Kretchmar v. Federal Bureau of Investigation

UNITED STATES DISTR ICT COURT
FOR THE DISTR ICT OF COLUMBIA

GARY L. KRETCHMAR, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1551 (KBJ)
)
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
)
Defendants. )

MEMORANDUM OPINION

Plaintiff Gary Kretchmar (“Plaintiff” or “Kretchmar”) is serving a life

sentence following his 1988 conviction in Penns ylvania state court for first-

degree murder. (Compl., ECF No. 1, ¶ 17.) At his trial, a Federal Bureau of

Investigation (“FBI”) Special Agent testified about a forensic technique known

as “Comparative Bullet Lead Anal ysis” (“CBLA”) that the FBI laboratory

conducted on certain evidence that investigators recovered from the murder

scene. (Id. ¶¶ 15-16.) Shortl y after Kretchmar’s conviction, there was

widespread public criticism of the scientific work of thirteen FBI laboratory

examiners, and as a result, the FBI issued a memorandum recommending that the

forensic work of these particular examiners be reviewed under certain specified

circumstances. (Id. ¶¶ 20-21.) That FBI memorandum forms the basis of

Kretchmar’s lawsuit, which he filed pro se in September 2012, against the FBI,

the FBI Laboratory Division, and the Director of the FBI Laboratory Division

(collectivel y, “Defendants”). Kretchmar’s complaint here alleges that
Defendants deprived him of his Fifth Amendment due process rights (Count I),

and violated the Administrative Procedure Act, 5 U.S.C. § 702 (“APA”) (Count

II), when the agency proceeded to review the forensic testimony that its agent

had provided during Kretchmar’s murder trial—review that was done as part of a

broader program to ensure that witnesses had not provided misleading CBLA-

related testimon y (the “Bullet Lead Transcript Review”)—but, according to

Kretchmar, did not follow the FBI memorandum’s specific guidance in

conducting that review. (Compl. ¶¶ 22-26, 36, 46.) 1

Before this Court at present is Defendants’ motion to dismiss or, in the

alternative, motion for summary judgment, which argues that Kretchmar cannot

maintain a claim under either the Due Process Clause or the APA based on

Defendants’ alleged non-adherence to the FBI memorandum’s recommendations.

(See Mem. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J.

(“Defs.’ Mot.”), ECF No. 16; Suppl. Br. in Support of Defs.’ Mot. to Dismiss or

in the Alternative, for Summ. J. on Counts I & II, ECF No. 39 (“Defs.’ Suppl.

Br.”).) Because Kretchmar cannot establish that Defendants deprived him of

due process, nor can he claim an y injury under the APA, the Court will GRANT

Defendants’ motion and DISMISS Kretchmar’s case in its entiret y. A separate

order consistent with this opinion will follow.

1
Kretchmar also initially asserted a claim under the Privacy Act, 5 U.S.C. § 552a, as Count III of the
complaint, but he has conceded that this claim should be dismissed. (See Pl.’s Mot. in Opp’n to Def.’s
Mot. to Dismiss or in the Alternative for Summ. J., ECF No. 23 (“Pl.’s Opp’n”), at 13.)

2
I. FACTUAL BACKGROUND

In 1998, Kretchmar stood trial for first degree murder in Pennsylvania

state court. (See Compl. ¶¶ 13, 15.) The prosecutor in Kretchmar’s case asked

the FBI to conduct forensic anal ysis, including CBLA, on certain pieces of

crime scene evidence. (Id. ¶ 14.) FBI Special Agent John Riley, who was a

member of the FBI’s crime lab, testified at trial about the results of the CBLA.

(Id. ¶¶ 15-16.) See also Kretchmar v. Penn., 971 A.2d 1249, 1252, 1256-57 (Pa.

2009) (recounting Special Agent Riley’s CBLA testimony). The jury convicted

Kretchmar, and the Penns ylvania court sentenced him to a term of life

imprisonment. (Compl. ¶ 17.)

