Berman v. Crook

UNI'I`ED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
ROBERT A. BERMAN, )
)
)
li'laintiff, )
)
v. ) Case No: 16-cv-2153-RCL
)
JOSEPH D. CROOK, JR., et al., )
)
)
Dcfendants. )
)
MEMORANDUM OPINION

Plaintiff Robert A. Berrnan brings this case pro Se against defendants Joseph D. (Donald)
Crook, Jr., a Special Agent with the Department of the Interior; Brenda K. Morris, a former
attorney in the Crirninal Division of the Department of Justice; and David M. Finkelstein and
Judith Rabinowitz, attorneys in the Comrnercial Litigation Branch of the Civil Division of the
Department of .lustice. Before the Court is the defendants’ Motion to Dismiss the Arnended
Cornplaint. ECF No. 29. Upon consideration of the defendants’ motion, the opposition and replies
thereto, the app`,. cable law, and the entire record herein, the Court will GRANT the Motion t0
Dismiss.

I. BACK(§- ROUND]

Plaintiff llobert A. Berrnan is a fortner senior economist in the Departrnent of the Interior.

He provided assistance to a nonproHt organization, Project on Government Oversight (“POGO”),

in connection With POGO’s qui mm actions to recover unpaid royalties owed by oil companies to

l The facts in this section come from the Amended Complaint, documents incorporated by reference in the
Arnended Complaint, and from the long public record of this case (of which the Court can take judicial notice).

l

the federal govemment. Mr. Berman declined to join as co-relator in the actions, but he and POGO
agreed that he would receive one third of POGO’s recovery. Ai’ter the United States intervened,
it recovered $440 million from the companies POGO received a $1.2 million share of the
settlement and issued a check to Mr. Berman for $383,600. See Case No. 03-cv-00096, ECF No.
168 at 2-3.

Subsequently, in 1998, Brenda Morris impaneled a grand jury to investigate Mr. Berman.
She sought and obtained a warrant to search his office based on the affidavit of Donald Crook, a
Special Agent with the Department of the Interior. The government did not seek an indictment of
Mr. Berman and he was not charged with any crimes. During the investigation, however, the
government was granted a motion to seal the Crook affidavit. Afrer Mr. Berman moved to unseal
in 2000, the government provided Mr. Berman a redacted version of the affidavit, who claimed
that it was full of fabrications, half-truths, and unsupported speculation ln 2008, the court ordered
that the affidavit be unsealed, but the Clerk’s office failed to unseal the affidavit at that time. ln
2013, the court again ordered the Clerk’s office to unseal the affidavit

Meanwhile, in 2003, the governrnent_represented in part by Judith Rabinowitz_filed a
civil action against Mr. Berman for disgorgement of the payment that he had received from POGO.
The government sought disclosure of the grand jury material gathered during the investigation,
and its petition was granted by the court. In granting the govemment’s motion, Judge Hogan noted
that “[n]o opposition has been filed.” ECF No. 16-4 (under seal). The grand jury material was
transferred from the Criminal Division to the Civil Division. The case eventually went to trial in
2008 and a verdict Was issued in favor of the government Mr. Berman appealed and the verdict
was vacated and the case was remanded. Mr. Berman, now proceeding pro se, filed a motion to

dismiss and for sanctions, and a motion to compel affidavits and other evidence on which the

government intended to rely, which was denied as premature In 2012, the court denied the motion
to dismiss and for sanctions, and granted summary judgment in favor of the government on one of
the counts_the breach-of-fiduciary-duty count. David Finkelstein then entered an appearance in
the case for the government and a second jury trial was held on the remaining claims which ended
in a mistrial In 2014, the D.C. Circuit upheld the district court’s summary judgement finding that
Mr. Berman breached his fiduciary duty and that he had to disgorge the payment he received from
POGO. United States v. Projecr on G'ov’£ Overst'g/tt, 766 F.3d 9 (D.C. Cir. 2014).

