a possible remedy available to the plaintiff so long as his Fifth Amendment liberty

interest claim remained a “viable cause of action.” Id. at 21.

After exhausting his administrative remedies concerning the TSA’s alleged Privacy Act

violations,6 Kursar, now represented by counsel, filed an amended complaint in the present case

on March 16, 2009. Specifically, he alleges in Count One that he “has a legal right under the

Privacy Act to have his records amended as detailed in his request and appeal, and that the TSA

violated [Section] 552a(g)(1)(A) by failing to comply with that request.” Am. Compl. ¶ 32. He

further alleges in Count Two that the TSA, Blake, and other unknown TSA officials “failed to

(. . . continued) instances,” then such relief is unavailable under the “relevant principle of construction . . . that where . . . the statute provides for certain special types of equitable relief but not others, it is not proper to imply a broad right of injunctive relief” (emphasis added)). Thus, the real issue before the Court in Kursar II was not whether the Court had jurisdiction to entertain Kursar’s Privacy Act claim, but rather whether the Court should dismiss this request for relief because it could not grant such relief. The proper rule for seeking such a dismissal is, of course, under Federal Rule of Civil Procedure 12(b)(6), and not Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(6) (authorizing federal district courts to dismiss a complaint for the “failure to state a claim upon which relief can be granted”).

Nonetheless, dismissal under the circumstances presented in Kursar II was unwarranted even under Rule 12(b)(6). Although it is true that Kursar did not plead a specific request for damages, he did request that the Court “[g]rant such other relief as [it] may deem just and proper,” Compl. at 14. In such circumstances, the Court should not have dismissed the complaint “for failure to seek the technically appropriate remedy when the availability of some relief is readily apparent on the face of the complaint.” Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985). Rather, “[t]he proper course of action at that point was to grant the plaintiff leave to amend [his] complaint . . . or to read such a . . . request into the prayer for ‘other . . . relief.’” Id. While the Court did invite Kursar to seek leave to amend his complaint, Kursar II, 581 F. Supp. 2d at 20 n.5, dismissal of the plaintiff’s claims at that time was inappropriate nonetheless.

To be sure, the Court’s errors in this regard have no practical effect on this litigation, as Kursar amended his complaint to include an express prayer for damages in regards to his claim under Section 552a(g)(1)(C). In the interest of reaching correct decisions in accordance with the law of this Circuit, however, the Court would be remiss if it did not clarify and amend its prior reasoning. 6 Kursar submitted a Privacy Act amendment request on October 13, 2008 to “amend all records maintained by the TSA that pertain to his employment and termination as a Federal Air Marshal in April 2002.” Am. Compl. ¶ 28. After the TSA denied Kursar’s request by letter on January 5, 2009, he appealed the decision two days later. Id. ¶¶ 29-30. Kursar then filed his amended complaint after thirty working days had elapsed without receipt of the TSA’s decision. Id. ¶ 31.

8 maintain Kursar’s records with such accuracy, relevance, timeliness[,] and completeness as is

reasonably necessary to denote the basis for [his] termination,” id. ¶ 41, and that they failed to

“collect information” underlying his termination “directly from Kursar,” which “resulted in

adverse determinations . . . in violation of [Sections] 552a(e)(2), (g)(1)(C), and (g)(4)(A),” id. ¶

42. In Count Three, Kursar alleges that the defendants failed to accurately maintain his records

pursuant to Sections 552a(e)(5) and (g)(1)(A). Id. ¶ 53-54. Moreover, Kursar alleges in Count

Four that the defendants “failed to make reasonable efforts to assure that [his] records [were]

accurate, complete, timely, and relevant for agency purposes” before “disseminating [his]

records . . . to persons other than an agency,” id. ¶ 65, in violation of sections 552a(e)(6) and

(g)(1)(A), id. ¶ 66. Finally, Kursar asserts in Count Five that the defendants “failed to accord

Kursar any due process and denied him the full administrative rights that probationary federal

employees in the employ of the TSA must be provided before their employment is terminated.”

Id. ¶ 73.

In response, the defendants request that the amended complaint be dismissed, that they be

awarded judgment on the pleadings, or that they be awarded summary judgment. In support of

its motion, they contend that Kursar’s claims are barred by the doctrine of res judicata because

he “already released these claims against the entire federal government” as a result of the

settlement agreement reached in Kursar I. Def.’s Mem. at 11. In the alternative, the defendants

argue that Kursar’s Privacy Act claims are barred by the applicable two-year statute of

limitations because he “was aware of his Privacy Act claim[s] in 2002, but waited more than five

years to bring his claim.” Id. at 15. Lastly, the defendants argue that they are entitled to

summary judgment because Kursar “cannot show that [it] inaccurately maintained his records.”

Id. at 17.