On May 17, 1999, the Civil Discovery Review Unit (“CDRU”) of the

FBI’s Office of General Counsel (“OIG”) issued a memorandum naming thirteen

lab examiners whose scientific work OIG had criticized in a report dated April

15, 1997. (Pl.’s Opp’n, App. A (“CDRU Memo”), ECF No. 23, at 1-2.) 2 The

CDRU Memo stated that “[t]he allegations and criticisms concerning these

individuals var[ y] greatl y and in some instances [are] case specific.” (Id. at 1.)

The CDRU Memo directed that “this document” be placed “in every

investigative file containing forensic work performed by any of [the named

examiners].” (Id.) In addition, the memorandum stated that “[i]f the forensic

work contained in this file is used in any way in the future, both the OIG’s

findings and the forensic anal ysis of the [named] examiners should be reviewed”

and “legal advice should be obtained as to the FBI’s disclosure obligations.”

2
Sp ec ial Ag e n t J o h n Ri l e y wa s no t o ne o f t h e la b e xa mi n er s wh o wa s n a med i n t he C D RU
Me mo .

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(Id.) The FBI placed a cop y of the CDRU Memo at the top of Kretchmar’s FBI

Laboratory file. (Pl.’s Opp’n at 2.) 3

Five years after the CDRU Memo issued, “a study published by the

National Research Council of the National Academies (‘NAS’) assessed the

reliabilit y of the science of CBLA and its usefulness as a forensic evidentiary

tool and [ ] raise[d] questions as to the usefulness of CBLA evidence.”

Kretchmar v. FBI, 882 F. Supp. 2d 52, 54-55 (D.D.C. 2012) (alteration in the

original) (internal quotation marks and citation omitted). Thereafter, in 2007

and 2008, Kretchmar submitted two separate FOIA requests to the FBI, the first

of which sought “release of [Kretchmar’s] bullet-lead case file”; and the second

of which requested “release of an April 15, 1997, Office of the Inspector

General Report” that criticized the forensic work performed by certain lab

examiners. Id. at 55.

Then, in 2009, as part of a broader CBLA review program that the FBI

conducted in conjunction with the Innocence Project, the FBI and the

Department of Justice reviewed the transcript of the CBLA-related testimony

that Agent Riley had provided in Kretchmar’s state murder case. (See Compl.

¶¶ 22-25.) See also FBI Press Release, FBI Laboratory to Increase Outreach in

Bullet Lead Cases (Nov. 17, 2007) (describing plan to review transcripts of

proceedings “to determine whether the [CBLA] testimony was consistent with

the findings of the FBI Laboratory in 2005, particularl y concerning the inabilit y

3
I t i s no t cl ear wh y t h e FB I p l aced t he me mo r a n d u m i n Kr et c h mar ’ s f il e . ( S ee C D RU Me mo
at 1 -2 .) B ec a us e t h e Co ur t mu s t co ns tr ue al l fa c ts i n t he li g h t mo st f a vo r ab le to Kr et c h mar
in d ec id i n g t hi s mo t io n t o d is mi s s, i t wi ll as s u m e t ha t a t l ea st o ne o f t he na med e x a m i n er s
wo r ked o n t he CB L A - r e l ated e val u at io n o f t he e vid e nce fo r Kr et c h mar ’ s tr i al.

4
of scientists and manufacturers to definitivel y evaluate the significance of an

association between bullets . . . in the course of a bullet lead examination.”). 4

On Jul y 17, 2009, at the conclusion of Kretchmar’s transcript review, the

director of the FBI Laboratory sent a letter to the office that had prosecuted

Kretchmar (the Buck’s Count y Penns ylvania District Attorney’s Office)

informing it that the FBI had completed its review of the transcript from

Kretchmar’s trial. (Compl. ¶¶ 27-28; see also Ex. D. to Decl. of David M.

