UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAPTAIN GLENN SULMASY, USCG
(RET.),
Plaintiff,
v. Civil Action No. 25-3339 (TSC)
MARKWAYNE MULLIN, Secretary of
Homeland Security,
Defendant.
MEMORANDUM OPINION
Plaintiff Glenn Sulmasy, a former United States Coast Guard Captain, brings a Privacy
Act claim against Defendant, Secretary of Homeland Security, seeking compensation for
economic harms sustained because of the Coast Guard’s allegedly improper disclosure of
documents pertaining to him. Compl. ¶¶ 29–39, ECF No. 1. Defendant has filed a Motion to
Dismiss or for Summary Judgment in the Alternative. ECF No. 7. For the following reasons,
the court will GRANT Defendant’s motion.
I. BACKGROUND
Beginning in the summer of 2023, CNN published a series of exposés about sexual
harassment in the Coast Guard Academy. The first article, published in June 2023, described
how, for nearly two decades, Academy leaders had covered up female cadets’ reports and
declined to investigate sexual assaults as criminal matters. See Blake Ellis, Melanie Hicken &
Audrey Ash, Criminal Investigation into Coast Guard Academy Revealed Years of Sexual
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Assault Cover-ups, but Findings Were Kept Secret, CNN (June 30, 2023, at 10:42 ET).1 The
second article, published in July 2023, implicated Plaintiff in the deficient handling of sexual
assault reports. See Melanie Hicken et al., CNN Uncovered a Damning, Secret Investigation into
Sexual Assault at the US Coast Guard Academy. This Woman’s Case Triggered That Probe,
CNN (July 12, 2023, at 12:07 ET).2 According to the article, Plaintiff was serving as an attorney
at the Academy in the late 1990’s when he discouraged a rape victim from pursuing further
disciplinary action against her attacker. See id. The article also stated that investigators had
discovered a statement signed by the woman in boxes labeled with Plaintiff’s name, but that
Plaintiff had not faced any disciplinary action for his conduct. See id.
On September 21, 2023, CNN released a third article revealing Plaintiff’s improper
sexual conduct with female students. See Melanie Hicken et al., He Was Investigated for Sexting
a Student at the Coast Guard Academy. He’s Now a College President, CNN (Sept. 21, 2023, at
16:29 ET) (“September 21 article”).3 The article disclosed that Plaintiff allegedly sent over
1,600 sexually suggestive text messages to a young female student at the Academy. See id. He
apparently also asked another student for photos of herself in exchange for a letter of
recommendation. See id. CNN explained that it had obtained this information from a
memorandum prepared in 2016 by Coast Guard prosecutors, who had recommended bringing
charges against Plaintiff in military court even though Plaintiff had retired from the Academy in
2015. See id. No charges were ever brought. See id. CNN shared the prosecutorial
1
https://www.cnn.com/2023/06/30/politics/coast-guard-academy-secret-sexual-assaultinvestigation-invs/.
2
https://www.cnn.com/2023/07/12/politics/coast-guard-academy-investigation-invs. 3
https://www.cnn.com/2023/09/21/us/glenn-sulmasy-coast-guard-investigation-invs.
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memorandum with Plaintiff’s attorney before it published the article. See id. The attorney did
not dispute the existence of the text messages, but claimed they were consensual. See id. CNN
also aired portions of the memorandum on a nightly show. See id.
Plaintiff alleges that the September 21 article provoked significant backlash against him.
He was then President of Nichols College, which asked him to vacate the premises, see Compl.
¶ 26, and launched an investigation into him, see Curt Devine, Audrey Ash & Melanie Hicken,
College President Accused of Sexting Former Student at Coast Guard Academy Resigns, CNN
(Oct. 3, 2023, at 19:35 ET).4 During the investigation, Plaintiff resigned as President of the
college. Id. He claims that since the publication of the September 21 Article, he has been
“professionally blacklisted and unemployable in his prior fields.” Compl. ¶ 24. He alleges he
has “been terminated from jobs he was recently employed at” and has had offers revoked by
“various prestigious law firms” to the tune of hundreds of thousands of dollars. Id. ¶ 23.