9 In his opposition memorandum and cross-motion for summary judgment, Kursar asserts

that he is not barred from raising his claims because (1) the claims in the present action do not

arise from a “common nucleus of shared facts,” Pl.’s Opp’n. at 18; (2) these claims were not

resolved in Kursar I, id.; and (3) the settlement agreement in Kursar I did not encompass these

claims, id. at 20. Kursar also disputes the defendants’ assertion that his claims are barred by the

two-year statute of limitations applicable to Privacy Act claims on the grounds that the

limitations period was tolled due to the litigation before the MSPB, id. at 22, and that as to Count

Four, he “did not know or have reason to know of the [TSA’s alleged] unlawful dissemination

of” his records, id. at 28. Finally, Kursar asserts that he is entitled to summary judgment

because, inter alia, there is no material dispute of fact that Blake’s findings regarding Kursar’s

responses on the SF-86 are inaccurate. Id. at 32.

II. Standards of Review

As previously observed, the defendants seeks dismissal of all claims against them under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c), or, in the alternative, for summary judgment under

Federal Rule of Civil Procedure 56. With regards to the defendants’ motion to dismiss under

Rule 12(b)(1), they fail to explicitly specify their basis for being entitled to dismissal of the

claims on jurisdictional grounds. The only basis the Court can extrapolate from the defendants’

submissions as to why this case should be dismissed for want of jurisdiction is their assertion that

the claims are barred by res judicata. But, reliance on this legal doctrine is an affirmative

defense that, “while having a somewhat jurisdictional character, does not affect the subject

10 matter jurisdiction of [a] district court.”7 Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir.

2006) (internal quotation marks omitted). Without any other colorable basis for concluding that

the Court lacks jurisdiction to adjudicate the claims presented before it, the defendants’ motion

to dismiss under Rule 12(b)(1) must be denied. As for defendants’ motion to dismiss Rule

(12)(b)(6), or for judgment under Rules 12(c) or Rule 56, the Court sets forth the proper

standards of review below.

I. Federal Rules of Civil Procedure 12(b)(6) and 12(c)8

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a

complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario,

197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, Federal

Rule of Civil Procedure 8(a) requires that it contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does

not require “detailed factual allegations,” a plaintiff is required to provide “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, ___ U.S. ___,

___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57

(2007)), in order to “give the defendant fair notice of what the claim is and the grounds upon

which it rests,” Twombly, 550 U.S. at 555 (citation omitted). In other words, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

7 This member of the Court recently observed that “a motion for dismissal based on res judicata properly falls under Federal Rule of Civil Procedure 12(b)(1).” Youngin’s Auto Body v. District of Columbia, ___ F. Supp. 2d ___, ___, 2010 WL 1916108, at *3 (D.D.C. 2010) (quoting Rizvi v. McClure, 597 F. Supp. 2d 63, 66 (D.D.C. 2009)). Given the Circuit’s unambiguous holding in Smalls, however, the Court erred in Youngin’s Auto Body by concluding that the doctrine of res judicata affects the Court’s subject-matter jurisdiction. 8 Because “[t]he standard of review for a motion to dismiss under [Rule] 12(c) is substantially the same as under [Rule] 12(b)(6),” Plain v. AT&T Corp., 424 F. Supp. 2d 11, 20 n.11 (D.D.C. 2006) (Kennedy, J.), the Court will simply apply the ubiquitous standards for resolving Rule 12(b)(6) motions in addressing the defendants’ Rule 12(c) motion.

11 face.’” Iqbal, ___ U.S. at ___, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim

is facially plausible “when the plaintiff pleads factual content that allows the court to draw [a]

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). A complaint alleging facts that are “‘merely consistent with a

defendant’s liability . . . stops short of the line between possibility and plausibility of ‘entitlement

to relief.’” Id. (quoting Twombly 550 U.S. at 557).

In evaluating a Rule 12(b)(6) motion under this framework, “[t]he complaint must be

liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that

can be derived from the facts alleged,” Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.

1979) (internal quotation marks and citations omitted), and the Court “may consider only the

facts alleged in the complaint, any documents either attached to or incorporated in the

complaint[,] and matters of which [the Court] may take judicial notice,” Equal Emp’t

Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)

(footnote omitted). Although the Court must accept the plaintiffs’ factual allegations as true, any

conclusory allegations are not entitled to an assumption of truth, and even those allegations pled

with factual support need only be accepted to the extent that “they plausibly give rise to an

entitlement to relief.” Iqbal, ___ U.S. at ___, 129 S. Ct. at 1950. If “the [C]ourt finds that [a]

plaintiff[] [has] failed to allege all the material elements of [his] cause of action,” then the Court

may dismiss the complaint without prejudice, Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753,

761 (D.C. Cir. 1997), or with prejudice, provided that the Court “determines that the allegation

of other facts consistent with the challenged pleading could not possibly cure the deficiency,”

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (internal quotation marks and

citations omitted).

12 II. Federal Rule of Civil Procedure 56

Under Federal Rule of Civil Procedure 56, a court will grant summary judgment when

“there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment

as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining which

facts are material, “[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). While the court must draw “all justifiable inferences” in the

non-moving party’s favor, id. at 255, the non-moving party cannot rely on the “mere allegations

or denials of his pleading” but “must set forth specific facts showing that there is a genuine issue

for trial,” id. at 248. “The moving party is ‘entitled to a judgment as a matter of law’ [when] the

nonmoving party has failed to make a sufficient showing on an essential element of [the] case

with respect to which [the non-moving party] has the burden of proof.” Celotex Corp., 477 U.S.

at 323.

