1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

ANICA ASHBOURNE, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 17-752 (EGS) 

 ) 

DONNA HANSBERRY, et. al. ) 

 ) 

 Defendants. ) 

 ) 

MEMORANDUM OPINION AND ORDER

Plaintiff Anica Ashbourne (“Ms. Ashbourne”), an attorney 

proceeding pro se, brings this action against the U.S. Treasury 

Department (“Treasury”) Secretary in his official capacity and 

three Treasury employees—Donna Hansberry, Donna Prestia, and 

Thomas Collins—in their official and individual capacities. Ms. 

Ashbourne also sues the U.S. Department of Homeland Security 

(“DHS”) Secretary in his official capacity and two DHS 

employees—James Trommatter and Thomas Harker—in their individual 

and official capacities. Ms. Ashbourne alleges that the 

defendants violated the Privacy Act, 5 U.S.C. § 552a, et seq., 

and denied her due process in violation of the Fifth Amendment.1

Pending before the Court is (1) defendants’ motion to dismiss 

 

1 Ms. Ashbourne also purports to sue defendants under the 

Fourteenth Amendment. However, the Fourteenth Amendment applies 

only to states and not to the federal government. See Bolling v. 

Sharpe, 347 U.S. 497, 499-500 (1954). 
2 

Ms. Ashbourne’s complaint, see Defs.’ Mot. to Dismiss, ECF No. 

8;2 (2) Ms. Ashbourne’s motion for an extension of time to serve 

the individual defendants and use alternative means of service 

of process, see Pl.’s Service Mot., ECF No. 13; and (3) Ms. 

Ashbourne’s motion to stay the case, see Pl.’s Mot. to Stay, ECF 

No. 2. Upon consideration of the motions, the responses, the 

replies, and the applicable law, (1) the defendants’ motion to 

dismiss is GRANTED in PART and DENIED in PART; (2) Ms. 

Ashbourne’s service motion is DENIED; and (3) Ms. Ashbourne’s 

motion to stay is GRANTED, albeit on different grounds. 

I. Ms. Ashbourne’s Claims Against the Treasury Secretary and 

the Individual Treasury Employees are Dismissed 

Ms. Ashbourne sues the Treasury defendants in their official 

and individual capacities for Privacy Act and due process 

violations, alleging they “falsified [her] personnel records and 

then used those records to publicly terminate [her] amidst 

stigmatizing charges of dishonesty.” Compl., ECF No. 1 ¶¶ 2-4, 

 

2 Government counsel does not represent three of the individual 

defendants—Donna Prestia, Thomas Harker, and James Trommatter—in 

their individual capacities because these individuals have not 

been served and have not sought legal representation from 

government counsel. See Defs.’ Mot. to Dismiss, ECF No. 8 at 1, 

n.1. Government counsel “advises that the claims against them 

should be dismissed for reasons also applicable to the other 

individual defendants and present[s its arguments on behalf of 

all defendants] as a statement of interest.” Id. (citing 28 

U.S.C. § 517 (“[A]ny officer of the Department of Justice, may 

be sent to . . . any . . . district in the United States to 

attend to the interests of the United States in a suit pending 

in a court of the United States.”)) 
3 

7. The defendants move to dismiss these claims against as barred 

under the doctrine of res judicata.3 See Defs.’ Mot. to Dismiss, 

ECF No. 8 at 14-15.4 In Ashbourne v. Hansberry (“Ashbourne I”), 

Ms. Ashbourne sued the same defendants for allegedly violating 

the Privacy Act and the Fifth Amendment.5 Civ. No. 12-1153-BAH, 

2015 WL 11303198 at *5 n. 6 (D.D.C. Nov. 24, 2015). Chief Judge 

Howell dismissed Ms. Ashbourne’s due process claim and granted 

defendants’ motion for summary judgment as to the Privacy Act 

claims. Id., aff’d 703 Fed. Appx. 3 (Mem.) (D.C. Cir. 2017). 

 “The preclusive effect of a judgment is defined by claim 

preclusion and issue preclusion, which are collectively referred 

to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892 

(2008). “Under claim preclusion, ‘a final judgment on the merits 

of an action precludes the parties or their privies from 

relitigating issues that were or could have been raised in [a 

prior] action.’” Sheppard v. District of Columbia, 791 F. Supp. 