Hard y (“Hard y Decl.”), ECF No. 16-2 (“Transcript Review Letter”).) The letter

explained that the “goal of the review was to determine if there was a

suggestion b y the examiner that a bullet fragment or shot pellet was linked to a

single box of ammunition without clarification that there would be a large

number of other bullets or boxes of bullets that could also match those

fragments or shot pellet” because any such suggestion was not supported by

science and would be “potentiall y misleading.” (Transcript Review Letter at 1.)

The letter explained that the testimony in Kretchmar’s case had been reviewed

in light of that goal, and stated that “it is the opinion of the FBI Laboratory that

the examiner properly testified to the results of [the CBLA] examination.”

(Id.) 5

Thereafter, in response to Kretchmar’s outstanding FOIA requests, the

FBI released to him (1) a cop y of the 1999 CDRU Memo, (2) a copy of the 2009

Transcript Review Letter that the FBI Laboratory had sent to the Penns ylvania
4
Available at http://www.fbi.gov/news/pressrel/press-releases/fbi-laboratory-to-increase-outreach-in-
bullet-lead-cases
5
W he n t he st ate s e nt e nci n g co ur t d e nied Kr etc h m ar ’ s p o s t -co n v ict io n mo t io n i n 2 0 0 9 , i t a lso
co n cl ud ed , b a sed o n a fa ct ua ll y d e velo p ed r e co r d , “t ha t t h e CB L A t es ti mo n y o f f er ed i n
[ P lai n ti f f ’ s] tr i al wa s no t mi sr ep r e se nt at i ve. ” K re tch ma r, 9 7 1 A.2 d at 1 2 5 6 .

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prosecutor, and (3) copies of various working papers associated with the FBI’s

transcript review. (Pl.’s Opp’n at 4-5.) See also Kretchmar 882 F. Supp. 2d at

55 (explaining that the working papers were materials that three FBI reviewers

had used to evaluate the trial testimony in Kretchmar’s case, including “copies

of the transcript from plaintiff’s state criminal trial”). Upon receiving and

reviewing these materials, Kretchmar requested that the FBI amend the

Transcript Review Letter and the related working papers because, in his view,

those documents were “not accurate or complete, because the FBI Laboratory

Bullet Lead Transcript Review agency action did not include a mandatory

review of the April 15, 1997 OIG Report findings and/or the forensic anal ysis of

the Laboratory Examiner(s) who anal yzed the evidence contained in” his file.

(Ex. A. to Hard y Decl., ECF No. 16-2, at 2-3 (emphasis in original).) The FBI

denied Kretchmar’s request (Compl. ¶¶ 52-53), and this lawsuit followed.

As noted above, Kretchmar alleges in the complaint that Defendants

violated the Due Process Clause and the APA by failing to (1) evaluate the

impact of the 1997 OIG findings as discussed in the CDRU Memo on the

forensic testimon y presented in his case, or (2) “review the forensic anal ysis

contained in [plaintiff’s] Laboratory file[.]” (Pl.’s Opp’n at 18-20.)

Significantl y, Kretchmar maintains that these actions were required pursuant to

“the May 17, 1999 CDRU intra-agency memorandum.” (Compl. ¶ 34.) In their

motion to dismiss, or in the alternative, motion for summary judgment,

Defendants maintain that Kretchmar’s due process claim fails to state a claim

upon which relief can be granted because he has failed to identify any life,

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libert y, or propert y interest that Kretchmar was deprived of when the agency did

not review the forensic anal ysis in his file and the 1997 OIG findings addressed

in the CDRU Memo, nor does he state any facts to support his claim that

Defendants had an y obligation to conduct such a review. (Defs.’ Suppl. Br. at

7-8.) Defendants further argue that Kretchmar’s APA claim fails because he has

not identified an y injury-in-fact that he suffered as a result of Defendants’

actions. (Id. at 9-10.) In opposition to the motion, Kretchmar argues that he

has “a right, or right of expectation” under the Due Process Clause that

Defendants would follow the guidance in the CDRU Memo when reviewing the

transcript and evidence from his trial, and that he “has identified the loss of a

libert y interest due to a procedurall y deficient [Bullet Lead Transcript Review]

administrative decision.” (Pl.’s Suppl. Br. in Opp’n to Ds.’ Mot. to Dismiss or,

In The Alternative, for Summ. J. on Counts One & Two, ECF No. 42 (“Pl.’s

Suppl. Br.”), at 14, 15.) Kretchmar also maintains that “the APA is the federal

statute designed to provide review, and potentiall y relief, for the claims sub

judice.” (Id. at 15.)