III. Legal Analysis

I. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) and Motion for Judgment Under Federal Rule of Civil Procedure 12(c)

As an initial matter, the Court is compelled to dismiss all of the Privacy Act claims

against Blake and all unknown TSA agents, as the Act does not provide for civil remedies

against individuals. See 5 U.S.C. § 552a(g)(1) (stating only that an individual may bring a civil

action against the agency); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006)

(citations omitted) (finding the “district court properly dismissed the named individual

defendants” because the Privacy Act concerns “the obligations of agencies as distinct from

individual employees in those agencies”); Armstrong v. U.S. Bureau of Prisons, 976 F. Supp. 17,

13 23 (D.D.C. 1997) (Urbina, J.) (noting that the Privacy Act does not allow a person to seek civil

remedies against individuals, including individual officers or employees of an agency). As to the

remaining counts in the amended complaint—the Privacy Act claims against the TSA, as well as

the Fifth Amendment claim against the TSA, Blake, and the unknown TSA officials—the issues

confronting the Court are several: (1) whether the plaintiff has timely raised his Privacy Act

claims within the applicable statute of limitations; (2) whether the plaintiff’s Privacy Act and

constitutional claims are barred by the doctrine of res judicata based on Kursar’s settlement

agreement with the Army in Kursar I; and (3) whether either party is entitled to summary

judgment based on the undisputed facts in the record. For the reasons discussed below, the Court

finds that only Count Two is barred by the statute of limitations, and that the Court need not

consider whether the doctrine of res judicata bars Counts One, Three, Four, and Five because it

finds that these claims are without merit.9

A. The Statute of Limitations

The defendants allege that the plaintiff’s Privacy Act claims are barred by the Act’s

statute of limitations. For claims arising under the Privacy Act, “[a]n action to enforce any

liability . . . may be brought . . . within two years from the date on which the cause of action

arises.” 5 U.S.C. § 552a(g)(5). A cause of action arises under the Privacy Act when “(1) an

error was made in maintaining the plaintiff’s records; (2) the plaintiff was harmed by the error;

and (3) the plaintiff either knew or had reason to know of the error.” Conklin v. U.S. Bureau of

Prisons, 514 F. Supp. 2d 1, 4 (D.D.C. 2007) (Walton, J.) (citations omitted); see also Tijerina v.

9 As the Court clarified above, res judicata is an affirmative, rather than jurisdictional, defense, see supra p. 8, and thus the Court “may properly choose to bypass a . . . res judicata question in favor of deciding the merits.” 18 Fed. Prac. Proc. Juris. § 4403 (2d ed. 2002); see also Berwind Corp. v. Comm’r of Soc. Sec., 307 F.3d 222, 233 n.14 (3d Cir. 2002) (declining to address a res judicata issue and proceeding to address the merits of the case “without violating the … prohibition against assuming hypothetical jurisdiction to reach the merits of a claim” (internal quotation marks omitted)).

14 Walters, 821 F.2d 789, 798 (D.C. Cir. 1987) (“[I]n a normal Privacy Act claim, the cause of

action does not arise and the statute of limitation does not begin to run until the plaintiff knows

or should know of the alleged violation.”). Additionally, a “new cause of action does not arise

each time an adverse determination is made based on the allegedly erroneous records.” Conklin,

514 F. Supp. 2d at 4; see also Doe v. Thompson, 332 F. Supp. 2d 124, 133 (D.D.C. 2004)

(Walton, J.). In the complaint here, Kursar alleges various violations of the Privacy Act in

Counts One through Four, see Am. Compl. ¶¶ 32, 42, 54, 66, and thus, the time limitation

imposed by Section 552a(g)(5) applies to these Counts.

To be sure, the statute of limitations period set forth in 5 U.S.C. § 552a(g)(5) is not a

jurisdictional bar, Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 278 n.* (D.C. Cir. 2003), and

thus the appropriate “procedural mechanism for considering [the defendant’s] statute of

limitations argument at this stage of the proceedings is Rule 12(b)(6),” Williams v. Chu, 641 F.

Supp. 2d 31, 34 (D.D.C. 2009) (Walton, J.). And, in accordance with the standard of review

applicable to Rule 12(b)(6) motions, a court should assess when a plaintiff knew or should have

known of an alleged error from the facts pled, and only grant a motion to dismiss “if the

complaint on its face is conclusively time-barred.” Firestone, 76 F.3d at 1209; see also Ramirez

v. Dep’t of Justice, 594 F. Supp. 2d 58, 63 (D.D.C. 2009) (Roberts, J.) (finding a prisoner’s

Privacy Act suit in 2007 untimely after noting that the plaintiff’s “own complaint establishes that

he knew of inaccuracies . . . on July 22, 2004, if not earlier”); Bernard v. U.S. Dep’t of Defense,

362 F. Supp. 2d 272, 279 (D.D.C. 2005) (Lamberth, J.) (finding the plaintiff’s Privacy Act

claims untimely where it was “clear from the administrative record that the plaintiff knew or

should have known about his ability to request his medical records”); cf. Conklin, 514 F. Supp.

