Carlson v. United States Department of Energy

Filing 63

MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack Denying 56 MOTION for Order, and Granting 48 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction . (jjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROLF ERIK CARLSON,
Plaintiff,
v.

Civ. No. 1:17-cv-00784-RB-GJF

UNITED STATES DEPARTMENT
OF ENERGY,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the United States Department of Energy’s
(Defendant or the DOE) Motion to Dismiss (Doc. 48) and Plaintiff Rolf Erik Carlson’s Motion to
Investigate Whether Defendant’s Counsel Provided Unlawful Uncompensated Services to the
Government (Doc. 56). Plaintiff brought suit alleging that the DOE failed to add four specific
documents to his Personnel Security File (PSF) as he had requested, and the DOE now presents a
sworn affidavit that the disputed materials were added to Plaintiff’s file. Having considered the
parties’ submissions and the relevant law, the Court will deny Plaintiff’s motion to investigate and
grant Defendant’s motion to dismiss as there is no longer a live case or controversy at issue.
I. Background
On July 31, 2017, Plaintiff commenced this lawsuit alleging that Defendant violated
several provisions of the Privacy Act, 5 U.S.C. § 552a, by denying his requests to amend and
review materials in his PSF. (See Doc. 33 (Compl.) at 1.) Defendant moved to dismiss Plaintiff’s
initial complaint for failure to state a claim. (Doc. 22.) On October 26, 2018, the Court entered a
Memorandum Opinion and Order dismissing all but one of Plaintiff’s claims. (Doc. 42.)
Specifically, the Court determined that Plaintiff’s Privacy Act claim for relief under 5 U.S.C. §

552a(g)(1)(A) was sufficiently pled to withstand Defendant’s motion to dismiss. (Id. at 8–10.)
Section 552a(g)(1)(A) provides individuals with a civil cause of action in federal court when an
agency “makes a determination under [the subsection of the Privacy Act governing access to
records] not to amend an individual’s record in accordance with his request, or fails to make such
review in conformity with that subsection . . . .” Id. The DOE regulatory provision implementing
this cause of action for injunctive relief under the Privacy Act is 10 C.F.R. § 1008.15(b). Section
1008.15(b) provides that “[i]f the DOE refuses to amend a record or fails to review an amendment
request[,] . . . the court may order the DOE to make the amendment and award reasonable litigation
costs and attorney’s fees.” The Court permitted Plaintiff to file an amended complaint focusing
“solely on his remaining claim that Defendant improperly denied his amendment requests under 5
U.S.C. § 552a(g)(1)(A) and 10 C.F.R. § 1008.15(b).” (Doc. 42 at 12.) On November 13, 2018,
Plaintiff filed his amended complaint. (Doc. 47.)
On November 28, 2018, Defendant moved to dismiss Plaintiff’s sole remaining claim
pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). (Doc. 48.) Plaintiff timely filed
a response in opposition. (Doc. 50.) Shortly before the reply deadline passed, the Chief Judge of
this district filed a “Temporary Administrative Order Relating to Civil Cases Involving the United
States” due to a lapse in appropriations impacting the Department of Justice and the United States
Attorney’s Office for the District of New Mexico. (Doc. 51; see also 1:18-mc-00004, Doc. 55
(D.N.M. Dec. 27, 2018).) Because this civil lawsuit involves as a party the United States or an
agency thereof, this case was temporarily stayed in accordance with the Temporary Administrative
Order and all existing deadlines were extended. (See Docs. 51; 54 (extending the temporary stay).)
On January 7, 2019, while the temporary stay was still in place, Defendant filed its reply brief and
a notice of completion of briefing on the motion to dismiss. (Docs. 52; 53.) On January 28, 2019,

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the Court entered an Administrative Order rescinding the stay because appropriations were
restored to the Department of Justice. (Doc. 55.)
II. Plaintiff’s Motion to Investigate Whether Defendant’s Counsel Provided Unlawful
Uncompensated Services to the Government
On March 18, 2019, Plaintiff, who is proceeding pro se in this case, filed a motion asking
the Court to investigate whether Defendant violated the Anti-Deficiency Act, 31 U.S.C § 1342, by
filing the reply brief on its motion to dismiss during the lapse of appropriations and while the
temporary stay was in place. (Doc. 56.) 31 U.S.C. § 1342 provides that “[a]n officer or employee
of the United States Government . . . may not accept voluntary services . . . or employ personal
services exceeding that authorized by law except for emergencies involving the safety of human
life or the protection of property.” Plaintiff requests that the reply brief be stricken should the Court
determine that defense counsel violated 31 U.S.C. § 1342 by filing the reply brief. (Doc. 56 at 2.)
In the alternative, if the reply brief is not stricken, Plaintiff makes additional substantive arguments
concerning the merits of Defendant’s motion to dismiss. (Id. at 2–3.) Having considered Plaintiff’s
motion and Defendant’s response brief (Doc. 57), the Court will deny Plaintiff’s motion.
As the Temporary Administrative Order explained, non-supervisory Assistant United
States Attorneys assigned to the Civil Division of the United States Attorney’s Office were placed
on furlough status during the temporary stay, but could “be called back from furlough status” under
certain circumstances if the funding situation did not change. (1:18-mc-00004, Doc. 55 at 2.)
Counsel for Defendant has indicated that he was called back from furlough status on January 7,
2019, “to provide work that day on a ‘recall’ basis, including preparation of the [r]eply” brief in
this matter. (Doc. 57 at 2.) In light of this explanation, the Court will not strike the reply brief.
To the extent Plaintiff’s motion addresses the substantive merits of Defendant’s motion to
dismiss, the Court agrees with Defendant that these are new arguments that constitute an

