UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KENNETH CRANDALL,
Plaintiff,
v. Case No. 25-cv-2013-MJS
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
As a veteran himself, Kenneth Crandall wants to become an accredited claims agent with
the U.S. Department of Veterans Affairs (“VA”) so he can assist other veterans seeking benefits.
After the VA denied his application, Crandall asked it to reconsider. And for good measure, he
separately submitted two new applications. But to Crandall’s frustration, the VA never acted on
those later submissions. So, he sued. Through his now-consolidated cases, Crandall asserts a claim
for intentional infliction of emotional distress (“IIED”) under the Federal Tort Claim Act
(“FTCA”) and several claims under the Privacy Act. The Government moves to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 12.) For the reasons that follow,
the Court GRANTS the Government’s motion and DISMISSES Crandall’s claims.
BACKGROUND
The following facts are derived from Crandall’s complaints and accepted as true. Casey v.
McDonald’s Corp., 880 F.3d 564, 567 (D.C. Cir. 2018). Further, because Crandall is proceeding
pro se, the Court construes his claims “in light of all filings, including filings responsive to [the]
motion to dismiss.” Ho v. Garland, 106 F.4th 47, 50 (D.C. Cir. 2024) (citations omitted).
As background, Crandall is a U.S. Navy veteran. (ECF No. 1 (“Compl.”) ¶ 11.)1 In the
early 2010s, he worked for a couple of years as a VA employee, “assisting with developing
compensation claims for veterans.” (Id.) While employed with the VA, Crandall apparently raised
“hundreds of whistleblower actions.” (Id. ¶ 12.) The VA terminated his employment in early 2012,
but Crandall successfully challenged that decision with the Merit Systems Protection Board
(“MSPB”) and was reinstated about a year later, until the VA terminated his employment a second
time in mid-2013. (Id. ¶¶ 12–18.) Crandall likewise appealed that decision to the MSPB, after
which Crandall and the VA reached a settlement in 2014. (Id. ¶¶ 19–20.)
Fast forward to this dispute. In 2018, Crandall applied to become an accredited claims
agent with the VA. (Compl. ¶ 21.) Broadly speaking, claims agents help veterans with benefitsrelated claims before the VA. Congress authorized the VA Secretary to recognize individuals as
claims agents provided that any applicants can satisfy certain statutory criteria and other
requirements the Secretary may set by regulation. See 38 U.S.C. § 5904(a); 38 C.F.R. § 14.629.
In May 2020, the VA denied Crandall’s application. (Compl. ¶ 22.) As Crandall describes
the denial letter, it referenced “alleged emails from … Crandall to Diana Rubens … a former VA
Undersecretary[.]” (2d Compl. ¶ 12.) Crandall’s complaints here do not further describe the emails
or the denial letter, but another federal court summarized both in a prior proceeding:
The denial letter cites numerous emails [Crandall] sent to officials and employees
at the VA … [and] quotes these emails, noting [Crandall] referred to Rubens as
“Dirty D” and a “witch,” and stated he would be “watching” her for a “very long
time.” The letter further notes [Crandall] referred to another VA official as a
pedophile, accused various officials of “horrendous acts as to illegal employee
firings,” and stated that he was “looking forward to a new White Administration.”
1
Many of Crandall’s factual allegations are functionally identical across both of his complaints. (Compare Compl. ¶¶ 11–27, with ECF No. 11 (“2d Compl.”) ¶¶ 1–18.) For simplicity’s sake, where the allegations appear in both complaints, the Court generally cites only to the paragraphs of Crandall’s originating complaint in the lead case (No. 25-cv-2013). The Court separately cites to the complaint from Crandall’s second-filed case (No. 25-cv-2669) as to allegations specific to his Privacy Act claims.
2
[The] denial letter concludes that these emails raise serious concerns about [his]
character and ability to provide valuable assistance to veteran claimants.”