In 2013, Mr. Berman filed a motion to unseal, seeking access to materials related to the
search warrant, which the court interpreted as a petition for grand jury materi als. The court ordered
Mr. Berman to provide justification for the disclosure Mr. Berman claimed that the remaining
grand jury materials were relevant to his pending D.C. Circuit case and his case before the Merit
Systems Protection Board. In February 2014, after order by the court, the government disclosed
the remaining gr.md jury materials to Mr. Berman,

Mr. Berman now brings a Bz'vens action seeking damages against the defendants for
providing a falsel search warrant affidavit and for conducting an unlawful search and seizure in
violation of the 15 ourth and Fourteenth Amendments; for conspiring to deny his due process rights
by denying access to a search warrant affidavit and for knowingly using the fruits of an unlawful
search; for conspiring to deny his due process rights by unlawfully misappropriatng district court
records; and for conspiring to use the grand jury in service of a planned civil suit. Although Mr.
Berman reframed his claims under a Bivens theory in his Amended Complaint, the individual
counts still assert claims against the defendants under 42 U.S.C. § § 1983, 1985, and 1988.

In support of his claims, Mr. Berman argues that Ms. Morris knew, prior to launching the

criminal investigation, that a document existed that refuted her theory of criminal misconduct, but

she never disclosed the document to the grand jury. He filrther states that the search warrant
affidavit signed by Mr. Crook contained false allegations, and absent those false allegations, the
affidavit could not support a finding of probable cause. Turning to the 2003 civil case, Mr. Berman
states that Ms. Rabinowitz used materials gained from the illegal search to support the
govemrnent’s case and notes that despite the expiration of the seal, the search Warrant materials
remained under seal. Then Ms. Rabinowitz filed a motion to obtain a copy of the grand jury
materials, including the search warrant affidavit, failing to disclose that the investigation was
closed without.seeking an indictment Mr. Berman claims that Ms. Rabinowitz and Ms. Morris
conspired to transfer the records_which were the property of the district court_with the intent to
deny Mr. Berman access.

Mr. Berman further posits that in 2008, Ms. Morris filed a motion with a different
magistrate judge to unseal the affidavit and did not include a certificate of service so that Mr.
Berman would not be aware of` the filing Mr. Berman asserts that it was not until mid-2013-
after he had filed a motion to unseal the affidavit-that the government revealed that Ms. Morris
had closed the grand jury investigation Without seeking indictment and that it intentionally
withheld the search warrant affidavit from civil pre-trial discovery by alleging that it contained
grand jury material, and that due to age, the record Was likely destroyed. ln Novernber 2013, the
magistrate judge determined that there were no grand jury materials in the search warrant affidavit
and ordered that it be unsealed. In addition, Mr. Berman argues that Mr. Finkelstein intentionally,
and without authorization, distributed grand jury documents to individuals not authorized to view
them and that he introduced the fruits of the illegal search and lied to the district court regarding

false statements in the affidavit

On May 17, 2017, the defendants moved to dismiss all of Mr. Berman’s claims alleged in
his Arnended Complaint.
II. LEGAI. STANDARD

A. Rule 12(b)(6) 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 Atl. Co)p. v.
Twombly, 550 L`.S. 544, 570 (2007)). When considering a motion to dismiss under Rule 12(b)(6),
the court construes the complaint in the light most favorable to the plaintiff 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 L".S. at 556). While the factual allegations in the complaint need not be “detailed,”
the F ederal Rules require more than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (citing Twombly, 550 U.S. at 555). The Court need not accept as true “a legal
conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in
the complaint, Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986) (intemal quotation marks omitted)). 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. “In determining whether a complaint states a claim, the court may consider the
facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of
which it may take judicial notice.” Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir.

2006).

