                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
RANDOLPH S. KOCH,                   )
                                    )
      Plaintiff,                    )
                                    )
      v.                            )                Civil Action No. 09-1225 (PLF)
                                    )
MARY L. SCHAPIRO,                   )
 Chairman, Securities and Exchange  )
 Commission, et al.,                )
                                    )
      Defendants.                   )
____________________________________)


                                            OPINION

               This matter is before the Court on defendants’ motion to dismiss or, in the

alternative, for summary judgment. On March 31, 2011, the Court issued an Order granting in

part and denying in part the defendants’ motion. This Opinion explains the reasoning underlying

that Order and is accompanied by an Amended Order.1


                                       I. BACKGROUND

               Plaintiff Randolph S. Koch has been employed by the Securities and Exchange

Commission (“SEC”) since 1991. Am. Compl. ¶ 11. Mr. Koch describes himself as sixty-two

years old, white, and Jewish, and alleges that he “suffers from several medical conditions,”

       1
                The papers reviewed in connection with the pending motion include: plaintiff’s
first amended complaint (“Am. Compl.”); defendants’ motion to dismiss or, in the alternative, for
summary judgment (“Mot.”); defendants’ statement of material facts as to which there is no
genuine issue (“Defs. Statement”); plaintiff’s opposition to defendants’ motion to dismiss or, in
the alternative, for summary judgment (“Opp.”); plaintiff’s response to defendants’ statement of
material facts as to which there is no genuine issue (“Pl. Statement”); and defendants’ reply
(“Reply”).
including, among others, cardiovascular disease, obstructive sleep apnea, thrombophelia or

hypercoagualable state, and gout. Id. at 6. Based on his various protected statuses, Mr. Koch has

filed numerous lawsuits against the SEC, many of which have been or currently are before this

Court, alleging violations of Title VII of the Civil Right Act of 1964, as amended, 42 U.S.C.

§§ 2000e et seq., the Rehabilitation Act, 29 U.S.C. §§ 791, 794, and the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621 et seq. See Am. Compl. ¶ 7; Koch v. Schapiro, 699 F. Supp.

2d 3, 7 (D.D.C. 2010).

               The matter now before the Court relates to a request made by Mr. Koch to the

SEC in December 2007 for an accommodation, seeking schedule flexibility so that he could

continue a cardiac rehabilitation program with minimum use of leave. See Am. Compl. ¶ 21.

Mr. Koch alleges that the SEC did not respond to his request, id. ¶ 25, and he eventually filed an

EEO complaint. Id. ¶ 28. As Mr. Koch describes it, after filing his EEO complaint, he “was

informed by the SEC EEO office that his case would be investigated by a contract investigator,

Daniel Jewell.” Id. ¶ 29. Mr. Koch

               became concerned over the possibility that his medical records,
               which had been submitted to the [SEC] in connection with his
               accommodation request and counseling on a confidential basis and
               under certain safeguards, would be turned over to the contracting
               company, Delaney, Siegel, Zorn, and Associates [“DSZA”], and its
               subcontractor [Mr.] Jewell.

Id. ¶ 30. Mr. Koch then expressed his concern to SEC officials, see id. ¶¶ 30, 31, and began

asking questions “about the protections and safeguards that would apply to the confidential

medical information that would likely be turned over to [Mr.] Jewell.” Id. ¶ 30.




                                                2
               Mr. Koch alleges that he was eventually informed by the SEC that its disclosures

to Mr. Jewell would not be covered by 48 C.F.R. pt. 24, Am. Compl. ¶ 31, a set of federal

regulations governing the protection of individual privacy with respect to the Federal Acquisition

Regulations Systems. See 48 C.F.R. pt. 24. Upon his own review of the contract between the

SEC and DSZA (the “DSZA Contract”), as well as the DSZA’s subcontract with Mr. Jewell, Mr.

Koch concluded that neither the DSZA Contract nor the subcontract included Privacy Act

language referenced in 48 C.F.R. pt. 24, Am. Compl. ¶ 32, specifically: “The clause at 52.224-1,

Privacy Act Notification[; and] (b) The clause at 52.224-2, Privacy Act.” 48 C.F.R. § 24.104;

see also 48 C.F.R. §§ 52.224-1 & 52.224-2. Mr. Koch further concluded that “the conduct of the

investigation could result in [the] release to non-government contractors . . . [of] personal and

confidential medical information which would no longer be protected under the Privacy Act.” Id.

