United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE
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.
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.
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,
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.)
Government brought a motion to dismiss this Privacy Act
claim. Plaintiff has not responded in opposition, and the
motion is ripe.
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
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.
The Proper Party
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).
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.