B. Rule 12(b)(2) Standard

Under F ederal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a suit if
the court lacks personal jurisdiction over it. The plaintiff bears the burden of establishing personal
jurisdiction. See FC Inv. Grp. LC v. IFXMkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008). In
deciding whether the plaintiff has shown a factual basis for personal jurisdiction over a defendant,
the court resolves factual discrepancies in favor of the plaintiff See Crane v. N.Y. Zoological
Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990).

III. DISCUSSION

A. Claims Under 42 U.S.C. §§ 1983, 1985, 1988

While the plaintiff notes in his Amended Complaint that his claims are brought under
Bivens v. Six Unnknown Agents, 403 U.S. 388 (1971), the individual counts in the Amended
Complaint still appear to assert claims under 42 U.S.C. §§ 1983, 1985, and 1988. To the extent
the plaintiff brings claims under those statutes, the Court will address why they must be dismissed

42 U.S.C. § 1983 expressly applies only to those acting under color of state law.2 Section
1983 does not create a cause of action for federal officials acting under color of federal law. See,
e.g., Abramson v. Bennett, 707 F.Supp. 13, 16 (D.D.C. 1989). Here, all four defendants were
federal officials acting under color of federal law. Accordingly, the Court must dismiss the claim
for failure to state a claim upon which relief can be granted.

Plaintifi` does not indicate the subsection of 42 U.S.C. § 1985 under which he’s bringing a

claim. As the defendants note, Section 1985(3) appears most relevant given that it relates to

2 Section 1983 states, in relevant part, that “[e]very person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.”

”3 However, in order to state a claim for relief under

“[d]epriving persons of rights or privileges
this subsection, one must allege that there Was some “racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators' action.” Grr`j‘in v. Breckenridge, 403
U.S. 88, 102 ( 1 971). Here, the plaintiff does not allege that race or class-based animus played a
role. As such, any claim under Section 1985 must be dismissed for failure to state a claim.
Finally, Section 1988 does not create a federal cause of action; rather, it “governs the
jurisdiction and procedure of federal courts with respect to civil rights claims.” McManus v.

District of Colnmbz`a, 530 F. Supp. 2d 46, 77 (D.D.C. 2007). Thus, any claim brought under that
section must also be dismissed.

B. Br`vens Claims Brought Against Crook_Counts l and II

Counts l and ll are specifically directed against Special Agent Crook. Mr. Berman alleges
that Mr. Crook’s “search warrant affidavit contained numerous false allegations that were known
to be false at the time.” Amended Complaint, ECF No. 20-1 at 11 12. Specifically, Mr. Berman
avers that the affidavit contains the following false allegations: (1) that he “participated in the
lnteragency Task Force”; (2) that he provided proprietary information to POGO; and (3) that he
was “OPA’s lerd analyst in the rule makings conducted by MMS.” Id. Berman argues that
“[a]bsent the false allegations, the affidavit could not support a finding of probable cause. Id. at j[
13. Based on those alleged facts, Berman brings Counts l and ll in his Amended Complaint,
arguing that Crook knowingly provided a false affidavit (Count I) and that he unlawfully

conducted a search and seizure without a valid search warrant (Count II).4

3 Neither of the other two subsections of the statute remotely apply to the facts of this case. Subsection

1985(1) relates to preventing an officer fi'om performing his or her duties and subsection 1985(2) applies to
obstruction of justice through the intimidation of a party, witness or juror.

4 Mr. Berrrrm also alleges in his Amended Complaint that “ALL affidavit allegations contain intentionally or
recklessly false statements or misleading omissions.” ECF No.20-l at ‘[j 13 (emphasis in original). He reiterates that

