The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff Oscar Eliseo Medelius Rodriguez filed this pro se complaint seeking a declaratory judgment that the defendant's alleged disclosure of his whereabouts in the United States was a violation of his Fourth Amendment right to privacy and his Fifth Amendment right to due process. The defendant, the United States Citizenship and Immigration Service ("USCIS") has filed a motion to dismiss or for summary judgment. Because the plaintiff lacks standing to seek a declaratory judgment, and because the claims presented are barred by the doctrine of res judicata, the defendant's motion to dismiss will be granted and his complaint will be dismissed. In addition, the plaintiff's motion for appointed counsel will be denied.
The complaint states that it "is a declaratory judgment action . . . seeking a court pronouncement about the violation of [plaintiff's] constitutional rights." Compl. at 1. Plaintiff is a Peruvian national admitted to the United States on a non-immigrant visa on July 31, 2001. Id. ¶¶ 3, 5.*fn1 On August 31, 2001, the Attorney General of Peru named plaintiff in an Extended Criminal Complaint. Slip op., Medelius-Rodriguez v. Strickland, Case No. 06-HC-2123-D, at 2 (E.D.N.C. Mar. 16, 2007). In November 2001, plaintiff applied for political asylum to the United States and was granted permission to remain in the United States until his application was decided. Compl. ¶¶ 6, 7. The permission to remain in the United States included a directive that plaintiff keep the United States Department of Justice's Immigration and Naturalization Service informed of his current address. Id. Ex. 1. In August 2002, plaintiff submitted to the USCIS an Application for Employment Authorization, that is, for a work permit; he renewed his application in May 2003. Id. ¶¶ 8, 9 & Ex. 2.
According to the complaint, in or about August 2003, the USCIS disclosed plaintiff's whereabouts to INTERPOL, the International Criminal Police Organization, which resulted in the Peruvian government learning of his location in the United States. Compl. ¶¶ 10, 11 & Exs. 4, 5. On November 23, 2004, the Embassy of Peru in Washington, D.C., submitted a Diplomatic Note to the United States Department of State, requesting plaintiff's extradition. Slip. op., Medlius-Rodriguez v. Strickland, at 2-3. On February 7, 2006, plaintiff was arrested in North Carolina on an extradition complaint. Id. at 3. He was present and represented by counsel at his extradition hearing before United States Magistrate Judge Webb in the Eastern District of North Carolina; the magistrate judge certified his extradition. Id. Plaintiff then challenged the decision through a petition for a writ of habeas corpus, which was denied by United States District Judge Thomas Dever in the Eastern District of North Carolina. Id. at 3, 13. The United States Court of Appeals for the Fourth Circuit affirmed the denial of the habeas petition. Medelius-Rodriguez v. Strickland, 2007 WL 2985304 (4th Cir. Oct. 15, 2007). On April 18, 2008, while this case was pending, plaintiff was extradited to Peru.
Plaintiff's complaint asserts that the USCIS' disclosure of plaintiff's whereabouts to INTERPOL violated the statutory privacy and use provisions codified at 8 U.S.C. § 1324a(b)(5) and (d)(2)(C) - (F). Compl. ¶¶ 13, 19(a).*fn2 On this basis, plaintiff alleges violations of his Fourth Amendment right to privacy and of his Fifth Amendment right to due process. Id. ¶¶ 12, 18. The complaint seeks only a declaratory judgment, not damges. Id. at 8. It does not allege that future disclosures of the sort alleged are likely.
A federal court is limited by the Constitution to considering matters that present a case or controversy. U.S. Const. art. III, § 2. Standing is one of the justiciability doctrines that has developed to give meaning to Article III's case or controversy requirement. Nat'l Treas. Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). A question of Article III standing is a question of subject matter jurisdiction. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) ("Subject matter jurisdiction, then, is an Art. III as well as a statutory requirement[.]") "A plaintiff - even a pro se plaintiff - bears the burden of establishing that the Court has subject matter jurisdiction." Price v. College Park Honda, Civil Action No. 05-624 (PLF), 2006 WL 1102828, *6 (D.D.C. Mar. 31, 2006) (citing Rosenboro v. Kim, 994 F.2d 13, 17 (D.C. Cir. 1993); District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987)).
In deciding a motion to dismiss for lack of subject matter jurisdiction, a court may consider materials outside the pleadings to assist in determining whether it has jurisdiction. Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) ("[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts."). "While the complaint is to be construed liberally, the Court need not accept factual inferences drawn by plaintiff if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions." Price v. College Park Honda, 2006 WL 1102828, *5 (citing Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003); see also Nat'l Treas. Employees Union, 101 F.3d at 1430 (noting that "there is a difference between accepting a plaintiff's allegations of fact as true and accepting as correct the conclusions plaintiff would draw from such facts").
Article III standing requires that a plaintiff have suffered an (1) injury in fact, which is an invasion of a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical; (2) that is fairly traceable to the challenged act; and (3) that is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In addition, to have standing "[t]o pursue . . . a declaratory judgment," a plaintiff "must allege a likelihood of future violations of [his] rights" by the defendant. Fair Employment Council of Greater Washington v. BMC Mktg. Corp., 28 F.3d 1268, 1273 (D.C. Cir. 1994).
Without considering whether plaintiff's complaint alleges facts sufficient to meet the first two requirements for standing, it is clear that it fails to meet the third requirement. A declaratory judgment that the defendant violated plaintiff's rights would not provide any redress for plaintiff's claimed injuries of the USCIS's past violations of his privacy and due process rights. As a pronouncement coupled with no other remedy, it provides no relief for this plaintiff. Plaintiff has not alleged that the disclosure violations are likely to occur again in the future. Instead, plaintiff has argued that he "needs this Declaratory Judgment to claim damages against the agency and [its] agents and/or employees. With the possibility to claim damages the third requirement[, r]edressability[,] has been met." Aff. of Medelius-Rodriguez, (undated) filed Sept. 11, 2008, at 9.
Plaintiff's redressability argument is frivolous. Plaintiff, an attorney, see Slip op., Medelius-Rodriguez v. Strickland at 2, surely knows that a judicial declaration of wrongdoing is not a prerequisite for filing a complaint for damages. (If this were the case, there would be two judicial actions for every damages award.) Indeed, plaintiff filed an action for damages in 2007 against the USCIS and certain unnamed employees for this same disclosure without first seeking a declaratory judgment. See Medelius-Rodriguez v. USCIS et al., Civil Action No. 07-4039DMC, 2008 WL 544702 (D.N.J. Feb. 28, 2008) (dismissing plaintiff's claims under Bivens and the FTCA). Because it is clear that a favorable decision in this suit is not likely to redress plaintiff's ...