ElHelbawy v. Holder et al

Filing 44

MEMORANDUM OPINION AND ORDER by Magistrate Judge Craig B. Shaffer on 09/28/15 DENYING 34 MOTION to File Amended Complaint, filed by Mona ElHelbawy; GRANTING 29 MOTION for Order to Restrict Amended Complaint, filed by Mona ElHelbawy, and GRANTING 14 MOTION to Dismiss for Failure to State a Claim filed by Penny Pritzker, Eric H. Holder, Jr. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Craig B. Shaffer
Civil Action No. 14-cv-03023-CBS
MONA ELHELBAWY,
Plaintiff,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, U.S. DOJ, and
PENNY PRITZKER, Secretary, U.S. Department of Commerce,
Defendants.
____________________________________________________________________________
MEMORANDUM OPINION AND ORDER
____________________________________________________________________________
This civil action comes before the court on: (1) Defendants’ Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(6), and (2) Plaintiff’s Motion for Leave to File Amended Complaint. This
case was directly assigned to Magistrate Judge Craig B. Shaffer pursuant to the Pilot Program to
Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges. The court has
reviewed the Motions, Ms. ElHelbawy’s Response and Exhibits (Docs. # 24 and # 25),
Defendants’ Reply (Doc. # 27), Defendants’ Response to the Motion to Amend (Doc. # 43), the
hearings held on February 13, 2015, February 20, 2015, and March 20, 2015 (See Courtroom
Minutes/Minute Orders (Docs. # 16, # 18, # 23)), the pleadings, the entire case file, and the
applicable law and is sufficiently advised in the premises.

I.

Standard of Review
Defendants have moved to dismiss the Complaint (Doc. # 1) for failure to state a claim to

which relief can be granted pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure. To
withstand a motion to dismiss under Rule 12(b)(6), a complaint must contain enough allegations

1

of fact “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). The burden is on the plaintiff to frame “a complaint with enough factual
matter (taken as true) to suggest” that he or she is entitled to relief. Twombly, 550 U.S. at 556.
Because Ms. ElHelbawy appears pro se, the court reviews the “pleadings and other papers
liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell
v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines
v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent
standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory
allegations without supporting factual averments are insufficient to state a claim upon which relief
can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume
that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. See Whitney v. State of New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a
plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the
court may not “construct arguments or theories for the plaintiff in the absence of any discussion of
those issues").

II.

Background
Ms. ElHelbawy brings one claim in the Complaint, alleging that Defendants violated the

Privacy Act by unlawfully disclosing four documents in another federal lawsuit, ElHelbawy v.
Department of Commerce, Civil Action No. 14-cv-01707-CBS (“ElHelbawy I”). She alleges that
“Defendants, without Plaintiff's consent or knowledge, publicly filed Exhibits with the United States
District Court of Colorado, disclosing Plaintiff's medical records and sensitive medical information

2

protected under the Privacy Act.” (See Doc. # 1 at 3 of 9, ¶ 3 (citing ElHelbawy I, Doc. # 19-4 at
24-38 of 73 (Exhibit 5), Doc. # 19-5 at 85-90 of 91(Exhibit 10))). She further alleges that
“Defendants publicly filed Exhibits with the United States District Court of Colorado, containing
knowingly and willfully made false statements” and “misrepresentations” “with regards to Plaintiff's
employment” and “filed claims.” (See Doc. # 1 at 3 of 9, ¶¶ 4-5 (citing ElHelbawy I, Doc # 19-4 at
50-73 of 73 (Exhibit 8), Doc # 19-3 at 7-60 of 65 (Exhibit 3))).
Ms. ElHelbawy was employed as an electronics engineer at the Institute for
Telecommunication Sciences, National Telecommunications and Information Administration,
U.S. Department of Commerce (“DOC”) in Boulder, Colorado. In September 2011, she filed an
administrative complaint of discrimination. In January 2012, the DOC’s Office of Civil Rights
accepted fourteen claims for investigation. On November 15, 2012, the agency terminated her
employment. In December 2012, Ms. ElHelbawy filed an administrative challenge to her
removal. On April 1, 2014, the Department of Commerce (“DOC”) Office of Civil Rights issued a
decision on her discrimination complaint, finding no violation. (See Doc # 19-3 at 7-60 of 65).
The April 2014 agency decision is one of the documents that was filed in ElHelbawy I that Plaintiff
claims violated the Privacy Act. On June 20, 2014, the Merit Systems Protection Board
(“MSPB”) issued an Initial Decision in her appeal of her removal. See ElHelbawy v. DOC, No.
DE-0752-13-0130-I-2, 2014 WL 2853621 (M.S.P.B. June 20, 2014). Also in June 2014, Ms.
ElHelbawy filed a lawsuit in federal court against the DOC. See ElHelbawy I. On July 26, 2014,
Ms. ElHelbawy filed a Petition for Review of the April 2014 agency decision. (See ElHelbawy I,
Doc. # 19-4 at 24-38 of 73 (Exhibit 5)). On August 22, 2014, DOC filed its Response. (See
ElHelbawy I, Doc. # 19-4 at 50-73 of 73 (Exhibit 8)). Ms. ElHelbawy was permitted to file her
Reply out of time on September 18, 2014. (See ElHelbawy I, Doc. # 19-5 at 6-91 of 91). The

