Ashbourne v. Hansberry
Ashbourne v. Hansberry
Opinion of the Court
Emmet G. Sullivan, United States District Judge *343Plaintiff Anica Ashbourne ("Ms. Ashbourne"), an attorney proceeding pro se , brings this action against the U.S. Treasury Department ("Treasury") Secretary in his official capacity and three Treasury employees-Donna Hansberry, Donna Prestia, and Thomas Collins-in their official and individual capacities. Ms. Ashbourne also sues the U.S. Department of Homeland Security ("DHS") Secretary in his official capacity and two DHS employees-James Trommatter and Thomas Harker-in their individual and official capacities. Ms. Ashbourne alleges that the defendants violated the Privacy Act, 5 U.S.C. § 552a et seq. , and denied her due process in violation of the Fifth Amendment.
I. Ms. Ashbourne's Claims Against the Treasury Secretary and the Individual Treasury Employees are Dismissed
Ms. Ashbourne sues the Treasury defendants in their official and individual capacities for Privacy Act and due process violations, alleging they "falsified [her] personnel records and then used those records to publicly terminate [her] amidst stigmatizing charges of dishonesty." Compl., ECF No. 1 ¶¶ 2-4, 7. The defendants move to dismiss these claims against as barred under the doctrine of res judicata .
"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.' " Taylor v. Sturgell ,
In Ashbourne I , Ms. Ashbourne sued the Treasury Department, Ms. Hansberry, Ms. Prestia, and Mr. Collins for due process and Privacy Act violations, alleging that the defendants (1) failed to maintain accurate records, (2) improperly disclosed her protected records, and (3)damaged her reputation by making "stigmatizing charges [that] were false," in violation of due process. See Consolidated Am. Compl., ECF No. 49 ( Ashbourne I , 12-cv-1153 ). In this case, Ms. Ashbourne alleges that the same defendants "falsified [her] personnel records and then used those records to publicly terminate [her] amidst stigmatizing charges of dishonesty." Compl., ECF No. 1 ¶¶ 2-4, 7. Her present case is therefore barred against the Treasury defendants because it involves the same defendants, implicates the same underlying facts, and encompasses the same Privacy Act and due process claims that were previously litigated in Ashbourne I . See
Ms. Ashbourne's argument to the contrary, that res judicata does not bar her claims against the Treasury defendants because she added new DHS defendants, is unavailing. S ee Pl.'s Opp'n Mot. to Dismiss, ECF No. 11 at 6-7. Rather than alleging new claims against the Treasury defendants, Ms. Ashbourne reasserts the same claims that were already litigated in Ashbourne I . Compare Compl., ECF No. 1, with Consolidated Am. Compl., ECF No. 49 ( Ashbourne I , 12-cv-1153 ). Adding three defendants to her complaint does not entitle her to re-litigate the same, fully adjudicated claims against the Treasury defendants. See Sparrow v. Reynolds ,
II. Ms. Ashbourne's Claims Against the DHS Employees in Their Individual Capacities are Dismissed
Ms. Ashbourne sues the DHS employees-Mr. Trommatter and Mr. Harker-in *345their individual capacities for violations of due process and the Privacy Act. Compl., ECF No. 1 ¶¶ 5, 6. The defendants move to dismiss these claims pursuant to (1) Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction; (2) Federal Rule of Civil Procedure 12(b)(4) for insufficient process; (3) and Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. Defs.' Mot. to Dismiss, ECF No. 8 at 12. Defendants also move to dismiss the Privacy Act claims because the Privacy Act does not authorize claims against individuals. Id. at 15-16.
Ms. Ashbourne does not dispute that she has not served Mr. Trommatter and Mr. Harker in their individual capacities. See generally Pl.'s Opp'n, ECF No. 11 at 8-9. In a separate motion, She moves for an extension of time to serve them, stating that she attempted service by mail to their home addresses, but that the mail was marked "return to sender" and "unable to forward." See Pl.'s Service Mot., ECF No. 13 at 1-2. Ms. Ashbourne also requests that the Court order government counsel to accept service on behalf of the individual defendants. See id. at 2.
