UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MURIEL MCKOY, Plaintiff v. Civil Action No. 16-1313 (CKK) HONORABLE RICHARD V. SPENCER, Defendant

MEMORANDUM OPINION (January 31, 2019)

This suit arises from Plaintiff Muriel McKoy’s discharge from her employment as a

dentist with the Navy. Plaintiff claims that Defendant violated her constitutional rights to free

speech and due process under the First and Fifth Amendments to the United States Constitution,

as well as the Privacy Act. Before the Court is Defendant’s Motion for Partial Dismissal of the

Complaint and for Partial Summary Judgment. Defendant argues that Plaintiff’s Privacy Act

claim should be dismissed for failure to exhaust and that Plaintiff’s requests to be reinstated to

the Navy and to enjoin Defendant from violating the constitutional rights of third parties who

report discrimination should be dismissed for lack of standing. Additionally, Defendant asks the

Court to grant summary judgment on Plaintiff’s Fifth Amendment due process claim based on a

failure to allege a constitutionally protected interest.

Upon consideration of the pleadings,1 the relevant legal authorities, and the applicable

record, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion. The Court

1 The Court’s consideration has focused on the following documents: • Def.’s Opp’n to Pl.’s Mot. for Leave to Conduct Discovery and Mot. for Partial Dismissal of the Compl. and for Partial Sum. Judg. (“Def.’s Mot.”), ECF No. 35; • Pl.’s Mem. Of Points and Authorities in Opp’n to Def.’s Mot. for Partial Dismissal of the Compl. and for Partial Sum. Judg. (“Pl.’s Opp’n”), ECF No. 40; and

1 GRANTS Defendant’s motion and DISMISSES Plaintiff’s Privacy Act claim insofar as it is

based on Defendant’s failure to amend personnel records as Plaintiff failed to exhaust this claim.

The Court also DISMISSES Plaintiff’s request that the Court enjoin Defendant from retaliating

against third parties who report discrimination as Plaintiff does not have standing to request

relief for third parties. Finally, the Court DISMISSES Plaintiff’s Fifth Amendment due process

claim alleging infringement of Plaintiff’s interest in a clean record with the National Practitioner

Data Bank and the New York licensing authorities as Plaintiff has not alleged a constitutionally

protected interest. Defendant’s motion is otherwise DENIED.

Also before the Court is Plaintiff’s Motion for Leave to Conduct Discovery. This motion

was made in response to the Court’s May 23, 2018 Order that Plaintiff file a motion explaining

why, as a legal matter given the claims in this case, she is entitled to discovery. See ECF No. 33.

Defendant contends that Plaintiff is not entitled to discovery and that the Court should instead

restrict itself to review of the administrative record.

Upon consideration of the pleadings,2 the relevant legal authorities, and the applicable

record, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s Motion. The Court

DENIES Plaintiff’s motion and concludes that Plaintiff is not entitled to discovery on her Fifth

• Def.’s Reply in Support of Mot. for Partial Dismissal of the Compl. and for Partial Sum. Judg. (“Def.’s Reply”), ECF No. 41. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 The Court’s consideration has focused on the following documents: • Mot. for Leave to Conduct Discovery in Response to the Court’s May 23, 2018 Order (“Pl.’s Mot.”), ECF No. 34; • Def.’s Opp’n to Pl.’s Mot. for Leave to Conduct Discovery and Mot. for Partial Dismissal of the Compl. and for Partial Sum. Judg. (“Def.’s Mot.”), ECF No. 35; and • Reply in Support of Mot. for Leave to Conduct Discovery in Response to the Court’s May 23, 2018 Order (“Pl.’s Reply”), ECF No. 39.

2 Amendment due process claim alleging an interest in the continued practice of dentistry with the

Navy. This claim requires the Court to evaluate an agency action made on the administrative

record; so, the Court will restrict its review to the administrative record. But, Plaintiff’s motion is

GRANTED as to the remainder of her claims as discovery on those claims is permissible.

I. BACKGROUND

Defendant previously filed a Motion to Dismiss or, in the Alternative, for Summary

Judgment. See ECF No. 8. And in the Court’s Memorandum Opinion granting in part and

denying in part Defendant’s motion, the Court set out the factual background of this case. See

ECF No. 16; see also McKoy v. Spencer,

(D.D.C. 2017). The Court

incorporates its previous background section as part of this opinion. The Court recites here only

the background essential to the Court’s resolution of the currently pending motions. The Court

reserves further presentation of the facts for the issues discussed below.

Plaintiff Muriel McKoy is an African American female who was previously employed by

the Navy as a dentist. Compl., ECF No. 1, ¶¶ 4, 7. Based on the results of an evaluation of

Plaintiff’s work, Plaintiff’s clinical dentistry privileges were held in abeyance and then

suspended. Id. at ¶¶ 14-15. Further proceedings and appeals led to Plaintiff being prohibited

from practicing dentistry in the Navy. Id. at ¶ 17. She was eventually separated and discharged

from the Navy. Id. at ¶ 25.

Subsequently, Plaintiff filed this lawsuit alleging that the manner in which the Navy

suspended and then discharged her violated her rights under the First and Fifth Amendments to

the United States Constitution. Id. at ¶¶ 28-36. Plaintiff further alleges that the Navy violated the

Privacy Act by refusing to amend certain personnel records and by disclosing Plaintiff’s

personnel records to various third parties. Id. at ¶¶ 37-40. Plaintiff seeks an injunction, a

3 declaratory judgment, reinstatement with removal of adverse personnel actions, rescission of

Defendant’s various statements to third parties relating to Plaintiff’s separation, cessation of

Defendant’s efforts to recoup the incentive pay and bonus pay Plaintiff had received while

employed by the Navy, as well as damages, fees, costs and expenses. Id. at ¶¶ A-F.

