Richardson v. Board of Governors of The Federal Reserve System

MOTION to Dismiss For Falure To State A Claim And, MOTION to Dismiss for Lack of Jurisdiction

D.D.C.August 29, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EDWARD RICHARDSON, ) ) Plaintiff, ) ) v. ) ) Civil Action No. 16-867 RMC BOARD OF GOVERNORS OF ) THE FEDERAL RESERVE ) SYSTEM, et al., ) ) Defendants. ) ) DEFENDANTS’ JOINT MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM AND LACK OF SUBJECT MATTER JURISDICTION Defendants, the Board of Governors of the Federal Reserve System (“the Board”) and the United States of America (collectively, “defendants”) hereby move, pursuant to Fed. R. Civ. P. 12(b)(1) and (6), to dismiss1 the complaint, as amended, in this action for failure to state a claim and for lack of subject-matter jurisdiction. 1 To the extent that the Court may rely on matters outside of the pleadings, the Court may enter summary judgment in favor of defendants. See Fed. R. Civ. P. 12(b); 56. Plaintiff should take notice that any factual assertions contained in the documents in support of this motion may be accepted by the Court as true unless he submits his own affidavit or other proper, documentary evidence contradicting the assertions in the documents. See Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992), Local Rule 7(h), and Fed. R. Civ. P. 56(e), which provides as follows: (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or (4) issue any other appropriate order. Fed. R. Civ. P. 56(e). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 1 of 35 - 2 - The Court is respectfully referred to the accompanying memorandum of points and authorities in support of this motion. A proposed order is also provided. Respectfully submitted, CHANNING D. PHILLIPS DC Bar # 415793 United States Attorney for the District of Columbia Of Counsel: KATHERINE H. WHEATLEY DANIEL F. VAN HORN DC Bar #359037 DC Bar #924092 Associate General Counsel Chief, Civil Division YVONNE F. MIZUSAWA By: /s/ DC Bar #416459 W. MARK NEBEKER Senior Counsel DC Bar # 396739 YONATAN GELBLUM Assistant United States Attorney Counsel Judiciary Center Building Board of Governors of the Federal 555 Fourth Street, N.W. Reserve System Washington, D.C. 20530 20th and C Streets, N.W. (202) 252-2536 Washington D.C. 20551 mark.nebeker@usdoj.gov (202) 452-3436 Fax (202) 736-5615 Attorneys for Defendants Board of Governors of the Federal Reserve System and the United States of America Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 2 of 35 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EDWARD RICHARDSON, ) ) Plaintiff, ) ) v. ) ) Civil Action No. 16-867 RMC BOARD OF GOVERNORS OF ) THE FEDERAL RESERVE ) SYSTEM et al., ) ) Defendants. ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ JOINT MOTION TO DISMISS AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM AND LACK OF SUBJECT MATTER JURISDICTION Defendants, the Board of Governors of the Federal Reserve System (“the Board”) and the United States of America (collectively, “defendants”), by and through their attorney, the United States Attorney for the District of Columbia, submit this memorandum of points and authorities in support of their Joint Motion to Dismiss Plaintiff’s Amended Complaint for Failure to State a Claim and Lack of Subject Matter Jurisdiction.1 Plaintiff’s Federal Tort Claims Act claims must be dismissed because this action was filed before plaintiff exhausted his administrative remedies. His remaining claims are barred by res judicata because they are based on the same facts as his claims against Board Chair Janet L. Yellen and seven Board employees that were dismissed by this Court earlier this year. In the alternative, plaintiff has failed to state a claim for relief, or 1 This Motion responds to Plaintiff’s Amended Complaint, ECF No. 20, filed August 4, 2016. Although plaintiff submitted a draft amended complaint along with his July 7, 2016, Motion for Leave to File Amended Complaint, ECF No. 8, this Court’s order granting that Motion permitted Plaintiff to file an amended complaint by August 5, 2016. See Minute Order dated July 22, 2016. The clerk’s office apparently docketed the draft amended complaint on July 22, 2016 (ECF No. 17), but Plaintiff seems to have followed the Court’s direction in filing another amended complaint on August 4, 2016 (ECF No. 20). As reflected herein, both of these amended complaints would be subject to dismissal. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 3 of 35 - 2 - subject matter jurisdiction is lacking, under the Privacy Act of 1974, 5 U.S.C. § 552a (“Privacy Act”), the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), the whistleblower provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 12 U.S.C. § 1831j, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, the Fourth Amendment of the U.S. Constitution, and the Due Process Clause of the Fifth Amendment. Accordingly, the Amended Complaint should be dismissed under Rules 12(b)(1) and 12(b)(6), and judgment entered for the Board and the United States. BACKGROUND This is the third in a series of actions Plaintiff, Edward Richardson, has filed against the Board or its officers regarding his employment as a provisional officer in the Board’s Law Enforcement Unit (“LEU”) and his June 2010 termination. His first case, brought in 2014 against the Board and seven of its present or former employees, was dismissed in full with the exception of a Rehabilitation Act claim against the Board now pending before this Court. Richardson v. Yellen, No. 14-1673 (RMC), 2016 WL 890570 at *10, 2016 U.S. Dist. LEXIS 29131, at *2 (D.D.C. Mar. 8, 2016) (“Richardson I”). The second, brought in April 2016 against the same seven individuals named as defendants in Richardson I, is also currently pending before this Court. Richardson v. Sauls, et al., No. 16-cv-794 (D.D.C., filed April 28, 2016) (“Richardson II”). The current case, referred to herein as Richardson III, was filed less than two weeks later, against the Board alone; the complaint was subsequently amended to add claims against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (“FTCA”), and additional claims under the APA, and the Due Process clause of the Fifth Amendment. See Amended Complaint, ECF No. 20, ¶¶ 186-201. Plaintiff also adds allegations concerning what he contends was the Board’s noncompliance with the No FEAR Act, id. ¶¶ 96- Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 4 of 35 - 3 - 99,2 and expounds on events concerning his termination, including his internal appeal of his termination, id., ¶¶ 106-113, 186-89. All three civil actions3 arise out of Plaintiff’s employment at the Board, where he worked as a law enforcement officer for just under a year, between June 8, 2009 and June 7, 2010. Richardson I Amended Complaint, ¶ 4; Richardson II Complaint, ¶ 3; Amended Complaint, ¶ 2. (i) The Richardson I Action Richardson I began as a case against the Board as sole defendant, asserting a variety of claims including discrimination, whistleblowing, and constitutional violations. Richardson I, ECF No. 1 (filed October 8, 2014). On March 20, 2015, plaintiff amended that complaint to add claims against seven Board employees: Kevin May, a Board employee relations specialist; Billy Sauls, the retired chief of the LEU; Marvin Jones, deputy chief of the LEU; Tyson Coble, retired administrative lieutenant of the LEU; Robert Bakale, a sergeant with the LEU in plaintiff’s chain of command; Larence Dublin, an LEU lieutenant in plaintiff’s chain of command; and Albert Pleasant IV, a former senior special agent with the Board’s Office of Inspector General. Richardson I Amended Complaint, ¶¶ 1(b)-(h). Plaintiff also sued Board Chair Janet L. Yellen in her official capacity. Id., ¶ 1(a). As described by this Court in its decision on the defendants’ motion to dismiss the non- Rehabilitation Act claims in Richardson I, Plaintiff’s claims involved his request for a reasonable accommodation for his asserted disability (asthma and severe allergies) and the Board’s response 2 The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, Pub. L. 107-174, is commonly referred to as the No FEAR Act. 3 Amended Complaint in Richardson I, No. 14cv1673, filed March 20, 2015 (ECF No. 8) (“Richardson I Amended Complaint”); Complaint in Richardson II, No. 16cv00794, filed April 28, 2016 (ECF No. 1) (“Richardson II Complaint”); Amended Complaint in Richardson III, filed August 5, 2016, No. 16cv00867 (ECF No. 20) (“Amended Complaint”). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 5 of 35 - 4 - to that request; the “hostile work environment” and retaliation he purportedly experienced at the Board; the Board’s purported defamation of Plaintiff in connection with his involvement in a cell phone “spoofing” incident;4 the alleged removal of medical documents from plaintiff’s file, allegedly providing a pretext for his termination; the purportedly unlawful access to his cell phone records in the course of the spoofing investigation; and the purported wrongful personal use by defendant Kevin May of certain documents from plaintiff’s EEO and personnel file. See Richardson I, 2016 U.S. Dist. LEXIS 29131, at **2-6. On the basis of these allegations, plaintiff brought wrongful termination and defamation claims, claims under the Privacy Act, and whistleblower retaliation claims. Id. at *12; see also id. at **5, 8-9 and Richardson I Amended Complaint, ¶¶ 1(b)-(g), 21, 23-25, 51-54, 209-212, 218, 235-237, 243 (asserting claims under the Privacy Act, whistleblower retaliation claims, and claims for common law defamation and wrongful termination for alleged removal of medical documentation from plaintiff’s personnel file). In a March 8, 2016 opinion, the Court dismissed all of Plaintiff’s claims against the seven individual Richardson I defendants for failure to state a claim and other grounds, and dismissed all claims against Defendant Yellen in her official capacity except the disability discrimination claim arising under the Rehabilitation Act of 1973 (which the Board did not move to dismiss). Id. **17, 28-29.5 By Order dated May 26, 2016 in Richardson I (ECF No. 39) (“May 26 4 “Spoofing” is the practice of causing a telephone network to indicate to the receiver of a call that the originator is other than the actual call originator. 5 This Court dismissed the common law tort claims against the individual defendants in Richardson I because they were acting within the scope of their employment and therefore any claim would have to be brought against the United States under the FTCA. The claim against Chair Yellen in her official capacity was dismissed for the same reason. Richardson I, 2016 U.S. Dist. LEXIS 29131, at **16-18. The FTCA claim against the United States was dismissed for failure to exhaust administrative remedies and because the FTCA does not waive sovereign immunity for claims of libel or slander. Id. at **20-21. The constitutional tort claims against the Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 6 of 35 - 5 - Order”), the Court granted the individual defendants’ motion to certify the March 8, 2016 opinion and order as immediately appealable under Rule 54(b). Plaintiff filed a notice of appeal on June 3, 2016, and that appeal is pending. Richardson I, ECF No. 41. (ii) The Amended Complaint in This Action (Richardson III) Shortly after dismissal of his Richardson I claims, on May 9, 2016, Plaintiff filed his initial Complaint against the Board in the present case, and his Amended Complaint was docketed on August 4, 2016. See ECF No. 20.6 The Amended Complaint repackages Plaintiff’s dismissed Richardson I claims in an apparent effort to cure the grounds for dismissal. The Board and the United States, rather than the Board’s agency head and employees, are named as defendants, but Plaintiff’s claims involve virtually identical facts and the same de facto defendants. Plaintiff’s Amended Complaint asserts that he “was wrongfully terminated by the Board on June 7, 2010, due to intentional and willful misconduct” by Richardson I defendants - Sauls, Dublin, Bakale, Jones and Coble. Amended Complaint, ¶ 19. Like the Richardson I Amended Complaint, Plaintiff’s Amended Complaint alleges that he “was terminated due to false accusations that [Plaintiff] had failed to provide medical documentation supporting his disability related calloffs.” Compare Amended Complaint, ¶¶ 20, 203-04, with Richardson I Amended Complaint, ¶¶ 1(b)-(g), 21, 23-25, 209-212, 218, 243 (alleging removal of medical individual defendants were dismissed as untimely. Id. at **21-23. The Whistleblower Protection Act claim was dismissed because the Board may not be subject to that statute and, in any event, the claim was untimely, id. at **23-25, as was any claim plaintiff may have brought under 12 U.S.C. § 1831j, id. at *25. Plaintiff’s claim under the Privacy Act was also untimely. Id. at **26-27. His claims against various defendants for allegedly false testimony failed because “witnesses generally enjoy absolute immunity from such claims.” Id. at *28. 6 The Board moved to dismiss the initial Complaint on July 14, 2016 (ECF No. 11). The Court denied that motion without prejudice by Minute Order dated July 25, 2016, and directed the defendants to respond to the Amended Complaint by August 29, 2016, by Minute Order dated August 5, 2016. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 7 of 35 - 6 - documentation supporting Plaintiff’s disability claims from his personnel file). The Amended Complaint asserts FTCA, FOIA, Privacy Act, Fourth Amendment, Fifth Amendment, and FIRREA whistleblower claims against the Board with regard to medical documentation allegedly removed from Plaintiff’s personnel file by the individual Richardson I defendants. See, e.g., Amended Complaint, ¶ 26 (“Jones, Sauls, Coble, Dublin, Bakale, and May, conspired with one another to remove numerous medical documents from Plaintiff’s personnel file to promote an adverse action against him”); ¶ 28 (“Bakale confronted and falsely accused Plaintiff of failing to provide supporting medical documentation for several of his disability related calloffs”); ¶ 31 (“Plaintiff alleges he was threatened by Coble and Bakale with disciplinary action and termination due to the missing medical documents”); ¶¶ 31-50, 203 (additional allegations regarding allegedly missing medical documentation); ¶ 186-94 (due process claim for wrongful termination). Like Richardson I, the Amended Complaint contains assertions relating to spoofing, vehicular vandalism and unauthorized access to plaintiff’s cellular records. Compare Amended Complaint, ¶ 58 (“[o]n July 1, 2014, Plaintiff [discovered] that in 2010 and 2011, Sauls and … Pleasant … had initiated a fictitious spoofing investigation against Plaintiff alleging that he was involved in a falsified spoofing scandal”); see also id., ¶¶ 59-64, 217-21 (additional allegations relating to spoofing and cellular records); ¶ 176 (“Sauls and Pleasant had accused Plaintiff of vandalizing the vehicles of several Board employees”), with Richardson I Amended Complaint, ¶¶ 1(h), 47, 48, 151, 152, 224-33 (allegations relating to telephone spoofing and vehicular vandalism). As also asserted in Richardson I, the Amended Complaint claims that “[o]n January 15, 2015, Plaintiff [discovered] that Kevin May, by choice, selected various confidential documents Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 8 of 35 - 7 - from Plaintiff’s personnel file; removed those documents from Board property, and; converted them to his personal use by sending them to … [the Attorney Grievance Commission of Maryland (MAGC)] on January 11, 2015.” Amended Complaint, ¶ 65; see also id., ¶¶ 66-73 (allegations regarding May’s alleged removal and transmittal of documents to MAGC); compare with Richardson I Amended Complaint, ¶¶ 1(b), 51-54, 235-37 (similar allegations). The Amended Complaint contains allegations regarding allegedly false testimony by the seven defendants that mimic those of Richardson I, compare Amended Complaint, ¶¶ 49, 54, 76, 114-21, with Richardson I, 2016 U.S. Dist. LEXIS 29131, at *6 (“Mr. Richardson alleges a host of ‘fabricated evidence’ and ‘perjurious testimony’ by numerous individual Defendants and third parties”) (citing Richardson I Amended Complaint, ¶¶ 55-144), and allegations regarding a “mass email” of plaintiff’s medical information allegedly sent by Board LEU officer James McCoy. Compare Amended Complaint, ¶¶ 147-153 (asserting FOIA, Privacy Act and FIRREA whistleblower claims related to alleged “mass email”), with Richardson I Amended Complaint, ¶ 108 (McCoy “claims that he did not send or have any involvement in sending a mass e-mail to unauthorized Board personnel, containing my medical information”). Both complaints contain allegations regarding an allegedly false and unsigned suspension notice dated May 20, 2010, placed in the report of investigation generated as part of Plaintiff’s administrative EEO complaint (ROI) by Richardson I defendant Jones. Compare Amended Complaint, ¶¶ 155-164, with Richardson I Amended Complaint, ¶¶ 58, 119-123, 207-209, 44. The Amended Complaint seeks injunctive, declaratory and monetary relief against the Board primarily under the Privacy Act, FOIA, Administrative Procedure Act, FIRREA whistleblower provisions, the Due Process Clause of the Fifth Amendment, and the Fourth Amendment, based on these factual allegations. See Amended Complaint, ¶¶ 133, 145, 153, 164, Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 9 of 35 - 8 - 172, 184, 194, 201. It also seeks monetary and injunctive relief against the United States under the FTCA. Id., ¶¶ 214, 225, 233. Plaintiff demands a jury trial and seeks actual and punitive damages, injunctive relief, expungement of records, costs and attorney’s fees, and referrals of Board employees for criminal prosecution. Id. at 33-34, Prayer for Relief. The FTCA counts should be dismissed for failure to exhaust. The remaining counts should be dismissed on res judicata and claim splitting grounds or, in the alternative, for failure to state a claim or lack of subject matter jurisdiction. ARGUMENT I. STANDARD OF REVIEW A. Rule 12(b)(6) The Federal Rules require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A motion to dismiss under Rule 12(b)(6) “challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim.” Ponder v. Chase Home Fin., LLC, 666 F. Supp. 2d 45, 47 (D.D.C. 2009) (Collyer, J.). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 10 of 35 - 9 - elements of a cause of action, supported by mere conclusory statements,” are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A claim that is barred by res judicata is subject to dismissal under Rule 12(b)(6). Alford v. Providence Hosp., 60 F. Supp. 3d 118, 123 (D.D.C. 2014) (citing cases); Hemphill v. Kimberly-Clark Corp., 530 F. Supp. 2d 108, 111 (D.D.C. 2008). When ruling on such a motion, “a court may take judicial notice of its own record, public records from other proceedings, and documents attached as exhibits or incorporated by reference in the complaint, including administrative complaints and orders.” Alford, 60 F. Supp. 3d at 123 (citations omitted). B. Rule 12(b)(1) Under Rule 12(b)(1), “the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.” Lindsey v. United States, 448 F. Supp. 2d 37, 42 (D.D.C. 2006) (citing, among other authorities, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “‘The court, in turn, has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.’” Lindsey, 448 F. Supp. 2d at 42-43 (quoting Abu Ali v. Gonzales, 387 F. Supp. 2d 16, 17 (D.D.C. 2005)). Because subject matter jurisdiction focuses on the Court’s power to hear a claim, the Court must give the plaintiff’s factual allegations closer scrutiny under Rule 12(b)(1) than would be required for a 12(b)(6) motion. Food and Water Watch, 2013 U.S. Dist. LEXIS 174430, at *17. II. THE COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S FTCA CLAIMS BECAUSE PLAINTIFF FAILED TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE COMMENCING THIS ACTION The Court lacks subject matter jurisdiction over plaintiff’s FTCA claims, Counts Nine through Eleven, because plaintiff had not exhausted his remedies as of the time he initiated this action by filing the original Complaint. As noted by this Court in Richardson I, “[t]he United Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 11 of 35 - 10 - States’ waiver of sovereign immunity in the FTCA is limited in several respects. First and foremost, it requires a putative plaintiff to exhaust all administrative remedies before filing suit in court.” 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(a).” Richardson I, 2016 U.S. Dist. LEXIS 29131, at **19-20. Exhaustion requires not just presentation of a claim to the agency, but denial of the claim by the agency (or the passage of six months after presentation of the claim). 28 U.S.C. § 2675(a); Young v. Fed. Bureau of Prisons, 516 Fed. Appx. 4, 4 (D.C. Cir. 2013) (affirming dismissal of FTCA suit filed after presenting the claim to the agency but before denial of the claim or the passage of six months). As a limitation on the United States’ waiver of sovereign immunity from tort suits, the exhaustion provision is strictly construed in favor of the United States. See Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (“[T]his Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.”) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)). A “[f]ailure to exhaust requires dismissal for lack of subject matter jurisdiction.” Epps v. U.S. Atty. Gen., 575 F. Supp. 2d 232, 238 (D.D.C. 2008) (Collyer, J.). The Court lacks jurisdiction over the FTCA claims because this action, filed on May 9, 2016, was instituted before plaintiff exhausted his remedies.7 Plaintiff acknowledges that although he submitted an FTCA administrative claim to the Board on March 16, 2016, this claim was not denied until June 29, 2016, Amended Complaint, ¶ 13, which was 51 days after he instituted this action. Although Plaintiff amended his Complaint after denial of the claim, this Court has repeatedly held that the failure to exhaust prior to initiating suit under the FTCA “cannot be cured by the filing of an amended complaint.” Rashad v. D.C. Cent. Det. Facility, 7Although Count Ten predicates FTCA liability on a purported violation of the Electronic Communications Privacy Act (“ECPA”), ECPA itself incorporates the FTCA’s exhaustion requirements. See 18 U.S.C. § 2712(b)(1). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 12 of 35 - 11 - 570 F. Supp. 2d 20, 24 (2008) (Collyer, J.); Schneider v. Kissinger, 310 F. Supp. 2d 251, 269- 70 (D.D.C. 2004) (Collyer, J.), aff’d on other grounds, 412 F.3d 190 (D.C. Cir. 2005); see also Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (“Allowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system”). Accordingly, Counts Nine through Eleven of the Amended Complaint must be dismissed for lack of subject matter jurisdiction to the extent they seek relief under the FTCA. 8 III. PLAINTIFF’S REMAINING CLAIMS ARE BARRED UNDER THE DOCTRINE OF RES JUDICATA AND THE PROHIBITION AGAINST CLAIM SPLITTING Plaintiff’s remaining claims in Richardson III arise from the same operative facts as Richardson I, and are barred under the doctrine of res judicata and its corollary, the prohibition against claim splitting. These claims must therefore be dismissed under Rule 12(b)(6) for failure to state a claim. Alford, 60 F. Supp. 3d at 123. Under the doctrine of res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that 8 The Supreme Court’s decision in United States v. Wong, 135 S.Ct. 1625, 1633 (2015), does not change this result. The FTCA has two separate procedural requirements - administrative exhaustion and a statute of limitations. The statute of limitations provision, found at 28 U.S.C. § 2401(b), provides that a claim must be presented to an agency “within two years” of its occurrence and then brought to federal court “within six months” of the agency’s determination. The Supreme Court ruled in Wong that the time periods in that section are not jurisdictional, because section 2401(b) “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” 135 S.Ct at 1632. The Wong Court did not, however, address the separate administrative exhaustion requirement found in 28 U.S.C. § 2675(a), which is at issue in this case. Section 2675(a) clearly does “speak in jurisdictional terms,” providing that an FTCA action “shall not be instituted ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency ....” The administrative exhaustion provision of the FTCA therefore remains a jurisdictional prerequisite to bringing suit. Rosario v. Brennan, C.N. 3:15cv1440, 2016 WL 3525340 at *5-6 (D. Conn. June 22, 2016) (citing cases). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 13 of 35 - 12 - action.” Allen v. McCurry, 449 U.S. 90, 94 (1980); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979) (“[i]t is well-established that “a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action”). Res judicata serves “the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane, 439 U.S. at 326; see also Allen, 449 U.S. at 94 (“res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication”); Montana v. United States, 440 U.S. 147, 153-54 (1979) (same). As the D.C. Circuit observed, “‘[c]ourts today are having difficulty giving a litigant one day in court. To allow that litigant a second day is a luxury that cannot be afforded.’” Stanton v. D.C. Court of Appeals, 127 F.3d 72, 77 (D.C. Cir. 1997) (quoting Nat’l Treas. Emps. Union v. I.R.S., 765 F.2d 1174, 1177 (D.C. Cir. 1985) (quoting C. Wright, Law of Federal Courts 678 (4th ed. 1983))). Res judicata is generally understood as encompassing two aspects: issue preclusion and claim preclusion. Alford, 60 F. Supp. 3d at 124. Claim preclusion “‘forecloses all that which might have been litigated previously,’” and “‘embodies the principle that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not to have another chance to do so.’” Id. (citations omitted). In the D.C. Circuit, claim preclusion bars a subsequent lawsuit “if there has been prior litigation: (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.’” Porter v. Shah, 606 F.3d 809, 813-14 (D.C. Cir. 2010) (quoting Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 14 of 35 - 13 - 569 F.3d 485, 490 (D.C. Cir. 2009) (quoting Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006))). Here, all of the elements of claim preclusion are met. First, Richardson I and Richardson III involve the same claims or causes of action. “Whether two cases implicate the same cause of action turns on whether they share the same nucleus of facts.” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (internal quotation omitted). “‘[I]t is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory on which a litigant relies.’” Capitol Hill Grp., 569 F.3d at 490 (quoting district court opinion) (other internal citations omitted). “‘In pursuing this inquiry, the court will consider ‘whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit ….’” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (internal citations omitted). Richardson I and Richardson III share the same nucleus of facts relating to Plaintiff’s provisional employment with the Board’s LEU and his June 7, 2010 dismissal. As described in detail, supra, pp. 3-8 both Complaints involve Plaintiff’s employment at the Board and his termination in June 2010. Both revolve around the alleged removal of medical documentation from plaintiff’s personnel file, Mr. May’s alleged January 2015 removal and transmission of documents to the MAGC, the alleged spoofing and vehicular vandalism investigations, accessing of Plaintiff’s cellular records, allegations of falsified and perjurious testimony in plaintiff’s EEO proceedings, and a “mass email” and alleged falsified suspension notice relating to Plaintiff. Both Complaints are centered on the alleged actions of the seven individual Board employees dismissed as defendants in Richardson I. Id. Indeed, the individual defendants of Richardson I are the primary actors in Richardson III. Id. In Richardson III, the plaintiff has simply converted his claims against the individuals (as well as against Chair Yellen in her official capacity, which Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 15 of 35 - 14 - are the functional equivalent of claims against the Board)9 to claims against the Board and the United States, and applied new legal theories. Plaintiff’s claims are related in time, space and origin and are identical in most respects. As described in detail below, plaintiff could have raised those claims in his first lawsuit. Thus, the Complaint in Richardson III alleges “no new facts,” but “is simply raising a new legal theory … [which] is precisely what is barred by res judicata.” Apotex, 393 F.3d at 218.10 Second, Richardson I and Richardson III involve the same parties or their privies. A government agency and its employees acting in their official capacity are in privity for purposes of res judicata. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940); Thurston v. United States, 810 F.2d 438, 444-45 (4th Cir. 1987) (res judicata barred a subsequent claim against agency employees in their official capacity based on a prior suit on the same claim against the agency); Polsby v. Thompson, 201 F. Supp. 2d 45, 49-50 (D.D.C. 2002) (dismissing subsequent official capacity claim against agency head based on previous claim on same cause of action against the agency). Similarly, the United States is in privity with the Board and its officers. See Sczygelski v. United States Office of Special Counsel, 926 F. Supp. 2d 238, 244 (D.D.C. 2013) (“[T]he government, its officers, and its agencies are regarded as being in privity for claim-preclusive purposes.”) (Collyer, J.) (internal citations and quotation marks omitted). Here, Richardson was the plaintiff in both lawsuits. The seven Board employees and Chair 9 Richardson I, 2016 U.S. Dist. LEXIS 29131, at *14 n. 6 (holding that Plaintiff’s suit against Chair Yellen in her official capacity “is the functional equivalent of suing the agency itself”). 10 Plaintiff’s assertions regarding his appeal of his dismissal and the outcome of that appeal which form the basis of his due process claim, see Amended Complaint ¶¶ 106-112, were not included in his complaint in Richardson I. These allegations are not, however, “based on facts not yet in existence at the time of the original action.” Drake, 291 F.3d at 66. Rather, they form part of the nucleus of facts relating to plaintiff’s termination - the very same issue addressed throughout the complaints in Richardson I and the instant case. The due process claim therefore could have been brought in the prior case, is likewise barred by res judicata. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 16 of 35 - 15 - Yellen in her official capacity were the defendants in Richardson I, while the Board and the United States are the defendants in Richardson III. Because the Board and the United States are in privity with the Board’s employees acting in their official capacity,11 the Court’s dismissal of all of the Richardson I claims except the Rehabilitation Act claims against Chair Yellen bars Plaintiff’s subsequent lawsuit against the Board and the United States based on the same cause of action. The third and fourth elements of res judicata are also met, as a court of competent jurisdiction entered a final judgment on the merits. Here, the Court granted defendants’ Rule 54(b) motion and, on May 26, 2016, entered a final judgment on the merits of Plaintiff’s claims against the individual Richardson I defendants. See, supra, pp. 2-7. In the May 26 Order, the Court held “[t]he effect of certification is that final judgment enters immediately, and the opposing party must file a timely appeal if he wants to obtain review in the Court of Appeals.” Id. The fact that Plaintiff’s appeal is pending in Richardson I does not diminish the res judicata effect of the judgment.12 See 18A Charles Alan Wright, Arthur R. Miller & Edward 11 In dismissing plaintiff’s claims against the individual Richardson I defendants, the Court held, “[b]ecause [plaintiff] does not state whether his claims run against the Agency or the seven individual [d]efendants, the Court will assume that Mr. Richardson advances all five claims against all eight [d]efendants.” Richardson I, 2016 U.S. Dist. LEXIS 29131, at *14. The Court also held that the Attorney General filed a certification in Richardson I that the individual defendants “‘were acting within the scope of their employment as employees of the United States,’” id. at *17 (quoting 28 U.S.C. § 2679(d)(1) and citing Richardson I ECF No. 17-1 (filed June 29, 2015)), and that the plaintiff had “embrac[ed]” the certification. Id. at *17 n.8. As noted, supra, the Court also held that plaintiff’s suit against Chair Yellen “‘in [her] official capacity’” was the “functional equivalent of suing the agency itself.” Id. at *14 n.6 (quoting Richardson I Amended Complaint, ¶ 1). Thus, the Board and the United States are in privity with the Richardson I defendants. 12 Of course, should the judgment be vacated by the Court or reversed on appeal, “res judicata falters with the judgment.” 18A Wright & Miller 2d ed. § 4427, at 5. However, even if Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 17 of 35 - 16 - Cooper, Federal Practice and Procedure: Jurisdiction § 4427, at 5 (2d ed. 2002) (“[I]t has become clear in the federal courts that res judicata ordinarily attaches to a final lower-court judgment even though an appeal has been taken and remains undecided”); Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 467 (5th Cir. 2013) (“‘[a] case pending appeal is res judicata and entitled to full faith and credit unless and until reversed on appeal’”) (internal citation omitted). Nor does the fact that the Court’s judgment was entered on a motion to dismiss diminish its res judicata effect. See Federated Dep’t Store v. Moitie, 452 U.S. 394, 399 n.3 (1981) (“The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the merits.’”) (quoting Angel v. Bullington, 330 U.S. 183, 190 (1947)); see also Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3rd Cir. 2007) (same); 18A Wright & Miller 2d ed. § 4439, at 194-97 (in light of pleading rules that grant liberal leave to amend, a dismissal on the pleadings is a judgment on the merits for res judicata purposes); Polsby, 201 F. Supp. 2d at 50 (same). Moreover, even though a final judgment on the merits has not been rendered in Richardson I as to the agency, Plaintiff cannot pursue claims against the agency arising from the same nucleus of operative facts in two separate actions. The prohibition against claim splitting, a corollary to the doctrine of res judicata that does not require a final judgment on the merits and serves to ensure fairness to litigants and to protect limited judicial resources, precludes such an approach. Clayton v. District of Columbia, 36 F. Supp. 3d 91, 94-96 (D.D.C. 2014). Claim- splitting occurs when a plaintiff seeks to maintain two actions against the same defendant, on the same subject, in the same court, at the same time. Id. at 94. As the Clayton court explained, “[t]o determine whether a plaintiff is claim-splitting, ‘[t]he proper question is whether, assuming the first suit was already final, the second suit would be precluded under res judicata analysis.’” that were to happen, the claims would be revived in Richardson I and would be subject to the prohibition against claim-splitting in the instant case. See infra pp. 16-17. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 18 of 35 - 17 - Id. at 94 (quoting Katz v. Geraldi, 655 F.3d 1212, 1219 (10th Cir. 2011)). Here, as shown above, the claims against the Board in this case were, or could have been, brought in Richardson I. As in Clayton, the appropriate remedy is dismissal of the second case. 36 F. Supp. 3d. at 96 (citing Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993)). Accordingly, Plaintiff’s remaining claims in Richardson III should be dismissed in their entirety. IV. IN THE ALTERNATIVE, TO THE EXTENT THAT ANY OF PLAINTIFF’S REMAINING CLAIMS SURVIVE RES JUDICATA AND THE PROHIBITION AGAINST CLAIM SPLITTING, PLAINTIFF HAS FAILED TO ESTABLISH JURISDICTION OR STATE A CLAIM FOR RELIEF UNDER THE PRIVACY ACT, FOIA, FIRREA’S WHISTLEBLOWER PROVISION, THE APA, OR THE FOURTH OR FIFTH AMENDMENTS OF THE UNITED STATES CONSTITUTION In the alternative, should the Court find that the doctrine of res judicata and the prohibition against claim splitting do not apply, Plaintiff’s remaining claims in Richardson III should nevertheless be dismissed for lack of subject matter jurisdiction or failure to state a claim. A. Plaintiff has Failed to State a Claim Under the Privacy Act Plaintiff fails to state a cause of action under the Privacy Act because the alleged “mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present and future financial opportunities” allegedly suffered by plaintiff, Amended Complaint, ¶¶ 132, 144, 152, 163, 183, do not constitute “actual damages” as needed to state a claim for monetary relief under section 552a(g)(4)(A) of the Privacy Act, and no other relief is available. The Supreme Court has held that “mental or emotional distress” are not the types of harms for which recovery is available under the Privacy Act. F.A.A. v. Cooper, 132 S. Ct. 1441 (2012). And without such actual damages, even the $1000 statutory damage provision is unavailable. Doe v. Chao, 540 U.S. 614 (2004). As for his claim of lost “present or future financial opportunities,” to the extent Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 19 of 35 - 18 - that issue is raised in connection with the only Privacy Act claim arguably not barred by the statute of limitations (as discussed below), Plaintiff alleges that his employment with the Board was terminated some four and a half years before Kevin May allegedly removed and disseminated documents to the MAGC. Thus, May’s alleged dissemination could not have caused Plaintiff’s termination or the lost opportunities that may have resulted. Palmieri v. United States, 72 F. Supp. 3d 191, 213 (D.D.C. 2014) (Privacy Act complaint dismissed as legally insufficient where plaintiff’s loss of employment allegedly resulted from a lost security clearance, not a Privacy Act violation, and emotional distress arising from gossip “d[id] not constitute actual damages”). Further, Plaintiff cannot obtain declaratory or prospective relief under the Privacy Act. See 5 U.S.C. § 552a(g)(4); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007) (“[O]nly monetary damages, not declaratory or injunctive relief, are available to § 552a(g)(1)(D) plaintiffs.”) (citing Doe v. Stephens, 851 F.2d 1457, 1463 (D.C. Cir. 1988)). Accordingly, Plaintiff’s Privacy Act claims must be dismissed for failure to state a claim. Even if this bar could be overcome, Plaintiff’s claims under the Privacy Act would still be subject to dismissal because they are time-barred under the two-year statute of limitations set forth in 5 U.S.C. § 552a(g)(5).13 Richardson I, 2016 U.S. Dist. LEXIS 29131, at **26-27. 13 In his Prayer for Relief, Plaintiff asks the Court to “[i]nvoke its equitable powers to expunge all records or information maintained by the Board that is inaccurate and/or derogatory to Plaintiff.” However, equitable relief is only available in the absence of an adequate remedy at law. Younger v. Harris, 401 U.S. 37, 43-44 (1971). Here, Plaintiff had an adequate remedy under the Privacy Act, which permits an individual to request that an agency “amend” his records. 5 U.S.C. §§ 552a(d)(3) and (g)(1)(A); see also 12 C.F.R. § 261a.8 (Board regulations governing requests to amend records under the Privacy Act). Plaintiff did not avail himself of these administrative remedies and cannot now ask the Court to invoke equitable powers to grant him relief. Simon v. U.S. Dep’t of Justice, 752 F. Supp. 14, 23 n.6 (D.D.C. 1990) (declining to address issue of expungement where the plaintiff failed to exhaust administrative remedies under the Privacy Act). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 20 of 35 - 19 - Plaintiff’s claims relating to the alleged removal of medical documentation from his personnel file all arose in 2010 or earlier, and are time-barred, as the Court has held. Id. Plaintiff appears to concede that his Privacy Act claims would be time-barred, but asserts that the statute of limitations was tolled pursuant to 5 U.S.C. § 552a(g)(5), alluding to his alleged “June 2014 discovery that a total of 22 medical documents had been removed from his personnel file.” Amended Complaint, ¶ 10. The tolling provision Plaintiff cites, however, is inapplicable here. It tolls the two-year statute of limitations “where an agency has materially and willfully misrepresented information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section.” 5 U.S.C. § 552a(g)(5) (emphasis added). Plaintiff has not identified any information that was required to be provided to him under the Privacy Act, and certainly has not alleged the material and willful misrepresentation of any such information. Moreover, in his Amended Complaint in Richardson I, Plaintiff alleged that “months prior to [his] termination [in June 2010, he] reported to Dublin and Jones that medical documents were being intentionally removed from [his] file,” contradicting any suggestion that Plaintiff first discovered the alleged missing documentation in 2014. Richardson I Amended Complaint, ¶ 29. Plaintiff makes similar allegations in the Amended Complaint. Id., ¶¶ 28-39 (asserting continuing daily harassment of plaintiff due to alleged missing medical documentation between November 2009 and June 7, 2010). Plaintiff therefore cannot assert that his Privacy Act claim was tolled. See Ramirez v. Dep’t of Justice, 594 F. Supp. 2d 58, 63 (D.D.C. 2009) (finding 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”). As a result, Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 21 of 35 - 20 - Plaintiff’s Privacy Act claims against the Board arising from alleged missing medical documentation must be dismissed as time-barred. Plaintiff asserts that his claims with regard to May’s alleged January 2015 removal and transmittal of documents to the MAGC are not barred by the statute of limitations. Amended Complaint, ¶¶ 7, 10. Even if those claims are not time-barred, they must nevertheless be dismissed because they are beyond the scope of the Privacy Act. Three of the eight documents Plaintiff alleges May transmitted to the MAGC were general Board statements of policy or general job descriptions not pertaining to Plaintiff, and two were documents pertaining to May, not the Plaintiff. See Amended Complaint, Exh. D at 6 of 6 (listing attachments to May’s January 11, 2015 letter). These five documents were not “records” about the Plaintiff within a “system of records” under the Privacy Act. See 5 U.S.C. §§ 552a(a)(4) (Privacy Act applies to “records” “about an individual” that “contains his name” or other “identifying particular assigned to the individual” ) and (a)(5) (Privacy Act applies to groups of records from which information is retrieved “by the name of the individual”). For the three remaining documents - Plaintiff’s separation letter, appeal, and an affidavit apparently generated as part of his administrative EEO complaint - the Privacy Act expressly provides an exemption for “routine use” disclosures for purposes the agency may set forth in the Federal Register. 5 U.S.C. §§ 552a(b)(3), (e)(4)(D). The Board has expressly established that “[d]isclosure for enforcement, statutory and regulatory purposes” is a permitted use for the type of employment records plaintiff has identified. 73 Fed. Reg. 24984, 24985-86, 24989, 24991-92 (May 6, 2008). In particular, routine use A, applicable to the Board’s systems of records relating to EEO discrimination complaints, general personnel matters, and adverse action files, provides “[i]nformation may be disclosed to the appropriate federal, state, local, foreign, or self-regulatory Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 22 of 35 - 21 - organization or agency responsible for investigating, prosecuting, enforcing, implementing, issuing, or carrying out a statute, rule, regulation, order, policy, or license if the information may be relevant to a potential violation of civil or criminal law, rule, regulation, order, policy or license.” 