2d 1, 4 (D.D.C. 2011) (quoting Drake v. FAA, 291 F.3d 59, 66 

 

3 Defendants make several other arguments in support of their 

motion to dismiss, although it is not altogether clear whether 

these arguments pertain to all of the defendants or just the DHS 

defendants. See generally, Defs.’ Mot. to Dismiss, ECF No. 8. 

Regardless, the Court need not reach these additional arguments. 

4 When citing electronic filings throughout this opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document. 

5 Ms. Ashbourne brought her due process claim pursuant to 42 

U.S.C. § 1983. See Ashbourne I, Civ. No. 12-1153-BAH, 2015 WL 

11303198 at *5 n. 6 (D.D.C. Nov. 24, 2015).
4 

(D.C. Cir. 2002))(additional citation omitted). To determine 

whether the claims are barred by res judicata, the Court 

considers “if there has been prior litigation (1) involving the 

same claims or cause of action, (2) between the same parties or 

their privies, and (3) there has been a final, valid judgment on 

the merits, (4) by a court of competent jurisdiction.” Nat. Res. 

Def. Council v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008) 

(quotation and citation omitted). 

In Ashbourne I, Ms. Ashbourne sued the Treasury Department, 

Ms. Hansberry, Ms. Prestia, and Mr. Collins for due process and 

Privacy Act violations, alleging that the defendants (1) failed 

to maintain accurate records, (2) improperly disclosed her 

protected records, and (3)damaged her reputation by making 

“stigmatizing charges [that] were false,” in violation of due 

process. See Consolidated Am. Compl., ECF No. 49 (Ashbourne I, 

12-cv-1153). In this case, Ms. Ashbourne alleges that the same 

defendants “falsified [her] personnel records and then used 

those records to publicly terminate [her] amidst stigmatizing 

charges of dishonesty.” Compl., ECF No. 1 ¶¶ 2-4, 7. Her present 

case is therefore barred against the Treasury defendants because 

it involves the same defendants, implicates the same underlying 

facts, and encompasses the same Privacy Act and due process 

claims that were previously litigated in Ashbourne I. See 2015 

WL 11303198; see also Ashbourne v. Hansberry (“Ashbourne II”), 
5 

245 F. Supp. 3d 99, 103-06 (D.D.C. 2017)(dismissing as barred by 

res judicata Ms. Ashbourne’s Title VII claims against the same 

defendants)(appeal pending).6 

Ms. Ashbourne’s argument to the contrary, that res judicata 

does not bar her claims against the Treasury defendants because 

she added new DHS defendants, is unavailing. See Pl.’s Opp’n 

Mot. to Dismiss, ECF No. 11 at 6-7. Rather than alleging new 

claims against the Treasury defendants, Ms. Ashbourne reasserts 

the same claims that were already litigated in Ashbourne I. 

Compare Compl., ECF No. 1, with Consolidated Am. Compl., ECF No. 

49 (Ashbourne I, 12-cv-1153). Adding three defendants to her 

complaint does not entitle her to re-litigate the same, fully 

adjudicated claims against the Treasury defendants. See Sparrow 

v. Reynolds, 646 F. Supp. 834, 838 (D.D.C. 1986) (dismissing 

plaintiff’s claim as barred by res judicata despite the addition 

of at least one new defendant). Ms. Ashbourne’s claims against 

the Treasury Secretary and individual defendants Donna 

Hansberry, Donna Prestia, and Thomas Collins in their individual 

and official capacities are therefore DISMISSED WITH PREJUDICE. 

 

6 See Case No. 17-5136 (oral argument scheduled for April 30, 

2018). 
6 

II. Ms. Ashbourne’s Claims Against the DHS Employees in Their 

Individual Capacities are Dismissed 

Ms. Ashbourne sues the DHS employees—Mr. Trommatter and Mr. 

Harker—in their individual capacities for violations of due 

process and the Privacy Act. Compl., ECF No. 1 ¶¶ 5, 6. The 

defendants move to dismiss these claims pursuant to (1) Federal 

Rule of Civil Procedure 12(b)(2) for lack of personal 

jurisdiction; (2) Federal Rule of Civil Procedure 12(b)(4) for 

insufficient process; (3) and Federal Rule of Civil Procedure 

12(b)(5) for insufficient service of process. Defs.’ Mot. to 

Dismiss, ECF No. 8 at 12. Defendants also move to dismiss the 

Privacy Act claims because the Privacy Act does not authorize 

claims against individuals. Id. at 15-16. 

Ms. Ashbourne does not dispute that she has not served Mr. 

