UNITED STATES DISTRICT COURT FOR THEDISTRICT OF COLUMBIA

SEAN M. GERLICH, et al.,

Plaintiffs,

v.

UNITED STATES DEPARTMENT OFJUSTICE, et al.,

Defendants.

Civil Action No.: 1:08-cv-01134(JDB)

MEMORANDUM IN SUPPORT OF DEFENDANT DEPARTMENT OF JUSTICE’SMOTION TO DISMISS SECOND AMENDED COMPLAINT AND THE UNITED

STATES’ STATEMENT OF INTEREST SUPPORTING DISMISSAL OF CLAIMSAGAINST THE INDIVIDUAL DEFENDANTS

GREGORY G. KATSASAssistant Attorney GeneralCivil Division

RICHARD MONTAGUE JOHN R. TYLERSenior Trial Counsel Assistant Branch DirectorTorts Branch, Civil Division Federal Programs Branch

MEGAN L. ROSE JACQUELINE COLEMAN SNEADTrial Attorney (D.C. Bar No. 459548)Torts Branch, Civil Division Trial Attorney(D.C. Bar No. 495258) United States Department of Justice

Civil Division, Federal Programs Branch20 Massachusetts Avenue N.W., Room 7214Washington, D.C. 20530Tel: (202) 514-3418Fax: (202) 616-8470Email: jacqueline.snead@usdoj.gov

Attorneys for the United States Department of Justice

TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES. ....................................................................................................... iii

INTRODUCTION........................................................................................................................... 1

RELEVANT REGULATORY AND STATUTORY PROVISIONS............................................. 3

A. Civil Service Reform Act........................................................................................ 3

B. Privacy Act.............................................................................................................. 5

C. Federal Records Act................................................................................................ 7

STATEMENT OF FACTS. ............................................................................................................ 8

Overview of the Honors Program and Summer Legal Intern Program............................... 8

Plaintiffs’ Second Amended Complaint. ............................................................................ 9

ARGUMENT.................................................................................................................................. 9

I. PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED FOR LACK OF STANDING. ................................................................................................... 10

A. Four Plaintiffs’ Alleged Injuries Were not Caused by the AllegedConduct of the Department. ...................................................................... 10

B. Plaintiffs Gooch and Spiegel Lack Standing to Challenge the Alleged Selection Practices of the 2006 Screening Committee................ 13

C. Plaintiffs Lack Standing to Seek Injunctive Relief. .................................. 13

II. PLAINTIFFS’ PRIVACY ACT CLAIMS ARE PRECLUDED BYTHE CSRA. .......................................................................................................... 16

III. PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED UNDER RULE 12(B)(6). .................................................................................................... 20

A. Plaintiffs’ Privacy Act Claims Fail Because the Only Record of Theirs in Any Department System of Records Complied With the Act....................................................................................................... 21

ii

1. Plaintiffs Have Not Sufficiently Pled That the AllegedInternet Printouts Were Maintained in the Department’s System of Records. ....................................................................... 23

2. Plaintiffs Have Not Sufficiently Pled That the AllegedMaintenance of Their Employment Applications Violated the Privacy Act.............................................................................. 24

B. Plaintiffs’ Subsection (e)(7) Claim Fails Under Rule 12(b)(6)................. 25

C. Plaintiffs Have Not Sufficiently Pled Intentional or Willful Conduct. .................................................................................................... 27

D. Plaintiffs Have Failed to Allege Facts From Which This Court Could Infer That They Have Sustained Actual Damages. ........................ 29

IV. PLAINTIFFS’ FRA CLAIM SHOULD BE DISMISSED FOR LACK OF JURISDICTION OR ALTERNATIVELY FAILURE TO STATE A CLAIM.................................................................................................................. 31

V. THE CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS SHOULD BE DISMISSED AS FORECLOSED UNDER BINDING PRECEDENT. ......... 32

A. Plaintiffs’ Bivens Claims Are Foreclosed by the ComprehensiveScheme Congress Adopted in the CSRA.................................................. 34

B. To the Extent Plaintiffs’ Bivens Claims Are Based on Alleged Violations of Privacy or Misuse of Information About Plaintiffs, Their Claims Are Precluded by the Privacy Act and CSRA..................... 41

CONCLUSION............................................................................................................................. 45

iii

TABLE OF AUTHORITIES

CASES PAGE(s)

Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,525 F.3d 8 (D.C. Cir. 2008). ............................................................................................ 38

Albright v. United States,732 F.2d 181 (D.C. Cir. 1984). ........................................................................................ 27

Alexander v. Sandoval,532 U.S. 275 (2001)......................................................................................................... 34

Armstrong v. Bush,924 F.2d 282 (D.C. Cir. 1991). .................................................................................. 31, 32

Benoit v. United States Dep't of Agriculture,__ F. Supp. 2d __, 2008 WL 4133080 (D.D.C., Sept. 8, 2008)....................................... 16

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,403 U.S. 388 (1971).................................................................................................. passim

Blazy v. Tenet,194 F.3d 90 (D.C. Cir. 1999). .......................................................................................... 42

Boyd v. Snow,335 F. Supp. 2d 28 (D.D.C. 2004). .................................................................................. 29

Broaddrick v. Executive Office of President,139 F. Supp. 2d 55 (D.D.C. 2001). .................................................................................. 27

Bush v. Lucas,462 U.S. 368 (1982).................................................................................................. passim

Cardamone v. Cohen,241 F.3d 520 (6th Cir. 2001). .......................................................................................... 42

Carducci v. Regan,714 F.2d 171 (D.C. Cir.1983). ......................................................................................... 38

Carey v. Piphus,435 U.S. 247 (1978)......................................................................................................... 40

Carlson v. Green,446 U.S. 14 (1980)........................................................................................................... 33

iv

Chung v. United States,333 F.3d 273 (D.C. Cir. 2003). ........................................................................................ 43

Citizens for Responsibility & Ethics in Washington v. United States Dep't of HomelandSecurity,527 F. Supp. 2d 101 (D.D.C. 2007). .......................................................................... 14, 31

Clark v. Bureau of Prisons,407 F. Supp. 2d 127 (D.D.C. 2005). ................................................................................ 27

Correctional Servs. Corp. v. Malesko,534 U.S. 61 (2001)........................................................................................................... 33

Crawford-El v. Britton,93 F.3d 813 (D.C. Cir. 1996), vacated, 523 U.S. 574 (1998).......................................... 40

Crawford-El v. Britton,523 U.S. 574 (1998)......................................................................................................... 39

Davis v. Passman,442 U.S. 228 (1979)......................................................................................................... 33

Deters v. U.S. Parole Comm'n,85 F.3d 655 (D.C. Cir. 1996). .......................................................................................... 43

DiMura v. Federal Bureau of Investigation,823 F. Supp. 45 (D. Mass. 1993). .................................................................................... 29

Doe v. Chao,540 U.S. 614 (2004)......................................................................................................... 29

Downie v. City of Middleburg Heights,301 F.3d 688 (6th Cir. 2002). .................................................................................... 42, 45

FDIC v. Meyer,510 U.S. 471 (1994)......................................................................................................... 16

Flast v. Cohen,392 U.S. 83 (1968)........................................................................................................... 16

Florida Audubon Soc'y v. Bentsen,94 F.3d 658 (D.C. Cir. 1996). .......................................................................................... 10

Flowers v. Executive Office of President,142 F. Supp. 2d 38 (D.D.C. 2001). ................................................................ 21, 23, 27, 30

v

Foncello v. United States Dep't of Army,2005 WL 2994011 (D. Conn., Nov. 7, 2005). ................................................................. 27

Gianelli v. Chirkes,377 F. Supp. 2d 49 (D.D.C. 2005). .................................................................................. 12

Hatfill v. Ashcroft,404 F. Supp. 2d 104 (D.D.C. 2003). ................................................................................ 42

Houston v. United States Dep't of Treas.,494 F. Supp. 24 (D.D.C. 1979). ....................................................................................... 30

Howard v. Gutierrez,474 F. Supp. 2d 41 (D.D.C. 2007). .................................................................................. 11

Hubbard v. United States Envtl. Protection Agency,809 F.2d 1 (D.C. Cir. 1986). .......................................................................... 17, 18, 20, 36

Hudson v. Reno,130 F.3d 1193 (6th Cir. 1997). ........................................................................................ 29

In re Iraq & Afghanistan Detainees Litig.,479 F. Supp. 2d 85 (D.D.C. 2007). .................................................................................. 33

Johnson v. Jones,515 U.S. 304 (1995)......................................................................................................... 40

Kissinger v. Reporters Comm. for Free of Press,445 U.S. 136 (1980)................................................................................................... 31, 32

Kleiman v. Department of Energy,956 F.2d 335 (D.C. Cir. 1992). ........................................................................................ 17

Kowal v. MCI Communications Corp.,16 F.3d 1271 (D.C. Cir.1994). ......................................................................................... 38

Krieger v. United States Dept. of Justice,529 F. Supp. 2d 29 (D.D.C. 2008) . ........................................................................... 22, 23

Laird v. Tatum,408 U.S. 1 (1972)............................................................................................................. 15

Laningham v. United States Navy,813 F.2d 1236 (D.C. Cir. 1987). ...................................................................................... 27

vi

Lee v. Geren,480 F. Supp. 2d 198 (D.D.C. 2007). .......................................................................... 17, 18

Lindahl v. Office of Personnel Management,470 U.S. 768 (1985)......................................................................................................... 38

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992)......................................................................................................... 10

Martinez v. Bureau of Prisons,444 F.3d 620 (D.C. Cir. 2006). ........................................................................................ 43

Maydak v. United States,363 F.3d 512 (D.C. Cir. 2004). ........................................................................................ 22

McKesson Corp. v. Islamic Republic of Iran,539 F.3d 485 (D.C. Cir. 2008). ........................................................................................ 33

Mittleman v. United States Treasury,773 F. Supp. 442 (D.D.C. 1991). ..................................................................................... 43

Montemayor v. Federal Bureau of Prisons,2005 WL 3274508 (D.D.C., Aug. 25, 2005). .................................................................. 29

National Treasury Employees Union v. Horner,854 F.2d 490 (D.C. Cir. 1988). ........................................................................................ 39

Nebraska Beef, Ltd. v. Greening,398 F.3d 1080 (8th Cir. 2005). ........................................................................................ 34

Pilon v. United States Dep't of Justice,796 F. Supp. 7 (D.D.C.1992). .......................................................................................... 27

Pope v. Bond,641 F. Supp. 489 (D.D.C. 1986). ..................................................................................... 30

Public Citizen, Inc. v. National Highway Traffic Safety Admin.,489 F.3d 1279 (D.C. Cir. 2007). ...................................................................................... 10

Schlesinger v. Reservists Comm. to Stop War,418 U.S. 208 (1974)......................................................................................................... 14

Schmidt v. United States Dep't of Veterans Affairs,222 F.R.D. 592 (E.D. Wis. 2004). ................................................................................... 29

vii

Schweiker v. Chilicky,487 U.S. 412 (1988).................................................................................................. passim

Spagnola v. Mathis,809 F.2d 16 (D.C. Cir. 1986). ................................................................................... passim

Spagnola v. Mathis,859 F.2d 223 (D.C. Cir. 1988). ................................................................................. passim

Steadman v. Governor, U.S. Soldiers' & Airmen's Home,918 F.2d 963 (D.C. Cir. 1990). .......................................................................................... 4

Taylor v. FDIC,132 F.3d 753 (D.C. Cir. 1997). ........................................................................................ 16

Thompson v. Department of State,400 F. Supp. 2d 1 (D.D.C. 2005). .............................................................................. 22, 25

Transportation Workers Union of Am. v. Transportation Security Admin.,492 F.3d 471 (D.C. Cir. 2007). ........................................................................................ 10

US Ecology, Inc. v. United States Dep't of Interior,231 F.3d 20 (D.C. Cir. 2000). .............................................................................. 10, 11, 14

United States v. Fausto,484 U.S. 439 (1988)....................................................................................................... 3, 4

Wagshal v. Foster,28 F.3d 1249 (D.C. Cir. 1994). .................................................................................. 14, 15

