FLETCHER v. U.S. DEPARTMENT OF JUSTICE

Filing 19

MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Rudolph Contreras on 2/21/14.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PAUL JULIUS FLETCHER,

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Plaintiff,
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v.
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U.S. DEPARTMENT OF JUSTICE, )
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Defendant.
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Civil Action No. 13-0447 (RC)

MEMORANDUM OPINION
Plaintiff, proceeding pro se, learned from a Freedom of Information Act (“FOIA”) request
in 2011 that records pertaining to his arrest and indictment in 1974 were destroyed in 1991. See
Fletcher v. U.S. Dep’t of Justice, 905 F. Supp. 2d 263 (D.D.C. 2012) (“Fletcher I”) (dismissing
FOIA/Privacy Act action). In what is captioned “Complaint for Declaratory and Injunctive
Relief,” ECF No. 1, plaintiff now sues the Department of Justice (“DOJ”) for $200 million in
damages for injuries he allegedly suffered as a result of the destroyed records. Plaintiff brings his
claims under the Privacy Act, 5 U.S.C. § 552a, the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 701-06, the Federal Records Act (“FRA”), 44 U.S.C. §§ 2901-10, and the First and Fifth
Amendments to the Constitution. Id. at 1.
Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be
granted. Def.’s Mot. to Dismiss Pl.’s Compl., ECF No. 13. Plaintiff has opposed the motion, see
Pl.’s Mot. to Respond to Def.’s Mot. to Dismiss Pl.’s Compl., ECF No. 15, and defendant has
replied, Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to Dismiss Pl.’s Compl., ECF No. 16. Upon
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consideration of the parties’ submissions, the Court will grant defendant’s motion and dismiss the
case.
I. BACKGROUND
This action stems from Fletcher I where defendant “conced[ed] the impropriety of its
destruction of [p]laintiff's records . . . .” Fletcher, 905 F. Supp. 2d at 267. Because in that case
brought under the FOIA and the Privacy Act, “it [was] undisputed that the requested documents do
not exist, and none of [p]laintiff's other requested relief (perhaps excluding costs) [was] available,”
the Court granted defendant’s motion and dismissed the case without prejudice. Id. at 268-69.
The Court found that “the Government's explanation, which attributes the destruction to
inadvertence and negligent error, . . . vitiates [p]laintiff's assertion of willfulness or deliberate
destruction.” Id. at 267-68. It noted that “[t]o the extent [p]laintiff believes himself entitled to
some additional form of monetary relief for the improper destruction [of records], he may bring a
separate action so requesting,” or “if he subsequently suffers an adverse decision as a result of the
records destruction,” he could “revive” his Privacy Act claim. Id. at 268-69. The Court also
noted that plaintiff could “seek documents from the Superior Court[,] [but] offer[ed] no opinion as
to [plaintiff’s] likelihood of success in any of these ventures.” Id. at 269.
Plaintiff commenced this action in April 2013, five months after Fletcher I. He describes
his “injury as an inability to obtain through FOIA, information necessary to accomplish
[p]laintiff[’]s mission . . . to understand the charges, and convictions, which is traceable directly to
the defendants’ policy and practice of unlawfully [destroying his] records . . . .” Compl. at 3-4.
Plaintiff concludes that “DOJ negligently failed to maintain [his] case files by destroying them,”
and, as a result, he “has suffered great mental anguish and anxiety, producing physical symptoms
based on defendant’s conduct.” Id. at 11.
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II. LEGAL STANDARDS
1. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of
limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is the
plaintiff's burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
Because subject matter jurisdiction focuses on the Court's power to hear a claim, the Court
must give the plaintiff's factual allegations closer scrutiny than would be required in deciding a
Rule 12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal Order of Police
v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is not limited to the allegations
contained in the complaint. See Wilderness Soc'y v. Griles, 824 F. 2d 4, 16 n.10 (D.C. Cir. 1987).
2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” in order to give the defendant fair notice of the claim and the grounds upon
which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of
success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457
U.S. 800 (1982). A court considering such a motion presumes that the complaint's factual
allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v.
Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to
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plead all elements of a prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511-14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25, 28-29 (D.D.C. 2010).
Nevertheless, “[t]o survive a motion to dismiss, a complaint must 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)). This
means that a plaintiff's factual allegations “must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient
to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's
legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions
that are couched as factual allegations. See Twombly, 550 U.S. at 555. In deciding a motion to
dismiss under Rule 12(b)(6), the Court may take judicial notice of facts litigated in a prior related
case. See Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 49-50 (D.D.C. 2012).
III. DISCUSSION
1. Subject Matter Jurisdiction
Defendant argues that plaintiff’s claims for monetary damages under the APA and the
Constitution are barred by sovereign immunity. Def.’s Mem. of P. & A. at 5-9. Sovereign
immunity shields the federal government and its agencies from suit and is “jurisdictional in
nature.” American Road & Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72, 79 (D.D.C. 2012)
(quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (other citations omitted). The government
may waive immunity, but such a waiver “must be unequivocally expressed in statutory text, and
will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted); see also United
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States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be
sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”). To
survive a motion to dismiss under Rule 12(b)(1), “[t]he plaintiff bears the burden of establishing
both the court's statutory jurisdiction and the government's waiver of its sovereign immunity.”
American Road & Transp. Builders Ass’n, 865 F. Supp. 2d at 80 (citing Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 377 (1994); Tri–State Hosp. Supply Corp. v. United States, 341 F.3d
571, 575 (D.C. Cir. 2003); Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006)).
Defendant argues correctly that Congress has not waived the federal government’s
immunity from suit for claims seeking monetary damages under either the APA or the
Constitution. The APA is a limited waiver statute that authorizes a claim against the United
States for “relief other than money damages.” 5 U.S.C. § 702; see § 706 (conferring jurisdiction
upon the court “to compel agency action unlawfully withheld or unreasonably delayed; and [to]
hold unlawful and set aside agency action, findings, and conclusions” upon making certain
enumerated findings).
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, is a limited
waiver statute that authorizes a claim for damages against the United States but only “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.” 28 U.S.C. §
1346(b)(1). Such consent does not encompass tort claims arising, as here, under the Constitution,
FDIC, 510 U.S. at 476-78, or claims arising, as here, “out of the failure of the United States to
carry out a federal statutory duty in the conduct of its own affairs.” Hornbeck Offshore Transp.,
LLC v. U.S., 569 F.3d 506, 509 (D.C. Cir. 2009) (citation and internal quotation marks omitted).
The Court finds that sovereign immunity shields defendant from monetary damages under
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the APA and the Constitution and, thus, grants defendant’s motion to dismiss these claims under
Rule 12(b)(1).
2. Failure to State a Claim
A. The Federal Records Act
Defendant seeks dismissal of the claim brought under the FRA on the ground that “no
direct private right of action exists.” Def.’s Mem. of P. & A. at 10. In Armstrong v. Bush, the
United States Court of Appeals for the District of Columbia Circuit specifically held “that the FRA
precludes direct private actions to require that agency staff comply with the agency’s
recordkeeping guidelines.” 924 F.2d 282, 297 (D.C. Cir. 1991). The Court explained that
“[i]nstead, the APA authorizes the district court to entertain a properly pleaded claim that the
Archivist or an agency head has breached the statutory duty to take enforcement action to prevent
an agency official from destroying records in contravention of the agency’s recordkeeping
guidelines or to recover records unlawfully removed from an agency.” 1 Id. The instant
complaint does not present such a claim, and “the availability of [declaratory] relief presupposes
the existence of a judicially remediable right.” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir.
2011) (citation and internal quotation marks omitted) (alteration in original). Hence, the Court
grants defendant’s motion to dismiss the FRA claim under Rule 12(b)(6).