Trommatter and Mr. Harker in their individual capacities. See 

generally Pl.’s Opp’n, ECF No. 11 at 8-9. In a separate motion, 

She moves for an extension of time to serve them, stating that 

she attempted service by mail to their home addresses, but that 

the mail was marked “return to sender” and “unable to forward.” 

See Pl.’s Service Mot., ECF No. 13 at 1-2. Ms. Ashbourne also 

requests that the Court order government counsel to accept 

service on behalf of the individual defendants. See id. at 2. 

Federal Rule of Civil Procedure 4(i)(3) requires that 

government employees sued in their individual capacities be 
7 

served as individuals within 90 days after the complaint is 

filed. See Davison v. U.S. Dept. of State, 113 F. Supp. 3d 183,

194 (D.D.C. 2015)(“To serve a U.S. officer or employee in his or 

her individual capacity . . . ‘a party [must] serve the United 

States and also serve the officer or employee.’”)(quoting Fed. 

R. Civ. P. 4(i)(3)); Fed. R. Civ. P. 4(m). A Court must extend 

the plaintiff’s time to serve if she can establish good cause 

for failure to serve within the 90 day timeframe. Fed. R. Civ. 

P. 4(m); Battle v. District of Columbia, 21 F. Supp. 3d 42, 44-

45 (D.D.C. 2014)(“A plaintiff bears a heavy burden when 

attempting to establish good cause for failure to effect service 

of process . . . . good cause means a valid reason for delay.”) 

(internal citations and quotations omitted). If the employee is 

not timely served, the Court “must dismiss the action without 

prejudice . . . or order the defendant served within a specific 

period of time.” Fed. R. Civ. P. 4(m). 

The complaint in this case was filed on April 24, 2017. See

Compl., ECF No. 1. Ms. Ashbourne filed her motion to extend her 

time to effect service 162 days later, 72 days after service was 

due. See Pl.’s Service Mot., ECF No. 13 (filed October 3, 2017). 

Far from providing a “valid reason” for her inability to timely 

serve Mr. Trommatter and Mr. Harker, Ms. Ashbourne provides no 

reason for the delay. See Battle, 21 F. Supp. 3d at 44-45. As 

such, Ms. Ashbourne has not met her burden to demonstrate good 
8 

cause. Mann v. Castiel, 681 F.3d 368, 375 (D.C. Cir. 

2012)(affirming denial of plaintiffs’ motion to extend time to 

effect service because plaintiffs did not provide a “valid 

reason” to do so). Because there is no ground for the Court to 

grant Ms. Ashbourne’s request and it is undisputed that these 

individuals have not been served, the Court DISMISSES WITHOUT 

PREJUDICE the due process claims against James Trommatter and 

Thomas Harker in their individual capacities.7 

Regarding Ms. Ashbourne’s request for alternative service, the 

“elementary law of agency” is “clear” that “any agent who 

accepts service must be shown to have been authorized to bind 

his principal by the acceptance of process.” Schwarz v. Thomas, 

222 F.2d 305, 308 (D.C. Cir. 1955). For the Court to grant the 

motion, the individual defendants must authorize government 

counsel to accept service on their behalf. They have not done 

so. See generally Defs.’ Opp’n to Service Mot., ECF No. 15. 

Therefore, the Court DENIES this request. 

Despite Ms. Ashbourne’s failure to properly serve these two 

defendants, the Court will consider the defendants’ argument 

that the Privacy Act claims should be dismissed against Mr. 

Trommatter and Mr. Harker in their individual capacities in the 

 

7 Because the Court dismissed these claims against these 

defendants in their individual capacities pursuant to FRCP 4(m), 

the Court need not reach the defendants’ other arguments. See 

Defs.’ Mot. to Dismiss, ECF No. 8 at 12-22.
9 

interest of judicial economy.8 The defendants argue that the 

Privacy Act does not authorize suits against individual 

defendants. See Defs.’ Mot. to Dismiss, ECF No. 8 at 15-16. 

Ms. Ashbourne argues that her claim should proceed against the 

individual DHS defendants because she seeks criminal penalties 

and the Privacy Act provides for criminal penalties against 

individuals. See Pl.’s Opp’n Mot. to Dismiss, ECF No. 11 at 7-8 

(citing 5 U.S.C. § 552a(i)). 