73 Fed. Reg. at 24985. Here, as the exhibits to Plaintiff’s Amended Complaint show, May submitted documents to MAGC, a state commission that serves as an investigatory arm of the Maryland courts, in response to a bar investigation initiated by the plaintiff himself arising from May’s alleged “participat[ion] with members of the … LEU to conceal official medical documentation that led to [plaintiff’s] termination’” and May’s alleged “fail[ure] to conduct an investigation into the whereabouts of [these] … documents.’” Amended Complaint, Exh. D; see also In re Zdravkovich, 634 F.3d 574, 578-79 (D.C. Cir. 2011) (describing MAGC as a body appointed by Maryland Court of Appeals to investigate and prosecute allegations of professional misconduct by Maryland attorneys). Plaintiff’s allegation that May removed these documents “for his personal use,” Amended Complaint, ¶ 65, must be rejected because May was acting in his capacity as a Board employee relations specialist during the events giving rise to plaintiff’s claims, e.g., Amended Complaint, ¶¶ 25, 44 and Exh. F, and because United States has certified that May was acting within the scope of his employment. Id. at Exh. H; Richardson I, 2016 U.S. Dist. LEXIS 29131, at *17 and n.8.14 Accordingly, Plaintiff’s Privacy Act claims must be dismissed for failure to state a claim. 14 Moreover, to the extent Plaintiff is attempting to state a Privacy Act claim against May personally, such claims must also be dismissed because May is not a defendant in this case and, in any event, the Privacy Act “creates a cause of action against only federal government agencies and not private corporations or individual officials.” Abdelfattah v. U.S. Dep’t of Homeland Security, 787 F.3d 524, 533 n.4 (D.C. Cir. 2015) (affirming district court’s sua sponte dismissal of Privacy Act claim against agency officials). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 23 of 35 - 22 - B. Plaintiff’s Claims Under the Whistleblower Provision of FIRREA, 12 U.S.C. § 1831j, are Barred by the Applicable Statute of Limitations Like Plaintiff’s Privacy Act claims, Plaintiff’s claims under the whistleblower provision of FIRREA, 12 U.S.C. § 1831j, are barred under the two-year statute of limitations of that provision. 12 U.S.C. § 1831j provides, in pertinent part, “[a]ny employee or former employee who believes he has been discharged or discriminated against in violation of subsection (a) of this section may file a civil action in the appropriate United States district court before the close of the 2-year period beginning on the date of such discharge or discrimination.” Id. Here, as the Court held, the last possible date the Board could have retaliated or discriminated against the Plaintiff was June 7, 2010, the date of his discharge. Richardson I, 2016 U.S. Dist. LEXIS 29131, at *25. Accordingly, Plaintiff’s claims against the Board under FIRREA’s whistleblower provision, filed almost six years after the fact, must be dismissed as time-barred. Plaintiff’s assertion that the alleged whistle-blowing retaliation is a “continuing violation,” e.g. Amended Complaint, ¶ 7, finds no support in his allegations or in the law. Plaintiff was obviously well aware of his termination in June 2010, and if he believed that termination was in retaliation for protected whistleblowing activity, he could have sued within the statutory time period. Given his contemporaneous complaints about removal of medical documents from his file, see, e.g. Amended Complaint ¶ 33, his allegation that he later learned that additional documents were supposedly removed during his Board employment, Amended Complaint ¶¶ 100, 169, does not make the whistleblowing claim a “continuing” one. Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997) (“For statute of limitations purposes, a continuing violation is ‘one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period’”) (quoting Dasgupta v. University of Wisconsin Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 24 of 35 - 23 - Board of Regents, 121 F.3d 1138, 1140 (7th Cir.1997)). And although he claims that Board employee Kevin May provided the MAGC certain information relating to Plaintiff in January 2015, Amended Complaint ¶ 65, 135, Plaintiff does not allege that May’s action was in retaliation for protected whistleblowing activity. Nor could he, as his own exhibits demonstrate that May was responding to a complaint brought before the MAGC by Richardson himself. Amended Complaint, Exhibit D. C. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s FOIA Claims Plaintiff’s claims under FOIA also must be dismissed because Plaintiff does not allege that he filed a FOIA request, nor that the Board improperly withheld agency records. Plaintiff asserts “his personnel file containing medical documents had a right to privacy and [was] protected by the Privacy and Freedom of Information Acts.” Amended Complaint, ¶ 51. He asserts that his “personnel and medical files are 5 U.S.C. § 552(b)(6) exempt and gaining access to and releasing information from these files violated this provision,” id., ¶ 53, and that alleged release of his cell phone records to LEU and non-law enforcement Board personnel “violat[ed] the Freedom of Information Act, 5 U.S.C. § 552(b)(7).” Id., ¶ 62. Counts One, Two, Three and Six of the Amended Complaint assert FOIA violations based on alleged intentional and negligent removal of information from Plaintiff’s personnel file and cell phone records by Board employees. Id., ¶¶ 127-128, 140-141, 152, 183-84. Plaintiff seeks declaratory relief, damages, and attorney’s fees under FOIA. Id., Prayer for Relief. However, nowhere in the Amended Complaint does Plaintiff allege that the Board improperly withheld agency records. Section 552(a)(4)(B) of FOIA vests the district courts with jurisdiction to “enjoin the agency from withholding agency records and to order the production of agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Under Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 25 of 35 - 24 - this provision, federal court “‘jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) agency records.’” U.S. DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 150 (1980)). “Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements.” Id. Here, Plaintiff does not allege that he ever even filed a FOIA request with the Board, much less that the Board improperly withheld requested records. Thus, he fails to allege the required exhaustion of administrative remedies under FOIA, and his FOIA claim is subject to dismissal on that ground as well. See Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003) (vacating and remanding FOIA case to the district court with instructions to dismiss under Rule 12(b)(6) for failure to exhaust administrative remedies). Instead of making an actual FOIA claim, Plaintiff asserts that Board employees improperly accessed his personnel file or cellular records and improperly used or disposed of these records. These are not the subject of FOIA, which is a disclosure statute rather than one concerned with improper use or access. Where the subject of the complaint is not a FOIA request, the FOIA contains no remedy and the Court lacks jurisdiction over the allegations. Pickering-George v. ATF, No. 07-0899(RJL), 2008 U.S. Dist. LEXIS 12938, at *2 (Feb. 22, 2008) (“the subject of the complaint -- a petition to restore gun privileges … is not a FOIA request [and] [t]he Court therefore lacks subject matter jurisdiction under the FOIA”). Indeed, in a factually similar case, a district court dismissed a FOIA claim for lack of subject matter jurisdiction where the Plaintiff did not claim that the agency “improperly withheld agency records,” but rather that “three Secret Service agents improperly accessed her confidential records.” Armstead v. Gray, No. 3-30-cv-1350-M, 2003 WL 21730737, at *1 (N.D. Tex. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 26 of 35 - 25 - July 23, 2003). Similarly, here, Counts One, Two, Three and Six must be dismissed for lack of subject matter jurisdiction insofar as they seek relief under the FOIA. D. Plaintiff Fails to State a Claim under the APA Count Eight of the Amended seeks judicial review under the APA of the Board’s purported failure to comply with the Privacy Act, FOIA, the No FEAR Act, and 12 U.S.C. § 1831j. For the reasons stated supra, pp. 22-23, Plaintiff’s claims concerning section 1831j are generally not actionable. And his claims under the Privacy Act and FOIA, as well as section 1831j, are not subject to review under the APA because each of these statutes provides its own procedures for judicial review. See Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (“Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.”). Further, because the Board is given plenary authority by statute over employment matters, 12 U.S.C. § 244, review of plaintiff’s termination from the Board is unavailable under the APA, 5 U.S.C. § 701(a).15 Plaintiff’s allegations regarding the Board’s purported violation of the No FEAR Act fare no better. Paragraphs 96-100 and 197 of the Amended Complaint assert that the Board failed to provide notification and training required under the No FEAR Act, and Count Eight seeks review under the APA of the Board’s compliance with the No FEAR Act. The Court lacks jurisdiction 15 The Amended Complaint also asserts that the Board “has not disciplined or held accountable any of its current and former employees who participated in the acts against Plaintiff alleged herein.” Amended Complaint, ¶ 199. However, Plaintiff lacks standing to litigate the purported failure to discipline because his complaint does not demonstrate how such discipline would redress any past injury that he has suffered. Cf. L.A. v. Lyons, 461 U.S. 95, 105 (1983); Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Furthermore, an agency’s decision “not to prosecute or enforce” is generally unreviewable because it is committed to agency discretion. Heckler v. Chaney, 470 U.S. 821, 831 (1985). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 27 of 35 - 26 - to grant Plaintiff relief based on this assertion because plaintiff lacks standing to obtain prospective relief.16 Further, Plaintiff fails to state a claim under the Act. The “mere violation of a procedural requirement ... does not permit any and all persons to enforce the requirement.” Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996). Rather, a plaintiff must show that he has “suffered personal and particularized injury” as a result of the purported procedural deficiency. Id. Moreover, where “plaintiffs seek forward-looking injunctive . . . relief, [they] must show that they face an imminent threat of future injury.” Chaplaincy of Full Gospel Churches v. U.S. Navy, 697 F.3d 1171, 1175 (D.C. Cir. 2012) (internal citations and quotation marks omitted); see also Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1152 (D.C. Cir. 2004) (requiring similar showing for declaratory relief). Plaintiff can show no such threat to a concrete interest of his. He is no longer a Board employee, and he is clearly aware now of his rights under 12 U.S.C. § 1831j. Thus, even assuming arguendo that the No FEAR Act requires the Board to notify its employees and former employees of their rights under § 1831j, a declaration to that effect would not affect Plaintiff in any way. Cf. ASPCA v. Feld Entm’t, Inc., 677 F. Supp. 2d. 55, 100 (D.D.C. 2009) (plaintiff lacked informational standing to sue over failure to disclose information pursuant to a statute, when it had received the same information in pretrial discovery), aff’d, 659 F.3d 13 (D.C. Cir. 2011). In any event, Plaintiff fails to state a claim for violation of the No FEAR Act. The Act and its implementing regulations require notice and training on identified “Whistleblower 16 Plaintiff appears to seek only declaratory relief for the asserted violation of the No FEAR Act. To the extent he seeks damages, that claim would fail. Glaude v. United States, 248 Fed. Appx. 175, 177 (Fed. Cir. 2007) (“[The No FEAR] Act does not create a substantive right for which the government must pay damages”); Williams v. Spencer, 883 F. Supp. 2d 165, 182 (D.D.C. 2012) (no private right of action under the No FEAR Act). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 28 of 35 - 27 - Protection Laws,” the list of which does not include 12 U.S.C. § 1831j. See 5 C.F.R. § 724.102 (definition of “Whistleblower Protection Laws” as encompassing certain provisions of 5 U.S.C. § 2302). As Exhibit A to Plaintiff’s Amended Complaint demonstrates, those laws do not apply to the Board. See Carney v. Bd. of Governors of the Fed. Reserve Sys., 64 M.S.P.R. 394, 396, 1994 WL 539299, 1994 MSPB LEXIS 1395, at **4-5 (Sep. 30, 1994) (dismissing Whistleblower Protection Act claim against the Board because “the specific provisions of the Federal Reserve Act regarding the [Board]’s personnel matters govern over the general provisions of the WPA extending whistleblower protection to federal employees”). See also 12 U.S.C. § 244 (Board employees’ “employment . . . shall be governed solely by the provisions of this chapter and rules and regulations of the Board not inconsistent therewith”); id. § 248(l) (making the civil service laws inapplicable to Board employees). E. Plaintiff’s Constitutional Claims are Barred on Sovereign Immunity Grounds and Fail to State a Claim for Relief Various of Plaintiff’s allegations assert constitutional violations by the Board. See, e.g., Amended Complaint ¶¶ 52, 74, 154-158, 193, 210 (assertions of Fourth Amendment and Due Process violations). Insofar as Plaintiff seeks relief directly under the Constitution, his claims fail. Plaintiff cannot pursue a claim for money damages against the United States or its agencies for an alleged violation of a Constitutional right, because there has been no waiver of sovereign immunity for such claims. FDIC v. Meyer, 510 U.S. 471, 478 (a constitutional tort claim is not cognizable under the FTCA); Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005) (sovereign immunity bars Section 1983 claims against a government agency); Kauffman v. Anglo-American Sch. of Sofia, 28 F.3d 1223 (D.C. Cir. 1994); Clark v. Library of Cong., 750 Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 29 of 35 - 28 - F.2d 89, 102-104 (D.C. Cir. 1984) (sovereign immunity acts as a bar to a damages remedy against a federal employee in an official capacity). Moreover, Plaintiff’s claims under the Fourth and Fifth Amendments would fail to state a claim in any event.17 Plaintiff fails to allege a Fourth Amendment violation. He alleges that “his personnel and EEO files are protected by the … Fourth Amendment of the United States Constitution and Plaintiff has a reasonable expectation of privacy to the documents contained in both,” Amended Complaint, ¶ 74, and that his “personnel and medical files were subject to numerous unlawful searches with selected documents from those files being seized by Board personnel who should not have had access to Plaintiff’s files to begin with; therefore, clearly violating Plaintiff’s 4th Amendment rights under the United States Constitution.” Id., ¶ 52. The Fourth Amendment does not protect the Board’s personnel or EEO records relating to the Plaintiff. Rather, it protects the Plaintiff from unreasonable searches of locations in which he has a reasonable expectation of privacy, Stewart v. Evans, 351 F.3d 1239, 1243 (D.C. Cir. 2003), and seizures of his property. Rakas v. Illinois, 439 U.S. 128, 134 (1978) (no Fourth Amendment right is infringed by seizure of another’s property). The records Plaintiff alleges were improperly searched were not the property of the Plaintiff, but of the Board. True, they related to Plaintiff, and may have included some information he provided to the Board, but his rights relating to those personnel records come from a statutory source, the Privacy Act, and not the Fourth Amendment. As such, he did not have a privacy interest in them protected by the Fourth Amendment. See, e.g., Roberts v. Mentzer, 382 Fed. Appx. 158, 165 (3d Cir. 2010) (no 17 In addition to Plaintiff’s Fourth and Fifth Amendment claims, the Amended Complaint contains a vague and unsubstantiated assertion of a First Amendment violation. Amended Complaint, ¶ 7. To the extent this claim is not subject to dismissal on sovereign immunity grounds or lack of standing to seek prospective relief due to the failure to show ongoing or imminent injury, see pp. 25-27, supra, it is too threadbare “‘to give a defendant fair notice of what the … claim is and the grounds upon which it rests,’” and must be dismissed. Richardson I, 2016 U.S. Dist. LEXIS 29131 at *14 (quoting Twombly, 550 U.S. at 555). Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 30 of 35 - 29 - “case law indicat[es] that employees have a privacy interest in the personnel files maintained by their employers.”); United States v. Honolulu, Misc. No. 84-39, 1984 WL 21837, at *3-*4, 1984 U.S. Dist. LEXIS 17660, at **8-9 (D. Haw. Apr. 12, 1984) (city employee “has no Fourth Amendment interest in the City’s personnel records”); see also United States v. Miller, 425 U.S. 435, 441 (1976) (no reasonable expectation of privacy by customer in records at his bank because he could “assert neither ownership nor possession” of these account records).18 Nor does Plaintiff state a claim for violation of due process. He contends that denial of his internal appeal of his termination violated his due process rights because the final decision on his appeal allegedly provided a different basis for his termination (“tardies”) than did the initial decision, which he alleges was based on failure to provide medical documentation for absences. Amended Complaint, ¶¶ 20-22, 106-109, 210. He surmises that the Board “[c]learly . . . waited to review any evidence in plaintiff’s possession that directly refuted the allegations as why [sic] he was terminated . . . before falsifying new allegations subsequent to plaintiff’s June 7, 2010 termination,” as part of a “retaliatory scheme for his several reasonable accommodation requests and his post termination engagement in protected activity.” Id., ¶¶ 110-11; see also id., ¶¶ 186- 89, 193, 209 (similar allegations). These allegations fail to state a claim for three alternate reasons. First, the contentions that the basis for his termination was changed in retaliation for reasonable accommodation requests and “engagement in protected activity” make them non-actionable under the Due Process clause, because the more specific remedial scheme of the Rehabilitation Act provides an exclusive remedy. Cf. Welsh v. Hagler, 83 F. Supp. 3d 212, 222 (D.D.C. 2015) (collecting cases), cited by Richardson I, 2016 U.S. Dist. LEXIS 29131, at *7-*8; see also Shirey v. Devine, 18 To the extent Plaintiff is attempting to state a Fourth Amendment claim for May’s alleged access to Plaintiff’s personnel and EEO file, see Amended Complaint, ¶ 74, that claim must fail for the same reason. These files belonged to the Board, not to the Plaintiff. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 31 of 35 - 30 - 670 F.2d 1188, 1191 n.7 (D.C. Cir. 1982) (“We note . . . that incorporation of § 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976), into the Rehabilitation Act provides a strong argument that statutory remedies are exclusive in this field.”) (citing Brown v. GSA, 425 U.S. 820 (1976)). Even apart from this, Plaintiff was not entitled to due process protections in connection with his termination. He does not identify a contractual or other entitlement to continued employment, and he had no statutory right to it, see 12 U.S.C. § 244 (giving the Board power over employment without limiting such discretion in any manner). He thus lacked a property interest in retaining his job that would have implicated due process protections. Bishop v. Wood, 426 U.S. 341, 348 (1976).19 Finally, assuming, arguendo, that plaintiff had an interest in his job protected under the Due Process Clause, his appeal - and the decision on that appeal - demonstrate that he was given appropriate process. By his admission, he was provided the reasons for his termination and an opportunity to appeal to a higher official. See Amended Complaint, ¶¶ 106, 108. Due process does not require more. See, e.g., Harrison v. Bowen, 815 F.2d 1505, 1519 (D.C. Cir. 1987); Swann v. Office of the Architect of the Capitol, No. 13-1076, 2016 WL 2733099, at *8 (D.D.C., May 16, 2016) Plaintiff’s internal appeal shows that he was aware of the accusations that he was 19 Neither of the two “limited circumstances” in which an at-will employee may claim a due process right applies here. See McCormick v. District of Columbia, 752 F.3d 980, 987 (D.C. Cir. 2014). Plaintiff does not allege that the Board disseminated defamatory reasons at the time it terminated him, or that the stigma resulting from his termination forecloses his freedom to take advantage of other employment opportunities. Id. at 987-88 (citing Board of Regents v. Roth, 408 U.S. 564 (1972) and O’Donnell v. Barry, 148 F.3d 1126, 1133 (D.C. Cir. 1998)). In any event, even assuming arguendo that he had alleged a due process right under either of these theories, the process he was due - notice of the charges against him and an opportunity to refute them - was provided by the Board’s appeal process here as demonstrated by the exhibits hereto. McCormick, 752 F.3d at 989; Exhibit 1; Exhibit 2. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 32 of 35 - 31 - tardy and in fact attempted to rebut them in his appeal. See, e.g., Exhibit 1 hereto,20 Plaintiff’s “Response to Allegations of Misconduct,” at 000041 (“According to the termination letter it’s stated that Richardson was late without approval on several occasions. . . . Richardson has only been late due to accidents on I-95.”). And the Ombudsman’s ruling specifically addressed these contentions. Exhibit 2 hereto at 000126 (Board’s decision on appeal). Plaintiff was thus afforded due process.21 20 The Amended Complaint references both Plaintiff’s appeal and the ruling thereon. E.g., Amended Complaint, ¶¶ 21 (referencing the final decision after appeal), 108 (referencing appeal). Consequently, the Court may consider these documents in adjudicating this motion without converting it into a motion for summary judgment. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). 21 These documents also refute Plaintiff’s factual contentions. Although Plaintiff alleges that he was “terminated due to false accusations that he had failed to provide medical documentation supporting his disability related calloffs,” Amended Complaint, ¶ 20, and that this was revised upon his appeal such that he was “not terminated for calloffs, but for tardies,” id., ¶ 21, in fact Plaintiff’s appeal and the decision on appeal reveal that Plaintiff was terminated because of negative information received in his background investigation, on-the-job conduct including violations of general orders, and tardiness. See Exhibit 1 and Exhibit 2 hereto. There is no indication that his termination was ever predicated on allegations that he failed to provide medical documentation for calloffs. Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 33 of 35 - 32 - CONCLUSION For the foregoing reasons, the Court should dismiss the FTCA counts for failure to exhaust, and dismiss the remaining counts in the Amended Complaint on res judicata and claim splitting grounds or, in the alternative, for lack of subject matter jurisdiction and failure to state a claim. Respectfully submitted, CHANNING D. PHILLIPS DC Bar # 415793 United States Attorney for the District of Columbia Of Counsel: KATHERINE H. WHEATLEY DANIEL F. VAN HORN DC Bar #359037 DC Bar #924092 Associate General Counsel Chief, Civil Division YVONNE F. MIZUSAWA By: /s/ DC Bar #416459 W. MARK NEBEKER Senior Counsel DC Bar # 396739 YONATAN GELBLUM Assistant United States Attorney Counsel Judiciary Center Building Board of Governors of the Federal 555 Fourth Street, N.W. Reserve System Washington, D.C. 20530 20th and C Streets, N.W. (202) 252-2536 Washington D.C. 20551 mark.nebeker@usdoj.gov (202) 452-3436 Fax (202) 736-5615 Attorneys for Defendants Board of Governors of the Federal Reserve System and the United States of America Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 34 of 35 CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing Defendants’ Joint Motion To Dismiss Plaintiff’s Amended Complaint For Failure To State A Claim And Lack Of Subject Matter Jurisdiction, supporting memorandum, and a proposed Order has been made by e-mail as well as by mailing copies to: EDWARD RICHARDSON 393 Malvern Lakes Circle, Apt. 101 Fredericksburg, VA 22406 edwardrichardson27@yahoo.com on this 29th day of August, 2016. /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney 555 4th Street, N.W. Washington, DC 20530 (202) 252-2536 mark.nebeker@usdoj.gov Case 1:16-cv-00867-RMC Document 22 Filed 08/29/16 Page 35 of 35 Response to allegations of misconduct: EXHIBIT 2 _ RESPONSE TO ALLECAT10NS OF MISCONDUCl Tab " pg 。′ノ Of pgs//D Prince William County Poliie Department: Richardson rcsigned due to racial discrimination within the department. Richardson was never told by arry Department supervisor that he would he terminated at any point. On January 22,2009, after Richardson subrnitted his resignation, Prince William County investigators sto,le a 2009 Presidential Inauguration Badge and a Ruger P90 .45 caliber semiautomatic pistol from Richardson's residence. lllichardson observed Det Fernald take his personal property with no explanation given, Richardson was also held against his will at the Chief's office and was forced to sign a consent to searclr form after submission of his resignation. Nothing ill<:gal was found inside of Richardson's residerrcc. Violations oll the Fourth and Fifth Amendments of the United States Constitution. Was this information included in the Background Investigation? lt was found out by other supervisors that Richardson overheard a lieutenant making reference to Black people as being "niggers" and Hispanics as being "spics". Wasr this included in the background investigation? Richardson was denied every school that he applied flor and white officers were sent instead. Richardson was not given any explanation. Was this in the background investigatio,rr? The stated General Orders were not violated. Richardson was chol