¶ 32.

               Thus, Mr. Koch alleges that he “stated his strong objection to the SEC EEO

office, and requested that the SEC either arrange an investigation with a contract having the

required protections, or else conduct the investigation internally with government personnel.”

Am. Compl. ¶ 33. According to Mr. Koch, “the SEC did not cooperate,” and therefore Mr. Koch

exercised what was in his view the only remaining option — “to not participate in the

investigation.” Id. ¶ 33 (emphasis added). In response, the SEC dismissed Mr. Koch’s EEO

complaint, id. ¶ 35, pursuant to 29 C.F.R. § 1614.107, which provides that an agency

               shall dismiss an entire complaint . . . . [w]here the agency has
               provided the complainant with a written request to provide relevant
               information or otherwise proceed with the complaint, and the
               complainant has failed to respond to the request within 15 days of
               its receipt or the complainant’s response does not address the
               agency’s request . . . .

                                                 3
29 C.F.R. § 1614.107(a)(7). Mr. Koch filed a timely appeal to the Equal Employment

Opportunity Commission (“EEOC”), which affirmed the SEC’s decision and found that Mr.

Koch “proffered nothing in the record to justify not cooperating with the agency’s investigation

. . . .” Opp., Ex. B, EEOC Decision at 2, Mar. 31, 2009.

               Mr. Koch filed his complaint in this Court on July 1, 2009 against Mary

L. Schapiro, the Chairman of the SEC. Mr. Koch filed an amended complaint on January 28,

2010, naming both Chairman Schapiro and the SEC as defendants. His amended complaint

states six claims against the defendants. First, Mr. Koch alleges that the defendants “violated

the Rehabilitation Act by failing to engage in an interactive process, . . . fail[ing] to respond

promptly to [Mr. Koch’s] accommodation request,” Am. Compl. ¶ 37, and attempting to engage

in an illegal investigation that did not comply with 48 C.F.R. pt. 24. Am. Compl. ¶ 39. Second,

Mr. Koch alleges that defendants acted in an arbitrary and capricious manner in violation of the

Administrative Procedure Act (“APA”) by failing “to include specific contractual language

pertaining to the Privacy Act in its contract with [DSZA] . . . .” Id. ¶ 41. Third, Mr. Koch

alleges that “[b]y refusing to accede to [his] request that his EEO investigation be conducted in

accordance with 48 C.F.R. Pt. 24 and the Privacy Act, the SEC failed to accord [him]

meaningful due process and denied him the full administrative rights that EEO complainants

must be provided before their complaint is adjudicated.” Id. ¶ 45. Fourth, Mr. Koch alleges that

defendants “willfully and intentionally provided copies of [Mr. Koch’s] records protected by the

Privacy Act to [DSZA] and/or [Mr.] Jewell” in violation of the Privacy Act. Id. ¶ 48. Fifth, Mr.

Koch alleges that defendants failed to establish appropriate rules of conduct and instructions for

their employees with respect to the Privacy Act. Id. ¶ 50. And sixth, Mr. Koch alleges that


                                                  4
defendants failed to establish appropriate administrative safeguards, also in violation of the

Privacy Act. Id. ¶ 53.

               On March 1, 2010, defendants filed a motion to dismiss or, in the alternative, for

summary judgment. Defendants argue that Mr. Koch’s “refusal to cooperate in the agency’s

investigation of his complaint constitutes a failure by him to exhaust his administrative

remedies, which under the Rehabilitation Act is jurisdictional.” Mot. at 1. Defendants further

argue that Mr. Koch’s claims under the APA, the Due Process Clause, and the Privacy Act are

legally and factually without merit. Id.

