UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
IVAN RAY BEGAY,
Plaintiff,
v. Civil Action No. 21-782 (TJK) NATIONAL ARCHIVES AND RECORDS ADMINISTRATION,
Defendant.
MEMORANDUM ORDER
Plaintiff, a pro se prisoner, sues Defendant for release of information related to his
decades-old criminal prosecution. He brings claims under the First Amendment and the
Freedom of Information Act. Defendant moves to dismiss the First Amendment claim and
Plaintiff’s requests for certain remedies. Defendant also moves to strike Plaintiff’s demand for a
jury trial. For the following reasons, the Court will grant the motion in part by dismissing
Plaintiff’s First Amendment claim and striking his jury demand, and otherwise deny it.
Background
In 2001, Plaintiff pleaded guilty to four counts of aggravated sexual abuse in violation of
18 U.S.C. § 2241(a)(1) and four counts of aggravated sexual abuse in violation of 18 U.S.C.
§ 2241(a)(2). ECF No. 9 at 2 (citing United States v. Begay, 10-cv-08221, ECF No. 6 (D. Ariz.
Feb. 16, 2011)). Seventeen years later, he sued the Executive Office for United States Attorneys
(EOUSA) under the Freedom of Information Act (FOIA). ECF No. 9 at 4. Plaintiff alleged that
EOUSA was improperly withholding biological evidence related to his criminal prosecution. Id.
EOUSA moved for summary judgment and noted that Plaintiff’s criminal case file was “housed at the Federal Records Center of the National Archives due to the age of the case.” The court
granted EOUSA’s motion for summary judgment after Plaintiff failed to respond. Id.
Plaintiff then brought this suit. ECF No. 1. He seeks relief under FOIA and alleges that
Defendant violated his First Amendment right to petition the government. Id. He asks the
Court, among other things, to order Defendant to “release, test, and reproduce information”
sought in his FOIA request, “test Mr. Begay’s Biological Swab containing Alcohol/Marijuana
compounds,” and pay “one million dollars in compensatory damages.” Id. at Sec. E ¶¶ 1–3, 10.
He also asks that the Court appoint him an attorney and demands a jury trial. Id. at 1; Sec. E ¶ 9.
Defendant moved to dismiss the complaint in part. ECF No. 9. Defendant argues the
Court should dismiss Plaintiff’s First Amendment claim and his requests to test certain evidence,
appoint him an attorney, and pay him monetary damages. Id. at 6–7. Defendant also argues that
the Court should strike Plaintiff’s jury demand. Id. at 1, 7–8.
Legal Standards
“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)). “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.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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
2 of all inferences that can be derived from the facts alleged.’” Id. (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)). When a plaintiff proceeds pro se “his complaint ‘is
to be liberally construed’ and ‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’” Bowman v. Iddon, 848 F.3d 1034, 1039 (D.C. Cir. 2017) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). In such cases, courts can also consider
the plaintiff’s “pro se affidavits and exhibits, as well as public records subject to judicial notice.”
Id. “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.” Hettinga, 677 F.3d at 476.
Federal Rule of Civil Procedure 12(f) authorizes a court to strike “from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” While
district courts have broad discretion in this area, “motions to strike, as a general rule, are
disfavored.” Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d
200, 201 (D.C. Cir. 1981).
Analysis
A. First Amendment Claim
Defendant correctly argues that Plaintiff fails to allege a plausible First Amendment
claim. “The First Amendment guarantees ‘the right of the people . . . to petition the Government
for a redress of grievances.’” McDonald v. Smith, 472 U.S. 479, 482 (1985). This right
includes, for example, “the right of access to courts for redress of wrongs.” Borough of Duryea,
Pa. v. Guarnieri, 564 U.S. 379, 387 (2011). In contrast, FOIA allows the public to obtain
government records by making a request to an agency. See 5 U.S.C. § 552. Plaintiff argues that
3 Defendant violated his petition right because it has not released records he requested. ECF No. 1
Sec. D ¶ 4. But that allegation does not implicate the First Amendment. “There is no
constitutional right to have access to particular government information.” Houchins v. KQED,
Inc., 438 U.S. 1, 14 (1978) (plurality opinion) (quoting Stewart, Or of the Press, 26 Hastings L.J.