In lieu of filing an answer to Plaintiff’s complaint, Defendant filed a Motion to Dismiss

or, in the Alternative, for Summary Judgment. See ECF No. 8. In response, the Court dismissed

Plaintiff’s claim for money damages under the First and Fifth Amendments but denied

Defendant’s motion in all other respects. See generally Sept. 21, 2017 Order, ECF No. 15.

Following the Court’s Order, Defendant filed its Answer to Plaintiff’s Complaint. See ECF No.

17. Thereafter, the parties disputed whether or not Defendant had provided the complete

administrative record. In response, Plaintiff filed a Motion to compel Defendant to supplement

the administrative record, which Defendant opposed. See generally Pl.’s Mot. to Compel

Submission of Complete Administrative Record in Response to Court’s Nov. 29, 2017 Order,

ECF No. 22, and Def.’s Opp’n to Pl.’s Mot. to Compel, ECF No. 25. Considering both parties’

arguments, the Court denied Plaintiff’s motion without prejudice. See May 23, 2018 Order, ECF

No. 33. The Court explained that Plaintiff’s motion failed to address whether she was legally

entitled to discovery on her claims or whether she was bound by the administrative record. Id.

In response to the Court’s Order, Plaintiff filed a Motion for Leave to Conduct Discovery.

See Pl.’s Mot., ECF No. 34. Defendant responded by opposing Plaintiff’s motion for discovery

and also by filing a motion to dismiss and a motion for summary judgment. See Def.’s Mot.,

ECF No. 35. Both Plaintiff’s and Defendant’s motions are currently before the Court.

4 II. LEGAL STANDARDS

Defendant moves to dismiss Plaintiff’s Privacy Act claim, her request for reinstatement to

the Navy, and her request to enjoin the Navy from retaliating against third parties who report

discrimination. Defendant also moves for summary judgment on Plaintiff’s Fifth Amendment

due process claim. However, in requesting summary judgment on Plaintiff’s due process claim,

Defendant makes a purely legal argument. Specifically, Defendant contends that Plaintiff has

failed to allege a constitutionally protected interest. As the Court can resolve this legal issue by

relying on only Plaintiff’s Complaint, Defendant’s motion is more properly treated as a motion

to dismiss. Accordingly, the Court will treat it as such.

A. Subject Matter Jurisdiction under Rule 12(b)(1) Defendant requests dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of

jurisdiction. This is the correct standard for the dismissal of Plaintiff’s Privacy Act claims.

Defendant contends that Plaintiff failed to exhaust her Privacy Act claims, and exhaustion under

the Privacy Act is a jurisdictional requirement. See Stein v. U.S. Sec. and Exch. Comm’n,

(D.D.C. 2017) (finding the court did not have jurisdiction over the

plaintiff’s Privacy Act claim that he had failed to exhaust); see also Barouch v. U.S. Dep't of

Justice,

(D.D.C. 2013) (collecting cases treating exhaustion under the

Privacy Act as jurisdictional); see also 5 U.S.C. §§ 552a(d)(1)-(3), (g)(1) (setting out the

statutory requirement for exhaustion of Privacy Act claims).

Rule 12(b)(1) also provides the correct standard for evaluating Defendant’s motion to

dismiss Plaintiff’s requests for reinstatement to the Navy and for injunctive relief for third

parties. On these claims, Defendant moves for dismissal based on lack of standing. And, standing

is a jurisdictional requirement. See Friends of Animals v. Jewell,

(D.C. Cir

2016) (affirming dismissal under Fed. R. Civ. P. 12(b)(1) for lack of standing); see also Food &

5 Water Watch, Inc. v. Vislack,

(D.C. Cir. 2015) (“we must evaluate whether

they have established standing under the standard applicable pursuant to Federal Rule of Civil

Procedure 12(b)(1)”).

A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject

matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider the

complaint supplemented by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for

Underground Expansion v. Mineta,

(D.C. Cir. 2003) (internal quotation marks

omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding

whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage,

counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality

to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S.

Parole Comm’n,

(D.C. Cir. 2005). In spite of the favorable inferences that

a plaintiff receives on a motion to dismiss, it remains the plaintiff’s burden to prove subject

matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. U.S. Envtl. Prot.

Agency,

(D.D.C. 2000). “Although a court must accept as true all factual

allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule

12(b)(1), [a] plaintiff[’s] factual allegations in the complaint . . . will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”

Wright v. Foreign Serv. Grievance Bd.,

(D.D.C. 2007) (internal

citations and quotation marks omitted).

6 B. Failure to State a Claim under Rule 12(b)(6)

The Court will evaluate the dismissal of Plaintiff’s Fifth Amendment due process claim

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may

be granted. Whether or not Plaintiff pled a constitutionally protected interest goes to Plaintiff’s

ability to set forth allegations, which taken as true, would make Defendant liable for the

misconduct alleged. Accordingly, this claim will be dealt with under Rule 12(b)(6). See Bowman

v. Iddon,

(D.C. Cir. 2017) (affirming dismissal under Rule 12(b)(6)

when the plaintiff “identifie[d] no constitutionally protected interest lost through Defendants’

actions”).

Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the

grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v.

Twombly,

(2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”

Twombly,

. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal,

. “In evaluating a motion to dismiss, the Court must

accept the factual allegations in the complaint as true and draw all reasonable inferences in favor

of plaintiff.” Nat’l Postal Prof’l Nurses v. U.S. Postal Serv.,

(D.D.C.