Crandall v. McDonough, 2024 WL 4190867, at *1 (E.D. Pa. Sept. 13, 2024), aff’d as modified,
2025 WL 1703841 (3d Cir. June 18, 2025) (per curiam).2
After receiving the VA’s denial letter in May 2020, Crandall requested reconsideration of
the VA’s decision that same month. (Compl. ¶ 23.) But the VA never responded or issued any
determination on Crandall’s reconsideration request. (Id.) He later submitted two new applications
on a separate track, one in September 2021 and another in February 2023. Again, the VA never
separately acted on those later applications either, even after Crandall’s follow-up. (Id. ¶¶ 24–27.)
In August 2025, Crandall alleges that the VA submitted “unrelated emails” in an MSPB
docket in connection with his appeal of a whistleblower claim. (2d Compl. ¶ 19.) Crandall seems
to be referring to the same emails described above—the ones he sent to Ms. Rubens and others,
and which the VA cited in denying Crandall’s claims-agent application. (See id.)
Proceeding pro se, Crandall filed his first suit in this District in June 2025. (See Compl.)
Through that complaint, Crandall asserts a single IIED claim alleging that the VA’s continued
failure to act on his claims-agent applications—both his request for reconsideration of the original
denial and his two additional applications that followed—amounts to extreme and outrageous
conduct that has caused him severe distress. (Id. ¶¶ 36–42.) Crandall then filed a second lawsuit
in this District in August 2025, asserting various Privacy Act violations stemming from the VA’s
2
Crandall attached the denial letter itself as an exhibit in that case. (Case No. 24-cv-626-JMY, ECF No. 1-1.) Along with the details summarized in the E.D. Pa. ruling, the letter describes other emails Crandall reportedly sent to Ms. Rubens, including one in late 2017 comparing her to a “North Korean Dictator” and another from mid-2018, near the time of Ms. Rubens’ apparent retirement, in which Crandall wrote, “THE WICKED WITCH IS DEAD – PRAISE THE LORD!!” (See id.) Adding to the context above, the letter explained its concerns with Crandall’s behavior as follows: “[I]t is unclear why you continued to mock VA employees for years after your termination. It reflects an unprofessional, vengeful mentality. If you represent veterans in their VA benefits claims, I cannot help but wonder whether you will employ similar tactics during interactions with VA officials, which would certainly detriment veterans.” (See id.)
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alleged use of the emails mentioned above. (See 2d Compl.) Because both complaints spring from
the same overall facts, the Court subsequently consolidated the cases at Crandall’s request. (See
ECF No. 10; Min. Order, Dec. 11, 2025.) Now, the Government moves to dismiss Crandall’s
claims under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (ECF No. 12 (“Mot.”).) The motion is fully
briefed and ripe for decision. (ECF No. 19 (“Opp’n”); ECF No. 20 (“Reply”).)3
LEGAL STANDARDS
Under Rule 12(b)(1), dismissal is warranted when a court “lack[s] … subject-matter
jurisdiction.” Fed. R. Civ. P. 12(b)(1). “In most cases, a plaintiff’s failure to state a claim under
Rule 12(b)(6) does not deprive a federal court of subject-matter jurisdiction.” Brownback v. King,
592 U.S. 209, 217 (2021). But relevant here, “in the unique context of the FTCA, all elements of
a meritorious claim are also jurisdictional.” Id. at 217. This means that if a plaintiff’s “tort claims
fail[] to survive a Rule 12(b)(6) motion to dismiss, the United States necessarily retain[s] sovereign
immunity,” thus “depriving the court of subject-matter jurisdiction” over those claims. Id. at 218;
Cunningham v. EEOC, 2025 WL 1840115, at *1 (D.C. Cir. July 2, 2025) (per curiam).
Under Rule 12(b)(6), dismissal is warranted when a complaint does not “contain sufficient
factual matter, accepted as true, to ‘state a claim to relief 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)).