II. MOTIONS TO DISMISS UNDER RULE 12(B)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a part y may move

to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which

relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests

the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter” to “state a claim to relief that is plausible on its face.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and

citation omitted). “Although ‘detailed factual allegations’ are not necessary to

withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a

plaintiff must furnish ‘more than labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action.’” Busby v. Capital One, N.A.,

932 F. Supp. 2d 114, 133 (D.D.C. 2013) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). In other words, the plaintiff must provide “more

than an unadorned, the-defendant-unlawfull y-harmed-me accusation.” Iqbal,

556 U.S. at 678 (citation omitted). “[M]ere conclusory statements” of

misconduct are not enough to make out a cause of action against a defendant,

id., and this is so even when the plaintiff is proceeding pro se, see Moore v.

Motz, 437 F. Supp. 2d 88, 90 (D.D.C. 2006). That is, even though a court must

construe liberall y the pleadings of pro se parties, “[t]his benefit is not . . . a license

to ignore the Federal Rules of Civil Procedure.” Sturdza v. U.A.E., 658 F. Supp. 2d

135, 137 (D.D.C. 2009) (citation omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must “accept the

plaintiff’s factual allegations as true and construe the complaint liberall y,

grant[ing] plaintiff[ ] the benefit of all inferences that can be derived from the

facts alleged[.]” Browning, 292 F.3d at 242 (alterations in original) (internal

quotation marks and citation omitted). Although the court must accept as true

the facts in the complaint, it need not accept inferences a plaintiff draws if the

facts set out in the complaint do not support those inferences. Hettinga v.

United States, 677 F.3d 471, 476 (D.C. Cir. 2012). If the alleged and liberall y

8
construed facts fail to establish that a plaintiff has stated a claim upon which

relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am.

Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp.

2d 56, 61 (D.D.C. 2013).

Additionall y, when deciding a Rule 12(b)(6) motion, a court may not

consider matters “outside the pleadings” without converting the motion to one

for summary judgment. Fed. R. Civ. P. 12(d). However, a court may consider,

without triggering the conversion rule, “the facts alleged in the complaint,

documents attached as exhibits or incorporated by reference in the

complaint . . . or documents upon which the plaintiff’s complaint necessaril y

relies even if the document is produced not by the plaintiff in the complaint but

b y the defendant in a motion to dismiss.” Hinton v. Corrs. Corp. of Am., 624 F.

Supp. 2d 45, 46 (D.D.C. 2009) (citations and internal quotation marks omitted);

accord EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997). In addition, without triggering the conversion rule, a court may consider

“matters of which . . . judicial notice” may be taken, St. Francis Xavier

Parochial Sch., 117 F.3d at 624, such as an agency decision contained in the

administrative record. See Dist. Hosp. Partners, L.P. v. Sebelius, No.

11cv0116, 2013 W L 5273929, at *12 n.14 (D.D.C. Sept. 19, 2013) (citation

omitted); see also Howard v. Gutierrez, 474 F. Supp. 2d 41, 48 (D.D.C. 2007)

(“Indeed, it is a well-settled principle that the decision of another court or

agency, including the decision of an administrative law judge, is a proper

subject of judicial notice.” (citation omitted)).

