                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
_______________________________________
                                        )
ANGEL RUIZ RIVERA,                      )
                                        )
            Plaintiff,                  )
                                        )
      v.                                ) Civil Action No. 08-1560 (RBW)
                                        )
ERIC HOLDER, 1 et al.,                  )
                                        )
            Defendants.                 )
_______________________________________)

                                   MEMORANDUM OPINION

        Plaintiff Angel Ruiz Rivera, who is proceeding pro se, brings this action against the

Attorney General, in his official capacity, and other attorneys employed by the United States

Department of Justice ("DOJ"), alleging that under the Fifth Amendment of the United States

Constitution, the Federal Torts Claims Act, 28 U.S.C. § 1346(b) ("FTCA"), and Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971), the defendants improperly caused the "non-

profit technical and higher education institution he founded in Bayamon, [Puerto Rico]," the

Instituto de Educacion Universal ("Instituto"), of which he is the President and fiduciary agent,

to be maliciously prosecuted by the United States Attorney's Office, resulting in $28 million in

taxes being assessed against the plaintiff personally. Complaint ("Compl.") ¶ 9. 2 The plaintiff

contends that the tax liability should have been imposed on the Instituto instead. Compl. ¶¶ 5-7.

The plaintiff also challenges the alleged confiscation of over $2.2 million from the Instituto

1
        Pursuant to Federal Rule of Civil Procedure 25(d)(1), the Court has substituted the current
Attorney General, Eric Holder, for Attorney General Alberto Gonzales, who was in office when this
action was filed.
2
       The plaintiff's complaint lacks paragraph numbers for every paragraph. Where paragraph
numbers are absent, the Court will refer to the page numbers at which the information may be found.
through other legal proceedings. Compl. ¶¶ 2-5, 8-10. 3 Currently before the Court is the

defendants' motion pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for

dismissal of the plaintiff's complaint on the grounds of the Court's lack of subject-matter

jurisdiction, that collateral estoppel and the defendants' sovereign immunity stand as bars to the

plaintiff's complaint, and the plaintiff has failed to state a claim upon which relief can be

granted. 4 See Defendants' Motion to Dismiss the Complaint ("Defs.' Mot."); Memorandum of

Points and Authorities in Support of Defendants' Motion to Dismiss the Complaint ("Defs.'

Mem.") at 1. The plaintiff opposes the motion. 5 For the following reasons, the Court must grant

the defendants' motion.


3
         While the plaintiff filed a pleading entitled "First Amended Complaint" on March 16, 2009, this
document merely listed three factually unsupported and broad legal assertions against the defendants that
the plaintiff sought to add to his original complaint. By itself, the document is insufficient as a matter of
law to put the defendants on notice of all the legal claims against them. See Erickson v. Pardus, 551 U.S.
89, 93 (2007) ("[T]he statement need only 'give the defendant fair notice of what . . . the claim is and the
grounds upon which it rests. '" (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007))).
Yet, the Court must afford considerable deference to a plaintiff who is proceeding pro se, Atherton v.
Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) ("A pro se complaint . . . 'must be
held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Erickson, 551 U.S. at
94)), and accordingly, the Court will consider both the allegations in the plaintiff's original complaint and
the allegations in the plaintiff's amended complaint.
4
         The defendants also seek dismissal of this action under Federal Rules of Civil Procedure 12(b)(2)
and 12(b)(5) based on the plaintiff's alleged deficient service of process and the Court's lack of personal
jurisdiction. Defs.' Mot. at 1; Defs.' Mem. at 8-9 & n.1. The defendants state that to the extent the
plaintiff has brought claims against any of the defendants in their individual capacities, they have not
been individually served, but that even if defendants Garcia, Bonar, and Acosta had been properly served,
the complaint does not allege any activities by them that would bring them within this Court's jurisdiction.
Defs.' Mem. at 9-10. Because the Court grants the defendants' motion on other grounds, it will not reach
these questions.
5
         The Court considered the following documents submitted in connection with this motion:
Plaintiff's Complaint ("Compl."); First Amended Complaint; Defendants' Motion to Dismiss the
Complaint ("Defs.' Mot."); Memorandum of Points and Authorities in Support of Defendants' Motion to
Dismiss the Complaint ("Defs.' Mem."); Plaintiff's Motion in Opposition to Motion to Dismiss ("Pl.'s
Opp'n"); and Defendants' Reply in Support of Their Motion to Dismiss the Complaint ("Defs.' Reply").
         The plaintiff has also filed several motions subsequent to the filing of the defendants' motion to
dismiss, including a Motion to Compel Discovery, which the defendants oppose, see Defendants'