Weaver v. United States Information Agency,87 F.3d 1429 (D.C. Cir. 1996). ........................................................................................ 18

Wells v. United States,851 F.2d 1471 (D.C. Cir. 1988). ...................................................................................... 21

White v. Office of Personnel Mgmt.,840 F.2d 85 (D.C. Cir. 1988). .................................................................................... 21, 27

Whitmore v. Arkansas,495 U.S. 149 (1990)......................................................................................................... 14

Wiley v. Department of Veterans Affairs,176 F. Supp. 2d 747 (E.D. Mich. 2001)........................................................................... 29

viii

Wilkie v. Robbins,,551 U.S. __, 127 S. Ct. 2588, 2589 (2007).......................................................... 34, 35, 39

Wilson v. Libby,498 F. Supp.2d 74 (D.D.C. 2007), aff'd 535 F. 3d 697 (D.C. Cir.2008). ................. passim

STATUTES

Pub. L. No. 95-454, 92 Stat. 1111. ................................................................................................ 3

Fed. R. Civ. P. 12(b)(6)................................................................................................ 2, 20, 21, 25

5 U.S.C. § 552a. .................................................................................................................... passim

5 U.S.C. § 1212.................................................................................................................. 4, 40, 41

5 U.S.C. § 1214.................................................................................................................... 4, 5, 41

5 U.S.C. § 2102............................................................................................................................ 39

5 U.S.C. § 2301............................................................................................................ 4, 16, 20, 41

5 U.S.C. § 2302.................................................................................................................. 3, 20, 41

28 U.S.C. § 517.............................................................................................................................. 3

44 U.S.C. § 2901...................................................................................................................... 7, 31

44 U.S.C. § 2902...................................................................................................................... 7, 31

44 U.S.C. § 2904............................................................................................................................ 7

44 U.S.C. § 2905...................................................................................................................... 7, 32

44 U.S.C. § 3101....................................................................................................................... 7, 31

44 U.S.C. § 3106...................................................................................................................... 7, 32

44 U.S.C. § 3301...................................................................................................................... 7, 31

MISCELLANEOUS

P. Schuck, Suing Government (1983)........................................................................................... 40

INTRODUCTION

Plaintiffs, eight past applicants for permanent or summer employment with Defendant

Department of Justice (“Department”), contend that they were not selected for interviews

allegedly because improper factors were considered in making such selections. Specifically,

Plaintiffs contend that, during the hiring in 2002 and 2006 for the Honors Program and Summer

Law Intern Program, a management-level committee deselected applicants for interviews based

on their political affiliations in violation of the Privacy Act, Federal Records Act, and the First

and Fifth Amendments to the Constitution. Plaintiffs contend that, as a result, they allegedly

suffered emotional and other damages. Without reaching the merits of Plaintiffs’ claims,

however, the Court should dismiss those claims as not properly before it.

Four of the eight Plaintiffs were never in a position to be deselected for interviews

allegedly based on their political affiliations because none of the Department components to

which those Plaintiffs applied selected them for interviews. Because the alleged misconduct

occurred at the Department-level review – after these Plaintiffs already had been denied

employment – their alleged damages clearly were not caused by that alleged misconduct. Two

other Plaintiffs’ claims likewise fail because, even though their applications reached the

Department-level review in the Fall of 2002, their claimed injury from being deselected in 2002

is predicated on alleged conduct that occurred four years later in the Fall of 2006. Article III

standing, however, requires that there be a causal relationship between the alleged injury and the

alleged misconduct. Because standing cannot be established for six of the Plaintiffs, their claims

should be dismissed for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil

Procedure.

2

An additional and independent jurisdictional deficiency applies to the claims of all eight

Plaintiffs. The Civil Service Reform Act (“CSRA”) affords applicants for federal employment

the only remedy for adverse, non-selection decisions. Rather than pursuing remedies pursuant to

that exclusive scheme, Plaintiffs improperly have invoked this Court’s jurisdiction under the

Privacy Act, 5 U.S.C. § 552a. In a long line of cases, D.C. Courts have held that such evasion of

the CSRA is precluded and requires dismissal for lack of jurisdiction. Consistent with that line

of authority, the Court should dismiss Plaintiffs’ Privacy Act claims against the Department as

foreclosed by the CSRA. Alternatively and independently, the Court should dismiss those claims

under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to plead their essential

elements.

Plaintiffs’ claims under the Federal Records Act (“FRA”) and the Constitution fare no

better. None of the Plaintiffs has alleged an injury sufficient to confer standing to seek injunctive

relief on those claims. Moreover, like Plaintiffs’ Privacy Act claims, Plaintiffs’ FRA and

constitutional claims fail because a congressionally established administrative scheme provides

the sole mechanism for redress. Therefore, none of Plaintiffs’ claims against the Department

withstands the instant motion, the Court accordingly should dismiss this action against the

Department.

Plaintiffs also seek damages from the former Attorney General, one current employee of

the Department, and three other former Department employees, under Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), asserting violations of their

First and Fifth Amendment rights through the improper collection, use, and maintenance of

personal information about Plaintiffs. These claims implicate the Government’s interest in

Section 517 provides that the “Solicitor General, or any officer of the Department of1

Justice, may be sent by the Attorney General to any State or district in the United States to attendto the interests of the United States in a suit pending in a court of the United States, or in a courtof a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517.

3

managing the federal workforce, which may be directly and adversely affected by the prospect of

personal liability on the part of federal managers. See, e.g., Bush v. Lucas, 462 U.S. 368, 388-90

(1982). Likewise, the claims against the individual Defendants implicate the Government’s

interest in the proper scope of the judicially-implied Bivens remedy. Even accepting the

Complaint’s factual allegations, and assuming arguendo that the individual Defendants had

violated Plaintiffs’ asserted constitutional rights, controlling precedent bars the Bivens remedy

that Plaintiffs seek. Accordingly, pursuant to 28 U.S.C. § 517, the United States of America,

through its undersigned counsel, hereby submits a Statement of Interest suggesting that

Plaintiffs’ Bivens claims should also be dismissed for failure to state a claim. 1

RELEVANT REGULATORY AND STATUTORY PROVISIONS

A. Civil Service Reform Act

The Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, as amended,

codified throughout Title 5, regulates federal personnel practices such as hiring. See 5 U.S.C.

§ 2302(a)(2). Congress “replaced the [previous] patchwork system with an integrated scheme of

administrative and judicial review, designed to balance the legitimate interests of the various

categories of federal employees with the needs of sound and efficient administration.” United

States v. Fausto, 484 U.S. 439, 445 (1988). Specifically, the CSRA establishes a

“comprehensive” scheme of protections and remedies for federal employment disputes and

“prescribes in great detail the protections and remedies applicable . . . including the availability

4

of . . . judicial review.” Id. at 448, 443. As such, the CSRA generally “precludes district courts

from taking jurisdiction over CSRA-related claims.” Steadman v. Governor, U.S. Soldiers’ &

Airmen’s Home, 918 F.2d 963, 967 (D.C. Cir. 1990). Plaintiffs’ challenge to their non-selection

to interview for positions within the Department’s Honors Program and Summer Law Intern

Program is a quintessentially CRSA-related claim. As relevant here, Chapter 23 of Title 5

provides that federal personnel management should “be implemented consistent with the [] merit

system principles.” 5 U.S.C. § 2301(b). The CSRA sets forth the available recourse for victims

of such prohibited personnel practices.

An aggrieved applicant’s only recourse is to file a charge with the Office of Special

Counsel. See 5 U.S.C. § 1212 (establishing Office of Special Counsel). The Special Counsel

“shall receive any allegation of a prohibited personnel practice and shall investigate the allegation

to the extent necessary to determine whether there are reasonable grounds to believe that a

prohibited personnel practice has occurred.” 5 U.S.C. § 1214(a)(1)(A). If the Special Counsel

determines that “there are reasonable grounds to believe that a prohibited personnel practice has

occurred . . . the Special Counsel shall report the determination together with any findings or

recommendations to the [Merit Systems Protection] Board, the agency involved and to the Office

of Personnel Management.” 5 U.S.C. § 1214(b)(2)(B). The Special Counsel may petition the

Board for corrective action if the agency does not correct the prohibited practice after a

reasonable period of time. 5 U.S.C. § 1214(b)(2)(C). The Board may order corrective action

including that “the individual be placed, as nearly as possible, in the position the individual

would have been in had the prohibited practice not occurred” and that the individual be

5

“reimburse[d] for attorney’s fees, back pay and related benefits, medical costs incurred, travel

expenses, and other reasonable and foreseeable consequential damages.” 5 U.S.C. § 1214(g).

If the Special Counsel concludes that there are not reasonable grounds to believe that a

prohibited personnel action occurred, the Special Counsel may terminate the investigation. Not

later than ten days before such termination, however, “the Special Counsel shall provide a

written status report to the person who made the allegations of the proposed findings of fact and

legal conclusions,” and the person in turn “may submit written comments about the report to the

Special Counsel.” 5 U.S.C. § 1214(a)(1)(D). If the Special Counsel determines that termination

of the investigation is nevertheless warranted, the Special Counsel “shall prepare and transmit to

[the] person on whose allegation the investigation was initiated a written statement notifying the

person of – (i) the termination of the investigation; (ii) a summary of relevant facts ascertained by

the Special Counsel . . . ; (iii) the reasons for terminating the investigation; and (iv) a response to

any comments submitted [by the person].” 5 U.S.C. § 1214(a)(2)(A).

B. Privacy Act

A Privacy Act claim is precluded by the CSRA if the claim is a collateral attack on an

adverse personnel decision. In contrast to the CSRA, the Privacy Act governs federal agencies’

acquisition, maintenance, and control of information about individuals maintained by an agency

in a “system of records” that are retrieved by the name or other identifying information of the

individual. 5 U.S.C. §§ 552a(a), (f). Specifically, the Act imposes requirements on agencies’

systems of records as well as on the records themselves. An agency that maintains a system of

records shall “establish rules of conduct for persons involved in the design, development,

operation, or maintenance of any system of records,” “establish appropriate administrative,

6

technical, and physical safeguards to insure the security and confidentiality of records,” and

“maintain all records which are used by the agency in making any determination about any

individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary

to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(9), (10), (5).

Before disseminating any record about an individual outside the agency, an agency shall “make

reasonable efforts to assure that such records are accurate, complete, timely, and relevant for

agency purposes.” 5 U.S.C. § 552a(e)(6).

The Privacy Act establishes a comprehensive scheme for addressing individuals’

concerns about an agency’s compliance with such requirements. Specifically, the Act expressly

grants federal courts jurisdiction to hear claims brought by an individual whenever (1) an agency

refuses to amend an individual’s record in accordance with his request, (5 U.S.C §

552a(g)(1)(A)); (2) an agency refuses an individual access to a record concerning him, (5 U.S.C.

§ 552a(g)(1)(B)); (3) an agency fails to maintain a record with the requisite accuracy and

completeness, (5 U.S.C. § 552a(g)(1)(C)); or (4) an agency fails to comply with any other

provision of the Act “in such a way as to have an adverse effect on an individual,” (5 U.S.C. §

552a(g)(1)(D)). In an action under subparagraphs (C) and (D), supra, the agency is only liable

for damages if it “acted in a manner which was intentional or willful,” (5 U.S.C. § 552a(g)(4)),

and only to the extent of the “actual damages sustained by the individual as a result of the

[violation]” and the costs of the action including reasonable attorney’s fees, (5 U.S.C. §

552a(g)(4)(A), (B)). An individual entitled to recovery is statutorily guaranteed a minimum of

$1000. 5 U.S.C. § 552a(g)(4)(A).

7

C. Federal Records Act

The Federal Records Act (“FRA”) sets forth agency requirements for records creation,

management, and disposal. See 44 U.S.C. §§ 2901, et seq., 3101, et seq., 3301, et seq.

