Jones v. Office of Workers' Compensation Programs
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/19/12 RECOMMENDING that the 35 Amended Motion to Dismiss be granted; plaintiff's access claim be dismissed with prejudice as moot; plaintiff's amendment cl aim be dismissed without prejudice and without leave to amend as unexhausted; plaintiff's claim for benefits be dismissed with prejudice as an impermissible collateral challenge to the underlying agency decisions; plaintiff's catch-all dam ages claim be dismissed with leave to amend; and plaintiff's 31 Motion for discovery be denied without prejudice to renewal, at the earliest, following filing of an amended complaint. Objections to these F&Rs due within 14 days; motions and case referred to Judge Morrison C. England, Jr. (Benson, A.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL R. JONES,
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Plaintiff,
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No. 2:11-CV-2799-MCE-CMK
vs.
FINDINGS AND RECOMMENDATIONS
OFFICE OF WORKERS’ COMP.
PROGRAMS,
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Defendant.
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Plaintiff, who is proceeding pro se, brings this civil action pursuant to 5 U.S.C.
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§ 522a(g)(1) to remedy alleged violations of the Privacy Act of 1974. Pending before the court is
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defendant’s motion to dismiss (Docs. 32 and 35). Also before the court is plaintiff’s motion for
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discovery (Doc. 31). The parties appeared for a hearing on August 29, 2012, at 10:00 a.m. before
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the undersigned in Redding, California. Plaintiff appeared pro se. Yoshinori Himel, Esq.,
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appeared for defendant.
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I. PLAINTIFF’S ALLEGATIONS
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Plaintiff claims that he was injured on July 15, 1993, while working for the
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Forrest Service as a Fire Engine Operator (“FEO”) and that he initiated a workers’ compensation
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claim. According to plaintiff, he was in line for a step increase in pay in 1994 from a GS 6, Step
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8, to a Step 9. He also states that in 1997 the FEO position was upgraded to a GS 7. Plaintiff
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alleges that in June 2003 the Forrest Service “and agency” “contrived a plan to coerce Plaintiff
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into accepting a series 1001 GS 5 Information Assistant (IA) position at a GS 6 step 10 pay rate,
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which they falsely claimed was equivalent to what I would have received if Plaintiff had
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remained in the FEO position.” Plaintiff states that he began working as an IA in April 2004 and
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that, at this time, he would have been paid at a GS 7, Step 10, pay rate had he remained in the
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FEO position. Plaintiff also claims that, “[j]ust prior to, and since, occupying the IA position in
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2004,” he learned of “adverse actions and decisions” against him including the reduction of
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salary and removal of locality pay adjustments.
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Next, plaintiff states that he filed “numerous” requests for reconsideration and
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appeals, but that defendants failed to provide plaintiff with “legitimate justification,
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documentation, information, formulas, and/or other evidence” supporting their decisions.
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According to plaintiff, the decisions made in his case were made by ignoring information and
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evidence he provided, and by “contriving and/or materially misrepresenting the facts. . . .”
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Plaintiff further alleges that in response to adverse decisions, he submitted a “FOIA/Privacy Act
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request” on May 20, 2010, to “compel the agency to provide copies of his case file records and in
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an effort to know what information the agency is relying on and basing their decisions.” Plaintiff
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states that “the agency was non-compliant” to his request. Plaintiff states that he then submitted
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another “FOIA/Privacy Act request” on June 2, 2010, and another on June 15, 2010.
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Plaintiff claims that he received a response on June 17, 2010, which was
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inadequate because it consisted of “a jumbled, two-sided, distorted, unorganized, incomplete, and
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non-indexed mess of documents bound by a rubber band.” According to plaintiff, some
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documents appeared altered and other documents seemed to be missing. Dissatisfied, plaintiff
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filed a “FOIA/PA appeal via email” on September 15, 2010. In response, plaintiff was sent a
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decision letter on June 30, 2011, remanding plaintiff’s case to the agency for further
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consideration. Plaintiff states this decision was non-responsive to plaintiff’s request for records.
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According to plaintiff, defendants’ refusal to comply with his requests for records
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has prevented him from pursing his agency appeal remedies. He also alleges: “Defendants’
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actions are preventing Plaintiff from receiving proper compensation benefits under their
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programs.”
