The opinion of the court was delivered by: Richard W. Roberts United States District Judge
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.
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.*fn1
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 letters to the Pardon Attorney and four other DOJ officials,*fn2 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.
"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 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 non-movant." 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].
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 ...