“[F]acial plausibility” means that the facts pleaded must allow for a “reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Under Rule 12(b)(6), a court must afford the
plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United
States, 677 F.3d 471, 476 (D.C. Cir. 2012) (per curiam) (quoting Schuler v. United States, 617
3
The Court allowed Crandall to file an amended response to the Government’s motion. (ECF No. 17; Min. Order, Mar. 6, 2026.) For the sake of thoroughness, though, the Court reviewed both of Crandall’s briefs.
4
F.2d 605, 608 (D.C. Cir. 1979)). But a court need not accept as true “legal conclusions couched as
factual allegations[,]” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (per curiam)
(citation omitted), nor will mere “recitals of the [legal] elements of a cause of action … suffice”
to forestall a motion to dismiss, L. Xia v. Tillerson, 865 F.3d 643, 650 (D.C. Cir. 2017) (quoting
Iqbal, 556 U.S. at 678).
Finally, in cases involving pro se litigants, courts should apply a “liberal reading to [the]
complaint.” Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). This requires reading
“the entire pleading to determine if any legally cognizable claim can be found,” alongside any
“supplemental material” submitted, including the plaintiff’s opposition brief. Spence v. United
States Dep’t of Veterans Affs., 109 F.4th 531, 538 (D.C. Cir. 2024) (first quoting 5 Charles Alan
Wright, Arthur R. Miller & A. Benjamin Spencer, Federal Practice and Procedure § 1286 (4th
ed. 2021); then quoting Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007)).
ANALYSIS
I. Crandall’s FTCA Claim
“The United States and its agencies are generally immune from suit in federal court absent
a clear and unequivocal waiver of sovereign immunity.” Crowley Gov’t Servs. v. GSA, 38 F.4th
1099, 1106 (D.C. Cir. 2022). “The FTCA provides a limited waiver of the federal government’s
sovereign immunity from damages liability for torts committed by federal employees acting within
the scope of their employment.” Loumiet v. United States, 828 F.3d 935, 941 (D.C. Cir. 2016)
(citing 28 U.S.C. §§ 1346(b), 2674). Specifically, an actionable claim under the FTCA is one:
[1] against the United States, [2] for money damages, … [3] for injury or loss of
property, or personal injury or death [4] caused by the negligent or wrongful act or
omission of any employee of the Government [5] while acting within the scope of
his office or employment, [6] under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.
5
Brownback, 592 U.S. at 212 (alterations in original) (quoting F.D.I.C. v. Meyer, 510 U.S. 471, 477
(1994)); 28 U.S.C. §1346(b). Even when a claim satisfies those six general elements, though, the
FTCA “expressly retains immunity from some tort liability through a number of statutory
exceptions.” Loumiet, 828 F.3d at 941 (citing 28 U.S.C. § 2680). “If one of those exceptions
applies, the court lacks subject-matter jurisdiction to hear the plaintiff’s claims.” Id. (citing
Simmons v. Himmelreich, 578 U.S. 621, 625 (2016)).
Here, the Government seeks dismissal of Crandall’s IIED claim on several grounds. First,
it argues that the “discretionary function” and “intentional tort” exceptions to the FTCA operate
to preserve sovereign immunity over Crandall’s claim. (Mot. at 7–11 (citing 28 U.S.C. § 2680(a),
2680(h).) Second, it argues that Crandall fails to state a viable IIED claim in any case because the
underlying allegations are not extreme or outrageous. (Id. at 11–12.) Agreeing with the
Government’s last argument, the Court finds it unnecessary to reach the others. Even assuming no
statutory exception preserves immunity over Crandall’s claim, it still fails because Crandall does
not allege the sort of extreme and outrageous conduct necessary for a claim of IIED.
Because both parties assume that District of Columbia tort law governs Crandall’s claim,
the Court assumes the same. To plead a viable IIED claim under D.C. law, a plaintiff must allege:
“(1) extreme and outrageous conduct by the defendant that (2) intentionally or recklessly (3)
caused the plaintiff severe emotional distress.” Blackwell v. Planet Fitness Franchising, LLC, 356
A.3d 1251, 1259 (D.C. 2026) (quoting Robertson v. District of Columbia, 269 A.3d 1022, 1033
(D.C. 2022)). “Extreme and outrageous conduct” means behavior that is “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Kerrigan v.
