                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 FULVIO FLETE-GARCIA,

                Plaintiff,

        v.                                                 Civil Action No. 19-1420 (RDM)

 U.S. DEPARTMENT OF JUSTICE,

                 Defendant.


                             MEMORANDUM OPINION AND ORDER

       Plaintiff Fulvio Flete-Garcia, a federal prisoner proceeding pro se, seeks the release of

documents pertaining to his criminal conviction pursuant to the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. Dkt. 16 at 1–3, 5. Flete-Garcia’s initial filing is styled as a motion

for a preliminary injunction that contains within it various “complaint[s].” See Dkt. 16 at 1–3.

Defendant the Department of Justice (“Department”) moves to dismiss for lack of subject-matter

jurisdiction and failure to state a claim, Dkt. 8 at 1, and opposes Flete-Garcia’s motion for a

preliminary injunction, id. at 5. For the reasons that follow, the Court will deny Defendant’s

motion to dismiss and will deny Flete-Garcia’s motion for a preliminary injunction.

                                       I. BACKGROUND

       Between August 2018 and April 2019, Flete-Garcia appears to have submitted four FOIA

requests to the Department seeking, inter alia, arrest records, investigatory reports, minutes and

audio records of grand jury proceedings, transcripts and audio records from his initial court

appearance, documents relating to his arraignment and a status conference, and discovery from
his criminal case.1 Dkt. 1-1 at 2–4 (Aug. 1, 2018 request), 7–10 (Aug. 1, 2018 request), 16

(Sept. 22, 2018 request), 31–32 (Apr. 18, 2019 request). On August 30, 2018, the Department

acknowledged receipt of one of Flete-Garcia’s requests and informed him that, because it

involved “voluminous records and/or requires consultation with another agency,” it satisfied the

“unusual circumstances” standard under 5 U.S.C. § 552(a)(6)(B)(i), and the Department

therefore claimed entitlement to an additional ten days to process Flete-Garcia’s request. Dkt. 1-

1 at 12. On October 22, 2018, the Department acknowledged receipt of another of Flete-Garcia’s

requests and sought certification of Flete-Garcia’s identity. Id. at 18. On October 31, 2018,

Flete-Garcia submitted a certificate of identity. Id. at 20–21.

       On May 13, 2019, Flete-Garcia commenced the instant action and sought a preliminary

injunction directing the Department to produce the requested documents. See Dkt. 1. That

motion for a preliminary injunction contained within it two “complaint[s].” Dkt. 1 at 1–3. On

July 31, 2019, the Department filed the pending motion to dismiss “for lack of subject matter

jurisdiction and failure to state a claim,” Dkt. 8 at 1, and, in substance, opposed Flete-Garcia’s

motion for a preliminary injunction, id. at 3–9 (applying the four-factor test to evaluate motions

for a preliminary injunction). On September 5, 2019, Flete-Garcia moved to amend or correct

his complaint, seeking to add “missing pages” that had not been included in the version of the

complaint initially docketed. Dkt. 14 at 1. The Court granted that motion, Minute Entry (Sept.

12, 2019), and deemed filed Flete-Garcia’s amended complaint and motion for preliminary

injunction, Dkt. 16. The Court also gave the Department until September 18, 2019 to inform the



1
   Plaintiff’s complaint alleges that he mailed a FOIA request on July 12, 2018 as well. Dkt. 16
at 2. It is possible that Plaintiff’s alleged July 2018 request refers to one of the documents dated
August 1, 2018 included as exhibits to Plaintiff’s initial complaint. Dkt. 1-1. The exact date of
this first FOIA request does not affect the Court’s analysis.

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Court whether it intended to alter its motion to dismiss based on the amendment to Flete-

Garcia’s complaint and motion for a preliminary injunction. Minute Entry (Sept. 12, 2019). The

Department informed the Court that it did not intend to do so, Dkt. 17. On October 21, 2019,

Plaintiff filed a response to the Department’s motion to dismiss, Dkt. 20; the Department has not

filed a reply.