3

Petition for Review, the Response, and an exhibit to the Reply are the other three documents that
Plaintiff claims were filed in ElHelbawy I in violation of the Privacy Act. The four documents at
issue here were contained in the records of Ms. ElHelbawy’s administrative proceedings before
the DOC’s Office of Civil Rights and the MSPB. The DOC provided the documents to a
Department of Justice attorney who attached them to a motion filed on behalf of the DOC in
ElHelbawy I to support its argument that the court lacked subject matter jurisdiction because Ms.
ElHelbawy had not fully exhausted her administrative remedies for her claims. (See ElHelbawy I,
Doc. # 19-3 at 6-60 of 65, Doc. # 19-4 at 24-38 of 73, Doc. # 19-4 at 50-72 of 73, Doc. # 19-5 at
85-90 of 91).

III.

Analysis
Ms. ElHelbawy alleges that Defendants violated the Privacy Act, 5 U.S.C. § 552a(b), (c),

and (e) by disclosing her “medical records and sensitive medical information,” making “false
statements . . . with regards to Plaintiff’s employment,” and making “misrepresentations and false
statements with regards to Plaintiff’s filed claims.” (See Doc. # 1 at 3 of 9, ¶¶ 3-5). “The Privacy
Act of 1974, codified in part at 5 U.S.C. § 552a, contains a comprehensive and detailed set of
requirements for the management of confidential records held by Executive Branch agencies.”
F.A.A. v. Cooper, 132 S. Ct. 1441, 1446 (2012). “The Privacy Act directs agencies to establish
safeguards to protect individuals against the disclosure of confidential records which could result
in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom
information is maintained.” Id. at 1450 (citations omitted). “If an agency fails to comply with
those requirements in such a way as to have an adverse effect on an individual, the Act authorizes
the individual to bring a civil action against the agency.” F.A.A. v. Cooper, 132 S. Ct. at 1446

4

(citation omitted). See also Williams v. McCausland, 791 F. Supp. 992, 1000 (S.D.N.Y. 1992)
(“The Privacy Act, 5 U.S.C. § 552a, provides that a civil cause of action for damages is available
when an agency fails to comply with an individual's request for access to his record or information
pertaining to him or fails to maintain accurate records concerning the individual that results in a
determination adverse to that individual.”) (citing 5 U.S.C. § 552a(g)(1)).
The Privacy Act provides that: “[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(g)(1)(D). “For a plaintiff to succeed on a Privacy Act claim, he
must demonstrate the following four elements: (1) the information is a record within a system of
records, (2) the agency disclosed the information, (3) the disclosure adversely affected the
plaintiff, and (4) the disclosure was willful or intentional.” Wilkerson v. Shinseki, 606 F.3d 1256,
1267-68 (10th Cir. 2010) (citation omitted).
“[C]ertain disclosures are authorized and do not give rise to a Privacy Act claim.”
Wilkerson, 606 F.3d at 1267-68 (citation omitted). The Act enumerates exceptions to the general
prohibition on nonconsensual disclosure of protected records. See 5 U.S.C. 552a(b)(1)-(12).
The Privacy Act sets forth agency requirements to maintain a “system of records.” 5 U.S.C. §
552a(e)(1)–(12). “Each federal agency is required to publish in the Federal Register a notice
regarding the system of records it maintains, along with an explanation regarding the routine uses
of such information.” Brunotte v. Johnson, 892 F. Supp. 2d 199, 207 (D.D.C. 2012) (citing 5
U.S.C. § 552a(e)(4)(D). The Act excepts “routine uses, i.e. types of disclosures that are
published by an agency in the Federal Register and compatible with the purposes for which the
information is gathered.” Marquez v. Johnson, No. 11-CV-545-WJM-KLM, 2012 WL 6618238, at