2006).

7 III. DISCUSSION OF DEFENDANT’S MOTION

In its motion, Defendant requests that the Court dismiss Plaintiff’s Privacy Act claim for

failure to exhaust and dismiss Plaintiff’s requests for reinstatement to the Navy and for relief for

third parties on standing grounds. Additionally, Defendant requests that the Court grant summary

judgment on Plaintiff’s Fifth Amendment due process claim for failure to allege a

constitutionally protected interest. But, for the reasons provided above, Defendant’s request for

summary judgment on Plaintiff’s due process claim will also be treated as a motion to dismiss.

See Supra Sec. II. The Court will address each request in turn.

A. Dismissal of Plaintiff’s Privacy Act Claim

Defendant argues that the Court should dismiss Plaintiff’s Privacy Act claim as it has not

been exhausted. Plaintiff states two types of violations of the Privacy Act, one involving

disclosure of records and one involving the failure to amend records. First, Plaintiff claims that

Defendant violated the Privacy Act by disclosing: (1) to the National Practitioner Data Bank and

the New York licensing authorities that her clinical privileges were revoked for substandard or

inadequate care; (2) to credit agencies that she was indebted to the Navy for the incentive pay

she received each year she was in service; and (3) to her school that her discharge was less than

honorable. Compl., ECF No. 1, ¶¶ 39-40. Second, Plaintiff contends that the Navy “violated the

Privacy Act by recording in Plaintiff’s personnel file that she practiced substandard dentistry

which required the revocation of her clinical privileges.” Id. The Court will separately address

both types of Privacy Act violations.

1. Privacy Act Violation-Disclosure

The Court will first address Plaintiff’s Privacy Act allegation involving the disclosure of

personnel records to third parties. Defendant argues that these claims should be dismissed for

8 failure to exhaust. This Circuit “distinguishe[s] between Privacy Act suits seeking correction of

agency records and suits seeking damages for inaccurate records. While plaintiffs must request

agency amendment of allegedly inaccurate records before suing to compel amendment,

exhaustion of administrative remedies is not required where an individual seeks damages” for

inaccurate records. Hubbard v. U.S. Envtl. Prot. Agency Adm’r,

(D.C. Cir. 1986)

(internal quotation marks omitted).

Plaintiff’s disclosure claims under the Privacy Act did not require the exhaustion of

remedies because the claims do not involve a request for amendment to personnel records.

Instead, Plaintiff is seeking damages for Defendant’s allegedly unlawful disclosure of personnel

records. And, a claim seeking damages for the unlawful disclosure of personnel records does not

require exhaustion. See Nagel v. U.S. Dep’t of Health, Educ. and Welfare,

, 1441

n.2 (D.C. Cir. 1984) (explaining that exhaustion is not required when an individual seeks

damages for records); see also Flowers v. the Exec. Office of the President,

(D.C. Cir. 2001) (explaining that a plaintiff does not have to seek agency action before a

plaintiff files a damages suit against an agency for the unlawful maintenance and dissemination

of records).

Relatedly, Defendant contends that this Court cannot grant Plaintiff relief for the

disclosure of “false” personnel information because Plaintiff cannot use the Privacy Act to

challenge the substance of the Navy’s decision revoking Plaintiff’s dentistry credentials. Defs.’

Reply, ECF No 41, 2-3. But, Plaintiff’s challenges under the Privacy Act do not necessarily

require that the Court evaluate the substance of the Navy’s decision on Plaintiff’s credentialing.

As Plaintiff explains, “[e]ven if Defendant’s clinical privilege revocation is proper, it is still

subject to special conditions in order to disseminate that internal information to external parties.”

9 Pl.’s Opp’n, ECF No. 40, 9 (emphasis omitted). Accordingly, Plaintiff has properly alleged

Privacy Act disclosure violations which did not require exhaustion.

Even if Plaintiff was not required to exhaust Defendant’s alleged disclosure violations

under the Privacy Act, Defendant asks the Court to dismiss Plaintiff’s Privacy Act claim on the

grounds that Plaintiff failed to allege pecuniary damages. Specifically, Defendant argues that

disclosing Plaintiff’s personnel records did not result in an actionable adverse agency

determination because Plaintiff was not denied a right, benefit, entitlement, or employment.

But, at the motion-to-dismiss stage, the Court finds that Plaintiff has sufficiently plead

damages. Plaintiff alleged that, due to Defendant’s disclosures, she was denied educational

benefits, her credit score decreased, and she could not continue her career as a dentist. Compl.,

ECF No. 1, ¶¶ 24-27. On the current record, it is unclear whether or not Plaintiff will be able to

sufficiently connect her damages to Defendant’s alleged Privacy Act disclosure violations. But,

the Court is not prepared to dismiss Plaintiff’s claim on this ground at this time.

Accordingly, Defendant’s motion is DENIED as to Plaintiff’s Privacy Act disclosure

claim.

2. Privacy Act Violation- Amendment of Records

The Court next considers Plaintiff’s Privacy Act claim contending that Defendant

wrongfully recorded in Plaintiff’s personnel file “that she practiced substandard dentistry which

required the revocation of her clinical privileges.” Id. at ¶ 39. Again, Defendant argues that this

claim should be dismissed as Plaintiff failed to exhaust it. This Privacy Act claim, unlike the

disclosure violations, appears to be a claim to correct personnel records, rather than a claim for

damages based on inaccurate records. See Pl.’s Opp’n, ECF No. 40, 9 (“Defendant’s own

undisputed facts show that Dr. McKoy sufficiently exhausted her administrative remedy for

10 Defendant’s failure to correct her personnel file”). Accordingly, this claim, unlike the others,

requires exhaustion. See Hubbard,

.

