Gonzalez v. U.S. Department of Agriculture

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-20312-BLOOM/Otazo-Reyes

JOEY D GONZALEZ RAMOS,

Plaintiff,

v.

U.S. DEPARTMENT OF AGRICULTURE,

and UNKNOWN EMPLOYEES OF THE

U.S. DEPARTMENT OF AGRICULTURE AND

THE DEPARTMENT OF JUSTICE,

Defendants.

_________________________________________/

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant United States Department of

Agriculture’s (“Defendant” or “USDA”) Motion to Dismiss Count I of Plaintiff’s First Amended

Complaint, ECF No. [24] (“Motion”). Pro se Plaintiff Joey D. Gonzalez Ramos (“Plaintiff”) filed

a Response in Opposition, ECF No. [32] (“Response”), to which Defendant filed a Reply, ECF

No. [34] (“Reply”). The Court has carefully reviewed the Motion, the record in this case, the

applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is

granted in part and denied in part consistent with this Order.

I. BACKGROUND

On January 29, 2022, Plaintiff, who is a former federal employee of the USDA, filed his

Complaint against the USDA and unknown employees of the USDA and the United States

Department of Justice (“DOJ”). See ECF No. [1]. Plaintiff then filed an Amended Complaint on

March 4, 2022, adding Vanessa Eisemann (“Eisemann”) as a defendant. See ECF No. [13]

(“Amended Complaint”). In the Amended Complaint, Plaintiff alleges that Defendants unlawfully

disseminated information protected by the Privacy Act in violation of U.S.C. § 552a(b) (“Count

I”), the USDA failed to timely notify whether it would comply with a FOIA request in violation

of 5 U.S.C. § 552(a)(6)(A)(i) (“Count II”), the USDA failed to disclose responsive documents in

violation of 5 U.S.C. § 552(b) (“Count III”), the USDA failed to segregate responsive documents

in violation of 5 U.S.C. § 552(b) (“Count IV”), the USDA failed to disclose names of persons

responsible for denial of records in violation of 5 U.S.C. § 552(a)(6)(C)(i) (“Count V”), and the

USDA failed to timely respond to Plaintiff’s appeal in violation of 5 U.S.C. § 552(a)(6)(A)(ii)

(“Count VI”). See id. With respect to Count I, Plaintiff alleges that Defendants disseminated

information concerning Plaintiff’s status on administrative leave to non-parties John J. Murphy III

(“Murphy”) and ADR Vantage, Inc. (“ADR”). See id. ¶¶ 1, 51. After filing the Amended

Complaint, Plaintiff voluntarily dismissed Eisemann from the instant case. See ECF Nos. [22],

[23].

Following the dismissal of Eisemann, Defendant filed the instant Motion seeking to dismiss

Count I of the Amended Complaint. See ECF No. [24]. Defendant contends that Plaintiff has failed

to state a claim because Plaintiff’s employment status is not protected by the Privacy Act and

Plaintiff’s allegations do not satisfy the Rule of Retrieval. See id. at 9-14. Defendant also argues

that Plaintiff failed to adequately allege actual damages and Defendant did not waive sovereign

immunity over Plaintiff’s claims of emotional and reputational harm. See id. at 14-16. Finally,

Defendant argues that only a federal agency can be a defendant for a Privacy Act claim and there

is no right of action against unknown employees of the USDA and DOJ. See id. at 16-17. Plaintiff

responds that the Amended Complaint properly alleges a violation of the Privacy Act because the

information disclosed by Defendants is part of a system of records and the Rule of Retrieval is

contrary to existing law. See ECF No. [32] at 8-16. Plaintiff further argues that the Amended

Complaint sufficiently alleges Plaintiff’s damages. See id. at 16-18. Defendant’s Reply followed.

See ECF No. [34].1

II. LEGAL STANDARD

A pleading must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual

allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.

Ct. 1955, 167 L.Ed.2d 929, (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173

L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation”). Additionally, a complaint may not

rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129

S. Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). “Factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct.

1955. If the allegations satisfy the elements of the claims asserted, a defendant’s motion to dismiss

must be denied. Id. at 556.