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The Court of Appeals did not discuss what remedies are available when a statutory breach is
found. However, in Fletcher I, “the Government mention[ed] a Special Counsel investigation,
criminal penalties, or reporting of the incident to the National Archives and Records
Administration (“NARA”)” as “potential remedies for . . . improper [record] destruction,” and
indicated that it had reported the incident involving plaintiff’s records to NARA. Fletcher, 905 F.
Supp. 2d at 268. Hence, any potential claim under the APA concerning a report to NARA appears
to be moot, the criminal prosecution option is beyond this court’s civil jurisdiction, and the Special
Counsel investigation option appears impractical for an event that took place in 1991.
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B. The APA Claim for Equitable Relief
The APA authorizes judicial review of final agency action by persons “adversely affected”
by such action and for which there is no other adequate judicial remedy. 5 U.S.C. § 702;
Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006); see accord American Road & Transp.
Builders Ass’n v. EPA, 865 F. Supp. 2d at 81 (“[T]he waiver of sovereign immunity under § 702 is
limited by the ‘adequate remedy’ bar of § 704.”) (quoting Nat'l Wrestling Coaches Ass'n v. Dep't
of Educ., 366 F. 3d 930, 947 (D.C. Cir. 2004)). The only discernible final agency action in this
case is defendant’s denial of plaintiff’s FOIA request, which plaintiff properly challenged under
the FOIA in Fletcher I. Because the FOIA forecloses plaintiff’s “cause of action under the APA,”
Reliable Automatic Sprinkler Co., Inc., v. Consumer Prod. Safety Com’n, 324 F.3d 726, 731 (D.C.
Cir. 2003), the Court grants defendant’s motion to dismiss the APA claim under Rule 12(b)(6).
C. The Privacy Act Claim
Plaintiff alleges that defendant’s destruction of his records violated subsections (e)(1),
(e)(2), (e)(6), (e)(9), and (e)(10) of the Privacy Act. Compl. at 11. These provisions generally
require that records collected and maintained in an agency’s system of records contain “only such
information about an individual as is relevant and necessary to accomplish [an authorized] purpose
of the agency,” 5 U.S.C. § 552a(e)(1), and that such records be maintained in a manner that assures
their accuracy, completeness, timeliness and relevancy.
The Privacy Act provides for civil remedies in the form of actual damages of no less than
$1,000 and litigation costs upon a showing that an agency has failed to comply with the foregoing
provisions “in such a way as to have an adverse effect on an individual.” § 552a(g)(1)(D). The
United States may be held liable for such damages, however, only if the court “determines that the
agency acted in a manner which was intentional or willful.” Id. § 552a(g)(4); see accord Hurt v.
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D.C. CSOSA, 827 F. Supp. 2d 16, 20 (D.D.C. 2011) (“The intent element of a Privacy Act damages
claim is a high hurdle to clear . . . . [A] violation of the statute ‘must be so patently egregious and
unlawful that anyone undertaking the conduct should have known it unlawful.’ ”) (quoting
Maydak v. U.S., 630 F.3d 166, 179 (D.C. Cir. 2010)).
In support of his argument that defendant acted willfully or intentionally, plaintiff asserts
that his “case files were sought to be disposed of to prevent detection of DOJ improprieties that
plaintiff was never indicted for the charges he was convicted of.” Pl.’s Opp’n at 4. Plaintiff has
not substantiated this claim by, for example, showing that his conviction has been invalidated or
supplying a court decision that has even addressed his accusations. Regardless, plaintiff’s
argument on the intent element is belied by the Court’s previous finding to the contrary. See
Fletcher, 905 F. Supp. 2d at 267-68 (“[T]he Government's explanation, which attributes the
destruction to inadvertence and negligent error, . . . vitiates [p]laintiff's assertion of willfulness or
deliberate destruction.”). Relying on a factually developed record, the Court reasoned:
Indeed, the destruction occurred in 1991--twenty years before ]p]laintiff's
FOIA request. This is clearly not a situation in which the Government
destroyed records to avoid disclosure. The documents sought, moreover,
are hardly clandestine materials; rather, the indictment and judgment of
conviction were (and may still be) publicly available from the Superior
Court.
Id. at 268. The Court agrees with this reasoning and, thus, has no basis to find that defendant’s
conduct rose to the level of violating the Privacy Act. Although this determination defeats the
Privacy Act claim, the Court, for the sake of finality, will address why plaintiff would not be
entitled to damages even if a violation had occurred.
In assessing the same injury asserted here, i.e., the inability to obtain records under the
FOIA to challenge a conviction, the Court in Fletcher I found that plaintiff had not pleaded an