Specifically, the Act requires agencies to establish standards and procedures intended to promote

“[a]ccurate and complete documentation of the policies and transactions of the Federal

Government,” “[c]ontrol of the quantity and quality of records produced by the Federal

Government,” “[s]implification of the activities, systems, and processes of records creation and

of records maintenance and use,” and “[j]udicious preservation and disposal of records.” 44

U.S.C. § 2902(1), (2), (4), (5). The Archivist “shall provide guidance and assistance to Federal

agencies . . . to ensur[e] adequate and proper documentation of the policies and transactions of

the Federal Government and ensur[e] proper records disposition.” 44 U.S.C. § 2904.

If an agency head becomes aware of “any actual, impending, or threatened unlawful

removal, defacing, alteration, or destruction of [agency] records,” the agency head, with the

assistance of the Archivist, “shall initiate action through the Attorney General for the recovery of

the records he knows or has reason to believe have been unlawfully removed from his agency.”

44 U.S.C. § 3106. If the Archivist learns of such actual or threatened unlawful activity, he must

notify the agency head and, if the agency head fails to take action to recover the records or seek

other redress within a reasonable time, the Archivist shall request that the Attorney General

initiate such an action. See 44 U.S.C. § 2905.

See generally Declaration of Deana Willis (“Willis Decl.”) ¶¶ 3-11, attached hereto.2

8

STATEMENT OF FACTS

Overview of the Honors Program and Summer Legal Intern Program2

The Attorney General Honors Program is the exclusive means by which the Department

hires recent law school graduates and judicial law clerks who do not have prior legal experience.

The Department’s litigating divisions and a few other Department components participate in the

hiring process for the Honors Program. The Honors Program historically has been very

competitive. Many who apply do not receive interviews, and an even fewer number receive

employment offers.

The Department also hires paid summer interns for the Summer Law Intern Program

(“SLIP”) through a similar process. Law students apply in the Fall for summer internships

following their second year of law school or their final year of law school if the student will enter

a judicial clerkship or full-time graduate law program following graduation. However, unlike

Honors Program applicants, SLIP candidates are interviewed by telephone or are hired based on

their applications.

As of 2002, Honors Program and SLIP applicants submitted their applications through a

computerized program called AVUE Digital Services, rather than paper applications. The

participating Department components review the submissions to identify candidates to interview

for the available positions within the component. Each component’s list is submitted to the

Department’s Office of Attorney Recruitment and Management (“OARM”). For the time

periods alleged in Plaintiffs’ Complaint, OARM in turn submitted the lists for approval by a

departmental Screening Committee.

9

Plaintiffs’ Second Amended Complaint

Plaintiffs, Sean Gerlich, Christopher Coleman, James Gooch, Benjamin Meier, James

Saul, Matthew Faiella, Daniel Herber, and Ryan Spiegel applied to the Honors Program or SLIP

either during the Fall of 2002 or 2006. See Second Amended Complaint (“Second Amend.

Compl.”). None of the Plaintiffs received an interview. Plaintiffs allege that their non-selection

for interviews was the result of the improper consideration of Plaintiffs’ political affiliation.

Rather than file a grievance with the Office of Special Counsel, however, Plaintiffs filed this

action alleging violations of the Privacy Act, Civil Service Reform Act, Federal Records Act, and

the First and Fifth Amendments to the Constitution.

ARGUMENT

For all its verbosity, the Second Amended Complaint in this action reduces to a principal

complaint: Plaintiffs’ non-selection for interviews allegedly was the result of a prohibited

personnel practice under the CSRA, namely, the consideration of political affiliations in the

approval of interview candidates for the Honors Program and SLIP. As such, that claim falls

within the exclusive administrative scheme of the CSRA. Under that scheme, Plaintiffs only

recourse is to file a complaint with the Office of Special Counsel. Plaintiffs, instead, attempt to

recharacterize their quintessential CSRA claim as violations of the Privacy Act, Federal Records

Act, and Constitution in an effort to invoke this Court’s limited jurisdiction. None of their

claims, however, is properly before the Court. To the extent that Plaintiffs’ claims are not

jurisdictionally deficient, they fail to state a claim upon which relief can be granted.

Accordingly, the Court should grant this motion and dismiss the claims against the Department.

Likewise, Plaintiffs’ Bivens claims are foreclosed by binding Supreme Court and D.C. Circuit

10

precedent, and the United States respectfully suggests that the claims against the individual

Defendants be dismissed.

I. PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED FOR LACK OF STANDING.

Plaintiffs lack standing to bring their claims against the Department. A plaintiff’s

standing is a “predicate to any exercise of [this Court’s] jurisdiction.” Florida Audubon Soc’y v.

Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996). Standing is “an essential and unchanging part of the

case-or-controversy requirement.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

The requirements of standing are well established. See id. at 560-61. “[A plaintiff] must show

injury in fact that was caused by the conduct of the defendants and that can be redressed by

judicial relief.” Public Citizen, Inc. v. National Highway Traffic Safety Admin., 489 F.3d 1279,

1289 (D.C. Cir. 2007). The absence of any one of these elements is sufficient to dismiss a claim

on standing grounds. See US Ecology, Inc. v. United States Dep’t of Interior, 231 F.3d 20, 24

(D.C. Cir. 2000) (“a deficiency on any one of the three [elements] suffices to defeat standing”).

Dismissal on such grounds is warranted here as to all of the claims of Plaintiffs Gerlich, Meier,

Coleman, Saul, Gooch, and Spiegel, and as to the constitutional and FRA claims of Plaintiffs

Faiella and Herber.

A. Four Plaintiffs’ Alleged Injuries Were not Caused by the Alleged Conduct ofthe Department.

Four Plaintiffs lack standing to bring their claims because they cannot satisfy the element

of causation. That element “concerns the link ‘between the injury and the conduct complained

of.’” Transportation Workers Union of Am. v. Transportation Security Admin., 492 F.3d 471,

474 (D.C. Cir. 2007). Here, no such link exists between the alleged emotional and other

Plaintiffs incorporate the June 24, 2008 Department report entitled An Investigation of3

Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer LawIntern Program (“OIG Report”) by reference in the Seconded Amended Complaint. Because it isso incorporated, for purposes of responding to this motion to dismiss the Department assumes thestatements in the OIG Report to be true, and Plaintiffs’ claims must likewise be construed in lightof those statements. See Howard v. Gutierrez, 474 F. Supp. 2d 41, 47-48 (D.D.C. 2007).

11

damages from Plaintiffs’ non-selection for interviews and the alleged consideration of applicants’

political affiliations by certain Department employees, because Plaintiffs’ applications never

reached the stage in the hiring process when that consideration allegedly occurred. Accordingly,

those Plaintiffs’ claims should be dismissed for lack of standing. See US Ecology, Inc., 231 F.3d

at 24.

Plaintiffs allege that the 2002 and 2006 interview selection process for the Honors

Program and SLIP consisted of two distinct stages. In the first stage, the participating3

Department components reviewed the submitted electronic applications and selected candidates

for interviews. See OIG Report at 10. A Screening Committee then reviewed the selected

candidates and either approved or deselected them. Id. According to Plaintiffs, the improper

consideration of candidates’ political affiliations occurred only during the Screening

Committee’s review. See Seconded Amend. Compl. ¶ 62 (alleging that members of the 2006

Screening Committee “engaged in the prohibited practice of conducting Internet searches for

information of a ‘political’ or ‘ideological’ nature to use against the granting of applications”);

see also Second Amend. Compl. ¶ 83 (incorporating by reference the OIG Report’s conclusions

about the conduct of the 2006 Screening Committee). Four Plaintiffs’ applications never reached

that stage in the hiring process. See Declaration of Deana Willis (“Willis Decl.”), attached hereto

On a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil4

Procedure, the Court “may consider material other than the allegations of the complaint indetermining whether it has jurisdiction to hear the case.” Gianelli v. Chirkes, 377 F. Supp. 2d49, 51 (D.D.C. 2005).

12

as Exhibit A. Rather, their applications already were out of contention by the time of the4

Screening Committee review because none of the components to which they applied selected

those Plaintiffs for interviews. See Willis Decl. ¶ 19 (explaining that OARM records

“conclusively demonstrate[] that none of the components that Benjamin M. Meier applied to

selected him as an interview candidate prior to the Department-level review”); id. ¶ 29

(explaining that “OARM records conclusively demonstrate that none of the components that

Sean D. Gerlich applied to selected him as an interview candidate prior to the Department-level

review”); id. ¶ 32 (explaining that “OARM records conclusively demonstrate that none of the

components that James N. Saul applied to in 2006 selected him as an interview candidate prior to

the Department-level review in 2006”); id. ¶ 41 (explaining that OARM records “conclusively

demonstrate that none of the components that Christopher Coleman applied to selected him as an

interview candidate prior to the Department-level review in 2006”). Because the applications of

Plaintiffs Gerlich, Saul, Coleman, and Meier never reached the Screening Committee review,

they clearly were not impacted by the allegedly improper conduct of certain Screening

Committee members. Therefore, none of these Plaintiffs’ alleged injuries were caused by the

alleged conduct of the Department – an absence fatal to their standing.

According to OARM records, one Department component tentatively selected Plaintiffs5

Gooch and Spiegel to interview for an Honors Program position in 2002. See Willis Decl. ¶¶ 15,22.

13

B. Plaintiffs Gooch and Spiegel Lack Standing to Challenge the AllegedSelection Practices of the 2006 Screening Committee.

Although Plaintiffs Gooch and Spiegel’s Honors Program application reached the

Department-level review stage, their Privacy Act claims nevertheless fail for lack of standing5

because they are predicated on records allegedly created in 2006, four years after these Plaintiffs

applied. See Second Amend. Compl. ¶¶ 100-161 (alleging violations of Subsections (e)(1), (2),

(5), (6), (7), (9), and (10) of the Privacy Act arising from records allegedly created or maintained

by members of the 2006 Steering Committee). The only 2002 records of Plaintiffs referenced in

the Second Amended Complaint are the applications Plaintiffs Gooch and Spiegel submitted.

Otherwise, as these Plaintiffs admit, there are no records of the activities of the 2002 Screening

Committee. See Second Amend. Compl. ¶ 66 (admitting that there were “no Fall 2002 records

extant in Summer 2007”). Thus, Plaintiffs Gooch and Spiegel’s Privacy Act claims too lack the

requisite causal link between the alleged misconduct of the 2006 Screening Committee and these

Plaintiffs’ non-selection for an interview four years earlier. Those claims accordingly should be

dismissed for lack of standing.

C. Plaintiffs Lack Standing to Seek Injunctive Relief.

Plaintiffs have not alleged a cognizable injury to sue in their own right for any alleged

present and future constitutional and FRA violations by the Department. See Second Amend.

Compl. ¶ 172 (seeking redress for alleged future constitutional violations); Second Amend.

Compl. ¶ 226 (seeking redress for present violations of the FRA “lest in the absence of adequate

Plaintiffs’ claims of past injury (e.g., the alleged destruction of internet printouts in6

violation of the FRA (Second Amend. Compl. ¶ 224)) do not give them standing to seekprospective relief. See Citizens for Responsibility & Ethics in Washington v. United States Dep’tof Homeland Security (“CREW v. DHS”), 527 F. Supp. 2d 101, 105 (D.D.C. 2007). When, ashere, “a party seeks prospective relief . . . it must show that it is likely to suffer a future injury.” Id.

