UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) EDWARD RICHARDSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-867 (RMC) ) BOARD OF GOVERNNORS OF THE ) FEDERAL RESERVE SYSTEM, et al, ) ) ) Defendants. ) )
MEMORANDUM OPINION
Edward Richardson worked as a law enforcement officer for the Board of
Governors of the Federal Reserve System (the Board) for approximately one year before he was
terminated on June 7, 2010. This is the third in a series of lawsuits Mr. Richardson has brought
pro se against the Board or its employees, alleging actions that he believes led to his wrongful
termination or have prevented him from securing future employment. After the Board moved to
dismiss Mr. Richardson’s claims in this action, the Court granted the motion in part and
dismissed several of Mr. Richardson’s claims, but denied the motion as to two claims brought
under the Privacy Act. The Board has now moved the Court to reconsider the motion to dismiss
as to those two remaining claims. Because the Court finds, upon reconsideration, that Mr.
Richardson failed to establish pecuniary damages as required to bring a Privacy Act claim, the
Board’s motion will be granted and the remaining claims will be dismissed.
I. BACKGROUND
The facts alleged in this case have already been recited in detail, see Richardson
v. Yellen, 167 F. Supp. 3d 105, 108 (D.D.C. 2016) (Richardson I), and only those facts that are
1 pertinent to Mr. Richardson’s remaining claims need be reiterated here. Prior to his employment
with the Board, Mr. Richardson was a military police officer in the United States Army. While
deployed in Iraq in 2003, Mr. Richardson was subjected to fumes and toxins that apparently led
to severe asthma and allergies. Mr. Richardson informed the Board of this medical condition
before he was hired. Mr. Richardson began working for the Board’s Law Enforcement Unit
(LEU) on June 8, 2009. In approximately October 2009 and again in November 2009, Mr.
Richardson requested accommodations for his medical condition. Neither of these requests was
acknowledged or addressed by the Board.
The Board terminated Mr. Richardson’s employment on July 7, 2010; he was
informed that his termination was based on a lack of support for his absences. See Second Am.
Compl. ¶ 20 [Dkt. 20] (SAC). Mr. Richardson has alleged that Board employees conspired to
remove 22 medical documents supporting instances when he had been absent from work for
medical reasons (“calloffs”) from his personnel file. See id. ¶¶ 26, 127. These claims have since
been dismissed by the Court. See 3/31/2017 Order [Dkt. 27]; Richardson v. Bd. of Governors of
the Fed. Reserve Sys., 248 F. Supp. 3d 91 (D.D.C. 2017) (Richardson III).
Mr. Richardson alleges that, following his termination, Board employees Billy
Sauls and Albert Pleasant illegally obtained his cellphone records in 2010 and 2011 without his
knowledge and then released those records to other Board personnel in violation of the Privacy
Act of 1974, 5 U.S.C. § 552a et seq. (the Privacy Act or the Act). See SAC ¶¶ 60-62. Mr.
Richardson also alleges that Board employee Kevin May conspired to remove medical
documents from Mr. Richardson’s personnel file. See id. ¶ 65. On October 16, 2014, Mr.
Richardson initiated a complaint with the Attorney Grievance Commission of Maryland
(Maryland Commission) against Mr. May. On January 11, 2015, Mr. May sent certain
2 documents from Mr. Richardson’s personnel file to the Maryland Commission in response to that
complaint. Id. ¶ 65. Mr. Richardson alleges that this disclosure also violated the Privacy Act. Id.
¶¶ 140-41.1
Mr. Richardson has remained unemployed since his termination from the Board.
He attributes his unemployment to the Board’s continued actions against him and in particular, to
the alleged tampering with his personnel file. Specifically, Mr. Richardson’s personnel file
contains a Notice of Suspension Without Pay, dated May 20, 2010, issued by LEU Deputy Chief
Marvin Jones. Mr. Richardson alleges that the Notice was falsified and that he was never
suspended and did not receive a copy of the Notice. Id. ¶ 78. Defendants have acknowledged that
Mr. Richardson never received the Notice, explaining that this was “because his provisional
Board employment was terminated.” Richardson v. Yellen, No. 14-cv-1673, Answer [Dkt. 28]
¶ 59. Nonetheless, the Notice was placed in Mr. Richardson’s personnel file and in a report from
the Equal Employment Opportunity Commission following its investigation.