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injury sufficient to recover actual damages under the Privacy Act because “there has not yet been
any adverse determination against [p]laintiff from the destruction of records.” Id. (citing
Chambers v. U.S. Dept. of Interior, 568 F.3d 998, 1007 (D.C. Cir. 2009)). Although the Court
indicated that plaintiff could “revive” his Privacy Act claim should he suffer an adverse
determination, the instant claim does not suffice because it is based on the same injury already
determined to provide no basis for recovery under § 552a(g)(1)(C). See Fletcher, 905 F. Supp. 2d
at 268. Subsection (g)(1)(C), however, applies to violations of the amendment and accuracy
provisions set out at subsection (d) of the Privacy Act. This action is different insofar as plaintiff
alleges violations of the record maintenance provisions set out at subsection (e), which are
redressed under the “catch-all [remedial] provision” set forth at § 552a(g)(1)(D). Deters v. U.S.
Parole Com’n, 85 F.3d 655, 660 (D.C. Cir. 1996). Despite the differences, the assessment of
whether plaintiff is entitled to damages is the same in a “suit brought under the provisions of
subsection (g)(1)(C) or (D).” § 552a(g)(4).
The catch-all provision authorizes a cause of action based on an “adverse effect” (as
opposed to an adverse determination). Chambers, 568 F.3d at 1007, n.7 (citation omitted).
Because the requested court documents might be available from the Superior Court where they
originated, see Fletcher, 905 F. Supp. 2d at 267-68, plaintiff cannot show an adverse effect from
the agency’s destruction of copies of the same records. See Pl.’s Opp’n at 3-4 (asserting that he
lost his “right to appeal his conviction” and to seek post-conviction relief because defendant
destroyed “[a]ll . . . records relating to plaintiff[’s] arrest, indictment or information, [and] trial
finding of guilty”). Plaintiff also states that his “case files should be authenticated,” id. at 4, but
defendant is not responsible for authenticating court documents. See Fletcher, 905 F. Supp. 2d at
267 (“Plaintiff neglects the logical answer that [his] indictment was obtained from court, not
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Government, records . . . .”); see also id. at 268 (“An agency does not control a record which has
been destroyed . . . and it is under no obligation to obtain a duplicate of or to re-create a record in
order to fulfill a FOIA request.”) (quoting James v. U.S. Secret Serv., 811 F. Supp. 2d 351, 358
(D.D.C. 2011) (citations omitted), aff'd, No. 11–5299, 2012 WL 1935828 (D.C. Cir. May 11,
2012) ( per curiam )). Hence, the Court grants defendant’s motion to dismiss the Privacy Act
claim under Rule 12(b)(6).
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss the case under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) is granted. A separate Order accompanies this
Memorandum Opinion.

________/s/____________
RUDOLPH CONTRERAS
United States District Judge
Date: February 21, 2014

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