Hinson-Gribble v. United States Office of Personnel Management, et al

Filing 54

ORDER adopting Report and Recommendations re 52 Memorandum and Recommendations. The court ADOPTS the M&R in full. The court DISMISSES plaintiffs FISMA and 40 U.S.C. § 11331 claims. The court also DISMISSES plaintiffs Pr ivacy Act claims against the individual defendants, the2 Specifically, as set forth in the M&R, the Privacy Act does not provide a vehicle for plaintiffs to challenge substantive decisions made by an agency. See e.g., Melvin v. U.S. Dept of Veterans Affairs, 70 F. Supp. 3d 350, 357 (D.D.C. Sept., 30, 2014). Accordingly, to the extent plaintiff asserts claims under the Privacy Act to obtain relief from substantive decisions made with respect to various benefits she argues are due to her, such cla ims are dismissed for lack of subject matter jurisdiction. Installation Command, the DFAS, and the agency defendants, to the extent such claims against the agency defendants seek to challenge substantive decisions made by those agencies. The court ALLOWS plaintiffs remaining Privacy Act claims against defendants OPM, the Outreach Center, the DMDC, the APO, and the ID Card Facility to proceed. Signed by District Judge Louise Wood Flanagan on 9/7/2017. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:16-CV-00070-FL

QUANCIDINE HINSON-GRIBBLE,
Plaintiff,
v.
UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT,
KATHERINE ARCHELETA, in her former
capacity as Director of the United States
Office of Personnel Management, DONNA
SEYMOUR, in her capacity as Chief
Information Officer of the United States
Office of Personnel Management, ARMY
COMMUNITY SERVICES, SURVIVORS
OUTREACH SERVICES, CHARLOTTE
WATSON, AMY MELENDEZ, JOANIE L.
HAMMONS, DAVID E. MCDERMOTT, in
his capacity as Deputy Director for
Operations of Defense Finance Accounting
Services, JIM SZATKOWSKI, in his
capacity as Congressional Team Lead of
Defense Finance Accounting Services,
CYNTHIA VIRRUETA, in her capacity as
Chief of the Beneficiary Services Branch of
the Department of Defense’s Manpower Data
Center, JOHN W. ELLERBE, in his capacity
as DA Project Manager of the United States
Army Project Office, JIM KLEMOWSKI,
ETHEL KNOCK, in her capacity as ID Card
Supervisor at the Fort Bragg ID Card Facility,
JEFFREY M. SANBORN, in his capacity as
Colonel of the United States Army
Installation Command, and KAY HAGAN, in
her former capacity as Senator,
Defendants.

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ORDER

This matter comes before the court on frivolity review of plaintiff’s pro se complaint,
pursuant to 28 U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of
Civil Procedure 72(b),United States Magistrate Judge James E. Gates entered a memorandum and
recommendation (“M&R”), wherein it is recommended that the court dismiss in part plaintiff’s
claims and allow certain claims asserted under the Privacy Act of 1974, 5 U.S.C. § 552a, to
proceed.1 Plaintiff timely filed objections to the M&R, accompanied by several supporting
documents. (DE 53). In this posture, the issues raised are ripe for ruling. For the reasons stated
herein, the court adopts the M&R.
BACKGROUND
Plaintiff initiated this action by filing a motion for leave to proceed in forma pauperis (“IFP”)
on February 11, 2016, accompanied by proposed complaint. Plaintiff asserts claims against
defendants for violations of the Federal Information Security Management Act, 44 U.S.C. § 3541
et seq. (“FISMA”), as amended by the Federal Information Security Modernization Act fo 2014,
Pub. L. No. 113–283, 40 U.S.C. § 11331, and the Privacy Act of 1974, 5 U.S.C. § 552(a) (the
“Privacy Act”), which all arise from defendants involvement in her alleged identity theft and the
subsequent concealment thereof. Plaintiff seeks compensatory damages, reinstatement of her
survivor’s benefits and certain other medical benefits, issuance of a new government identification
card, and trial by jury. The court incorporates herein the background description of the case set forth

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Specifically, the M&R recommends allowing plaintiff’s Privacy Act claims asserted against defendants
the United States Office of Personnel Management (“OPM”), the Survivor’s Outreach Services (the “Outreach
Center”), the Department of Defense’s Manpower Data Center (“DMDC”), the United States Army Project Office
(“APO”), and the Fort Bragg ID Card Facility (“ID Card Facility”) to proceed.

