                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
MUNIR ABDULKADER,                   )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                 Civil Action No. 19-2199 (ABJ)
                                    )
DONALD TRUMP et al.,                )
                                    )
                  Defendants.       )
____________________________________)


                                  MEMORANDUM OPINION

       In this action brought pro se, plaintiff, a federal prisoner, seeks documents from his

criminal case under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Defendants, all

individuals, have moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

or for summary judgment under Rule 56. [Dkt. # 17]. The Court finds that the complaint neither

names a proper FOIA defendant nor states a viable claim, and that jurisdiction is lacking over any

purported habeas claim. So it will grant defendants’ motion to dismiss for the reasons explained

more fully below.

                                        BACKGROUND

       On December 13, 2016, plaintiff was convicted in the U.S. District Court for the Southern

District of Ohio after he pled guilty to attempting to kill government employees; possessing a

firearm in furtherance of a crime of violence; and attempting material support to a foreign terrorist

organization.   He is serving a prison sentence totaling 240 months.          See United States v.

Abdulkader, No. 1:16-cr-019, 2019 WL 6351257, at *1 (S.D. Ohio Nov. 27, 2019) (denying post-

conviction relief under 28 U.S.C. § 2255).


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        On April 25, 2019, plaintiff requested from the Clerk of the sentencing court “particular

documents relevant to his criminal prosecution and defense,” including indictments, arrest

warrants, the court docket sheet, and a certified copy of the plea agreement. Compl. Ex. [Dkt # 1-

1 at 1]. He also filed a “Motion for Disclosure of: Grand Jury Transcripts, Ballot, or Record for

Inspection; Indictment; and Criminal Complaint,” [Dkt. # 1-1 at 5], which was denied during the

section 2255 proceedings. See Abdulkader, 2019 WL 6351257, at *6.

        In a FOIA/PA form signed and dated June 7, 2019, but addressed to no particular agency,

plaintiff requested “grand jury transcripts; indictments for criminal no.; warrant of arrest; grand

jury ballot or record for inspection; criminal complaint; and certificate of concurrence.” Compl.

Ex. [Dkt. # 1-1 at 3]. On July 18, 2019, plaintiff filed this civil action against President Donald

Trump, Attorney General William Barr, and several current or former high-level officials of the

Executive Office for United States Attorneys and the United States Marshals Service. Plaintiff

asserts that

               he is actually innocent and is being denied access to records and
               information requested. That information requested has not been
               authentically declared legally exempt from disclosure by law. He
               brings this suit pursuant to Title 5 USC section 552(a)(4)(8) and
               552(a)(6)(C)(i) and the Presidential Executive Order/Memorandum
               7 Fed. Reg. 4683, signed on January 21, 2009 [“Freedom of
               Information Act”].

Compl. ¶ 2.


                                      LEGAL STANDARD

        In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must

“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all

inferences that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.

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1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the

plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court

accept plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

       A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S. at 556. A

pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements

of a cause of action,” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., citing

Twombly, 550 U.S. at 555.

       In ruling upon a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may

ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or

incorporated by reference in the complaint, and matters about which the Court may take judicial

notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). Where the action is

brought by a pro se plaintiff, a court has an obligation to consider “all of [his] filings together”

before dismissing the complaint, Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999),

because such complaints are held “to less stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

       With respect to a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the plaintiff

bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v.



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Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibly Int’l Corp., 217 F. Supp. 2d

59, 63 (D.D.C. 2002). 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. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.

Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with examination of our

jurisdiction.”). Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory

requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal

court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp.

of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

       When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”

Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986),vacated on other grounds, 482 U.S. 64

(1987). Rather, a court “may consider such materials outside the pleadings as it deems appropriate

to resolve the question of whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of

Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1993); see also Jerome Stevens Pharms., Inc. v. FDA, 402

F.3d 1249, 1253 (D.C. Cir. 2005).



                                            ANALYSIS

       A. Subject Matter Jurisdiction

       Plaintiff’s allegations conflate “two [distinct] information-gathering regimes,” one of

which has jurisdictional implications. Stonehill v. I.R.S., 558 F.3d 534, 539 (D.C. Cir. 2009); see

id. at 538 (differentiating “information disclosed during discovery [that] is limited to the parties”



                                                  4
from a document “disclosed under FOIA . . . to the general public”). Defendants argue that any

claim predicated on the validity of plaintiff’s convictions, see Compl. ¶¶ 2, 10, 14-22, is the

province of habeas corpus over which this court lacks jurisdiction. Mem. at 3-4. The Court agrees

and thus dismisses any such claims under Rule 12(b)(1). See Day v. Trump, 860 F.3d 686, 691

(D.C. Cir. 2017) (noting “the longstanding observation of the courts that § 2255 is ordinarily the

sole remedy for a federal prisoner challenging the legality of his conviction or sentence”); 28

U.S.C. § 2255(a) (conferring jurisdiction exclusively in the sentencing court).

