                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
CARL CHRISTY,                 )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 08-1552 (RWR)
                               )
UNITED STATES DEPARTMENT OF   )
JUSTICE, et al.,              )
                               )
          Defendants.          )
_____________________________ )

                       MEMORANDUM OPINION

     Pro se plaintiff Carl Christy filed this complaint against

the Department of Justice (“DOJ”) and five DOJ officials, citing

the Administrative Procedures Act (“APA”), 5 U.S.C. § 702 et

seq., and 18 U.S.C. § 3504, seeking an order directing the

individual defendants to comment on the legality of a wiretap

that purportedly led to Christy’s criminal conviction in 1989.

The defendants have moved to dismiss the complaint, or in the

alternative for summary judgment, arguing that Christy’s

complaint seeks to compel the defendants to perform an act they

have no duty to perform.   Because the material facts are not in

dispute and the law imposes no duty upon the defendants to act as

Christy has requested, the motion will be granted and judgment

will be entered for the defendants.

                            BACKGROUND

     In 1989, Christy was convicted of conspiracy to possess with

the intent to distribute cocaine.   (Compl. ¶¶ 2, 19-20; Defs.’
                                   -2-

Stmt. of Mat. Facts Not In Dispute (“Defs.’ Stmt.”) ¶ 1.)

In 1992, Christy filed a motion for a new trial in the Eastern

District of North Carolina, based on the theory that evidence

that was used against him in the trial was obtained after the

United States District Court issued and extended an electronic

surveillance order that was invalid because the original

application was authorized by an Assistant Attorney General for

the Office of Legal Counsel, not by an Assistant Attorney General

in the Criminal Division.1   Christy’s motion was denied, and that

denial was affirmed on appeal to the Fourth Circuit.   (Compl.

¶¶ 9-12, 17, 19, 22; Defs.’ Stmt. ¶¶ 2-3.)   In 1996, Christy

filed a motion in the Eastern District of North Carolina to

vacate or set aside his sentence, based on the same argument.

That motion was also denied, and the denial was affirmed on

appeal.   (Defs.’ Stmt. ¶¶ 4-5.)

     In 2008, Christy petitioned the DOJ Pardon Attorney to

commute his sentence, arguing that his conviction was tainted by

evidence obtained through unlawful electronic surveillance.

(Compl. ¶¶ 24-26.)   While that petition was pending, Christy sent


     1
       Christy’s belief that the wiretap order was invalid is
misguided. “[A]ny Assistant Attorney General, any acting
Assistant Attorney General, or any [designated] Deputy Assistant
Attorney General in the Criminal Division” could authorize an
application for a wiretap. See 18 U.S.C.A. § 2516 (1986). The
phrase “in the Criminal Division” referred to Deputy Assistant
Attorneys General, not Assistant Attorneys General. In addition,
Christy acknowledges that, ultimately, a federal judge authorized
the wiretap. (Compl. ¶ 12.)
                                   -3-

letters to the Pardon Attorney and four other DOJ officials,2

citing 18 U.S.C. § 3504(a)(1) and asking them to “affirm or deny

the existence of an unlawful act” by acknowledging that Christy

was convicted based on evidence obtained through unlawful

electronic surveillance.   (Compl. ¶¶ 24-28; Defs.’ Mem. in Supp.

of Mot. to Dismiss or in the Alternative for Summ. J. (“Defs.’

Mem.”) at 2.)   After Christy did not receive a response to those

letters, he filed this action claiming that the defendants

violated the APA by unlawfully withholding or unreasonably

delaying an action they were obligated to perform under 18 U.S.C.

3504(a)(1).   (Compl. ¶¶ 39-41.)

     The defendants have moved to dismiss Christy’s complaint, or

in the alternative for summary judgment, arguing that the DOJ and

the individual defendants did not have a legal obligation to

confirm or deny any unlawful use of electronic surveillance.

(Defs.’ Mem. at 8-9.)   Christy opposes.

                            DISCUSSION

     “Summary judgment is appropriately granted when the moving

party demonstrates that there is no genuine issue as to any

material fact and that moving party is entitled to judgment as a



     2
       Christy sent his demand to the following defendants:
Acting Pardon Attorney Helen Bollwerk; Assistant Attorney General
Steven Bradbury, Office of Legal Counsel; Assistant Attorney
General Alice Fisher, Criminal Division; Assistant Attorney
General Ralph Boyd, Jr., Civil Rights Division; and Attorney
General Michael Mukasey. (Compl. ¶¶ 28-35.)
                                -4-

matter of law.”   Winston v. Clough, 712 F. Supp. 2d 1, 6 (D.D.C.