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A plaintiff may bring a suit for damages against federal officials in their individual
capacities for constitutional violations. “To state a prima facie Bz`vens claim, the plaintiff must
establish that: ( l) the defendant violated a federal constitutional right of the plaintiff, Lewr`s v.
Bayh, 577 F.Su[»p.2d 47, 57 (D.D.C. 2008); (2) the right was clearly established, Atherton v. D.C.
Ojj'z`ce of the Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009); (3) the defendant was a federal actor by
virtue of acting ander color of federal law, CHS Indus., LLC v. U.S. Customs & Border Prot., 653
F.Supp.2d 50, 55 (D.D.C. 2009); and (4) the defendant was personally involved in the alleged
violation, Garcia v. Sebeli'ns, 867 F.Supp.2d 125, 137 (D.D.C. 2012).” Patterson v. United States,
999 F.Supp.2d 300, 308 (D.D.C. 20]3). When a plaintiff brings an action for money damages
against a federal official in his individual capacity, the official may entitled to qualified immunity
“insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Farmer v. Moritsugu, 163 F.3d 6107 613 (D.C.
Cir. 1998).

ln the context of a constitutional claim of alleged falsity in a warrant application, the

Supreme Court has explained that all warrant applications carry an expectation of truthfulness:

When the Fourth Amendment demands a factual showing sufficient to
comprise “probable cause,” the obvious assumption is that there will be
a truth_}irl showing This does not mean “truthful” in the sense that every fact
recited n the warrant affidavit is necessarily correct, for probable cause may be
founded upon hearsay and upon information received from inforrnants, as well
as upor information within the affiant's own knowledge that sometimes must
be garnered hastily. But surely it is to be “truthful” in the sense that the
information put forth is believed or appropriately accepted by the affiant as true.

Franks v. Delnware, 438 U.S. 154, 164-65 (1978) (quotation and citations omitted) (emphasis in

original). The Fourth Amendment is violated only when the affiant made a “false statement

point in his opposition to the Motion to Dismiss. But the Court need not accept as true that conclusory statement, as
it is unsupported by specific facts.

knowingly and intentionally, or with reckless disregard for the truth” and that false statement “is
necessary to the finding of probable cause.” Id. at 155-65.

In order to establish that the false statement is necessary to the probable cause finding the
court must “excise any information that is allegedly false and include any information allegedly
omitted, thus creating a ‘hypothetical, redacted affidavit,’ and it must then ask whether that
affidavit ‘still established probable cause.”’ Lane v. District of Columbia, 21 l F.Supp.3d 150, 173
(D.D.C. 2016) (quoting United States v. Cardoza, 713 F.3d 656, 659 (D.C. Cir. 2013)). Reviewing
whether the “hypothetical, redacted aftidavit” establishes probable cause is a question of law.
Cardoza, 713 F.3d at 659.

The Court finds that the specific statements alleged to be false in the Amended Complaint
were not material to the probable cause determination Even if those statements_which the Court
listed above_were removed from Crook’s affidavit, there would still be sufficient evidence for a
probable cause finding with respect to a violation of 18 U.S.C. § 209 (the statute identified cited
in the affidavit). Under the statute, “[w]hoever receives any salary, or any contribution to or
supplementation of salary, as compensation for his services as an officer or employee of the
executive branch of the United States Government from any source other than the Government
of the United States . .. [s]hall be subject to the penalties set forth in Section 216 of this title.” The
affidavit indicates that Mr. Berman received a payment of $383,600 from POGO. Case No. 00-
mj-00138, ECF No. 3-1 at ‘|] 6. The affidavit also highlights that Mr. Berman worked on oil royalty
valuation matters and that POGO had within its possession a DOI intemal, confidential
memorandum authored by him. ld. at 111[ 13, 15. On those facts alone_which Mr. Berman does
not allege were false in his Amended Complaint-a court could find probable cause. Moreover,

the standard in this case is even lower_“[g]iven the nature of the qualified immunity calculus, if

the facts in the record could at least arguably give rise to probable cause, then a defendant is entitled
to qualified immunity.”Pitts v. District of Columbia, 177 F.Supp. 3d 347, 358 (D.D.C. 2016)
(quotations and citations omitted). Here, the affidavit_with the alleged false statements
removed_certainly clears that hurdle. The affidavit establishes that Mr. Berman received money
While employed by the federal government from an entity that had his internal, confidential memos
on a topic related to the qui tam suit. Thus, the plaintiff has failed to plead a plausible claim that
Crooks violated a clearly established constitutional right.