                                                                                             (continued . . .)
                                                      2
                                          I. BACKGROUND

         The present dispute arises from a United States Department of Education ("DOE") audit

of the Instituto that occurred in 1994 and 1995. Compl. ¶ 4. The Instituto was a "private, non-

profit educational institution based in Puerto Rico, which received federal student financial

assistance funds under Title IV of the Higher Education Act of 1965." Defs.' Mem. at 4. The

DOE "administered these financial assistance funds[,] and[] in 1994, the DOE's Inspector

General performed an audit[,] which resulted in findings of 'clock hour,' 'excess cash,' and

'refund' violations by the [Instituto]." 6 Id. As a result of these findings, "the DOE declared [the

Instituto] ineligible to participate in federal student aid programs, imposed a substantial fine, and

instituted collection proceedings to recover $1,284,900 in overcharges, $756,864 in excess cash

receipts, and $655,554 in unpaid refunds." Id. Pursuant to these debts and liabilities, the DOE

confiscated over $2.263 million from the Instituto and the plaintiff in 1997 and the IRS

attempted to collect $28 million from the plaintiff in 1998. Compl. ¶¶ 8-9.

         Beginning in 1996, the plaintiff brought a series of administrative claims against the DOE

to challenge the findings. See Compl. ¶ 12-14; Defs.' Mem. at 5. Although an administrative

law judge granted "a partial reversal of the 'clock hour' finding," on appeal of the law judge's

(. . . continued)

Opposition to Plaintiff's Motion to Compel Discovery, and a motion seeking admissions by the
defendants. Based on the Court's finding that this case should be dismissed, it need not reach the merits
of these subsequently filed motions and they will be denied as moot.
6
         A "clock hour" is "[a] period of time consisting of-(1) A 50- to 60- minute class, Lecture, or
recitation in a 60-minute period; (2) A 50- to 60-minute faculty-supervised laboratory, shop training, or
internship in a 60-minute period." Instituto de Educacion Universal, Inc. v. U.S. Dep't of Educ., 341 F.
Supp. 2d 74, 79 (D.P.R. 2004). The DOE disburses Pell Grant funds to students based on the "requisite
number of clock hours or credit hours of instruction." Id. The clock hour finding by the DOE was based
on the court's concern about the Instituto's calculation of "clock hours in a manner inconsistent with the
regulation with the purpose of receiving funding prematurely for instructional hours that are not actually
earned." Id. at 79-80.



                                                     3
findings the Secretary of Education "reinstated the DOE's initial findings of a 'clock hour'

violation and upheld the other findings of 'excess cash' and 'refund' violations, thus reinstating

[the Instituto's] full liabilities." Defs.' Mem. at 4-5. The plaintiff sought review of the

Secretary's decision from the United States District Court for the District of Puerto Rico. Compl.

¶ 15. "[T]he district court . . . granted summary judgment in favor of [the] DOE," Defs.' Mem. at

4-5, holding that the DOE's actions "were not arbitrary and capricious[,] . . . [had] ample

evidence to support its conclusion[,] . . . [and showed no evidence of] bad faith, improper

conduct, or manipulation by [the DOE] that would permit the Court to reopen the established

agency record." Instituto de Educacion Universal, Inc. v. U.S. Dep't of Educ., 341 F. Supp. 2d

74, 80-84 (D.P.R. 2004). The First Circuit affirmed the district court's decision in 2007. See

Instituto de Educacion Universal, Inc. v. U.S. Dep't of Educ., No. 06-1562, 2007 WL 1519059,

at *1 (1st Cir. May 11, 2007).

       Throughout the plaintiff's administrative complaint process and the subsequent litigation

in federal court, the plaintiff has maintained that the DOE's audit findings pertaining to the clock

hour refund and excess cash violations conflicted with clear and convincing evidence that called

for the opposite conclusions. See generally Compl. The plaintiff further alleges in this case that

the audit findings were tainted by the fraudulent actions by both DOE's legal counsel and further

perpetuated by the defendants. Specifically, the plaintiff asserts that the DOE

       [o]bstruct[ed] justice [by] deliberately suppressing the . . . fact [that Auditor Nater
       was expelled;] . . . suborned the perjury of his supervisor, Puerto Rico's OIG
       Office Chief Auditor Porfirio Rios[;] . . . suborned the perjury of corrupt [Internal
       Revenue Board] auditor Felix Lugo[;] . . . and intimidated the . . . independent
       Certified Public Accountants . . . that [the plaintiff] had [called upon] as witnesses
       [in support of his case].