Mr. Richardson believes that the allegedly falsified Notice in his file led to his
being determined ineligible for future employment, specifically by the D.C. Department of
Corrections. See SAC ¶¶ 78, 81, 84; see also id. at ¶ 85 (“[Mr. Richardson] received notification
by the D.C. Department of Corrections that he was ineligible for employment due to falsified
information in his Board personnel file.”). Mr. Richardson made these allegations in Count Four
of his Amended Complaint, which has been dismissed. See SAC ¶¶ 154-64; 3/31/2017 Order.
On May 9, 2016, Mr. Richardson filed the current matter against the Board,
alleging various constitutional claims and federal statutory violations. See Compl. [Dkt. 1]. He
1 Mr. Richardson raised a number of other allegations in his complaint, which have been dismissed. See generally Richardson III, 248 F. Supp. 3d 91. 3 subsequently amended the instant complaint to add several claims under the Federal Tort Claims
Act (FTCA) against the United States. See First Am. Compl. [Dkt. 17]; see also SAC. After the
Board moved to dismiss Mr. Richardson’s allegations, the Court dismissed a number of Mr.
Richardson’s claims in this action. See 3/31/2017 Order; Richardson III, 248 F. Supp. 3d 91.
The remaining counts allege violations of the Privacy Act, for the release of
information from Mr. Richardson’s personnel file to the Maryland Commission (Count Two) and
the alleged illegal search and seizure of Mr. Richardson’s cellphone and dissemination of his
cellphone records (Count Six).2 Mr. Richardson claims under Count Two that he “has suffered
adverse and harmful effects” due to Mr. May’s alleged mishandling of his personal information,
“including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation,
and lost or jeopardized present and future financial opportunities.” SAC ¶ 144. Similarly,
regarding Mr. Richardson’s allegations of improper search and dissemination of his cellphone
records, Count Six alleges that Mr. Richardson “has suffered adverse and harmful effects,
including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and
lost or jeopardized present and future financial opportunities.” Id. ¶ 183. Mr. Richardson also
complains that, “[a]s a direct result of the defendants’ actions [he] has involuntarily remained
unemployed since his June 7, 2010 termination.” Id. ¶ 84.
After the Court declined to dismiss Counts Two and Six, the Board moved for
reconsideration. Mot. for Recons. [Dkt. 29] (Mot.). Mr. Richardson opposed. Mem. Opp’n Mot.
2 In his Second Amended Complaint, Mr. Richardson also alleges in Counts Two and Six that the Board violated the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, and whistleblower protections under 12 U.S.C. § 1831j. The Court has already held that Mr. Richardson is ineligible for relief under these theories, see Richardson III, 248 F. Supp. 3d at 103, and accordingly the only basis for Mr. Richardson’s remaining claims is the Privacy Act. 4 for Recons. [Dkt. 32] (Opp’n). The Board replied. Reply Opp’n Mot. for Recons. [Dkt. 33]
(Reply). The motion is ripe for review.
II. LEGAL STANDARD
Generally, a motion for reconsideration is governed by the “law of the case”
doctrine: “the same issue presented a second time in the same case in the same court should lead
to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996). However,
interlocutory orders, including a partial granting of a motion to dismiss, “may be revised at any
time before the entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” Fed. R. Civ. P. 54(b). Thus, the Court is “free to reconsider” a non-final judgment.