Federal Rule of Civil Procedure 4(i)(3) requires that government employees sued in their individual capacities be served as individuals within 90 days after the complaint is filed. See Davison v. U.S. Dept. of State ,
The complaint in this case was filed on April 24, 2017. See Compl., ECF No. 1. Ms. Ashbourne filed her motion to extend her time to effect service 162 days later, 72 days after service was due. See Pl.'s Service Mot., ECF No. 13 (filed October 3, 2017). Far from providing a "valid reason" for her inability to timely serve Mr. Trommatter and Mr. Harker, Ms. Ashbourne provides no reason for the delay. See Battle ,
Regarding Ms. Ashbourne's request for alternative service, the "elementary law of agency" is "clear" that "any agent who accepts service must be shown to have been authorized to bind his principal by the acceptance of process."
*346Schwarz v. Thomas ,
Despite Ms. Ashbourne's failure to properly serve these two defendants, the Court will consider the defendants' argument that the Privacy Act claims should be dismissed against Mr. Trommatter and Mr. Harker in their individual capacities in the interest of judicial economy.
Ms. Ashbourne argues that her claim should proceed against the individual DHS defendants because she seeks criminal penalties and the Privacy Act provides for criminal penalties against individuals. See Pl.'s Opp'n Mot. to Dismiss, ECF No. 11 at 7-8 (citing 5 U.S.C. § 552a(i) ).
The law is clear that "no [individual] cause of action exists" under the Privacy Act. Martinez v. Bureau of Prisons ,
III. Ms. Ashbourne Stated a Privacy Act Claim Against the DHS Defendants in Their Official Capacities
The defendants move to dismiss Ms. Ashbourne's Privacy Act claims against the DHS defendants in their official capacities pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Defs.' Mot. to Dismiss, ECF No. 8 at 23-30.
To withstand 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 ,
The Privacy Act is "a comprehensive and detailed set of requirements for the management of confidential records held by Executive Branch agencies." FAA v. Cooper ,
To state a claim under subsection (g)(1)(C), a plaintiff must show that: (1) she has been "aggrieved by an adverse determination"; (2) the agency "failed to maintain [her] records with the degree of accuracy necessary to assure fairness in the determination"; (3) the agency's "reliance on the inaccurate records was the proximate cause of the adverse determination"; and (4) the agency "acted intentionally or willfully in failing to maintain accurate records." Chambers v. U.S. Dep't of Interior,
First, she alleges that the defendants deemed her unsuitable for federal employment, "publicly terminat[ing] her." Compl., ECF No. 1 ¶¶ 5, 6, 8, 20, 21. Second, she alleges that the defendants failed to maintain accurate records by "intentionally and deliberately fail[ing] to verify facts" and "obtain[ing] [false] information from Donna Hansberry, Donna Prestia, and Thomas Collins." Id. ¶¶ 24-36. Third, Ms. Ashbourne alleges that the defendants "intentionally and deliberately relied on falsified records," when they terminated her, knowing the records were "outdated, inaccurate, and unreliable." Id. Finally, Ms. Ashbourne pled that the defendants failed to maintain her records "intentionally and deliberately." Id. Accepting Ms. Ashbourne's factual allegations as true and drawing all reasonable inferences in her favor, it is plausible that the DHS defendants are liable for a violation of this section of the Privacy Act. See Ashcroft v. Iqbal ,
Ms. Ashbourne also stated an unlawful disclosure claim pursuant subsection (g)(1)(D). To state an unlawful disclosure claim, a plaintiff must show that "(1) the disclosed information is a 'record' contained within a 'system of records'; (2) the agency improperly disclosed the information;
*348(3) the disclosure was willful or intentional; and (4) the disclosure adversely affected the plaintiff." Feldman v. CIA ,
First, Ms. Ashbourne adequately pled that the disclosed information was her "personnel records." Compl., ECF No. 1 ¶¶ 5, 6, 24-36. Second, she pled that these private records were "publicly disclosed" to her "employing client, potential employers, and others." Id. ¶ 31. Ms. Ashbourne also pled that the defendants "intentionally and deliberately disseminated [the records] ... that they knew [were] inaccurate and defamatory." Id. ¶ 33. Finally, Ms. Ashbourne pled that this disclosure led to her termination. Id. ¶¶ 5, 6. Again, at this stage of the proceedings, it is plausible that the defendants are liable for the misconduct alleged. See Iqbal ,