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s

allegations as true and evaluate all plausible inferences derived from those facts in favor of the

plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe

of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002);

AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009)

(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving

party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678.

1 Plaintiff subsequently filed a Motion for Leave to File Surreply to Defendant’s Reply to Motion to Dismiss

Count I of Plaintiff’s First Amended Complaint, which the Court denied. See ECF Nos. [35], [38].

A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint

and attached exhibits, including documents referred to in the complaint that are central to the claim.

See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent

Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners

of the complaint may still be considered if it is central to the plaintiff’s claims and is undisputed

in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While

the court is required to accept as true all allegations contained in the complaint, courts “are not

bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at

555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.’” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

III. DISCUSSION

A. Employment Status

Defendant first contends that Plaintiff failed to state a claim under the Privacy Act because

Plaintiff’s employment status, which Defendant allegedly disclosed, is not protected by the Privacy

Act. See ECF No. [24] at 10-12 (citing Stuart v. Vilsack, No. 14-CV-416-SMJ, 2016 WL 6902347,

*9 (E.D. Wash. Nov. 23, 2016); Tennessean Newspaper, Inc. v. Levi, 403 F.Supp. 1318, 1321

(M.D. Tenn. Nov. 11, 1975); Tripp v. Department of Defense, 193 F.Supp.2d 229, 236 (D.D.C.

2002); National Western Life Ins. Co. v. United States, 512 F.Supp. 454, 461 (N.D. Tex. 1980);

Jafari v. Dep’t of Navy, 728 F.2d 247, 249 (4th Cir. 1984), Windsor v. A Fed. Exec. Agency, 614

F. Supp. 1255, 1261 (M.D. Tenn. 1983), aff’d sub nom. Windsor v. Fed. Exec. Agency Termed

U.S. Dep’t of Just., 767 F.2d 923 (6th Cir. 1985)).

Plaintiff responds that Plaintiff’s status on administrative leave is at issue here and

Plaintiff’s status on administrative leave does not equate to Plaintiff’s employment status. See ECF

No. [32] at 8. As such, Plaintiff contends that Defendant’s reliance on cases involving the

disclosure of employment status, as opposed to the disclosure of administrative leave status, is

inapposite. See id. at 8-9. Plaintiff further submits that Plaintiff’s status on administrative leave is

part of the system of records on Plaintiff’s employment history and, therefore, protected by the

Privacy Act. See id. at 10. Moreover, even if considered a part of Plaintiff’s employment status,

Plaintiff submits that Plaintiff’s employment status is protected by Exemption 6 of the Freedom

of Information Act (“FOIA”) and thereby protected under the Privacy Act. See id. at 9 (citing 5

C.F.R. § 293.311(b)(6); Parker v. United States DOJ Exec. Office for United States Attys., 68 F.

Supp. 3d 218, 231 (D.D.C. 2014); Nat’l Right to Work Legal Def. & Educ. Found., Inc. v. United

States DOL, 828 F. Supp. 2d 183, 191 (D.D.C. 2011)). As such, Plaintiff contends that the

disclosure of his administrative leave status violated the Privacy Act. See id.

Defendant replies that although Exemption 6 is protected under the Privacy Act, Plaintiff’s

status on administrative leave is not covered under Exemption 6 and, therefore, not protected under

the Privacy Act. See ECF No. [34] at 2-4.

The Court agrees with Plaintiff. First, the Eleventh Circuit, in addressing a motion to

dismiss, has held that in order to sufficiently allege a violation of the Privacy Act,

[t]he plaintiff must demonstrate that: (1) the government failed to fulfill its record-

keeping obligation; (2) the agency acted intentionally or willfully in failing to

perform its obligation; (3) the failure proximately caused an adverse effect on an

individual; and (4) that individual suffered actual damages.

Speaker v. U.S. Dep’t of Health & Hum. Servs. Centers for Disease Control & Prevention, 623

F.3d 1371, 1381 (11th Cir. 2010).

A federal agency’s record-keeping obligation, as set forth in the Privacy Act, is as follows:

[n]o agency shall disclose any record which is contained in a system of records by

any means of communication to any person, or to another agency, except pursuant

to a written request by, or with the prior written consent of, the individual to whom

the record pertains . . . .