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For relief, plaintiff seeks:
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Declarations that defendants violated the FOIA and Privacy Act.
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An order directing defendants to provide plaintiff’s records.
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An order directing defendants to allow plaintiff to amend his case file.
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Damages under 5 U.S.C. § 552a(g)(4)(A).
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An order to expunge all inaccurate information from plaintiff’s file.
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Damages for “compensation and/or benefits being withheld or denied.”
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Damages for “back compensation benefits.”
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An order directing defendants to “retroactively cease and reverse its
termination of any compensation benefits the Plaintiff would otherwise be
receiving.”
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II. STANDARDS FOR MOTION TO DISMISS
In considering a motion to dismiss, the court must accept all allegations of
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material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The
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court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer
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v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
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738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All
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ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,
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395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual
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factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50
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(2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by
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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
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Rule 8(a)(2) requires only “a short and plain statement of the claim showing that
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the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is
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and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)
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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for
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failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic
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recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to
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raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain
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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
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1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
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than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
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at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
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it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id.
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(quoting Twombly, 550 U.S. at 557).
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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials
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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);
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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)
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documents whose contents are alleged in or attached to the complaint and whose authenticity no
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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,
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and upon which the complaint necessarily relies, but which are not attached to the complaint, see
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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials
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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
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1994).
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Finally, leave to amend must be granted “[u]nless it is absolutely clear that no
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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
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III. DISCUSSION
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In its motion to dismiss, defendant argues: (1) plaintiff’s request for access to his
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case file is moot because the file has already been given to him; (2) plaintiff’s claim for
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injunctive relief to amend his case file is unexhausted; (3) plaintiff’s collateral attack on the
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underlying workers’ compensation decision in his case is not subject to judicial review; and
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(4) plaintiff’s request for damages under 5 U.S.C. § 552a(g)(4)(A) fails to state a cognizable
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claim for relief.
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A.
Mootness (Access Claim)
Plaintiff’s primary claim is for access to his file. As established by declarations
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attached to defendants’ motion plaintiff was provided his case file on four separate occasions, the
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last of which happening in open court at the last hearing. Plaintiff’s access claim is, therefore,
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moot. See Carter v. VA, 780 F.2d 1479 (9th Cir. 1986).
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B.
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Exhaustion (Amendment Claim)
Plaintiff seeks an order allowing amendment of his case file. According to
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defendant, this claim is barred because plaintiff failed to comply with the Privacy Act’s
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exhaustion requirements. See Hewitt v. Grabicki, 794 F.2d 1373 (9th Cir. 1986). This
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argument is persuasive. While plaintiff states in the complaint that he filed appeals and requests
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for reconsideration regarding his benefits, and while he alleges that he filed an access request, he
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does not allege that he ever asked the appropriate agency to amend his case file. As to
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exhaustion, plaintiff simply states that he has exhausted administrative remedies. This, however,
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is conclusory without accompanying factual allegations as to how he accomplished this (i.e.,
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what amendment requests were filed, when, and with what agency).
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The question becomes whether to permit plaintiff an opportunity to amend the
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complaint to include more precise factual allegations as to exhaustion. Based on plaintiff’s
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statements at the hearing, the court finds that amendment would be futile. When asked what
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steps plaintiff took to exhaust his claim, plaintiff referred to an October 11, 2011, letter he wrote
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requesting all of his records by October 17, 2011, and threatening to sue if complete records were
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not received. Plaintiff informed the court quite directly that he believes this letter exhausted his
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claim at the agency level. This, however, clearly fails to establish that plaintiff ever initiated any
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formal administrative action to amend his case files or that if he did, he sought administrative
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review of the a denial of his amendment claim. Plaintiff’s reliance on his October 11, 2011,
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letter as evidence of exhaustion is misplaced.
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C.
Collateral Challenge to Agency Decision
Defendant argues that plaintiff’s claims collaterally challenging the workers’
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compensation decisions in his case are barred from judicial review under the exclusivity
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provisions of the Federal Employees’ Compensation Act (“FECA”). Under FECA, the United
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States must compensate federal workers who are disabled from an injury sustained while
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performing their official duties. See 5 U.S.C. § 8102(a). FECA’s remedies for on-the-job6
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injuries are exclusive of all other remedies against the United States. See 5 U.S.C. § 8116(c).
