UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARNE K. MITSKOG,

Plaintiff, Civil Action No. 1:18-cv-00611 (JMC)

v.

UNITED STATES DEPARTMENT OF JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Marne Mitskog sued the Department of Justice, the Federal Election Commission,

and several individual government attorneys from both agencies.1 She alleges that all

Defendants—the DOJ, the FEC, and individual employees from both agencies—violated the

Privacy Act by intentionally releasing her emails within internal agency records. ECF 3 at 12–13.

She also alleges that the DOJ and several of its employees violated the Privacy Act by

disseminating her emails outside of the agency. Id. at 13. Finally, Mitskog alleges that the

individual FEC Defendants violated the First Amendment, and she brings a Bivens claim against

them seeking damages for retaliatory termination. Id. at 14–15. For a variety of reasons, the Court

determines that Mitskog’s claims must be dismissed.

1 Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization, and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated ECF Page ID number that appears at the top of each page.

1 I. BACKGROUND

The Court accepts the facts alleged in the Amended Complaint. See ECF 3. Marne Mitskog

served as a Trial Attorney at the U.S. Department of Justice (DOJ) from 2010 to 2011. Id. at 2.

While there, she reported “crime, fraud, and misconduct within the Civil Division of the DOJ” that

had allegedly occurred under the supervision of Ann Ravel, who was Deputy Assistant Attorney

General at the time. Id. at 6. For at least a year after that, Mitskog continued to publicly excoriate

Ravel while Mitskog worked as a Staff Attorney in the Federal Election Commission (FEC) and

Ravel worked for the California state government. Id.

Mitskog also sent Ravel a series of “angry” and “caustic” emails after Ravel was nominated

to serve as an FEC Commissioner. Id. at 7 n.4. In those emails, Mitskog claimed to be “exercising

[her] First Amendment right to call out a former, and soon to be again, Federal official on her

misconduct.” Id. at 7. Mitskog alleges that she was terminated from the FEC on June 27, 2013,

because of her emails to Ravel.2 Id. At some time not identified in her Amended Complaint,

Mitskog initiated proceedings against the DOJ before the Equal Employment Opportunity

Commission alleging that she had been constructively discharged from her position as a DOJ Trial

Attorney. Id. at 6, 9. The emails she had sent Ravel were produced by the DOJ in the EEOC

proceedings. Id. at 9.

Mitskog sued the DOJ, the FEC, and several employees from both agencies for releasing

her emails and for retaliatory termination. Mitskog alleges that those Defendants violated the

Privacy Act by intentionally releasing her emails in internal agency records. Id. at 12–13. She also

alleges that the DOJ and several of its employees violated the Privacy Act by disseminating her

2 Mitskog appealed her initial termination, and her original separation letter was replaced with a “Notice of Proposed Removal.” ECF 3 at 8–9. Mitskog was ultimately terminated from the FEC in January 2014 with a retroactive effective date of December 2013. Id.

2 emails outside of the agency. Id. at 13. Finally, Mitskog alleges that the individual FEC Defendants

violated the First Amendment, and she brings a Bivens claim against them seeking damages for

retaliatory termination. Id. at 14–15. Mitskog seeks $2 million in compensatory damages and $5

million in punitive damages. Id. at 16.

The DOJ and the individual Defendants (in their official capacities) filed a Motion to

Dismiss or, in the Alternative, Motion for Summary Judgment, ECF 13, to which Mitskog

responded, ECF 74, and Defendants replied, ECF 79.3 The individual Defendants (in their personal

capacities) also filed a Motion to Dismiss. ECF 45. Mitskog responded, ECF 77, and the individual

Defendants replied, ECF 78.

II. LEGAL STANDARD

“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,

(2009). A complaint has facial plausibility when a plaintiff pleads all of the elements of

their claim and supports those elements with enough factual allegations to “allow[] the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Additionally, courts must “assume [the] veracity” of any “well-pleaded factual allegations” in a

complaint.

.

III. ANALYSIS

A. Privacy Act Claims

1. Individual Defendants

3 The Court declines to convert Defendant’s Motion to Dismiss to a Motion for Summary Judgment, and therefore does not consider any materials outside of the pleadings.