Britches of Georgetown, Inc., 705 A.2d 624, 628 (D.C. 1997)); see also May v. River E. at
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Grandview, 322 A.3d 557, 574 (D.C. 2024) (same). The D.C. Court of Appeals recently reiterated
that this is a “demanding” test—a “high bar.” Blackwell, 356 A.3d at 1259–60.
Here, Crandall’s IIED claim is premised on the VA’s alleged years-long failure to
satisfactorily address his applications to become an accredited claims agent, including his request
for reconsideration of the VA’s original denial and his two additional applications that followed.
(Compl. ¶ 32 (asserting that the VA engaged in “extreme and outrageous conduct by ignoring the
relevant statute and regulations” governing the claims-agent application process); see also id. ¶¶
37–42 (similar); see also Opp’n at 17–18 (describing the VA’s alleged failure to respond to his
reconsideration request or adjudicate his subsequent applications as “extreme and outrageous”).)
These allegations fall short of extreme and outrageous conduct. Although Crandall may be
frustrated by these circumstances, a federal agency’s asserted inaction in rendering a determination
on a discretionary application to represent claimants before the agency does not qualify as conduct
that is “beyond all possible bounds of decency,” “atrocious,” or “utterly intolerable in a civilized
community.” Blackwell, 356 A.3d at 1259. Tellingly, Crandall does not point to even a single
case—whether from the District of Columbia or elsewhere—that allowed an IIED claim on these
or similar facts. Heeding the D.C. Court of Appeals’ admonition that the necessary showing is
“demanding” and imposes a “high bar,” Crandall’s allegations simply do not rise to the level of
extreme and outrageous conduct to support a viable IIED claim under D.C. law.4
4
In fact, the D.C. Court of Appeals recently questioned whether the sort of inaction Crandall alleges can ever suffice to support a viable IIED claim. See May, 322 A.3d at 574 (“We read appellants’ more general assertion to argue that the District acted in an outrageous or extreme manner by failing to take action, and we are unable to identify controlling precedent that finds the absence of action to be sufficiently outrageous as to substantiate an IIED claim.”). The Court need not go that far here. Even assuming inaction can qualify as extreme and outrageous in some circumstances, Crandall’s allegations certainly do not fit that bill.
7
Without plausible allegations of extreme and outrageous conduct, Crandall cannot make
out an IIED claim, and without a plausible IIED claim, he cannot establish a waiver of sovereign
immunity under the FTCA. Accordingly, the Court dismisses IIED claim under the FTCA.5
II. Crandall’s Privacy Act Claims
The Court turns next to Crandall’s Privacy Act claims. Congress enacted the Privacy Act
of 1974 “to protect 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) (citation modified). To that
end, the Act “regulate[s] the collection, maintenance, use, and dissemination of information by
[federal] agencies,” outlines “detailed instructions for managing their records,” and “provides for
various sorts of civil relief to individuals aggrieved by failures on the Government’s part to comply
with the requirements.” Doe v. Chao, 540 U.S. 614, 618 (2004).
Broadly speaking, the Privacy Act authorizes four different types of claims. See 5 U.S.C.