The law is clear that “no [individual] cause of action exists” 

under the Privacy Act. Martinez v. Bureau of Prisons, 444 F.3d 

620, 624 (D.C. Cir. 2006)(citing 5 U.S.C. § 552(a)(4)(B) 

(authorizing suit against an “agency”); 5 U.S.C. § 552a(g)(1) 

(same)). “Only agencies . . . are subject to the . . . Privacy 

Act.” Tyree v. Hope Vill., Inc., 677 F. Supp. 2d 109, 110 

(D.D.C. 2009). Although section 552a(i) of the Privacy Act does 

provide criminal penalties for federal government employees who 

willfully violate certain aspects of the statute, Ms. Ashbourne 

cannot initiate criminal proceedings against Mr. Trommatter and 

 

8 “[T]he interest of judicial economy is served by reaching the 

merits of [Ms. Ashbourne’s] claims against [individual 

defendants Mr. Trommatter and Mr. Harker] at this time, rather 

than delaying the inevitable by allowing [Ms. Ashbourne] to file 

another lawsuit against those Defendants containing the same 

meritless claims.” McManus v. District of Columbia, 530 F. Supp. 

2d 46, 68 (D.D.C. 2007)(citing cf. Simpkins v. District of 

Columbia, 108 F.3d 366, 369–70 (D.C. Cir. 1997)(affirming 

district court's dismissal on the merits, notwithstanding the 

plaintiff’s failure to properly serve)).
10 

Mr. Harker by filing a civil suit. See Unt v. Aerospace Corp., 

765 F.2d 1440, 1448 (9th Cir. 1985) (concluding that plaintiff 

cannot state a claim under section 552a(i) because it “generates 

no civil right of action”); Lapin v. Taylor, 475 F. Supp. 446, 

448 (D. Haw. 1979) (concluding that the criminal penalties 

section of the Privacy Act is “solely a penal provision and 

creates no private right of action”); Hills v. Liberty Mut. 

Ins., Civ. No. 14-328S, 2015 WL 1243337 at *2 (W.D.N.Y. March 

18, 2015)(finding that section 552a(i) does not create a private 

right of action against individuals). Therefore, because Ms. 

Ashbourne cannot initiate a criminal suit and the Privacy Act 

does not otherwise allow claims against individuals, the Privacy 

Act claims against Mr. Trommatter and Mr. Harker in their 

individual capacities are DISMISSED WITH PREJUDICE. 

III. Ms. Ashbourne Stated a Privacy Act Claim Against the DHS 

Defendants in Their Official Capacities 

The defendants move to dismiss Ms. Ashbourne’s Privacy Act 

claims against the DHS defendants in their official capacities 

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure 

to state a claim. Defs.’ Mot. to Dismiss, ECF No. 8 at 23-30. 

To withstand a motion to dismiss, a complaint “must contain 

sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (internal quotations and citations 
11 

omitted). A claim is facially plausible when the facts pled in 

the complaint allow the court to “draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Id. 

The standard does not amount to a “probability requirement,” but 

it does require more than a “sheer possibility that a defendant 

has acted unlawfully.” Id. In making this determination, “a 

judge must accept as true all of the factual allegations 

contained in the complaint.” Atherton v. D.C. Office of the 

Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quotations and 

citations omitted). The court must also give the plaintiff the 

“benefit of all inferences that can be derived from the facts 

alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. 

Cir. 1994). As applicable here, a “pro se complaint is entitled 

to liberal construction.” Washington v. Geren, 675 F. Supp. 2d 

26, 31 (D.D.C. 2009) (citing Haines v. Kerner, 404 U.S. 519, 520 

(1972)). 

The Privacy Act is “a comprehensive and detailed set of 

requirements for the management of confidential records held by 

Executive Branch agencies.” FAA v. Cooper, 566 U.S. 284, 287 

(2012). The Act provides several “avenues for individuals to 

seek civil remedies for any violations.” Ashbourne I, 2015 WL 

11303198 at *6 (citing Doe v. Chao, 540 U.S. 614, 618 (2004)). 

The two such avenues relevant to Ms. Ashbourne’s claims are 

subsections (g)(1)(C) and (g)(1)(D). See Compl., ECF No. 1 ¶¶ 
12 

24-36. “Subsection (g)(1)(C) describes an agency’s failure to 

maintain an adequate record on an individual, when the result is 

a determination ‘adverse’ to that person.” Doe v. Chao, 540 U.S. 

at 619. “Subsection (g)(1)(D) speaks of a violation when someone 

suffers an ‘adverse effect’ from any other failure to hew to the 

terms of the Act.” Id. 