Compl. ¶ 41. The plaintiff seeks to recover civil damages for injuries arising from the defendant

attorneys' representation of the DOE, predicated on his theory that the defendants' representation

                                                  4
wrongfully perpetuates the DOE's alleged fraud, and that the defendants have ignored

exculpatory evidence in their possession that would have assisted the plaintiff in prior

proceedings. Compl. ¶ 28. It is the plaintiff's position that because the defendants "knew or

should ha[ve] reasonably known" that the available evidence contradicted the basis for the DOE's

defense, the plaintiff's rights were violated. See generally Pl.'s Opp'n. The plaintiff therefore

requests that the Court compel the defendants to "produce . . . suppressed exonerating evidence

and to dismiss . . . all the . . . imputed liabilities against the [p]laintiff." 7 Compl. at 28. As noted

above, the defendants have now filed a motion to dismiss the plaintiff's claims on the grounds

that the Court lacks subject-matter jurisdiction, that collateral estoppel and the defendants'

sovereign immunity stand as bars to the plaintiff's complaint, and that the plaintiff has failed to

state a claim upon which relief can be granted. See Defs.' Mem.


7
         The plaintiff's request to compel the defendants to disclose their evidence appears to be pursued
only for the purpose of having the defendants admit to their alleged wrongdoing. Compl. at 27 ("[T]he
[d]efendants . . . [acted] contrary to the overwhelming smoking gun and beyond doubt evidence timely
produced.") Further, the plaintiff's complaint fails to clarify exactly the evidence that he seeks to have the
defendants disclose. See Compl. at 28 (requesting an order to "produce all . . . suppressed exonerating
evidence.") Although a complaint may be "ambiguous on its face[,] . . . a lack of specificity is not fatal so
long as the defendant[s] [are] given 'fair notice' of the plaintiff's claim." Arent v. Shalala, 70 F.3d 610,
618 (D.C. Cir. 1995) (citation omitted). However, the plaintiff's assertion that the defendants possess and
are withholding exculpatory evidence, predicated on the plaintiff's assertion that he also possesses the
evidence, is speculative at best. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Factual
allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that
all of the allegations in the complaint are true.") Further, given that the Puerto Rico District Court has
already held that the DOE's investigations and administrative proceedings were not "found to be arbitrary
and capricious, an abuse of discretion, or contrary to law[,]" Instituto de Educacion Universal, Inc., 341 F.
Supp. 2d at 79, claim preclusion prohibits the Court from questioning those findings, Drake v. FAA, 291
F.3d 59, 66 (D.C. Cir. 2002) ("'[A] final judgment on the merits of an action precludes the parties . . .
from relitigating issues that were . . . raised in that action.'" (quoting Allen v. McCurry, 449 U.S. 90, 94
(1980))). The plaintiff has already availed himself of the opportunity to be heard in court and the
evidence in his favor in that prior litigation was given due consideration. See Instituto de Educacion
Universal, Inc., 341 F. Supp. 2d at 80 ("[T]he regulatory language is unambiguous, and . . . enforced in a
manner that is consistent with [its] language."); id. at 82 ("[T]he administrative record identifies with
particularity the manner in which [the DOE] rendered its assessment."); id. at 83 ("[B]oth the hearing
official and the Secretary did consider [the plaintiff's] evidence . . . and provide[] an explanation for their
decisions.").



                                                      5
                                 II. STANDARDS OF REVIEW

A.     Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction

       In deciding a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule

of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the complaint,

but "may consider materials outside of the pleadings in deciding whether to grant a motion to

dismiss for lack of jurisdiction[.]" Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253

(D.C. Cir. 2005). Moreover, under Rule 12(b)(1), "it is to be presumed that a cause lies outside

[the federal courts'] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994), unless the plaintiff establishes by a preponderance of the evidence that the

Court has jurisdiction, see, e.g., Hollington v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006).

B.     Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

       A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the

plaintiff properly has stated a claim upon which relief may be granted. Woodruff v. DiMario,

197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, it need

only provide "a short and plain statement of the claim showing that the pleader is entitled to

relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the claim is and

the grounds on which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation

omitted). "Although detailed factual allegations are not necessary to withstand a Rule 12(b)(6)

motion to dismiss, to provide the grounds of entitlement to relief, a plaintiff must furnish more

than labels and conclusions or a formulaic recitation of the elements of a cause of action."