               In preparing his opposition to defendants’ motion, Mr. Koch learned that the

DSZA Contract did in fact include by reference the Privacy Act language he had insisted upon,

specifically 48 C.F.R. §§ 52.224-1 and 52.224-2. See Opp. at 1-2. According to Mr. Koch, this

discovery “fundamentally changes the nature of this case.” Id. at 2. Thus, in his opposition

papers, Mr. Koch stated that he “formally withdraws” Counts Four and Six of his amended

complaint, conceding that the DSZA Contract “was per se in compliance with the Privacy Act,”

id. (emphasis in original), and that the defendants did in fact establish appropriate administrative

safeguards. Id. at 3.2 Then, Mr. Koch addressed defendants’ substantive arguments in light of

his discovery, while requesting that the Court interpret the relevant portions of his amended

complaint broadly. Id. at 2.




       2
                The Court construes Mr. Koch’s request to formally withdraw Counts Four and
Six as a request under Rule 15(a)(2) of the Federal Rules of Civil Procedure and Local Civil Rule
15.1 to amend his first amended complaint. Because defendants have not stated any opposition,
the Court will grant Mr. Koch’s request and will deny as moot defendants’ motion to dismiss or,
in the alternative, for summary judgment with respect to Counts Four and Six.

                                                 5
                In reply, defendants argue that Mr. Koch’s discovery should not alter the Court’s

analysis. See Reply at 1-2. Defendants assert: “[T]he EEO Office was correct when it informed

Mr. Koch that the [Privacy Act] provisions were not applicable to the DSZA Contract (even

though it was later discovered that the contract incorporated them by reference).” Reply at 2.


                                          II. DISCUSSION

                                  A. Count I — Rehabilitation Act

                Defendants argue that because Mr. Koch refused to cooperate with the SEC’s

investigation of his administrative complaint, he failed to exhaust his administrative remedies

with respect to his Rehabilitation Act claim, which, defendants contend, is a jurisdictional

requirement under Spinelli v. Goss, 446 F.3d 159 (D.C. Cir. 2006). See Mot. at 1. Thus,

defendants conclude that this Court should dismiss Mr. Koch’s claim for lack of subject matter

jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Id. Mr. Koch

expressly acknowledges that he did “not participate in the investigation.” Am. Compl. ¶ 33

(emphasis added). He nevertheless argues that he made a good faith effort to cooperate that

suffices for purposes of exhaustion under the Rehabilitation Act — thus, his failure to

participate should be excused. See Opp. at 10. The first question before the Court is whether

Mr. Koch’s failure to cooperate with or participate in the investigation constitutes a

jurisdictional failure, which is not excusable under Spinelli v. Goss, or a prudential failure that

the Court “may, in its discretion, excuse . . . if the litigant’s interests in immediate judicial

review outweigh the government’s interests in the efficiency or administrative autonomy that

the exhaustion doctrine is designed to further.” Avocados Plus Inc. v. Veneman, 370 F.3d 1243,

1247 (D.C. Cir. 2004) (internal quotations and citation omitted).

                                                   6
               In Spinelli v. Goss, the court of appeals held that a plaintiff’s failure to file an

administrative complaint with respect to a Rehabilitation Act claim constituted a failure by the

plaintiff to exhaust his administrative remedies that deprived the district court of subject matter

jurisdiction even when the plaintiff plausibly contended that doing so would be futile. See

Spinelli v. Goss, 446 F.3d at 162. Because “[s]uch jurisdictional exhaustion . . . may not be

excused,” id. (internal quotations and citation omitted), the court expressly rejected the

plaintiff’s futility argument, cautioning that courts “may ‘not read futility or other exceptions

into statutory exhaustion requirements where Congress has provided otherwise.’” Id. (quoting

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)). Thus, in Spinelli, where “there was no

administrative complaint and thus no final disposition of one,” there was no subject matter

jurisdiction in this Court. Id.

               In this case, by contrast, Mr. Koch did file an administrative complaint but

thereafter refused to participate in the administrative proceedings on grounds of futility. The

SEC then dismissed his complaint under 29 C.F.R. § 1614.107, and the EEOC affirmed this

decision. The Court concludes that because Mr. Koch filed an administrative complaint and

because there was a final disposition of his complaint — albeit by way of dismissal and not on

the merits — his Rehabilitation Act claim is not foreclosed by Spinelli v. Goss. See Spinelli v.