       B. Failure to State a Claim

       Plaintiff fares no better under the FOIA. He alleges that the named defendants “are legally

responsible for withholding documents necessary for any criminal defense,” Compl. at 2, and that

he “requested the documents twice (from the clerk of courts then FOIA), then filed a ‘Motion for

Disclosure’ in his criminal case . . . to no avail, or even response.” Compl. ¶ 10. But the FOIA

“only authorizes suits against certain executive branch ‘agencies,’ not individuals,” Flaherty v.

IRS, 468 Fed. App’x 8, 9 (D.C. Cir. 2012) (per curiam), citing 5 U.S.C. § 552(f)(1); Martinez v.

Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006), and it “adopts the definition of agency

contained in 5 U.S.C. § 551(a)(1)(b), which specifically excludes from its coverage ‘the courts of

the United States.’” Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 40 (D.D.C. 2003) (citing

5 U.S.C. § 552(f)).

       Apart from suing the wrong defendants, plaintiff has not alleged facts from which the Court

can find or reasonably infer that any federal agency has received a proper FOIA request, much less

improperly withheld records in response. See McGehee v. CIA., 697 F.2d 1095, 1105 (D.C. Cir.

1983) (FOIA jurisdiction “is dependent upon a showing that an agency has (1) improperly; (2)

withheld; (3) agency records”) (citation and internal quotation marks omitted)). To trigger an



                                                5
agency’s disclosure obligations under FOIA, the request must be “made in accordance with

published rules stating the time, place, fees (if any), and procedures to be followed.” 5 U.S.C. §

552(a)(3)(A).

       Plaintiff does not state in the complaint when and where he submitted a FOIA request, and

the form FOIA/PA request attached to the complaint is directed at no particular office, contains no

mailing address, and has all of the boxes for designating an agency or agency component

unchecked. In a section marked “other,” plaintiff wrote “court documents, various, including

DOJ.” But that cryptic reference is hardly sufficient under Department of Justice regulations to

prompt a response. DOJ has a “decentralized system for responding to FOIA requests.” 28 C.F.R.

§ 16.3(a). Therefore, DOJ regulations state that “a requester should write directly to the FOIA

office of the component that maintains the records being sought,” which may be identified through

the “Department’s FOIA Reference Guide[.]” 28 C.F.R. § 16.3(a)(1). If the precise location of

the records is unknown, the regulations provide for sending the request “to the FOIA/PA Mail

Referral Unit, Justice Management Division, Department of Justice, 950 Pennsylvania Avenue

NW., Washington, DC 20530–0001, or via email to MRUFOIA.Requests@usdoj.gov, or via fax

to (202) 616–6695.” 28 C.F.R. § 16.3(a)(2). “The Mail Referral Unit will [then] forward the

request to the component(s) that it determines to be most likely to maintain the records that are

sought.” Id.

       In response to defendants’ motion, plaintiff claims that he “sent a FOIA request form . . .

to the office of the Director of the FOIA” at “111 Massachusetts Avenue North-West” in

Washington, D.C. Mot. to Strike Defs.’ Mot. at 3 (“Opp’n”) [Dkt. # 19]. That address is not listed

in DOJ’s FOIA regulations, and a central “office of the Director of the FOIA” would be

inconsistent with DOJ’s “decentralized system.” 28 C.F.R. § 16.3(a). Nevertheless, plaintiff



                                                6
suggests that he submitted an unacknowledged request to U.S. Citizenship and Immigration

Services (“USCIS”), see Opp’n at 3, and he posits that any request to USCIS “was a sufficient

service upon all other offices of FOIA as the FOIA Director was to forward his request to all

departments which may have had information pertaining to his request.” Id. at 17.

       But plaintiff’s suggestion is incorrect. USCIS is a component of the Department of

Homeland Security, not the Department of Justice, and neither that agency nor its component is a

defendant in this action. FOIA requires “each agency” to “separately state and currently publish

in the Federal Register for the guidance of the public” its own rules and procedures for handling

FOIA requests. 5 U.S.C. § 552(a)(1). And as indicated above, a FOIA requester must follow the

regulations of the agency from which records are sought.         So plaintiff, having shown no

compliance with DOJ’s regulations, has not “nudged” his FOIA claim “across the line from

conceivable to plausible[.]” Twombly, 550 U.S. at 570.

                                        CONCLUSION

       For the foregoing reasons, the Court grants defendants’ motion to dismiss. A separate

Order accompanies this Memorandum Opinion.




                                                    AMY BERMAN JACKSON
DATE: August 6, 2020                                United States District Judge




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