Charles v. United States
| Decision Date | 30 March 2022 |
| Docket Number | Civil Action 21-1983 (BAH) |
| Parties | NATHAN M. F. CHARLES, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Nathan M. F. Charles, Esq., proceeding pro se, filed this lawsuit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, t compel the production of records maintained by the U.S. Department of Justice (“DOJ”) in connection with plaintiff's previous employment in DOJ's National Security Division (“NSD”) Compl. ¶¶ 1-2, ECF No 1.[1] DOJ now seeks partial dismissal, under Federal Rule of Civil Procedure 12(b)(6), of plaintiff's two claims. Def.'s Partial Mot. to Dismiss (“Def.'s Mot.”), ECF No. 7. Specifically, DOJ seeks “partially [to] dismiss Count One, ” pertaining to two subparts of plaintiff's five-part records request, and to dismiss “the entirety of Count Two.” Id. at 1. In response to DOJ's motion to dismiss, plaintiff has moved for sanctions. Pl.'s Mot. for Sanctions (“Pl.'s Mot. Sanctions”), ECF No. 9. For the reasons set forth below, both pending motions are denied.
Plaintiff is a “former Trial Attorney in the Counterintelligence and Export Control Section” (“CES”) of the NSD at DOJ, Compl. ¶ 5, a position he held “from January 2015 to June 2020 - a little over five years.” Pl.'s Opp'n to Def.'s Partial Mot. to Dismiss (“Pl.'s Opp'n”) at 1-2, ECF No. 8. From October 2019 to March 2020, plaintiff “made at least three . . . communications . . . reporting gross mismanagement” within CES leadership that “amount[ed] to a public safety and national security threat.” Compl. ¶ 7. Plaintiff made these communications “to progressively more senior authorities, ” ultimately filing “a direct complaint to the DOJ Inspector General on March 26, 2020.” Id.
Although these communications were allegedly protected under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8), Compl. ¶ 5, plaintiff contends that his “CES managers met his protected communications with a series of unwarranted, retaliatory, and progressively severe disciplinary actions, ” id. ¶ 8. In May 2020, based on a claim that he had “violat[ed] an instruction he had never received, ” id. ¶¶ 8-9, plaintiff was “suspended from the federal service without pay for seven days, ” id. ¶ 5. Two days after he returned to work from the suspension, his “direct supervisor informed him that he was to be involuntarily transferred to a position he had refused during settlement negotiations and for which he was not qualified.” Id. ¶ 10. “As a direct result of his manager's coercion, ” plaintiff thereafter “resigned from DOJ effective June 19, 2020.” Id. ¶ 11.
On July 30, 2020, in preparation for filing an action “before the Merit Systems Protection Board” against NSD and in the D.C. Superior Court “against his managers . . . for the intentional defamation they perpetrated against him, ” plaintiff submitted a request for records to Patrick Findlay, the “NSD General Counsel and Chief of NSD's FOIA Litigation Unit.” Id. ¶ 12; see also Pl.'s Opp'n, Ex. 1A, July 30, 2020 Letter to NSD (the “Request”), ECF No. 8-2.[2] The Request took the form of a two-page letter, addressed to “The Management of the National Security Division (NSD), United States Department of Justice” with the subject line “Next Steps, ” Request at 1, that was submitted, via email, to Findlay and several other email addresses associated with NSD. See Pl.'s Opp'n, Ex. 1, Pl.'s Emails to NSD at 2, ECF No. 8-2.
The Request begins with the statement that plaintiff was “compelled to take stock of how and why we arrived at this moment” of “heading into active litigation before the Merit Systems Protection Board.” Request at 1. The letter then devoted several paragraphs to critiquing the character of NSD supervisors, id. at 1-2, and “highlight[ing] the incompetence and abdication of leadership by NSD's management, ” id. at 2. Turning to the events that led to his DOJ resignation, plaintiff alleged that “[a]fter [his] observations about NSD's leadership failures started gaining traction, NSD fabricated an allegation that [he] violated a set of instructions” and eventually found him “in violation of a rule NSD had never formally adopted or published to its workforce in any capacity - one which . . . was also in direct conflict with the professional rules of ethics for attorneys.” Id.