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impermissible surreply. (Id. at 1.) This Court’s local rules provide that the “filing of a surreply
requires leave of the Court.” D.N.M.LR-Civ. 7.4(b). Plaintiff did not seek leave to file a surreply
in violation of this local rule. Further, Plaintiff failed to identify any new arguments or evidence
in Defendant’s reply brief that would have necessitated the filing of a surreply. Accordingly, the
Court will not address these substantive arguments. Plaintiff’s motion to investigate (Doc. 56) is
therefore denied.
III. Defendant’s Motion to Dismiss
In its second motion to dismiss, Defendant seeks dismissal of Plaintiff’s sole remaining
claim pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R. Civ.
P. 12(b)(6) for failure to state a claim. (Doc. 49 at 1, 5–7.) Specifically, Defendant argues that the
Court “lacks subject matter jurisdiction over Plaintiff’s claim, as the requested relief, the inclusion
of four documents into [] Plaintiff’s [PSF,] has been completed.” (Doc. 48 at 1.) Defendant
contends that Plaintiff’s amended complaint is therefore moot and does not state a claim upon
which relief can be granted. (Id.)
“[M]ootness is an issue of subject matter jurisdiction[.]” Ind v. Colo. Dep’t of Corr., 801
F.3d 1209, 1213 (10th Cir. 2015). Motions to dismiss under Rule 12(b)(1) for lack of subject matter
jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the
complaint’s allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon
which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
2002).
On a facial attack, the Court presumes all of the allegations contained in the complaint to
be true. Id. “But when the attack is factual, a district court may not presume the truthfulness of the
complaint’s factual allegations” and may “allow affidavits, other documents, and a limited

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evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances,
a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56
[summary-judgment] motion.” Campos v. Las Cruces Nursing Ctr., 828 F. Supp. 2d 1256, 1265
(D.N.M. 2011) (quoting Alto Eldorado Partners v. City of Santa Fe, No. CIV. 08–0175 JB/ACT,
2009 WL 1312856, at *8–9 (D.N.M. Mar. 11, 2009)). “However, a court is required to convert a
Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment
motion when resolution of the jurisdictional question is intertwined with the merits of the case.”
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citing Wheeler v. Hurdman, 825 F.2d
257, 259 (10th Cir. 1987); Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991)). “The
jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is
dependent on the same statute which provides the substantive claim in the case.” Id. (citing
Wheeler, 825 F.2d at 259).
Here, Defendant’s Rule 12(b)(1) motion raises a factual challenge to the existence of
subject matter jurisdiction that is not “intertwined with the merits of the case” nor dependent on
the Privacy Act. See Redmon, 934 F.2d at 1155 (citation omitted). (See also Doc. 49 at 10–11.)
Specifically, Defendant argues that this case does not present a live controversy because the four
documents that were the subject of Plaintiff’s amendment requests were actually placed into his
PSF in July 2015, approximately two years before Plaintiff filed this lawsuit. In support of this
argument, Defendant has presented facts in its briefing that go beyond the amended complaint, as
well as the affidavit of the National Nuclear Security Administration (NNSA) employee who
reviewed Plaintiff’s PSF. (Docs. 49 at 3–5; 49-1 ¶ 2.)
As the Court explained in its previous ruling, the sole remaining claim in Plaintiff’s lawsuit
is his claim pursuant to 5 U.S.C. § 552a(g)(1)(A), which allows an individual to bring a civil suit

