                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
GILBERT ROMAN,                      )
                                    )
               Plaintiff,           )
                                    )
v.                                  ) Civil No. 12-1370 (EGS)
                                    )
NATIONAL RECONNAISSANCE OFFICE,     )
                                    )
               Defendant.           )
___________________________________)


                                                               MEMORANDUM OPINION

              Plaintiff Gilbert Roman, proceeding pro se, brings this

case alleging violations of his constitutional rights in

connection with the government’s processing of his requests for

information under the Freedom of Information Act (“FOIA”).1

Pending before the Court are:                                         (1) Defendant’s Motion to Dismiss

for Failure to State a Claim, (Docket No. 7), and Plaintiff’s

oppositions thereto (Docket Nos. 11, 14, 17); (2) Plaintiff’s

motions for discovery (Docket Nos. 9 and 15); and (3)

Plaintiff’s requests to enter evidence into the record.                                        (Docket

Nos. 10, 16, 18).

              As an initial matter, Plaintiff’s requests to enter

evidence into the record are GRANTED.                                         Upon consideration of
                                                            
1
  Plaintiff filed another case, Roman v. Department of the Air
Force, Case No. 12-1381, also resolved by the Court this same
day. The two cases involve different FOIA requests to different
agencies.
Defendant’s Motion to Dismiss, Plaintiff’s Oppositions, the

entire record in this case, and for the reasons set forth below,

Defendant’s Motion to Dismiss is GRANTED.           Consequently,

Plaintiff’s motions for discovery are DENIED as moot.

I.   BACKGROUND

     Plaintiff is a private citizen seeking damages of

$7,000,000 against defendant National Reconnaissance Office

(“NRO”), a United States government agency responsible for

building, launching, and maintaining America’s intelligence

satellites.   Compl. at 1; Civil Cover Sheet at 2.          Plaintiff

claims that Defendant failed to adequately respond to his

requests for documents under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2012).       Compl. at 1.     Mr. Roman

requested documents concerning functional magnetic resonance

imaging (“FMRI”) technology “or the ability to read the pulses

and patterns of the human brain.”        Id.     He alleges Defendant’s

inadequate search for the requested documents violated his First

Amendment rights of free speech and free press, and his Fifth

Amendment right to due process.        Id.     Although the Complaint

does not specify which requests Plaintiff claims the NRO

inadequately considered, the attachments to the Complaint

reference three FOIA requests.

     First, on August 16, 1996, Plaintiff made a FOIA request

for several categories of information to the Department of

                                   2
 
Defense, which was forwarded to the NRO for processing.2                                             Compl.,

Ex. A.                 On September 26, 1996, the NRO responded to Plaintiff’s

request advising that it did not have responsive records for

some of his requests.3                                         Compl., Ex. A1-2.   As to the other

requests, Defendant claimed those documents would be classified

under Executive Order 12958, if they existed, making them exempt

from disclosure under 5 U.S.C. § 552(b)(1).4                                          Id.   Defendant also

advised Plaintiff that he had the right to appeal the decision,

which, according to the record before this Court, Plaintiff did

not.             Compl., Ex. A2.




                                                            
2
  Plaintiff requested: “1. ‘. . . the complete biographical
backgrounds on all personnel assigned to the 8X spy satellite
program & US Policy on Remote Sensing Space Capabilities. The
medical, scientific, & scholastic backgrounds of these
gentlemen.’ . . . . 2. ‘. . . copies of any and all flyers and
tapes which read (The Gov’t Can Read Our Minds) . . .
fingerprint verification (who[se] fingerprints appear on these
papers).’ . . . . 3. ‘. . . any and all papers and tapes
pertaining to me. . . born [ ] ss# [ ].’ . . . . 4. ‘. . . the
annual budget for these two programs’ (8X spy satellite program
& US policy on Remote Sensing Space Capabilities). . . . 5. ‘. .
. how many satellites are in orbit with the technology which
reads the pulses and patterns of the human brain, and converts
these readings into words and sentences . . . .’ . . . . 6. ‘. .
. technology is built in the 8X spy satellite program and might
fall under the name US Policy on Remote Sensing Space
Capabilities . . . the person assigned to retrieve this data . .
. said person sign an affidavit stating his clearance . . . a
list of all levels of clearance assigned to personnel.’ . . . .”
Compl., Ex. A1-2.
3
    Request Nos. 2, 3, and 5.
4
    Request Nos. 1, 4, and 6.
                                                                       3
 
       Second, on May 14, 2009, Plaintiff sent another FOIA

request to Defendant.   Compl., Ex. A3-4.    Plaintiff requested:

“1. . . . information on functional magnetic resonance imaging.

