Lamb v. Millennium Challenge Corp.

• Decision Date: 03 November 2020
• Docket Number: Civil Action No. 19-589 (RDM)
• Citation: 498 F.Supp.3d 104
• Parties: Jerry Goralski LAMB, Plaintiff, v. MILLENNIUM CHALLENGE CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

498 F.Supp.3d 104

Jerry Goralski LAMB, Plaintiff,

v.MILLENNIUM CHALLENGE CORPORATION, et al., Defendants.

Civil Action No. 19-589 (RDM)

United States District Court, District of Columbia.

Signed November 3, 2020

Jerry Goralski Lamb, Brandywine, MD, pro se.

Sean Michael Tepe, Jason Todd Cohen, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiff Jerry Goralski Lamb worked for about two months in 2016 as a "personal services contractor" with the Millennium Challenge Corporation (the "MCC"), a federal agency that does foreign aid work. When he started the job, Plaintiff thought that his background check was already complete. But a couple of weeks after he started, someone from the Department of State came to interview Plaintiff as part of his apparently ongoing background investigation. A few weeks later, Plaintiff was abruptly fired without explanation. To get to the bottom of the matter, Plaintiff filed requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking records related to his firing. He obtained the relevant documents in a separate action. Armed with the information he acquired, Plaintiff then filed this action, against the MCC and agency official James Blades (collectively, "Defendants"), challenging his termination and subsequent debarment under the due process clause of the Fifth Amendment and the Privacy Act. Defendants move to dismiss the complaint.

For the reasons explained below, the Court will GRANT in part and DENY in part Defendants’ motion to dismiss, Dkt. 21. The Court will also GRANT Plaintiff's motion for leave to amend his response, Dkt. 26.

I. BACKGROUND

Much of the background of this case is described in the Court's trilogy of opinions in Plaintiff's prior lawsuit seeking records related to his termination. See Lamb v. Millennium Challenge Corp. , 228 F. Supp. 3d 28, 33–35 (D.D.C. 2017) (" Lamb I "); Lamb v. Millennium Challenge Corp. , 334 F. Supp. 3d 204, 209–210 (D.D.C. 2018) (" Lamb II "); Lamb v. Millennium Challenge Corp. , Civil Action No. 16-765 (RDM), 2019 WL 4141868, at *1–2 (D.D.C. Aug. 30, 2019) (" Lamb III "). The Court repeats those allegations that are relevant to the claims Plaintiff brings in the present lawsuit, along with Plaintiff's new allegations. The Court assumes the truth of those allegations for purposes of resolving Defendants’ motion to dismiss for failure to state a claim. Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1129 (D.C. Cir. 2015). The Court goes beyond Plaintiff's allegations, however, for purposes of resolving Defendants’ motion to dismiss for lack of jurisdiction. Id.

In November 2015, Plaintiff applied and was later hired for a position at Sawdey Solutions Services, Inc., which served as a contractor for the MCC. Lamb I , 228 F. Supp. 3d at 33. The job required that Plaintiff "augment" MCC employees as a "personal services contractor." Id. at 34. The MCC is a corporation established in the executive branch of the federal government. See 22 U.S.C. § 7703(a). It is authorized to provide foreign assistance to countries that enter a compact with the United States setting forth a plan for "achieving shared development objectives." Id. § 7708(a). The MCC "may contract with individuals for personal services, who shall not be considered [f]ederal employees for any provision of law administered by the Office of Personnel Management." Id. § 7713(a)(8).

Plaintiff's new job required a favorable background check. Dkt. 1 at 3 (Compl. ¶ 7). After filling out the requisite forms, he started work on February 22, 2016, thinking that he had already received the necessary approval. Id. (Compl. ¶¶ 7–8). But a couple of weeks later, sometime in March, MCC "security" contacted Plaintiff and told him that a contractor from the Department of State needed to interview him as part of the background investigation. Id. (Compl. ¶ 8). The Department of State, which at times assists MCC with background checks, proceeded to conduct Plaintiff's background check. Id. (Compl. ¶ 9). When Plaintiff came to work on April 18, 2016, MCC officials confiscated his government identification, removed him from the premises, and terminated his employment. Id. Later, Plaintiff learned from his direct employer, Sawdey, which held the contract with MCC, that he was terminated because his "security check came back unfavorable." Id.

To get to the bottom of what happened, Plaintiff requested "copies of all information maintained about himself" from the MCC and, when the agency failed to timely respond, he sued the MCC for the release of the records under FOIA and the Privacy Act. Id. at 4 (Compl. ¶ 11); Lamb II , 334 F. Supp. 3d at 209. The MCC and the State Department eventually released the records Plaintiff sought, with a few redactions, see Lamb II , 334 F. Supp. 3d at 210, and the Court closed the case in January 2020 when the defendants in that case "voluntarily provided Plaintiff with the sole remaining documents in dispute." Lamb v. Millennium Challenge Corp. , No. 16-cv-765 (D.D.C. filed April 26, 2016) (Minute Order (Jan. 23, 2020)) (entering final judgment and closing the case).