Although not alleged in the Second Amended Complaint, by letter dated September 9,7

2008, the Attorney General invited Plaintiffs Faiella and Herber to interview, respectively, with

14

remedial action it recur”). As already discussed, the absence of any one of the elements of

standing, such as injury, requires dismissal on standing grounds. See US Ecology, Inc., 231 F.3d

at 24 (“a deficiency on any one of the three [elements] suffices to defeat standing”). Indeed,

“[u]ntil a judicially cognizable injury is shown no other inquiry is relevant to consideration of []

standing.” Schlesinger v. Reservists Comm. to Stop War, 418 U.S. 208, 227 n.16 (1974). Here

that inquiry alone demonstrates that Plaintiffs lack standing, and accordingly their claims seeking

to enjoin present and future constitutional and FRA violations by the Department should be

dismissed.6

As evident from the Second Amended Complaint, Plaintiffs do not claim injuries to

themselves from the Department’s alleged present and future violations. Nor have Plaintiffs

alleged any likelihood of a recurrence of those violations. See Wagshal v. Foster, 28 F.3d 1249,

1252 (D.C. Cir. 1994) (concluding that plaintiff lacked standing on injunctive claim where he

“alleged no likelihood whatever that he himself will again suffer the alleged injury”); see also

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (“A threatened injury must be ‘certainly

impending’ to constitute injury in fact.”). Indeed, Plaintiffs’ ineligibility for the Honors Program

and SLIP renders it unlikely that they could be impacted in the future by the Department’s

alleged conduct. Compare Second Amend. Compl. ¶¶ 3-10 (describing SLIP as a Department7

the Executive Office for Immigration Review and the Environment and Natural ResourcesDivision for a position in the 2008 Honors Program. See Willis Decl. ¶¶ 35, 38. Plaintiff Faielladid not respond to the invitation. See Willis Decl. ¶ 35. Plaintiff Herber initially accepted theinvitation and was scheduled to interview on October 23, 2008, but he later cancelled hisinterview. See Willis Decl. ¶ 38.

15

program for “law students” and the Honors Program as a program for “graduating law students”

or “recently graduated law students holding a federal judicial clerkship”) with id. ¶¶ 20, 25, 30,

35, 41, 47, 52, 57 (describing post-graduation or post-clerkship employment situations of

Plaintiffs); see also Willis Decl. ¶ 3 (explaining that “[e]ligibility [for the Honors Program] is

limited to current third-year law students and to recent law school graduates who preserve their

eligibility for the Honors Program by serving in judicial clerkships, qualifying legal fellowships,

or attending full-time graduate law studies immediately following law school graduation”); id.

¶ 4 (explaining that “[e]ligibility [for SLIP] is limited to current third-year law students who have

accepted judicial clerkships or legal fellowships and wish to intern between law school

graduation and the start of their clerkships/fellowships; first-year law students who have

completed one full semester of studies by the application deadline, second-year law students, and

certain joint-degree or part-time law students”). Plaintiffs therefore cannot establish the requisite

cognizable injury for their claim for injunctive and declaratory relief.

Nor is Plaintiffs’ standing saved through pleading the intent to seek redress on behalf of

other victims of the Department’s alleged violations. See, e.g., Second Amend. Compl. ¶ 240

(seeking “injunctive relief, on behalf of past, present, and future aggrieved persons, in the form

of orders enjoining defendant Department of Justice from continuing to violate its legal

obligations”). It is well established that Plaintiffs do not have standing to “seek redress for

injuries done to others.” Laird v. Tatum, 408 U.S. 1, 14 n.7 (1972); see also Wagshal, 28 F.3d at

To the extent Plaintiffs are seeking money damages for the alleged constitutional8

violations by the Department, their claims are precluded by the doctrine of sovereign immunity. See Taylor v. FDIC, 132 F.3d 753, 768 (D.C. Cir. 1997) (holding that “no cause of action fordamages for constitutional violations . . . is to be implied against government agencies”); Benoitv. United States Dep’t of Agriculture, __ F. Supp. 2d __, 2008 WL 4133080, at *12 (D.D.C.,Sept. 8, 2008) (“The United States has not waived its sovereign immunity to damages claimsunder the Constitution.”); see also FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).

16

1252 (concluding that plaintiff lacked standing to seek an injunction on behalf of others). A

“fundamental aspect of standing is that it focuses on the party seeking to get his complaint before

a federal court. . . . [Thus] when standing is placed in issue in a case, the question is whether the

person whose standing is challenged is a proper party to request an adjudication of a particular

issue and not whether the issue itself is justiciable.” Flast v. Cohen, 392 U.S. 83, 99-100 (1968).

Since, for the reasons already discussed, that question should be answered in the negative as to

Plaintiffs here, their constitutional and FRA claims for equitable relief against the Department

should be dismissed for lack of standing. 8

II. PLAINTIFFS’ PRIVACY ACT CLAIMS ARE PRECLUDED BY THE CSRA.

Plaintiffs’ Privacy Act claims alternatively and independently fail because they are

precluded and, thus, foreclosed by the CSRA. As a thinly disguised challenge to a prohibited

personnel practice – the denial of a job interview based on the alleged consideration of an

applicant’s political affiliation, (5 U.S.C. § 2301(b)(2)) – Plaintiffs’ claims are within the

exclusive purview of the CSRA. That statute establishes three levels of personnel actions and

provides different remedies for each level:

(1) for major personnel actions specified in the statute (“adverse actions”), direct judicialreview after extensive prior administrative proceedings;

17

(2) for specified minor personnel actions infected by particularly heinous motivations ordisregard of law (“prohibited personnel practices”), review by the Office of SpecialCounsel with limited judicial scrutiny; and

(3) for the specified minor personnel actions not so infected, and for all other minorpersonnel actions, review by neither OSC nor the courts.

Hubbard v. United States Envtl. Protection Agency, 809 F.2d 1, 8 (D.C. Cir. 1986). This

“carefully calibrated” scheme of procedural protections reflects Congress’s “concern[] about ‘the

respective costs and benefits’ of federal personnel-related litigation.” Id. Courts therefore have

refused to allow the CSRA’s scheme “to be impermissibly frustrated by granting litigants, under

the aegis of the Privacy Act, or otherwise, district court review of personnel decisions judicially

unreviewable under the CSRA.” Kleiman v. Department of Energy, 956 F.2d 335, 338 (D.C. Cir.

1992). The D.C. Circuit in particular has “noted the tension between the Privacy Act and the

CSRA,” (Lee v. Geren, 480 F. Supp. 2d 198, 205 (D.D.C. 2007)), and observed that “it would be

anomalous to construe the pre-existing Privacy Act to grant the district court power to do

indirectly that which Congress precluded directly,” Hubbard, 809 F.2d at 5. Thus, while the

“Privacy Act allows for amendment of factual or historical errors[, i]t is not . . . a vehicle for

amending the judgments of federal officials or . . . other[s] . . . as those judgments are reflected in

records maintained by federal agencies.” Kleinman, 956 F.2d at 337-38.

Therefore to accommodate the two statutory schemes, an individual may bring a civil suit

under the Privacy Act based on an adverse determination made as a result of the alleged

violation. But where, as here, Plaintiffs’ claims are a collateral attack on a personnel decision

squarely within the CSRA, the district court exceeds its jurisdiction by hearing such claims. See

Hubbard, 809 F.2d at 5 (concluding that the “CSRA deprives the district court of jurisdiction to

As discussed in Part I.C., supra, to the extent the constitutional claims here seek9

injunctive relief against present and future violations by the Department, Plaintiffs lack standing. If the Court concludes otherwise, those claims nevertheless should be dismissed for failure toexhaust. Plaintiffs’ constitutional claims are predicated on the same facts as their CSRA-relatedclaim, and thus they are required to exhaust their administrative remedies under the CSRA. SeeWeaver v. United States Information Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996) (holding thatthe requirement of exhaustion applied to “claims arising directly under the Constitution . . . whensuch claims are ‘premised on the same facts’ as the plaintiff’s CSRA claims”).

18

review prohibited personnel practices”); Lee, 480 F. Supp. 2d at 203 (noting that many courts

“have held that the CSRA preempts actions under the Privacy Act that seek review of adverse

personnel decisions”). Thus, to avoid the unauthorized exercise of jurisdiction, “district courts

must ‘carefully analyze the asserted causation link’ to assure that the Privacy Act is not being

used to circumvent the CSRA’s limits on judicial review of personnel actions.” Id. at 210; see

also Hubbard, 809 F.2d at 5 (noting that “accommodat[ing] the two statutory schemes requires

the district courts to carefully analyze the asserted causation link to be certain that they are not

exceeding their jurisdiction”). The CSRA should be found to preclude a Privacy Act claim

where it seeks to recover damages for an adverse personnel action not actually caused by the

alleged violation. See, e.g., Lee, 480 F. Supp. 2d at 207-08 (dismissing plaintiff’s Privacy Act

claim as an impermissible collateral attack on the original personnel decision and noting that,

“generally speaking, the Privacy Act allows for correction of facts but not correction of opinions

or judgments”). That clearly is the case here. 9

Nowhere in the Second Amended Complaint do Plaintiffs allege that any Department

record about them was inaccurate or otherwise in violation of the Privacy Act. The only record

of theirs referenced at all in the Second Amended Complaint is the Honors Program or SLIP

applications that Plaintiffs submitted. See Second Amend. Compl. ¶¶ 18, 23, 28, 33, 38, 44, 50,

As discussed in Part III, infra, Plaintiffs’ failure to allege that any record of theirs was10

inaccurate or incomplete alternatively and independently requires dismissal of certain of theirPrivacy Act claims for failure to state a claim.

As discussed in Part I, supra, four Plaintiffs were never in a position to be deselected11

because none of the components to which they applied selected those Plaintiffs for interviewsand therefore their applications never reached the Department-level review, where the allegeddeselections occurred.

19

55. Their complaint, therefore, is not that they failed to receive an interview because of a

violative record, but that certain Department employees allegedly made inappropriate judgments

based on accurate information that Plaintiffs themselves supplied. See, e.g., id. ¶¶ 78, 8410

(alleging that Plaintiffs “were the subjects of flagrantly unfair . . . treatment in the handling of

their applications,” specifically, “‘a pattern of deselecting candidates based on political or

ideological affiliations’” (emphasis added)); see also id. ¶¶ 18, 23, 28, 33, 38, 44, 50, 55

(describing the type of personal information each Plaintiff included in his application). 11

Plaintiffs concede that the Department appropriately could maintain records that included “that

which was submitted by the applicant himself or herself” without violating the Privacy Act. See

id. ¶¶ 113, 130, 144, 152, (alleging that “[r]ecords maintained by defendant Department of

Justice as part of plaintiffs’ Honors Program/Summer Law Intern Program applications were

required by law to not unnecessarily include (i.e., beyond that which was submitted by the

applicant himself or herself) records reflecting an individual’s political or ideological

affiliations” (emphasis added)). The requisite causal link between Plaintiffs’ non-selection for a

Department interview and an inaccurate record – or any other alleged violation of the Privacy

Act – is therefore absent.

Plaintiffs’ CSRA claim, however, fails for lack of jurisdiction because they are limited12

to the exclusive remedial scheme of the CSRA, which they have not even alleged that they havepursued. See Hubbard, 809 F.2d at 5 (concluding that the “CSRA deprives the district court ofjurisdiction to review prohibited personnel practices”). Thus, Count 14 of the Second AmendedComplaint should be dismissed as to all Plaintiffs. See Second Amend. Compl. ¶¶ 218-21(alleging “Violations of the Civil Service Reform Act”).

These same arguments apply as well to the claims of the other Plaintiffs but more13

fundamentally, their dismissal under Rule 12(b)(6) is required because their applications were

20

Moreover, Plaintiffs concede the applicability of the CSRA here. See id. ¶ 220 (alleging

that “defendant Department of Justice wrongfully injected politics, political affiliation, and

ideological affiliation into its Honors Program and Summer Law Intern Program

decisionmaking . . . in specific violation of the CSRA standards and requirements”). Indeed,

Plaintiffs’ CSRA claim is predicated on the same facts as the improperly brought Privacy Act

claims. Compare id. ¶¶ 100-161 (Privacy Act claim allegations) and id. ¶¶ 218-221 (CSRA12

claim allegations) with 5 U.S.C. § 2302(b)(1)(E) (prohibiting “discrimination for or against any

employee or applicant for employment . . . on the basis of . . . political affiliation, as prohibited

under any law, rule, or regulation”); 5 U.S.C. § 2301(b)(2) (requiring that applicants for

employment “receive fair and equitable treatment in all aspects of personnel management

without regard to political affiliation”). Thus, Plaintiffs’ claims are precisely the type of

collateral attack on a personnel decision that this Court has held is precluded by the CSRA.

Plaintiffs’ Privacy Act claims accordingly should be dismissed.

III. PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED UNDER RULE 12(B)(6).

Even if this Court determines that the Privacy Act claims of the two Plaintiffs whose

applications reached the Department-level review in 2006, Plaintiffs Faiella and Herber, are not

jurisdictionally deficient, their dismissal nevertheless is warranted for failure to state a claim. 13

not part of the Department-level review in 2006.

21

See Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 12(b)(6) of the Federal Rules of Civil

Procedure is warranted where the complaint allegations are insufficient to state or infer a

necessary element of a claim. See Wells v. United States, 851 F.2d 1471, 1473 (D.C. Cir. 1988)

(“Assuming all factual allegations are true, a court must dismiss a complaint if the plaintiff fails

to establish a right to relief based on the facts alleged in the complaint.”). Here, “conclusory

allegations unsupported by any factual assertions will not withstand a motion to dismiss.”

Flowers v. Executive Office of President, 142 F. Supp. 2d 38, 46 (D.D.C. 2001) (“even under the

liberal pleading standards ‘sweeping and unwarranted averments of fact’ without any underlying

factual basis will not be deemed admitted for purposes of a motion to dismiss”). Plaintiffs

Faiella and Herber’s allegations are deficient in that respect as to every one of their Privacy Act

claims. See White v. Office of Personnel Mgmt., 840 F.2d 85, 87 (D.C. Cir. 1988) (“dismissal of

a damages claim under the Privacy Act is proper where the complaint fails to allege each of the

elements of such a claim”). Thus, the Court alternatively and independently should dismiss those

claims under Rule 12(b)(6).

A. Plaintiffs’ Privacy Act Claims Fail Because the Only Record of Theirs in AnyDepartment System of Records Complied With the Act.

Plaintiffs’ claims under Subsections (e)(1), (e)(2), (e)(5), (e)(6), (e)(9), and (e)(10) fail to

state a claim because their essential elements are not pled for either of the two records on which

those claims could possibly be based – Plaintiffs’ employment application and the alleged

internet printouts. See Second Amend. Compl. ¶¶ 116, 125, 132, 139, 147, 155. Those

subsections require an agency that maintains a system of records to:

22

maintain in its records only such information about an individual as is relevant andnecessary to accomplish a purpose of the agency required to be accomplished by statuteor by executive order of the President;

collect information to the greatest extent practicable directly from the subject individualwhen the information may result in adverse determinations about an individual’s rights,benefits, and privileges under Federal programs;

maintain all records which are used by the agency in making any determination about anyindividual with such accuracy, relevance, timeliness, and completeness as is reasonablynecessary to assure fairness to the individual in the determination;

prior to disseminating any record about an individual to any person other than an agency .. . [to] make reasonable efforts to assure that such records are accurate, complete, timely,and relevant for agency purposes;

establish rules of conduct for persons involved in the design, development, operation, ormaintenance of any system of records, or in maintaining any record, and instruct eachsuch person with respect to such rules . . . . ; and

establish appropriate administrative, technical, and physical safeguards to insure thesecurity and confidentiality of records and to protect against any anticipated threats orhazards to their security or integrity . . . .

5 U.S.C. § 552a(e)(1), (2), (5), (6), (9), (10). These requirements only apply, however, if the

challenged record became part of a system of records. See Maydak v. United States, 363 F.3d

512, 518-19 (D.C. Cir. 2004) (concluding that the requirements contained in Subsections (e)(1),

(e)(2), and (e)(10) “are triggered only if the records are actually incorporated into a system of

records” otherwise “agencies m[ight] be liable for Privacy Act violations simply by collecting

records that they immediately discard after finding the records neither relevant nor necessary”);

Krieger v. United States Dept. of Justice, 529 F. Supp. 2d 29, 41-46, 49-50 (D.D.C. 2008)

(including Subsections (e)(5) and (e)(6) among the Privacy Act provisions requiring that the

challenged record be maintained in a system of records); id. at 55 (noting that Subsections (e)(9)

and (e)(10) “apply to records maintained within a ‘system of records’”); see also Thompson v.

Plaintiffs’ mere conclusory assertion that the internet printouts were maintained in a14

system of records is not sufficient to withstand dismissal. See Flowers, 142 F. Supp. 2d at 46.

23

Department of State, 400 F. Supp. 2d 1, 11-12 (D.D.C. 2005). Of the two records identified in

the Second Amended Complaint, one never became part of such a system, and the other,

although arguably maintained in such a system, is not alleged to have violated those subsections.

1. Plaintiffs Have Not Sufficiently Pled That the Alleged InternetPrintouts Were Maintained in the Department’s System of Records.

Plaintiffs’ claims under Subsections (e)(1), (e)(2), (e)(5), (e)(6), (e)(9), and (e)(10) fail to

the extent they are based on the alleged internet printouts created by Defendant McDonald

because those records never became part of the Department’s system of records. “To constitute a

system of records, the records must be located within ‘a group of records under the control of any

agency from which information is retrieved by the name of the individual or by some identifying

number, symbol, or other identifying particular assigned to the individual.’” Krieger, 529 F.

Supp. 2d at 41-42; 5 U.S.C. § 552a(a)(5). The D.C. Circuit has cautioned, however, that “unless

there is actual retrieval of records keyed to individuals,” a group of records generally should not

be deemed a system of records. Krieger, 529 F. Supp. 2d at 42. Thus, “[t]he mere ‘capacity to

retrieve information indexed under a person’s name,’ as opposed to a practice where agency

employees ‘in fact retrieve records in this way,’ is insufficient to establish the existence of a

system of records under the Privacy Act.” Id. Consistent with these authorities, the alleged

internet printouts cannot be a predicate for Plaintiffs’ Privacy Act claims.

The only inference supported by Plaintiffs’ factual allegations is that those records were

not in a Department system of records. See, e.g., Second Amend. Compl. ¶ 66 (alleging that14

“none of the relevant officials identified [] recognized that the records-maintenance and records-

24

disposition proscriptions and requirements of the Federal Records Act applied to the activities

involved”); id. ¶ 66 (noting “lack of written record” and “no Fall 2002 records extant in Summer

2007” and resulting use of “information in [candidates’] applications” for analysis in OIG

Report); id. ¶ 224 (alleging that the Department “has failed to meet both its records-maintenance

responsibilities and its records-disposition responsibilities and [sic] to most if not all, of the

records pertaining to its administrative decisionmaking regarding plaintiffs and others similarly

situated”); id. ¶ 225 (purportedly quoting Defendant Goodling as stating that “Normally, if I

found [through ‘Internet screening research’] something that was negative about someone, we

didn’t hire them, and I wouldn’t have necessarily retained it”); id. ¶93 (alleging that Defendant

Elston did not maintain records of his alleged conduct). Therefore, to the extent that Plaintiffs’

Subsection (e)(1), (e)(2), (e)(5), (e)(6), (e)(9) and (e)(10) claims are based on the alleged internet

printouts created by Defendant McDonald, those claims fail to state a claim because those

printouts were not in a system of records and thus did not trigger those provisions.

2. Plaintiffs Have Not Sufficiently Pled That the Alleged Maintenance ofTheir Employment Applications Violated the Privacy Act.

Although Plaintiffs’ employment applications arguably were maintained in a system of

records, (see Second Amend. Compl. ¶ 66), thereby triggering the requirements of Subsections

(e)(1), (e)(2), (e)(5), (e)(6), (e)(9), and (e)(10), other essential elements of those claims are not

pled. Specifically, nowhere in the Second Amended Complaint do Plaintiffs allege that their

applications were inaccurate (see 5 U.S.C. § 552a(e)(5)), irrelevant (see 5 U.S.C. § 552a(e)(1)),

disclosed outside the Department (see 5 U.S.C. § 552a(e)(6)), or inadequately safeguarded (see 5

U.S.C. § 552a(e)(10)) or maintained (see 5 U.S.C. § 552a(e)(9)), or that their contents were

Even as to the alleged internet printouts, Plaintiffs do not allege that they were15

inaccurate or disclosed outside the Department. See Thompson, 400 F. Supp. 2d at 21 (notingthat Subsection (e)(6) “does not apply when information is disclosed within the agency or toanother agency”); id. at 19 (noting that a necessary element of a Subsection (e)(5) violation isthat “alleged adverse determination must result from the inaccuracy of the records, not the mereexistence of the records”).

25

supplied by someone other than Plaintiffs (see 5 U.S.C. § 552a(e)(2)). Indeed, Plaintiffs15

concede that the Department did not violate the Privacy Act by maintaining their applications.

See, e.g., Second Amend. Compl. ¶¶ 113, 121, 130, 137, 144. Thus, Plaintiffs’ Subsection (e)(1),

(e)(2), (e)(5), (e)(6), (e)(9), and (e)(10) claims cannot withstand dismissal under Rule 12(b)(6).

B. Plaintiffs’ Subsection (e)(7) Claim Fails Under Rule 12(b)(6).

Plaintiffs have not alleged an essential element of a violation of Subsection (e)(7), and

therefore that claim too should be dismissed under Rule 12(b)(6). That Subsection provides that

an agency shall “maintain no record describing how any individual exercises rights guaranteed by

the First Amendment unless expressly authorized by statute or by the individual about whom the

record is maintained or unless pertinent to and within the scope of an authorized law enforcement

activity.” 5 U.S.C. § 552a(e)(7). The only allegations in the Second Amended Complaint that

arguably concern Plaintiffs’ exercise of their First Amendment rights are the descriptions of

information they provided on their Honors Program application. See, e.g., Second Amend.

Compl. ¶ 44 (alleging that Plaintiff Faiella’s Honors Program application included the fact that

he then was currently serving a two-year term as an appellate court staff attorney and that during

law school, he had interned at an immigration rights organization and was a law review editor);

id. ¶ 50 (alleging that Plaintiff Herber’s Honors Program application included the fact that he had

served as a law review editor and then was currently serving as a judicial law clerk). Since that

26

information, even if descriptive of Plaintiffs’ exercise of their First Amendment rights, was

provided to the Department by Plaintiffs, any consideration of such information by the

Department was not in violation of Subsection (e)(7).

Plaintiffs’ Subsection (e)(7) claim is not saved by allegations that “the 2006 hiring

process’s other principal actor, Defendant McDonald, engaged in the prohibited practice of

conducting Internet searches for information of a ‘political’ or ‘ideological’ nature to use against

the granting of applications.” Second Amend. Compl. ¶ 62. As Plaintiffs acknowledge, neither

they nor the Department which investigated such allegations can “reconstruct what information

McDonald obtained from the Internet.” Second Amend. Compl. ¶ 66; see also id. ¶ 99 (alleging

that the Department’s Investigation Report “stand[s] . . . as official guideposts to any additional

evidence that may be required for its full adjudication”). Thus, Plaintiffs have not alleged – nor

can they – that records of such Internet searches were created about them. Nor could this Court

infer such because the allegations describing the contents of Plaintiffs Herber and Faiella’s

Honors Program applications do not reflect the type of “liberal affiliations” identified in the OIG

Report, which Plaintiffs incorporate by reference. Compare id. ¶ 66 (noting that the OIG

Report’s analysis of candidates’ liberal affiliations “is based upon the information in their

applications”) with id. ¶ 50 (alleging that Plaintiff Herber was an editor of the Minnesota Law

Review, was admitted to the bars of Wisconsin and Minnesota, and clerked for a magistrate and

federal appellate judge). Since an essential element of Plaintiffs’ Subsection (e)(7) claim is not

sufficiently pled, it should be dismissed for failure to state a claim.

27

C. Plaintiffs Have Not Sufficiently Pled Intentional or Willful Conduct.

The Court also cannot infer from Plaintiffs’ allegations that the Department’s alleged

violations of the Privacy Act were intentional or willful. See Pilon v. United States Dep’t of

Justice, 796 F. Supp. 7, 12 (D.D.C.1992) (“a valid claim is stated when it is properly pleaded that

the agency has acted in a manner which was intentional or willful”). “An agency is liable for

damages under the Privacy Act only if the ‘court determines that the agency acted in a manner

which was intentional or willful.’” Clark v. Bureau of Prisons, 407 F. Supp. 2d 127, 130

(D.D.C. 2005) (emphasis added); 5 U.S.C. § 552a(g)(4). The Act does not “make the

Government strictly liable for every affirmative or negligent action that might be said technically

to violate the Privacy Act’s provisions.” Laningham v. United States Navy, 813 F.2d 1236, 1242

(D.C. Cir. 1987); see also Albright v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984) (same).

