751 F. Supp. 2d 154
D.D.C.2010Background
- Kursar is a dual U.S. and Canadian citizen who worked as a TSA federal air marshal and previously faced disciplinary actions related to misrepresentation on SF-86 and an adverse action by prior employers and military units.
- In 2002, TSA Special Agent in Charge William Blake, Jr. terminated Kursar for submitting false or incorrect information on his SF-86, citing undisclosed termination from the Washington State Army/Air National Guard and a false statement about not having a security clearance revoked or suspended.
- Kursar pursued relief through MSPB in 2003, but the MSPB decision and subsequent Federal Circuit ruling upheld the termination, culminating in Kursar I (Kursar v. Dep’t of the Army, No. 07-2005(EGS)) with a settlement resolving privacy-act related disputes in November 2008.
- Kursar settled Privacy Act claims against the Army in Kursar I for $90,000, releasing “any and all claims” arising from that subject matter, approved by Judge Sullivan in 2008.
- In March 2009 Kursar amended his complaint in the present case, alleging multiple Privacy Act and Fifth Amendment claims against the TSA, Blake, and unknown TSA officials, arising from the 2002 termination and related record-keeping and dissemination issues.
- The court ultimately dismisses individual-defendant Privacy Act claims, finds Count Two time-barred, and grants partial summary judgment as to others while denying Kursar’s cross-motion for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privacy Act claims against individuals allowed? | Kursar alleges individual wrongdoing under the Privacy Act. | Act does not authorize civil remedies against individual employees. | Dismissal of Privacy Act claims against Blake and unknown TSA agents. |
| Whether Count Two (failure to collect information directly from Kursar) is timely? | Kursar asserts ongoing violations and tolling principles. | Count Two time-barred under 2-year limitations for Privacy Act damages. | Count Two untimely; damages claim barred. |
| Whether Counts One, Three, Four, Five merit relief under the Privacy Act and Due Process? | Remedies sought include amendment of records and due process relief. | Privacy Act remedies limited; factual findings and judgments cannot be amended as to opinions. | Counts One, Three, Four, Five denied on merits; granting partial relief moot; no due process violation. |
| Does the settlement in Kursar I preclude the present Privacy Act claims? | Settlement did not cover these specific Privacy Act claims. | Settlement bars related claims. | Court declines to base decision on res judicata; analysis focuses on statute of limitations and merits. |
Key Cases Cited
- Doe v. Chao, 540 U.S. 614 (2004) (Privacy Act relief available; de novo review after agency denial)
- Skinner v. U.S. Dep't of Justice, 584 F.3d 1093 (D.C. Cir. 2009) (privacy Act amendment relief; burden on plaintiff to show inaccuracy)
- Kleiman v. Dep't of Energy, 956 F.2d 335 (D.C. Cir. 1992) (privacy Act permits amendment of records, not judicial correction of opinions)
- McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006) (privacy Act correction limited to factual errors; burden on plaintiff to show inaccuracy)
- Conklin v. U.S. Bureau of Prisons, 514 F.Supp.2d 1 (D.D.C. 2007) (limitations on accrual and tolling for Privacy Act claims; applicability of knowledge standard)