Hinson ex rel N.H. v. Merritt Educ. Ctr., 521 F. Supp. 2d 22, 27 (D.D.C. 2007) (quoting

Twombly, 550 U.S. at 555) (internal quotation marks omitted). Or, as the Supreme Court more

recently stated, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual



                                                  6
matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,

___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A claim is

facially plausible "when the plaintiff pleads factual content that allows the court to draw a

reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting

Twombly, 550 U.S. at 556). A complaint alleging facts which are "'merely consistent with' a

defendant's liability . . . 'stops short of the line between possibility and plausibility of 'entitlement

to relief.'" Id. (quoting Twombly 550 U.S. at 557) (brackets omitted). Moreover, "[a] dismissal

with prejudice is warranted only when a trial court determines that the allegation of other facts

consistent with the challenged pleading could not possibly cure the deficiency." Firestone v.

Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (internal quotation marks and citations omitted)

(emphasis in original). Finally, in evaluating a Rule 12(b)(6) motion, "[t]he complaint must be

liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that

can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.

1979) (internal quotation marks and citations omitted), and the Court "may consider only the

facts alleged in the complaint, any documents either attached to or incorporated in the complaint

and matters of which [the Court] may take judicial notice[,]" E.E.O.C. v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted).




                                                    7
                                      III. LEGAL ANALYSIS

A.      Standing

        The defendants contend that the plaintiff lacks Article III standing to bring a claim for

relief against them in their individual capacities because the plaintiff is bringing this lawsuit on

his own behalf, and not on behalf of the Instituto, "the target of the decisions and findings of the

[the DOE]." Defs.' Mem. at 16. The plaintiff rejoins that he has suffered personal harm as a

result of the defendant's actions. Compl. ¶ 7. Specifically, the plaintiff states that "the IRS has

attempted to collect [Trust Fund Liabilities] from [him] personally on various occasions," id. ¶ 6;

DOE agents "preconfiscated over $2.263 million dollars from [the Instituto] and [the]

[p]laintiff," id. ¶ 8; "in 1998, the IRS attempted to collect from [the plaintiff] over $28 million

dollars that [the Instituto] allegedly owed the" DOE," id. ¶ 9; and the "alleged debt . . . [will]

negatively affect [the plaintiff] personally [as well as] his successors . . . since it is not

dischargeable through a personal bankruptcy." Id. ¶ 7.

        "Article III standing is a prerequisite to federal court jurisdiction." American Library

Ass'n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005). "In 'reviewing the standing question, the

court must be careful not to decide the questions on the merits for or against the plaintiff, and

must therefore assume that on the merits the plaintiffs would be successful in their claims.'"

Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 (D.C. Cir. 2008) (citing City of Waukesha

v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)). "To demonstrate standing under Article III of the

Constitution, [the plaintiff] must show an injury in fact caused by the defendant and redressable

by judicial relief." Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). First, the injury must be

"concrete and particularized" and either "actual or imminent." City of Dania Beach, Fla. v. FAA,



                                                    8
485 F.3d 1181, 1185 (D.C. Cir. 2007) (citing Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663

(D.C. Cir. 1996)). Second, "[t]here must be a causal connection between the injury and the

conduct complained of—the injury has to be 'fairly . . . trace[able] to the challenged action of the

defendant, and not . . . th[e] result [of] the independent action of some third party not before the

court.'" Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky.Welfare Rights Org., 426 U.S. 26, 41-

42 (1976)) (alterations in original). Lastly, "it must be 'likely,' as opposed to merely

'speculative,' that the injury will be 'redressed by a favorable decision.'" Id. (citation omitted).

       The facts alleged by the plaintiff indicate that he has standing to bring his claims before

the Court. While the DOE's audit and enforcement actions were directed at the Instituto, the

plaintiff has adequately alleged actual personal injury arising from the DOE's actions, see Lujan,

504 U.S. at 561 n.1 ("By particularized, we mean that the injury must affect the plaintiff in a

personal and individual way."), having pled that the IRS attempted collection of $28 million

from him personally, the DOE confiscated $2.263 million from both him and the instituto, and

the Trust Fund Liabilities were also levied against him personally, Compl. ¶¶ 5, 8-9. The

causation element is satisfied by the plaintiff's assertion that the defendants' caused these injuries

by representing the DOE despite exculpatory evidence in their possession that should have

dissuaded them from doing so. Compl. at 27-28. Lastly, the plaintiff's injury is redressible by a

favorable decision from the Court granting the monetary or injunctive relief requested, which

would serve to mitigate the plaintiff's personal financial liabilities. Therefore, the plaintiff has

sufficiently demonstrated a cognizable injury caused by the defendants that is redressible by

judicial relief, and accordingly, the Court cannot dismiss this case on the basis that the plaintiff

lacks constitutional standing to pursue it.