Goss, 446 F.3d at 162; Perry v. U.S. Department of State, 669 F. Supp. 2d 60, 65 (D.D.C. 2009)

(Spinelli’s jurisdictional holding is limited to cases where “‘there was no administrative

complaint and thus no final disposition of one.’”) (quoting Spinelli v. Goss, 446 F.3d at 162);

Fortune v. Holder, Civil Action No. 10-0856, 2011 WL 723111, at *2-3, 3 n.5 (D.D.C. Mar. 2,

2011) (subject matter jurisdiction over Rehabilitation Act claim existed despite agency’s


                                                  7
dismissal of plaintiff’s administrative complaint as untimely) (citing Perry v. U.S. Department

of State, 669 F. Supp. 2d at 64). The Court therefore has subject matter jurisdiction. The

question, then, is whether the Court should decline to exercise its jurisdiction because of Mr.

Koch’s failure to exhaust his remedies — non-jurisdictional or prudential nonexhaustion, see

Avocados Plus Inc. v. Veneman, 370 F.3d at 1247 — by declining to provide the SEC with

requested information relevant to its decision.

                As discussed, Mr. Koch admits that he did “not participate in the investigation.”

Am. Compl. ¶ 33 (emphasis added). He nevertheless argues that the Court should find that he

exhausted his administrative remedies “given the ‘good faith’ requirement that lies at the heart

of the exhaustion doctrine.” Opp. at 14. The Court, in its discretion, will not excuse such

behavior in this case because it concludes that Mr. Koch’s admitted failure to participate was

not done in good faith. See Acovados Plus Inc. v. Veneman, 370 F.3d at 1247.3 “Good faith

may not be found where” — as here — “a complainant refuses to cooperate with the

administrative process by . . . withholding relevant information from an agency during an

investigation.” Payne v. Locke, Civil Action No. 09-1808, 2011 WL 713713, at *3 (D.D.C.

Mar. 2, 2011); see Wilson v. Peña, 79 F.3d 154, 164-65 (D.C. Cir. 1996) (if complainant forces

agency to dismiss complaint by failing to provide sufficient information to enable agency to

investigate he may forfeit right to sue in federal court).




       3
                Mr. Koch’s conduct is easily distinguishable from the conduct involved in the
case he cites, Simpson v. Potter, 589 F. Supp. 2d 424 (D. Del. 2008), where the plaintiff missed
one prehearing telephone conference during her administrative proceedings. See Simpson v.
Potter, 589 F. Supp. 2d at 431.

                                                  8
               The sole basis for Mr. Koch’s refusal to participate in his administrative

proceedings was his contention that the DSZA Contract was required to include language

referenced in 48 C.F.R. pt. 24. See Opp. at 10; see also 48 C.F.R. § 24.104 (citing 48 C.F.R.

§§ 52.224-1 & 52.224-2). Defendants respond that the DSZA Contract “was not one of the type

of contracts covered by 48 CFR part 24,” Mot. at 2, and that even if it was, “there is no material

difference between the Privacy Act obligations imposed by that contract and those set forth in

48 CFR §§ 52.224-1 and 52.224-2.” Mot. at 7-8. Thus, defendants argue that “there was no

legitimate basis for Mr. Koch to refuse to cooperate with the SEC’s investigation due to his

mistaken belief that clauses contained in 48 CFR Part 24 were not included in the SEC’s

contract with DSZA and/or were required to be included.” Reply at 2. The Court agrees with

the defendants.

               It is clear that the DSZA Contract was not covered by 48 C.F.R. pt. 24. The

relevant regulations provide: “The [Privacy] Act requires that when an agency contracts for the

design, development, or operation of a system of records on individuals on behalf of the agency

to accomplish an agency function[,] the agency must apply the requirements of the Act to the

contractor and its employees working on the contract.” 48 C.F.R. § 24.102(a) (emphasis

added); see also id. § 24.102(b), (c); International Union, Security, Police, and Fire Prof’ls of

America v. U.S. Marshal’s Service, 350 F. Supp. 2d 522, 535 (S.D.N.Y. 2004) (“48 C.F.R.

§ 24.102 . . . merely states that an agency must apply the Privacy Act when it contracts for the

development or operation of a system of records . . . .”). The DSZA Contract was not a contract

for the design or development of a system of records; it was a contract to investigate complaints

of discrimination by employees of the agency on behalf of the SEC’s EEO Office. See Defs.


