United States District Court, District of Columbia
COLLEEN KOLLAR KOTELLY, United States District Court Judge
Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, and the Privacy Act, see 5 U.S.C. § 552a, against the Drug Enforcement Administration ("DEA"), a component of the United States Department of Justice ("DOJ"). This matter is before the Court on defendant's Motion to Dismiss [ECF No. 10] and Plaintiffs Motion for Summary Judgment [ECF No. 15]. For the reasons discussed below, the Court will dismiss this action.
In the United States District Court for the Eastern District of Virginia, plaintiff was convicted of conspiracy to possess with intent to distribute five or more kilograms of cocaine and one kilogram of heroin. Compl. ¶ 07 (paragraph numbers designated by plaintiff). On July 23, 1999, the court sentenced plaintiff to a 292-month term of imprisonment. Id. The United States Court of Appeals for the Fourth Circuit affirmed the conviction and the Supreme Court of the United States denied plaintiffs petition for a writ of certiorari. See Id. ¶ 08; United States v. Lora, 26 F.App'x 149, 151 (4th Cir. 2001) (per curiam), cert, denied, 535 U.S. 1087 (2002).
"In anticipation of filing [a] motion to vacate the conviction pursuant to 28 U.S.C. § 2255, [plaintiff] filed his first [FOIA] [r]equest to the DEA . . . for . . . information" intended "to prove that his conviction was knowingly and intentionally fabricated by the [Assistant United States Attorney prosecuting the case] in [an] illegitimate effort to force him to testify against others." Compl. ¶ 10; see Id. ¶ 09. Specifically, in 2000, plaintiff sought information about himself and the business he operated in the District of Columbia from January 1994 through July 1996. See Id. ¶¶ 02, 12 (referencing FOIA/PA Request Number 00-0821-C), 22. The DEA purportedly "provided all the files found under [p]laintiff s name and the name of his business, " and from these files it "released three . . . pages and withheld sixty-four . . . pages" of records. Id. ¶ 12; see Id. ¶ 22. Dissatisfied with the DEA's response, plaintiff filed a civil action in this district court in December 2000. Id. ¶ 14; see Lora v. U.S. Dep't of Justice, No. 00-cv-3072 (JGP) (D.D.C. filed December 22, 2000). Among other things, plaintiff alleged that the DEA improperly withheld documents and thus deprived him of information that would have invalidated his criminal conviction. See Mem. of P. & A. in Support of Mot. to Dismiss [ECF No. 10] ("Def.'s Mem."), Ex. 1 (Memorandum Opinion, Lora v. U.S. Dep't of Justice, No. 00-3072 (D.D.C. Apr. 9, 2004)) at 2, 7-8. He did not challenge the adequacy of the DEA's search for responsive records. See id., Ex. 1 at 15-16. The lawsuit ended with a grant of summary judgment for the defendant. See Compl. ¶ 14.
On October 19, 2013, plaintiff submitted another FOIA request to the DEA for "any and all information found under his name" and that of his business. Id. ¶ 15 (referencing FOIA/PA Request Number 14-00034-P). The DEA responded that "[n]o further information other than that previously sent [to plaintiff in response to FOIA/PA Case Nos. 00-0821-P, 02-0036-P and 12-0061-FP was] available." Id. (emphasis omitted). However, the DEA informed plaintiff that eight additional files containing potentially responsive records had been located, and if he chose to have DEA staff search those files, he was required to pay "the amount of $896.00 ... in advance." Id. ¶ 16. Nevertheless, the DEA released eight pages of records and withheld seven pages of records from File No. GD-96-008, which was one of the newly located files. Id. (emphasis omitted).
"After several other correspondences with the [DEA]" and in response to yet another FOIA request, plaintiff learned that the DEA located seven more files containing potentially responsive records linked to him and his business. Id. ¶ 17 (referencing FOIA/PA Case No. 14-00505-P); see Id. ¶ 24. The DEA notified plaintiff that, if he wanted the files to be searched, he was required to "prepay four . . . hours of search per file at $28.00 per hour, for an approximate total of $1, 680.00." Id. ¶ 24; see Id. ¶ 17. Alternatively, if plaintiff chose "to pay per file, the search fee [was] $112.00 for each individual file[.]" Id. ¶ 24. Plaintiff selected four files (File Nos. GD-91-X036, GD-92-0001, GD-92-0003 and GD-92-0096) and prepaid fees for their search. Id. ¶ 18. According to plaintiff, among the information released from these files was "compelling exculpatory information that was not disclosed to him before trial [or] when requested in 2000" in response to his initial FOIA request (FOIA/PA Case No. 00-0821-P). Id.
A. Plaintiff's Privacy Act Claims
Plaintiffs "First Cause of Action, " id. ¶¶ 25-33, pertains to his 2000 FOIA/PA request to the DEA. Plaintiff alleges that the DEA violated the Privacy Act, when it "knowingly and intentionally and with malice failed to disclose" information "identifying him and his place of business, " id. ¶ 25 (emphasis omitted), even though thirteen of the files ultimately found to have contained potentially responsive records had been created before plaintiffs initial FOIA request in 2000, id. ¶ 28; see Id. ¶ 04, 28. He posits that, if he had information from these files to support his § 2255 motion, he could have proven that the government obtained his conviction on the basis of false and fabricated testimony from six cooperating witnesses. Id. ¶¶ 25-26. According to plaintiff, this "lack of evidence" is the sole basis for the dismissal of his § 2255 motion by the Eastern District of Virginia. Id. ¶ 10; see Id. ¶¶ 25-27; see also United States v. Lora, 103 F.App'x 731 (4th Cir. 2004) (per curiam), cert, denied, 543 U.S. 1174 (2005). And because "the DEA knowingly and intentionally withheld information relevant to the criminal conviction for which he is serving 25 years of imprisonment, " Compl. ¶ 02, including "any favorable . . . Brady material, " id. ¶ 32, plaintiff claims that the DEA is liable for damages totaling "[$] 160, 000.00 ... or its equivalent in Gold, " id. ¶ 33.
Similarly, in his "Second Cause of Action, " see Id. ¶¶ 34-40, with respect to the 2014 FOIA request, plaintiff alleges that the DEA failed to release exculpatory information that was unavailable to him at trial and at the time he filed his § 2255 motion, id. ¶ 34. If plaintiff had this information, he claims that he would have been "able to demonstrate that prior to trial the DEA had information capable of establishing that the testimonies of [five government witnesses] were false, and that the DEA and the [Assistant United States Attorney prosecuting the criminal case not only] knew about the falsehood but [also] allowed [these witnesses] to commit perjury to the jury." Id. ¶ 35; see Id. ¶¶ 36-37. But for "the DEA purposely [withholding] that information, " plaintiff asserts, he "would have prevailed in his original and timely ... §2255 [motion], " id. f 38, and he "would have been free 12 years ago, " id. ¶ 40. Plaintiff demands damages of $1, 000, 000.00 "for each year of incarceration since the §2255 motion to vacate was summarily dismissed for lack of the information the DEA knowingly and purposely hid from [him.]" Id. ¶ 40. And in his "third case of action, " id. ¶¶ 41-42, plaintiff demands the disclosure of all the responsive records without prepayment of search fees, id. ¶ 41.
Defendant argues that all of plaintiff s claims are barred and thus are subject to dismissal. See generally Def.'s Mem." at 3-9.
B. Sovereign Immunity
First, defendant moves to dismiss for lack of subject matter jurisdiction on the ground that sovereign immunity bars plaintiffs demands for monetary damages from the federal government itself or ...