     Case: 16-20332      Document: 00513850447         Page: 1    Date Filed: 01/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 16-20332                               FILED
                                  Summary Calendar                      January 26, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
HAROLD GAUSE,

              Plaintiff - Appellant

v.

UNITED STATES DEPARTMENT OF DEFENSE; ASHTON CARTER,
Secretary; CAPTAIN OLSEA COLLINS; JOSEPH KINLIN; NATIONAL
ARCHIVES AND RECORDS ADMINISTRATION; SCOTT LEVINS,
Director; JAMES SPRINGS, Inspector General; TWO UNKNOWN
EMPLOYEES; JENNY R. YANG, Equal Employment Opportunity
Commission; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-3629


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Harold Gause, a former Marine, applied to work as a civilian employee
in the Army Recruiting Battalion and received a tentative job offer. When the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-20332
offer was withdrawn, he filed a complaint with the EEOC alleging he was
discriminated against and retaliated against for challenging what he believed
were impermissible questions during his interview and background
investigation. During the proceedings, counsel for the Defense Department
produced documents from Gause’s military records that included notes of
psychotherapy he had received. In response, Gause filed a motion with the
administrative law judge seeking a protective order covering the material and
for sanctions.
      Dissatisfied with the time it was taking to obtain a ruling on his motion,
Gause commenced this action by suing the EEOC, the National Archives and
Records Administration, the Defense Department, and relevant officials at
each agency in federal district court. Gause’s suit had two parts: he alleged
that disclosure of his military records violated the Privacy Act, and he invoked
the All Writs Act to request a writ of mandamus directing the EEOC to rule on
his motion and expedite adjudication of his complaint.
      The government defendants filed a motion to dismiss for failure to state
a claim and lack of jurisdiction, which the court granted.        Gause timely
appealed. We review both types of dismissal de novo. Del-Ray Battery Co. v.
Douglas Battery Co., 635 F.3d 725, 728 (5th Cir. 2011).
      The district court correctly dismissed Gause’s claim for a writ of
mandamus against the EEOC. Gause relied on the All Writs Act to establish
jurisdiction over this claim. The All Writs Act, however, cannot serve as an
independent basis of jurisdiction. Texas v. Real Parties in Interest, 259 F.3d
387, 392 (5th Cir. 2001). The All Writs Act authorizes “a federal court to issue
such commands . . . as may be necessary or appropriate to effectuate and
prevent the frustration of orders it has previously issued in its exercise of
jurisdiction otherwise obtained.” United States v. N.Y. Tel. Co., 434 U.S. 159,
172 (1977).      Gause has not shown that the district court otherwise has
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                                       No. 16-20332
jurisdiction over his suit against the EEOC, and there is no prior federal court
order being undermined. Apart from pointing to the All Writs Act, he did not
identify a basis for jurisdiction of his suit against the EEOC, such as a federal
cause of action. See 28 U.S.C. §§ 1330–69 (conferring jurisdiction on the
district courts, including “jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States”).
       The district court was also correct that Gause failed to state a claim
against the National Archives and Records Administration and the
Department of Defense.          Gause claimed that these agencies violated the
Privacy Act by disclosing his service records. The Supreme Court has ruled,
however, that the Privacy Act only allows a person to bring suit against a
government agency if that person has suffered actual damages. Doe v. Chao,
540 U.S. 614, 627 (2004). The Supreme Court later affirmed that “actual
damages” means “proven pecuniary or economic harm.” FAA v. Cooper, 132 S.
Ct. 1441, 1453 (2012). 1
       When a defendant makes a motion for failure to state a claim, the
defendant is saying that even if all the facts that the plaintiff alleges in his
complaint are true, the plaintiff still does not have a valid claim. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The test for deciding these motions
is what is written in the pleadings. Gause wrote in his complaint that he
“suffered adverse and harmful effects, including, but not limited to, mental
distress, emotional trauma, embarrassment, humiliation, and lost or
jeopardized present or future financial opportunities.”                 The mental and
emotional distress Gause alleges he suffered do not meet the Supreme Court’s