Plaintiff argues that, if exhaustion is required, she exhausted her administrative remedies

because she “appealed her case several times until she received a final credentialing decision

from the Surgeon General of the Navy.” Pl.’s Opp’n, ECF No. 40, 9. But, appealing the Navy’s

credentialing decision was not sufficient to exhaust Plaintiff’s Privacy Act claim. Instead, to

exhaust a claim under the Privacy Act, a plaintiff must first contact the agency directly to

challenge the records and pursue relief through the agency until there is a final action. See 5

U.S.C. §§ 552a(d)(1)-(3), (g)(1) (setting out the statutory requirement for exhaustion of Privacy

Act claims).

Plaintiff fails to allege that she sought amendment of her records through the required

administrative scheme. Instead, she argues that she was not required to do so because she did not

receive notice of the administrative process for exhausting a Privacy Act claim. Pl.’s Opp’n, ECF

No. 40, 9. Plaintiff’s sole support for her argument that Defendant was required to provide notice

of the Privacy Act’s administrative exhaustion process is Mumme v. United States Department of

Labor,

(D. Me. 2001). But, this out-of-circuit district court case held only

that agencies must provide petitioners with notice of their appeal rights after an agency denies a

petitioner’s request for correction of a Privacy Act record. Mumme,

;

see also Harper v. Kobelinski,

(D.C. Cir. 1978) (explaining that a plaintiff’s

Privacy Act claim was properly before the court when the agency’s denial of his request for

amendment did not include notice of his appeal rights). Here, Plaintiff has not alleged that she

made an initial request to the agency for an amendment to her Privacy Act personnel records.

11 Accordingly, Defendant was under no duty to provide Plaintiff with notice of the Privacy Act’s

administrative appeals process.

Because Plaintiff did not exhaust her Privacy Act claim alleging that Defendant failed to

amend her personnel records, the Court GRANTS Defendant’s motion and DISMISSES this

claim. See Hill v. U.S. Air Force,

(D.C. Cir. 1986) (per curiam) (explaining

that the plaintiff could not bring a Privacy Act claim seeking amendment to his records because

the plaintiff had not exhausted his administrative remedies).

B. Dismissal of Plaintiff’s Request for Reinstatement to the Navy

Next, Defendant asks the Court to dismiss Plaintiff’s request for reinstatement to the

Navy. But, the Court concludes that Plaintiff may proceed with this request as Plaintiff has

standing to pursue this relief.

Defendant argues that the Court should dismiss Plaintiff’s request for reinstatement to the

Navy because Plaintiff lacks standing to request this relief. Defendant contends that Plaintiff

voluntarily resigned from the Navy. Because Plaintiff voluntarily resigned, Defendant claims that

there is no causal relationship between Defendant’s actions and Plaintiff’s alleged harm.

Accordingly, Defendant asks the Court to dismiss this claim for lack of standing. See Taylor v.

Fed. Deposit Ins. Corp.,

(D.C. Cir. 1997) (explaining that the plaintiff’s

“voluntary departure creates a large hole in [his] cause of action: [i]n requesting reinstatement,

[he] seek[s] a remedy for injury that is in large part self-inflicted”).

The Court finds that Plaintiff has established standing sufficient to overcome Defendant’s

motion to dismiss. Plaintiff alleges that Defendant issued her a Notification of Administrative

Separation Processing on January 27, 2015. Compl., ECF No. 1, ¶ 21. Plaintiff further alleges

that Defendant notified her that she would be separated from the Navy on July 31, 2015 and that

12 she was actually separated that day. Id. at ¶ 25. Plaintiff’s requested remedy of reinstatement

would grant relief for her injury of separation from the Navy allegedly caused by Defendant.

Accordingly, Plaintiff has established standing to pursue reinstatement. See Steffan v. Cheney,

(D.D.C. 1989) (finding standing where the plaintiff alleged that the

defendants “caused plaintiff to be separated, against his will, from the United States Naval

Academy”).

Defendant contests Plaintiff’s claim of separation, arguing that evidence in the

administrative record shows that Plaintiff was not actually separated from the Navy; instead, she

voluntarily resigned. Defs.’ Mot., ECF No. 35, 8 (citing AR-4, 37-40; AR-4, 2; AR-2, 2). But,

when deciding a motion to dismiss for lack of standing, “the plaintiff is protected from an

evidentiary attack on his asserted theory by the defendant.” Haase v. Sessions,

(D.C. Cir. 1987). Instead, the Court looks only to the allegations in the plaintiff’s complaint, and

“[a]ssuming the theory presented in the complaint is not itself inherently flawed, the standing

inquiry is ordinarily now complete.”

Here, Plaintiff’s Complaint alleges that her Commanding Officer in the Navy issued her a

Notification of Administrative Separation Processing. Compl., ECF No. 1, ¶ 21. Her Complaint

further alleges that “[s]he was notified that she would be separated from the Navy” and was in

fact “separated from the Navy.” Id. at ¶ 25. Accordingly, Plaintiff has sufficiently alleged that

Defendant caused her separation from the Navy and that this harm would be remedied by

reinstatement.

The Court finds that Plaintiff’s Complaint establishes standing because it alleges that

Defendant caused Plaintiff harm by separating her from the Navy and that the harm could be

remedied by reinstatement. Accordingly, Defendant’s motion to dismiss is DENIED. The Court,

13 however, expresses no opinion as to whether or not Plaintiff will ultimately be able to establish

that she was terminated from the Navy, as opposed to voluntarily resigning from the Navy as

Defendant argues. The Court concludes only that Plaintiff’s allegations are sufficient to defeat a

motion to dismiss for lack of standing at this time.