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in the M&R. (DE 52 at 2-5).
On July 11, 2017, the magistrate judge granted plaintiff’s IFP petition and issued an M&R,
recommending dismissal of all claims asserted under FISMA and 40 U.S.C. § 1131 for lack of
subject matter jurisdiction. With respect to plaintiff’s Privacy Act claims, the magistrate judge
recommends dismissal of all such claims against the individual defendants and all claims against the
agency defendants, which seek to challenge the substantive decisions made with respect to the
various benefits at issue, for lack of subject matter jurisdiction. The magistrate judge also
recommends dismissing all remaining Privacy Act claims aginst defendants United States Army
Installation Command (“Installation Command”) and Defense Finance and Accounting Services
(“DFAS”). The magistrate judge recommends allowing plaintiff’s remaining Privacy Act claims
against defendant OPM, the Outreach Center, the DMDC, the APO, and the ID Card Facility to
proceed. Plaintiff filed objections to the M&R on July 26, 2017, challenging the magistrate judge’s
determinations concerning its dismissal recommendations.
DISCUSSION
A. Standard of Review
The district court reviews de novo those portions of a magistrate judge’s M&R to which
specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review
where a party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for
“clear error,” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th

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Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Under 28 U.S.C. § 1915(e)(2), the court may dismiss an action that is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks monetary relief against a defendant who
is immune from such relief.
A complaint may be found frivolous if it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Additionally, a complaint fails to state a claim if
it does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face,” sufficient to “allow[ ] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). In evaluating whether a claim has been stated, “[the] court accepts all
well-pled facts as true and construes those facts in the light most favorable to the plaintiff,” but does
not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further
factual enhancement [,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations
omitted).
B.

Analysis
Plaintiff objects primarily to the M&R’s recommendation that her claims against the individual

defendants, the Installation Command, and the DFAS be dismissed. As set out in the M&R, the court
lacks jurisdiction over plaintiff’s claims for violation of FISMA and 40 U.S.C. § 11331, where such
laws do not provide for a private right of action. The court also lacks jurisdiction over plaintiff’s
Privacy Act claims against the individual defendants and certain Privacy Act claims against the agency

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defendants for lack of subject matter jurisdiction.2 To the extent any claims remain against defendants
Installation Command and DFAS, the magistrate judge properly concludes that such claims should be
dismissed for failure to state a claim.
Although plaintiff’s objections include new factual material, her objections are general and
reiterate her grievances with various parties. (See e.g., DE 53, p. 1) (“The plaintiff has sent in
countless documents to prove . . . Privacy Act [v]iolations against the [d]efendants.”). Importantly,
plaintiff’s objections do not expressly dispute the magistrate judge’s conclusions regarding subject
matter jurisdiction. Although plaintiff’s objections include new factual material, they repeat her prior
arguments. (See DE 51). Furthermore, the additional facts asserted in plaintiff’s objections are
insufficient to cure defects in her Privacy Act claims against defendants Installation Command and
DFAS.
Upon de novo review of the M&R and the record in this case, the court adopts the
determinations of the M&R regarding claims against these parties as its own. Pursuant to 28 U.S.C.

§ 1915(e)(2)(B), plaintiff’s FISMA and 40 U.S.C. § 11331 claims, as well as certain Privacy Act
claims must be dismissed for lack of subject matter jurisdiction and for failure to state a claim.
CONCLUSION
Based on the foregoing, upon de novo review of those portions of the M&R to which
objections were raised, and upon considered review of the remaining portions of the M&R, the court
ADOPTS the M&R in full. The court DISMISSES plaintiff’s FISMA and 40 U.S.C. § 11331 claims.
The court also DISMISSES plaintiff’s Privacy Act claims against the individual defendants, the

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Specifically, as set forth in the M&R, the Privacy Act does not provide a vehicle for plaintiffs to challenge
substantive decisions made by an agency. See e.g., Melvin v. U.S. Dep’t of Veterans Affairs, 70 F. Supp. 3d 350,
357 (D.D.C. Sept., 30, 2014). Accordingly, to the extent plaintiff asserts claims under the Privacy Act to obtain
relief from substantive decisions made with respect to various benefits she argues are due to her, such claims are
dismissed for lack of subject matter jurisdiction.

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Installation Command, the DFAS, and the agency defendants, to the extent such claims against the
agency defendants seek to challenge substantive decisions made by those agencies. The court
ALLOWS plaintiff’s remaining Privacy Act claims against defendants OPM, the Outreach Center, the
DMDC, the APO, and the ID Card Facility to proceed.

SO ORDERED, this the 7th day of September, 2017.
_____________________________
LOUISE W. FLANAGAN
United States District Judge

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