2d at 5 (denying the defendant’s motion to dismiss as untimely because the “date on which

15 plaintiff knew or had reason to know of the alleged Privacy Act violations [was] unclear”).

Applying these standards here, the Court concludes that only Count Two is barred by the Privacy

Act’s statute of limitations.

1. Counts One, Three, and Four: Failure to Amend Kursar’s Records

In Count One, Kursar challenges the TSA’s denial of his request to amend his employee

records because he “has a legal right under the Privacy Act to have his records amended as

detailed in his request and appeal.” Am. Compl. ¶ 32. More specifically, he alleges in Counts

Three and Four that he is entitled to relief under Section 552a(g)(1)(A) because the TSA failed to

accurately maintain his records in violation of Section 552a(e)(5), id. ¶ 54, and that the agency

disseminated inaccurate records without his authorization in violation of Section 552a(e)(6),10 id.

¶ 66. For those civil claims brought against agencies for “mak[ing] a determination . . . not to

amend an individual’s record in accordance with his request [under section 552a(d)(3)], or

fail[ure] to make such review in conformity with that subsection,” § 552a(g)(1)(A), “the two[-

10 The Court previously observed that Section 552a(g)(1)(A) is the “only basis under which” Kursar could bring suit for violations of Sections 552a(e)(5) and 552a(e)(6). Kursar II, 581 F. Supp. 2d at 17 n.4. It is evident from the plain language of the Privacy Act, however, that the Court erred in reaching this conclusion, as this provision of the Act allows a plaintiff to bring a civil action for violations of Sections 552a(e)(5) and 552a(e)(6) under either Section 552a(g)(1)(C) or Section 552a(g)(1)(A). Specifically, an agency is required under Sections 552a(e)(5) and 552a(e)(6) to maintain accurate, relevant, timely, and complete records. See 5 U.S.C. § 552a(e)(5) (obligating an agency to “maintain all records which are used by the agency in making any determination of an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination”); 5 U.S.C. § 552a(e)(6) (requiring the agency to “make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes” before disseminating the record outside of the government). And, where an individual has suffered an adverse determination as a result of the agency’s failure to maintain accurate, timely, complete, and relevant records, then that individual can bring suit under Section 552a(g)(1)(C). See, e.g., Doe v. Fed. Bureau of Invest., 936 F.2d 1346, 1360 (D.C. Cir. 1991) (“The [Privacy] Act provides two avenues of redress for violations of subsection (e)(5). . . . [T]he individual normally may bring suit under subsection (g)(1)(A)[, and t]he other means . . . is provided by subsection (g)(1)(C).”).

In the amended complaint, Kursar relies only on Section 552a(g)(1)(A) as the basis for obtaining relief from the TSA for its alleged violations of Sections 552a(e)(5) and 552a(e)(6). The Court acknowledges that Kursar may have relied on Kursar II in pleading his claims, and while it appears at first blush that the interests of justice would require the Court to grant him leave to further amend his complaint to assert relief under Section 552a(g)(1)(C), the Court is convinced that any claim that he could make under that section for purported violations of Sections 552a(e)(5) and 552a(e)(6) are time-barred for the identical reasons that his Section 552a(g)(1)(C) claim under Count Two is also barred. See infra p. 16-19.

16 ]year [statute of limitations] period is measured from the denial of a request to amend.” Blazy v.

Tenet, 979 F. Supp. 10, 18 (D.D.C. 1997) (Friedman, J.), aff’d, 1998 WL 315583 (D.C. Cir.

1998); see also Oppenheim v. Campbell, 571 F.2d 660, 662 (D.C. Cir. 1978) (citing Crown Coat

Front Co., Inc. v. United States, 386 U.S. 503, 510-11 (1967)) (“Appellee’s action accrued when

his right to resort to federal court was perfected.”); Doe v. U.S. Dep’t of Labor, 451 F. Supp. 2d

156, 168 n.12 (D.D.C. 2006) (Walton, J.) (vacated as a result to settlement agreement, 2007 WL

1321116 (D.D.C. 2007)) (stating that the statute of limitations for an action seeking damages

under the Privacy Act begins to run when the plaintiff knows or should have known of the

alleged violation, whereas the statute of limitations when seeking amendment of records begins

from the denial of a request to amend). Here, Kursar submitted a Privacy Act amendment

request to the TSA by email on October 13, 2008, Am. Compl. ¶ 20, and the TSA denied

Kursar’s amendment request by letter on January 5, 2009, id. ¶ 23. Kursar appealed this decision

on January 7, 2009, but has not received a determination from the TSA. Id. ¶¶ 24-25. Since the

statute of limitations for this claim began running when the TSA denied his amendment request

in January 2009, and he filed his amended complaint approximately two months later on March

16, 2009, id. at 17, Kursar’s claim seeking amendment of his records is timely.11

2. Count Two: Failure to Collect Information Directly From Kursar Before Reaching an Adverse Determination

When an individual is seeking damages under the Privacy Act, exhaustion of

administrative remedies is not required. Nagel v. U.S. Dep’t of Health, Educ. and Welfare, 725

11 This Court finds it troubling that Kursar was aware of the existence of allegedly incorrect records in 2002, but waited until 2009 to request amendment of his records. Nonetheless, the Court is not aware of any limitations period for seeking an amendment in a statute or otherwise compelled by binding case authority. And while an equitable defense such as laches may be applicable in this instance, see Bassiouni v. Fed. Bureau of Invest., Civil Action No. 02-8918, 2003 WL 22227189, at *4 (N.D. Ill. 2003) (finding that running the statute of limitations from the date the amendment request under the Privacy Act was denied “would not foreclose an equitable defense such as laches”), the Court will not consider the defense as it was not raised by the TSA.