To state a claim under subsection (g)(1)(C), a plaintiff must 

show that: (1) she has been “aggrieved by an adverse 

determination”; (2) the agency “failed to maintain [her] records 

with the degree of accuracy necessary to assure fairness in the 

determination”; (3) the agency's “reliance on the inaccurate 

records was the proximate cause of the adverse determination”; 

and (4) the agency “acted intentionally or willfully in failing 

to maintain accurate records.” Chambers v. U.S. Dep't of 

Interior, 568 F.3d 998, 1006 (D.C. Cir. 2009)(quotations and 

citations omitted). Ms. Ashbourne’s complaint pleads all four. 

First, she alleges that the defendants deemed her unsuitable 

for federal employment, “publicly terminat[ing] her.” Compl., 

ECF No. 1 ¶¶ 5, 6, 8, 20, 21. Second, she alleges that the 

defendants failed to maintain accurate records by “intentionally 

and deliberately fail[ing] to verify facts” and “obtain[ing] 

[false] information from Donna Hansberry, Donna Prestia, and 

Thomas Collins.” Id. ¶¶ 24-36. Third, Ms. Ashbourne alleges that 

the defendants “intentionally and deliberately relied on 
13 

falsified records,” when they terminated her, knowing the 

records were “outdated, inaccurate, and unreliable.” Id. 

Finally, Ms. Ashbourne pled that the defendants failed to 

maintain her records “intentionally and deliberately.” Id.

Accepting Ms. Ashbourne’s factual allegations as true and 

drawing all reasonable inferences in her favor, it is plausible 

that the DHS defendants are liable for a violation of this 

section of the Privacy Act. See Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009). 

Ms. Ashbourne also stated an unlawful disclosure claim 

pursuant subsection (g)(1)(D). To state an unlawful disclosure 

claim, a plaintiff must show that “(1) the disclosed information 

is a ‘record’ contained within a ‘system of records'; (2) the 

agency improperly disclosed the information; (3) the disclosure 

was willful or intentional; and (4) the disclosure adversely 

affected the plaintiff.” Feldman v. CIA, 797 F. Supp. 2d 29, 38 

(D.D.C. 2011) (quotations and citations omitted). 

First, Ms. Ashbourne adequately pled that the disclosed 

information was her “personnel records.” Compl., ECF No. 1 ¶¶ 5, 

6, 24-36. Second, she pled that these private records were 

“publicly disclosed” to her “employing client, potential 

employers, and others.” Id. ¶ 31. Ms. Ashbourne also pled that 

the defendants “intentionally and deliberately disseminated [the 

records] . . . that they knew [were] inaccurate and defamatory.” 
14 

Id. ¶ 33. Finally, Ms. Ashbourne pled that this disclosure led 

to her termination. Id. ¶¶ 5, 6. Again, at this stage of the 

proceedings, it is plausible that the defendants are liable for 

the misconduct alleged. See Iqbal, 556 U.S. at 678. 

The Court notes that defendants’ relevant arguments rely on 

factual allegations that are not contained within the four 

corners of the Complaint, including that Ms. Ashbourne submitted 

the allegedly falsified records herself, that any disclosure is 

acceptable under the “routine use” exemption, and that Ms. 

Ashbourne provided consent for any disclosure. See Defs.’ Mot. 

to Dismiss, ECF No. 8 at 23-30. Because a motion to dismiss 

“tests the legal sufficiency of a complaint,” Browning v. 

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), the Court may not 

rely on facts asserted by defendants in their briefings. 

The defendants also argue that the alleged Privacy Act claims 

occurring before April 24, 2015 are time-barred because the 

Privacy Act contains a two-year statute of limitations. Defs.’ 

Mot. to Dismiss, ECF No. 8 at 29-30 (citing 5 U.S.C. § 

552a(g)(5)). “[B]ecause statute of limitations issues often 

depend on contested questions of fact, dismissal is appropriate 

only if the complaint on its face is conclusively time-barred.” 

Bregman v. Perles, 747 F.3d 873, 875-76 (D.C. Cir. 2014) 

(quoting de Csepel v. Republic of Hungary, 714 F.3d 591, 603 

(D.C. Cir. 2013)). A Court should therefore “hesitate to dismiss 
15 

a complaint on statute of limitations grounds” unless the 

defendant has met its “heavy burden” to show that the complaint 

is time-barred and there is no dispute as to “when the 

limitations period began.” Feld Ent., Inc. v. Am. Soc’y for the 

Prevention of Cruelty to Animals, 873 F. Supp. 2d 288, 308 

(D.D.C. 2012) (quoting DePippo v. Chertoff, 453 F.Supp.2d 30, 33 

(D.D.C. 2006); Turner v. Afro–American Newspaper Co., 572 F. 