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against an agency when that agency “makes a determination . . . not to amend an individual’s
record in accordance with his request . . . .” (See Doc. 42 at 9.) The regulatory provision
implementing this cause of action provides that “[i]f the DOE refuses to amend a record or fails to
review an amendment request[,] . . . the court may order the DOE to make the amendment and
award reasonable litigation costs and attorney’s fees.” 10 C.F.R. § 1008.15(b). The Court has thus
made it clear that Plaintiff’s sole remaining claim is a claim brought pursuant to these provisions
alleging that the DOE failed to amend his PSF or review his amendment request. (See Doc. 42 at
12.) Accordingly, Plaintiff’s sole remaining remedy would be a court order that the DOE must
place the four disputed documents into his file, as well as litigation costs and attorney’s fees should
he prevail on the merits and receive such injunctive relief. See 10 C.F.R. § 1008.15(b).
Thus, per the Court’s October 26, 2018 Memorandum Opinion and Order, all the additional
claims Plaintiff raises in his Amended Complaint and response brief based on different statutes,
code provisions, and other legal arguments are not properly before the Court. (See Doc. 42 at 10–
12.) This includes Plaintiff’s various arguments that the DOE violated provisions of the Privacy
Act other than 5 U.S.C. § 552a(g)(1)(A) and that he is entitled to re-investigation of the information
contained in his PSF. (See, e.g., Docs. 47 at 19; 50 at 1.) Plaintiff’s sole remaining claim is based
on his allegation that the DOE failed to amend his PSF by placing four specific documents into his
file, and his sole substantive prayer for relief properly before the Court is his request that the Court
“order DOE to perform the amendments to Plaintiff[’]s PSF . . . .” (See Doc. 47 at 19.)
Defendant’s Motion to Dismiss challenges the factual basis giving rise to subject matter
jurisdiction over Plaintiff’s sole remaining claim. (See Doc. 49.) To support this factual attack on
jurisdiction, the DOE presents the sworn affidavit of Susan K. Head, the “System of Records
Manager for Personnel Security Files (PSF) maintained” by the NNSA. (Doc. 49-1 ¶¶ 1–2.) Ms.

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Head affirmed under penalty of perjury that the four disputed records “were placed into and have
been contained in Dr. Carlson’s PSF since July 2015.” (Id. ¶ 4.) Plaintiff’s response brief does not
address Ms. Head’s affidavit, nor does he offer any argument in opposition to Defendant’s position
that his remaining claim is now moot. (See generally Doc. 50.) Instead, Plaintiff reasserts his claim
that DOE should have investigated the contested information contained in his file pursuant to 10
C.F.R. § 1008.6(a)(3)(ii), a claim that has already been dismissed. (Id.; see also Doc. 42 at 10.)
The Court must note that it is very perplexing why, if “the information being requested by
the Plaintiff to be placed in his PSF was actually placed in his file in July, 2015, as a result of his
appeal even though the appeal was denied[,]” Defendant did not explain or even state this in its
initial motion to dismiss. (See Doc. 23.) Such information would have saved all parties involved,
including the Court, considerable time and effort. It is also less than clear to the Court why the
DOE would formally deny Plaintiff’s amendment request yet place the documents in his file
anyway, as the request to place the documents in the PSF appears to be part of the “amendment”
Plaintiff was requesting through the Privacy Act from the very start. (See, e.g., Doc. 47 at 4, 19.)
Still, Ms. Head’s sworn affidavit states clearly that the disputed records were “placed into
and have been contained in Dr. Carlson’s PSF . . . .” (Doc. 49-1 at 1.) Plaintiff has not introduced
any affidavits or other evidence to dispute this assertion. Thus, Plaintiff’s sole remaining claim
seeking a court order requiring the DOE to place the documents into his PSF is rendered moot
because the documents are already there. See Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1115–16 (10th Cir. 2010) (a defendant’s voluntary action may moot
an issue if it meets two requirements: “(1) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur, and (2) interim relief or events have completely

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and irrevocably eradicated the effects of the alleged violation.”) (quoting Cty. of L.A. v. Davis, 440
U.S. 625, 631 (1979) (quotation marks omitted)).
As the documents are now contained in Plaintiff’s PSF, “there is no reasonable expectation
that the alleged violation” of failing to add them will recur. See id. And, as the documents will
now be available should any agency review Plaintiff’s PSF in the future, the DOE’s voluntary
actions “have completely and irrevocably eradicated the effects of the alleged violation.” See id.
(See also Doc. 42 at 9 (denying Defendant’s first motion to dismiss in part because there was
“more than a sheer possibility that [Plaintiff] has a valid interest in amending his PSF now before
it can be used to make adverse employment determinations about him in the future.”) (quotation
omitted).) Based on Ms. Head’s affidavit, the Court is confident that the relief generated by the
DOE’s addition of the four documents to Plaintiff’s PSF is “permanent in nature and [] foreclose[s]
a reasonable chance of recurrence of the challenged conduct.” See Tandy v. City of Wichita, 380
F.3d 1277, 1291 (10th Cir. 2004) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000)).
Defendant’s alleged failure to place the records into Plaintiff’s file was the crux of his
remaining claim, and an order directing the DOE to do so would have been his substantive remedy
if he prevailed. Thus, as the records have been placed in his PSF, this case is moot and the Court
lacks subject matter jurisdiction over Plaintiff’s remaining claim. See Ind, 801 F.3d at 1213. The
Court will dismiss Plaintiff’s remaining claim under 5 U.S.C. § 552a(g)(1)(A) without prejudice.
See Brown v. Buhman, 822 F.3d 1151, 1179 (10th Cir. 2016).
THEREFORE,
IT IS ORDERED that Plaintiff’s Motion to Investigate Whether Defendant’s Counsel
Provided Unlawful Uncompensated Services to the Government (Doc. 56) is DENIED; and

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IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 48) is
GRANTED.

____________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE

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