17 F.2d 1438, 1441 n.2 (D.C. Cir. 1984). The statute of limitations thus begins to run when the

plaintiff “knows or should know of the alleged violation.” Tijerina, 821 F.2d at 798. Kursar’s

own assertions in his amended complaint indicate the dates he became aware of the alleged

violation. Namely, Kursar received notification on April 25, 2002, that the TSA intended to

terminate him for “submitting false or incorrect information on his employment application and

Standard Form 86.” Am. Compl. ¶ 10. He acknowledged receipt of this information when he

replied on April 29, 2002, denying the allegations. Id. ¶ 11. Further, Kursar received a letter on

May 3, 2002, advising him that the TSA was terminating him “to promote the efficiency of the

service.” Id. ¶ 12. Because the record illustrates that the plaintiff knew, or should have known,

of the purported inaccuracies by as early as April 25, 2002, the statute of limitations began to run

at least by that date. However, Kursar did not file his initial complaint in this Court until

November 6, 2007, more than two years later. See Compl. at 1. Kursar’s claim for damages,

therefore, is untimely.

To avoid the consequences resulting from the filing of untimely claims, courts may allow

a plaintiff to bring Privacy Act claims beyond the two-year limitations period by employing the

doctrine of equitable tolling to ensure that a plaintiff “is not, by dint of circumstances beyond his

control, deprived of a reasonable time in which to file suit.” Chung, 333 F.3d at 279 (citation

and internal quotations marks omitted); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

96 (1990) (determining that equitable tolling, which applies to private defendants, also applies to

suits against the United States unless Congress has specified otherwise). “The doctrine . . .

applies most commonly when [a] plaintiff despite all due diligence . . . is unable to obtain vital

information bearing on the existence of his claim,” Chung, 333 F.3d at 278 (citation and internal

quotations marks omitted), such as situations involving misconduct or misrepresentation by the

18 defendant, see Irwin, 498 U.S. at 96. However, “[f]ederal courts have typically extended

equitable relief . . . sparingly” and are less likely to extend it where the claimant “failed to

exercise due diligence in preserving his legal rights.” Irwin, 498 U.S. at 96.

Here, Kursar argues that equitable tolling should apply to his claim because he first

sought relief before the MSPB. Pl.’s Opp’n at 22. He reasons that a favorable determination in

that forum would have precluded him from securing relief from this Court. Id. at 23. Kursar

also argues that “sound policy” supports tolling the statute of limitations since his concurrent

litigation was addressing the same merits and seeking the same relief. Id. at 26.

The Court is not persuaded. Interestingly enough, Kursar cites multiple cases in his

opposition that illustrate the trend among courts that various grievance procedures do not toll an

applicable statute of limitations. Pl.’s Opp’n at 23-25 (citing multiple cases including Ramirez

and Del. State College v. Ricks, 449 U.S. 250 (1980)); see Ricks, 449 U.S. at 261 (“[W]e already

have held that the pendency of a grievance, or some other method of collateral review of an

employment decision, does not toll the running of the limitations periods.”); Ramirez, 594 F.

Supp. 2d at 64 (“Neither the filing of inmate grievances nor the submission of Privacy Act

requests to the relevant agencies tolls the statute of limitations for filing a claim for damages.”).

While Kursar asserts that his litigation before the MSPB is distinguishable from these cases

because he was seeking a judicial and not an administrative remedy, Pl.’s Opp’n at 24, the Court

is not aware of any case authority recognizing that the distinction Kursar attempts to draw is of

any legal significance. See Bernard, 362 F. Supp. 2d at 279 (finding no authority to support

tolling the statute of limitations when a plaintiff pursued a judicial remedy by filing an action in

the United States Court of Federal Claims, prior to filing it in the United States District Court for

the District of Columbia).

19 In any event, tolling is inappropriate here because Kursar’s pursuit of a remedy before the

MSPB was in regards to his termination from the TSA, and not the maintenance of his TSA

records, which of course is the issue at the heart of his Privacy Act claims. See Pl.’s Opp’n at 8

(asserting that the MSPB judge’s “ruling was limited to the single issue of whether the TSA had

terminated Kursar because of [his] past military service and/or in retaliation for past

[Employment Rights Act] activity”). Kursar concedes as much, stating in his memorandum in

opposition to the TSA’s motion to dismiss that “[t]he MSPB . . . is not the proper venue for

seeking judicial relief for most other legal claims, such as those which are derived from the

Privacy Act.” Pl.’s Opp’n at 26. And, seeking an entirely separate and independent remedy is

no basis for tolling a statute of limitations. Cf. Johnson v. Ry. Express Agency, Inc., 421 U.S.