Filebark v. Dep’t of Transp., 555 F.3d 1009, 1013 (D.C. Cir. 2009). The Court should reconsider
interlocutory orders only “as justice requires.” United States v. Slough, 61 F. Supp. 3d 103, 107
(D.D.C. 2014) (quoting United States v. Coughlin, 821 F. Supp. 2d 8, 18 (D.D.C. 2011)). To
determine whether “justice requires” reconsideration, “the Court considers whether it ‘patently
misunderstood a party, has made a decision outside the adversarial issues presented to the Court
by the parties, has made an error not of reasoning but of apprehension, or where a controlling or
significant change in the law or facts [has occurred] since the submission of the issue to the
Court.’” Slough, 61 F. Supp. 3d at 108 (quoting Singh v. George Washington Univ., 383 F. Supp.
2d 99, 101 (D.D.C. 2005)).
III. ANALYSIS
A. “Actual Damages”
The Board argues that reconsideration is appropriate here because “the Court
misapprehended the Board’s arguments as reaching only the merits of Plaintiff’s Privacy Act
claims, when in fact the Board also argued that no relief was available to Plaintiff under the
5 Act.” Mot. at 4. The Board argues that no relief is available to Mr. Richardson under the Privacy
Act because he fails to plead “actual, pecuniary damages,” and has failed to state a claim for
which relief can be granted under the Act. Id. at 5.
In denying Defendants’ Motion to Dismiss as to Counts Two and Six, the Court
determined that there was insufficient information to dismiss the claims on the merits. As to
Count Two, the Court found that Defendants had failed to provide sufficient information for the
Court to find that the Privacy Act’s “routine use” exception applied to Kevin May’s
dissemination to the Maryland Commission of three documents related to Mr. Richardson. See
Richardson III, 248 F. Supp. 3d at 101-02. The Court found that the Board had not explained
“how Mr. Richardson’s confidential files were disclosed for a purpose compatible with the
purpose for which those files were collected,” as required to trigger the “routine use” exception
under the Privacy Act. Id. at 102; see also 5 U.S.C. § 552a(a)(7). Thus, the Court found that the
Board had not provided sufficient information to decide, on the merits, whether the incident
constituted a routine use and was therefore permissible under the Act. As to Count Six, the Court
also determined that there was insufficient information to dismiss the claim. Specifically, the
Court was unable to reach the question of whether Count Six was time-barred because it did not
have sufficient information to determine whether, as Mr. Richardson claimed, the Board had
willfully misrepresented information related to an allegedly inappropriate seizure, search, and
dissemination of Mr. Richardson’s cellphone records. See Richardson III, 248 F. Supp. 3d at
102.
In their Motion to Dismiss, separate from questions of timeliness or of success on
the merits, Defendants had also argued that Mr. Richardson had failed to state a claim under the
Privacy Act because he had not alleged actual pecuniary damages. See Mot. to Dismiss [Dkt. 22]
6 at 17-18. Under the Privacy Act, monetary relief may be granted if the plaintiff has suffered
“actual damages” because of the alleged violation. In Federal Aviation Administration v.
Cooper, the Supreme Court held that under the Act “actual damages” means pecuniary damages
and thus plaintiffs are barred from recovery unless they can show “some pecuniary harm.” 566
U.S. 284, 296 (2012). Thus, emotional distress and other non-pecuniary damages cannot support
a plaintiff’s right to recovery under the Privacy Act. Having raised this argument in their Motion
to Dismiss, Defendants have again raised the argument in their Motion for Reconsideration. See
Mot. at 6-10. The Court acknowledges that, as the Board points out, the Board did make this
argument in its Motion to Dismiss, and the Court did not rule on the issue in denying dismissal
as to Counts Two and Six. See Mot. at 4-5; Reply at 3.
In his Amended Complaint, Mr. Richardson claims that both Counts Two and Six
led to his suffering “adverse and harmful effects, including, but not limited to, mental distress,
emotional trauma, embarrassment, humiliation, and lost or jeopardized present and future
financial opportunities.” SAC ¶¶ 144, 183. Elsewhere in the Complaint, Mr. Richardson also
claims that, “[a]s a direct result of the defendants’ actions [he] has involuntarily remained
unemployed since his June 7, 2010 termination.” Id. ¶ 84. The Court must now determine
whether these allegations support claims of actual—that is, pecuniary—damages.