5 U.S.C. § 552a(b). The Privacy Act defines “record” as follows:

any item, collection, or grouping of information about an individual that is

maintained by an agency, including, but not limited to, his education, financial

transactions, medical history, and criminal or employment history and that contains

his name, or the identifying number, symbol, or other identifying particular

assigned to the individual, such as a finger or voice print or a photograph[.]

5 U.S.C. § 552a(a)(4). Further, Exemption 6 of FOIA, which both parties agree is covered by the

Privacy Act under Eleventh Circuit precedent, states that “personnel and medical files and similar

files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”

are not subject to public disclosure. 5 U.S.C. § 552(b)(6); see also News-Press v. U.S. Dept. of

Homeland Security, 489 F.3d 1173, 1189 (11th Cir. 2007) (holding that Exemption 6 is protected

by the Privacy Act); Windsor, 614 F. Supp. at 1261 (holding that the Privacy Act is “intended to

protect only personal information, and not information which reveals nothing about a person’s

private affairs”).

The issue raised is whether Plaintiff’s allegation that Defendant disseminated Plaintiff’s

status on administrative leave constitutes an alleged failure to fulfill Defendant’s record-keeping

obligation as set forth by the Privacy Act and Exemption 6. A plain reading of the Privacy Act and

Exemption 6 does not indicate whether one’s status on administrative leave is protected from

disclosure. Further, the cases Defendant cites in support all concern whether one’s employment

status or other unrelated personal information, not one’s status on administrative leave, is covered

under the Privacy Act. See Stuart, 2016 WL 6902347, at *9 (addressing “improper disclosures

relating to [the plaintiff’s] termination, or stated differently, [the plaintiff’s] employment status”);

Tennessean Newspaper, 403 F.Supp. at 1321 (addressing the disclosure of one’s “employment

status”); Tripp, 193 F.Supp.2d at 236 (addressing the disclosure of “names, titles, salaries, and

salary-levels of public employees”), National Western Life Ins. Co., 512 F.Supp. at 461

(addressing the disclosure of names and duty stations), Jafari, 728 F.2d at 249 (addressing the

disclosure of a reservist’s duty status), Windsor, 614 F. Supp. 1255, 1259 n.5 (addressing the

disclosure of an affidavit indicating the plaintiff’s involvement in a proffer of a testimony).

Defendant provides no legal basis to make the logical jump that one’s status on administrative

leave is equivalent to one’s employment status. Instead, one of Defendant’s cited cases, Stuart,

indicates that employment status is whether an employee is still employed or has been terminated,

not necessarily whether an employee is on administrative leave. See 2016 WL 6902347, at *9.

Drawing all plausible inferences in favor of Plaintiff, the Court determines that Plaintiff’s

status on administrative leave is not equivalent to Plaintiff’s employment status because one’s

employment status only indicates whether one is employed by a government agency and reveals

nothing about one’s private affairs. See id. To the contrary, one’s status on administrative leave is

related to one’s job performance, the disclosure of which would be an unwarranted invasion of

personal privacy and would violate the Privacy Act. See Windsor, 614 F. Supp. at 1261.2 Therefore,

an allegation that Defendant disclosed Plaintiff’s status as on administrative leave is effectively an

allegation that Defendant violated the Privacy Act.3

2 To the extent that Defendant cites 5 C.F.R. § 293.311(a) to argue that one’s status on administrative leave

is similar to the enumerated categories that are not protected under Exemption 6 because they are not

personal information, the Court is not persuaded. One’s status on administrative leave reflects one’s poor

job performance, which is personal and not equivalent to the categories that are not protected under

Exemption 6 because they are not personal, such as one’s name, position, salary rates, duty station, position

descriptions, and performance standards. See 5 C.F.R. § 293.311(a). Notably, 5 C.F.R. § 293.311(a)(6)

expressly allows the disclosure of performance standards used to evaluate one’s job performance under

limited circumstances, not the performance appraisals themselves.

