United States District Court, District of Columbia
KABIL A. DJENASEVIC, pro se, Plaintiff,
EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, et al., Defendants.
C. Lamberth United States District Judge
case-arising under the Freedom of Information Act (FOIA), 5
U.S.C. § 552, and the Privacy Act, 5 U.S.C. §
552a-concerns access and amendment requests by pro
se plaintiff Kabil Anton Djenasevic for records
maintained by the Executive Office of United States Attorneys
("EOUSA"), Drug Enforcement Administration
("DEA"), and Federal Bureau of Prisons
("BOP"). Defendants EOUSA and BOP move for
dismissal of the plaintiffs Privacy Act claims and defendants
EOUSA and DEA move for summary judgment on the FOIA
claims. Upon consideration of the pleadings, the
entire record, and the applicable law, the Court
GRANTS the defendants' motion to dismiss
the Privacy Act claims and GRANTS the
defendants' motion for summary judgment on the FOIA
claims. ECF No. 46. Conversely, the Court
DENIES the plaintiffs cross-motion for
summary judgment. ECF No. 50.
2007, the United States Court of Appeals for the Eleventh
Circuit affirmed the conviction and sentencing of Mr.
Djenasevic for conspiracy to possess with intent to
distribute one kilogram or more of heroin, in violation of 21
U.S.C. §§ 846 and 841(a)(1), distribution of
heroin, in violation of 21 U.S.C. § § 841(a)(1) and
841(b)(1)(C), possession with intent to distribute 100 grams
or more of heroin, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(i), and illegal possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). U.S. v. Djenasevic, 248 Fed.Appx.
135, 136 (11th Cir. 2007). Mr. Djenasevic subsequently filed
a 28 U.S.C. § 2255 motion in 2009, which the district
court denied. The Eleventh Circuit reversed, finding that his
counsel was ineffective in not moving to withdraw his guilty
plea based on impermissible judicial interference in plea
negotiations. Djenasevic v. United States, 425
Fed.Appx. 834 (11th Cir. 2011). On remand, the district court
vacated Mr. Djenasevic's guilty plea. Following a jury
trial, he was found guilty and his appeal was denied in 2013.
as early as 2011, Mr. Djenasevic has directed numerous
Privacy Act amendment and FOIA requests to EOUSA, DEA, and
BOP. ECF No. 46 at 3-9. The Court incorporates by reference
the Defendant's Statement of Material Facts insofar as
they outline the procedural history regarding the handling of
the plaintiffs various Privacy Act and FOIA requests.
Id. In addition to denying the plaintiffs
request to amend his pre-sentence report, the defendants
released a set of documents and withheld others pursuant to
various FOIA and Privacy Act exemptions.
Amended Complaint, the plaintiff, among other things,
contends that "despite [his] numerous demands to the
defendant's [sic] to release all records and to
make corrections to the same records, that plaintiff also
requires access to, [n]o valid documents were sent, and/or
corrections made by the defendant's [sic]."
ECF No. 30 at 8. The plaintiff seeks relief pursuant to the
Privacy Act and FOIA. The defendants moved to dismiss all
Privacy Act claims and moved for summary judgment on the FOIA
claims. The plaintiff responded and cross-moved for summary
judgment. The Court now considers those motions.
MOTION TO DISMISS PRIVACY ACT CLAIMS
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
Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When
considering a motion to dismiss under Rule 12(b)(6),
"the court must assume 'all the allegations in the
complaint are true (even if doubtful in fact),' and the
court must give the plaintiff the benefit of all reasonable
inferences derived from the facts alleged.'"
Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc.,
525 F.3d 8, 17 (D.C. Cir. 2008) (internal citations omitted).
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 facts alleged in the complaint "must
be enough to raise a right to relief above the speculative
level." Twombly, 550 U.S. at 555.
EOUSA and BOP allege various independent reasons as to why
the Privacy Act claims must be dismissed. The Court finds
that for at least two independent reasons, the Privacy Act
claims must be dismissed.
Statute of Limitations
defendants assert that the claims are barred by the statute
of limitations. Actions to enforce rights under the Privacy
Act must be brought "within two years from the date on
which the cause of action arises ...." 5 U.S.C. §
552a(g)(5); see also Blazy v. Tenet, 979 F.Supp. 10,
22 n. 6 (D.D.C. 1997) (citing Tijerina v. Walters,
821 F.2d 789, 798 (D.C. Cir. 1987). For the purposes of
determining when the cause arose, "the statute of
limitation does not begin to run until the 'plaintiff
knows or should know of the alleged violation.'"
Kursar v. TSA, 751 F.Supp.2d 154, 165 (D.D.C.2010)
(quoting Tijerina, 821 F.2d at 798).
the plaintiffs Privacy Act amendment claims all relate to
information from his criminal case which he believed was
incorrect. And plaintiff knew about the alleged violation as
early as 2010 when he addressed letters to EOUSA seeking
amendments to his records. ECF No. 46-2 at 12. Similarly, he
sent a form to BOP on February 9, 2011 requesting amendments
to "inaccurate/incorrect" records. ECF 46-4 at 40.