§ 552a(g)(1)(A)–(D); Jackson v. Kennedy, 2026 WL 172440, at *1 (D.D.C. Jan. 22, 2026)
(describing the various causes of action). The first two categories apply when an agency either
fails to amend a record as requested, 5 U.S.C. § 552a(g)(1)(A), or refuses to permit access to a
record, id. § 552a(g)(1)(B). The third category applies when an agency “fails to maintain any
record … with such accuracy, relevance, timeliness, and completeness as is necessary to assure
fairness … and consequently a determination is made which is adverse to [an] individual.” Id. §
552a(g)(1)(C). And the fourth category serves as a catch-all, authorizing suit when an agency’s
5
Crandall separately asserts a standalone claim titled “Respondeat Superior.” (Compl. ¶¶ 43–47.) “Respondeat superior is a doctrine that allows an employer to be held vicariously liable for the acts of his employees committed within the scope of their employment.” Daniels v. WMATA, 2026 WL 1803661, at *2 (D.D.C. June 23, 2026) (citation omitted). In other words, it “is not an independent tort claim, but rather a legal theory of vicarious liability that transfers liability from an agent to its principals.” Lewis v. District of Columbia, 768 F. Supp. 3d 76, 114–15 (D.D.C. 2025); see also Daniels, 2026 WL 1803661, at *2 (“It is clearly [] established law that respondeat superior is not a separate cause of action” (citation omitted)). With no viable IIED claim, there is nothing for Crandall to pursue under a theory of respondent superior.
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failure to adhere to any of the Privacy Act’s statutory obligations “ha[s] an adverse effect” on an
individual. Id. § 552a(g)(1)(D).
Crandall’s claims here implicate the final catch-all category. He seeks monetary damages
based on the VA allegedly: (1) not publishing a system of records notice (“SORN”) covering the
VA’s use of Microsoft Outlook (see 2d Compl. ¶¶ 20–23 (Count I)); (2) improperly disseminating
his emails in connection with the VA’s adjudication of his claims-agent application(s) and an
MSPB appeal proceeding (id. ¶¶ 24–31 (Counts II and III)); and (3) maintaining records that he
says describe his exercise of First Amendment rights (id. ¶ 32–35 (Count IV)).
To state a viable claim under Section 552a(g)(1)(D), Crandall must allege facts plausibly
establishing that: “(1) the agency violated a provision of the Act; (2) the violation was intentional
or willful; and (3) the violation had an ‘adverse effect’ on the plaintiff in the form of actual
damages.” Chichakli v. Tillerson, 882 F.3d 229, 233 (D.C. Cir. 2018) (citations omitted). Further,
under the Privacy Act, a claim must generally be brought “within two years from the date on which
the cause of action arises,” except in limited circumstances not applicable here. 5 U.S.C. §
552a(g)(5); Kursar v. Transp. Sec. Admin., 442 F. App’x 565, 567 (D.C. Cir. 2011) (per curiam).
A. Most of Crandall’s Privacy Act Claims Are Barred By Res Judicata
As previewed already, this is not Crandall’s first case against the VA related to these issues.
He already sued the VA for Privacy Act violations—among other claims—stemming from the
VA’s alleged misuse of the same emails underlying his claims here. Given that background, the
Court concludes that many of Crandall’s claims are barred by res judicata.
Under the doctrine of res judicata, “successive litigation of an issue of fact or law actually
litigated and resolved in a [prior] valid court determination” is precluded when it involves a party
to the first case. Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (citation omitted). One aspect of res
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judicata is the principle of claim preclusion, which bars a subsequent lawsuit “if there has been
prior litigation (1) involving the same claims or cause of action, (2) between the same parties or
their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of
competent jurisdiction.” Nat. Res. Def. Council v. EPA, 513 F.3d 257, 260 (D.C. Cir. 2008)
(quoting Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)). Importantly, claim
preclusion “prevents parties from raising issues that could have been raised and decided in a prior
action—even if they were not actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashions
Group, Inc., 590 U.S. 405, 412 (2020). And because “res judicata belongs to courts as well as to
litigants,” the Court may properly raise the issue on its own. See Stanton v. D.C. Court of Appeals,
127 F.3d 72, 77 (D.C. Cir. 1997); Rosendahl v. Nixon, 360 F. App’x 167, 168 (D.C. Cir. 2010)
(per curiam) (similar).