                                                   9
B.      Res Judicata and Collateral Estoppel

        The defendants argue that the plaintiff's involvement in previously filed litigation,

including Rivera v. Gonzales, No. 07-0019 (RBW) (D.D.C. Jan. 3, 2007) ("Rivera I"), which

was dismissed for lack of standing on December 14, 2007, Defs.' Mem. at 8-9 (citing Dec. 14,

2007 Order at 7, Rivera I, aff'd sub nom, Ruiz Rivera v. Mukasey, No. 08-5015, 2008 WL

4726052 (D.C. Cir. June 12, 2008)), 8 and the legal doctrines of res judicata and collateral

estoppel forbid the relitigation of matters in order "'to conserve judicial resources, avoid

inconsistent results, engender respect for judgments of predictable and certain effect, and to

prevent serial forum-shopping and piecemeal litigation,'" Defs.' Mem. at 6 (quoting Hardison v.

Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981)). The plaintiff responds that his claims are not

barred because the defendants against whom the claims were brought in Rivera I and "the claims

and issues [presented in Rivera I]. . . were . . . distinctly different from the ones in the instant

controversy." Pl.'s Opp'n at 22.

        A brief review of the elements required for the Court to find that a prior judgment has

preclusive effect reveals that those elements are absent from this action and thus no preclusive

effect can attach. "Res judicata bars a claim when there has been a final judgment on the merits

in a prior suit involving the same parties or their privies and the same cause of action." Polsby v.

Thompson, 201 F. Supp. 2d 45, 48 (D.D.C. 2002) (citing I.A.M. Nat'l Pension Fund v. Indus.

Gear Mfg. Co., 723 F.2d 944, 946-47 (D.C. Cir. 1983)). The doctrine precludes relitigation of

claims that are identical to the claims that were raised and addressed previously or could have

been raised in the earlier lawsuit, as well as "'issue[s] of fact or law [which were] actually

8
        The defendants appear to only seek to assert claim and issue preclusion with respect to Rivera I
and not the decision in Instituto de Educacion Universal, Inc. v. U.S. Dep't of Educ., 341 F. Supp. 2d 74
(D.P.R. 2004).



                                                    10
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." Taylor v. Sturgell, ___ U.S. ___, ___, 128 S.

Ct. 2161, 2171 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742 (2001)). "The four

factors that must exist for res judicata to apply are (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." Polsby, 201 F. Supp. 2d at 48 (citing, among others,

U.S. Indus., Inc. v. Blake Constr. Co., 765 F.2d 195, 205 n.21 (D.C. Cir. 1985)). Similarly,

"[u]nder collateral estoppel, once a court has decided an issue of fact or law necessary to its

judgment, that decision may preclude relitigation of the issue in a suit on a different cause of

action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94 (1980) (citation

omitted). These two doctrines "relieve parties of the cost and vexation of multiple lawsuits,

conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on

adjudication." Id. (citations omitted). By "preclud[ing] parties from contesting matters that they

have had a full and fair opportunity to litigate[,] [the doctrines of issue and claim preclusion]

protect[] . . . [against] the expense and vexation attending multiple lawsuits, conserve[] judicial

resources, and foster[] reliance on judicial action by minimizing the possibility of inconsistent

decisions." Montana v. United States, 440 U.S. 147, 153-54 (1979).

        While the defendants are correct that the "[p]laintiff could have raised [the issues in

Rivera I] in the previous action[,] but chose to not do so," Defs.' Mem. at 8, the Court's previous

decision in Rivera I was a dismissal on standing grounds, not "a final judgment on the merits,"

Polsby, 201 F. Supp. 2d at 48, and as a result, it cannot be said that the plaintiff received or "had

a full and fair opportunity to litigate" the issues alleged in this action, Montana, 440 U.S. at 153-

54; accord Kasap v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C. Cir.



                                                   11
1999) ("[D]ismissals for lack of jurisdiction are not decisions on the merits and therefore have no

res judicata effect on subsequent attempts to bring suit in a court of competent jurisdiction."