5

*10 (D. Colo. Dec. 19, 2012) (citing 5 U.S.C. § 552a(b)(3) (setting forth routine use exception) and
5 U.S.C. § 552a(a)(7) (defining “routine use”)). “The agency must demonstrate both
compatibility and publication in order to invoke the routine use exception.” Brunotte, 892 F.
Supp. 2d at 207 (citation omitted).
Regarding the Final Agency Decision on Ms. ElHelbawy’s EEOC complaint (Doc. # 19-3 at
6-60 of 65 (Exhibit 3)), EEOC/GOVT-1 routine uses include disclosing “information to another
federal agency, to a court, or to a party in litigation before a court or in an administrative
proceeding being conducted by a federal agency when the government is a party to the judicial or
administrative proceeding.” 67 FR 49338-01, 49354, 2002 WL 1747822 (July 30, 2002)
(EEOC/GOVT-1 routine use “b”). This routine use authorized the DOC to disclose the
information both to the Department of Justice (“DOJ”), a “federal agency” representing the DOC in
ElHelbawy I, and to the court conducting a “judicial proceeding” in which the DOC was a party.
The “compatibility” requirement of 5 U.S.C. § 552a(a)(7) is also satisfied. The Final Agency
Decision and the information contained in it were used in ElHelbawy I for the same purpose for
which it was originally collected: to adjudicate Ms. ElHelbawy’s claim that DOC discriminated
against her.
As to Ms. ElHelbawy’s Petition for Review, the DOC’s Response, and her Reply filed
before the MSPB (Docs. # 19-4 at 24-38 of 73, # 19-4 at 50-73 of 73, and Doc. # 19-5 at 6-91 of 91
(Exhibits 5, 8, and 10)), MSPB/GOVT-1 routine uses permit disclosure of Appeals and Case
Records, which “contain information or documents such as briefs, pleadings, motions, exhibits,
hearing transcripts, and MSPB decisions, which comprise the administrative records of appeals
and other matters arising under the adjudicatory authority of the Board.” 77 FR 65206-01, 65206,
2012 WL 5246733 (Oct. 25, 2012) (MSPB/GOVT-1 routine use “a”)). Disclosure is also

6

permitted to “the Department of Justice (DOJ) when [t]he United States is a party to litigation or
has an interest in such litigation and the use of such records is deemed to be relevant and
necessary to the litigation, providing that the disclosure of the records is a use of the information
contained in the records that is compatible with the purpose for which the records were collected,
. . . .” 77 FR 65206-01, 65206, 2012 WL 5246733 (Oct. 25, 2012) (MSPB/GOVT-1 routine use
“g(4)”). Routine use “g(4)” authorized the DOC to disclose the information to the DOJ with the
expectation that the DOJ would disclose the records to the court in defending the agency against
the claims in ElHelbawy I. The well-pleaded facts show that the MSPB records were in fact
“deemed to be relevant and necessary” to the DOC’s arguments that Ms. ElHelbawy had not
exhausted her administrative remedies before filing the lawsuit. See ElHelbawy I, Doc. # 19.
Plaintiff does not allege that the information was not “deemed to be relevant and necessary to the
[ElHelbawy I] litigation.” In fact, Plaintiff attached MSPB documents as exhibits to her complaint
in ElHelbawy I. (See Exhibit A to Complaint in ElHelbawy I, Doc. # 1-1 at 2-16 of 72). As the
documents and the information contained in them were used in ElHelbawy I for the purpose of
adjudicating Plaintiff’s claims, the same purpose for which the information was originally collected
by the MSPB, the “compatibility” requirement is satisfied as to the MSPB documents.
As to the filing of all four documents by the DOJ in ElHelbawy I, JUSTICE/USA-005 routine
uses permit that “[a] record, or facts derived therefrom, may be disseminated in a proceeding
before a court or adjudicative body before which the United States Attorney’s Office is authorized
to appear, when the United Sates, or any agency of subdivision thereof, is a party to litigation or
has an interest in litigation and such records are determined by the United States Attorney’s Office
to be arguable relevant to the litigation.” 63 FR 8659-02, at * 8667-68, 1998 WL 66517 (Feb. 20,
2998) (JUSTICE/USA-005 routine use “p”). Once the DOC forwarded the documents to the U.S.

