Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carlson v. United States Department of Energy

United States District Court, D. New Mexico

August 23, 2019

ROLF ERIK CARLSON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         THIS MATTER is before the Court on the United States Department of Energy's (Defendant or the DOE) Motion to Dismiss (Doc. 48) and Plaintiff Rolf Erik Carlson's Motion to Investigate Whether Defendant's Counsel Provided Unlawful Uncompensated Services to the Government (Doc. 56). Plaintiff brought suit alleging that the DOE failed to add four specific documents to his Personnel Security File (PSF) as he had requested, and the DOE now presents a sworn affidavit that the disputed materials were added to Plaintiff's file. Having considered the parties' submissions and the relevant law, the Court will deny Plaintiff's motion to investigate and grant Defendant's motion to dismiss as there is no longer a live case or controversy at issue.

         I. Background

         On July 31, 2017, Plaintiff commenced this lawsuit alleging that Defendant violated several provisions of the Privacy Act, 5 U.S.C. § 552a, by denying his requests to amend and review materials in his PSF. (See Doc. 33 (Compl.) at 1.) Defendant moved to dismiss Plaintiff's initial complaint for failure to state a claim. (Doc. 22.) On October 26, 2018, the Court entered a Memorandum Opinion and Order dismissing all but one of Plaintiff's claims. (Doc. 42.) Specifically, the Court determined that Plaintiff's Privacy Act claim for relief under 5 U.S.C. § 552a(g)(1)(A) was sufficiently pled to withstand Defendant's motion to dismiss. (Id. at 8-10.) Section 552a(g)(1)(A) provides individuals with a civil cause of action in federal court when an agency “makes a determination under [the subsection of the Privacy Act governing access to records] not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection . . . .” Id. The DOE regulatory provision implementing this cause of action for injunctive relief under the Privacy Act is 10 C.F.R. § 1008.15(b). Section 1008.15(b) provides that “[i]f the DOE refuses to amend a record or fails to review an amendment request[, ] . . . the court may order the DOE to make the amendment and award reasonable litigation costs and attorney's fees.” The Court permitted Plaintiff to file an amended complaint focusing “solely on his remaining claim that Defendant improperly denied his amendment requests under 5 U.S.C. § 552a(g)(1)(A) and 10 C.F.R. § 1008.15(b).” (Doc. 42 at 12.) On November 13, 2018, Plaintiff filed his amended complaint. (Doc. 47.)

         On November 28, 2018, Defendant moved to dismiss Plaintiff's sole remaining claim pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). (Doc. 48.) Plaintiff timely filed a response in opposition. (Doc. 50.) Shortly before the reply deadline passed, the Chief Judge of this district filed a “Temporary Administrative Order Relating to Civil Cases Involving the United States” due to a lapse in appropriations impacting the Department of Justice and the United States Attorney's Office for the District of New Mexico. (Doc. 51; see also 1:18-mc-00004, Doc. 55 (D.N.M. Dec. 27, 2018).) Because this civil lawsuit involves as a party the United States or an agency thereof, this case was temporarily stayed in accordance with the Temporary Administrative Order and all existing deadlines were extended. (See Docs. 51; 54 (extending the temporary stay).) On January 7, 2019, while the temporary stay was still in place, Defendant filed its reply brief and a notice of completion of briefing on the motion to dismiss. (Docs. 52; 53.) On January 28, 2019, the Court entered an Administrative Order rescinding the stay because appropriations were restored to the Department of Justice. (Doc. 55.)

         II. Plaintiff's Motion to Investigate Whether Defendant's Counsel Provided Unlawful Uncompensated Services to the Government

         On March 18, 2019, Plaintiff, who is proceeding pro se in this case, filed a motion asking the Court to investigate whether Defendant violated the Anti-Deficiency Act, 31 U.S.C § 1342, by filing the reply brief on its motion to dismiss during the lapse of appropriations and while the temporary stay was in place. (Doc. 56.) 31 U.S.C. § 1342 provides that “[a]n officer or employee of the United States Government . . . may not accept voluntary services . . . or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” Plaintiff requests that the reply brief be stricken should the Court determine that defense counsel violated 31 U.S.C. § 1342 by filing the reply brief. (Doc. 56 at 2.) In the alternative, if the reply brief is not stricken, Plaintiff makes additional substantive arguments concerning the merits of Defendant's motion to dismiss. (Id. at 2-3.) Having considered Plaintiff's motion and Defendant's response brief (Doc. 57), the Court will deny Plaintiff's motion.

         As the Temporary Administrative Order explained, non-supervisory Assistant United States Attorneys assigned to the Civil Division of the United States Attorney's Office were placed on furlough status during the temporary stay, but could “be called back from furlough status” under certain circumstances if the funding situation did not change. (1:18-mc-00004, Doc. 55 at 2.) Counsel for Defendant has indicated that he was called back from furlough status on January 7, 2019, “to provide work that day on a ‘recall' basis, including preparation of the [r]eply” brief in this matter. (Doc. 57 at 2.) In light of this explanation, the Court will not strike the reply brief.

         To the extent Plaintiff's motion addresses the substantive merits of Defendant's motion to dismiss, the Court agrees with Defendant that these are new arguments that constitute an impermissible surreply. (Id. at 1.) This Court's local rules provide that the “filing of a surreply requires leave of the Court.” D.N.M.LR-Civ. 7.4(b). Plaintiff did not seek leave to file a surreply in violation of this local rule. Further, Plaintiff failed to identify any new arguments or evidence in Defendant's reply brief that would have necessitated the filing of a surreply. Accordingly, the Court will not address these substantive arguments. Plaintiff's motion to investigate (Doc. 56) is therefore denied.

         III. Defendant's Motion to Dismiss

         In its second motion to dismiss, Defendant seeks dismissal of Plaintiff's sole remaining claim pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (Doc. 49 at 1, 5-7.) Specifically, Defendant argues that the Court “lacks subject matter jurisdiction over Plaintiff's claim, as the requested relief, the inclusion of four documents into [] Plaintiff's [PSF, ] has been completed.” (Doc. 48 at 1.) Defendant contends that Plaintiff's amended complaint is therefore moot and does not state a claim upon which relief can be granted. (Id.)

         “[M]ootness is an issue of subject matter jurisdiction[.]” Ind v. Colo. Dep't of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015). Motions to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).

         On a facial attack, the Court presumes all of the allegations contained in the complaint to be true. Id. “But when the attack is factual, a district court may not presume the truthfulness of the complaint's factual allegations” and may “allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.” Campos v. Las Cruces Nursing Ctr., 828 F.Supp.2d 1256, 1265 (D.N.M. 2011) (quoting Alto Eldorado Partners v. City of Santa Fe, No. CIV. 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009)). “However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citing Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987); Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991)). “The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.” Id. (citing Wheeler, 825 F.2d at 259).

         Here, Defendant's Rule 12(b)(1) motion raises a factual challenge to the existence of subject matter jurisdiction that is not “intertwined with the merits of the case” nor dependent on the Privacy Act. See Redmon, 934 F.2d at 1155 (citation omitted). (See also Doc. 49 at 10-11.) Specifically, Defendant argues that this case does not present a live controversy because the four documents that were the subject of Plaintiff's amendment requests were actually placed into his PSF in July 2015, approximately two years before Plaintiff filed this lawsuit. In support of this argument, Defendant has presented facts in its briefing that go beyond ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.