The plaintiff did not file the present lawsuit until
September 28, 2016, ECF No. 1 at 14, well beyond the two-year
statute of limitations period. The plaintiff appears to be
arguing that he thought his records were amended by the
Eleventh Circuit's reversing the district court's
denial of his 2255 motion in 2011. However, the record
reflects that on July 21, 2011, EOUSA sent the plaintiff a
letter informing him that his request to amend his records
was denied. ECF No. 46 at 4. Moreover, the plaintiff filed an
administrative remedy request on July 16, 2013, to BOP, again
asserting that his pre-sentence report was incorrect.
Id. The plaintiff cannot credibly argue that he
thought his records were amended in 2011. Therefore, Court
must dismiss the Privacy Act amendment claims on statute of
limitations grounds alone.
Records Exempt from Amendment and Disclosure under the
are also correct that the plaintiff has failed to state a
claim because the records he sought to amend are exempt from
amendment under the Privacy Act. The Privacy Act
"safeguards the public from unwarranted collection,
maintenance, use and dissemination of personal information
contained in agency records ... by allowing an individual to
participate in ensuring that his records are accurate and
properly used, and by imposing responsibilities on federal
agencies to maintain their records accurately."
Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984).
"[L]ike FOIA, the Privacy Act carves out exemptions from
disclosure when a system of records meets certain
criteria." Mobley v. C.I.A., 806 F.3d 568, 586
(D.C. Cir. 2015). Privacy Act Exemption (j)(2) permits an
agency head to promulgate rules exempting certain records
from amendment and disclosure requirements. See 5
U.S.C. § 552a(j). Pursuant to that authority, BOP has
exempted inmate central records, 28 C.F.R. § 16.97(j),
as well as "[presentence records that originated with
the courts," 28 C.F.R. § 16.46(f)(3). Similarly,
the Department of Justice exempts criminal case files
maintained by the U.S. Attorney's Offices from access and
amendment. See 28 C.F.R. §16.81(a).
the plaintiffs amendment requests fall squarely within those
exemptions. He requested amendment of his pre-sentence
report and his underlying criminal case files.
See e.g., ECF No. 46-2 at 12; ECF No.46-4 at 32.
Because BOP and EOUSA have exempted those categories of
records from access and amendment, the plaintiffs Privacy Act
claims must be dismissed. See, e.g. Martinez v. Bureau of
Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per curiam)
(upholding dismissal of Privacy Act claims against BOP which
had "exempted its Inmate Central Record System from the
accuracy provisions of the Privacy Act, 5 U.S.C. §
The records at issue in this case are also exempt from
disclosure under the Privacy Act. Under Exemption (j)(2) of
the Privacy Act, records may be exempted from disclosure when
they are "maintained by an agency or component thereof
which performs as its principal function any activity
pertaining to the enforcement of criminal laws, including
police efforts to prevent, control, or reduce crime or to
apprehend criminals...." 5 U.S.C. § 552a(j)(2). By
regulation, the Department of Justice has exempted criminal
case files maintained by the'U.S. Attorney's Offices
from access. See 28 C.F.R. §16.81(a). Similarly, DEA has
exempted pursuant to Exemption (j)(2) investigative case
files maintained in its Investigative Reporting and Filing
System from access. See 28 C.F.R. § 16.98(i).
As already discussed, the plaintiffs request for access under
the Privacy Act pertain to the criminal investigations in his
case. The Court agrees, therefore, that the documents were
compiled for law enforcement purposes and are exempt from
disclosure under the Privacy Act.
plaintiff also argues that the records in question are
subject to amendment and access pursuant to the public domain
exemption. ECF No. 50 at 2; ECF No. 64 at 5. The plaintiff
appears to assert that because the government identified
certain confidential informants in court filings, the
government is obligated to release and amend the records
relating to the "false testimony" at his trial. ECF
No. 64 at 5. However, the public domain exception only
applies to information "in the public domain by official
disclosure." Wolf v. CIA, 473 F.3d 370, 378
(D.C. Cir. 2007). And the requester bears the "burden of
pointing to specific information in the public domain that
appears to duplicate that being withheld." Id.
(internal citations and quotation marks omitted). The'
plaintiff has failed to meet his burden here. He has not
pointed to any information in the public domain via official
disclosure that duplicates information he alleges is being
plaintiff also argues that regardless of whether the
records' in question are exempted, he may still pursue
his claims because the defendants intentionally and willfully
violated the Privacy Act. ECF No. 50 at 4. Among other
claims, the plaintiff alleges that "[i]t is clear that
the reports were falsely written by the DEA [agents] ...
after [he] did not show at the sting entrapment location
Amoco filling station on January 3, 2001." Id.
at 5. He continues, "[t]hese records were known to the
defendant's agents to be false." Id.
However, the plaintiff does not provide evidence sufficient
to support a violation of the statute. The D.C. Circuit has
held that "a violation of the statute must be so
patently egregious and unlawful that anyone undertaking the
conduct should have known it unlawful." Maydakv.
United States,630 F.3d 166, 179 (D.C. ...