As this Court has previously explained, “[t]he Privacy Act does not allow a claim
for damages based on reputational or emotional harm,” and does not authorize damages for
mental or emotional distress; “[a]s a result, Plaintiffs must specifically allege actual damages to
survive a motion to dismiss for failure to state a claim.” Welborn v. IRS, 218 F. Supp. 3d 64, 82
(D.D.C. 2016) (citing Cooper, 566 U.S. at 304). Although Mr. Richardson disputes the Board’s
characterization of his allegations as an attempt “to construe Plaintiff’s Privacy Act claims into
7 [intentional infliction of emotional distress] claims,” the point remains that Mr. Richardson’s
allegations of harm rely on claims of emotional harm and other non-pecuniary alleged damages.
Opp’n at 3. Mr. Richardson’s claims of “mental distress, emotional trauma, embarrassment,
[and] humiliation” are insufficient to state a claim under the Privacy Act. SAC ¶¶ 144, 183.
Mr. Richardson also alleges “lost or jeopardized present and future financial
opportunities.” SAC ¶¶ 144, 183. The question is whether these allegations stated a pecuniary
claim under the Privacy Act. The Board characterizes Mr. Richardson’s claims of lost financial
opportunity as “conclusory allegations,” arguing that they are not a “proven pecuniary loss” as
required under the Privacy Act. See Mot. at 8 (quoting Cooper, 566 U.S. at 298 (“[W]e think it
likely that Congress intended ‘actual damages’ in the Privacy Act to mean special damages for
proven pecuniary loss.”)). The crux of the Board’s argument is that Mr. Richardson has not
alleged sufficient facts to establish that any loss of financial opportunities was caused by the
alleged Privacy Act violations. The Board points to a number of cases to establish that the
standard for establishing “actual damages” under the Privacy Act is, pursuant to the Supreme
Court’s analysis in Cooper, set forth in the provisions governing “special damages” under Rule
9(g) of the Federal Rules of Civil Procedure. See Mot. at 8. Special damages must be
“specifically stated” and alleged with “particularity,” and must “specify ‘facts showing that such
special damages were the natural and direct result’ of the defendant’s conduct.” Browning v.
Clinton, 292 F.3d 235, 246 (D.C. Cir. 2002) (discussing “special damages” under Rule 9(g) in a
non-Privacy Act context) (internal citations omitted); see also Welborn, 218 F. Supp. 3d at 82
n.2 (explaining that “[t]he fact that Plaintiffs chose to spend money on credit monitoring services
to prevent potential future harm does not allege actual damages attributable to the [defendant]”
8 and that injury based on “hypothetical future harm” could not support the allegations of harm
under the Privacy Act).
The allegations in Counts Two and Six of Mr. Richardson’s Second Amended
Complaint concern alleged acts that occurred after Mr. Richardson’s termination on June 7,
2010. Specifically, as the Board points out in its Motion for Reconsideration, according to Mr.
Richardson the alleged seizure, search, and dissemination of cellphone records (Count Six)
occurred in 2010 and 2011 subsequent to Mr. Richardson’s termination. And the complaint does
not allege that Mr. May sent Mr. Richardson’s medical documents to the Maryland Commission
(Count Two) until January 2015. SAC ¶ 65. Given this timing, the Court must conclude that Mr.
Richardson’s termination could not have been caused by the alleged acts.
The only remaining question, then, is whether Mr. Richardson has stated a claim
that the alleged acts caused any future pecuniary loss that could be cognizable as damages under
the Privacy Act. Mr. Richardson alleges that he has remained unemployed since his termination,
and attributes this continued unemployment to the Board’s alleged violations against him.
Having reviewed Mr. Richardson’s pleadings in this action, the Court can only find one specific
instance that Mr. Richardson alleges to be a direct cause of his continued unemployment: the
alleged falsification of a suspension notice in his personnel file. See id. ¶¶ 78, 81, 84-85. Mr.