                                                 9
Statement ¶ 6; Pl. Statement ¶ 6; see also Opp., Ex. C, DSZ Contract (describing the following

services: “EEO Counseling”; “EEO Investigations”; “Final Agency Decisions”; “Alternative

Dispute Resolution”; “EEO Consulting, including Training and Reference Materials”; “EEO

Training”). Mr. Koch has advanced no persuasive argument as to why 48 C.F.R. pt. 24 applies

to such a contract. The most Mr. Koch can muster is a suggestion, in a footnote, that since the

DSZA Contract did ultimately include the Privacy Act language he insisted upon, that “should

create a presumption that [his] legal interpretation was reasonable.” Opp. at 13 n.12. The Court

disagrees. It is clear from the plain language of the regulations that the DSZA Contract was not

the type of contract covered by 48 C.F.R. pt. 24. Furthermore, Mr. Koch has failed to explain

why the extensive privacy protections contained in the contract — including, among other

things, restrictions on the use, disclosure, and duplication of confidential information, as well as

a requirement that all contractors and subcontractors execute non-disclosure agreements — did

not satisfy his privacy concerns. See Reply at 2-5.

               The Court therefore finds that Mr. Koch’s refusal to participate in his

administrative proceedings constitutes a failure to exhaust his administrative remedies and that

there is no reason to excuse such failure. Defendants are entitled to judgment as a matter of law

on Count One.4




       4
                The Court’s March 31, 2011 Order dismissed Count One under Rule 12(b)(1) of
the Federal Rules of Civil Procedure. Inasmuch as its decision is based on prudential exhaustion
rather than jurisdictional exhaustion, the Court’s analysis with respect to Count One is more
appropriately considered under Rule 12(b)(6) of the Federal Rules. But because the Court has
considered materials outside of the four corners of Mr. Koch’s first amended complaint, the
Court will treat this portion of defendants’ motion as a motion for summary judgment. See FED .
R. CIV . P. 12(d). The Court therefore will issue an Amended Order to provide that judgment is
entered for defendants on Count One.

                                                 10
                                 B. Counts Two, Three, and Five

               Mr. Koch’s three remaining claims, as stated in his amended complaint, are all

based on the defendants’ alleged failure to include language from 48 C.F.R. pt. 24 in the DSZA

Contract. See Am. Compl. ¶¶ 40-54. In light of the Court’s conclusion that the DSZA Contract

was not covered by 48 C.F.R. pt. 24, as well as the fact that the DSZA Contract actually

incorporated by reference the insisted upon Privacy Act language, these claims obviously have

no merit. Even if the Court were to interpret his amended complaint as broadly as Mr. Koch

requests, his three remaining claims, as revised in his opposition papers, still rest on his

erroneous conclusion that the DSZA Contract was covered by 48 C.F.R. pt. 24. See Opp.

at 15-18. With respect to Counts Two and Three, Mr. Koch now contends that defendants’

decision to mislead him about the absence of the clauses from the DSZA Contract was arbitrary

and capricious and was a violation of the Fifth Amendment. See id. at 15-16. With respect to

Count Five, Mr. Koch now contends that defendants violated the Privacy Act because they

failed to instruct their employees regarding the requirement that the DSZA Contract be covered

by 48 C.F.R. pt. 24. See id. at 17-18. Defendants did not mislead or erroneously instruct Mr.

Koch because defendants were legally correct that the DSZA Contract was not coverned by

48 C.F.R. pt. 24. The Court therefore finds that defendants are entitled to judgment on Counts

Two, Three, and Five.5




       5
                As with Count One, the Court considered materials outside of Mr. Koch’s first
amended complaint in evaluating defendants’ motion regarding Counts Two, Three, and Five;
thus, for these claims, the Court will treat defendants’ motion as a motion for summary
judgment. See FED . R. CIV . P. 12(d).

                                                 11
                                        III. CONCLUSION

                 For the foregoing reasons, the Court will grant in part and deny in part

defendants’ motion to dismiss or, in the alternative, for summary judgment [Dkt. No. 15]. An

Order consistent with this Opinion issued on March 31, 2011. An Amended Order shall issue

this same day.

                 SO ORDERED.




                                                       /s/
                                                       PAUL L. FRIEDMAN
DATE: April 13, 2011                                   United States District Judge




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