Supp. 2d 71, 72 (D.D.C. 2008)). 

Defendants have not met this heavy burden because they do not 

point to any specific allegation in the complaint that is timebarred. See Defs.’ Mot. to Dismiss, ECF No. 8 at 29-30. Instead, 

the defendants summarily conclude that “any claim that accrued 

before April 24, 2015 is time-barred.” Id. at 30. It may well be 

that some or all of Ms. Ashbourne’s Privacy Act claims are 

untimely, but the defendants have not met their burden to 

establish that the specific allegations that are “conclusively 

time-barred.” Bregman, 747 F.3d at 875-76. 

IV. Ms. Ashbourne Stated a Due Process Claim Against the DHS 

Defendants in Their Official Capacities 

Finally, the defendants move to dismiss Ms. Ashbourne’s due 

process claim against the DHS defendants in their official 

capacities for failure to state a claim. Defs.’ Mot. to Dismiss, 

ECF No. 8 at 30-34. To determine whether a plaintiff stated a 

due process claim, the Court must find that a plaintiff has been 
16 

“deprived of a protected interest” before determining if the 

government’s procedures “comport with due process.” Gen. Elect. 

Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (quoting Am. 

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). 

Ms. Ashbourne argues that she was denied a liberty and 

property interest without due process. She first alleges that 

the defendants deprived her of her property interest in her 

company, Ashbourne & Company. Compl., ECF No. 1 at 1-2. However, 

Ms. Ashbourne does not describe how the government deprived her 

of that interest beyond a single, conclusory assertion in the 

introduction of her complaint. See id. Because there are no 

facts to support her allegation, it cannot withstand a motion to 

dismiss. See Iqbal, 556 U.S. at 678 (“A pleading that offers 

labels and conclusions . . . will not do. Nor does a complaint 

suffice if it tenders naked assertions devoid of further factual 

enhancement.”). 

Ms. Ashbourne’s remaining argument is that she was deprived of 

a liberty interest when she was “publicly terminated amidst 

stigmatizing charges of dishonesty” without a “meaningful 

opportunity to be heard.” Compl., ECF No. 1 at 1, ¶ 37. The 

defendants argue that Ms. Ashbourne has not sufficiently pled 

that she was deprived of a liberty interest because any injury 

to her reputation was not accompanied by a state action that 

altered her legal status. Defs.’ Mot. to Dismiss, ECF No. 8 at 
17 

30-31. Because Ms. Ashbourne was a government contractor, the 

defendants argue that she “had no employment relationship with 

the government necessary to find a liberty interest.” Id.

(citing Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th 

Cir. 2012)). 

“As a general rule, ‘persons whose future employment prospects 

have been impaired by government defamation lack ... any 

constitutional protection for the interest in reputation.’” 

McGinnis v. District of Columbia, 65 F. Supp. 3d 203, 212 

(D.D.C. 2014)(quoting Trifax Corp. v. District of Columbia, 314 

F.3d 641, 643 (D.C. Cir. 2003)). There are, however, “narrow 

exceptions” to this principle. Id. at 212-13 (citing Board of 

Regents v. Roth, 408 U.S. 564 (1972)). “A claim for deprivation 

of a liberty interest without due process based on allegedly 

defamatory statements of government officials ... may proceed on 

one of two theories: a ‘reputation-plus’ claim or a ‘stigma or 

disability’ claim.” Fonville v. District of Columbia, No. 02–

2353, 38 F.Supp.3d 1, 11, 2014 WL 1427780, at *7 (D.D.C. Apr. 

14, 2014). The “reputation-plus theory” is implicated when the 

government makes a “charge against [the employee] that might 

seriously damage his standing and associations in the community, 

and does so in connection with a termination or other change in 

employment status.” McGinnis, 65 F. Supp. 3d at 213 (citing

Roth, 408 U.S. at 573; O'Donnell v. Barry, 148 F.3d 1126, 1140 
18 

(D.C. Cir. 1998)). The stigma theory “provides a remedy where 

the terminating employer imposes upon the discharged employee a 

stigma or other disability that foreclosed [the plaintiff's] 

freedom to take advantage of other employment opportunities.” 

