                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                                )
NOSHIR GOWADIA,                                 )
                                                )
                Plaintiff,                      )
                                                )
       v.                                       )          Civil Action No. 13-01991 (RDM)
                                )
INTERNAL REVENUE SERVICE et al, )
                                )
                                               ,)
               Defendants.                      )
~~~~~~~~~~~~~~~·)



                                  MEMORANDUM OPINION

        Plaintiff, a former defense contractor, was convicted in the United States District Court

for the District of Hawaii of multiple counts for violations of the Arms Export Control and
                              '
Espionage Acts, tax fraud, and money laundering. See United States v. Gowadia, 760 F.3d 989,

990 (9th Cir. 2014). Plaintiff appealed the export control- and espionage-related convictions to

the Ninth Circuit, which affirmed. Id.

        While Plaintiffs appeal was pending, he filed this civil lawsuit against the Internal

Revenue Service ("IRS") and two IRS agents (collectively, "Defendants."). His prose complaint

alleges that his tax fraud convictions were based on "knowingly falsified" information. Compl.

pp. 3-10. He seeks eighteen million dollars in damages under Bivens v. Six Unknown Named

Agents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971), for the violation of his civil rights.

Plaintiff has filed two similar actions in this district against different federal agencies, both of

which were summarily dismissed. See Gowadia v. Federal Bureau ofInvestigation, 2014 U.S.

Dist. LEXIS 63357 (D.D.C., April 23, 2014) (dismissing suit for forty-five million dollars in

                                                    - 1-
damages); Gowadia v. United States Air Force, 2014 U.S. Dist. LEXIS 57418 (D.D.C., April 23,

2014) (dismissing suit for one hundred and ten million dollars in damages), aff'd, 587 F. App'x

660, 661 (D.C. Cir. 2014). Plaintiff also brought a civil action in the District of Hawaii alleging

that his criminal convictions and the civil forfeiture of his home were obtained through the use of

fabricated evidence, prosecutorial misconduct and a conspiracy involving federal prosecutors and

others. That suit was also dismissed. Gowadia v. Sorenson, 2014 U.S. Dist. LEXIS 98262 (D.

Haw., July 18, 2014), aff'd, Appeal No. 14-16556 (9th Cir., Feb 26, 2015).

        This matter is currently before the Court on Defendants' motion to dismiss. Among other

defenses, Defendants argue that this action is barred by Heck v. Humphrey, 512 U.S. 477 (1994),

because success on Plaintiffs Bivens claim would necessarily imply that his convictions are

invalid. For the reasons stated below, the Court agrees.

        In Heck, a state prisoner sought damages based on the allegedly unlawful conduct of the

officials he held responsible for his conviction. The Supreme Court held that the damages claim

was not cognizable: "[I]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose.unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court's issuance of a

writ of habeas corpus." 512 U.S. at 486-87. A "district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it

would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction

or sentence has already been invalidated." Id. at 487. In contrast, a plaintiffs action "should be

allowed to proceed" where, "even if successful," it would "not demonstrate the invalidity of any



                                                 -2-
 outstanding criminal judgment against the plaintiff." Taylor v. United States Probation Office,

409 F.3d 426, 429 (D.C. Cir. 2005) (citation and quotation marks omitted).

        While Heck involved claims for damages under 42 U.S.C. § 1983, "[t]he rationale of

Heck applies equally to claims against federal officers in Bivens actions." Williams v. Hill, 74

F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam). The premise of Plaintiffs suit is that he was

wrongfully convicted on the basis of fabricated evidence and testimony provided by Defendants.

Thus, Plaintiffs Bivens claims, "if successful, would necessarily imply the invalidity of [his]

conviction[s]." Taylor, 409 F.3d at 427. Because Plaintiffs convictions have not been

invalidated in any prior proceeding, Heck bars this suit. Id.; see Heck, 512 U.S. at 487.