631, 636 (1975)). This means that “there is no constitutional right to obtain all the information
provided by FOIA laws.” McBurney v. Young, 569 U.S. 221, 232 (2013) (rejecting challenge to
Virginia FOIA statute). Thus, Plaintiff’s claim is a statutory one about whether he is entitled to
all the records he requested, not a constitutional one about his right to petition the government.
The Court will dismiss Plaintiff’s First Amendment claim.1
1 Defendant also moves to dismiss Plaintiff’s requests that the agency test certain evidence and pay him monetary damages, and his request to be appointed an attorney. ECF No. 9 at 7. FOIA’s section 552(a)(4)(B) sets out the remedies authorized by the statute. Cause of Action Inst. v. Office of Management & Budget,
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
IVAN RAY BEGAY,
Plaintiff,
v. Civil Action No. 21-782 (TJK) NATIONAL ARCHIVES AND RECORDS ADMINISTRATION,
Defendant.
MEMORANDUM ORDER
Plaintiff, a pro se prisoner, sues Defendant for release of information related to his
decades-old criminal prosecution. He brings claims under the First Amendment and the
Freedom of Information Act. Defendant moves to dismiss the First Amendment claim and
Plaintiff’s requests for certain remedies. Defendant also moves to strike Plaintiff’s demand for a
jury trial. For the following reasons, the Court will grant the motion in part by dismissing
Plaintiff’s First Amendment claim and striking his jury demand, and otherwise deny it.
Background
In 2001, Plaintiff pleaded guilty to four counts of aggravated sexual abuse in violation of
18 U.S.C. § 2241(a)(1) and four counts of aggravated sexual abuse in violation of 18 U.S.C.
§ 2241(a)(2). ECF No. 9 at 2 (citing United States v. Begay, 10-cv-08221, ECF No. 6 (D. Ariz.
Feb. 16, 2011)). Seventeen years later, he sued the Executive Office for United States Attorneys
(EOUSA) under the Freedom of Information Act (FOIA). ECF No. 9 at 4. Plaintiff alleged that
EOUSA was improperly withholding biological evidence related to his criminal prosecution. Id.
EOUSA moved for summary judgment and noted that Plaintiff’s criminal case file was “housed at the Federal Records Center of the National Archives due to the age of the case.” The court
granted EOUSA’s motion for summary judgment after Plaintiff failed to respond. Id.
Plaintiff then brought this suit. ECF No. 1. He seeks relief under FOIA and alleges that
Defendant violated his First Amendment right to petition the government. Id. He asks the
Court, among other things, to order Defendant to “release, test, and reproduce information”
sought in his FOIA request, “test Mr. Begay’s Biological Swab containing Alcohol/Marijuana
compounds,” and pay “one million dollars in compensatory damages.” Id. at Sec. E ¶¶ 1–3, 10.
He also asks that the Court appoint him an attorney and demands a jury trial. Id. at 1; Sec. E ¶ 9.
Defendant moved to dismiss the complaint in part. ECF No. 9. Defendant argues the
Court should dismiss Plaintiff’s First Amendment claim and his requests to test certain evidence,
appoint him an attorney, and pay him monetary damages. Id. at 6–7. Defendant also argues that
the Court should strike Plaintiff’s jury demand. Id. at 1, 7–8.
Legal Standards
“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)). “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.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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
2 of all inferences that can be derived from the facts alleged.’” Id. (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)). When a plaintiff proceeds pro se “his complaint ‘is
to be liberally construed’ and ‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’” Bowman v. Iddon, 848 F.3d 1034, 1039 (D.C. Cir. 2017) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). In such cases, courts can also consider
the plaintiff’s “pro se affidavits and exhibits, as well as public records subject to judicial notice.”
Id. “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.” Hettinga, 677 F.3d at 476.
Federal Rule of Civil Procedure 12(f) authorizes a court to strike “from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” While
district courts have broad discretion in this area, “motions to strike, as a general rule, are
disfavored.” Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d
200, 201 (D.C. Cir. 1981).
Analysis
A. First Amendment Claim
Defendant correctly argues that Plaintiff fails to allege a plausible First Amendment
claim. “The First Amendment guarantees ‘the right of the people . . . to petition the Government
for a redress of grievances.’” McDonald v. Smith, 472 U.S. 479, 482 (1985). This right
includes, for example, “the right of access to courts for redress of wrongs.” Borough of Duryea,
Pa. v. Guarnieri, 564 U.S. 379, 387 (2011). In contrast, FOIA allows the public to obtain
government records by making a request to an agency. See 5 U.S.C. § 552. Plaintiff argues that
3 Defendant violated his petition right because it has not released records he requested. ECF No. 1
Sec. D ¶ 4. But that allegation does not implicate the First Amendment. “There is no
constitutional right to have access to particular government information.” Houchins v. KQED,
Inc., 438 U.S. 1, 14 (1978) (plurality opinion) (quoting Stewart, Or of the Press, 26 Hastings L.J.