The Court notes that defendants' relevant arguments rely on factual allegations that are not contained within the four corners of the Complaint, including that Ms. Ashbourne submitted the allegedly falsified records herself, that any disclosure is acceptable under the "routine use" exemption, and that Ms. Ashbourne provided consent for any disclosure. See Defs.' Mot. to Dismiss, ECF No. 8 at 23-30. Because a motion to dismiss "tests the legal sufficiency of a complaint," Browning v. Clinton ,
The defendants also argue that the alleged Privacy Act claims occurring before April 24, 2015 are time-barred because the Privacy Act contains a two-year statute of limitations. Defs.' Mot. to Dismiss, ECF No. 8 at 29-30 (citing 5 U.S.C. § 552a(g)(5) ). "[B]ecause statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred." Bregman v. Perles,
Defendants have not met this heavy burden because they do not point to any specific allegation in the complaint that is timebarred. See Defs.' Mot. to Dismiss, ECF No. 8 at 29-30. Instead, the defendants summarily conclude that "any claim that accrued before April 24, 2015 is time-barred." Id. at 30. It may well be that some or all of Ms. Ashbourne's Privacy Act claims are untimely, but the defendants have not met their burden to establish that the specific allegations that are "conclusively time-barred." Bregman,
IV. Ms. Ashbourne Stated a Due Process Claim Against the DHS Defendants in Their Official Capacities
Finally, the defendants move to dismiss Ms. Ashbourne's due process claim against the DHS defendants in their official capacities for failure to state a claim. Defs.' Mot. to Dismiss, ECF No. 8 at 30-34. To determine whether a plaintiff stated a due process claim, the Court must find that a plaintiff has been "deprived of a protected interest" before determining if the government's procedures "comport with due process."
*349Gen. Elect. Co. v. Jackson ,
Ms. Ashbourne argues that she was denied a liberty and property interest without due process. She first alleges that the defendants deprived her of her property interest in her company, Ashbourne & Company. Compl., ECF No. 1 at 1-2. However, Ms. Ashbourne does not describe how the government deprived her of that interest beyond a single, conclusory assertion in the introduction of her complaint. See
Ms. Ashbourne's remaining argument is that she was deprived of a liberty interest when she was "publicly terminated amidst stigmatizing charges of dishonesty" without a "meaningful opportunity to be heard." Compl., ECF No. 1 at 1, ¶ 37. The defendants argue that Ms. Ashbourne has not sufficiently pled that she was deprived of a liberty interest because any injury to her reputation was not accompanied by a state action that altered her legal status. Defs.' Mot. to Dismiss, ECF No. 8 at 30-31. Because Ms. Ashbourne was a government contractor, the defendants argue that she "had no employment relationship with the government necessary to find a liberty interest."
"As a general rule, 'persons whose future employment prospects have been impaired by government defamation lack ... any constitutional protection for the interest in reputation.' " McGinnis v. District of Columbia ,
Defendants' contention that, as a government contractor,
Ms. Ashbourne sufficiently alleged that the defendants characterized her as "negligent[ ]," "dishonest[ ]," and engaging in "misconduct." Compl., ECF No. 1 at ¶¶ 20-21. These allegations are corroborated by the April 22, 2015 letter, in which the Coast Guard determined that Ms. Ashbourne was "unsuitable" for federal employment due to her "employment misconduct or negligence" and her "dishonest conduct." Ex. 1, Defs.' Mot. to Dismiss, ECF No. 8-1. Defendants allegedly "publicly disclosed" this letter to Ms. Ashbourne's "employing client, potential employers, and others," while knowing she "would be terminated as a result." Compl., ECF No. 1 ¶¶ 6, 31. On these facts, the Court cannot determine that Ms. Ashbourne lacks a liberty interest as a matter of law. See McGinnis ,
It may well be that Ms. Ashbourne received an opportunity to clear her name, but at this stage, the Court cannot evaluate the sufficiency of any process afforded. See Ashbourne v. Hansberry ,
V. Further Proceedings are Stayed
Ms. Ashbourne moves to stay further proceedings pending the U.S. Equal Employment Opportunity Commission's ("EEOC") investigation of her Title VII complaint against DHS. See Pl.'s Mot. to Stay, ECF No. 2. The defendants oppose, arguing both claims can proceed separately. See Defs.' Opp'n Mot. to Stay, ECF No. 16.
"A trial court has broad discretion to stay all proceedings in an action *351pending the resolution of independent proceedings elsewhere." Hisler v. Gallaudet Univ.,
According to Ms. Ashbourne, her procedural predicament is that she is currently unable to bring a Title VII discrimination claim because she has not exhausted her EEOC administrative remedies. Pl.'s Mot. to Stay, ECF No. 2. However, the Privacy Act's statute of limitations would have prevented her from bringing the Privacy Act claims if she waited for EEOC adjudication.