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III. DISCUSSION

Kretchmar’s legal argument is difficult to follow, but distilled to its core,

Kretchmar’s claim is that Defendants should have reviewed the underl ying

forensic evidence that was submitted in his trial, as the CDRU Memo

purportedl y directed them to do, when they conducted the transcript review in

his case. Kretchmar asserts that Defendants “used” the CBLA forensic work

that was the subject of the trial testimony when they reviewed the transcript of

the CBLA-related testimon y from his trial, and he maintains that by the CDRU

Memo’s direction, Defendants should have proceeded to reanalyze the

underl ying forensic work, such that Defendants’ failure to do so violated his

Fifth Amendment right to due process. (Pl.’s Suppl. Br. at 15-16.) Kretchmar

further argues that the Transcript Review Letter was a final agency action, and

that Defendants’ failure to do anything more than review the transcript of his

trial proceedings renders an y findings in that letter arbitrary and capricious

within the meaning of the APA. (Id.)

As explained below, this Court concludes that Kretchmar’s Fifth

Amendment claim fails in the first instance because the CDRU Memo does not

vest Kretchmar with a substantive libert y interest that is entitled to protection

under the Due Process Clause. Furthermore, even if Kretchmar has some

enforceable libert y interest related to the CDRU Memo, Defendants did not

deprive Kretchmar of an y process to which he was due given that, even under

the most liberal construction of the facts, Defendants did not “use” the bullet-

lead forensic information in Kretchmar’s case file when they conducted the

10
transcript review. Kretchmar’s APA claim fails as well because Kretchmar has

not alleged any injury under the APA and thus lacks standing to bring such a

claim.

A. Kretchmar’s Due Process Claim

The Due Process Clause is triggered when the government deprives an

individual of life, libert y, or propert y. Ky. Dep’t of Corr. v. Thompson, 490

U.S. 454, 459-60 (1989) (citation and internal quotation marks omitted). In

order to state a claim for violation of the Fifth Amendment’s Due Process

Clause, a plaintiff must allege that the government has deprived him of at least

one of the foregoing interests without due process of law. See Budik v. U.S.,

949 F. Supp. 2d 14, 25 (D.D.C. 2013), aff’d Nos. 13-5122, 13-5123, 2013 WL

6222903 (D.C. Cir. Nov. 19, 2013). “When [as here] neither life nor propert y is

involved, courts—speaking in a sort of shorthand—talk of the need to find a

‘libert y interest’ before considering what process is due under the Fifth

Amendment (or the Fourteenth Amendment).” Franklin v. D.C., 163 F.3d 625,

631 (D.C. Cir. 1998) (citations omitted). And a libert y interest “may arise from

two sources—the Due Process Clause itself and the laws of the States.” Ky.

Dep’t of Corr., 490 U.S. at 459-60 (citation and internal quotation marks

omitted).

Protected libert y interests “are not unlimited; the interest must rise to

more than an abstract need or desire, and must be based on more than a

unilateral hope.” Id. at 460 (internal quotation marks and citation omitted). If

a libert y interest is found, due process requires minimall y that the target of the

11
deprivation receive notice and the opportunit y to be heard. See UDC Chairs

Chapter, Am. Ass’n of Univ. Professors v. Bd. of Trs. of Univ. of D.C., 56 F.3d

1469, 1472 (D.C. Cir. 1995). However, it is “[o]nl y after finding the

deprivation of a protected interest does the Court look to see if the

government’s procedures comport with due process.” Budik, 949 F. Supp. 2d at

25 (internal quotation marks and alterations omitted) (quoting Gen. Elec. Co. v.

Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010)).

Kretchmar’s theme throughout his opposition to Defendant’s motion to

dismiss is that he “was a part y to the state court criminal action” and has an

“interest in a fair and procedurall y adequate [transcript review process.]” (Pl.’s

Opp’n at 23.) He alleges that the due process “violation occurred when” the

FBI “failed to act pursuant to the preexisting CDRU affirmative obligation or

dut y for a future condition that was imposed upon all FBI employees who should

use the forensic work contained in [his] FBI Laboratory file [ ] in an y way in

the future.” (Id. at 9 (emphasis omitted) (citing Complaint ¶¶ 19-21).) In other

words, Kretchmar maintains that he has a constitutionall y-protected libert y

interest in having the agency reviewers follow his interpretation of the CDRU

Memo’s guidance in connection with the consideration of the forensic testimon y

presented in his case, presumabl y in order to preserve his abilit y to attack his

conviction in collateral proceedings. (Pl.’s Supp. Br. at 14-15.)