3 Even if the Court were to assume that one’s employment status includes one’s status on administrative

leave, Plaintiff provides several cases that establish that one’s employment status is covered by the Privacy

Act. See Parker, 68 F. Supp. 3d at 231; Nat’l Right to Work Legal Def., 828 F. Supp. 2d at 191. In Parker,

the court stated that Exemption 6 “protects information related to a person’s employment status and

employment history.” 68 F. Supp. 3d at 231. Further, the court in Nat’l Right to Work Legal Def. determined

The Privacy Act defines a record as any item of information about an individual maintained

by an agency, including records regarding one’s “employment history.” 5 U.S.C. § 552a(a)(4). As

such, it can reasonably be inferred that one’s status on administrative leave, though not a part of

one’s employment status as discussed above, is a part of one’s employment history. At least one

court has similarly held that “common sense and experience in an office setting leads to the

conclusion that the record [of the plaintiff’s leave] was most likely either kept in a file with the

plaintiff’s name on it, or entered into her leave record, which also would have been accessible by

her name or social security number. Accordingly, [], the information about plaintiff was a record

contained in a system of records [protected by the Privacy Act].” Koenig v. Navy, No. 05-35, 2005

WL 3560626, at *4 (S.D. Tex. Dec. 29, 2005). Common sense dictates that Plaintiff’s status on

administrative leave was a part of Plaintiff’s record on Plaintiff’s employment history, which

Defendant had an obligation to keep from public disclosure.4

B. Rule of Retrieval

Next, Defendant argues that even if Plaintiff’s status on administrative leave is protected

by the Privacy Act, Plaintiff’s allegations do not satisfy the Rule of Retrieval. See ECF No. [24]

at 12-14. According to Defendant, the Privacy Act “does not prohibit all nonconsensual disclosures

of information found in an individual’s records.” Mulhern v. Gates, 525 F.Supp. 2d 174, 182

(D.D.C. 2007) (emphasis in original). Instead, liability for disclosures is limited by the Rule of

Retrieval, which requires that the information disclosed be “directly or indirectly retrieved from a

that “[p]ersonal information protected by Exemption 6 includes, but is not limited to, a person’s date of

birth, marital status, or employment status.” 828 F. Supp. 2d at 191. As such, to the extent that one’s

administrative leave status can be considered one’s employment status, Plaintiff’s administrative leave

status appears to be protected under Exemption 6 and, by extension, the Privacy Act.

4 Defendant mentions in two footnotes that Plaintiff himself revealed the fact that he was on administrative

leave. See ECF Nos. [24] at 12 n.6, [34] at 4 n.2. The argument is unavailing for purposes of a motion to

dismiss given that Plaintiff need not allege that he did not disclose the protected information. See Speaker,

623 F.3d at 1381.

system of records.” Fisher v. Nat’l Inst. of Health, et al., 934 F.Supp. 464, 473 (D.D.C. 1996),

aff’d without opinion, 107 F.3d 922 (D.C. Cir. 1996). Disclosure of information derived from

independent sources is not prohibited by the Privacy Act, even though identical information may

be contained in an agency’s system of records. Id. (quoting Thomas v. United States Dep’t of

Energy, 719 F.2d 342, 345 (10th Cir. 1983)). Defendant submits that the Amended Complaint does

not allege that Eisemann, or anyone acting on behalf of the USDA, retrieved a record reflecting

his status on administrative leave before disclosing it to Murphy and ADR. See ECF No. [24] at

13.

Plaintiff responds that Bartel v. F.A.A., 725 F.2d 1403, 1409 (D.C. Cir. 1984), forecloses

Defendant’s reliance on the Rule of Retrieval. See ECF No. [32] at 15-16. In Bartel, the fact that

the official who released the protected information did not read the protected information, and

therefore did not technically retrieve the protected information from the records before disclosing

it, did not save the defendant. See id. at 16. The official’s release of protected information, though

not strictly retrieved from the record, constituted a violation of the Privacy Act irrespective of the

Rule of Retrieval. See Bartel, 725 F.2d at 1411.

