UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


KRIEGER, ROY W.

v.

FADELY, KATHLYNN G.


99-5311a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: After working for four years as a  trial
attorney in the Civil Division of the Department of  Justice, Roy W.
Krieger returned to private practice. The  first law firm he joined
went bankrupt. Six months later,  Krieger found work at a second firm
and remained there for  a year before leaving to join a third. The
third firm fired him  after he had been there a little more than a
year. Krieger  believes Kathlynn Fadely, his immediate supervisor at
Justice  and his co-counsel in a lengthy trial still ongoing when he 
resigned, instigated his firing. His complaint named Fadely,  the
Justice Department and the United States as defendants.


The Attorney General certified that Fadely was acting  within the scope
of her employment with respect to local law  counts 1 through 6 and
moved to substitute the United States  for Fadely as a defendant under
28 U.S.C. s 2679(d)(1). Two  days later, the district court issued an
order directing the  substitution.


Krieger objects that the district court acted too precipitous- ly, that
the local rule entitled him to eleven days to respond,  and that he
was therefore improperly denied an "opportunity  to be heard." Brief
for Appellant at 10. He has a point.  Krieger should have been heard,
particularly since the effect  of the substitution was to render the
defendant--now the  United States--completely immune on three counts
(for defa- mation--count 1--and interference with contract--counts 5 &
 6). See Gutierrez de Martinez v. Lamagno, 515 U.S. 417,  427-29
(1995); Williams v. United States, 71 F.3d 502, 505-06  (5th Cir.
1995). The trouble for Krieger is that in the eleven  months between
the substitution and the dismissal of his  complaint, he voiced not a
word of protest to the district  court. His objection to the
substitution order appeared for  the first time on appeal. Had he made
his objection known to  the district court, the problem could easily
have been cured.  The court could have vacated its order and treated
the matter  de novo, in light of whatever evidence and arguments


then mustered. That Krieger had not objected immediately  to the
certification would not have been held against him.  Rule 46 of the
Federal Rules of Civil Procedure provides that  "if a party has no
opportunity to object to a ruling or order at  the time it is made,
the absence of an objection does not  thereafter prejudice the party."
See Insurance Servs. of  Beaufort, Inc. v. Aetna Cas. & Sur. Co., 966
F.2d 847, 852  (4th Cir. 1992). In any event, Krieger had a duty to
speak  out and make his objection known--if, in fact, he had an 
objection. We add the qualification because Krieger's silence  may
have been for tactical reasons: although the United  States had
immunity on some of the counts, it had a deeper  pocket than Fadely on
others. See Gutierrez de Martinez,  515 U.S. at 427. Krieger's failure
to object, for whatever  reason, cannot be excused. To use the
terminology of United  States v. Olano, 507 U.S. 725, 732 (1993), his
neglect in the  district court at least "forfeited" his right to raise
the issue in  this court. Id. at 732; see also, e.g., Singleton v.
Wulff, 428  U.S. 106, 120 (1976); Doe v. DiGenova, 779 F.2d 74, 89
(D.C.  Cir. 1985). We may go further and say, again in the Olano 
phrasing, that he "waived" the issue. 507 U.S. at 733. When  the
government moved to dismiss counts 1, 5 and 6 on the  basis of its
immunity, Krieger--rather than opposing on the  ground that the United
States was improperly substituted for  Fadely--stated to the district
court that he could "not in good  faith oppose" the motion.
Plaintiff's Response in Opposition  to Defendants' Motion to Dismiss


One of Krieger's other contentions relates to the district  court's
dismissal, for failure to state a cause of action, of  count 8, which
alleged that "[t]hrough the acts and omissions  of Defendant Fadely
within the scope of her employment,  Defendant DOJ wrongfully
disclosed to unauthorized persons  records concerning Plaintiff
subject to protection under the  Privacy Act, 5 U.S.C. s 552a(b)."
Earlier paragraphs, incor- porated by reference, alleged that Fadely
had precipitated  Krieger's firing by "secretly" calling the senior
partner in  Krieger's firm and telling him that Krieger's performance
at  the Justice Department "had been deficient." The district  court
dismissed count 8 on the basis that Krieger failed to 


"identify any 'records' or arguably confidential information  that has
been wrongly disclosed." Krieger v. Fadely, Civ.  No. 98-1703, mem.
op. at 15 (D.D.C. Aug. 9, 1999) ("mem.  op.").


Among the elements of a civil action for damages under the  Privacy Act
are that the agency disclosed "any record which  is contained in a
system of records by any means of communi- cation to any person, or to
another agency, 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.  s 552a(b); see Pilon v. United States Dep't of
Justice, 73  F.3d 1111 (D.C. Cir. 1996); Tomasello v. Rubin, 167 F.3d
612  (D.C. Cir. 1999). If his lawsuit went forward, there would  come
a time when Krieger would have to identify the particu- lar records
Fadely unlawfully disclosed. But that point sure- ly was not as early
as the pleading stage. Rule 8(a)(2) of the  Federal Rules of Civil
Procedure requires only a "short and  plain" statement of the claim
for relief. Factual detail is  unnecessary. See Leatherman v. Tarrant
County Narcotics  Intelligence & Coordination Unit, 507 U.S. 163, 168
(1993);  Conley v. Gibson, 355 U.S. 41, 47 (1957). The district court 
observed that it did not have to take as true legal conclusions  cast
as factual allegations when deciding a Rule 12(b)(6)  motion. Mem. op.
at 15 (citing Kowal v. MCI Communica- tions Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994)). What legal  conclusions the court had in mind is
uncertain. The district  court agreed with the legal proposition that
if Fadely's state- ments revealed the contents of protected records
this would  be actionable, despite the fact that Fadely's statements
were  not themselves records. See Bartel v. FAA, 725 F.2d 1403,  1408
(D.C. Cir. 1984). But according to the court, Krieger  had not
"alleged that Fadely's statements revealed any"  information in a
protected record. This is not accurate. The  complaint claimed that
"records" concerning Krieger were  wrongfully disclosed, which
necessarily means that informa- tion in records had been revealed.
True, this does not give  much detail, but complaints "need not plead
law or match  facts to every element of a legal theory," Bennett v.
Schmidt,  153 F.3d 516, 518 (7th Cir. 1998). We agree with Judge 


Easterbrook, writing for the court in Bennett, that using Rule 
12(b)(6) rather than summary judgment under Rule 56 to  weed out what
appear to be factually-deficient cases may be  incompatible with Rule
8. See 153 F.3d at 518-19.


In short, Krieger's Privacy Act count alleged the essential  elements
of his claim and put the government on notice.  Nothing more was
required to survive a motion to dismiss for  failure to state a claim.
Count 8 therefore should be reinstat- ed.


We have considered Krieger's other arguments and reject  them
substantially for the reasons given in the district court's 
memorandum opinion and order dismissing the complaint  under Rule
12(b)(1) and (6) of the Federal Rules of Civil  Procedure.


* * *


For the foregoing reasons, the decision of the district court 
dismissing Krieger's complaint is


Affirmed in part and reversed in part.