7

Attorney’s Office, the records became part of the DOJ “Civil Case Files (USA-34)” that “are
maintained for the purpose of litigating or otherwise resolving civil cases or matters handled by the
United States Attorneys or the Executive Office for United States Attorneys.” Id. at * 8667. The
records were disclosed in ElHelbawy I, a case in which an agency of the United States is a party in
a court in which the United States Attorney’s Office is authorized to appear. The United States
Attorney’s Office determined that the documents were “arguably relevant to the litigation.” See,
e.g., Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (examining allegations raised in
initial administrative complaint to determine exhaustion of administrative remedies). Where, as
here, the documents are relevant to litigation, routine use “p” applies. See, e.g., Russell v. U.S.
General Services Administration, 935 F. Supp. 1142, 1145-546 (D. Colo. 1996) (disclosures in
public pleadings of information regarding investigation of plaintiff found permissible under DOJ’s
routine use exception providing for disclosure in proceeding before court, where agency is a party
and records are determined “to be arguably relevant to the litigation”); Jackson v. FBI, No.
02-C-3957, 2007 WL 2492069, *8 (N.D. Ill. August 28, 2007) (finding filing covered by routine use
exception where it was “more than just arguably relevant” to the litigation of plaintiff’s Title VII
claim and dismissing Privacy Act claim on a Rule 12(b)(6) motion); Mangino v. Dep’t of the Army,
No. 94-2067, 1994 WL 477260, *6 (D. Kan. Aug. 24, 1994) (finding DOJ’s disclosure of records to
the court fell within a routine use exception because the documents “were pertinent to the
litigation” and dismissing Privacy Act claim against the DOJ on a Rule 12(b)(6) motion). The
filing of the exhibits in ElHelbawy I is also compatible with the purposes for which the documents
were collected: adjudication of Plaintiff’s claims of discrimination, which is the same purpose for
which they were utilized in the underlying EEO and MSPB proceedings. Routine use “p”
authorized the filing of all four documents by the DOJ in ElHelbawy I. 1
1

The filing of the Final Agency Decision (ElHelbawy I, Doc. # 19-3 at 7-60 of 65 (Exhibit 3)) with the

8

Ms. ElHelbawy does not adequately address Defendants’ arguments in her Response to
the Motion to Dismiss. Other than conclusorily arguing that the challenged disclosures were not
permitted by routine uses, she does not address the routine uses or the caselaw applying them.
(See Doc. # 24 at 7 of 11). She does not contest the compatibility of the routine uses with the
purposes for which the information is gathered.

She argues a violation based on the ALJ’s

Initial Decision that is not pled in the Complaint. (See id. Doc. # 24 at 9 of 11). She makes
arguments based on the Freedom of Information Act (“FOIA”), voluntariness, and a “fax
transmittal sheet” from National Jewish Hospital, and exhibits (Docs. ## 25 – 25-6), none of which
are relevant to her claims. In sum, routine use exceptions permitted disclosure of all of the
documents addressed by Ms. ElHelbawy’s Complaint. Her claims for violation of the Privacy Act
based on the disclosure of four documents are properly dismissed for failure to state a claim to
which relief can be granted.
Ms. ElHelbawy also makes two references in the Complaint to § 552a(e)(6) of the Privacy
Act. (See Doc. # 1 at 7 of 9, ¶¶ 13-14). Under § 552a(6), an agency shall “prior to disseminating
any record about an individual to any person other than an agency, unless the dissemination is
made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such
records are accurate, complete, timely, and relevant for agency purposes.” 5 U.S.C. §
552a(e)(6). Ms. ElHelbawy fails to state a plausible claim under subsection (e)(6) for several
reasons. First, to the extent she alleges a violation based on the dissemination of the information
from the DOC to the DOJ, subsection (e)(6) does not apply. The alleged dissemination to the
DOJ, which is another “agency” under the Privacy Act, does not state a claim under subsection

court by the Department of Justice is also permitted by EEOC/GOVT-1 routine use “b.” The filing of Ms.
ElHelbawy’s Petition for Review, the DOC’s response, and her reply filed before the MSPB (ElHelbawy I,
Docs. # 19-4 at 24-38 of 73, # 19-4 at 50-73 of 73, # 19-5 at 85-90 of 91 (Exhibits 5, 8, and 10)) with the
court by the Department of Justice is also permitted by MSPB/GOVT-1 routine use “g(4).”