Defendant replies that the court in Bartel was careful to limit its holding regarding the Rule

of Retrieval to the “peculiar set of circumstances present [in Bartel]: disclosure by an agency

official of his official determination made on the basis of an investigation which generated a

protected personnel record.” ECF No. [34] at 7 (quoting Bartel, 725 F.2d at 1409). To explain

further, in Bartel, the plaintiff’s supervisor disclosed protected information from an investigation

that the plaintiff’s supervisor himself had overseen. Because the plaintiff’s supervisor had personal

knowledge of the results of the investigation, the court held that strict application of the Rule of

Retrieval was not warranted. The court determined that even though the plaintiff’s supervisor did

not retrieve the information from the record and was presumably speaking from personal

knowledge, the defendant could be found liable for violating the Privacy Act because the plaintiff’s

supervisor essentially created the protected information in the record. In contrast, Defendant

argues the Amended Complaint does not allege that Eisemann, or whoever disseminated the

protected information on behalf of the USDA, placed Plaintiff on administrative leave. See ECF

No. [34] at 7-8. Therefore, Defendant argues that Bartel’s exception to the Rule of Retrieval is

inapplicable. See id.

Both parties’ arguments miss the mark. As noted above, the Privacy Act states that “[n]o

agency shall disclose any record which is contained in a system of records.” 5 U.S.C. § 552a(b).

Further, the Eleventh Circuit, in addressing a motion to dismiss, has held that in order to

sufficiently allege a violation of the Privacy Act,

[t]he plaintiff must demonstrate that: (1) the government failed to fulfill its record-

keeping obligation; (2) the agency acted intentionally or willfully in failing to

perform its obligation; (3) the failure proximately caused an adverse effect on an

individual; and (4) that individual suffered actual damages.

Speaker, 623 F.3d at 1381 (11th Cir. 2010). A plain reading of the elements for a violation of the

Privacy Act, set forth by the statute, establishes that allegations regarding the Rule of Retrieval –

namely, allegations that the defendant released the information after having physically retrieved it

from the record – are not required to state a claim for relief. To allege a claim for a violation of the

Privacy Act, a plaintiff need only allege that the protected information is contained, not physically

retrieved from, the system of records. The Court is unaware of, and the parties fail to provide, any

binding legal authority indicating that Plaintiff is obligated to allege that the protected information

was physically retrieved from the record itself. Notably, almost all of the cases cited by the parties

in support of their respective positions address the Rule of Retrieval in the context of a motion for

summary judgment, an appeal of a final judgment, or a post-trial motion. See Mulhern, 2007 WL

4239911; Fisher, 934 F.Supp. 464; Thomas, 719 F.2d 342; Bartel, 725 F.2d 1403; Jackson, 503

F.Supp. 653; Armstrong v. Geithner, 608 F.3d 854, 861 (D.C. Cir. 2010); Doe v. U.S. Dep’t of

Treasury, 706 F. Supp. 2d 1, 8 (D.D.C. 2009); Doe v. Dep’t of Veterans Affs. of U.S., 519 F.3d

456, 462 (8th Cir. 2008); Krowitz v. Dep’t of Agric., U.S. Forest Serv., 641 F. Supp. 1536, 1543-

44 n.6 (W.D. Mich. 1986).5 While the argument may be proper at a later stage, Plaintiff is under

no obligation to allege in his Amended Complaint a preemptive response to what is essentially a

defense to liability.

C. Damages

Defendant next argues that the Amended Complaint fails to state a claim for relief because

Plaintiff has not alleged an actual pecuniary loss caused by the disclosure. See ECF No. [24] at 14-

16. According to Defendant, a claim under the Privacy Act requires a plaintiff to plead actual

damages – that is, a pecuniary loss – as opposed to “generalized mental injuries, loss of reputation,

embarrassment or other non-quantifiable injuries.” Fanin v. U.S. Dep’t of Veterans Affairs, 572

F.3d 868, 872-73 (11th Cir. 2009) (internal quotation marks and citation omitted)); see also F.A.A.

v. Cooper, 566 U.S. 284, 299 (2012) (“adopt[ing] an interpretation of ‘actual damages’ limited to

proven pecuniary or economic harm” (alteration added)). Defendant submits that in the absence of

an allegation of an actual pecuniary loss, Count I is subject to dismissal for failure to state a claim.