3 Mitskog’s Amended Complaint includes three Privacy Act claims against DOJ and FEC

officials. The individual defendants moved to dismiss the claims against them, arguing that those

claims were precluded because the Privacy Act does not create a cause of action against individual

federal employees. ECF 13-1 at 16; ECF 45 at 27–28. The Court agrees. The Privacy Act

authorizes plaintiffs to bring civil suits only against an “agency.” 5 U.S.C. § 552a(g)(1). The D.C.

Circuit has endorsed the plain language of the Act, holding that it “creates a cause of action against

only federal government agencies and not . . . individual officials.” Abdelfattah v. U.S. Dep’t of

Homeland Sec.,

, 533 n.4 (D.C. Cir. 2015). Mitskog attempts to get around this by

pointing to a section of the Privacy Act that establishes criminal penalties for individuals. See ECF

77 at 8–9 (citing 5 U.S.C. § 552a(i)(1)). But Mitskog is attempting to pursue a civil action against

the individual defendants. She cannot pursue a criminal action, so that section is inapplicable here.

Because the Privacy Act does not provide a cause of action for Mitskog’s claims against the

individual Defendants, the Court grants their Motion to Dismiss as to the Privacy Act claims.

The Court also dismisses the Privacy Act claims against the Jane and Joe Doe Defendants,

who are “individuals within the FEC who may have used, disseminated, or maintained Plaintiff’s

communications in violation of the Privacy Act and its subsections.” ECF 3 at 5. The reasoning

that compels the Court to dismiss the claims against the named Defendants also makes it “patently

obvious” that Mitskog cannot prevail on her claims against the unnamed Defendants. Baker v.

Director, U.S. Parole Comm’n,

(1990).

2. Agency Defendants

Mitskog’s Privacy Act claims against the DOJ and FEC must be dismissed as well because

Mitskog filed her lawsuit after the statute of limitations expired. The Privacy Act requires claims

to be brought “within two years from the date on which the cause of action arises.”

4 552a(g)(5). “A cause of action arises under the Privacy Act when ‘the plaintiff knows or should

know of the alleged violation.’” Crisman v. Dep’t of Just.,

(D.D.C. 2018)

(quoting Tijerina v. Walters,

(D.C. Cir. 1987)). The two-year statute of

limitations is subject to equitable tolling, but plaintiffs hoping to toll the statute of limitations must

generally show that they were “unable to obtain vital information bearing on the existence of [their]

claim” despite exercising “all due diligence.” Chung v. Dep’t of Just.,

(D.C.

Cir. 2003).

According to the Amended Complaint, Mitskog learned of the allegedly unlawful

disclosure in July 2013. See ECF 1 at 9–10. Her deadline for filing a lawsuit was two years later,

in July 2015. But her initial Complaint was not filed until February 2018—more than two years

after that deadline. Therefore, Mitskog’s Privacy Act claims fall outside of their statute of

limitations.

Mitskog argues that her claims should nevertheless be allowed to proceed because DOJ

and FEC attorneys continued to release Mitskog’s emails throughout the EEOC proceedings, and

even filed those emails as attachments in this case. See ECF 74 at 5–9. Mitskog references

equitable tolling while making this argument, see

but she does not suggest that, “despite all

due diligence,” she was “unable to obtain vital information bearing on the existence of [her]

claim.” Chung,

. Equitable tolling is therefore the wrong framing of this argument.

Instead, Mitskog appears to be making a “continuing violations” argument by alleging that

the “new and continuing violations have kept the statute of limitations from running.” ECF 74 at

7. But this argument proves unavailing. Courts in this district have uniformly held that “[a] Privacy

Act claim is not tolled by continuing violations.” Doe v. Thompson,

(D.D.C. 2004) (quoting Davis v. Dep’t of Just.,

(7th Cir 2000)); Ciralsky v. CIA,

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, 153–54 (D.D.C. 2010) (same); see also Ramirez v. Dep’t of Just.,

, 63–64 (D.D.C. 2009), aff’d

(D.C. Cir. 2010). This Court agrees

that the continuing violations doctrine is not applicable here. While the DOJ and the FEC allegedly

released Mitskog’s emails multiple times after the initial disclosure in 2013, the subsequent

releases were all related to the initial disclosure—they were part of the same proceedings (or

litigation spawning from those proceedings). Allowing Mitskog to tether her statute of limitations

period to the latest disclosure would nullify the rule that plaintiffs must commence their Privacy

Act litigation within two years from the time they “know[] or should know of the alleged

violation.” Tijerina,

; see also Diliberti v. United States,

(7th

Cir. 1987); Bergman v. United States, 751 F2d 314, 317 (10th Cir. 1984).