Rather, the “high” standard that Plaintiffs must meet here is satisfied only by government

conduct “‘so patently egregious and unlawful’ that anyone undertaking the conduct should have

known it ‘unlawful.’” Laningham, 813 F.2d at 1242; see also Clark, 407 F. Supp. 2d at 130

(defining intentional and willful as “act[ing] with something greater than gross negligence . . .

without grounds for believing it to be lawful . . . or by flagrantly disregarding others’ rights under

the Act”); Broaddrick v. Executive Office of President, 139 F. Supp. 2d 55, 63 (D.D.C. 2001)

(same).

Thus, to withstand dismissal for failure to state a claim, Plaintiffs must “present[] some

factual basis to support [their] allegation of willful or intentional conduct on the part of the

agency.” Flowers, 142 F. Supp. 2d at 47; White, 840 F.2d at 87; see also Foncello v. United

States Dep’t of Army, 2005 WL 2994011, at *4 (D. Conn., Nov. 7, 2005) (concluding that

28

dismissal was warranted “because nothing in the complaint permits the inference that the alleged

Privacy Act violations were intentional or willful”). Plaintiffs have not done that. Rather their

allegations demonstrate that the Department was not aware of the conduct of a “few bad apples,”

(Second Amend. Compl. ¶ 77), but after investigation, undertook measures to ensure that the

conduct was not repeated. See, e.g., id. ¶ 64 (complaining that “none of defendant Department of

Justice’s officials identified above recognized that the prohibitions of the Privacy Act applied to

the activities involved”); id. ¶ 79 (noting that “defendant Department of Justice has made and

perhaps continues to make, in the words of Attorney General Mukasey, ‘institutional changes’

aimed at correcting its past wrongful actions in this regard”); id. ¶ 80 (allegedly quoting Attorney

General Mukasey as committing to “ensure that the[] words [‘it is neither permissible nor

acceptable to consider political affiliations in the hiring of career Department employees’] are

translated into reality so that what is described in the recent OIG/OPR reports does not recur”).

Although Plaintiffs contend that the Department should have known of the alleged violations, at

best, that contention establishes negligent conduct, not the patently egregious conduct required

for an intentional and willful violation of the Privacy Act. See, e.g., id. ¶ 215 (alleging that

Defendant Gonzales “knew or should have known in sufficient detail about the conduct, actions,

[and] institutional activities” related to the 2006 hiring process); id. ¶ 205 (complaining that

Defendant DeFalaise, “until he had ‘reason to think that there’s been a violation of personnel

practices,’ [] took it ‘on good faith’ that the deselections were made ‘for the right reasons, and for

the reasons stated’”).

There is a split in authority in this District (and across circuits) over whether a plaintiff16

can recover under the Privacy Act for emotional damages. See, e.g., Montemayor v. FederalBureau of Prisons, 2005 WL 3274508, at *5 (D.D.C., Aug. 25, 2005) (holding non-pecuniaryinjuries are appropriate basis for damages); Boyd v. Snow, 335 F. Supp. 2d 28, 39 (D.D.C. 2004)(same). For the reasons discussed in the text, however, the denial of recovery for such damagesis proper here.

29

D. Plaintiffs Have Failed to Allege Facts From Which This Court Could InferThat They Have Sustained Actual Damages.

Plaintiffs additionally have not stated a claim under the Privacy Act because they have

not sufficiently pled actual damages. The Privacy Act entitles a recovery “only to plaintiffs who

have suffered some actual damages.” Doe v. Chao, 540 U.S. 614, 627 (2004). Many courts16

that have interpreted “actual damages” narrowly, as required in construing a waiver of sovereign

immunity, have held that the term does not include emotional damages. See, e.g., Hudson v.

Reno, 130 F.3d 1193, 1207 n.11 (6th Cir. 1997) (explaining that because “actual damages” “has

no plain meaning or consistent legal interpretation, [] when it is being applied against the

government it must be narrowly interpreted – here that requires finding that actual damages only

mean out-of-pocket losses, not emotional distress”); Schmidt v. United States Dep’t of Veterans

Affairs, 222 F.R.D. 592, 594 (E.D. Wis. 2004) (recognizing the Privacy Act as a limited waiver

of sovereign immunity and therefore concluding that “to the extent there may be ambiguity

concerning whether the term ‘actual damages’ includes emotional distress as well as a pecuniary

loss, the ambiguity must be resolved by construing the term narrowly”); Wiley v. Department of

Veterans Affairs, 176 F. Supp. 2d 747, 757-58 (E.D. Mich. 2001) (adopting narrow construction

of “actual damages”); DiMura v. Federal Bureau of Investigation, 823 F. Supp. 45, 48 (D. Mass.

1993) (same).

Notwithstanding Plaintiffs’ inclusion in this list of “out-of-pocket job-search (and17

other related) expenses,” not one incurred expense is identified in the Second AmendedComplaint, and this element cannot rest on Plaintiffs’ single conclusory assertion. See Flowers,142 F. Supp. 2d at 46.

30

Other courts have concluded that the Privacy Act does not permit recovery for emotional

damages based on its legislative history. See Pope v. Bond, 641 F. Supp. 489, 501 (D.D.C.

1986); Houston v. United States Dep’t of Treas., 494 F. Supp. 24, 30 (D.D.C. 1979). That

history reflects Congress’s concern about the drain on the Treasury from a rash of Privacy Act

suits and rejection of provisions allowing “actual and general” damages – each a clear indication

that “actual damages” is limited to “out-of-pocket” expenses. See Pope, 641 F. Supp. at 501

(concluding that Congress’s concern about drain on the Treasury indicates its intent to limit

“actual damages” to “out-of-pocket” expenses); Houston, 494 F. Supp. at 30 (noting that limited

definition of “actual damages” is further supported by “the fact that Congress removed early

provisions [from the Act] allowing ‘actual and general’ damages”). Although these authorities

further support dismissal here, that result is compelled by application of principles of sovereign

immunity.

Even the most favorable reading of Plaintiffs’ Complaint makes plain that they are not

seeking recovery for alleged out-of-pocket expenses. Instead, Plaintiffs seek damages for various

emotional conditions arising from Plaintiffs’ disappointment from their non-selection for a job

interview. See Second Amend. Compl. ¶ 20 (alleging “shock, anger, humiliation, mental

distress, emotional upset, loss of reputation and professional standing, loss of confidence in

government”); see also id. ¶¶ 25, 30, 35, 40, 47, 52, 57. Such allegations, however, do not17

In contrast, judicial review under the Administrative Procedure Act (“APA”) is18

available for a “claim – properly pleaded, of course – that the [agency’s] recordkeeping policiesare arbitrary and capricious and do not comport with the requirements of the FRA.” CREW v.DHS, 527 F. Supp. 2d at 111 (emphasis added). As already discussed in Part I.C., supra,Plaintiffs lack standing to challenge the Department’s present practices under the FRA, but, evenif Plaintiffs had standing, their claim is not properly pleaded as a challenge to the Department’s

31

support an inference of “actual damages” as defined by the authorities properly and narrowly

construing that term. Plaintiffs therefore have not sufficiently pled that element of their claims.

IV. PLAINTIFFS’ FRA CLAIM SHOULD BE DISMISSED FOR LACK OFJURISDICTION OR ALTERNATIVELY FAILURE TO STATE A CLAIM.

Plaintiffs’ claim that the Department of Justice “has failed to meet both its records-

maintenance responsibilities and its records-disposition responsibilities” under the FRA is not

properly before this Court. See Second Amend. Compl. ¶ 224. The FRA sets forth agency

requirements for records creation, management, and disposal. See 44 U.S.C. §§ 2901, et seq.,

3101, et seq., 3301, et seq. Specifically, the Act requires agencies to establish standards and

procedures intended to promote “[a]ccurate and complete documentation of the policies and

transactions of the Federal Government,” “[c]ontrol of the quantity and quality of records

produced by the Federal Government,” “[s]implification of the activities, systems, and processes

of records creation and of records maintenance and use,” and “[j]udicious preservation and

disposal of records.” 44 U.S.C. § 2902(1), (2), (4), (5). Claims by individuals that an agency has

not met such requirements are precluded from judicial review. See Kissinger v. Reporters

Comm. for Free of Press, 445 U.S. 136, 149-50 (1980); Armstrong v. Bush, 924 F.2d 282, 294

(D.C. Cir. 1991); see also CREW v. DHS, 527 F. Supp. 2d at 111 (noting that the FRA

“precludes a private action, like this one, that seeks to require agency staff to comply with the

agency’s recordkeeping guidelines or the FRA, or to retrieve records lost”). 18

policies under the APA.

32

Rather, the FRA provides for administrative enforcement of its provisions. See, e.g., 44

U.S.C. § 3106; 44 U.S.C. § 2905. Specifically, if an agency head becomes aware of “any actual,

impending, or threatened unlawful removal, defacing, alteration, or destruction of [agency]

records,” the agency head, with the assistance of the National Archivist, “shall initiate action

through the Attorney General for the recovery of the records he knows or has reason to believe

have been unlawfully removed from his agency.” 44 U.S.C. § 3106. If the Archivist learns of

such actual or threatened unlawful activity, he must notify the agency head and, if the agency

head fails to take action to recover the records or seek other redress within a reasonable time, the

Archivist shall request that the Attorney General initiate such an action. See 44 U.S.C. § 2905.

Where Congress has “opted in favor of a system of administrative standards and enforcement,”

federal courts are “not vested . . . with jurisdiction to adjudicate [claims of violations] . . . by a

private party. That responsibility is vested in the administrative authorities.” Kissinger, 445

U.S. at 149-50; see also Armstrong, 924 F.2d at 294 (concluding that “it would clearly

contravene th[e FRA’s] system of administrative enforcement to authorize private litigants to

invoke federal courts” to enforce compliance with the Act’s requirements). Since Plaintiffs’

FRA claim improperly invokes this Court’s jurisdiction for that purpose, their claim should be

dismissed for lack of jurisdiction.

V. THE CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS SHOULD BEDISMISSED AS FORECLOSED UNDER BINDING PRECEDENT.

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1971), held that a plaintiff alleging that federal law enforcement officers violated his Fourth

33

Amendment rights may sue the officers for damages. The Supreme Court allowed such a remedy

where there was “no explicit congressional declaration that persons injured by a federal officer’s

violation of the Fourth Amendment may not recover damages from the agents but must instead

be remitted to another remedy, equally effective in the view of Congress,” id. at 397, and there

were no “special factors counseling hesitation in the absence of affirmative action by Congress,”

id. at 396. Although the Supreme Court has not elaborated fully on the meaning of “special

factors,” the concept has been applied to preclude creation of a Bivens remedy “where an

‘alternative, existing process for protecting the interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and freestanding remedy in damages.’” Wilson

v. Libby, 498 F. Supp. 2d 74, 83 (D.D.C. 2007), aff’d 535 F. 3d 697 (D.C. Cir. 2008) (quoting

Wilkie v. Robbins, 551 U.S. ___, 127 S. Ct. 2588, 2598 (2007)). Moreover, even in the absence

of an alternative remedial scheme, courts must nonetheless pay “particular heed” to any other

special factors counseling hesitation before authorizing a new kind of federal litigation. Id.

The Supreme Court has countenanced the extension of a Bivens remedy on only two

occasions where the Court specifically determined that there were no such “special factors.” See

Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). In the decades

since Carlson, however, the Supreme Court has “consistently refused to extend Bivens liability to

any new context or new category of defendants.” Correctional Servs. Corp. v. Malesko, 534 U.S.