See ECF No. [24] at 14-16. Defendant also argues that it has not waived sovereign immunity with

5 One exception is Finnerty v. U.S. Postal Serv., No. CIV. 03-558 (HAA), 2006 WL 54345, at *12 (D.N.J.

Jan. 9, 2006), a nonbinding case cited by Defendant in its Reply. See ECF No. [34] at 6. In Finnerty, the

court analyzed the Rule of Retrieval in addressing a motion to dismiss. See 2006 WL 54345, at *1. However,

given the weight of authority against Finnerty, including the Eleventh Circuit’s holding in Speaker, 623

F.3d at 1381 (11th Cir. 2010), which does not require allegations regarding the Rule of Retrieval, the Court

declines to follow the analysis set forth in Finnerty. The other exception is Krieger v. Fadely, 199 F.R.D.

10, 13 (D.D.C. 2001), another nonbinding case cited by Defendant in its Reply. See ECF No. [34] at 6. In

Krieger, however, the court was addressing a motion to compel. See 199 F.R.D. 10. Given the procedural

posture before this Court, Krieger is also not instructive.

respect to Plaintiff’s damages arising from emotional distress and reputational harm. See Cooper,

566 U.S. at 303.

Plaintiff responds that the Amended Complaint sufficiently alleges damage to his personal

and professional reputation, mental anguish, and emotional distress, and that as a result, the

Amended Complaint satisfies the “adverse” effect element of the Privacy Act. See ECF No. [32]

at 16-18. The “adverse” effect element of the Privacy Act is “a term of art identifying a potential

plaintiff who satisfies, and who may consequently bring a civil action without suffering dismissal

for want of standing to sue.” Speaker, 623 F.3d at 1382. Plaintiff also notes that similar to the

plaintiff in Speaker, Plaintiff satisfactorily alleged that he suffered actual pecuniary losses because

the unlawful disclosures had a negative impact on his livelihood and he incurred litigation

expenses after being forced to defend false allegations made against him. See ECF No. [32] at 18.

The Court agrees with Defendant. The Eleventh Circuit has held that “‘actual damages’ as

used in the Privacy Act permits recovery only for proven pecuniary losses and not for generalized

mental injuries, loss of reputation, embarrassment or other non-quantifiable injuries.” Speaker,

623 F.3d at 1383 (quoting Fitzpatrick v. IRS, 665 F.2d 327, 331 (11th Cir. 1982), abrogated on

other grounds by Doe v. Chao, 540 U.S. 614, 616 (2004)); see also Corbett v. Transportation Sec.

Admin., 568 F. App’x 690, 702 (11th Cir. 2014) (“We need not evaluate whether Corbett stated a

Privacy Act violation because he alleged no pecuniary loss or actual damages as a result of a

Privacy Act violation.”). Further, as Defendant correctly notes, “[t]he Privacy Act does not allow

a claim for damages based on reputational or emotional harm, and does not authorize damages for

mental or emotional distress[.]” Richardson v. Board of Governors of Federal Reserve System,

288 F.Supp. 3d 231, 237-38 (D.D.C. 2018) (quoting Welborn v. IRS, 218 F.Supp. 3d 64, 82 (D.D.C.

2016)). “As a result, Plaintiffs must specifically allege actual damages to survive a motion to

dismiss for failure to state a claim.” Id. (citation and internal quotation marks omitted).

Plaintiff only alleges that he “has suffered adverse and harmful effects, including, but not

limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized

present or future financial opportunities.” ECF No. [13] ¶ 56. Allegations of “mental distress,

emotional trauma, embarrassment, [and] humiliation” are not a basis for a claim under the Privacy

Act because they are not pecuniary losses. See Speaker, 623 F.3d at 1383. Further, Defendant

correctly points out that sovereign immunity forecloses a claim for such harms. See Cooper, 566

U.S. at 303. Next, with regard to Plaintiff’s allegation of “lost or jeopardized present or future

financial opportunities,” the Court determines that the allegation amounts to a “‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

557); see also Richardson, 288 F. Supp. 3d at 237-38. The Amended Complaint fails to identify

what present and future financial opportunities Plaintiff has lost as a result of the alleged disclosure

of Plaintiff’s administrative leave to Murphy and ADR. See generally ECF No. [13].