9

(e)(6). See Thompson v. Dep’t of State, 400 F. Supp. 2d 1, 22 (D.D.C. 2005) (“The statutory
language [of subsection (e)(6)] makes clear that this provision does not apply when information is
disclosed within the agency or to another agency.”). Even if subsection (e)(6) applied, Ms.
ElHelbawy has alleged no facts to support her mere conclusory allegation. She alleges no facts
that support the existence of any inaccurate information in any record. She has not identified
what “false statements” were made about her, or explained how any statements were false. Nor
are the bare conclusory allegations in the Complaint sufficient to show a causal connection
between the disclosure of records and any “adverse effect” or an “intentional or willful” violation of
the Act, as required by the third and fourth elements of a Privacy Act claim. See 5 U.S.C. §§
552a(g)(1)(D) & (g)(4); Wilkerson v. Shinseki, 606 F.3d at 1267-68 (citation omitted). Any claim
based on subsection (e)(6) is properly dismissed for failure to state a claim to which relief can be
granted. 2

IV.

Motion for Leave to File Third Amended Complaint
Ms. ElHelbawy once again moves to file an amended pleading. “Although Fed.R.Civ.P.

15(a) provides that leave to amend shall be given freely, the district court may deny leave to
amend where amendment would be futile.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012,
1018 (10th Cir. 2013) (citation omitted). “A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.” Id. (internal quotation marks and citation omitted).
Because futility is based on whether a claim could survive a motion to dismiss, the standard for
resolving a motion to dismiss is applicable here. Dean v. Marker Volkl USA, Inc., No.
15-CV-00190-RM-MEH, 2015 WL 3534163, at *2 (D. Colo. June 3, 2015).

2

Based on the routine use exceptions and the failure to state a claim under § 552a(e)(6), the court
does not reach at this time the Defendants’ additional arguments for dismissal of the Complaint.

10

Ms. ElHelbawy seeks to file a fourth version of her pleading. (See Docs. # 1, # 21, # 28, #
29 at 4-151 of 151). She filed her original Complaint on November 7, 2014, alleging one claim for
violation of the Privacy Act, 5 U.S.C. § 552a. (See Doc. # 1). On February 12, 2015,
Defendants moved to dismiss the Complaint. Plaintiff filed an amended pleading on March 10,
2015 that was stricken by the court for failure to comply with the Federal Rules of Civil Procedure.
(See Doc. # 21; Courtroom Minutes/Minute Order (Doc. # 23)). The court explained to Plaintiff
that an amended pleading could not be filed without a motion for leave to amend and that the
proposed amended pleading did not comply with Fed. R. Civ. P. 8 because it was 150 pages in
length and did not provide a short and plain statement of the claim showing that she is entitled to
relief. (See Doc. # 23). Plaintiff filed her response to Defendants’ Motion to Dismiss on March
24, 2015. (See Doc. # 24). On April 8, 2015, Plaintiff filed a Motion for Leave to File an
Amended Complaint, which was again denied without prejudice for failure to comply with the
pleading requirements of the Federal Rules of Civil Procedure. (See Docs. # 28, # 33). On May
8, 2015, Plaintiff filed the instant Motion for Leave to File Amended Complaint (Doc. # 34).
Ms. ElHelbawy “seeks to add the U.S. Merit Systems Protection Board as a defendant and
seeks to add more specificity to her allegations in a situation where all defendants were from the
outset made fully aware of the events and circumstances giving rise to the action.” (See id. at 5
of 7). She sets forth six claims in the Amended Complaint that allege violations of the Privacy Act
and Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-12117. (See Doc.
# 35). She includes her claims from the Complaint for violation of the Privacy Act regarding the
Final Agency Decision, her Petition for Review, the agency’s Response, and her Reply. (See
Doc. # 35 at 4-5 of 5, Doc. # 39 at 1-3 of 3, Doc. # 40 at 1-4 of 4, She seeks to add claims for
violation of the Privacy Act regarding her EEO complaint (Doc. # 19-1 in ElHelbawy I at 5-7 of 44),

