Richardson v. Bd. of Governors of the Fed. Reserve Sys.

288 F.Supp.3d 231

Edward RICHARDSON, Plaintiff,

v.BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, et al, Defendants.

Civil Action No. 16–867 (RMC)

United States District Court, District of Columbia.

Signed January 26, 2018

Edward Richardson, Fredericksburg, VA, pro se.

William Mark Nebeker, U.S. Attorney's Office, Yonatan Gelblum, Yvonne F. Mizusawa, Board of Governor of the Federal Reserve System, Washington, DC, for Defendant.

ROSEMARY M. COLLYER, United States District Judge

MEMORANDUM OPINION

Edward Richardson worked as a law enforcement officer for the Board of Governors of the Federal Reserve System (the Board) for approximately one year before he was terminated on June 7, 2010. This is the third in a series of lawsuits Mr. Richardson has brought pro se against the Board or its employees, alleging actions that he believes led to his wrongful termination or have prevented him from securing future employment. After the Board moved to dismiss Mr. Richardson's claims in this action, the Court granted the motion in part and dismissed several of Mr. Richardson's claims, but denied the motion as to two claims brought under the Privacy Act. The Board has now moved the Court to reconsider the motion to dismiss as to those two remaining claims. Because the Court finds, upon reconsideration, that Mr. Richardson failed to establish pecuniary damages as required to bring a Privacy Act claim, the Board's motion will be granted and the remaining claims will be dismissed.

I. BACKGROUND

The facts alleged in this case have already been recited in detail, see Richardson v. Yellen , 167 F.Supp.3d 105, 108 (D.D.C. 2016) ( Richardson I ), and only those facts that are pertinent to Mr. Richardson's remaining claims need be reiterated here. Prior to his employment with the Board, Mr. Richardson was a military police officer in the United States Army. While deployed in Iraq in 2003, Mr. Richardson was subjected to fumes and toxins that apparently led to severe asthma and allergies. Mr. Richardson informed the Board of this medical condition before he was hired. Mr. Richardson began working for the Board's Law Enforcement Unit (LEU) on June 8, 2009. In approximately October 2009 and again in November 2009, Mr. Richardson requested accommodations for his medical condition. Neither of these requests was acknowledged or addressed by the Board.

The Board terminated Mr. Richardson's employment on July 7, 2010; he was informed that his termination was based on a lack of support for his absences. See Second Am. Compl. ¶ 20 [Dkt. 20] (SAC). Mr. Richardson has alleged that Board employees conspired to remove 22 medical documents supporting instances when he had been absent from work for medical reasons ("calloffs") from his personnel file. See id. ¶¶ 26, 127. These claims have since been dismissed by the Court. See 3/31/2017 Order [Dkt. 27]; Richardson v. Bd. of Governors of the Fed. Reserve Sys. , 248 F.Supp.3d 91 (D.D.C. 2017) ( Richardson III ).

Mr. Richardson alleges that, following his termination, Board employees Billy Sauls and Albert Pleasant illegally obtained his cellphone records in 2010 and 2011 without his knowledge and then released those records to other Board personnel in violation of the Privacy Act of 1974, 5 U.S.C. § 552a et seq. (the Privacy Act or the Act). See SAC ¶¶ 60–62. Mr. Richardson also alleges that Board employee Kevin May conspired to remove medical documents from Mr. Richardson's personnel file. See id. ¶ 65. On October 16, 2014, Mr. Richardson initiated a complaint with the Attorney Grievance Commission of Maryland (Maryland Commission) against Mr. May. On January 11, 2015, Mr. May sent certain documents from Mr. Richardson's personnel file to the Maryland Commission in response to that complaint. Id. ¶ 65. Mr. Richardson alleges that this disclosure also violated the Privacy Act. Id. ¶¶ 140–41.¹

Mr. Richardson has remained unemployed since his termination from the Board. He attributes his unemployment to the Board's continued actions against him and in particular, to the alleged tampering with his personnel file. Specifically, Mr. Richardson's personnel file contains a Notice of Suspension Without Pay, dated May 20, 2010, issued by LEU Deputy Chief Marvin Jones. Mr. Richardson alleges that the Notice was falsified and that he was never suspended and did not receive a copy of the Notice. Id. ¶ 78. Defendants have acknowledged that Mr. Richardson never received the Notice, explaining that this was "because his provisional Board employment was terminated." Richardson v. Yellen , No. 14–cv–1673, Answer [Dkt. 28] ¶ 59. Nonetheless, the Notice was placed in Mr. Richardson's personnel file and in a report from the Equal Employment Opportunity Commission following its investigation.

