UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW P. SCHORR,
Plaintiff,
v. Civil Action No. 15-1290 (TJK)
DENISE E. ROBERSON et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Matthew P. Schorr, proceeding pro se, was convicted of federal child-
pornography charges in 2011. Based on his conviction, United States Immigration and Customs
Enforcement (“ICE”), a component of the Department of Homeland Security (“DHS”), debarred
him from participating in federal contracts and other federal programs. Schorr filed this lawsuit
challenging his debarment against DHS, ICE, and various public officials. He brings two claims
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and a Bivens claim for
alleged violations of his due process and equal protection rights. See ECF No. 1 (“Compl.”)
¶¶ 60-73. Shortly after Schorr filed suit, ICE terminated the debarment.
Defendants filed a Motion to Dismiss and/or for Summary Judgment (ECF No. 17), and
Schorr filed a Partial Motion for Summary Judgment (ECF No. 20) in response. The Court
referred the matter to Magistrate Judge G. Michael Harvey, who issued a Report and
Recommendation to grant Defendants’ motion, deny Schorr’s motion, and dismiss the case. ECF
No. 29 (“R&R”).
Schorr filed objections to Magistrate Judge Harvey’s Report and Recommendation. ECF
No. 33 (“Pl.’s Obj.”). His objections are that Magistrate Judge Harvey (1) misapprehended
Schorr’s factual allegations, id. at 2-3; (2) failed to consider all of his submissions, id. at 15-18;
(3) incorrectly determined that Schorr lacked standing at the time he filed suit, id. at 5-8; (4)
incorrectly determined that Schorr’s APA claim was mooted by ICE’s termination of Schorr’s
debarment, id. at 9-15; and (5) incorrectly determined that Schorr failed to allege egregious
government misconduct in connection with his Bivens claim, id. at 18-19.1 Reviewing Schorr’s
objections de novo, see Fed. R. Civ. P. 72(b)(3), the Court overrules the objections and adopts
Magistrate Judge Harvey’s Report and Recommendation in its entirety except for its conclusion
that Schorr lacked standing (although the Report and Recommendation’s reasoning on standing
supports the conclusion that Schorr’s APA claims are moot), see R&R at 7-12, and as otherwise
noted below.
First, Schorr complains, Magistrate Judge Harvey failed to appreciate the supposedly
extraordinary nature of his allegations. He argues that Magistrate Judge Harvey incorrectly
assumed that “Defendants were[,] in fact, diligent bureaucrats,” when in reality “ICE Suspension
and Debarment personnel have created a debarment mill that cranks out useless and illegal
debarments whose only purpose is to perpetuate the continued existence of their jobs.” Pl.’s Obj.
at 2. In support of this argument, Schorr cites the following allegations: that (1) “Defendants
failed to check their CorrLinks account for [Schorr’s] Response before they debarred [him],”
id.;2 (2) two of the Defendants received a copy of his complaint in this action shortly before
terminating his debarment, Pl.’s Obj. at 2; and (3) Defendants’ decision to terminate his
debarment was set forth in a very short letter with no reasoning, id. at 3. These allegations,
1
Magistrate Judge Harvey also recommended dismissing Schorr’s APA claims on the ground of
sovereign immunity to the extent they seek money damages. R&R at 12-13. Schorr effectively
concedes that point in his objections, but insists that he is entitled to equitable relief. Pl.’s Obj. at
8-9.
2
CorrLinks is an email system used by prison inmates. See Compl. ¶ 37(b).
2
Schorr claims, give rise to the inference that these public officials ran a supposed “debarment
mill,” which in his view amounted to “egregious abuse of official power.” Id. at 2. The Court
disagrees, because the facts alleged are insufficient to make such an inference plausible. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Schorr also claims that Magistrate Judge Harvey failed to take into account certain
documents attached to his motion for partial summary judgment. See Pl.’s Obj. at 15-18. But
Schorr is incorrect. While the attachments are not separately listed on the docket sheet, they are
in fact included in the Court’s electronic files. See ECF No. 20 (“Pl.’s Mot.”). Magistrate Judge
Harvey expressly listed the motion for partial summary judgment (which is docketed together
with its attachments) among the documents he considered. See R&R at 2 n.1.
Next, Schorr objects to Magistrate Judge Harvey’s recommendation that the Court
dismiss his APA claims for both lack of standing and mootness. Pl.’s Obj. at 5-15. The Court
finds it unnecessary to determine whether Magistrate Judge Harvey was correct that Schorr lacks
standing, because the Court agrees with Magistrate Judge Harvey that Schorr’s APA claims—
assuming Schorr had standing to bring them in the first place—became moot when ICE
terminated his debarment shortly after the case was filed. “The fundamental concept of
mootness is quite straightforward. As applied in the context of injunctive litigation, if there
remains no conduct to be enjoined, then normally there is no relief that need be granted, the case
or controversy has ceased, and the jurisdiction of the court has expired under Article III.” True
the Vote, Inc. v. IRS, 831 F.3d 551, 561 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 1068 (2017).
That is, the plaintiff must retain a “continuing interest” in the litigation. Hardaway v. D.C. Hous.
Auth., 843 F.3d 973, 979 (D.C. Cir. 2016).