The defendants also correctly note that Mr. Berman’s claims related to the search warrant
are time-barred. A three-year limitations period applies to Bivens claims, see Banks v. Chesapeake
and Potomac Telephone Co., 802 F.2d 1416, 1429 (D.C. Cir. 1986) (three-year limitations period
in D.C. Code § 12-301(8) applies to most Bivens actions), and the claim accrues at the time the
plaintiff learns of the conduct, see Rudaj v. Treanor, 522 Fed. App’x. 76 (2d Cir. June 17, 2013).
Here, Mr. Berman’s claim accrued in 2000 when he learned of the search of his office. See, e.g.,
Case No. 00-mj-00138, ECF No. 5 (Mr. Berman’s motion to unseal the search warrant). That
same year, he received a redacted copy of the affidavit, including the portions with the statements
that he now alleges were false. At the time he characterized the affidavit in a court filing as a
“compendium of outright fabrications, half-truths, and unsupported speculation of the rankest
sort.” ld., ECF No. 10 at 2. Accordingly, his current position-that since he did not receive the
unredacted affidavit until November, 2013, the claim cannot be barred-is without merit. Mr.
Berman was aware of the search in 2000 and believed at the time that the affidavit contained false
allegations, Thus, his claims under Count I and II are outside the limitations period and must be

dismissed as time barred.

B. Plaintiff’s Due Process Claims Brought Under Bivens

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In his Amended Complaint, Mr. Berman also asserts deprivation of due process claims:
(1) Counts III-XVIII against all four defendants for denying his due process by denying access
to the search warrant application and for knowingly using the fruits of an unlawful search; (2)
Counts D(X-XXVII against defendants Morris and Rabinowitz for denying his due process by
unlawfully misappropriating district court records; and (3) Counts XIX-XX against all
defendants for denying his due process by conspiring to use the grand jury in service of a
planned civil suit. Amended Complaint, ECF No. 20-1 at 15~17. For all the following reasons,
the Court will dismiss plaintiffs remaining Bivens claims.

Tirne and again, the Supreme Court has acknowledged the limited nature of the Bivens
cause of action. See, e.g., Minneci v. Pollard, 565 U.S. 118, 123-126 (2012). Most recently, the
Supreme Court reiterated that “expanding the Bivens remedy is now a ‘disfavored’ judicial
activity.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (quoting Iqbal, 556 U.S. at 675). The
Supreme Court has only approved Bivens claims in three limited contexts and instructed that “if
[a] case is different in a meaningful way from previous Bivens cases decided by this Court, then
the context is new.” Id. at 1859-1860 (listing the three previous Bivens claims that the Supreme
Court approved: “a claim against FBI agents for handcuffing a man in his own horne without a
warrant; a claim against a Congressman for firing his female secretary; and a claim against
prison officials for failure to treat an inmate's asthma.”). When considering whether to extend a
Bivens claim to a new context, courts must analyze whether “there are special factors counselling
hesitation in the absence of affirmative action.” Id. at 1857. Courts must consider whether there
are “alternative methods of relief” that weigh against extending a Bivens remedy. Id. at 1863.

Here, Mr. Berman had ample opportunity to seek relief in the fifteen years since his

office was searched. He argues that he was denied due process because the affidavit was sealed