Mr. Richardson believes that the allegedly falsified Notice in his file led to his being determined ineligible for future employment, specifically by the D.C. Department of Corrections. See SAC ¶¶ 78, 81, 84; see also id. at ¶ 85 ("[Mr. Richardson] received notification by the D.C. Department of Corrections that he was ineligible for employment due to falsified information in his Board personnel file."). Mr. Richardson made these allegations in Count Four of his Amended Complaint, which has been dismissed. See SAC ¶¶ 154–64; 3/31/2017 Order.

On May 9, 2016, Mr. Richardson filed the current matter against the Board, alleging various constitutional claims and federal statutory violations. See Compl. [Dkt. 1]. He subsequently amended the instant complaint to add several claims under the Federal Tort Claims Act (FTCA) against the United States. See First Am. Compl. [Dkt. 17]; see also SAC. After the Board moved to dismiss Mr. Richardson's allegations, the Court dismissed a number of Mr. Richardson's claims in this action. See 3/31/2017 Order; Richardson III , 248 F.Supp.3d 91.

The remaining counts allege violations of the Privacy Act, for the release of information from Mr. Richardson's personnel file to the Maryland Commission (Count Two) and the alleged illegal search and seizure of Mr. Richardson's cellphone and dissemination of his cellphone records (Count Six).² Mr. Richardson claims under Count Two that he "has suffered adverse and harmful effects" due to Mr. May's alleged mishandling of his personal information, "including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present and future financial opportunities." SAC ¶ 144. Similarly, regarding Mr. Richardson's allegations of improper search and dissemination of his cellphone records, Count Six alleges that Mr. Richardson "has suffered adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present and future financial opportunities." Id. ¶ 183. Mr. Richardson also complains that, "[a]s a direct result of the defendants' actions [he] has involuntarily remained unemployed since his June 7, 2010 termination." Id. ¶ 84.

After the Court declined to dismiss Counts Two and Six, the Board moved for reconsideration. Mot. for Recons. [Dkt. 29] (Mot.). Mr. Richardson opposed. Mem. Opp'n Mot. for Recons. [Dkt. 32] (Opp'n). The Board replied. Reply Opp'n Mot. for Recons. [Dkt. 33] (Reply). The motion is ripe for review.

II. LEGAL STANDARD

Generally, a motion for reconsideration is governed by the "law of the case" doctrine: "the same issue presented a second time in the same case in the same court should lead to the same result." LaShawn A. v. Barry , 87 F.3d 1389, 1393 (D.C. Cir. 1996). However, interlocutory orders, including a partial granting of a motion to dismiss, "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Thus, the Court is "free to reconsider" a non-final judgment. Filebark v. Dep't of Transp. , 555 F.3d 1009, 1013 (D.C. Cir. 2009). The Court should reconsider interlocutory orders only "as justice requires." United States v. Slough , 61 F.Supp.3d 103, 107 (D.D.C. 2014) (quoting United States v. Coughlin , 821 F.Supp.2d 8, 18 (D.D.C. 2011) ). To determine whether "justice requires" reconsideration, "the Court considers whether it ‘patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.’ " Slough , 61 F.Supp.3d at 108 (quoting Singh v. George Washington Univ. , 383 F.Supp.2d 99, 101 (D.D.C. 2005) ).

III. ANALYSIS

A. "Actual Damages"

The Board argues that reconsideration is appropriate here because "the Court misapprehended the Board's arguments as reaching only the merits of Plaintiff's Privacy Act claims, when in fact the Board also argued that no relief was available to Plaintiff under the Act." Mot. at 4. The Board argues that no relief is available to Mr. Richardson under the Privacy Act because he fails to plead "actual, pecuniary damages," and has failed to state a claim for which relief can be granted under the Act. Id. at 5.

In denying Defendants' Motion to Dismiss as to Counts Two and Six, the Court determined that there was insufficient information to dismiss the claims on the merits. As to Count Two, the Court found that Defendants had failed to provide sufficient information for the Court to find that the Privacy Act's "routine use" exception applied to Kevin May's dissemination to the Maryland Commission of three documents related to Mr. Richardson. See Richardson III , 248 F.Supp.3d at 101–02.

The Court found that the Board had not explained "how Mr. Richardson's confidential files were disclosed for a purpose compatible with the purpose for which those files were collected," as required to trigger the "routine use" exception under the Privacy Act. Id. at 102 ; see also 5 U.S.C....