2010) (citing Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009)

(citing Fed. R. Civ. P. 56(c) and Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986))).     “In considering a motion for

summary judgment, [a court is to draw] all ‘justifiable

inferences’ from the evidence . . . in favor of the nonmovant.”

Winston, 712 F. Supp. 2d at 6 (quoting Cruz-Packer v. Dist. of

Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting

Anderson, 477 U.S. at 255); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)).     “The court must

determine ‘whether there is a need for trial - - whether, in

other words, there are any genuine factual issues that properly

can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.’”    Winston, 712

F. Supp. 2d at 6 (quoting Citizens for Responsibility and Ethics

in Wash. v. Bd. of Governors of the Fed. Reserve, 669 F. Supp. 2d

126, 129 (D.D.C. 2009)(internal quotation omitted)).

     The APA permits a court to “compel agency action unlawfully

withheld or unreasonably delayed[.]”    5 U.S.C. § 706(1).

However,

     nothing can be compelled under § 706(1) unless it is
     “legally required.” [Norton v. Southern Utah
     Wilderness Alliance, 542 U.S. 55, 63 (2004) (“SUWA”)]
     (emphasis in original). . . . In other words, “a claim
     under § 706(1) can proceed only where a plaintiff
     asserts that an agency failed to take a discrete agency
     action that it is required to take.” SUWA at 64
     [emphasis omitted].
                                  -5-

Friends of the Earth v. United States Dep’t of the Interior, 478

F. Supp. 2d 11, 26 (D.D.C. 2007).       Christy claims the defendants

violated a duty to take action that he traces to 18 U.S.C.

§ 3504, which states that

     (a) In any trial, hearing, or other proceeding in or
     before any court, grand jury, department, officer,
     agency, regulatory body, or other authority of the
     United States–

     (1) upon a claim by a party aggrieved that evidence is
     inadmissible because it is the primary product of an
     unlawful act or because it was obtained by the
     exploitation of an unlawful act, the opponent of the
     claim shall affirm or deny the occurrence of the
     alleged unlawful act[.]

                                * * *

     (b) As used in this    section “unlawful act” means any
     act [involving] the    use of any electronic, mechanical,
     or other device (as    defined in [18 U.S.C. § 2510(5)])
     in violation of the    Constitution or laws of the United
     States[.]

18 U.S.C. 3504.   An aggrieved party’s claim must “appear to have

a ‘colorable’ basis before it may function to trigger the

government’s obligation to respond under § 3504.”      United States

v. Pacella, 622 F.2d 640, 643 (2d Cir. 1980) (quoting United

States v. Yanagita, 552 F.2d 940, 943 (2d Cir. 1977)).

A respondent can satisfy the requirements of § 3504 by producing

affidavits asserting that no evidence to be used in the

proceeding was obtained by unlawful surveillance, or by producing

a court order showing that the surveillance was lawful.      United

States v. Kember, 648 F.2d 1354, 1369 (D.C. Cir. 1980); In re
                                -6-

Millow, 529 F.2d 770, 773 (2d Cir. 1976) (holding that the

government’s submission of a court order authorizing electronic

surveillance was a sufficient response to a claim that evidence

was a product of illegal wiretaps).

     Here, the defendants had no obligation to respond to

Christy’s request.   The language of § 3504 reflects that the duty

to comment on the lawfulness of surveillance applies to trials,

hearings, or other proceedings where “evidence” is taken into

account.   See 18 U.S.C. § 3504(a)(1).   No proceedings were

pending before any of the defendants.    Even if Christy’s

application for a pardon were considered to be a “proceeding,”

Christy has completely failed to show a reasonable, colorable

basis that he was the victim of illegal surveillance.   The core

predicate for his claim of illegality is legally wrong.      As is

mentioned above, the Assistant Attorney General in charge of the

Office of Legal Counsel was empowered by § 2516 to authorize the

wiretap application.   That fact was confirmed multiple times

during Christy’s trial, post-trial and appellate proceedings.

Moreover, it is clear, as Christy admits (Compl. ¶¶ 17-19), that

the electronic interception of his conversation was authorized in

an order signed by a federal judge.   Any answer under § 3504 to

which he arguably could have been entitled he already possessed

before he asked for it.
                                 -7-

                           CONCLUSION

     No material facts are in dispute and the defendants are

entitled to judgment as a matter of law.   The wiretap application

was lawfully authorized, and the interception occurred under an

order issued by a federal court.   Christy has presented no

colorable claim triggering any obligation for the defendants to

respond to his requests under § 3504.   Therefore, judgment will

be entered for the defendants.   A final order accompanies this

memorandum opinion.

     SIGNED this 8th day of February 2012.


                                       /s/
                                 RICHARD W. ROBERTS
                                 United States District Judge