In February 2024, Plaintiff received notice that he had been a victim of a Privacy Act
violation by the Coast Guard. Id. ¶ 20. He filed a FOIA lawsuit to obtain more information and
received a report prepared by the Coast Guard Investigative Services (“CGIS”) assessing a
security lapse discovered on September 29, 2023. Id. ¶¶ 16, 20. According to the report, the
Coast Guard Office of Privacy Management (CG-6P) had misconfigured the privacy settings for
FOIA and Privacy Act files on its online shared drive. Id. ¶ 16. That misconfiguration had
enabled otherwise unauthorized Coast Guard personnel to search for and download legal
4
https://www.cnn.com/2023/10/03/politics/coast-guard-sulmasy-resign.
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documents pertaining to Plaintiff, apparently including investigations into Plaintiff’s misconduct
while he was at the Academy. Id. ¶¶ 17–21.
In September 2025, Plaintiff sued to recover $10 million in damages allegedly sustained
because of the “Coast Guard’s unlawful and willful disclosure” of his protected records. Id.
¶ 38.5 Defendant then moved to dismiss under Federal Rule 12(b)(6), or in the alternative, for
summary judgment under Federal Rule 56. ECF No. 7 (“Def. Mot.”). Defendant also attached a
copy of the CGIS investigative report (which Plaintiff had not attached to his Complaint), a
declaration by Kathleen Claffie, Chief of the Coast Guard’s Office of Privacy Management, and
a statement of undisputed material facts to the motion. See CGIS Report, Ex. 1, ECF No. 7-2;
Claffie Decl., ECF No. 7-2; Statement, ECF No. 7-1.
II. LEGAL STANDARD
A. Rule 12(b)(6) Motion to Dismiss
Federal Rule 12(b)(6) permits defendants to challenge whether a complaint has “state[d]
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive the motion, a
plaintiff must plead facts sufficient to state a claim “that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The court must accept all the plaintiff’s factual allegations as true and draw all “reasonable
inference[s]” in the plaintiff’s favor. Id. But the court will not credit “inferences [that] are
unsupported by the facts.” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Kowal
5
Because the Coast Guard is housed within the Department of Homeland Security during peacetime, Plaintiff named the Secretary of Homeland Security as Defendant. See 6 U.S.C. § 468(b), (g). Although the Secretary was later replaced, the current office bearer has automatically been substituted in place as Defendant. See Fed. R. Civ. P. 25(d).
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v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.1994)). Nor will it entertain naked legal
conclusions or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555).
In ruling on a Rule 12(b)(6) motion, the court is not confined to the four corners of the
complaint but may also consider “documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd.,
551 U.S. 308, 322 (2007) (quoting 5B Wright & Miller’s Federal Practice & Procedure § 1357
(3d ed. 2004 & Supp. 2007)); see N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1249 (D.C. Cir.
2020). Those include both formal and informal agency-related documents that are “central to
[the] plaintiff’s claim.” See Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999). In
particular, courts may consider “documents ‘upon which the plaintiff’s complaint necessarily
relies’ even if the document is produced not by the plaintiff in the complaint but by the defendant
in a motion to dismiss.” Pearson v. District of Columbia, 644 F. Supp. 2d 23, 29 (D.D.C. 2009)
(quoting Hinton v. Corrs. Corp. of Am., 624 F.Supp.2d 45, 45–46 (D.D.C. 2009)).
B. Rule 12(d) Conversion into Motion for Summary Judgment
When “matters outside the pleadings are presented to” the court on a Rule 12(b)(6)
motion “and [are] not excluded by the court,” Federal Rule 12(d) provides that the “motion must
be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). In that event,
the court must “give the parties notice of the court’s intention to convert the motion and a
reasonable opportunity to discover and present relevant evidence.” Hurd v. D.C., Gov’t, 864
F.3d 671, 687 (D.C. Cir. 2017) (citing Fed. R. Civ. P. 12(d) (requiring the court to give all
parties “a reasonable opportunity to present all the material that is pertinent to the motion”)).