11

her appeal to the MSPB (Doc. # 19-1 in ElHelbawy I at 8-44 of 44, Doc. # 19-2 in ElHelbawy I at
1-56 of 56, Doc. # 19-3 in ElHelbawy I at 1-5 of 65), the ALJ’s Initial Decision (Doc. # 19-4 in
ElHelbawy I at 1-23 of 73), a letter from the Office of the Clerk of the MSPB (Doc. # 19-4 in
ElHelbawy I at 39-47 of 73), her motion to waive deadline for filing her Petition for Review (Doc. #
19-4 in ElHelbawy I at 48-49 of 73), and an order from the Office of the Clerk of the MSPB (Doc. #
19-5 in ElHelbawy I at 1-5 of 91). (See Doc. # 35 at 4-5 of 5, Doc. # 36 at 1-3 of 3, Doc. # 37 at
1-3 of 3, Doc. # 38 at 1-4 of 4, Doc. # 41 at 1-4 of 4).
The court concludes that the filing of the proposed Amended Complaint is futile. The court
has explained to Ms. ElHelbawy that even pro se parties are not permitted an infinite number of
attempts to comply with the rules of the court. She fails to explain how the defects in the
Complaint would be cured by her proposed amendment. See Reinhardt v. Oklahoma ex rel.
Dist. Attorneys Council, No. 15-7008, 2015 WL 4880468, at *1 (10th Cir. Aug. 17, 2015) (“district
court did not abuse its discretion in denying Plaintiff an opportunity to file yet another amended
complaint when the motion seeking permission to do so failed to explain how the defects in the
second amended complaint would be cured”). The disclosures she alleges did not violate the
Privacy Act. Each of the disclosures occurred in the context of her administrative or legal claims
against a federal agency. Such disclosures fall squarely within routine-use exceptions provided
in the Privacy Act. See 5 U.S.C. § 552a(b)(3), part III of this Memorandum Opinion and Order,
supra. Disclosures by the DOJ and DOC to the court in ElHelbawy I [Fourth, Fifth, and Sixth
Claims for Relief] were permitted by routine uses defined in MSPB/GOVT-1, 77 Fed. Reg.
65206-01 at *65206-07, 2012 WL 5246733 (routine use “g(4)”) and JUSTICE/USA-005, 63 Fed.
Reg. 8659-02, *8667-68, 1998 WL 66517 (routine use “p”). Disclosures by the DOC to the
MSPB [Fourth, Fifth, and Sixth Claims for Relief] were permitted by a routine use defined in

12

OPM/GOVT-3, Records of Adverse Actions, Performance Based Reduction in Grade and
Removal Actions, and Termination of Probationers, 61 FR 36919-01, *36927-28, 1996 WL
390208 (July 15, 1996) (routine use “k”). Disclosures by the MSPB [First, Second, and Third
Claims for Relief] were permitted by routine use “o”, MSPB/GOVT-1, 77 FR 65206-01, at
*65206-07, 2012 WL 5246733, which allows for disclosure by the MSPB “[t]o the public, including
to the agency’s Web site following issuance of a decision.” The disclosures were also
“compatible with” the purposes for which the documents were collected in the first place: Plaintiff’s
administrative and legal proceedings against the DOC. See 5 U.S.C. § 552a(a)(7).
In the Third Claim for Relief in the proposed Amended Complaint, Ms. ElHelbawy alleges
that the ALJ’s Initial Decision contains “misrepresentations by omission concealment and …
carefully and selectively picked sections extracted from Plaintiff’s medical records [sic]. . . .” (See
Doc. # 38 at 4 of 4, ¶¶ 13-14). However, she has alleged no facts that support the existence of
any false information in the Initial Decision. Her allegations of “misrepresentation by omission
concealment [sic]” are purely conclusory. The single “specific example” of the alleged
“misrepresentation by omission concealment [sic]” does not plausibly indicate that the Initial
Decision contained any inaccurate information. (See Doc. # 38 at ¶ 12). Plaintiff’s proposed
Amended Complaint states no plausible claim to which relief can be granted for violation of the
Privacy Act.
In her First, Second, Fourth, Fifth, and Sixth Claims for Relief in the proposed Amended
Compliant, Plaintiff alleges violation of the ADA. (See Docs. # 36, # 37, # 39, # 40, and # 41).
First, the court lacks subject matter jurisdiction over the ADA claims. Absent an explicit waiver of
sovereign immunity, the United States is generally immune from suit. United States v. Mitchell,
445 U.S. 535, 538 (1980). This “immunity is jurisdictional in nature,” FDIC v. Meyer, 510 U.S.