61, 68 (2001); see also Schweiker v. Chilicky, 487 U.S. 412, 422 (1988) (“Our more recent

decisions have responded cautiously to suggestions that Bivens remedies be extended into new

contexts.”). Indeed, it is now recognized that a Bivens remedy is presumptively unavailable. See

McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485, 490 (D.C. Cir. 2008); In re Iraq &

The special-factors analysis is a prudential matter that can be addressed prior to19

jurisdictional issues. See Schweiker v. Chilicky, 487 U.S. 412, 429 n.3 (1988); Wilson v. Libby,498 F. Supp. 2d 74, 83 (D.D.C. 2007), aff’d 535 F.3d 697 (D.C. Cir. 2008).

34

Afghanistan Detainees Litig., 479 F. Supp. 2d 85, 103-04 (D.D.C. 2007); see also Nebraska

Beef, Ltd. v. Greening, 398 F.3d 1080, 1084 (8th Cir. 2005).

The Supreme Court has made particularly clear that when Congress has established an

alternative framework for judicial review, a court should not imply an additional non-statutory

damages remedy against individual officials, even when a claimed constitutional injury would go

unredressed within that statutory scheme. See, e.g., Bush v. Lucas, 462 U.S. 368, 380, 389

(1982). Recognizing a variety of special factors counseling hesitation, including whether

Congress has enacted legislation in a particular area, the Supreme Court has observed that

Congress, not the courts, should create new causes of action. Id.; Wilkie, 127 S. Ct. at 2604-05;

Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001). Therefore, Supreme Court and D.C.

Circuit case law uniformly reject extending the Bivens remedy to alleged First and Fifth

Amendment violations in circumstances such as these.19

A. Plaintiffs’ Bivens Claims Are Foreclosed by the Comprehensive SchemeCongress Adopted in the CSRA.

The Court should dismiss Plaintiffs’ claims that the individual Defendants violated the

Constitution by eliminating Plaintiffs from consideration for hiring allegedly on the basis of their

political affiliation. In Bush v. Lucas, 462 U.S. at 367, the Supreme Court unanimously refused

to recognize a Bivens remedy against a federal supervisor alleged to have demoted a subordinate

in retaliation for the latter’s criticism of the agency. See id. at 369-70, 390. The Court

emphasized that the federal employment relationship was “governed by comprehensive

35

procedural and substantive provisions giving meaningful remedies against the United States” for

unlawful personnel actions, (see id. at 368, 385), and that “Congress is in a far better position

than a court to evaluate the impact of a new species of litigation between federal employees on

the efficiency of the civil service,” (id. at 389-90). See also Wilkie, 127 S. Ct. at 2597 (“We have

accordingly held against applying the Bivens model to claims of First Amendment violations by

federal employers” (citing Bush, 462 U.S. at 367)).

Likewise, in Spagnola v. Mathis, 859 F.2d 223, 226-27 (D.C. Cir. 1988) (en banc) (per

curiam), the en banc D.C. Circuit unanimously applied Bush and the Supreme Court’s

intervening decision in Schweiker v. Chilicky, 487 U.S. 412 (1988), to hold that no Bivens

remedies were available “to litigants challenging federal personnel actions for whom Congress

has declined to provide full administrative remedies subject to judicial review under the Civil

Service Reform Act (‘CSRA’).” Spagnola, 859 F.2d at 224 (footnote omitted). Spagnola

resolved the cases of two different plaintiffs, one of whom claimed that he was denied promotion

and career development in retaliation for his protected speech, and the other who alleged that he

was denied employment with a federal agency on the basis of protected speech. See id. at 224-

25. For each of these plaintiffs, the CSRA provided the only remedy available—a petition to the

Merit Systems Protection Board’s Office of Special Counsel (“OSC”) alleging a “prohibited

personnel practice.” If the OSC determined in its discretion that the petition had merit, it was

required to report that, as well as any findings or recommendations for corrective action, to the

agency involved. If the agency did not act, the OSC then could request that the Merit Systems

Protection Board order corrective action. Whichever course the OSC took, however, the only

judicial review available to the plaintiffs was “limited to ensuring that the OSC conducted the

The D.C. Circuit granted en banc in Spagnola because in the cases before it two20

separate panels had reached opposite conclusions on just this question. See id. at 224; see alsoHubbard v. EPA, 809 F.2d 1, 7-9 (D.C. Cir.1986); Spagnola v. Mathis, 809 F.2d 16, 22-24 (D.C.Cir. 1986).

36

requisite ‘adequate inquiry’ into the allegations.” Id. at 225 (citing Cutts v. Fowler, 692 F.2d

138, 140 (D.C. Cir. 1982); Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983)). Neither

plaintiff “could claim the more elaborate administrative protections–including judicial

review–that Congress reserved for incumbent employees aggrieved by major personnel actions

(e.g., removals, reductions in grade or pay, suspensions of more than 14 days).” Id. (citing 5

U.S.C. §§ 7511-14; 7701-03). Both plaintiffs had petitioned the OSC, but during the course of

the damages suits, the OSC found their petitions lacking in merit. See Spagnola, 859 F.2d at

225-26.

Relying on Bush and Chilicky, the Spagnola court held that no Bivens remedy was

available to either plaintiff. The court observed that the plaintiff in Bush was entitled “to invoke

certain of the CSRA’s elaborate remedial processes which, by statute, culminate in judicial

review,” and that this had caused the lower courts to disagree on whether a Bivens remedy was

foreclosed to other litigants, like those in Spagnola, to whom such remedies were unavailable.

See id. at 226. “Focusing on language in the Bush opinion that suggests a detached inquiry into20

the meaningfulness of the particular remedies provided to individual claimants under the CSRA,

some courts of appeals ha[d] conducted that inquiry and ha[d] found certain CSRA remedies

wanting.” Id. (footnote omitted). Nonetheless, when read in light of Chilicky, the D.C. Circuit

explained, Bush failed to authorize such an approach. In Chilicky, the Supreme Court refused to

allow a Bivens remedy for alleged Fifth Amendment violations related to the denial of social

The Court noted that when Congress legislates in a particular area, it may be relevant21

whether Congress expressly eliminated Bivens remedies, but the special factors analysis does notrequire a defendant to show that Congress intended to eliminate such remedies. Spagnola, 859F.2d at 229 n.10.

37

security disability benefits, even though the Social Security disability review scheme provided

the plaintiffs with retroactive benefits and no separate redress for the alleged due process

violations. Chilicky, 487 U.S. at 424-25. The Spagnola court found Chilicky’s analysis of Bush

highly instructive: “In applying the Bush ‘special factors’ doctrine to the Disability Act claims

before it, the Chilicky Court made clear that it is the comprehensiveness of the statutory scheme

involved, not the ‘adequacy’ of specific remedies extended thereunder, that counsels judicial

abstention.” Spagnola, 859 F.2d at 227. The court, therefore, concluded that Bush and Chilicky

establish that “courts must withhold their power to fashion damages remedies when Congress has

put in place a comprehensive system to administer public rights, has ‘not inadvertently’ omitted

damages remedies for certain claimants, and has not plainly expressed an intention that the courts

preserve Bivens remedies.” Id. (citing Chilicky, 487 U.S. at 427-29). 21

In addition to identifying these general principles, the Spagnola court further observed

that “in recounting the principal lesson of Bush–that the CSRA’s administrative system provides

meaningful remedies and thus precludes Bivens actions against officials in their individual

capacities–the [Supreme] Court included a citation [in Chilicky] implicitly suggesting that the

preclusive effect of Bush extends even to those claimants within the system for whom the CSRA

provides ‘no remedy whatsoever.’” Spagnola, 859 F.2d at 228 (emphasis added). Hence a case-

by-case examination of the remedies available to a particular plaintiff is unnecessary. See id.

For that reason, and also because “[w]e have never accepted ‘legal conclusions cast in22

the form of factual allegations,’” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525F.3d 8, 17 n.4 (D.C. Cir. 2008) (quoting Kowal v. MCI Communications Corp., 16 F.3d 1271,1276 (D.C. Cir.1994)), it is irrelevant that Plaintiffs also allege they “are not federal employeesstrictly limited . . . in their ability to seek redress for defendant Department of Justice’s grossviolation of the fairness and requirements contained in the Civil Service Reform Act.” SecondAmend. Compl. ¶ 219.

38

The court therefore concluded that no Bivens remedies were available to either of the plaintiffs

before it:

there can be little doubt as to whether Congress has brought claims like those advancedby Hubbard and Spagnola within CSRA’s ambit. This is because the CSRA itself, in onefashion or another, affirmatively speaks to claims such as Hubbard’s and Spagnola’s bycondemning the underlying actions as ‘prohibited personnel practices.’ Thus, we aredealing with a statutory scheme that at least technically accommodates appellants’constitutional challenges. See Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir.1983)(describing CSRA’s scheme for classifying personnel actions).

Spagnola, 859 F.2d at 229 (footnote omitted).

Spagnola is on point and dispositive of the Bivens claims in this case. Under Spagnola,

“‘special factors’ preclude the creation of a Bivens remedy for civil service employees and

applicants who advance constitutional challenges to federal personnel actions.” Id. at 230

(emphasis added); cf. Lindahl v. Office of Personnel Management, 470 U.S. 768, 774 (1985)

(noting that in the CSRA “Congress created a new framework for evaluating adverse personnel

actions against ‘employees’ and ‘applicants for employment’”). Like plaintiff Hubbard in

Spagnola, Plaintiffs here allege that they were unlawfully excluded from consideration for

federal employment based on First Amendment-protected activities. Plaintiffs even allege that

the Bivens Defendants violated merit systems principles and engaged in prohibited personnel

practices under the CSRA. See Second Amend. Compl. ¶¶ 220 (citing 5 U.S.C. §§ 2301(b),

2301(b)(1)(E), 2301(b)(2), and 2302(b)(12)). The claims in this case are not meaningfully22

Unlike the plaintiffs in Spagnola, Plaintiffs here, of course, have failed even to pursue23

remedies available under the CSRA, see supra Notes 9 & 12.

All federal employees, except those in the Senior Executive Service, are divided into24

either the “competitive” service or the “excepted” service. See 5 U.S.C. §§ 2102(a)(1), 2103(a).Honors Program recruits and other Department of Justice attorneys are hired into the exceptedservice. See generally National Treasury Employees Union v. Horner, 854 F.2d 490, 492 (D.C.Cir. 1988).

39

distinguishable from those in Spagnola, and thus Bivens is not an available remedy for the

unlawful actions alleged.23

“Congress is in a far better a position than a court to evaluate the impact of a new species

of litigation against those who act on the public’s behalf,” and “can tailor any remedy to the

problem perceived, thus lessening the risk of raising a tide of suits threatening legitimate

initiative on the part of the Government’s employees.” Wilkie, 127 S. Ct. at 2605 (citing Bush,

462 U.S. at 389). As personnel grievances go, a claim of “wrongful hiring” is especially ill-

suited for Bivens treatment. Hiring decisions, especially in the Government’s “excepted service,”

often are highly discretionary and necessarily subjective. In programs such as the Honors24

Program and SLIP, far more highly qualified candidates will be rejected than hired. The

consequences for Bivens purposes are two-fold. First, a constitutional tort claim, especially one

turning on improper official motive is perhaps even “eas[ier] to allege and hard[er] to disprove”

than in other contexts. See Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (internal quotations

omitted). Something as simple as an interviewer’s question regarding an applicant’s past

employment might be perceived or characterized as suggesting hostility to past political

affiliation. Inevitably interviewers and managers would shy away from asking legitimate

questions for fear of winding up as a defendant in a “nebulous” “intent-controversy.” See

40

Johnson v. Jones, 515 U.S. 304, 316 (1995). Some officials might shy away from participating

in the recruiting process altogether.

Second, the damages in a “wrongful hiring” case would be particularly difficult to

calculate, especially when large numbers of highly qualified applicants must be rejected in any

event. Although only nominal damages may be awarded in some constitutional tort cases, (see

Carey v. Piphus, 435 U.S. 247, 266 (1978)), the prospect of awarding one dollar to genuinely

wronged job seekers in a few cases hardly seems worth the offsetting costs of litigation over

valid discretionary judgments in many others, not to mention the systemic costs of risk-averse

federal hiring decisions. Cf. Crawford-El v. Britton, 93 F.3d 813, 834 (D.C. Cir. 1996) (en banc)

(Silberman, J., concurring) (“It is perhaps one of the simplest axioms of law and economics that

overdeterrence as well as underdeterrence yields inefficient results.” (citing P. Schuck, Suing

Government 68-75 (1983)), vacated, 523 U.S. 574 (1998). As these problems illustrate,

“Congress is in a better position to decide whether or not the public interest would be better

served by creating” such a “‘new substantive legal liability.’” Bush, 462 U.S. at 390. Therefore,

in addition to the alternative remedial scheme available for Plaintiffs’ complaints, other special

factors counsel against the recognition of a Bivens remedy in this case.