C. Dismissal of Plaintiff’s Request for Relief for Third Parties

In addition to Plaintiff’s request for reinstatement, Defendant also moves to dismiss for

lack of standing Plaintiff’s request that the Court “[e]njoin Defendant from violating the

Constitutional rights of employees who report discriminatory practices under Title VII of the

Civil Rights Act of 1964.” Id. at ¶ B. The Court agrees with Defendant and concludes that

Plaintiff does not have standing to pursue this relief for third parties.

There is a general prohibition on plaintiffs requesting relief for third parties. A “plaintiff

generally must assert his own legal rights and interests, and cannot rest his claim to relief on the

legal rights or interests of third parties.” Warth v. Seldin,

(1975). While there

are exceptions which allow a plaintiff to request relief for third parties, it does not appear that

any of those exceptions would apply to this case. And, in her opposition to Defendant’s motion,

Plaintiff failed to provide any support for her ability to request injunctive relief for third parties.

Moreover, it is not obvious that such relief is necessary because Plaintiff has not alleged that

Defendant systematically, or even repeatedly, violated the constitutional rights of employees who

reported discrimination.

Because Plaintiff asserts no grounds affording her standing to request relief for third

parties, the Court GRANTS Defendant’s motion and DISMISSES Plaintiff’s request that the

Court “[e]njoin Defendant from violating the Constitutional rights of employees who report

14 discriminatory practices under Title VII of the Civil Rights Act of 1964.” Compl., ECF No. 1, ¶

B.

D. Dismissal of Plaintiff’s Fifth Amendment Due Process Claim

Finally, Defendant moves for summary judgment on Plaintiff’s Fifth Amendment due

process claim arguing that it fails on the merits as a matter of law. Specifically, Defendant

contends that none of Plaintiff’s asserted interests are protected by the due process clause. For

reasons the Court has already explained, the Court will treat Defendant’s motion as a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6). See Supra Sec. II.

In considering the merits of a due process claim, courts engage in a two-step process.

First, the court must “ask whether there exists a liberty or property interest of which a person has

been deprived, and if so … ask whether the procedures followed … were constitutionally

sufficient.” Swarthout v. Cooke,

(2011). Defendant argues that, as a matter of

law, none of Plaintiff’s asserted interests are constitutionally cognizable liberty or property

interests. Because Plaintiff fails to assert a constitutionally protected interest, Defendant asks that

the Court dismiss Plaintiff’s due process claim without determining whether or not Plaintiff was

accorded the requisite degree of procedural protection.

While it is not clear from Plaintiff’s Complaint, Plaintiff appears to argue that Defendant

violated due process by infringing on three substantive rights without providing adequate

process. Plaintiff contends that Defendant infringed on (1) her right to already-received incentive

payments, (2) her right to continue practicing dentistry in the Navy, and (3) her right to a clean

record with the National Practitioner Data Bank and the New York licensing authorities.3 The

3 In its motion, Defendant interprets Plaintiff’s Fifth Amendment due process claim as alleging six violations of her constitutionally protected interests. Def.’s Mot., ECF No. 35, 12. Plaintiff

15 Court concludes that Plaintiff has asserted a constitutionally protected interest in her already-

received incentive payments and in her continued practice of dentistry with the Navy. However,

Plaintiff has not plead a constitutionally protected interest in her right to a clean record with the

National Practitioner Data Bank and the New York licensing authorities; so, that claim is

DISMISSED.

1. Right to Already-Received Incentive Pay

Defendant argues that Plaintiff does not have a constitutionally protected interest in her

already-received incentive pay. In its September 21, 2017 Memorandum Opinion, the Court

previously addressed Defendant’s assertion that this due process claim should be dismissed

because Plaintiff does not have a constitutionally protected interest in her incentive pay. ECF No.

16, 15-16; see also McKoy, 271 F. supp. 3d at 36. There, the Court refused to dismiss Plaintiff’s

due process claim, explaining that Plaintiff was asserting an interest in the incentive pay which

she had already received rather than an interest in future incentive payments. The Court

explained that constitutionally protected interests can arise in benefits that have already been

acquired.

In its current motion, Defendant again asks the Court to dismiss Plaintiff’s due process

claim because, according to Defendant, even if Plaintiff had already received incentive

payments, her interest in those payments had not yet vested. Under Plaintiff’s agreement to

receive incentive pay, she was required to remain on active duty for three years. If she failed to

do so, Plaintiff was required to reimburse the government for the total costs incurred and to

neither confirms nor denies this reading of her Complaint. But, as the Court reads Plaintiff’s Complaint, she asserts only three alleged violations of constitutionally protected interests. Accordingly, the Court will address only those three alleged violations.

16 refund the payments. AR Vol. II, 4-15.4 And, Defendant contends that its right to recoup

Plaintiff’s incentive payments is statutorily codified at 37 U.S.C. § 302b which empowers the

Secretary of Defense to prescribe conditions for special pay and to require repayment if

entitlements are terminated. Based on Plaintiff’s written agreement as well as statutory

requirements, Defendant argues that “Plaintiff’s claim to a Constitutional property interest in

paid but unearned incentive pay is meritless.” Def.’s Mot., ECF No. 35, 18.