McCormick v. District of Columbia, 752 F.3d 980, 988 (D.C. Cir. 

2014)(citations and quotations omitted). 

Defendants’ contention that, as a government contractor,9 Ms. 

Ashbourne lacks a sufficient “employment relationship” to state 

a liberty interest is unavailing. Defs.’ Mot. to Dismiss, ECF 

No. 8 at 30-31(citing persuasive authority without citing or 

addressing binding precedent). The Court of Appeals for the 

District of Columbia Circuit (“D.C. Circuit”) has consistently 

recognized that a government contractor “may have a due process 

liberty interest in avoiding the damage to their reputation and 

business caused by the stigma of broad preclusion from 

 

9 The April 22, 2015 letter that states that Ms. Ashbourne is 

unsuitable for federal employment establishes that she is a 

contractor. See Ex. 1, Defs.’ Mot. to Dismiss, ECF No. 8-1. 

While Ms. Ashbourne does not attach the letter to her complaint, 

the Court may take judicial notice of it because it is a 

document “upon which the plaintiff's complaint necessarily 

relies.” Ward v. District of Columbia Dep't of Youth Rehab. 

Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (quoting Hinton 

v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). 

Because the letter is central to Ms. Ashbourne’s claims, the 

Court may consider it. Marshall v. Honeywell Tech. Solutions, 

Inc., 536 F. Supp. 2d 59, 65 (D.D.C. 2008)(“[W]here a document 

is referred to in the complaint and is central to the 

plaintiff's claim, such a document attached to the motion papers 

may be considered without converting the motion [to dismiss] to 

one for summary judgment.”) 
19 

government contracting.” Phillips v. Mabus, 849 F. Supp. 2d 71, 

83 (D.D.C. 2012) (citing Reeve Aleutian Airways, Inc. v. United 

States, 982 F.2d 594, 598 (D.C. Cir. 1993)). Indeed, in Kartseva 

v. Department of State, the D.C. Circuit found that the 

plaintiff—a government contractor who was fired based on a State 

Department internal memorandum regarding her suitability—stated 

a due process claim because the government’s memo may have 

“formally or automatically” excluded her from work “on some 

category of future [government] contracts or from other 

government employment opportunities.” 37 F.3d 1524, 1526 (D.C. 

Cir. 1994). So here too.

Ms. Ashbourne sufficiently alleged that the defendants 

characterized her as “negligent[],” “dishonest[],” and engaging 

in “misconduct.” Compl., ECF No. 1 at ¶¶ 20-21. These 

allegations are corroborated by the April 22, 2015 letter, in 

which the Coast Guard determined that Ms. Ashbourne was 

“unsuitable” for federal employment due to her “employment 

misconduct or negligence” and her “dishonest conduct.” Ex. 1, 

Defs.’ Mot. to Dismiss, ECF No. 8-1. Defendants allegedly 

“publicly disclosed” this letter to Ms. Ashbourne’s “employing 

client, potential employers, and others,” while knowing she 

“would be terminated as a result.” Compl., ECF No. 1 ¶¶ 6, 31. 

On these facts, the Court cannot determine that Ms. Ashbourne 

lacks a liberty interest as a matter of law. See McGinnis, 65 F. 
20 

Supp. 3d at 222 (finding that the plaintiff stated a due process 

claim “on the basis of the [allegedly defamatory] memo in her 

personnel file, which is allegedly available to prospective 

employers”). 

It may well be that Ms. Ashbourne received an opportunity to 

clear her name, but at this stage, the Court cannot evaluate the 

sufficiency of any process afforded. See Ashbourne v. Hansberry, 

703 Fed. Appx. 4, 4-5 (D.C. Cir. 2017)(finding that Ms. 

Ashbourne was afforded adequate process because she could 

challenge the Treasury defendants’ termination decision through 

affidavits with the help of counsel). Moreover, the defendants 

do not argue that Ms. Ashbourne received sufficient process. See 

Defs.’ Mot. to Dismiss, ECF No. 8 at 30-32. The defendants’ 

motion to dismiss the due process claim is DENIED. 

V. Further Proceedings are Stayed 

Ms. Ashbourne moves to stay further proceedings pending the 

U.S. Equal Employment Opportunity Commission’s (“EEOC”) 

investigation of her Title VII complaint against DHS. See Pl.’s 

Mot. to Stay, ECF No. 2. The defendants oppose, arguing both 

claims can proceed separately. See Defs.’ Opp’n Mot. to Stay, 

ECF No. 16. 