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Providing the nonmovant an “opportunity to discover” evidence to “rebut any facts or negative
inferences the district court might draw from the [movant’s] exhibits or to provide facts and
context in his own support” protects that party’s procedural rights. Id. A district court has
discretion to disregard “affidavits or other factual matter outside the pleadings,” but if it chooses
“to consider extra-pleading material,” it must apply the standards governing Rule 56. Id.
C. Rule 56 Motion for Summary Judgment
Under Federal Rule 56, a court “shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In claiming that a fact
is—or is not—disputed, a party must support the assertion by citing to particular materials in the
record. See Fed. R. Civ. P. 56(c)(1)(A). In particular, a nonmovant cannot defeat a motion for
summary judgment merely by proffering allegations or denials unsupported by record evidence.
See Fed. R. Civ. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). That
being said, the evidence presented by the nonmovant is “to be believed, and all justifiable
inferences are to be drawn” in the nonmovant’s favor. Liberty Lobby, 477 U.S. at 255 (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
D. Privacy Act
Enacted in 1974, the Privacy Act “protect[s] the privacy of individuals identified in
federal information systems.” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42
63 (2024) (alteration omitted) (citing Privacy Act of 1974, Pub. L. No. 93–579, § 2(a)(5), 88
Stat. 1896 (codified at 5 U.S.C. § 552a note)). Among other things, the Act prohibits covered
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agencies from disclosing “any record which is contained in a system of records . . . except
pursuant to a written request by, or with the prior written consent of, the individual to whom the
record pertains.” 5 U.S.C. § 552a(b). A catch-all provision also authorizes an individual to sue
if an agency’s failure to adhere to its obligations “ha[s] an adverse effect” on him. Id.
§ 552a(g)(1)(D). Individuals may recover actual damages, but only if they have shown that “the
agency acted in a manner which was intentional or willful.” Id. §§ 552a(g)(4), (g)(4)(A); see
Reuber v. United States, 829 F.2d 133, 141 & n.58 (D.C. Cir. 1987). A claim must be brought
“within two years from the date on which the cause of action arises,” except in circumstances
inapplicable to this case. Id. § 552a(g)(5).
III. ANALYSIS
A. The CGIS Investigative Report and Claffie Declaration
The parties first dispute whether the court may permissibly consider the CGIS
Investigative Report and the Claffie declaration in resolving Defendant’s motion. See Opp’n at
14–18, ECF No. 16; Reply at 2, ECF No. 19. The Complaint references the CGIS report
multiple times. Indeed, its most central allegations arise from the report, including that the Coast
Guard misconfigured the privacy settings of restricted documents, thereby enabling multiple
individuals to improperly access and download legal documents pertaining to Plaintiff. Compl.
¶¶ 16-20. Moreover, Plaintiff has not disputed the authenticity of the report. “[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 into one for
summary judgment.” Wilson v. Nextel Commc’ns, 296 F. Supp. 3d 56, 58 n.2 (D.D.C. 2017)
(quoting Vanover, 77 F. Supp. 2d at 98). “Otherwise, a plaintiff with a legally deficient claim
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could survive a motion to dismiss simply by failing to attach a dispositive document on which it
relied.” Strumsky v. Wash. Post Co., 842 F. Supp. 2d 215, 218 (D.D.C. 2012) (quoting Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993)).
The Claffie declaration is a different story, however. Claffie’s sworn statements plainly
constitute “extra-pleading material” that Plaintiff neither referenced nor relied on in his
Complaint. Hurd, 864 F.3d at 687. Accordingly, the court could only consider the declaration
were it to convert Defendant’s Rule 12(b)(6) motion into a Rule 56 motion for summary
judgment pursuant to Federal Rule 12(d). But there is no reason to take that procedural leap—
and grapple with its ramifications—at this preliminary stage of the litigation. Conversion would
require providing Plaintiff with appropriate notice and a “reasonable opportunity to discover and
present relevant evidence.” Id. But discovery is resource and time intensive. The interests in
efficiency and economy therefore counsel against conversion.
Defendant contends that he has moved for summary judgment under Rule 56 in the
alternative and has presented a statement of undisputed facts as required by Local Rule 7(h).
