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Djenasevic v. Executive Office of United States Attorney

United States District Court, District of Columbia

August 14, 2018

KABIL A. DJENASEVIC, pro se, Plaintiff,


          Royce C. Lamberth United States District Judge

         This 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.[1] 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.

         I. BACKGROUND

         In 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.

         Since 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.[2] 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.

         In his 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.


         A. Legal 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 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).

         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 facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

         B. Discussion

         Defendants 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.

         1. Statute of Limitations

         First, 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).

         Here, 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.

         2. Records Exempt from Amendment and Disclosure under the Privacy Act

         Defendants 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).

         Here, the plaintiffs amendment requests fall squarely within those exemptions. He requested amendment of his pre-sentence report[3] 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. § 552a(e)(5)").[4]

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.

         The 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 withheld.

         The 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. ...

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