In Crandall’s prior case against the VA, the U.S. District Court for the Eastern District of
Pennsylvania dismissed with prejudice Crandall’s claims under the Privacy Act due to his failure
to establish “any actual harm, adverse effects, or pecuniary damages because of any purported
violation” concerning the VA’s use of the emails at issue, which the Third Circuit affirmed.
Crandall, 2024 WL 4190867, at *5 (E.D. Pa. Sept. 13, 2024), aff’d, 2025 WL 1703841 (3d Cir.
June 18, 2025). Those prior claims closely mirror Crandall’s claims here, at least insofar as they
relate to the VA’s non-approval of his application to become a claims agent. Crandall previously
asserted that the VA’s allegedly improper use and dissemination of his emails to Ms. Rubens (and
others) caused the VA to reject his accreditation as a claims agent; he took issue with the VA
maintaining records that purportedly reflected his First Amendment activity; and he faulted the
VA’s compliance with SORN requirements for a database (the “VIEWS system”) where he alleged
those emails were maintained. See Crandall, 2024 WL 4190867, at *5–6. Except for Crandall’s
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current allegations surrounding the VA’s alleged August 2025 disclosure of his emails in an MSPB
appeal, his current claims all assert the same sorts of statutory violations based on the same events:
the VA’s alleged mishandling of his emails and his non-approval as an accredited claims agent.
See, e.g., Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (citation omitted) (explaining
that two suits implicate the same cause of action when “they share the same nucleus of facts”).
Although Crandall’s prior claims were focused on the VA’s original denial of his application,
whereas his current claims focus more on the VA’s inaction on his reconsideration request and
his follow-on applications, those events had all transpired by the time Crandall filed suit in his
original case back in September 2023. Crandall asked for reconsideration in May 2020 and filed
his additional applications in September 2021 and February 2023. (See 2d Compl. ¶¶ 14–16.) Thus,
Crandall certainly could have raised the latest iteration of his Privacy Act claims during the prior
E.D. Pa. litigation but did not. Claim preclusion bars him from doing so now. Capitol Hill Grp. v.
Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 491 (D.C. Cir. 2009) (“[R]es judicata ...
bars relitigation not only of matters determined in a previous litigation but also ones a party could
have raised[.]” (quoting NRDC v. Thomas, 838 F.2d 1224, 1252 (D.C. Cir. 1988))). These claims
are therefore dismissed with prejudice on res judicata grounds.6
6
The Government separately argues that these claims would be barred by the Privacy Act’s two-year statute of limitations. The Court agrees. Crandall knew that the VA relied on his emails to Ms. Rubens (and other agency officials) in denying his first accreditation application. And under Crandall’s theory, the same alleged Privacy Act violations that influenced that original denial decision similarly caused the VA to take no action on his May 2020 reconsideration request and his subsequent applications from September 2021 and February 2023. But Crandall failed to file his claims until June 2025—more than two years later. (And perhaps not coincidentally, just a couple months after the Third Circuit affirmed the dismissal of his E.D. Pa. case.) “The law in this Circuit has long been clear that, ‘in a normal Privacy Act claim, the cause of action does not arise and the statute of limitation does not begin to run until the plaintiff knows or should know of the alleged violation.’” Agelli v. Burwell, 164 F. Supp. 3d 69, 75 (D.D.C. 2016) (alteration in original) (quoting Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987)). Because Crandall was at least on inquiry notice of the VA’s alleged violations by no later than February 2023, his failure to file suit until June 2025 means that his Privacy Act claims related to his claims-agent application(s) are time barred.