3
Applying these principles, courts have concluded that challenges to debarments become
moot after the underlying debarments have expired, unless the plaintiff can make a particularized
showing of lasting harm. For example, in O’Gilvie v. Corporation for National Community
Service, 802 F. Supp. 2d 77 (D.D.C. 2011), the court concluded that claims arising from an
expired debarment were nonjusticiable where the plaintiff did not allege that “he has applied for
any government grants or contracts,” “that he has any present plans to do so,” or “that his
expired debarment would be a factor in determining his eligibility for government grants.” Id. at
82-83. By contrast, in Tri-County Contractors, Inc. v. Perez, 155 F. Supp. 3d 81 (D.D.C. 2016),
a “close case” on mootness, the court found a challenge to an expired debarment remained
justiciable where the plaintiff demonstrated “that it intends to continue to operate government
contracting businesses and that the existence of a past debarment order poses an ongoing
impediment to its ability to do so.” Id. at 91-92.
Here, Schorr’s debarment ended shortly after this case began, and he has offered nothing
to suggest that he will suffer further harm absent judicial intervention. He asserts that the Court
should order the government to expunge the records showing that he was temporarily debarred.
Pl.’s Obj. at 9.3 But he has not shown any interest in expungement sufficient to justify
maintenance of his APA claims. His theory of harm consists of the general claim that a person
who is “formerly debarred” bears a “badge of legal status in the modern business world” that is
“akin to a criminal conviction.” Pl.’s Obj. at 5, 7. He does not explain how this asserted “badge
3
The Court notes that Schorr does not appear to have requested expungement in his complaint.
See Compl. at 13-14. Nonetheless, Schorr did mention expungement in his cross-motion and
opposition to the government’s motion to dismiss. See Pl.’s Mot. at 25. Courts ordinarily
consider all filings made by a pro se plaintiff like Schorr, not merely the complaint, when
deciding a motion to dismiss. See Washington v. AlliedBarton Sec. Servs., LLC, 289 F. Supp. 3d
137, 139 (D.D.C. 2018) (citing Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C.
Cir. 2015)).
4
of legal status” has resulted or will result in any harm to him in particular. To the contrary, as
Magistrate Judge Harvey observed, Schorr never attempted to engage in any of the activities
from which he was temporarily debarred and has himself suggested that he does not intend to do
so in the future. See R&R at 8. Because Schorr has not made a particularized showing of lasting
harm from the debarment, he no longer has a continuing interest in his APA claims challenging it
(assuming he ever did), and those claims are moot.
Schorr also objects to Magistrate Judge Harvey’s conclusion that the voluntary-cessation
exception to mootness does not apply. See Pl.’s Obj. at 11-14. Magistrate Judge Harvey
reasoned that, as a threshold matter, the exception is unavailable unless the defendant ceased the
objectionable conduct in response to litigation, and here ICE terminated the debarment before
any Defendant had been served. See R&R at 15. While Magistrate Judge Harvey was correct
that Schorr did not properly effect service of process until after ICE terminated the debarment on
September 3, 2015, see ECF No. 3, at least one Defendant may have had actual notice of the
complaint a few days earlier on August 31, 2015, see ECF No. 4. The Court need not and does
not adopt Magistrate Judge Harvey’s conclusion that Schorr failed to meet this threshold
requirement, because his opinion offers other, independent grounds to reject Schorr’s voluntary-
cessation argument.
“Voluntary cessation will only moot a case if there is no reasonable expectation . . . that
the alleged violation will recur and interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.” Cierco v. Mnuchin, 857 F.3d 407, 414-15 (D.C.
Cir. 2017) (alteration in original) (internal quotation marks omitted). “The defendant carries the
burden of demonstrating that there is no reasonable expectation that the wrong will be repeated,
and [t]he burden is a heavy one.” Id. at 415 (alteration in original) (internal quotation marks
5
omitted). Here, Defendants have carried that burden. ICE has terminated the debarment, and
Schorr’s claim that it might be reinstated is based on pure speculation. “[T]here must be
evidence indicating that the challenged [policy] likely will be reenacted.” Larsen v. U.S. Navy,
525 F.3d 1, 4 (D.C. Cir. 2008) (second alteration in original) (quoting Nat’l Black Police Ass’n v.
District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)). But there is none here. It has been
almost three years since ICE terminated the debarment, and there is no suggestion in the record
that ICE has even considered reopening the matter during that time. Thus, there is simply no
reasonable expectation that the debarment will recur. The termination has also completely
eliminated the cognizable effects of the debarment; all that remains is the historical record that
the debarment occurred. And as explained above, because Schorr never engaged in the activities
from which he was temporarily debarred and has suggested he never will, he lacks a concrete
interest in expunging the historical record. Therefore, the Court agrees with Magistrate Judge
Harvey that the voluntary-cessation doctrine does not apply and Schorr’s APA claims are moot.
See R&R at 14-16.
Finally, Schorr objects that his Bivens claim was improperly dismissed because he has
alleged “egregious government misconduct”—namely, that “Defendants were running a
debarment mill for their own benefit rather than in furtherance of any legitimate governmental
purpose.” Pl.’s Obj. at 18.4 As explained above, Schorr’s factual allegations simply do not
support that exceptional inference. The Court thus agrees with Magistrate Judge Harvey’s
determination that Schorr’s complaint does not allege egregious conduct by the government. See
R&R at 20-21.
4
Once again, this allegation appears to be absent from Schorr’s complaint. See Compl. at 12.
Nonetheless, Schorr did make a related claim in his opposition and cross-motion. See Pl.’s Mot.
at 20-21.
6
For the above reasons, the Court adopts Magistrate Judge Harvey’s Report and
Recommendation, except for its conclusion on standing and as otherwise noted above, overrules
Schorr’s objections, and will dismiss the case in a separate order.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: July 19, 2018
7