(citation omitted)). Therefore, the only issue upon which collateral estoppel has attached is on

the issue of the plaintiff's "standing to petition for a writ of mandamus that would compel the

[Office of Professional Responsibility] or the [Office of the Inspector General] to investigate the

conduct of certain Assistant United States Attorneys." Jan. 10, 2008 Order at 3, Rivera I; see

Cutler v. Hayes, 818 F.2d 879, 889 (D.C. Cir. 1987) ("Principles of collateral estoppel clearly

apply to standing determinations."). That issue, however, is not a question that is presently

before this Court. Accordingly, the Court cannot dismiss this case on the basis that either res

judicata or collateral estoppel precludes the plaintiff from pursuing the current lawsuit.

C.     Immunity

       1.      The Attorney General

       The defendants assert that the Attorney General of the United States is entitled to

absolute immunity by virtue of his position as an executive officer and supervisor of a cabinet-

level department. Defs.' Mem. at 11. The plaintiff argues in response that as the supervisor of

the defendant attorneys, the Attorney General has incurred "supervisory liability" for negligently

failing to pursue the plaintiff's claims of "misconduct and violations" asserted against his

subordinates. Pl.'s Opp'n at 23.

       The guiding precedent is clear and unequivocal in addressing this issue. Bivens held that

"plaintiffs may sue federal officials in their individual capacities for damages for Fourth

Amendment violations." Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir.

2005) (citing Bivens, 403 U.S. at 395-97). However, "[g]overnment officials may not be held

liable [in a Bivens action] for the unconstitutional conduct of their subordinates under a theory of



                                                 12
respondeat superior." Iqbal, 129 S.Ct. at 1948; see id. ("Because vicarious liability is

inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official's own individual actions, has violated the Constitution.")

Furthermore, any "attempt[] to sue the former Attorney General in his official capacity . . . is

barred by sovereign immunity." Perkins v. Ashcroft, 275 Fed. App'x 17, 17 (D.C. Cir. 2008).

Therefore, to the extent that the plaintiff is attempting to seek damages from the Attorney

General in his official capacity under the FTCA or in his individual capacity under Bivens, no

remedy is available. Accordingly, the Court must dismiss the plaintiff's claims against the

Attorney General.

       2.      The United States Attorney and Assistant United States Attorney Defendants

       The subordinate defendant attorneys claim that they are entitled to either absolute or

qualified immunity from the plaintiff's claims for damages. Defs.' Mem. at 11. These attorneys

assert that "when federal government agency attorneys engage in activities related to evidence

gathering and presentation of that evidence to an adjudicative body, those attorneys enjoy

absolute immunity for any damages claims arising from those activities." Id. at 12.

Furthermore, these defendant attorneys claim that even if they are not entitled to absolute

immunity, they are entitled to qualified immunity, which shields from civil liability

"discretionary functions . . . insofar as [the] conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known." Id. at 13 (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

       The plaintiff responds that because his "[c]onstitutional protections were violated with

deliberate[] indifference by the [d]efendants," any asserted claim to immunity that the defendants

make has been abrogated. Pl.'s Opp'n at 5. Specifically, the plaintiff argues, by failing to reveal



                                                 13
exculpatory evidence and relying on allegedly fraudulent evidence during the DOE's defense, the

defendant attorneys committed "vindictive and malicious prosecution . . . in violation of the

[p]laintiff's [c]onstitutional" rights. Compl. at 27. The plaintiff characterizes the defendant

attorneys' failure to recognize and disclose to him exculpatory evidence as negligent

investigatory conduct while acting as "client-agency legal counsels . . . [,] [which is] first and

foremost an investigative role." Id. ¶ 35. Such a function, he argues, is entitled to only qualified

immunity under Imbler v. Pachtman, 424 U.S. 409 (1976). Compl. ¶ 35.

       In Imbler v. Pachtman, the Supreme Court held that when "initiating a prosecution and in

presenting the State's case, [a] prosecutor is immune from a civil suit for damages[.]" 424 U.S.

at 431. Prosecutorial immunity "turns on the function performed by the prosecutor" and depends

on whether the conduct was "intimately associated" with the judicial process, Atherton v. Dist. of

Columbia Office of Mayor, 567 F.3d 672, 683 (D.C. Cir. 2009), with emphasis placed upon

"whether the particular activity in dispute was performed by a prosecutor in his or her official

capacity as an advocate for the state in the course of judicial proceedings[,]" id. (citing Kalina v.