454, 465-66 (1975) (finding that because “Congress clearly has retained . . . a remedy against

private employment discrimination separate from and independent of . . . Title VII,” the first

action did not toll the statute of limitations for the second despite being based on the same facts).

Given that the claims now before the Court, while related by facts similar to those brought before

the MSPB, provide for different remedies, and existing case authority declining to find that

pending administrative proceedings do not toll a statute of limitations in a civil case, see Ricks,

449 U.S. at 261, Ramirez, 594 F. Supp. 2d at 64, Kursar’s argument that the statute of limitations

was tolled by his concurrent MSPB litigation fails.

In sum, Kursar’s claim for damages pursuant to section 552a(g)(1)(C) is untimely and

thus is barred by the Privacy Act’s two-year statute of limitations. However, his claims for

injunctive relief pursuant to section 552a(g)(1)(A) are not barred as untimely, as the limitations

period in which to seek such relief did not begin until after he exhausted the administrative

remedies outlined in section 552a(d) and his request for that relief was denied. The Court now

20 turns to the merits of Kursar’s remaining Privacy Act claims, as well as his Fifth Amendment

claim.

II. The Parties’ Cross-Motions for Summary Judgment

A. Counts One, Three, and Four: the Privacy Act Claims

As to the remaining Privacy Act claims, Kursar requests relief under section

552a(g)(1)(A), see Am. Compl. ¶¶ 32, 54, 66; see also Kursar II, 581 F. Supp. 2d at 17 n.4,

which provides a civil remedy “[w]henever any agency . . . makes a determination under

subsection (d)(3) of this section not to amend an individual’s record in accordance with his

request, or fails to make such review in conformity with that subsection,” § 552a(g)(1)(A).

“[S]ubsection (g)(1)(A) provides for the correction of any inaccurate or otherwise improper

material in a record.” Doe v. Chao, 540 U.S. 614, 618 (2004).

Following an agency’s denial of an amendment request, the plaintiff can bring a claim in

federal court and “obtain de novo consideration of whether amendment is warranted.” Skinner v.

U.S. Dep’t of Justice, 584 F.3d 1093, 1096 (D.C. Cir. 2009). “If the court so finds, it may order

the agency to amend the individual’s record.” Id. at 1096. While the Privacy Act allows for

amendment of “factual or historical” errors, it is not “a vehicle for amending the judgments of

federal officials.” Kleiman v. Dep’t of Energy, 956 F.2d 335, 337-38 (D.C. Cir. 1992) (internal

quotation marks and citation omitted); see also McCready v. Nicholson, 465 F.3d 1, 19 (D.C.

Cir. 2006). “Where a subjective evaluation is based on a multitude of factors . . . and there are

various ways of characterizing some of the underlying events . . . it is proper to retain and rely on

it.” White v. Office of Pers. Mgmt., 787 F.2d 660, 662 (D.C. Cir. 1986). Put differently, the

Privacy Act, as a general matter, “allows for [the] correction of facts but not correction of

opinions or judgments.” McCready, 465 F.3d at 19. If the information is capable of being

21 verified, however, “the agency must take reasonable steps to maintain the accuracy of the

information to assure fairness to the individual.” Id. “The burden is on the individual to

establish the inaccuracy of a challenged record.” Doe v. United States, 821 F.2d 694, 709 (D.C.

Cir. 1987) (Mikva, J., dissenting); see also Mervin v. Fed. Trade Comm’n, 591 F.2d 821, 827

(D.C. Cir. 1978) (observing that for “requests such as . . . one to [a]mend allegedly inaccurate

records” under the Privacy Act, the plaintiff bears the burden of proof).

In bringing these claims under Section 552a(g)(1)(A), Kursar is seeking to “expunge all

records or information that [are] inaccurate, derogatory[,] or infringes upon [his] express or

implied constitutional or statutory rights,” or, alternatively, to order the TSA “to abide by

Kursar’s amendment request.” Am. Compl. at 16. In his cross-motion for summary judgment,

Kursar specifies that his “request for relief pertains exclusively to the TSA’s records

memorializing the issuance of the fact-based findings and the determination that the findings

demonstrated that Kursar had submitted false information on his SF-86.” Pl.’s Opp’n at 33. It is

important to note that Kursar is not challenging the fact that the Washington National Guard

offered him the option of proceeding with his resignation (which he tendered at the request of his

supervisor) and receiving a general discharge under honorable conditions, rather than facing a

proceeding in which the Washington National Guard would determine whether he should be

adversely discharged, Pl.’s Opp’n, Ex. 4 (Declaration of Robert Kursar) ¶ 7, as a result of his

“admittedly ill-advised decision to use [his] law enforcement credentials in order to gain access

to a scuba-diving course,” id. ¶ 5. Nor is there any dispute that “the Army Central Clearance

