Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berman v. Crook

United States District Court, District of Columbia

February 1, 2018

ROBERT A. BERMAN, Plaintiff,
JOSEPH D. CROOK, JR., et al., Defendants.



         Plaintiff Robert A. Berman brings this case pro se against defendants Joseph D. (Donald) Crook, Jr., a Special Agent with the Department of the Interior; Brenda K. Morris, a former attorney in the Criminal Division of the Department of Justice; and David M. Finkelstein and Judith Rabinowitz, attorneys in the Commercial Litigation Branch of the Civil Division of the Department of Justice. Before the Court is the defendants' Motion to Dismiss the Amended Complaint. ECF No. 29. Upon consideration of the defendants' motion, the opposition and replies thereto, the applicable law, and the entire record herein, the Court will GRANT the Motion to Dismiss.

         I. BACKGROUND[1]

         Plaintiff Robert A. Berman is a former senior economist in the Department of the Interior. He provided assistance to a nonprofit organization, Project on Government Oversight ("POGO"), in connection with POGO's qui tarn actions to recover unpaid royalties owed by oil companies to the federal government. Mr. Berman declined to join as co-relator in the actions, but he and POGO agreed that he would receive one third of POGO's recovery. After the United States intervened, it recovered $440 million from the companies. POGO received a $1.2 million share of the settlement and issued a check to Mr. Berman for $383, 600. See No. 03-cv-00096, ECF No. 168 at 2-3.

         Subsequently, in 1998, Brenda Morris impaneled a grand jury to investigate Mr. Berman. She sought and obtained a warrant to search his office based on the affidavit of Donald Crook, a Special Agent with the Department of the Interior. The government did not seek an indictment of Mr. Berman and he was not charged with any crimes. During the investigation, however, the government was granted a motion to seal the Crook affidavit. After Mr. Berman moved to unseal in 2000, the government provided Mr. Berman a redacted version of the affidavit, who claimed that it was full of fabrications, half-truths, and unsupported speculation. In 2008, the court ordered that the affidavit be unsealed, but the Clerk's office failed to unseal the affidavit at that time. In 2013, the court again ordered the Clerk's office to unseal the affidavit.

         Meanwhile, in 2003, the government-represented in part by Judith Rabinowitz-filed a civil action against Mr. Berman for disgorgement of the payment that he had received from POGO. The government sought disclosure of the grand jury material gathered during the investigation, and its petition was granted by the court. In granting the government's motion, Judge Hogan noted that "[n]o opposition has been filed." ECF No. 16-4 (under seal). The grand jury material was transferred from the Criminal Division to the Civil Division. The case eventually went to trial in 2008 and a verdict was issued in favor of the government. Mr. Berman appealed and the verdict was vacated and the case was remanded. Mr. Berman, now proceeding pro se, filed a motion to dismiss and for sanctions, and a motion to compel affidavits and other evidence on which the government intended to rely, which was denied as premature. In 2012, the court denied the motion to dismiss and tor sanctions, and granted summary judgment in favor of the government on one of the counts-the breach-of-fiduciary-duty count. David Finkelstein then entered an appearance in the case for the government and a second jury trial was held on the remaining claims which ended in a mistrial. In 1014, the D.C. Circuit upheld the district court's summary judgement finding that Mr. Berman breached his fiduciary duty and that he had to disgorge the payment he received from POGO. United States v. Project on Gov 7 Oversight, 766 F.3d 9 (D.C. Cir. 2014).

         In 2013, Mr. Berman filed a motion to unseal, seeking access to materials related to the search warrant, which the court interpreted as a petition for grand jury materials. The court ordered Mr. Berman to provide justification for the disclosure. Mr. Berman claimed that the remaining grand jury materials were relevant to his pending D.C. Circuit case and his case before the Merit Systems Protection Board. In February 2014, after order by the court, the government disclosed the remaining grand jury materials to Mr. Berman.

         Mr. Bernan now brings a Bivens action seeking damages against the defendants for providing a false search warrant affidavit and for conducting an unlawful search and seizure in violation of the fourth and Fourteenth Amendments; for conspiring to deny his due process rights by denying access to a search warrant affidavit and for knowingly using the fruits of an unlawful search; for conspiring to deny his due process rights by unlawfully misappropriating district court records; and for conspiring to use the grand jury in service of a planned civil suit. Although Mr. Berman refract his claims under a Bivens theory in his Amended Complaint, the individual counts still assert claims against the defendants under 42 U.S.C. § § 1983, 1985, and 1988.

         In support of his claims, Mr. Berman argues that Ms. Morris knew, prior to launching the criminal investigation, that a document existed that refuted her theory of criminal misconduct, but she never disclosed the document to the grand jury. He further states that the search warrant affidavit signed by Mr. Crook contained false allegations, and absent those false allegations, the affidavit could not support a finding of probable cause. Turning to the 2003 civil case, Mr. Berman states that Ms. Rabinowitz used materials gained from the illegal search to support the government's case and notes that despite the expiration of the seal, the search warrant materials remained under seal. Then Ms. Rabinowitz filed a motion to obtain a copy of the grand jury materials, including the search warrant affidavit, failing to disclose that the investigation was closed without seeking an indictment. Mr. Berman claims that Ms. Rabinowitz and Ms. Morris conspired to transfer the records-which were the property of the district court-with the intent to deny Mr. Berman access.

         Mr. Berman further posits that in 2008, Ms. Morris filed a motion with a different magistrate judge to unseal the affidavit and did not include a certificate of service so that Mr. Berman would not be aware of the filing. Mr. Berman asserts that it was not until mid-2013- after he had filed a motion to unseal the affidavit-that the government revealed that Ms. Morris had closed the grand jury investigation without seeking indictment and that it intentionally withheld the search warrant affidavit from civil pre-trial discovery by alleging that it contained grand jury material, and that due to age, the record was likely destroyed. In November 2013, the magistrate judge determined that there were no grand jury materials in the search warrant affidavit and ordered that it be unsealed. In addition, Mr. Berman argues that Mr. Finkelstein intentionally, and without authorization, distributed grand jury documents to individuals not authorized to view them and that he introduced the fruits of the illegal search and lied to the district court regarding false statements in the affidavit.

         On May 17, 2017, the defendants moved to dismiss all of Mr. Berman's claims alleged in his Amended Complaint.


         A. Rule 12(b)(6) Standard

         To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most favorable to the plaintiff. A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). While the factual allegations in the complaint need not be "detailed, " the Federal Rules require more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555). The Court need not accept as true "a legal conclusion couched as a factual allegation, " nor an inference unsupported by the facts set forth in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation marks omitted)). The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice." Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006).

         B. Rule 12(b)(2) Standard

         Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a suit if the court lacks personal jurisdiction over it. The plaintiff bears the burden of establishing personal jurisdiction. See FC Inv. Grp. LC v. IFX Mkts., Ltd.,529 F.3d 1087, 1091 (D.C. Cir. 2008). In deciding whether the plaintiff has shown a factual basis for personal jurisdiction over a defendant, the court resolves factual ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.