Reply at 3. He argues that “there is no prohibition on filing a pre-discovery motion for summary
judgment.” Id. But even so, summary judgment is generally inappropriate where “the parties
have not yet engaged in discovery.” Coleman v. Allstate Ins. Co., 80 F. Supp. 3d 5, 8 (D.D.C.
2015). The D.C. Circuit has repeatedly cautioned that “summary judgment is premature unless
all parties have ‘had a full opportunity to conduct discovery.’” Convertino v. U.S. Dep’t of
Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (citing Liberty Lobby, 477 U.S. at 257); Americable
Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (“As we have stated before,
summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for
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discovery.’” (citing First Chi. Int’l v. United Exch. Co., Ltd., 836 F.2d 1375, 1380 (D.C. Cir.
1988))); see also Celotex, 477 U.S. at 322 (summary judgment appropriate only “after adequate
time for discovery”). Plaintiff has not yet had a chance to obtain evidence relevant to his claim,
and the court declines to consider Defendant’s motion for summary judgment at this early stage.
B. Privacy Act Claim
The court nonetheless grants Defendant’s Rule 12(b)(6) motion because Plaintiff has
failed to state a claim for relief under the Privacy Act. He cannot plausibly show that the
agency’s violation of its obligations under the Privacy Act caused his economic losses. Under
section 552a(g)(1)(D), a plaintiff must establish that an agency failed to comply with its Privacy
Act obligations “in such a way as to have an adverse effect on an individual.” 5 U.S.C.
§ 552a(g)(1)(D). The plain text of the statute thus requires the injures to have been “caused by”
the agency’s actions or omissions. Albright v. United States, 732 F.2d 181, 187 (D.C. Cir. 1984).
In other words, the “adverse effect[s]” a plaintiff suffers must have “result[ed]” from the
agency’s failures. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1124 (D.C. Cir. 2007)
(citations omitted); see also Doe v. Chao, 540 U.S. 614, 619 (2004) (characterizing section
552a(g)(1)(D) as permitting recovery for “breaches of the statute with adverse consequences”).
Plaintiff claims that his economic harms were caused by the Coast Guard’s
misconfiguration of privacy settings on files protected by FOIA and the Privacy Act, which
enabled unidentified individuals to obtain the prosecutorial memorandum central to CNN’s
September 21 article and leak it to the media company. See Opp’n at 4–5. But the CGIS
Investigative Report the Complaint references forecloses this theory. The report reveals that the
misconfiguration of privacy settings occurred on September 22, a day after the September 21
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article was published. See CGIS Report at 6, 28–29. The report also establishes that any
individuals who downloaded legal documents pertaining to Plaintiff did so between September
22 and September 29. See id. at 22, 28–29. CNN could not have obtained the prosecutorial
memorandum at the heart of its September 21 article because of a security lapse that occurred
after the article’s publication. Indeed, it is unclear if the prosecutorial memorandum was even
downloaded from the Coast Guard’s servers between September 22 and September 29. CNN
stated that the prosecutorial memorandum it obtained was dated February 2016, see September
2021 Article, whereas the CGIS report reveals that the only document pertaining to Plaintiff that
was downloaded was dated January 2016, see CGIS Report at 22.
Plaintiff insists that the Coast Guard’s “unlawful disclosure plausibly produced” his
economic harms because the “national dissemination of confidential prosecutorial analysis” by
CNN “materially influenced subsequent institutional decisions” by Nichols College and other
employers. Opp’n at 27. But Plaintiff gets the causation analysis backwards. The potential
Privacy Act violation alleged in the Complaint occurred after the publication of the September
21 Article. And Plaintiff has not suggested that another Privacy Act violation plausibly occurred
prior to the publication of the article. Because Plaintiff has failed to establish any “causal[] link”
between the Coast Guard’s actions and his economic harm, his Complaint does not state a claim
for relief. Albright, 732 F.2d at 186. The court accordingly declines to reach the parties’
arguments about the other elements of a cause of action under the Privacy Act.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT Defendant’s Motion to Dismiss. ECF
No. 7. A separate Order accompanies this Memorandum Opinion.
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Date: September 18, 2026
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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