Facility . . . temporarily suspended Kursar’s security clearance in light of the conduct” relating to

his improper use of his law enforcement credentials. Pl.’s Stmt. Facts ¶ 8. Rather, Kursar asserts

that Blake’s findings in the May 3, 2002 termination letter are false because (1) he was not

22 required to disclose his resignation from the Washington National Guard under question 22 of

his SF-86 Form, Pl.’s Opp’n at 31, which asks the applicant to disclose whether, inter alia, he

had ever “[l]eft a job by mutual agreement following allegations of unsatisfactory performance”

or “for other reasons under unfavorable circumstances,” Def.’s Mem., Ex. D (SF-86 Form for

Robert Kursar) at 7, and (2) he did not have to reveal that the Army Central Clearance Facility

had temporarily suspended his security clearance under question 26, Pl.’s Opp’n at 32, which

asks whether he had “ever had a clearance or access authorization denied, suspended, or

revoked,” Def.’s Mem., Ex. D (SF-86 Form for Robert Kursar) at 8.

Based on a plain reading of the entire SF-86 Form, the Court concludes that Kursar has

failed to demonstrate that he is entitled to have his records amended. Based on the undisputed

facts discussed above, there can be no doubt that Kursar held a “job” within the military, that he

resigned because of a mutual agreement between him and his supervisor, and that he left

“following allegations of unsatisfactory performance”—that he improperly used his law

enforcement credentials to gain admission to a scuba-diving course. Thus, he was required to

disclose on his SF-86 Form that he “[l]eft a job by mutual agreement following allegations of

unsatisfactory performance.” Def.’s Mem., Ex. D (SF-86 Form for Robert Kursar) at 7.

Likewise, as for Kursar’s failure to disclose in response to question 26 the temporary suspension

of his security clearance while serving in the Army, this is an even more clear-cut case. The

question explicitly required Kursar to disclose any instance in which he “ever had a clearance . . .

denied, suspended, or revoked.” Def.’s Mem., Ex. D (SF-86 Form for Robert Kursar) at 8

(emphasis added). Kursar’s arguments here are simply untenable.

Kursar’s reliance on the sworn testimony of Carolyn Donahue, an employee at the TSA,

Pl.’s Opp’n at 17, does not further his cause. Donahue testified before an MSPB administrative

23 judge that Kursar was not required to disclose his resignation from the Washington Army in

response to question 22 because the SF-86 form “has [a] previous question . . . about [his]

military record,” and thus this question pertained only to “other kind[s] of work-related

experiences.” Pl.’s Opp’n, Ex. 16 (MSPB testimony of Carolyn Donahue) at 2. Even assuming

that her interpretation of the SF-86 is reasonable (and the Court is not persuaded that it is), it

cannot be said that Blake’s interpretation of question 22 is demonstrably false. As discussed in

the preceding paragraph, one reasonable interpretation of question 22 is that it requires disclosure

for any job, military or otherwise, that meets one of the conditions listed in the question. Thus,

Donahue’s testimony at best reveals an ambiguity in question 22, and it was incumbent on Blake

to exercise his judgment in assessing whether Kursar (or any applicant) can be reasonably

expected to disclose any adverse decisions in the military context under question 22.

Notwithstanding what the Court finds to be an obvious reading of question 22, the Court

concludes that Blake’s conclusion was a “judgment[] of [a] federal official[]” that is not entitled

to amendment under the Privacy Act. Kleiman, 956 F.2d at 337-38.

Kursar also makes much ado about the TSA’s failure to “produce[] any evidence that the

interim suspension of Kursar’s security clearance fell within the scope of [q]uestion []26,” and

that the TSA failed to take steps to verify that Kursar was required to list his discharge from the

Washington National Guard on his SF-86. Pl.’s Opp’n at 31-32. But all the evidence necessary

for Blake to interpret the SF-86 Form is the form itself; Blake was not required to take any steps

to verify the meaning of SF-86 Form because a plain reading of the question was sufficient for

him to reasonably conclude that Kursar should have disclosed these adverse actions on his SF-

86. In any event, the burden of proving the inaccuracy of records is on Kursar, not the TSA,

Doe, 821 F.2d at 709, (Mikva, J., dissenting), and it is evident from the record that he has failed

24 by a wide margin to put forth evidence sufficient to survive the TSA’s summary judgment

motion.

B. Count Five: Due Process Claim

Kursar also seeks a “name clearing hearing,” asserting that the TSA violated his liberty

interest under the Due Process Clause of the Fifth Amendment without providing him “a

meaningful opportunity to respond to the fact-based findings.” Pl.’s Opp’n at 41. In deciding

this issue, the Court must “engage in a ‘familiar two-part inquiry,’” to wit, “whether the

plaintiff[] [was] deprived of protected property or liberty interests, and, if so, whether [he]

received the process [he was] due.” Orange v. District of Columbia, 59 F.3d 1267, 1273 (D.C.

Cir. 1995) (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). Here, the

Court need not decide the issue of whether Kursar was deprived of a protected liberty interest,

because even assuming he suffered a deprivation of such an interest, he received all of the

process due under the Fifth Amendment.