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B. Crandall’s Newest Privacy Act Claim Is Not Plausible
That leaves Crandall’s claims to the extent they grow out of the VA’s recent alleged
disclosure of his emails in connection with an MSPB appeal in August 2025. On that score, the
Court agrees with the Government that Crandall fails to identify any resulting “actual damages”
related to that activity. (Mot. at 15–16; Reply at 5–6.) Indeed, Crandall fails to allege any specific
negative consequences that flowed from the challenged disclosure, let alone in the form of “actual
damages” or pecuniary loss. Insofar as Crandall is relying on allegations of “mental distress,
emotional trauma, embarrassment, [and] humiliation” (2d Compl. ¶¶ 23, 27, 31, 35), these sorts of
harms cannot suffice. See, e.g., FAA v. Cooper, 566 U.S. 284, 298 (2012) (“[W]e think it likely
that Congress intended ‘actual damages’ in the Privacy Act to mean special damages for proven
pecuniary loss.”); Stewart v. Kendall, 578 F. Supp. 3d 18, 23 (D.D.C. 2022) (“[D]amages for
mental or emotional distress are not sufficient to maintain a Privacy Act claim.” (alteration in
original)). More, and separately, Crandall fails to plausibly allege how the VA’s introduction of
his own emails in his own “appeal for whistleblower retaliation” (2d Compl. ¶ 19) would be an
“intentional or willful” violation of the Act—i.e., activity “so patently egregious and unlawful that
anyone understanding the conduct should have known it unlawful.” Rtskhiladze v. Mueller, 110
F.4th 273, 278–79 (D.C. Cir. 2024). An agency’s use of email communications that an individual
affirmatively and voluntarily sent to agency officials to defend itself from legal claims the
individual is pursuing against the agency, whether before the MSPB or otherwise, does not strike
the Court as any obvious violation of the statute, and Crandall does not offer any clear
explanation—whether in his complaint or his opposition—to indicate otherwise.
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Because Crandall does not establish any actual damages caused by the alleged violations
associated with the MSPB appeal, and because he fails to show an intentional or willful violation
in any event, his remaining Privacy Act claims fail as a matter of law under Rule 12(b)(6).
III. Leave To Amend
One final point remains. Toward the end of his opposition, Crandall asks for a chance to
amend his complaint(s) to provide any missing “factual information” that might be necessary. (See
Opp’n at 26.) But as to many of Crandall’s claims, the Court’s dismissal on res judicata grounds
necessarily operates as a dismissal with prejudice. See, e.g., Lamont v. Proskauer Rose, LLP, 881
F. Supp. 2d 105, 113 (D.D.C. 2012); Arnold v. Sec'y of the Navy, 2020 WL 1930393, at *6 (D.D.C.
Apr. 21, 2020). As to Crandall’s IIED claim and his Privacy Act claims stemming from the alleged
MSPB appeal disclosure, his request is procedurally infirm. Under D.C. Circuit precedent, a party
wishing to amend must file “a motion for leave to amend [a] complaint and attach[] a proposed
amended complaint.” Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012) (citing
Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006)). And “[a] bare request in an opposition
to a motion to dismiss—without any indication of the particular grounds on which amendment is
sought—does not constitute a motion within the contemplation of Rule 15(a).” Id. (quoting
Belizan, 434 F.3d at 582); see also U.S. ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d
1251, 1259 (D.C. Cir. 2004) (same). These requirements are equally applicable to pro se litigants.
See, e.g., Lamb v. Millennium Challenge Corp., 573 F. Supp. 3d 346, 354 (D.D.C. 2021) (“[I]t is
well settled that a plaintiff, even when proceeding pro se, may not amend his complaint through
an opposition brief.”). At this point, Crandall has not moved for leave to amend or submitted a
proposed amended complaint. Accordingly, to the extent Crandall legitimately believes that he can
plead additional facts to address the deficiencies prompting dismissal of his IIED claim and his
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Privacy Act claims related to the MSPB appeal—and only those claims—he may file a motion
seeking leave to amend under Fed. R. Civ. P. 15, with a copy of any proposed amended complaint
attached pursuant to Local Civil Rule 15.1.
CONCLUSION
The Court GRANTS the Government’s motion to dismiss (ECF No. 12) and DISMISSES
Crandall’s claims in full. The Court will issue a separate order so stating.
Dated: September 24, 2026
MATTHEW J. SHARBAUGH
United States Magistrate Judge
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