During the pendency of his prior suit, Plaintiff sought to amend his complaint to add, inter alia , substantive challenges to his termination. See id. (Nov. 21, 2016) (Dkt. 41-1) (third motion to amend). In Lamb I , the Court denied leave to amend with respect to several of Plaintiff's proposed claims on the ground that amendment as to those claims would have been futile. Lamb I , 228 F. Supp. 3d at 39–47. But the Court granted Plaintiff leave to add three due process claims against James Blades, an MCC official responsible for contracts, alleging that Plaintiff's termination violated the Fifth Amendment. Id. at 42–43. Plaintiff promptly filed a second amended complaint adding three due process claims against Blades. Lamb v. Millennium Challenge Corp. , No. 16-cv-765 (Jan. 13, 2017) (Dkt. 50). But a month later, Plaintiff voluntarily dropped those due process claims. Id. (Feb. 15, 2017) (Dkt. 53).

Based on the records he obtained in that prior litigation, Plaintiff learned additional facts related to his termination. As part of the background investigation, the State Department provided the MCC with a "robust and detailed" Report of Investigation ("ROI") that Plaintiff contends "ended under favorable conditions." Id. at 5 (Compl. ¶ 19). Ostensibly based on that ROI, the MCC then created an "Adjudication Worksheet" that listed four "issues" that arose during the background investigation. Id. (Compl. ¶¶ 16–17); Dkt. 23-5. The issues listed on the form were that Plaintiff (1) was removed from the Naval Air Systems Command Facility for being absent without leave; (2) had been given a one-day suspension for "[f]ailure to follow an instruction and to promote the efficiency of the service;" (3) was delinquent on a credit card bill; and (4) had sought psychological treatment. Dkt. 23-5 at 1. The comments section of the worksheet noted that the ROI "did not yield any additional information on the issues raised." Dkt. 1 at 5 (Compl. ¶ 18); Dkt. 23-5 at 1. At the bottom of the form, the "length of proposed debarment" is listed as 36 months, but the "final action" is listed as "unfavorable determination," rather than "agency debarment as proposed." Dkt. 23-5 at 1. The MCC gave Plaintiff no opportunity to contest or correct these findings, Dkt. 1 at 4 (Compl. ¶ 10), all of which Plaintiff alleges are incorrect or misleading, id. at 5 (Compl. ¶ 17). According to Plaintiff, the MCC debarred him for 36 months. Id. at 3 (Compl. ¶ 9). His subsequent attempts to obtain employment with either Sawdey or the MCC have all been unsuccessful, as have his efforts to obtain any other job.

Id. at 3–4 (Compl. ¶ 9); Dkt. 23-3 (Plaintiff's job search log).

On March 4, 2019, Plaintiff filed this lawsuit against the MCC and Blades challenging his termination. Dkt. 1. Plaintiff asserts four due process claims similar to the ones he withdrew in the prior action, as well as two additional claims under the Privacy Act, and possibly other claims too, depending on how liberally one reads the complaint. Id.

Now before the Court are Defendants’ motion to dismiss, Dkt. 21, Plaintiff's opposition, Dkt. 23, Defendants’ reply, Dkt. 25, and Plaintiff's motion to correct his opposition, Dkt. 26.

II. LEGAL STANDARDS

Although pleadings by pro se litigants are "held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), they must still comply with the Federal Rules of Civil Procedure, see Jarrell v. Tisch , 656 F. Supp. 237, 239 (D.D.C. 1987). " Federal Rule of Civil Procedure 8(a) requires that a complaint contain a short and plain statement of the grounds upon which the Court's jurisdiction depends, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks." Shipman v. Amtrak , Civil Action No. 19-04 (RDM), 2019 WL 4889246, at *1 (D.D.C. Oct. 3, 2019) (citing Fed. R. Civ. P. 8(a) ). The Rule is designed to "give the defendant notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal punctuation and citation omitted).

A motion to dismiss under Rule 12(b)(1) challenges the Court's jurisdiction to hear a claim and may raise a "facial" or a "factual" challenge to the Court's jurisdiction. See Hale v. United States , No. 13-1390 (RDM), 2015 WL 7760161, at *3–4 (D.D.C. Dec. 2, 2015). A facial challenge asks whether the plaintiff has alleged facts sufficient to establish the Court's jurisdiction, Erby v. United States , 424 F. Supp. 2d 180, 182 (D.D.C. 2006), while a factual challenge asks whether "the complaint [as] supplemented by...