Wagdy v. Sullivan, Civil Action No. 16–2164 (TJK)

• Court: U.S. District Court — District of Columbia
• Writing for the Court: TIMOTHY J. KELLY, United States District Judge
• Citation: 316 F.Supp.3d 257
• Parties: Mariam WAGDY, Plaintiff, v. John SULLIVAN, et al., Defendants.
• Docket Number: Civil Action No. 16–2164 (TJK)
• Decision Date: 11 July 2018

316 F.Supp.3d 257

Mariam WAGDY, Plaintiff,
v.
John SULLIVAN, et al., Defendants.

Civil Action No. 16–2164 (TJK)

United States District Court, District of Columbia.

Signed July 11, 2018

316 F.Supp.3d 259

Peter Anthony Jabaly, Jabaly Law, Alexandria, VA, for Plaintiff.

Aram A. Gavoor, U.S. Department of Justice, Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Plaintiff Mariam Wagdy, a noncitizen, filed the instant lawsuit alleging violations of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. , and the Federal Records Act ("FRA"), 44 U.S.C. § 2101 et seq. , by the following entities and individuals: (1) the U.S. Department of State (the "State Department"); (2) the U.S. Coast Guard (the "USCG"); (3) U.S. Customs and Border Protection; (4) the U.S. Department of Homeland Security; and (5) the heads of the aforementioned agencies in their official capacities. ECF No. 2 ("Compl.") (collectively, the "Defendants"). The gravamen of Wagdy's complaint is that Defendants "created and promulgated false information" about her—namely that she was tampering with evidence and obstructing justice in a court-martial proceeding—in order to revoke her visa and deny her entry into the United States to testify at that proceeding. Id. ¶¶ 16–20. Wagdy seeks an injunction "prohibiting the maintenance of the false information in any government databases," and a declaration that the information is, in fact, false. Id. at 13.

Before the Court is Defendants' motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim. ECF No. 22 ("Mot."). For the reasons stated below, the Court will grant the motion, and dismiss the complaint for failure to state a claim under

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either the APA or FRA.¹

I. Background

Wagdy, a citizen of Egypt and resident of the United Arab Emirates, is a frequent traveler to the United States. Compl. ¶¶ 6, 11, 14, 15. According to her complaint, on or about April 23, 2016, an "Agent Huntington" of the USCG Investigative Services falsely informed the State Department that she had tampered with evidence and obstructed justice, in order to prevent her from testifying on behalf of a defendant in a USCG court-martial proceeding. Id. ¶¶ 16–17. Agent Huntington and the USCG allegedly persisted in these efforts for the next several months, leading the State Department to "place[ ] certain false and derogatory information into various government databases," which resulted in the revocation of Wagdy's visa on the eve of the proceeding. Id. ¶¶ 19–20, 24.

On August 6, 2016, the military judge presiding over the court martial found that USCG agents did, in fact, send "at least some ... false information" to the State Department that led to Wagdy's inability to enter the United States and testify. Id. ¶ 30; ECF No. 23–1 ("Court–Martial Order") at 4. As a result, the judge imposed evidentiary penalties on the prosecution. Court–Martial Order at 5–6. Afterwards, the USCG allegedly continued to pressure the State Department to ensure that Wagdy could "never again be eligible to apply for a visa to the United States." Compl. ¶ 29.

According to the complaint, Wagdy has unsuccessfully reapplied for a visa four times since the revocation of her visa. Id. ¶ 32. She attributes the denials of her applications to the "false and derogatory information" about her that purportedly still resides in government databases. Id. ¶ 38. Prior to each denial, Wagdy asked the U.S. consulate to remove this information, or at least not consider it in its visa determination, but she asserts these requests were ignored. Id. ¶¶ 34–37.

On November 1, 2016, Wagdy filed this action against Defendants for alleged violations of the APA and FRA. ECF No. 1; Compl. In her complaint, she seeks an injunction "prohibiting the maintenance of the false information in any government databases," and a declaration that the information is, in fact, false. Compl. at 13.² On March 9, 2017, Defendants moved to dismiss the complaint for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim. Mot.; Opp.; ECF No. 24 ("Reply").

II. Legal Standard

"A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff's complaint; it does not require a court to ‘assess the truth of what is asserted or determine whether a plaintiff has any evidence to back up what is in the complaint.’ " Herron v. Fannie Mae , 861 F.3d 160, 173 (D.C. Cir. 2017) (quoting Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002) ). "In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.’ " Hettinga v. United States , 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting

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Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) ). "But the Court need not accept inferences drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor must the court accept legal conclusions cast as factual allegations." Id. "To survive a motion to dismiss, a complaint must have ‘facial plausibility,’ meaning it must ‘plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Id. (alteration in original) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

III. Analysis

The Court agrees with Defendants that Wagdy has failed to state a claim, and will dismiss her complaint on that basis.

A. FRA Claim (Count II)

"The Federal Records Act is a collection of statutes governing the creation, management, and disposal of records by federal agencies." Pub. Citizen v. Carlin , 184 F.3d 900, 902 (D.C. Cir. 1999) (citing 44 U.S.C. §§ 2101 – 2118, 2901 – 2909, 3101 – 3107, 3301 – 3324 ). The FRA was "enacted to ensure, inter alia : (1) ‘efficient and effective records management’; (2) ‘[a]ccurate and complete documentation of the policies and transactions of the Federal Government’; and (3) ‘[j]udicious preservation and disposal of records.’ " Citizens for Responsibility & Ethics in Wash. v. SEC , 858 F.Supp.2d 51, 55 (D.D.C. 2012) (alterations in original) (quoting 44 U.S.C. § 2902 ). Under the FRA, the head of each agency has a duty to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency ...." 44 U.S.C. § 3101. It is well established that the FRA "does not contain an express or implied private right of action." Judicial Watch, Inc. v. Kerry , 844 F.3d 952, 954 (D.C. Cir. 2016) (citing Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 148–50, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) ).

Count II of the complaint alleges that Defendants violated 44 U.S.C. § 2904. See Compl. at 11 ("Count II—Violations of 44 U.S.C. § 2904"). Elsewhere, the complaint also hints at a claim arising under 44 U.S.C. § 2902. See Compl. ¶ 1. But regardless of which FRA provision Wagdy may point to as the source of her claim, it is well settled that the statute does not contain an express or implied cause of action. Judicial Watch , 844 F.3d at 954. A plaintiff cannot state a claim under a statute that does not contain a cause of action. See, e.g., Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp. , 219 F.Supp.2d 20, 33–34 (D.D.C. 2002). Thus, in seeking...