Richardson asserts that he “received notification by the D.C. Department of Corrections that he
was ineligible for employment due to falsified information in his Board personnel file.” Id. ¶ 85.
Setting aside whether these allegations would allege sufficient causation to sustain Mr.
Richardson’s claims, the allegations pertain to Count Four, which the Court already dismissed,
and not to Counts Two or Six, which contain no such allegations attempting to link any improper
9 acts by the Board to Mr. Richardson’s continuing unemployment. Mr. Richardson has not
alleged sufficient facts to sustain claims of actual damages under the Privacy Act.
In addition to seeking monetary damages, Mr. Richardson also seeks injunctive
relief under the Privacy Act, requesting that the Court “[declare] that the Board violated the
Privacy Act of 1974,” “[i]nvoke its equitable powers to expunge all records or information
maintained by the Board that is inaccurate and/or derogatory to Plaintiff,” and enjoin the Board
“from taking any further illegal and prohibited action against Plaintiff such as those atrocious
behaviors alleged herein.” SAC at 33. The Privacy Act provides for limited injunctive relief in
suits to amend a record and suits for access to a record, but these sections of the Privacy Act are
not implicated by Mr. Richardson’s Counts Two and Six, which instead allege impermissible
search and dissemination of records. See Cooper, 566 U.S. at 310 n.4 (Sotomayor, J., dissenting)
(“It bears noting that the Privacy Act does not authorize injunctive relief when a suit is
maintained under 5 U.S.C. § 552a(g)(1)(C) and (D). Rather, injunctive relief is available under
the Act only for a limited category of suits: suits to amend a record and suits for access to a
record. See 5 U.S.C. § 552a(g)(2), (g)(3).”). Thus, the Court concludes that no injunctive relief is
available based on Mr. Richardson’s allegations. None of Mr. Richardson’s allegations under
Count Two or Six can sustain a Privacy Act claim.
B. Sovereign Immunity
The Board did not initially raise the issue of sovereign immunity as to the Privacy
Act claims in its Motion to Dismiss or Reply. However, on Motion for Reconsideration, the
Board has raised this issue, arguing that Mr. Richardson’s Privacy Act claims fail because they
do not establish a requisite waiver of sovereign immunity. See Mot. at 5. The Privacy Act, the
Board argues, contains a waiver of sovereign immunity only for claims of pecuniary harm. Id. at
10 6. As the Board states in its Reply, this argument is related to the “actual damages” argument
considered already. See Reply at 2 (describing the sovereign immunity point as a “natural
outgrowth” of the damages point). Because the Court has determined that both Counts Two and
Six must be dismissed because no “actual damages” have been established, and thus no claim has
been stated under the Privacy Act, it need not reach the further question of what allegations
would establish the necessary waiver of sovereign immunity, and whether those facts have been
alleged here.
C. Judicial Estoppel
In opposition, Mr. Richardson argues that the Board’s arguments fail under the
doctrine of judicial estoppel, which “precludes the Defendant from taking a position in a case
that is contrary to a position in its Motion to Dismiss.” Opp’n at 2. The Board responds that it
has not relied on contradictory positions, but rather has asked the Court to reconsider its “actual
damages” argument and has raised additional, related arguments regarding the lack of a waiver
of sovereign immunity, which the Board categorizes as a “natural outgrowth” of the “actual
damages” arguments. Reply at 2. The Court agrees with the Board that the doctrine of judicial
estoppel does not apply here; Mr. Richardson has not explained how Defendants’ arguments in
support of dismissal are contradictory, nor can the Court apprehend any contradictory arguments
based on its own analysis.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ Motion for
Reconsideration [Dkt. 29] and will dismiss without prejudice Counts Two and Six. A
memorializing Order accompanies this Opinion.
11 Date: January 26, 2018 /s/ ROSEMARY M. COLLYER United States District Judge