As the Court reads them, the agreement and the statute cited by Defendant do not obviate

Plaintiff’s constitutionally protected interest in already-received incentive payments. For a

property interest to be constitutionally protected, a plaintiff “must … have a legitimate claim of

entitlement to” the property. Bd. Of Regents of State Colls. v. Roth,

(1972).

Here, Plaintiff’s possession of the incentive payments, given to her in accordance with her

written agreement and statute, constituted a legitimate claim of entitlement to those payments.

(explaining that property interests “are defined by existing rules or understandings that stem

from an independent source”).

Defendant’s ability to recoup incentive payments under certain conditions does not

prevent Plaintiff’s interest in those payments from vesting upon receipt. That Defendant may be

entitled to recoup Plaintiff’s incentive payments goes to the process owed to Plaintiff, not to the

existence of a constitutionally protected interest in the payments. Defendant cites no case in

4 In her Complaint, Plaintiff references her agreement with the Navy concerning incentive pay. Compl., ECF No. 1, ¶ 7 (“Shortly after she began employment, CAPT Grzesik encouraged Dr. McKoy to request Incentive Pay from the Navy. Dr. McKoy requested Incentive Pay, and her request was approved and she received Incentive Pay.”). Accordingly, the Court may consider this agreement to be incorporated by reference into Plaintiff’s Complaint and may refer to it in addressing Defendant’s motion to dismiss. See Strumsky v. Washington Post Co.,

(D.D.C. 2012) (explaining that a document referred to in a complaint need not be mentioned by name to be incorporated by reference into the complaint) (citing Weiner v. Klais & Co., 108 F.3 86, 89 (6th Cir. 1997)).

17 which any court has concluded that a property interest failed to vest despite the plaintiff’s

possession of the property. See Chaves County Home Health Serv., Inc. v. Sullivan,

(D.C. Cir. 1991) (assuming a property interest “in retaining previously made payments

for services rendered” entitling that property “to the protections of due process”).

Accordingly, Defendant’s motion to dismiss this claim is DENIED.

2. Right to Continue Practicing Dentistry in the Navy

Unlike her interest in her already-received incentive payments, Plaintiff’s opposition to

Defendant’s motion fails to address in any way Defendant’s argument that Plaintiff does not

have a constitutionally protected interest in the continued practice of dentistry in the Navy.

Because Plaintiff fails to address this argument, the Court will rely on its own independent

research.

The Court concludes that Plaintiff has a constitutionally protected interest in the

continued practice of dentistry in the Navy. Defendant is correct that Plaintiff does not have a

property interest in the continued practice of dentistry in the Navy. See Wilhelm v. Caldera,

(D.D.C. 2000) (finding no property interest in the plaintiff’s continued practice of

medicine in the Army). However, Plaintiff does have a liberty interest in the continued practice

of dentistry in the Navy. Accordingly, she has alleged an interest protected under the Fifth

Amendment.

Plaintiff alleges that the revocation of her privileges by the Navy has denied her future

opportunities in dentistry due to the Navy’s characterization of Plaintiff’s termination. Compl.,

ECF No. 1, ¶ 31. “A due process liberty interest is implicated where the government negatively

alters the employment status of a government employee, and in doing so, stigmatizes the

employee or or impugns his reputation so as to either (1) seriously damage his standing and

associations in his community … , or (2) foreclose his freedom to take advantage of other 18 employment opportunities by either (a) automatically excluding him from a definite range of

employment opportunities with the government or (b) broadly precluding him from continuing

his chosen career.” M.K. v. Tenet,

(D.D.C. 2001) (citing O'Donnell v.

Barry,

(D.C. Cir. 1998)). Here, Plaintiff claims that Defendant’s decision

to revoke Plaintiff’s credentials and to terminate her position as a naval dentist based on an

allegedly inadequate skill level injured her reputation so that she is denied opportunities in her

chosen profession of dentistry. Accordingly, Plaintiff has plead a constitutionally protected

liberty interest. See Smith v. Harvey,

(D.D.C. 2008) (explaining that the

plaintiff had a liberty interest in continued military service).

Defendant’s motion to dismiss this claim is DENIED. However, the Court expresses no

opinion as to whether or not Plaintiff will ultimately be able to prove that she was deprived of

her interest in the continued practice of dentistry in the Navy without adequate due process.

3. Right to a Clean Record with the National Practitioner Data Bank and the New York Licensing Authorities

Similar to her alleged interest in the continued practice of dentistry with the Navy,

Plaintiff fails to provide any support for her interest in having a clean record with the National

Practitioner Data Bank and the New York licensing authorities. And, the Court has found no

support for the constitutional protection of such an interest.

Multiple courts which have considered the issue have concluded that reports made to data

banks do not implicate constitutionally protected liberty or property interests. See, e.g., Simpkins

v. Shalala,

(D.D.C. 1998) (finding that no liberty or property interest

was implicated when the District of Columbia General Hospital made an adverse action report to

the National Practitioner Data Bank); Randall v. United States,

(4th Cir. 1994),

cert denied,

(1995) (finding no constitutionally protected interest when the Army

19 made an adverse action report to the national data bank); Doe v. Rogers,

(D.D.C. 2015) (explaining that reports to a data bank do not constitute deprivation of a

protected interest by the state). The refusal by courts to find infringement on a constitutionally

protected interest based solely on reports to data banks conforms with the notion that

governmental “‘[d]efamation, by itself, is … not a constitutional deprivation.’” Kartseva v. Dep’t

of State,

(D.C. Cir. 1994) (quoting Siegert v. Gilley,

(1991)). And, the Court finds no reason to treat reports to licensing authorities differently than

reports made to national data banks.