13

471, 475 (1994), and extends to government agencies and employees. Kyler v. Everson, 442
F.3d 1251, 1252–53 (10th Cir. 2006). Federal agencies are not subject to suit under Title I of the
ADA, which proscribes discrimination against employees because of their disabilities. See 42
U.S.C. §§ 12111–12112. Title I specifically exempts the United States and its agencies from suit
under the ADA. See 42 U.S.C. § 12111(5)(b)(i) (“The term ‘employer’ does not include the
United States . . .”). 3 See also, e.g., Massari v. Potter, No. 04-cv-02306, 2006 WL 318658, *12
(D. Colo. Feb. 9, 2006) (“Plaintiff has no remedy for employment discrimination under the ADA,
because he was an employee of the [United States Postal Service], which is not an ‘employer’
under the express terms of the ADA.”).
Further, Plaintiff can state no claim under Title I of the ADA against the DOJ or the MSBP
because she was not employed by either of those entities. Nor has she pled any facts to support
her conclusory assertion that “she is an individual with a disability” under the ADA. (See Doc. #
38 at ¶ 10). There are no facts alleged in the proposed Amended Complaint that could establish
that Plaintiff has “a physical or mental impairment that substantially limits one or more major life
activities,” or that she was “regarded as” having such an impairment by her former employer, the
DOC. See 42 U.S.C. § 12102(1).
“Undue” delay is also grounds for denying a motion to amend. Minter v. Prime Equip. Co.,
451 F.3d 1196, 1205 (10th Cir. 2006). See also Pallottino v. City of Rio Rancho, 31 F.3d 1023,
1027 (10th Cir. 1994) (affirming denial of motion to amend filed eight months after original
complaint). Whether a delay is “undue” depends “primarily on the reason for the delay.” Minter,
451 F.3d at 1206. “[D]enial of leave to amend is appropriate when the party filing the motion has
no adequate explanation for the delay.” Id. (internal quotation marks omitted). The Complaint
3

“The MSPB is a federal agency. . . .” Johnson-Barber v. Runyon, No. 96-4214-SAC, 2000 WL
1863483, at *3 (D. Kan. Oct. 12, 2000).

14

had been pending for four months and Defendants’ Motion to Dismiss had been pending for one
month before Ms. ElHelbawy sought for the first time to amend. After the court denied without
prejudice her third attempt to amend, another month passed before she filed the instant motion to
amend.
In conclusion, the Motion for Leave to File Amended Complaint may properly be denied as
futile for failure to specify how the deficiencies will be corrected, for failure to state a claim to which
relief can be granted, and for undue delay.

Accordingly, IT IS ORDERED that:
1.

Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (filed on

February 12, 2015) (Doc. # 14) is GRANTED and this civil action is dismissed for failure to state a
claim to which relief can be granted.
2.

Plaintiff’s Motion for Leave to File Amended Complaint (filed on May 8, 2015) (Doc.

# 34) is DENIED.
3.

Ms. ElHelbawy asks the court to restrict the tendered Amended Complaint (Doc. #

29 at 4-151 of 151). Defendants have filed no response to her Motion. Because the court is
able to restrict only documents, not individual pages of documents, and because the referenced
documents may be available in some other public forum, in an abundance of caution the court
orders that Plaintiff’s Motion to Restrict Access to Amended Complaint (filed on April 8, 2015)
Doc. # 29) (erroneously filed as “Appendix re: First Motion to Amend/Correct/Modify”) is
GRANTED and Doc. # 29 shall be restricted at Level 1.

15

DATED at Denver, Colorado, this 28th day of September, 2015.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

16