“A trial court has broad discretion to stay all proceedings in 

an action pending the resolution of independent proceedings 

elsewhere.” Hisler v. Gallaudet Univ., 344 F. Supp. 2d 29, 35 
21 

(D.D.C. 2004)(citing Landis v. N. Am. Co., 299 U.S. 248, 254 

(1936)). “Indeed, a trial court may, with propriety, find it is 

efficient for its own docket and the fairest course for the 

parties to enter a stay of an action before it, pending 

resolution of independent proceedings which bear upon the case.” 

Id. (quoting Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 

857, 863-64 (9th Cir. 1979)). The burden rests with the movant, 

who “must make out a clear case of hardship or inequity in being 

required to go forward.” Landis, 299 U.S. at 255. 

According to Ms. Ashbourne, her procedural predicament is that 

she is currently unable to bring a Title VII discrimination 

claim because she has not exhausted her EEOC administrative 

remedies. Pl.’s Mot. to Stay, ECF No. 2. However, the Privacy 

Act’s statute of limitations would have prevented her from 

bringing the Privacy Act claims if she waited for EEOC 

adjudication. Id. The defendants argue that Ms. Ashbourne will 

continue to retain the right to bring her Title VII claims after 

EEOC adjudication. Defs.’ Opp’n Mot. to Stay, ECF No. 16 at 6. 

However, Ms. Ashbourne was in this same procedural posture in 

Ashbourne II. In that case, Judge Kollar-Kotelly found that Ms. 

Ashbourne’s Title VII claims against the Treasury defendants, 

brought after Ashbourne I, were barred by res judicata. The 

Court found that Ms. Ashbourne “could have pursued her Title VII 

claims . . . but did not seek to amend the complaint . . ., nor 
22 

has [she] presented any credible evidence that she sought a stay 

. . . to pursue her appeal with the EEOC.” Ashbourne II, 245 F. 

Supp. 3d at 105(appeal pending). 

If this Court does not stay the proceedings and the D.C. 

Circuit affirms Judge Kollar-Kotelly’s decision in Ashbourne II, 

Ms. Ashbourne may be barred from bringing her Title VII claim(s) 

in the future. See Ashbourne II, 245 F. Supp. 3d at 105. At this 

point, the Court finds that Ms. Ashbourne makes out a “clear 

case of hardship or inequity in being required to go forward.” 

Landis, 299 U.S. at 255. Furthermore, on this record, the Court 

cannot determine whether Ms. Ashbourne “has been fully able to 

bring [her Title VII] claims before this Court for more than 

four months,” as defendants argue. Defs.’ Opp’n Mot. to Stay 4-

5, ECF No. 16. 

 Ms. Ashbourne’s motion to stay is GRANTED, albeit not on Ms. 

Ashbourne’s terms. Rather than stay the case pending EEOC 

adjudication, the case is stayed pending the D.C. Circuit’s 

decision in Ashbourne II. The parties are directed to file on 

the docket their recommendations for further proceedings within 

fifteen days of the D.C. Circuit’s decision in Ashbourne II, 

Case No. 17-5136. 

VI. Conclusion 

Accordingly, for the reasons set forth in this Memorandum 

Opinion it is HEREBY ORDERED that: 
23 

(1) the defendants’ motion to dismiss [ECF No. 8] is GRANTED

in PART and DENIED in PART; 

(a) all claims against the Treasury Secretary and the 

individual Treasury defendants Donna Hansberry, Donna 

Prestia, and Thomas Collins are DISMISSED WITH PREJUDICE; 

(b) the due process claims against James Trommatter and 

Thomas Harker in their individual capacities are DISMISSED 

WITHOUT PREJUDICE; 

(c) the Privacy Act claims against James Trommatter and 

Thomas Harker in their individual capacities are DISMISSED 

WITH PREJUDICE; 

(d) the Privacy Act claims against the DHS Secretary, James 

Trommatter and Thomas Harker in their official capacities 

shall go forward after the stay is lifted; and 

(d) the due process claims against the DHS Secretary, James 

Trommatter and Thomas Harker in their official capacities 

shall go forward after the stay is lifted; 

(2) Ms. Ashbourne’s service motion [ECF No. 13] is DENIED; and 

(3) Ms. Ashbourne’s motion to stay [ECF No. 2] is GRANTED. The 

case is hereby stayed pending the D.C. Circuit’s decision in 

Ashbourne II, Case No. 17-5136. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 March 27, 2018