                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

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


                                  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

                                                  3
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

                                                    4
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).




1
     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

                                                    9
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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