Fletcher, 522 U.S. 118, 125 (1997)). In light of this principle, "[a] prosecutor receives absolute

immunity only when he acts as an 'advocate.'" Gray v. Bell, 712 F.2d 490, 499 (D.C. Cir. 1983).

A prosecutor's advocacy role is distinct and separate from a prosecutor's performance of

"'administrative duties and those investigatory functions that do not relate to an advocate's

preparation for the initiation of a prosecution or for judicial proceedings,'" for which there is no

immunity. Atherton, 567 F.3d at 683 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993)). Therefore, while "[d]elineation of the precise scope of protected advocatory conduct . .

. has proved to be exceedingly difficult[,] . . . [c]ourts are agreed that that purely advocatory

functions—conduct implicating . . . solely the initiation and prosecution of . . . trial



                                                  14
proceedings—triggers absolute immunity." Gray, 712 F.2d at 499. At a minimum, advocatory

conduct includes "initiating a prosecution" and "presenting the State's case." Moore v. Valder, 65

F.3d 189, 193 (D.C. Cir. 1995) (quoting Imbler, 424 U.S. at 431). "Additionally, 'whether to

present a case to a grand jury, whether to file an information, whether and when to prosecute,

whether to dismiss an indictment against particular defendants, which witnesses to call, and what

other evidence to present' are advocatory decisions." Id. at 193 n.6 (citing Imbler, 424 U.S. at

431 n.33). In comparison, investigatory functions are "activit[ies] of 'police nature'" such as

"acquiring evidence which might be used in a prosecution." Moore, 65 F.3d at 194 (quoting

Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987)). A prosecutor's investigatory function is in

"contradistinction to [the] 'organization, evaluation, and marshalling' of such evidence," which

falls within the purview of advocatory conduct and is thus entitled to absolute immunity. Id.

(quoting Barbera, 836 F.2d at 100).

       The Supreme Court recognized that absolute

       immunity . . . leave[s] the genuinely wronged defendant without civil redress
       against a prosecutor whose malicious or dishonest action deprives him of liberty.
       But the alternative of qualifying a prosecutor's immunity would disserve the
       broader public interest. It would prevent the vigorous and fearless performance of
       the prosecutor's duty that is essential to the proper functioning of the criminal
       justice system.

Imbler, 424 U.S. at 427-428; see Imbler v. Pachtman, 500 F.2d 1301, 1304 (9th Cir. 1974), aff'd

424 U.S. 409 ("The 'balance between the evils inevitable in either alternative' has consistently

been struck in favor of protecting honest criminal prosecution, at the expense of those injured by

scoundrels, by granting immunity from suit to all prosecutors.") That prosecutorial immunity

exists presumes that "the safeguards built into the judicial process [already] reduce the need for

private damages actions as a means of controlling unconstitutional conduct." Butz v. Economou,

438 U.S. 478, 512 (1978). Such safeguards include "not only . . . their professional obligations,

                                                15
but . . . the knowledge that their assertions will be contested in open court," id., which is both

"adversar[ial] in nature" and "conducted before an impartial judge," Simons v. Bellinger, 643

F.2d 774, 782 (D.C. Cir. 1980). Moreover, "[a]lternative mechanisms, such as the trial judge's

remedial powers, appellate review and post-conviction collateral remedies, exist to remedy

injury caused by prosecutorial misconduct." Moore, 65 F.3d at 193. Accordingly, because

"evidence [is] subject to attack through cross-examination, rebuttal, or reinterpretation by

opposing counsel," Butz, 438 U.S. at 515, "both the prosecution and defense have wide

discretion in the conduct of the trial and the presentation of evidence," Imbler, 424 U.S. at 426.

        A review of the plaintiff's complaint reveals that the plaintiff seeks to hold the

subordinate defendant attorneys liable for conduct that the standard judicial procedures are meant

to address, not the type of malicious or dishonest misconduct to which prosecutorial immunity

would not attach. Specifically, the plaintiff claims that these defendants acted "egregiously and

maliciously derelict in their duties by failing to provide legal advice to their client agency."

Compl. ¶ 28. The alleged failure to provide legal advice is founded on the defendant attorneys

acting in defense of DOE findings "contrary to the overwhelming smoking gun and beyond

doubt evidence timely produced," id. at 27-28, and on the defendant attorneys'' "fail[ure] to

adequately [evaluate the] evidence," id. at 26. These assertions directly attack the manner in

which the defendant attorneys presented their evidence and conveyed their arguments in their

role as advocates for the government before the courts. 9 It is precisely this activity from which


9
        It is unclear from the pleadings whether the defendant attorneys’ representation of the DOE
extended into the administrative hearings that found the plaintiff in violation of federal regulations.
However, the defendant prosecutors would still be absolutely immune for their representation during
administrative hearings. See Butz, 438 U.S. at 512-13 (“[A]djudication within a federal administrative
agency shares enough of the characteristics of the judicial process that those who participate in such
adjudication should also be immune from suits for damages.”).