Kretchmar correctl y maintains that it is proper to bring this t ype of claim

under the Due Process Clause, rather than as a petition for a writ of habeas

corpus, because a decision in his favor will not “‘necessaril y impl y’ the

12
invalidit y of his conviction.” Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011)

(quoting Heck v. Humphrey, 512 U.S. 447, 487 (1994)). In this regard, the

Court agrees with Kretchmar and rejects Defendants’ contention that he is

required to bring his claim in the context of a habeas proceeding. (See Def.’s

Suppl. Br. at 7 n.1.) Even so, Kretchmar’s due process claim fails.

It is well settled that “the mere fact that the government has established

certain procedures does not mean that the procedures thereby become

substantive libert y interests entitled to federal constitutional protection under

the Due Process Clause.” Brandon v. D.C. Bd. of Parole, 823 F.2d 644, 648

(D.C. Cir. 1987). In Brandon, an inmate brought suit alleging that he had a

protected libert y interest in having the Parole Board adhere to its own

procedures, and that the Board deprived him of due process when it delayed his

reparole hearing in contravention of these procedures. Id. at 646. The D.C.

Circuit affirmed the trial court’s grant of summary judgment in favor of the

Board, finding that “[a]ppellant’s claim that he has a constitutionall y protected

libert y interest in a reparole hearing and thus a due process right to have the

Board adhere to its regulations lacks support in law or logic; indeed, it is

anal yticall y indefensible.” Id. (internal quotation marks and citation omitted).

Kretchmar’s argument is even weaker than that of the plaintiff in Brandon

because Kretchmar cannot even allege that Defendants have violated any

mandatory agency regulation. Instead, as the basis for his due process claim, he

relies on an intra-agency memorandum, which advises what the agency “should”

do before using the forensic work in a criminal defendant’s case file. (Pl.’s

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Suppl. Br. at 12; see also id. at 14 (referencing the 1999 CDRU Memo).)

Kretchmar also points to the FBI’s Press Release of November 17, 2007, which

states that “some cases may require closer examination of the scientific findings

and testimon y b y FBI experts” (id. at 17), but Kretchmar himself acknowledges

that the release is neither “a working law document [n]or a binding norm.” (Id.

at 18.) Under Brandon, neither the intra-agency memorandum not the agency’s

statements in a press release establish a substantive libert y interest that would

entitle Kretchmar to due process protection. See Brandon, 823 F.2d at 648.

Even assuming that Kretchmar has some substantive libert y interest in

having Defendants follow the review procedures that the CDRU Memo suggests,

Kretchmar has pleaded no facts showing that Defendants actuall y deviated from

those procedures. First of all, there is no dispute that the transcript review that

Kretchmar received was undertaken in order “to determine if there was a

suggestion b y the examiner that a bullet fragment or shot pellet was linked to a

single box of ammunition without clarification.” (Transcript Review Letter at

1.) This stated goal does not reference the CDRU Memo, and there is neither

allegation nor evidence that the review of Kretchmar’s trial testimony was

undertaken pursuant to, or as a result of, that memorandum. Regardless, the

CDRU Memo directs that, “[i]f the forensic work contained in this file is used in

any way in the future, both the OIG’s findings and the forensic anal ysis of the

examiners should be reviewed.” (CDRU Memo at 1 (emphasis added).)