        Plaintiff does not dispute that success on his damages claims would necessarily imply

that his criminal convictions are invalid. 1 Instead, he argues that Heck is unconstitutional and

cannot, consistent with the Framer's intent, preclude him from pursing a claim for damages

based on the alleged use of fabricated evidence at his trial. Plaintiff raised the same contention in

his appeal in Gowadia v. United States Air Force, No. 14-5154 (D.C. Cir.). There, the Court of

Appeals rejected his argument in an unpublished opinion, concluding that the Court of

Appeals-like this Court-is "bound by the Supreme Court's decision in H eek." 587 F. App' x

at 661. Regardless of the precedential weight to be accorded an unpublished decision of the

Court of Appeals, see D.C. Cir. R. 36(e)(2) ("[A] panel's decision to issue an unpublished

disposition means that the panel sees no precedential value in that disposition."), see also Martin

v. D.C., 2015 U.S. Dist. LEXIS 7593, 70-71 (D.D.C. Jan. 23, 2015), it is clearly binding on Mr.


1
  The Court cautioned Plaintiff that failure to address the arguments presented in Defendants'
motion to dismiss carried the risk that this case might be dismissed and that unaddressed
arguments might be treated as conceded, and granted Plaintiff leave to file a supplemental
response. Dkt. No. 14; see Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988); Neal v. Kelly, 963
F.2d453, 456-57 (D.C. Cir. 1992). Plaintiff did not file a supplemental response.

                                                -3-
 Gowadia, see Taylor v. Sturgell, 553 U.S. 880, 892 (2008) ("Issue preclusion ... bars successive

 litigation of an issue of fact or law actually litigated and resolved in a valid court determination

 essential to the prior judgment, even if the issue recurs in the context of a different claim.")

(internal quotation marks omitted); National Classification Comm. v. United States, 765 F.2d

 164, 170 (D.C. Cir. 1985) (giving preclusive effect to an unpublished decision of the Court of

Appeals). And, in any event, the reasoning of the Court of Appeals is unquestionably correct and

dispositive. This Court, like all other lower courts, is "bound by the Supreme Court's decision in

Heck." Gowadia, 587 Fed. App'x at 661; see, e.g., Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477, 484 (1989) (explaining that lower courts must "follow the case

which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own

decisions."). Finally, to the extent Plaintiff believes that Heck "makes it difficult or impossible

to overturn" his allegedly false convictions, Dkt. No. 13, at 3, he is mistaken: Heck merely

prevents him from claiming damages based on convictions that have not been invalidated.

        The Court is mindful that pro se complaints should be liberally construed. However,

even if Plaintiffs complaint could be construed as a Section 2255 challenge to the validity of the

underlying convictions, it would still have to be dismissed because this is not the proper forum.

A federal prisoner who wishes to challenge the validity of a federal conviction or sentence

should "move the court which imposed the sentence to vacate, set aside or correct the sentence."

28 U.S.C. § 2255(a). Thus, Plaintiff may only bring a Section 2255 challenge to his conviction

in the U.S. District Court for the District of Hawaii- and, indeed, he has already done so. See

Gowadia v. United States, Case No. 14-cv-00481, Dkt. No. 2-2 (D. Haw., Oct. 23, 2014).

Accordingly, there is no basis for this Court to treat this lawsuit as a challenge to Plaintiffs

conviction under Section 2255.



                                                 -4-
           For the reasons stated above, the Court will DISMISS the case for failure to state a claim

upon which relief may be granted. 2 This dismissal is without prejudice to Plaintiffs right to file

    a new action, if and when he can satisfy the requirements recognized in Heck (for example,

should he succeed in obtaining vacatur of his convictions in an appropriate proceeding). See

Anderson v. United States, 96 F. App'x 723, 724 (D.C. Cir. 2004) (per curiam).

           An appropriate Order accompanies this Memorandum Opinion.




                                                        United States District Judge


Date: April 6, 2015




2
  In light of this disposition, the Court does not reach the question whether Plaintiffs complaint
states a valid Bivens claim or Defendants' remaining arguments for dismissal.
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