However, Ms. Ashbourne was in this same procedural posture in Ashbourne II . In that case, Judge Kollar-Kotelly found that Ms. Ashbourne's Title VII claims against the Treasury defendants, brought after Ashbourne I , were barred by res judicata. The Court found that Ms. Ashbourne "could have pursued her Title VII claims ... but did not seek to amend the complaint ..., nor has [she] presented any credible evidence that she sought a stay ... to pursue her appeal with the EEOC." Ashbourne II ,
If this Court does not stay the proceedings and the D.C. Circuit affirms Judge Kollar-Kotelly's decision in Ashbourne II , Ms. Ashbourne may be barred from bringing her Title VII claim(s) in the future. See Ashbourne II ,
Ms. Ashbourne's motion to stay is GRANTED , albeit not on Ms. Ashbourne's terms. Rather than stay the case pending EEOC adjudication, the case is stayed pending the D.C. Circuit's decision in Ashbourne II . The parties are directed to file on the docket their recommendations for further proceedings within fifteen days of the D.C. Circuit's decision in Ashbourne II , Case No. 17-5136.
VI. Conclusion
Accordingly, for the reasons set forth in this Memorandum Opinion it is HEREBY ORDERED that:
(1) the defendants' motion to dismiss [ECF No. 8] is GRANTED in PART and DENIED in PART ;
(a) all claims against the Treasury Secretary and the individual Treasury defendants Donna Hansberry, Donna Prestia, and Thomas Collins are DISMISSED WITH PREJUDICE;
(b) the due process claims against James Trommatter and Thomas Harker in their individual capacities are DISMISSED WITHOUT PREJUDICE;
(c) the Privacy Act claims against James Trommatter and Thomas Harker in their individual capacities are DISMISSED WITH PREJUDICE;
*352(d) the Privacy Act claims against the DHS Secretary, James Trommatter and Thomas Harker in their official capacities shall go forward after the stay is lifted; and
(d) the due process claims against the DHS Secretary, James Trommatter and Thomas Harker in their official capacities shall go forward after the stay is lifted;
(2) Ms. Ashbourne's service motion [ECF No. 13] is DENIED ; and
(3) Ms. Ashbourne's motion to stay [ECF No. 2] is GRANTED . The case is hereby stayed pending the D.C. Circuit's decision in Ashbourne II , Case No. 17-5136.
SO ORDERED.
Ms. Ashbourne also purports to sue defendants under the Fourteenth Amendment. However, the Fourteenth Amendment applies only to states and not to the federal government. See Bolling v. Sharpe,
Government counsel does not represent three of the individual defendants-Donna Prestia, Thomas Harker, and James Trommatter-in their individual capacities because these individuals have not been served and have not sought legal representation from government counsel. See Defs.' Mot. to Dismiss, ECF No. 8 at 1, n.1. Government counsel "advises that the claims against them should be dismissed for reasons also applicable to the other individual defendants and present[s its arguments on behalf of all defendants] as a statement of interest."
Defendants make several other arguments in support of their motion to dismiss, although it is not altogether clear whether these arguments pertain to all of the defendants or just the DHS defendants. See generally , Defs.' Mot. to Dismiss, ECF No. 8. Regardless, the Court need not reach these additional arguments.
When citing electronic filings throughout this opinion, the Court cites to the ECF page number, not the page number of the filed document.
See Case No. 17-5136 (oral argument scheduled for April 30, 2018).
Because the Court dismissed these claims against these defendants in their individual capacities pursuant to FRCP 4(m), the Court need not reach the defendants' other arguments. See Defs.' Mot. to Dismiss, ECF No. 8 at 12-22.
"[T]he interest of judicial economy is served by reaching the merits of [Ms. Ashbourne's] claims against [individual defendants Mr. Trommatter and Mr. Harker] at this time, rather than delaying the inevitable by allowing [Ms. Ashbourne] to file another lawsuit against those Defendants containing the same meritless claims." McManus v. District of Columbia ,
The April 22, 2015 letter that states that Ms. Ashbourne is unsuitable for federal employment establishes that she is a contractor. See Ex. 1, Defs.' Mot. to Dismiss, ECF No. 8-1. While Ms. Ashbourne does not attach the letter to her complaint, the Court may take judicial notice of it because it is a document "upon which the plaintiff's complaint necessarily relies." Ward v. District of Columbia Dep't of Youth Rehab. Servs. ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.