Further, Plaintiff’s argument with regard to the “adverse” effect element is unavailing. The

Court reiterates that to state a claim for relief under the Privacy Act,

[t]he plaintiff must demonstrate that: (1) the government failed to fulfill its record-

keeping obligation; (2) the agency acted intentionally or willfully in failing to

perform its obligation; (3) the failure proximately caused an adverse effect on an

individual; and (4) that individual suffered actual damages.

Speaker, 623 F.3d at 1381. Thus, any argument regarding an “adverse” effect only goes to the third

element, which Defendant does not challenge. The fact that Plaintiff has satisfactorily alleged the

third element does nothing to address Plaintiff’s failure to allege the fourth element, which requires

an allegation of actual damages. Moreover, whether Plaintiff incurred litigation expenses from

having to defend the false allegations made against him was not alleged in the Amended

Complaint. Even if it were alleged, the allegation would have only satisfied the third element, not

the fourth element. See Speaker, 623 F.3d at 1382-83 (holding that the costs of having to defend

false allegations is pertinent to the third element). As such, Count I must be dismissed for failure

to state a claim.

D. Claims against Unknown Employees

The Court next turns to Defendant’s argument that only a federal agency can be a proper

defendant for a Privacy Act claim, and that unknown employees of the USDA and DOJ should be

dismissed from this case. See ECF No. [24] at 16-17. Defendant submits that Plaintiff’s reliance

on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), is

unavailing, and that Bivens does not provide a basis for Plaintiff’s claim against unknown

employees of the USDA and DOJ. See id. Plaintiff fails to respond to Defendant’s argument on

this matter. See generally ECF No. [32].

The Court agrees with Defendant. Plaintiff alleges a single count against unknown

employees of the USDA and DOJ – namely, a violation of the Privacy Act in Count I. See ECF

No. [13] ¶¶ 50-56. As Defendant correctly states, “the law is clear that only federal agencies, not

individuals, are the proper defendants for a Privacy Act cause of action.” Dick v. Holder, 67

F.Supp. 3d 167, 176 (D.D.C. 2014) (citing 5 U.S.C. § 552a(g)(1)). See ECF No. [24] at 16-17.

Further, Bivens, 403 U.S. 388, allows a remedy for violations of a plaintiff’s constitutional rights,

but Plaintiff does not allege a violation of his constitutional right in this case. As such, Bivens is

inapposite, and dismissal of the claim against unknown employees of the USDA and DOJ is

appropriate.

Case No. 22-cv-20312-BLOOM/Otazo-Reyes

E. Dismissal With Prejudice

As a final matter, Defendant requests that Count I be dismissed with prejudice, see ECF

No. [34] at 10, and Plaintiff requests leave to amend his pleading, see ECF No. [32] at 19.

Considering the parties’ arguments, a second opportunity to amend the Complaint would not be

futile given that Plaintiff can conceivably allege actual damages and remove allegations of “mental

distress, emotional trauma, embarrassment, [and] humiliation.” ECF No. [13] § 56. As such, the

Court determines that Plaintiff should be granted one more opportunity to amend his pleadings.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Dismiss, ECF No. [24], is GRANTED IN PART AND

DENIED IN PART.

2. Plaintiffs claim against USDA in Count I is DISMISSED WITHOUT

PREJUDICE and with leave to amend.

3. Plaintiffs claim against unknown employees of the USDA and DOJ is

DISMISSED WITH PREJUDICE.

4. Plaintiff can, in good faith, allege actual damages in accordance with the Court’s

Order, Plaintiff shall file his Second Amended Complaint by no later than July 1,

2022.

5. Defendant’s Motion to Stay, ECF No. [25], is DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, on June 21, 2022.

UNITED STATES DISTRICT JUDGE

15

Copies to:

Counsel of Record

Joey D Gonzalez Ramos

Joey Gonzalez, Attorney, P.A.

P. O. Box 145073

Coral Gables, FL 33114

United States

3057203114

Fax: 3056768998

Email: joey@joeygonzalezlaw.com