Based on these cases, and lacking any legal support from Plaintiff, the Court concludes

that Plaintiff does not have a constitutionally protected interest in maintaining a clean record

with the National Practitioner Data Bank and the New York licensing authorities. Accordingly,

Defendant’s motion is GRANTED and this claim is DISMISSED.

E. Summary of the Court’s Resolution of Defendant’s Motion

For the foregoing reasons, the Court GRANTS Defendant’s motion and DISMISSES (1)

Plaintiff’s Privacy Act claim based on a failure to amend personnel records, (2) Plaintiff’s

request that the Court enjoin the Navy from violating the constitutional rights of third parties

who report discrimination, and (3) Plaintiff’s Fifth Amendment due process claim alleging

infringement on her right to a clean record with the National Practitioner Data Bank and the New

York licensing authorities. But, Defendant’s motion is otherwise DENIED.

IV. DISCUSSION OF PLAINTIFF’S MOTION

Having resolved Defendant’s motion for dismissal and summary judgment, the Court will

now address Plaintiff’s motion requesting discovery. In response to the Court’s May 23, 2018

Order, Plaintiff moved for leave to conduct discovery on her claims. Defendant opposes

20 Plaintiff’s general request for discovery, contending that discovery is not available and that the

Court should decide the case on the administrative record. The Court GRANTS IN PART and

DENIES IN PART Plaintiff’s motion.

Defendant argues that Plaintiff is not entitled to discovery in this case because, while she

does not assert a claim under the Administrative Procedures Act (“APA”), her claims resemble

APA claims. And, under the APA, discovery is generally not permitted. Accordingly, Defendant

argues that discovery should not be permitted in this case.

The Navy has established its own procedural framework for affording due process to

refute charges relating to adverse credentialing actions. See Bureau of Navy Medicine and

Surgery Instruction 6320.67A (Sept. 12, 2001). Questions of whether this procedural framework

satisfies the constitutional requirements for due process are governed by the APA. See

. And, under the APA, judicial review of agency action is generally confined to “the record

the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion,

(1985).

Defendant alleges that Plaintiff’s non-APA claims launch a collateral attack on the

Navy’s procedural framework for credentialing actions. Def.’s Mot., ECF no. 35, 21. Rather than

asserting an APA claim directly, Defendant contends that Plaintiff seeks to circumvent discovery

limitations and to re-litigate the merits of the adverse credentialing process by making claims

under the Constitution and the Privacy Act. Defendant further argues that, because the allegedly

deficient procedures are governed by the APA, Plaintiff should be bound by the APA limitations

on discovery.

In considering the parties’ arguments, the Court could not locate, the parties did not cite,

any United States Court of Appeals for the District of Columbia Circuit case deciding whether or

21 not a plaintiff who asserts a non-APA challenge to agency action should be able to avoid the

APA’s bar on extra-record evidence. But, in evaluating Defendant’s argument opposing

discovery, the Court is guided by Judge James E. Boasberg’s excellent reasoning in Bellion

Spirits, LLC v. United States,

(D.D.C. 2018). Facing an issue similar to the

one now before this Court, Bellion noted that many district courts have been reluctant to allow

plaintiffs to conduct discovery when those plaintiffs assert non-APA claims challenging agency

action.

(citing cases). Based on these cases, the Bellion Court concluded

that “when a constitutional challenge to agency action requires evaluating the substance of an

agency’s decision made on an administrative record, that challenge must be judged on the record

before the agency.”

But, if the challenge to agency action does not require the evaluation of

the substance of the agency’s decision made on the administrative record, then discovery is

permissible.

This Court follows Bellion and concludes that Plaintiff is entitled to discovery insofar as

her claims do not require the Court to evaluate the substance of the agency’s decision made on

the administrative record. This approach addresses Defendant’s concern that “Plaintiff seeks to

circumvent [the APA’s] discovery limitation and re-litigate the merits of the adverse

credentialing process by invoking the Constitution and Privacy Act while ignoring the APA.”

Def.’s Mot., ECF No. 35, 21. Again, insofar as Plaintiff challenges the substance and the merits

of the Navy’s adverse credentialing determination, Plaintiff is not entitled to discovery as the

Navy’s adverse credentialing determination was made on the administrative record. But, if

Plaintiff’s claims do not require the Court to evaluate the substance and the merit of the Navy’s

adverse credentialing determination, then Plaintiff is entitled to discovery.

22 Based on this standard for granting discovery, the Court concludes that Plaintiff is

entitled to discovery on her remaining Privacy Act claim and on her First Amendment claims.

Plaintiff is also entitled to discovery on her Fifth Amendment due process claim alleging an

infringement on her right to already-received incentive payments. However, the Court DENIES

WIHTOUT PREJUDICE Plaintiff’s request for discovery on her due process claim alleging

infringement on her right to the continued practice of dentistry in the Navy.

First, Plaintiff is entitled to discovery on her remaining Privacy Act claim. Plaintiff’s

Privacy Act claim alleges that Defendant wrongfully disclosed her personnel record information

to various third parties. Addressing this claim will not require the Court to evaluate the substance

of the Navy’s decision made on the administrative record. Moreover, the Court notes that

Defendant appears to concede that limited discovery is available on this claim based the Court’s

September 21, 2017 Memorandum Opinion. Def.’s Reply, ECF No. 41, 4 (“This Court has

already ruled that … discovery is available … [and Defendant] does not seek to relitigate a

matter on which this Court already has ruled.” (citing ECF No. 16, 17-18)). Accordingly,

discovery is permissible on Plaintiff’s remaining Privacy Act claim.