2.    The date it was put into service.   3. The first successful

report on the first person it was used on successfully.”

Compl., Ex. A3.   On June 16, 2009, Defendant accepted

Plaintiff’s May 14, 2009 request, and advised Plaintiff that it

was limiting its search to NRO-originated records.     Compl., Ex.

A6.

       On July 1, 2009, Defendant advised Plaintiff that it

completed its search but did not have responsive documents.

Compl., Ex. A8-9.   Plaintiff appealed Defendant’s determination

on July 12, 2009.   Compl., Ex. A10.   After review, Defendant

confirmed the determination, and advised Plaintiff of his rights

for judicial review of the decision.      Compl., Ex. A11.

       Plaintiff filed a lawsuit against the NRO in the Eastern

District of New York, Roman v. National Reconnaissance Office,

No. 09-CV-2504 (the “New York case”).     Def.’s Mot. to Dismiss

(“Def.’s Mot.”), Ex. A at 1, 4.   In the New York case, Plaintiff

requested documents in response to his May 14, 2009 FOIA request

to the NRO – the same request he references in this action.

Compare Id. at 2 n.3, with Compl., Ex. A3-4.      The NRO filed a

motion for summary judgment, which the court granted.        Def.’s

Mot., Ex. A at 10-11.   The court found that the NRO performed a

                                  4
 
reasonable and adequate search for the requested documents and

did not improperly withhold any responsive documents.                                           Id. at

11.

              Third, on October 22, 2009, Plaintiff sent another FOIA

request to Defendant.5                                         Compl., Ex. A13-14.   Defendant responded

to the request on November 23, 2010, and enclosed 412 pages of

responsive documents but withheld 37 pages of responsive

documents asserting applicable FOIA exemptions.                                          Id.   Defendant

advised Plaintiff of his right to appeal its determination,

which according to the record before this Court, Plaintiff did

not.             Compl., Ex. A14.

              Pursuant to the record before this Court, Plaintiff’s FOIA

requests at issue in this case are his August 16, 1996, May 14,

2009, and October 22, 2009 requests.

II.           STANDARD OF REVIEW

              When evaluating a motion to dismiss for failure to state a

claim, the Court must accept as true all factual allegations in

the complaint and draw all reasonable inferences in favor of the

plaintiff.                            Fed. R. Civ. P. 12(b)(6);                Elec. Privacy Info. Ctr.
                                                            
5
  Plaintiff requested: “1. . . . copies of all the Freedom of
Information and/or Privacy Act of 1974 task sheets used to
process my request to your agency; which you responded to on
July 1, 2009 and Oct. 15, 2009. . .; 2. Copies of the DUTY
OFFICER forms authorizing these searches. . .; 3. Copies of
forms from the CLASSIFIED DOCUMENTS RECEIPTS. . .; 4. Copies of
the forms from the OFFICE OF THE CLASSIFIED REGISTER OF CONTROL.
. .; 5. Copies of any and all memorandums, emails concerning
Gilbert Roman (ME).” Compl., Ex. A13.
                                                                       5
 
v. Nat'l Sec. Agency, 795 F. Supp. 2d 85, 90 (D.D.C. 2011).         To

survive a Rule 12(b)(6) motion, the complaint must contain “a

short and plain statement of the claim showing that the pleader

is entitled to relief.”      Fed. R. Civ. P. 8(a)(2).   The complaint

must have “‘enough facts to state a claim to relief that is

plausible on its face’ . . . .”       Elec. Privacy Info. Ctr., 795

F. Supp. 2d at 90 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).      A claim is facially plausible when the facts

of the complaint will allow the court to make a reasonable

inference that the defendant is liable for the alleged

misconduct.     Id.

     Furthermore, when evaluating a pro se complaint, the courts

apply “less stringent standards than formal pleadings drafted by

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

However, a pro se complaint must still meet the requirements of

Federal Rules of Civil Procedure, Rule 8(a)(2) to survive a Rule

12(b)(6) motion to dismiss.       See Atherton v. Dist. of Columbia

Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009).

III. ANALYSIS

     A.   Defendant is Immune from Monetary Damages.

     Plaintiff attempts to state a constitutional claim for

money damages against the NRO.      Specifically, he claims that the

Defendant violated his constitutional rights under the First and

Fifth Amendments by improperly withholding documents responsive

                                     6
 
to his FOIA requests.   Compl. at 1; Civil Cover Sheet at 2.        Mr.