Finally, although legally irrelevant to whether a Bivens cause of action exists, it bears

emphasizing that the exclusive CSRA scheme by no means leaves violations of job applicants’

rights unredressed. The CSRA establishes a detailed and comprehensive system for dealing with

federal employment issues. See 5 U.S.C. §§ 1212, 1214, 2301, 2302. The Act requires that

“[a]ll employees and applicants for employment receive fair and equitable treatment in all

aspects of personnel management without regard to political affiliation, . . . and with proper

A “prohibited personnel action” is defined as any action that violates the CSRA’s merit25

system principles. 5 U.S.C. § 2302(a).

41

regard for their privacy and constitutional rights.” 5 U.S.C. § 2301(b)(2). As mentioned above,

an applicant for employment who alleges a “prohibited personnel practice” may file a complaint

with the Office of Special Counsel. 5 U.S.C. §§ 1212, 1214, 2302. If the OSC determines that25

there are reasonable grounds to believe a complainant’s allegations are true, it must report its

determination to the Merit Systems Protection Board, the agency involved, and to the Office of

Personnel Management. 5 U.S.C. § 1214(b)(2)(B). After a reasonable period of time, if the

agency fails to take corrective action, the OSC then may petition the MSPB to order appropriate

corrective action. 5 U.S.C. § 1214(b)(2)(C). Although no doubt disappointing to individual

litigants, Congress, which is “far more competent than the Judiciary to carry out the necessary

‘balancing [of] governmental efficiency and the rights of employees’” and applicants, (Chilicky,

487 U.S. at 423 (quoting Bush, 462 U.S. at 389)), has established this procedure, and for that

reason courts do not engraft upon it additional remedies of their own making. See Spagnola, 859

F.2d at 229-30. Therefore, because the damages relief Plaintiffs seek in this case is unavailable

as a matter of law, the Court should dismiss their Bivens claims. See Chilicky, 487 U.S. at 429.

B. To the Extent Plaintiffs’ Bivens Claims Are Based on Alleged Violations ofPrivacy or Misuse of Information About Plaintiffs, Their Claims ArePrecluded by the Privacy Act and CSRA.

Plaintiffs also allege that the Bivens Defendants improperly collected and used

information about their political affiliations for the purpose of excluding them from Department

of Justice employment. See Second Amend. Compl. ¶¶ 173-217. To the extent any of these

privacy-based allegations could be considered separate from allegations that Defendants violated

As noted above, Plaintiffs cannot maintain a Privacy Act claim against the Department26

because such a claim is precluded by the CSRA, which provides the exclusive means forchallenging allegedly prohibited personnel practices — even those cast as Privacy Act violations.

42

Plaintiffs’ constitutional rights by excluding them from consideration for hiring, the Court should

dismiss these claims as well. Congress considered the problem of improper collection,

maintenance, and use of information about individuals, and in response enacted the Privacy Act

of 1974, 5 U.S.C. §§ 552a, 2301-02. The D.C. Circuit, this Court, and others have

acknowledged the Privacy Act to be a comprehensive statutory scheme that forecloses Bivens

remedies arising from government officials’ misuse of information about individuals. See Wilson

v. Libby, 535 F.3d 697, 707-10 (D.C. Cir. 2008) (affirming Wilson v. Libby, 498 F. Supp. 2d 74

(D.D.C. 2007)); Hatfill v. Ashcroft, 404 F. Supp. 2d 104, 104, 112-16 (D.D.C. 2003); see also

Downie v. City of Middleburg Heights, 301 F.3d 688, 696 (6th Cir. 2002). That is true regardless

of whether the Privacy Act provides a remedy against the Government in this particular case,

which, as discussed in Part II, supra, it does not. As noted above, Plaintiffs’ recourse, if any, is

exclusively through the CSRA. 26

The Privacy Act generally regulates the “collection, maintenance, use and dissemination

of information about individuals by federal agencies.” Wilson, 535 F.3d at 707 (citations

omitted). “The Act attempts to strike a balance between the government’s need to collect and

maintain information and the privacy interests of the persons to whom such information

pertains.” Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001) (citation and internal

quotations omitted); see also Blazy v. Tenet, 194 F.3d 90, 95-96 (D.C. Cir. 1999). Generally,

when an agency fails to comply with the Privacy Act, an individual may bring a civil action

against the agency, (see 5 U.S.C. § 552a(g)(1)(D)), unless another federal statute (such as the

43

CSRA) controls, see Part II, supra. The term “agency” is defined as “any executive department,

military department, Government corporation, Government controlled corporation, or other

establishment in the executive branch of the Government (including the Executive Office of the

President), or any independent regulatory agency.” 5 U.S.C. §§ 552a(a)(1), 552(f). The Act,

however, confers no private cause of action against agency officials in their individual capacities.

See 5 U.S.C. § 552a(g)(1); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006);

Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657 (D.C. Cir. 1996); see also Mittleman v. United

States Treasury, 773 F. Supp. 442, 450 (D.D.C. 1991) (“Privacy Act provides for civil remedies

only against an agency, not against individuals.”).

In this case, Plaintiffs’ Bivens claims directly implicate the comprehensive Privacy Act

scheme. See 5 U.S.C. §§ 552a; Wilson, 535 F.3d at 707; Chung v. United States, 333 F.3d 273,

274 (D.C. Cir. 2003). Indeed, Plaintiffs’ Second Amended Complaint includes no less than eight

counts for relief brought under the Privacy Act itself. See Second Amend. Compl. ¶¶ 100-161,

218-26. And Plaintiffs explicitly assert that Defendants’ “Privacy Act-based misconduct”

deprived them of their constitutional rights to “due process and equal protection of the laws in

such a manner, and on such basis, as to necessarily abridge their First Amendment freedoms of

speech, political/ideological expression, and association.” E.g., Second Amend. Compl. ¶¶ 188,

195. Plainly, the very same conduct for which Plaintiffs seek relief under the Privacy Act also

forms the basis for their constitutional claims against the Bivens Defendants.

The comprehensive Privacy Act regime precludes a Bivens remedy for the alleged misuse

of information about Plaintiffs by government officials even if Plaintiffs have no remedy under

the Act (as is the case here). In Wilson, the D.C. Circuit recently held that existence of the

44

comprehensive Privacy Act scheme barred Bivens claims brought under the First and Fifth

Amendments even as to defendant officials’ whose offices were not covered by the Act. See

Wilson, 535 F.3d at 701, 707-10 (citing Wilkie, 127 S. Ct. at 2600, 2604-05; Chilicky, 487 U.S. at

421-22; Bush, 462 U.S. at 388-90). The plaintiffs in that case sought damages against the Vice

President, his then Chief of Staff, and an advisor to the President, on the theory that the offices of

the President and Vice President were not covered by the Privacy Act. The D.C. Circuit agreed

that the Privacy Act failed to cover the offices of the President and the Vice President, but

nonetheless concluded that a Bivens remedy could not be implied. The Court stated that “our

precedent is plain that the Wilsons are still not entitled to Bivens relief as to Vice President

Cheney, Rove, or Libby, provided their omission from the remedial scheme was not inadvertent.”

Wilson, 535 F.3d at 708 (citing Spagnola, 859 F.2d at 228). Reviewing the statute’s legislative

history, “Congress did not inadvertently omit the Offices of the President and Vice President

from the Privacy Act’s disclosure requirements.” Wilson, 535 F.3d at 708. Accordingly, the

Court held that, even though the plaintiffs could not recover under the Act itself, no Bivens action

was available.

Similarly, the existence of the comprehensive Privacy Act scheme forecloses Plaintiffs’

Bivens claims grounded on government officials’ alleged unlawful collection, maintenance, and

use of information about them, regardless of whether Plaintiffs’ Complaint actually states viable

Privacy Act claims. As the D.C. Circuit emphasized in Wilson, “[t]he special factors analysis

does not turn on whether the statute provides a remedy to the particular plaintiff for the particular

claim he or she wishes to pursue.” Id. at 709. Instead, “a comprehensive statutory scheme

precludes a Bivens remedy even when the scheme provides the plaintiff with ‘no remedy

45

whatsoever.’” Id. (citing Spagnola, 859 F.2d at 228, quoting in turn Chilicky, 487 U.S. at 423).

So too here. Thus, as in Wilson, this Court should decline to supplement the statutory scheme

with additional Bivens remedies. See Wilson, 535 F.3d at 707; see also Downie, 301 F.3d at 696.

Even though Plaintiffs cannot recover from the Department under the Privacy Act (but must

instead pursue remedies under the CSRA, see Part II supra), no Bivens action is available.

* * * * *

In enacting the CSRA and the Privacy Act, Congress considered the proper recourse for

individuals who allege prohibited personnel practices and the improper collection, maintenance,

and use of personal information in government decisionmaking. Congress’ determination not to

provide civil damages remedies against offending officials was anything but “inadvertent,” and

Congress has not plainly expressed an intention that courts allow Bivens remedies instead. See

Wilson, 535 F.3d at 706; Spagnola, 859 F.2d at 228. Under well-established precedents, federal

job applicants cannot maintain Bivens claims in circumstances like those alleged here.

Accordingly, the Bivens claims against the former Attorney General and the other individual

Defendants in this case must be dismissed.

CONCLUSION

For the foregoing reasons, the Department of Justice respectfully requests that the Court

dismiss all claims against the Department for lack of jurisdiction or alternatively failure to state a

claim. The United States also respectfully suggests that the claims against the individual

Defendants likewise be dismissed.

46

Date: December 2, 2008 Respectfully submitted,

GREGORY G. KATSASAssistant Attorney GeneralCivil Division

JOHN R. TYLER(D.C. Bar No. 297713)Assistant Branch DirectorFederal Programs Branch

RICHARD MONTAGUESenior Trial CounselTorts Branch, Civil Division

MEGAN L. ROSE(D.C. Bar No. 495258)Trial AttorneyTorts Branch, Civil Division

/s Jacqueline Coleman Snead JACQUELINE COLEMAN SNEAD(D.C. Bar No. 459548)Trial AttorneyUnited States Department of JusticeCivil Division, Federal Programs Branch20 Massachusetts Avenue N.W., Room 7214Washington, D.C. 20530Tel: (202) 514-3418Fax: (202) 616-8470Email: jacqueline.snead@usdoj.gov

Attorneys for the United States Department of Justice

UNITED STATES DISTRICT COURT FOR THEDISTRICT OF COLUMBIA

SEAN M. GERLICH, et al.,

Plaintiffs,

v.

UNITED STATES DEPARTMENT OFJUSTICE, et al.,

Defendants.

Civil Action No.: 1:08-cv-01134(JDB)

PROPOSED ORDERED

Upon consideration of Defendant Department of Justice’s Motion to Dismiss Second

Amended Complaint and the United States’ Statement of Interest Supporting Dismissal of

Claims Against the Individual Defendants, the opposition thereto, and the complete record in this

case, it is hereby

ORDERED that the Department’s motion is GRANTED. This action is dismissed.

SO ORDERED.

Dated:_____________________ _______________________________________UNITED STATES DISTRICT COURT JUDGE

CERTIFICATE OF SERVICE

I certify that on this 2nd day of December 2008, I caused a copy of the foregoing

Memorandum in Support of Defendant Department of Justice’s Motion to Dismiss Second

Amended Complaint and the United States’ Statement of Interest Supporting Dismissal of

Claims Against the Individual Defendants to be filed electronically and that the document is

available for viewing and downloading from the ECF system.

s/ Jacqueline Coleman Snead JACQUELINE COLEMAN SNEAD