Virginia Lawyers Weekly//September 25, 2023
Virginia Lawyers Weekly//September 25, 2023//
Where claims brought by a former Defense Logistics Agency employee were barred by sovereign immunity or failed to state a claim, they were dismissed.
William David Jones, proceeding pro se, has filed suit against his former employer, the Defense Logistics Agency, or DLA, and 12 individual federal employees for violations that he alleges occurred during his employment with DLA and debarment from the installation. He alleges (1) constitutional; (2) Administrative Procedure Act; (3) Freedom of Information Act; (4) Privacy Act and (5) administrative claims. Defendants move the court to dismiss, or in the alternative, enter summary judgment against Jones.
To the extent Jones seeks to bring the non-constitutional claims against the individuals, they must be dismissed because they are not properly before this court. First, the individuals have not been served in their individual capacities. Second, had they been served, the individual employees are not proper defendants for the non-constitutional claims asserted. Finally, to the extent Jones is attempting to assert constitutional claims against the newly named individuals, the claims are untimely.
In Count One, Jones contends that DLA violated his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution. However, these claims are barred by sovereign immunity.
In Count Two, Jones asserts that DLA arbitrarily and capriciously debarred him in violation of the Administrative Procedure Act, or APA. But the record, even viewed favorably toward Jones, shows that DLA followed Department of Defense and DLA protocol and that Jones’s actions were contrary to the maintenance of good order and discipline at the DLA’s Defense Supply Center.
In Count Three, Jones alleges that DLA violated provisions of the Freedom of Information Act, or FOIA, by failing to “publish its debarment procedures.” The court does not have jurisdiction to review this claim because no record exists that DLA received a FOIA request from Jones for the debarment procedures.
Reading Count Four liberally, Jones presents two Privacy Act Claims: (1) unauthorized disclosure and (2) denial of access. Neither prevails.
To establish a Privacy Act unauthorized disclosure claim, a plaintiff must establish, by a preponderance of the evidence, five elements regarding the allegedly unauthorized disclosure of information. Here, Jones simply makes the naked assertion that the “debarment forced [Jones] to file his complaint via e-mail without a face-to-face meeting with any EEO counsel which violated 5 USC 552a, since exchanges of private, sensitive information occurred over unsecure electronic means.” This single assertion – even under penalty of perjury – does not sufficiently state a cause of action.
Second, even construing his complaint liberally and accepting the allegations as true, Jones has not stated facts showing that he made a proper request for records under DLA’s rules, nor has he shown that DLA’s response was improper according to those rules. He baldly asserts that he was asked to file a FOIA request, which he claims “violated 5 [U.S.C.] 552(a)(d)(l) and (d)(2).” Any FOIA interaction is irrelevant to his Privacy Act claim. Jones does not allege why the invitation for him to file a FOIA would be relevant.
Instead, he alleges in conclusory fashion that this directive violated the Privacy Act. Even if the court were to presume that it did violate the Privacy Act, Jones’s claim would nonetheless founder at the most basic level: he never alleges that he filed a Privacy Act request that resulted in a denial of access. He never states that he was asked to file a FOIA after he properly filed a Privacy Act request, if that Privacy Act request was denied and if the denial was improper under the Act.
In Count Five, Jones contends that DLA “violated the administrative and procedural aspects of 29 CFR, 5 U.S.C. [§] 6329b, 32 CFR [§] 2004,” and PL 111-292. The government contends that Jones “fails any ostensible effort he makes to comply with the Requirements of Fed. R. Civ. P. 8(a)” because his allegations fail to give the government fair notice of his claim and the grounds upon which it rests. This court agrees.
Defendant’s motion to dismiss plaintiff’s second amended complaint, or in the alternative, motion for summary judgment granted.
Jones v. Department of Defense, Case No. 3:21-cv-288, Sept. 1, 2023. EDVA at Richmond (Lauck). VLW 023-3-546. 49 pp.