                                                                                           (continued . . .)
                                                   16
prosecutors are explicitly and absolutely immune from civil suits. Atherton, 567 F.3d at 683;

accord Burns v. Reed, 500 U.S. 478, 491 (1991) (The presentation of evidence and arguments

before a court "clearly involve[s] the prosecutor's 'role as advocate for the State'"). Such is the

case even where the plaintiff's allegations impute "malicious or dishonest" conduct. 10 Imbler,

424 U.S. at 427-428; see, e.g., id. (barring claims that prosecutors used false testimony and

withheld exculpatory evidence); Peay v. Ajello, 470 F.3d 65 (2d Cir. 2006) (barring claims that

prosecutors fabricated evidence, withheld exculpatory evidence, and suborned perjury); Boyd v.

Biggers, 31 F.3d 279 (5th Cir. 1994) (barring claims that prosecutors used perjured testimony at

trial); Lee v. Willins, 617 F.2d 320 (2d Cir. 1980) (barring claims that prosecutors falsified

evidence and suborned perjury); Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979) (barring claims

that prosecutors used perjured testimony at trial). For the Court to hold otherwise would leave

prosecutors "constrained in making every decision [based on] the consequences . . . of his [or

her] own potential liability in a suit for damages." Imbler, 424 U.S at 424-25. Indeed, the work

of a prosecutor necessarily involves a great deal of discretion and their public functions would

suffer if they incurred potential liability for every decision made in the course of their official

duties. See id. Therefore, this Court must find that the Attorney General's subordinate defendant




(. . . continued)


10
         Although the Puerto Rico District Court did not decide the issues of fraud and malicious
prosecution, that court thoroughly reviewed the administrative record, the plaintiff's evidence, and the
plaintiff's arguments before finding that the DOE's findings were proper and not "arbitrary and
capricious." See supra n.7; see also Instituto de Educacion Universal Corp. v. U.S. Dep't of Educ., 341 F.
Supp. 2d 74 (D.P.R. 2004).




                                                   17
attorneys are entitled to absolute immunity for the conduct alleged by the plaintiff to be

wrongful, as it was plainly advocatory in nature. 11

                                          IV. CONCLUSION

        For foregoing reasons, the defendant's motion to dismiss must be granted. 12



                                                          _____/s/________________
                                                          Reggie B. Walton
                                                          United States District Judge




11
          Even if the Court were not required to accord the defendant attorneys absolutely immunity from
liability for the actions alleged by the plaintiff, they would nonetheless be entitled to qualified immunity.
"[Q]ualified immunity protects officials from liability 'insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.'" Atherton,
567 F.3d at 689 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A qualified immunity analysis
requires that the Court consider "whether the alleged facts show that the individual's conduct violated a
statutory or constitutional right, and . . . whether that right was clearly established at the time of the
incident." Id. First, insofar as the plaintiff has alleged a violation of the Fourth Amendment, there are no
allegations that the defendant attorneys personally conducted any unreasonable search or seizure of the
plaintiff or his property, or even that they authorized such a search or seizure. Pl.'s Opp'n at 4. Second,
the plaintiff's claim that the defendant attorneys deprived him of his right to petition under the First
Amendment and right to due process under the Fifth Amendment is unavailing. Id.; see Atherton, 567
F.3d at 690 (“[A] fundamental requirement of due process is the opportunity to be heard . . . at a
meaningful time and in a meaningful manner” (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))).
The plaintiff had the opportunity to present his case at the administrative hearings where he and the
Instituto were found to be in violation of federal regulations, and he subsequently had the opportunity to
appeal that decision to the Puerto Rico District Court and the First Circuit. See supra n.7. And those
administrative and judicial forums conducted thorough reviews of the administrative record and the
plaintiff's evidence. Id. As a result, the Court does not find that the plaintiff was deprived of any
constitutional rights, and the defendants are therefore also entitled to qualified immunity.
12
        An Order consistent with the Court’s ruling was issued on September 28, 2009. That Order is
final and appealable upon the issuance of this Memorandum Opinion.



                                                     18