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Moreover, any remedies available under FECA are strictly administrative and any action for
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judicial review concerning questions of law or fact are barred. See 5 U.S.C. § 8128(b); see also
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Southwest Marine, Inc. v. Gisoni, 502 U.S. 81, 90 (1991). As defendant notes, section 8128(b) is
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a “strongly-worded door-closing provision.” Jackson v. U.S. Dep’t of Labor, 2008 WL 539925
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at *4 (E.D. Cal. 2008). Given this statutory scheme, it is clear that plaintiff’s claims relating to
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compensation, back pay, and the like are barred from judicial review. Plaintiff’s remedies
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relating to his workers’ compensation claim, if any remain, lie with the appropriate agency.
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D.
Damages Under § 552a(g)(4)(A)
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Under 5 U.S.C. § 552a(g)(4)(A), the United States’ sovereign immunity is waived
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for suits brought under § 552a(g)(1)(C) or (D). Under § 552a(g)(1)(C), the United States may be
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liable if it “fails to maintain any record concerning any individual with . . . accuracy, relevance,
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timeliness, and completeness.” As discussed above, any claim regarding amendment to correct
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defects in the record is unexhausted.
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Under § 552a(g)(1)(D), which is a catch-all provision, the United States may be
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liable if: (1) there is a Privacy Act violation other than one related to access, amendment, or
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record defects; (2) the violation has an adverse effect on the individual; (3) the violation was
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intentional or willful; and (4) the violation caused actual damages. As defendant notes, the
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complaint’s allegations relative to any catch-all claim are threadbare, formulaic, and conclusory
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recitals of the elements and do not relate actual facts. Such allegations are insufficient to state a
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plausible claim for relief. While defendant seeks a judgment on the pleadings and a dismissal
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without leave to amend, it is possible, however unlikely, that plaintiff may be able to allege
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actual facts to show a catch-all violation. In light of this possibility, plaintiff should be given
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leave to amend as to this claim only.
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IV. CONCLUSION
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There was apparent frustration on the part of plaintiff concerning the result in this
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case. According to plaintiff, the court is perpetuating alleged wrongs committed by defendant by
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preventing him from obtaining access to his complete file in order to pursue his claims for
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workers’ compensation benefits. The court attempted to explain the interconnected nature of
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plaintiff’s various claim, the jurisdictional rules, and application of those rules in his case. For
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example, when asked what plaintiff’s ultimate goal was, he responded that it was to get access to
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his unaltered entire case record. The court explained that, as to access, his claim is moot because
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he has been given everything he demanded, as confirmed by defense counsel’s numerous
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statements, both in writing and in court, to this effect. Plaintiff then complained that he could
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not know if the record he received was complete. The court then explained that, as soon as
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plaintiff complains about the completeness of the record, he is making an amendment claim
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which the court cannot consider because plaintiff failed to take the necessary steps to exhaust his
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claim at the agency level. Finally, the court asked plaintiff what he planned to do with a
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complete case record to which plaintiff responded that he would then be able to show that he was
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denied benefits to which he was entitled. The court explained that, as soon as plaintiff refers to
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benefits wrongly denied, he is collaterally challenging the underlying agency decisions and such
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a challenge cannot be heard in federal court. While plaintiff may feel that the court’s decision in
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this case closes doors for him, it appears that, in fact, he has received all he can get from this
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lawsuit – a copy of his entire agency record.
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Based on the foregoing, the undersigned recommends that:
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Defendant’s motion to dismiss (Docs. 32 and 35) be granted;
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Plaintiff’s access claim be dismissed with prejudice as moot;
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Plaintiff’s amendment claim be dismissed without prejudice and without
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leave to amend as unexhausted;
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Plaintiff’s claim for benefits be dismissed with prejudice as an
impermissible collateral challenge to the underlying agency decisions;
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Plaintiff’s catch-all damages claim be dismissed with leave to amend; and
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Plaintiff’s motion for discovery (Doc. 31) be denied without prejudice to
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renewal, at the earliest, following filing of an amended complaint.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 19, 2012
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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