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,

(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.,

(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,

. 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,

.

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),

, 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,

, 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,

(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.,

(D.C. Cir. 2009). The Court should reconsider

interlocutory orders only “as justice requires.” United States v. Slough,

(D.D.C. 2014) (quoting United States v. Coughlin,

(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,

(quoting Singh v. George Washington Univ.,

(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,

. 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.

; 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,

.

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.”

(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,

(D.D.C. 2016) (citing Cooper,

). 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,

(“[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,

(D.C. Cir. 2002) (discussing “special damages” under Rule 9(g) in a

non-Privacy Act context) (internal citations omitted); see also Welborn,

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,

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

12