United States District Court, District of Columbia
ROBERT A. BERMAN, Plaintiff,
JOSEPH D. CROOK, JR., et al., Defendants.
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
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
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.
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.
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).
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.
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
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 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.
17, 2017, the defendants moved to dismiss all of Mr.
Berman's claims alleged in his Amended Complaint.
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).
Rule 12(b)(2) Standard
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 ...