     Case: 14-20575         Document: 00513108673      Page: 1    Date Filed: 07/08/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                      No. 14-20575                       United States Court of Appeals
                                    Summary Calendar                              Fifth Circuit

                                                                                FILED
                                                                             July 8, 2015
KENNETH SCOTT DUGGAN,                                                      Lyle W. Cayce
                                                                                Clerk
                 Plaintiff - Appellant

v.

DEPARTMENT OF THE AIR FORCE; NATIONAL GUARD BUREAU,

                 Defendants - Appellees




                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 4:11-CV-2556


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       Appellant Kenneth Duggan (“Duggan”) appeals the district court’s order
dismissing his claims under the Privacy Act. 1 For the reasons below, we
AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   5 U.S.C. § 552a(g)(1).
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I.     FACTUAL AND PROCEDURAL BACKGROUND
      Duggan’s claims are founded on the following allegations. In early 2009,
Duggan, then serving on active duty as a member of the Texas Air National
Guard, alleges he was involved in an altercation with Master Sergeant Richard
Franks (“Franks”), a non-commissioned officer, during which Franks
threatened Duggan’s life. 2 Shortly thereafter, Duggan alleges he was unjustly
found to have assaulted Franks, and as a result was placed on restricted duty,
given menial tasks, and formally disciplined. 3 Duggan then contacted United
States Senators regarding his treatment. 4
      However, Duggan alleges that his punishment continued through the
collaboration of authority figures with loyalty to Franks. 5 As a result of
allegedly unjust accusations by these individuals that Duggan took
unauthorized leave, “[a]s of June 26, 2009, [Duggan] was asked to not return
to the base, and began terminal leave through the end of his Title 10 activation
orders.” 6 As part of this campaign to see Duggan removed from military
service, Duggan alleges that, on July 12, 2009 and August 25, 2009, Major
Vincent Gradney and Major Debora Krupa accessed Duggan’s medical records,
directed their alteration and ultimately disclosed those records to Duggan’s
military unit. 7 Duggan ultimately separated from the Texas Air National
Guard in September 2010. 8
      On July 11, 2011, Duggan filed his original complaint, asserting
violations of the Privacy Act, 9 and on February 7, 2012, Duggan filed his first


      2 ROA.81.
      3 ROA.83-85.
      4 ROA.85.
      5 Id.
      6 ROA.86-88.
      7 ROA.91-92.
      8 ROA.104.
      9 ROA.8-15.



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amended complaint, the live pleading at the time of the complained-of
dismissal, in which he amended his Privacy Act claims and asserted additional
claims falling under the Federal Tort Claims Act (“FTCA”). 10
       On May 21, 2012, the district court granted Defendants’ motion to
dismiss Duggan’s FTCA and Privacy Act claims pursuant to the Feres doctrine,
under which certain tort claims of military service members are non-
justiciable. 11 Duggan subsequently appealed only the dismissal of the Privacy
Act claims, 12 and this court granted the Defendants’ motion to vacate in part
the district court’s order applying the Feres doctrine to the Privacy Act claim. 13
       On remand and motion of the Defendants, the district court dismissed
Duggan’s Privacy Act claim for failure to sufficiently allege actual damages
within the requirements of the Privacy Act. 14 Duggan timely appealed. 15
II.     STANDARD OF REVIEW AND RELEVANT LAW
       This court reviews a district court’s grant of a motion to dismiss de
novo. 16 To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), all
well-pleaded allegations “must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” 17 “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” 18 “To



       10  ROA.64, ROA.75-115. Duggan’s additional claims included assault, battery,
negligence per se, gross negligence, civil conspiracy, retaliation, and intentional infliction of
emotional distress.
       11 ROA.183-89.
       12 Kenneth Duggan v. Air Force, et al, 12-20420.
       13 ROA.213.
       14 ROA.563.
       15 ROA.564-65.
       16 In re Katrina Canal Litig., 495 F.3d 191, 205 (5th Cir. 2007).
       17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and footnote

omitted).
       18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).