Roman does not, however, provide any authority for the

proposition that he is entitled to damages from the government.

     The Defendant is not subject to liability for damages

because it is a federal agency.       F.D.I.C. v. Meyer, 510 U.S.

471, 486 (1994).   Generally, the federal government and its

agencies are immune from lawsuits due to the doctrine of

sovereign immunity, unless Congress explicitly waives immunity.

See id. at 475; United 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.”).      The Court is unaware of any

waiver of sovereign immunity that would permit Plaintiff to seek

money damages from Defendant for allegedly failing to provide

documents responsive to Plaintiff’s FOIA request.

     Likewise, no money damages are available under FOIA.      The

sole remedy available to a requester is injunctive relief—the

court can compel an agency to produce documents or enjoin an

agency from improperly withholding documents.       See 5 U.S.C. §

552 (a)(4)(B); see also Johnson v. Exec. Ofc. for United States

Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002); Sterling v.

United States, 798 F. Supp. 47, 48 (D.D.C. 1992) (“[T]he FOIA

does not authorize the award of monetary damages.”).



                                  7
 
     Therefore, Defendant is not subject to monetary damages due

to sovereign immunity and because FOIA does not provide for

monetary damages.

     B.     Beyond Unavailability of Monetary Damages, Plaintiff’s
            Complaint is also Dismissed Under FOIA.

     The Complaint in this action does not appear to allege a

violation of the FOIA, nor does Plaintiff request any injunctive

relief, which, as discussed above, is the only remedy available

under the statute.   In his Oppositions, Plaintiff again states

that he does not bring his claims under FOIA.    See Pl.’s Mot.

Opposing Dismissal and Req. for Discovery at 1, Docket No. 14

(“FOIA cannot and does not allow protection of constitutional

rights[,] so FOIA cannot be used as a measure of my rights.

Only the constitution can measure my rights.”); Pl.’s Suppl.

Opp’n to Dismissal at 1, Docket No. 17 (“FOIA does not and

should never be used as a measure [of] a person[’s]

constitutional rights.”).    Nevertheless, in its Motion to

Dismiss, the Defendant argues that the claims should be

dismissed under FOIA as well as principles of sovereign

immunity.   Def.’s Mot. at 2-5.

     As discussed above, Mr. Roman’s claims for money damages

are barred.   Even if, however, the Court were to construe

Plaintiff’s Complaint as requesting injunctive relief under the

FOIA, Plaintiff’s claims would still be dismissed.


                                  8
 
           1. This Court Cannot Adjudicate Plaintiff’s May 14,
              2009 FOIA Request Due to the Doctrines of Res
              Judicata and Collateral Estoppel.

      Plaintiff is barred by the doctrines of res judicata and

collateral estoppel from seeking adjudication by this Court with

respect to his May 14, 2009 FOIA request.   The documents

Plaintiff requests are identical to the documents requested by

Plaintiff in the New York case.    Compare Def.’s Mot., Ex. A at 2

n.3, with Compl., Ex. A3-4.   Thus, this Court is not the forum

to adjudicate Plaintiff’s claims regarding his May 14, 2009 FOIA

request.

      Res judicata precludes Plaintiff from re-litigating the

same claim that was litigated in the New York case.   There are

four elements of res judicata:    “(1) an identity of parties in

both suits; (2) a judgment rendered by a court of competent

jurisdiction; (3) a final judgment on the merits; and (4) the

same cause of action in both suits.”    Primorac v. C.I.A., 277 F.

Supp. 2d 117, 119 (D.D.C. 2003) (quoting Polsby v. Thompson, 201

F. Supp. 2d 45, 48 (D.D.C. 2002)).    Plaintiff Gilbert Roman and

defendant NRO are both parties in this case and were parties in

the New York case.   Compare Compl. at 1, with Def.’s Mot., Ex.

A.   An order was entered by the District Court of the Eastern

District of New York granting NRO summary judgment on February

22, 2012, and Plaintiff alleged that the NRO did not adequately

respond to his May 14, 2009 FOIA request in both lawsuits.

                                  9
 
Compare Compl. at 1, with Def.’s Mot., Ex. A at 4, 10-11.     The

four elements of res judicata are met.

        Additionally, collateral estoppel precludes Plaintiff from

re-litigating the same issues that were litigated in the New

York case.     The elements of collateral estoppel are:   "‘[1],

the same issue now being raised must have been contested by the

parties and submitted for judicial determination in the prior

case[; 2], the issue must have been actually and necessarily

determined by a court of competent jurisdiction[; and 3]

preclusion in the second case must not work a basic unfairness

to the party bound by the first determination.’"      Martin v.

Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting

Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.

Cir. 1992)).    Here, the issues concerning Plaintiff’s May 14,

2009 FOIA request are identical to the issues in the New York

case:    whether Defendant conducted an adequate search for the

records Plaintiff sought, and if Defendant properly responded.

Compare Compl. at 1, with Def.’s Mot., Ex. A at 10-11.     In the

New York Case, the court fully considered the issues and found

that the NRO fully complied with the FOIA in conducting its

search for the requested documents and did not improperly

withhold documents.    Def.’s Mot., Ex. A at 1, 11.   The elements

of collateral estoppel are met.    Accordingly, Plaintiff’s FOIA

claims regarding his May 2009 request must be DISMISSED.

                                  10
 
           2. Plaintiff Failed to Exhaust his Administrative
              Remedies with Respect to his August 16, 1996 and
              October 22, 2009 FOIA Requests.

     A FOIA requester must exhaust administrative remedies

before seeking judicial review.    See Oglesby v. Dep't of the

Army, 920 F.2d 57, 61 (D.C. Cir. 1990) (overruled in part on

other grounds); see also Wilbur v. C.I.A., 355 F.3d 675, 676

(D.C. Cir. 2004) (“‘[E]xhaustion of administrative remedies is a

mandatory prerequisite to a lawsuit under FOIA’. . . .”

(citations omitted)).    A plaintiff exhausts administrative

remedies when he appeals an agency’s response to his FOIA

request, and the agency fails to respond to the appeal within

the appropriate time limit, denies the appeal, or makes an

adverse determination.   5 U.S.C. § 552(a)(6)(A)(i)-(ii); See

Hidalgo v. F.B.I., 344 F.3d 1256, 1259 (D.C. Cir. 2003).       When a

plaintiff has not exhausted administrative remedies, the court

can dismiss the complaint sua sponte for failure to state a

claim.   Isasi v. Office of Attorney. Gen., 594 F. Supp. 2d 12,

13 (D.D.C. 2009).   Furthermore, the burden is on the plaintiff

to prove exhaustion of administrative remedies.    Brown v.

F.B.I., 793 F. Supp. 2d 368, 380 (D.D.C. 2011).

     Plaintiff has not met his burden to demonstrate that he

exhausted his administrative remedies; there is no evidence that

he appealed Defendant’s decisions with respect to his August 16,



                                  11
 
1996 and October 22, 2009 FOIA requests.6                                        Specifically,

Defendant’s response to Plaintiff’s August 16, 1996 request

(dated September 26, 1996) and Plaintiff’s October 22, 2009

request (dated November 23, 2010) state that Plaintiff has “the

right to appeal this determination . . . within 60 days of the

above date.”                             Compl. Ex. A2, A14.              Therefore, Plaintiff’s

deadlines to appeal Defendant’s response to his August 16, 1996

and October 22, 2009 requests were November 25, 1996 and January

22, 2011, respectively.                                        Both deadlines have long since lapsed.

IV.           CONCLUSION

              For the above reasons, Plaintiff’s Motions to Enter

Evidence are GRANTED, and Defendant’s Motion to Dismiss is also

GRANTED.                     In light of the foregoing, Plaintiff’s pending motions




                                                            
6
  Since filing his Complaint, Mr. Roman has requested to enter
evidence into the record. See “Enter Evidence Into Court
Record,” Docket No. 10; “Motion to Enter Evidence Into the Court
Record,” Docket No. 16; and “Motion to Enter Evidence,” Docket
No. 18. Plaintiff’s motions are hereby GRANTED. The Court has
reviewed all of Mr. Roman’s submissions, none of which
demonstrate that he exhausted his claims. Because this Court
does not rely on this evidence to make its decision, Defendant’s
Motion to Dismiss does not convert to a motion for summary
judgment. See Robinson v. Dist. of Columbia, 736 F. Supp. 2d
254, 263 (D.D.C. 2010). Likewise, although Plaintiff has
requested discovery in this case, none of the discovery he seeks
pertains to the exhaustion requirement. See Mots. for
Discovery, Docket Nos. 9, 12, 13 and 15.
                                                                     12
 
for discovery are hereby DENIED as moot.   An appropriate Order

will accompany this Memorandum Opinion.



Signed:   Emmet G. Sullivan
          United States District Judge
          July 9, 2013 




                               13
 