Second, the Court finds that Plaintiff is entitled to discovery on her First Amendment

claims. Defendant provides no argument as to why the Court should not grant discovery on

Plaintiff’s First Amendment claims. Instead, Defendant argues that the Court’s ruling on

Defendant’s pending motion concerning Plaintiff’s Privacy Act and Due Process claims “will

materially affect the posture of Plaintiff’s First Amendment claims and whether record review is

sufficient to address them.” Id. at 2. But, it is unclear to the Court how the resolution of

Defendant’s pending motion, which does not address Plaintiff’s First Amendment claims, has

any bearing on the permissibility of discovery for Plaintiff’s First Amendment claims.

23 In her First Amendment claims, Plaintiff alleges that Defendant retaliated against her for

engaging in protected speech and for petitioning the government to redress a grievance. Compl.,

ECF No. 1, ¶¶ 33-36. Plaintiff contends that in retaliation for letters written to senior government

officials regarding her treatment, Defendant issued Plaintiff a Notification of Administrative

Separation and separated her from her position in the Navy. Id. Addressing this claim does not

require the Court to evaluate the merits of the adverse credentialing decisions which the agency

made on the administrative record. Accordingly, Plaintiff is permitted to supplement the record

with discovery for her First Amendment claims.

Finally, the Court finds that discovery is permissible for Plaintiff’s Fifth Amendment due

process claim alleging an infringement of her interest in her already-received incentive

payments. This claim challenges Defendant’s recoupment of Plaintiff’s incentive payments

which she had already received. The alleged recoupment of Plaintiff’s incentive payments

occurred after the Navy had already made its decision on Plaintiff’s credentialing. As Plaintiff

challenges an action taken after Defendant had made its credentialing determination, this claim

does not require the Court to evaluate the substance of the Navy’s decision which was made on

the administrative record. Accordingly, discovery is permissible for this claim.

Despite allowing discovery on the preceding claims, the Court concludes that discovery

is not permissible on Plaintiff’s Fifth Amendment due process claim alleging infringement on her

right to the continued practice of dentistry in the Navy. In determining whether or not Defendant

unconstitutionally infringed on Plaintiff’s right to continue practicing dentistry in the Navy, the

Court would be required to evaluate the merits of the Navy’s decision revoking Plaintiff’s

credentials. This decision was made on the administrative record. Accordingly, the Court will

also limit its review of this claim to the administrative record. See Chiayu Chang v. U.S.

24 Citizenship & Immigration Servs.,

(D.D.C. 2017) (limiting review

of the plaintiff’s due process claim to the administrative record because plaintiff’s due process

claim was fundamentally similar to an APA claim).

However, even for APA claims, limited discovery is permissible in certain “unusual

circumstances.” City of Dania Beach v. Fed. Aviation Admin.,

(D.C. Cir. 2010)

(internal quotation marks omitted). Plaintiff argues that, under APA standards, limited discovery

should be granted on her claims because Defendant’s administrative record is incomplete. Pl.’s

Mot., ECF No. 34, 5-7.

But, Plaintiff’s current motion fails to explain why discovery should be permitted under

the APA’s limitations. Plaintiff previously filed a Motion to Compel Submission of Complete

Administrative Record, contending that the administrative record was incomplete. See generally

ECF No. 22. However, that motion, which the Court denied without prejudice, was filed before

the Court dismissed certain claims of Plaintiff and before the Court granted discovery for many

of Plaintiff’s other claims. Accordingly, it is not clear to the Court whether or not Plaintiff still

requests supplementation of the administrative record for the sole claim for which discovery has

been denied. If, given this Court’s ruling, Plaintiff still finds the current administrative record to

be inadequate, she should file a motion stating grounds for supplementing the administrative

record as it relates to this claim only.

To summarize, the Court GRANTS Plaintiff’s motion and permits discovery as to

Plaintiff’s (1) remaining Privacy Act claim, (2) her First Amendment claim, and (3) her Fifth

Amendment due process claim alleging an infringement on her right to already-received

incentive payments. But, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion for

discovery on her Fifth Amendment due process claim alleging an infringement on her right to the

25 continued practice of dentistry in the Navy. Evaluating this claim will require the Court to assess

an agency decision which was made on the administrative record. Accordingly, the Court will

also limit its review of this claim to the administrative record.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

Defendant’s Motion for Partial Dismissal of the Complaint and for Partial Summary Judgment.

The Court will DISMISS: (1) Plaintiff’s Privacy Act claim alleging a failure to amend Plaintiff’s

personnel records, (2) Plaintiff’s request that the Court enjoin the Navy from violating the

constitutional rights of third parties who allege discrimination, and (3) Plaintiff’s Fifth

Amendment due process claim alleging infringement on her right to a clean record with the

National Practitioner Data Bank and the New York licensing authorities. The Court otherwise

DENIES Defendant’s motion.

The Court similarly GRANTS IN PART and DENIES IN PART Plaintiff’s Motion for

Leave to Conduct Discovery. The Court permits discovery on: (1) Plaintiff’s remaining Privacy

Act claim, (2) Plaintiff’s First Amendment claims, and (3) Plaintiff’s Fifth Amendment due

process claim alleging infringement on her right to her already-received incentive payments.

However, the Court DENIES WITHOUT PREJUDCE Plaintiff’s request for discovery on her

Fifth Amendment due process claim alleging infringement on her right to the continued practice

of dentistry in the Navy. This claim requires the Court to evaluate an agency decision made on

the administrative record. Accordingly, the Court will limit its review to the administrative

record unless Plaintiff can demonstrate that the administrative record is in some way inadequate

and requires supplementation as to this claim.

26 An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

27