The Due Process Clause requires that “[w]here a person’s good name, reputation, honor,

or integrity is at stake because of what the government is doing to him, notice and an opportunity

to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). Kursar

received just that in this instance. There is no dispute that Blake provided Kursar with a

Proposed Notice of Termination on April 25, 2002, the purpose of which was “to officially

notify [Kursar] of [Blake’s] intent to terminate [Kursar’s] employment with the [TSA],” and to

notify Kursar that he was “entitled to submit a written answer to this notice of proposed

termination[] and furnish any affidavits or other material in support of [his] answer.” Def.’s

Mem., Ex. D (April 25, 2002 letter from William Blake to Robert Kursar), at 1; see also Pl.’s

Stmt. of Facts ¶ 12 (acknowledgment by Kursar that Proposed Notice of Termination was issued

25 by Blake). On May 3, 2002, after “carefully consider[ing Kursar’s] written response,” Blake

concluded that Kursar’s explanation was insufficient to reverse the initial finding by Blake that

Kursar had “submitted an official document that contained false and/or misleading information.”

Def.’s Mem., Ex. G (May 3, 2002 Letter from William Blake to Robert Kursar) at 1. Kursar,

therefore, clearly received notice of the allegations and an opportunity to be heard; what he did

not receive was the outcome that he desired, which unfortunately for him is not guaranteed by

the Fifth Amendment. See Segal v. City of New York, 459 F.3d 207, 216 (2d Cir. 2006)

(“Because an at-will employee lacks a property interest in continued employment, she has no

right to a particular outcome following an adequate name-clearing hearing; the government is

simply required to provide her with an opportunity to salvage her name.”)

Kursar does not contest the fact that he had an opportunity to respond to the Notice of

Proposed Termination. Rather, he argues that he did not receive a meaningful hearing because

Blake “gave Kursar’s written response nothing more than a mere cursory glance.” Pl.’s Opp’n at

44. Yet, Kursar presents no evidence to this effect. But even setting aside the question of

whether Kursar received an adequate pre-termination hearing, Kursar has still been afforded all

of the process that he is due because he was afforded the opportunity after his termination to

amend his records pursuant to the Privacy Act. As stated in the amended complaint, Kursar is

simply asking for an opportunity to “refute and/or challenge the accuracy of the information

underlying the fact-based findings that resulted in [his] termination,” Am. Compl. at 16, which is

the assertion of “no more than the right to submit evidence,” Dickson v. Office of Pers. Mgmt.,

828 F.2d 32, 41 (D.C. Cir. 1987). Such relief “is precisely equivalent to that afforded him as of

right under the Privacy Act,” id., and Kursar exercised that right by seeking amendment of his

26 records with the TSA.12 The Due Process Clause requires nothing more. Kursar’s Fifth

Amendment claim, therefore, is without merit.

IV. Conclusion

“[T]he Privacy Act does not allow a court to alter records that accurately reflect an

administrative decision, nor the opinions behind that administrative decision, no matter how

contestable the conclusions may be.” Leighton v. Cent. Intel. Agency, 412 F. Supp. 2d 30, 38

(D.D.C. 2006) (Oberdorfer, J.) (quoting Reinbold v. Evers, 187 F.3d 348, 360 (4th Cir. 1999)).

And, it is apparent from the record before the Court that Kursar’s complaint is premised on

nothing more than a challenge to a decision made by a federal official in construing two non-

technical questions listed on a SF-86 Form. While Kursar may disagree with defendant Blake’s

interpretation of the SF-86 Form, his official judgment is not entitled to amendment under the

Privacy Act. As for Kursar’s damages claim under the Privacy Act, the record conclusively

establishes that his claim is barred by Section 552a(g)(5) because more than two years had

passed between the time he received notice of what he believed to be an inaccurate termination

notice and the filing of the present lawsuit. Finally, Kursar is not entitled to any additional relief

under the Due Process Clause of the Fifth Amendment, because even assuming that he has

established the deprivation of a liberty interest, he has been afforded all of the process that he is

constitutionally due.

Accordingly, the Court will grant in part and deny in part the defendants’ motion to

dismiss, deny as moot the defendants’ motion for judgment on the pleadings, grant in part and

12 To the extent that Kursar is requesting that this Court compel an oral hearing, the Circuit has already deemed such relief to fall outside the guarantees of the Due Process Clause in these circumstances. Dickson, 828 F.2d at 41 (concluding that an individual seeking “to refute . . . allegedly erroneous information in his personnel file” does not have a right to an oral hearing because requiring the government to provide hearings in this circumstance “would disable government record keeping”).

27 deny in part as moot the defendants’ motion for summary judgment, and deny the plaintiff’s

cross-motion for summary judgment.

SO ORDERED this 22nd day of November, 2010.13

REGGIE B. WALTON United States District Judge

13 A final order will be issued contemporaneously with this memorandum opinion (1) denying the defendants’ motion to dismiss for lack of subject-matter jurisdiction; (2) granting in part and denying in part the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted; (3) denying as moot the defendants’ motion for judgment on the pleadings; (4) granting in part and denying in part as moot the defendants’ motion for summary judgment; and (5) denying the plaintiff’s cross-motion for summary judgment.