Because Mitskog’s Privacy Act claims are time-barred, the Court grants the DOJ’s and

FEC’s Motion to Dismiss as to those claims.

B. First Amendment Bivens Claim

Mitskog’s Amended Complaint also alleges a First Amendment Bivens claim against

individual FEC Defendants in their personal capacities.4 Those Defendants filed a Motion to

Dismiss arguing, among other things, that the claim could not be sustained because Bivens did not

provide a cause of action for it. See ECF 45 at 16–21.

Bivens provides an implied cause of action for plaintiffs to seek damages from individual

federal officers for constitutional violations. See Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics,

, 395–97 (1971). But it does not promise redress for every

4 Mitskog does not make explicitly clear whether she meant to bring her First Amendment claim against the individual Defendants in their personal or official capacity. See ECF 3 at 14–15. But she expressly states that her claim is a “Bivens Action.” Id. at 14. Because Bivens actions are brought against federal officials in their personal capacities and not their official capacities, Simpkins v. District of Columbia Gov’t,

(D.C. Cir. 1997), the Court construes the claims as being brought against the individual Defendants in their personal capacities.

6 violation—the Supreme Court has recognized Bivens remedies only for Fourth Amendment

violations,

Eighth Amendment violations, Carlson v. Green,

, 18–23 (1980), and

Equal Protection Clause violations, Davis v. Passman,

, 245–48 (1979). And even

within those contexts, the Supreme Court has declined to apply Bivens in every circumstance. See,

e.g., Egbert v. Boule,

(2022) (declining to provide Bivens remedy for Fourth

Amendment violation); Minneci v. Pollard,

(2012) (same for Eighth

Amendment violation).

In recent years, the Supreme Court has urged lower courts to be cautious about extending

Bivens to new contexts. Courts should not extend Bivens remedies beyond these three contexts if

“there is any reason to think that Congress might be better equipped to create a damages remedy.”

Egbert,

. This Court need not perform this comparison because the Supreme

Court has already found “that Congress is in a better position to decide whether or not the public

interest would be served by creating” a cause of action for federal employees to sue their

supervisors after experiencing retaliation for exercising First Amendment rights. Bush v. Lucas,

(1983). Because Congress was better equipped, the Supreme Court held that

Bivens remedy was not available.

.

Mitskog argues that the D.C. Circuit has already recognized a Bivens action in a First

Amendment context. ECF 77 at 3. In Dellums v. Powell,

(D.C. Cir. 1977), the D.C.

Circuit held that a Bivens action could proceed against police officials who arrested protestors

gathered to listen to a Congressman speak at the U.S. Capitol.

at 173–74, 194–95. But the

employment context of Bush v. Lucas provides a closer factual analogue than the protests in

Dellums, and the Supreme Court rejected a Bivens remedy in Bush v. Lucas.

7 Because this case presents a nearly identical scenario as in Bush v. Lucas, the Court

concludes that Mitskog’s First Amendment claims cannot proceed under Bivens. The individual

Defendants’ Motion to Dismiss is granted as to Mitskog’s First Amendment claim.

IV. CONCLUSION

The Court grants the DOJ’s and individual Defendants’ Motions to Dismiss as to Mitskog’s

three Privacy Act claims. The Court also grants the individual Defendants’ Motion to Dismiss as

to Mitskog’s First Amendment claim. Finally, the Court dismisses the claims against the unnamed

Jane and John Doe Defendants. In sum, all claims against all Defendants in this action are

dismissed.

Additionally, the Court notes that Mitskog moved to file a surreply. ECF 80. The Court

finds that a surreply would not cure the deficiencies prompting the Court to dismiss this case, and

therefore denies Mitskog’s Motion.

DATE: May 12, 2023

________________________ Jia M. Cobb U.S. District Court Judge

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