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survive 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.” 19
        The Privacy Act broadly regulates the executive branch’s handling of the
private information of individuals when it is contained within a system of
records, 20 and specifically imposes consent requirements on the disclosure of
such information, subject to several exceptions not relevant here. 21 For claims
of unauthorized disclosure, the Privacy Act provides for relief in the form of
actual damages; 22 however, such damages are limited to “proven pecuniary or
economic harm,” to the exclusion of “damages for mental and emotional
distress.” 23
III.     DISCUSSION
        Duggan’s amended complaint alleges that the Privacy Act violations
directly led to certain injuries, including harm to his relationships with his
military co-workers, emotional turmoil, extreme embarrassment, “severe
mental anguish,” difficulty eating and sleeping, and paranoia. 24 Later in his
complaint, Duggan seeks a damages award “for the adverse effects and harm
caused by the [Privacy Act violations],” but does not further expand on the
types of injury previously attributed to those violations. 25
        Duggan also alleges generally attributable, pecuniary injuries, averring
that Defendants’ collective conduct caused him emotional injury resulting in a
diagnosis of hypertension requiring medication, and lost income and other




        19Id. (internal quotation marks omitted).
        205 U.S.C. § 552a.
       21 See 5 U.S.C. § 552a(b).
       22 5 U.S.C. § 552a(g)(4).
       23 See FAA v. Cooper, 132 S. Ct. 1441, 1453 (2012); see also Lonatro v. United States,

714 F.3d 866 (5th Cir. 2013).
       24 ROA.102-03.
       25 ROA.110-11.



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damages related to his termination from the military. 26 We consider the
arguments surrounding these injuries seriatim.
      Regarding the specifically attributed injuries, the parties first dispute
whether the Privacy Act encompasses claims for these non-pecuniary damages.
In F.A.A. v. Cooper, the Supreme Court specifically considered the scope of
“actual damages” in the civil remedies provision of the Privacy Act, and held
that those remedies do not extend to “loss of reputation, shame, mortification,
injury to the feelings and the like.” 27 Cooper squarely forecloses Duggan’s
recovery for these damages, and allegations thereof are insufficient to support
the claim. Duggan’s attempts to distinguish Cooper are unavailing.
      Duggan’s claim therefore relies on his allegations of pecuniary harm
through income loss, which he broadly attributes to Defendants’ “unlawful and
improper conduct.” 28 There is no dispute that these alleged damages comprise
“actual damages” recoverable under the Privacy Act. However, Defendants
argue that there is no plausible basis for their specific attribution to the
Privacy Act violations. 29 In support, Defendants cite to Sweeney v. Chertoff,
which held that a Privacy Act claimant’s alleged injury (loss of pay) was too
attenuated from the alleged violation (nondisclosure of a medical form’s
voluntary nature) to satisfy causation requirements. 30 In doing so, the Sweeney
panel acknowledged the possibility that the injury might not have occurred but
for the violation; the panel nevertheless concluded that, in light of evidence
that the loss of pay resulted from the plaintiff’s suspension after an internal




      26 ROA.103-04.
      27 132 S. Ct. at 1451.
      28 ROA.104, ¶ 87.
      29 Red. Br. 8.
      30 178 F. App’x 354, 357-58 (5th Cir. 2006).



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agency disciplinary action, “such a hypothetical counterfactual situation is not
sufficient to meet the causation requirement.” 31
      Though not binding, Sweeney’s reasoning is persuasive, notwithstanding
its application to the summary-judgment context or its issuance prior to the
current pleading requirements. This is so because, considering Duggan’s
allegations within the Twombly-Iqbal framework, Duggan’s recovery of actual
damages for the alleged Privacy Act violations could only result from a
“hypothetical, counterfactual situation” which is insufficient to satisfy the
plausibility requirements at the motion-to-dismiss stage. Like the Sweeney
plaintiff, Duggan was subject to disciplinary action for unauthorized leave,
pursuant to which Duggan alleges he was “completely relieved of all duties,
asked to return to the base, and began terminal leave.” 32 Though Duggan
otherwise alleges that the basis of this discipline was unjust, he does not allege
it resulted from the Privacy Act violations.
      Significantly and unlike the Sweeney plaintiff, Duggan experienced this
injury prior to the alleged Privacy Act violations, which further undercuts any
causal inference between the events. The inference is not strengthened by
Duggan’s argument in his reply that he was ultimately terminated in
September of 2010. 33 According to Duggan’s allegations, he “began terminal
leave” weeks prior to the alleged Privacy Act violations and did not return to
service prior to his ultimate termination; the progression of the alleged injury
had all but concluded by the time the Privacy Act violations are alleged to have
occurred.




      31 Id. at 358.
      32 ROA.87, ¶ 31.
      33 Reply Br. 8-9.



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IV.     CONCLUSION
       Duggan’s allegations simply do not support a plausible inference that the
Privacy Act violations were causally related to his relief from duties and
ultimate termination. Absent such a connection, there is no basis for Duggan’s
right to “actual damages” within the meaning of the Privacy Act. As a result,
the district court did not err in dismissing Duggan’s Privacy Act claims, and
we AFFIRM.




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