ll

and intentionally withheld from him. He also contends that his due process Was violated because
defendant Morris failed to serve him with the government’s 2008 motion to unseal the affidavit
But Mr. Berman had numerous paths to recover the sealed affidavit F or instance, he could have
moved in the civil litigation to recover the entire affidavit during discovery. His argument that
he could not access the affidavit because it was still under seal when discovery ended in 2007
strains credulity. It is not as if he was unaware of the affidavit’s existence. As previously
discussed, he knew about it all the way back to 2000 and at the time believed that it contained
numerous falsehoods. The record does not reflect any attempt on his part to discover the
affidavit during the course of the civil litigation. Moreover, he could have at any point filed a
renewed motion to unseal the affidavit in the separate proceeding before the magistrate judge_
something he eventually did in 2013. See Case No. 00-mj-00138, ECF No. 23. Mr. Berman
now alleges that his due process was violated because the defendants withheld the affidavit In
reality, he failed to pursue the multiple paths available to him to retrieve the affidavit Because
alternative methods of relief existed for the plaintiff, the Court will not extend a Bivens remedy
to this new context. Similarly, the Court will not extend a Bivens remedy based on Mr.
Berman’s allegations that the “fruits” of the search Warrant were used in the civil proceeding
He could have moved to exclude that evidence in his civil suit. Moreover, defendant Rabinowitz
could not have violated a clearly established constitutional right. As discussed already, the
search was not illegal and defendant Rabinowitz petitioned the court to access that information
Mr. Berman also asserts that the Court should recognize a Bivens claim for an alleged
violation of Rule 6(e) of the Criminal Rules of Procedure. He alleges in his Amended Complaint
that “[u]nder the direct supervision of Ms. Rabinowitz, Mr. Finkelstein intentionally, and without

authorization of the grand jury court, distributed multiple grand jury documents to individuals

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not authorized or otherwise permitted to view such documents under Fed. R. Crim. P. Rule 6(e),
a direct violation of Plaintiffs rights.” Amended Complaint, ECF No. 20-1 at 1[29. Berman
provides no further detail in the -Amended Complaint supporting this allegation However, even
accepting this as true for the purposes of a motion to dismiss, the Court cannot extend a Bivens
remedy. There is no constitutionally protected right against disclosure of grand jury materials,
nor does Mr. Berman explain how that would be a violation of his due process rights. Moreover,
he had an alternative method of relief_he could have highlighted his concerns in the context of
the civil litigation

Even if the Court were to extend Bivens to this context, the claims would still be
dismissed on immunity grounds The allegations levied against defendant Morris all involved
her role as a government prosecutor. Mr. Berman posits that she impaneled the grand jury and
failed to disclose a document that would have refuted her theory of the case. He also alleges that
she extended the grand jury investigation in order to “enhance a planned civil complain .”
Amended Complaint, ECF No. 20-1 at 1143. All of that conduct involves her activity before the
grand jury_conduct that Was “intimately associated with the judicial phase of the criminal
process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). And the “Supreme Court has
explained that acts undertaken by a prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his role as an advocate for the State,
are entitled to the protections of absolute immunity.” Atherton v. District of Columbia Ojj’ice of
Mayor, 567 F.3d 672, 686 (citations and quotations removed) (emphasis in original). That the
government ultimately decided not to bring charges in this case does not change the fact that
defendant Morris was operating in a prosecutorial role in her conduct related to the grand jury.

Thus, she is absolutely immune from suit for that conduct.

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Defendants Rabinowitz and Finkelstein also enjoy absolute immunity for any alleged
conduct in the civil proceeding against Mr. Berman Although not a criminal suit, the Supreme
Court has held that absolute immunity extends to government attorneys that “perform[] certain
functions analogous to those of a prosecutor.” Butz v. Economou, 438 U.S. 478, 515 (1978).
Here, Mr. Berman was sued for an alleged violation of 18 U.S.C. § 209- a statute that provides
for both criminal and civil liability. As the defendants note, Mr. Berman was also alleged to
have breached his fiduciary duties. Defendants Rabinowitz and Finkel stein, in their roles
bringing that case on behalf of the government against Mr. Berman, were acting like prosecutors