Kretchmar argues that “the forensic analysis in plaintiff’s Laboratory file was

used” when FBI emplo yees reviewed Special Agent Riley’s CBLA testimony

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(Pl.’s Suppl. Br. at 14), but this Court finds that a re-reading of the trial

transcript to ensure that the testimony that was given was not misleading—

without something more—does not constitute “use” of the forensic anal ysis that

would trigger the review the CDRU Memo suggests. Kretchmar has not alleged,

and the record does not establish, that the CBLA-related forensic information

from Kretchmar’s trial was subsequentl y used in later proceedings, such as if

the state sought to admit that forensic anal ysis on retrial or on collateral review;

therefore, even b y its own terms, the CDRU Memo’s suggested procedures were

not transgressed here.

In sum, because there is no basis in law or fact for Kretchmar’s due

process claim, the complaint fails to state a due process claim upon which relief

can be granted. Accordingl y, that claim must be dismissed.

B. Kretchmar’s APA Claim

The APA “permits an y person adversel y affected or aggrieved by agency

action to obtain judicial review of the lawfulness of that action.” Douglas v.

Indep. Living Ctr. of So. Cal. Inc., 132 S. Ct. 1204, 1210 (2012) (citing 5 U.S.C.

§ 702). “To allege a cognizable procedural harm, plaintiffs must identify an

injury that follows the violation of a procedural right, which was afforded to

them b y statute and designed to protect their threatened concrete interests.” St.

Croix Chippewa Indians of Wis. v. Salazar, 384 F. App’x. 7 (D.C. Cir. 2010)

(per curiam) (citing Ctr. for Law & Educ. v. Dep’t. of Educ., 396 F.3d 1152,

1157 (D.C. Cir. 2005)). Here, Kretchmar rests his APA claim on the contention

that the Transcript Review Letter is a reviewable final agency action and that

15
the FBI Lab Director “acted in an arbitrary and capricious manner [when issuing

the Transcript Review Letter], because he knew that the [Bullet Lead Transcript

Review] record did not include the mandatory review of the forensic anal ysis

contained in [Kretchmar’s] file and/or a review of the 1997 OIG Findings.”

(Compl. ¶ 46.) But Kretchmar has not established that he was aggrieved as a

result of the agency’s issuance of the Transcript Review Letter, not onl y

because he has failed to establish the violation of a protected procedural right,

as explained above, but also because he has not identified any actual injury

arising from that correspondence.

Stated simpl y, although Kretchmar maintains that the Transcript Review

Letter was inaccurate, he has not alleged any injury that he has suffered as a

result of that alleged inaccuracy. Therefore, even if it could be said that

Kretchmar had a protected procedural right to have the forensic evidence in his

file reviewed, or reviewed in particular manner, “deprivation of a procedural

right without some concrete interest that is affected by the deprivation . . . is

insufficient to create Article III standing.” Summers v. Earth Island Inst., 555

U.S. 488, 496 (2009); see also Wilderness Soc’y v. Griles, 824 F.2d 4, 11 (D.C.

Cir. 1987) (in addressing legal standing, noting that “the Supreme Court has

interpreted both § 702 [of the APA] and the Constitution as requiring plaintiffs

to show that they are personall y injured by the challenged action and that their

injury is caused b y that action” (citing cases)).

Significantl y, a “defect of standing is a defect in subject matter

jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). Thus,

16
this Court must grant Defendants’ motion to dismiss the APA claim under Rule

12(b)(1), without reaching Defendants’ other equall y plausible argument that the

letter constituted discretionary action that is not subject to judicial review.

(Defs.’ Suppl. Brief at 10-12.) See Fed. R. Civ. P. 12(h)(3) (requiring dismissal

“any time” jurisdiction over the subject matter is found wanting); Firestone Tire

& Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981) (“A court lacks discretion to

consider the merits of a [claim] over which it is without jurisdiction[.]”).

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss Counts I and II

of the complaint is GRANTED. Because Kretchmar has already agreed to the

dismissal of count III, the complaint is dismissed in its entirety, as set forth in

the order that accompanies this opinion.

Date: March 27, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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