       1 In its motion to dismiss, the government argued this ground as a basis for dismissal
as well as contending that an intragency disclosure of records to attorneys defending a
lawsuit is an authorized disclosure under 5 U.S.C. § 552a(b)(1). The district court did not
identify which ground was the basis for its ruling. We only consider the alleged defect in the
request for damages.
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definition of actual damages under the Privacy Act. See Cooper, 132 S. Ct. at
1455.
        Though Gause does mention “lost or jeopardized present or future
financial opportunities,” he does not state what those opportunities are or how
the disclosure of his records has caused their loss. “Factual allegations must
be enough to raise a right to relief above the speculative level on the
assumption that all of the complaint’s allegations are true.” Twombly, 550 U.S.
544, 545 (2007). A plaintiff cannot survive a motion to dismiss based on “labels
and conclusions” or “naked assertions” that are devoid of “further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
        In his brief on appeal, Gause now asserts that he has suffered pecuniary
harm in the form of expenses like parking and postage incurred in litigating
his Privacy Act claim.      A plaintiff, however, cannot mend a hole in his
complaint by making new allegations on appeal. On a motion to dismiss for
failure to state a claim, it is what the plaintiff pleaded in the complaint that
counts, not what he says on appeal. See McCartney v. First City Bank, 970
F.2d 45, 47 (1992) (“We may not look beyond the pleadings.”). Even if Gause
had not waived this contention by failing to include it in his complaint, the
terms of the statute distinguish between a plaintiff’s costs in bringing the
action and the damages he is seeking to recover. The Privacy Act allows
recovery of “actual damages” in one subsection, 5 U.S.C. § 552a(g)(4)(A), and
“the costs of the action” in the next subsection, id. § 552a(g)(4)(B). Moreover,
treating the costs of litigation as actual damages would empty the Supreme
Court’s holding in Chao of impact because any plaintiff could allege the same
pecuniary harm that Gause relies upon. Surely the plaintiff in Chao also spent
money litigating his Privacy Act claim, but the Supreme Court still ruled
against him for failure to show actual damages.


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      Lastly, Gause asserts for the first time on appeal that the disclosure of
his records violates the Rehabilitation Act. Even though he did not mention
the Act in his complaint, he argues that he alleged facts “that can be construed
to be a claim under the Rehabilitation Act.” It is true that “[s]o long as a
pleading alleges facts upon which relief can be granted, it states a claim even
if it ‘fails to categorize correctly the legal theory giving rise to the claim.’”
Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir. 2013) (quoting
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981)).
      Gause nonetheless does not show in his brief how the facts that he
pleaded state a claim under the Rehabilitation Act. The Rehabilitation Act
provides that “[n]o otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination . . . under any
program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794.
Looking at the portions of Gause’s complaint that he asserts can be construed
as a claim under the Rehabilitation Act, the nub of what he alleges is that the
defendants wrongly disclosed his records. There is nothing in the complaint
alleging that he is a disabled person or that he was discriminated against for
that reason.
      Gause cites Cora L. Hampton, Complainant v. Henderson, EEOC DOC
01A00132, 2000 WL 486691 (Apr. 13, 2000), to support his argument that the
Rehabilitation Act allows him to sue the defendants under the facts he pleaded.
Not only is this an administrative decision, rather than a controlling federal
court opinion, but it does not support Gause’s contention. He relies on the
following passage from Hampton: “If the agency disclosed medical information
pertaining to complainant in a manner that did not conform with this
regulation, then its act of dissemination would constitute a per se violation of


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the Rehabilitation Act, and no showing of harm beyond the violation would be
necessary.” 2000 WL 486691 at *3.
      Taken in context, this passage does not support Gause’s contention that
the Rehabilitation Act allows him to bring a claim for disclosure of his military
records as opposed to disability discrimination. The regulation at issue, 29
C.F.R. § 1630.14, is concerned with medical examinations and inquiries made
to a disabled person in the hiring process or as part of an employee wellness
program. It implements the prohibition of the Americans with Disabilities Act
(incorporated into the Rehabilitation Act) concerning discrimination by
employers via medical examinations and inquiries. See 42 U.S.C. § 12112(d)
(restricting the use of medical examinations and inquiries by employers under
the ADA); 29 U.S.C. § 794(d) (incorporating the former provision into the
Rehabilitation Act). We emphasize that Gause has not alleged that he has a
disability, that the defendants discriminated against him by disclosing his old
military records, or that the medical information in those records was collected
as part of the hiring process or an employee wellness program.
                                      ***
      The judgment is AFFIRMED.




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