631, 636 (1975)). This means that “there is no constitutional right to obtain all the information
provided by FOIA laws.” McBurney v. Young, 569 U.S. 221, 232 (2013) (rejecting challenge to
Virginia FOIA statute). Thus, Plaintiff’s claim is a statutory one about whether he is entitled to
all the records he requested, not a constitutional one about his right to petition the government.
The Court will dismiss Plaintiff’s First Amendment claim.1
1 Defendant also moves to dismiss Plaintiff’s requests that the agency test certain evidence and pay him monetary damages, and his request to be appointed an attorney. ECF No. 9 at 7. FOIA’s section 552(a)(4)(B) sets out the remedies authorized by the statute. Cause of Action Inst. v. Office of Management & Budget, 10 F.4th 849, 854 (D.C. Cir. 2021). That section authorizes a court to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). It provides for no other relief. Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002) (FOIA “provides requesters with the potential for injunctive relief only”). But Defendant cites no authority that suggests a court may dismiss requests for relief under Rule 12(b)(6). Thus, at this stage, the Court will not dismiss these requests, but merely note that even if Plaintiff’s FOIA claim succeeds, these remedies are unavailable to him. The Court also notes that it may only appoint counsel in civil cases under certain circumstances, taking into account the “nature and complexity of the action;” the “potential merit of the pro se party’s claims;” the party’s demonstrated “inability . . . to retain counsel by other means;” and the “degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel.” LCvR 83.11(b)(3). “For example, a court may appoint an attorney for a pro se litigant who is involved in a particularly complex or meritorious case or who is otherwise incapable of adequately representing himself without the help of an attorney.” Pinson v. U.S. Dep’t of Justice, 55 F. Supp. 3d 80, 83 (D.D.C. 2014) (cleaned up) (declining to appoint counsel to pro se FOIA plaintiff); see also LCvR 83.11(b)(3). Plaintiff has not made a showing that the appointment of counsel is warranted here.
4 B. Jury Trial Demand
The Court will strike Plaintiff’s demand for a jury trial. Under Rule 38(b), a party may
demand a jury trial on “any issue triable of right by a jury.” Fed. R. Civ. P. 38(b). The
Constitution’s Seventh Amendment provides a right of jury trial “[i]n Suits at common law,
where the value in controversy shall exceed twenty dollars.” Granfinanciera, S.A. v. Nordberg,
492 U.S. 33, 40–41 (1989) (quoting U.S. Const. amend. VII). “Suits at common law” refers to
suits traditionally heard in courts of law, “as opposed to those customarily heard by courts of
equity or admiralty.” Id. at 42. In determining whether the Seventh Amendment applies to a
statutory action, courts look to comparable 18th-century actions in England and the nature of the
remedy sought. Id. Whether the remedy sought is equitable or legal is a more important factor
than the cause of action itself. Id.
Defendant is correct that the “Seventh Amendment has no application in actions at law
against the Government” because the United States is generally immune from suit. Lehman v.
Nakshian, 453 U.S. 156, 162 n.9, 163 (1981); ECF No. 9 at 5–6. But since FOIA only offers
equitable remedies, it likely falls outside the Seventh Amendment’s ambit for that reason. See
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 154 (1980)
(“Congress intended federal district courts to retain traditional equitable jurisdiction in
adjudicating FOIA actions.”); Johnson, 310 F.3d at 777. And in any event, the statute itself does
not provide a jury right. See U.S.C. § 552. For these reasons, Plaintiff has no right to a jury trial.
Because he cannot demand one, the Court will strike his jury demand as immaterial. Fed. R.
Civ. P. 12(f).
5 Conclusion
For the above reasons, it is hereby ORDERED that Defendant’s Motion to Dismiss, in
Part, and to Strike Jury Demand, ECF No. 9, is GRANTED IN PART and DENIED IN PART.
The First Amendment claim in Count I of the complaint is DISMISSED for failure to state a
claim. Further, Plaintiff’s jury demand is STRICKEN from his complaint.
SO ORDERED.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: October 6, 2021