Plaintiff concluded the Request stating that he would “file a complaint with the Merit Systems Protection Board as soon as practicable” and requesting the following five categories of documents: (1) “discovery of all [his] personal files on the NSD servers, both unclassified and on the NSD-Secret network (SIPRnet)”; (2) “copies of all [his] emails from both JCON and the NSD-Secret networks”; (3) “copies of all communications between any party regarding [his] disciplinary action, regardless of the network upon which it was sent or its classification”; (4) “all records the DOJ and NSD Human Resources Offices produced on [his] disciplinary action”; and (5) “any and all other documents related to this or any other disciplinary action either taken or contemplated against [him].” Id.
Findlay “did not respond to the letter for several weeks, ” Compl. ¶ 12, prompting plaintiff to “reiterate[] his request” on August 27, 2020, id. ¶ 13, in an email addressed to “nsdfoia@usdoj.gov, ” “mrufoia.requests@usdoj.gov, ” and “oigfoia@usdoj.gov, ” copying the NSD leadership to whom he had initially sent the Request, see Pl.'s Emails to NSD at 1. In this email, plaintiff stated that he had “submitted the attached request for information 27 days ago, ” without any response, id. at 1, and asked for DOJ to “provide the documents as soon as possible, ” id. at 2. Plaintiff “expect[ed] the documents [he] requested pursuant to the Freedom of Information Act of 1967, the Privacy Act of 1974, and because [he was] currently working with the Office of Special Counsel to address NSD's gross mismanagement and prohibited and retaliatory personnel actions and need[ed] the records to show the full extent of [its] errors and omissions.” Id. at 1. Findlay responded to this email “acknowledging the request and agreeing to process it.” Compl. ¶ 13.
The next month, on September 20 and 22, 2020, plaintiff twice “reiterated his request for the information, ” id. ¶¶ 14-15, and on the latter date “Findlay responded and stated he would forward [plaintiff's] email to the appropriate point of contact, ” whereafter “Arnetta Mallory replied with a letter acknowledging the Plaintiff's request, ” id. ¶ 15.[3] Nine months later, on June 7, 2021, plaintiff “reiterated his request for the information” once more, id. ¶ 18, and then on June 10, 2021, “filed an administrative appeal on the grounds that NSD's failure to produce the requested information within ten months of the initial request was effectively a denial of his request, ” id. ¶ 19. DOJ's Office of Information Policy (“OIP”) confirmed receipt of his appeal that same day. Id. Plaintiff requested an expedited decision on his appeal “because the request affected his due process rights” in his litigation before the Merit Systems Protection Board and his defamation suit, id., but DOJ denied the expedition request in an email dated June 15, 2021, id. ¶ 20.
On July 15, 2021, nearly a year after he first submitted his Request, plaintiff filed the instant Complaint, due to the continued failure of DOJ and its subdivisions NSD and CES to provide “any of the records at issue.” Id. ¶ 21. He alleges, in Count One, that DOJ violated the statutory requirements of FOIA by failing “to issue a final determination on, or produce records responsive to, the Plaintiff's FOIA request within the applicable time limit[]” of 30 days from receipt of the Request, id. ¶¶ 22-28; and, in Count Two, that DOJ failed to comply with the statutory requirements of the Privacy Act by “refus[ing] the Plaintiff access to his record and information pertaining to him which is contained in its system” for “nearly a year” and failing to “permit him upon his request to review the record and have a copy made of any portion thereform, ” id. ¶¶ 29-33. Plaintiff further alleges that he has “fully exhausted [his] administrative remedies” under both FOIA, id. ¶ 28, and the Privacy Act, id. ¶ 32.
DOJ has now moved for dismissal of part of Count One and Count Two entirely, on the grounds that the Request failed, in part, to “reasonably describe” the records sought under FOIA in Count One, and because plaintiff had “failed to exhaust administrative remedies with respect to his Privacy Act claim” in Count Two. Def.'s Mot. at 1. In addition to opposing this motion, Pl.'s Opp'n at 1, plaintiff seeks sanctions against DOJ, see Pl.'s Mot. Sanctions, which DOJ opposes, Def.'s Reply Supp. Mot. to Dismiss and Opp'n Pl.'s Mot. for Sanctions (“Def.'s Opp'n”), ECF No. 10.[4] Both motions are now ripe for resolution.[5]
The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Fed.R.Civ.P. 8(a)(2). A motion under Rule 12(b)(6) of these procedural rules does not test a plaintiff's likelihood of success on the merits; rather it tests whether a plaintiff properly has stated a claim. To survive a motion to dismiss under Rule 12(b)(6), a “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible...
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