and are therefore immune from this suit.5

C. Dismissal for Lack of Personal Jurisdiction and Failure to Serve

Defendants also argue that the case should be dismissed against defendants Morris and
Crook for lack of personal jurisdiction Since neither of them currently reside in the District of
Columbia, the Court only has personal jurisdiction over them if the conduct detailed in the suit is
covered under the D.C. long-arm statute, D.C. Code § 13-423(a). Mr. Berman argues that the
personal jurisdiction exists because of the business the defendants conduct in D.C. But contact
with D.C. pursuant to federal employment is not sufficient to assert jurisdiction “[I]t is Well-
settled that this Court cannot assert jurisdiction over an individual defendant based on his actions
taken pursuant to his employment.” Islamic Am. Reliengency v. Unidentzfz`ed FBI Agents, 394
F. Supp. 2d 34, 58 (D.D.C. 2005) (citing Ali v. District of Columbia, 278 F.3d 1, 7 (D.C. Cir.

2002). Since Mr. Berman does not plead any additional facts related to their contact with this

5 The defendants are also correct that any claim related to “misappropriation” of grand jury materials would

be time barred. The motion to access the grand jury evidence (whjch was served on Mr. Berman) was granted in
2003, 13 years prior to this lawsuit

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forum, the case may be dismissed against defendants Morris and Crook for lack of personal
jurisdiction

Defendants also correctly note that Mr. Berman failed to effectuate proper service
pursuant to Federal Rule of Civil Procedure 4. Under Rule 4(i)(3), to serve a United States
officer or employee in an individual capacity, “a party must serve the United States and also
serve the officer or employee under Rule 4(e), (f), or (g).” Rule 4(e) permits service based on
the rules of the state in which the district court is located or where service is made. D.C. law
permits service by certified mail, but to be effective the plaintiff must receive a signed retum-
receipt from the defendant or someone authorized to accept service on behalf of the defendant
See, e.g., Eldridge v. District of Columbia, 866 A.2d 786, 787-88 (D.C. 2004). Berman’s return-
of-service filing indicates that he attempted to serve the defendants via certified mail. However,
none of the return receipts contain signatures from the defendants in this case or individuals
authorized to accept service on their behalf. Only two receipts provided by Mr. Berman contain
signatures, and they are of unspecified individuals Since the plaintiff bears the burden of
establishing service and Mr. Berman was made aware of defective process by defendants in a
filing in December 2016, ECF No. 6, the Court may dismiss the claims against the defendants for
failure to serve pursuant to Rule 4(m).

D. Dismissal Pursuant to Westfall Certification

Mr. Berman does not specifically allege a tort claim in his Amended Complaint. But to
the extent it can be construed to contain such a claim, the defendants argue they can be dismissed
pursuant to the Westfall certification filed by the government in this case. See Certification of
Daniel F. Van Horn, ECF No. 29-1. Under the Westfall Act, 28 U.S.C. § 2679(d), if` the United

States certifies that the individual defendant is operating within the scope of his office, the

15

“employee is dismissed from the action, and the United States is substituted as defendant in place
of the employee.” Osborn v. Haley, 549 U.S. 225, 229 (2007). The claims then proceed against
the United State:t and are governed by the Federal Tort Claims Act (“FTCA”). Ia'.

Here, the United States certifies that the defendants were operating within the scope of
their employment Therefore, to the extent l\/Ir. Berman asserts a tort claim, the United States
would be the sole defendant and the suit would need to be cognizable under the FTCA. Since
Mr. Berman has not alleged that he exhausted his administrative remedies, his suit against the
government cannot be brought under the FTCA. See 28 U.S.C. § 2675(a). Claims for damages
against the United States would also be barred on the basis of sovereign immunity. See Clark v.
Library ofCong., 750 F.2d 89, 103 (D.C. Cir. 1984) ("Sovereign immunity bar[s] suits for
money damages against officials in their official capacity absent a specific waiver by the
govemment.").

II. CONCLUSION
For the foregoing reasons, the Court will GRANT the defendants’ motion to dismiss. A

separate Order accompanies this Memorandum Opinion.

Date:February___l, 2018 Z€‘C` m

RoyceJC. Lamberth
United States District Judge

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