                                            II. ANALYSIS

A.        Motion to Dismiss

          1.     Lack of subject-matter jurisdiction

          First, the Department nominally moves to dismiss for lack of subject-matter jurisdiction

pursuant to Federal Rule of Civil Procedure 12(b)(1), although the substance of its memorandum

does not address subject-matter jurisdiction. See id. at 3–9. This Court has subject-matter

jurisdiction over Plaintiff’s FOIA action. See 28 U.S.C. § 1331; 5 U.S.C. § 552(a)(4)(B); id. §

552(a)(6)(A)(i) (allowing the agency 20 days to respond); Kaplan v. Cent. Bank of the Islamic

Republic of Iran, 896 F.3d 501, 511 (D.C. Cir. 2018) (“[A] court must always assure itself of its

subject-matter jurisdiction.”). Accordingly, to the extent the Department moves to dismiss for

lack of subject-matter jurisdiction, that motion is denied.

          2.     Failure to state a claim

          Second, the Department nominally moves to dismiss for failure to state a claim pursuant

to Federal Rule of Civil Procedure 12(b)(6). See Dkt. 8 at 1. Again, the Department’s

memorandum offers no argument on this score. See id. at 3–9. That motion is therefore also

denied.




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        3.      Failure to comply with Local Rules

        The Department also argues that Flete-Garcia’s motion should be “dismissed as

defective” because he “failed to satisfy basic requirements to filing,” such as including “a

statement of points and authorities and a proposed order.” Dkt. 8 at 5 (citing Local Rule 7).

Consistent with the mandate to “construe pro se filings liberally,” the Court denies that motion as

well. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).

        Accordingly, the Court will deny Defendant’s motion to dismiss.

B.      Motion for a Preliminary Injunction

        A preliminary injunction is an “extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is

likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in

the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v.

Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)) (alteration in original). “[F]ailure to show a

likelihood of irreparable harm remains, standing alone, sufficient to defeat [a] motion” for a

preliminary injunction. Navajo Nation v. Azar, 292 F. Supp. 3d 508, 512 (D.D.C. 2018).

        The Court will deny Flete-Garcia’s motion for preliminary injunction because he has

failed to make a clear showing that he will suffer irreparable harm in the absence of preliminary

relief. Flete-Garcia argues that he will suffer irreparable harm if the injunction is not granted

because “[t]he records are exculpatory in nature” and “will show that [he] is entitled to relief

from a judgment of conviction” and release from custody. Dkt. 16 at 5. But “[a]ny alleged

irreparable harm ‘must be . . . actual and not theoretical.’” Davis v. Billington, 76 F. Supp. 3d



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59, 65 (D.D.C. 2014) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,

297 (D.C. Cir. 2006)). At least on the present record, any connection between Flete-Garcia’s

FOIA request and his continued incarceration is highly speculative. See Cayuga Nation v. Zinke,

302 F. Supp. 3d 362, 373 (D.D.C. 2018) (denying preliminary injunction where claimed injuries

were “speculative and dependent on the actions of third parties or even other courts” and the

relief sought “would not necessarily prevent them from occurring”). Flete-Garcia’s vague

mention of “exculpatory” records, Dkt. 16 at 5, is far from a “clear showing” that those records

would entitle him to release from custody. Navajo Nation, 292 F. Supp. 3d at 512 (quoting

Winter, 555 U.S. at 22).

                                        CONCLUSION

       For the foregoing reasons, the Court hereby DENIES Defendant’s motion to dismiss,

Dkt. 8, and DENIES Flete-Garcia’s motion for a preliminary injunction, Dkt. 16.

       SO ORDERED.



                                                    /s/ Randolph D. Moss
                                                    RANDOLPH D. MOSS
                                                    United States District Judge


Date: February 27, 2020




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