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Press v. United States

United States District Court, D. Maryland

July 3, 2018

RODERICK PRESS, Plaintiff
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM

          JAMES K. BREDAR CHIEF JUDGE

         Plaintiff Roderick Press brought this action against the United States of America (“the Government”) and two private Defendants, Knight Sky LLC and George Knizewski on June 19, 2017. (Compl., ECF No. 1.) On May 16, 2018 the Court granted Plaintiff leave to file an amended complaint. (See Order, ECF No. 36; Am. Compl., ECF No. 37.) In the new complaint, Plaintiff asserted a new claim under the Privacy Act, 5 U.S.C. § 552a, against the Government only. (See Am. Compl. ¶¶ 68-73.) The Government moved to dismiss the Privacy Act claim on May 30, 2018. (Mot. Dismiss, ECF No. 39.) Plaintiff has not responded in opposition and the time permitted for doing so has passed. Therefore, the motion is ripe for review. No. hearing is necessary to resolve the matter. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, the Government's motion will be granted by accompanying order and Plaintiff's Privacy Act claim will be dismissed.

         I. Background

         The Court has recited the facts of this case (as alleged by Plaintiff in his original and amended complaints) twice before. See Mem. Granting Mot. Dismiss 2-4, ECF No. 26; Mem. Granting Mot. to Amend 2-4, ECF No. 35.) Few of those facts are pertinent to the disposition of the Government's motion to dismiss.

         Essentially, Plaintiff alleges that his former employer reported erroneous and irrelevant information to a security database managed by the Department of Defense (“DoD”)-called the Joint Personnel Adjudication Verification System (“JPAS”)-and that the Government did not handle that information well. The information at issue includes an “Incident Report, ” which basically consists of accusations that Plaintiff mishandled sensitive information while working for his previous employer, and the “Addendum” which discusses a lawsuit Plaintiff brought against his former employer and the negative impact it has had on his former employer. (The lawsuit concerned allegations of defamation and slander related to competition between Plaintiff's company and his former employer.) In addition to bringing a negligence claim regarding the Government's alleged carelessness in permitting Plaintiff's former employer to upload the Addendum, [1] Plaintiff now seeks to bring a Privacy Act claim, alleging that the “Department of Defense” has failed to remove “inaccurate and irrelevant information from Plaintiff's JPAS account” despite Plaintiff's “averments that the information . . . [was] both inaccurate and irrelevant.” (Am. Compl. ¶ 71.) Plaintiff alleges that he submitted a request to the DoD on February 7, 2017 to expunge “the false incident report and addendum, ” that his request was denied, that he appealed, and that his appeal was denied. (Id. ¶¶ 46-47.) Plaintiff has brought this claim only against the “United States of America, ” and only under 5 U.S.C. §§ 552a(e)(1) and 552a(d)(2)(B)(i). (See id ¶¶ 69-70.)

         The Government brought a motion to dismiss this Privacy Act claim. Plaintiff has not responded in opposition, and the motion is ripe.

         II. Standard

         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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a motion to dismiss a court must accept as true all factual allegations in the complaint. Twombly, 550 U.S. at 555. This principle does not, however, apply to legal conclusions couched as factual allegations. Id.

         III. Analysis

         The Court will grant the Government's motion to dismiss for four reasons. First, Plaintiff has not brought the suit against the appropriate entity. Second, it appears that Plaintiff did not bring the suit under the correct sections of the Privacy Act. Third, it is unclear if Plaintiff could bring the type of claim he wishes to bring, even if he had named the correct entity and brought the claim under the correct sections of the Act. Fourth, Plaintiff has not responded in opposition and therefore it appears that he has conceded these arguments and abandoned the claim.

         a. The Proper Party

         “The United States is not a proper party in an action brought pursuant to the Privacy Act.” Sheppard v. Revell, No. 5:09-CT-3044-FL, 2010 WL 3672261, at *2 (E.D. N.C. Sept. 20, 2010). “[A] claimant bringing a Privacy Act claim must bring suit against a particular agency, not the entire United States.” Mumme v. U.S. Dep't of Labor, 150 F.Supp.2d 162, 169 (D. Me. 2001) (citing 5 U.S.C. § 552a(g)(1)). If a plaintiff brings a Privacy Act suit against an entity that is not the appropriate agency, the complaint may be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987) (affirming dismissal on those grounds).

         Plaintiff brought this claim against the United States of America. His allegations reference the DoD, but he has not named it as a Defendant, or moved to amend to add it as a Defendant. The Court will dismiss Plaintiff's Privacy Act claim because relief against the United States cannot be granted.

         b. The ...


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