Johnston v. National Security Agency

• Court: District Court, District of Columbia
• Decided: July 11, 2023
• Docket: Civil Action No. 2023-0613
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID JOHNSTON,

Plaintiff,

v. Civil Action No. 23-613 (TJK)

NATIONAL SECURITY AGENCY et al.,

Defendants.

MEMORANDUM

The Court has twice warned Plaintiff, who is represented by counsel, that he must serve

process on Defendants according to the Federal Rules of Civil Procedure. It has also explained

those rules to him. The extended deadline to do so has now passed, and Plaintiff still has not

perfected service on any defendant. Thus, the Court will dismiss the case without prejudice.

Plaintiff’s complaint names six defendants: two agencies of the federal government and

four officials in both their individual and official capacities. See ECF No. 1 at 3–4. Plaintiff filed

that complaint on March 6, 2023. See id. at 1. More than 60 days later, Plaintiff had yet to file

proof of service. So the Court warned him that, under the Federal Rules of Civil Procedure and

this Court’s Local Civil Rules, he had to serve Defendants and file proof of service by June 5,

2023, or risk “dismissal of this action.” Min. Order of May 10, 2023.

Plaintiff responded by filing proof of service on “Merrick Garland, United States Attorney

General.” ECF No. 8 at 1. But Rule 4 of the Federal Rules of Civil Procedure—as the Court has

already explained to Plaintiff—“requires more.” Min. Order of June 23, 2023. To sue “a United

States agency” or a “United States officer or employee” in either her “official capacity” or her

“individual capacity,” “a party must serve the United States.” Fed. R. Civ. P. 4(i)(2)–(3). Serving the United States requires, in turn, service on “the Attorney General and the U.S. Attorney for the

district where the action is brought.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir. 2021)

(emphasis added), cert. denied, 143 S. Ct. 624 (2023); see also Fed. R. Civ. P. 4(i)(1). Moreover,

Rule 4(i)(2) requires parties suing federal agencies and official-capacity defendants to “send a

copy of the summons and of the complaint by registered or certified mail to the agency, . . . officer,

or employee.” Likewise, Rule 4(i)(3) requires parties suing individual-capacity defendants to

“serve the officer or employee under Rule 4(e), (f), or (g).”

The Court notified Plaintiff of all those requirements—and did so with a great deal of spec-

ificity given the complexity of the rule. See Min. Order of June 23, 2023. It also gave Plaintiff

until July 7, 2023—32 days past Rule 4(m)’s 90-day deadline—to perfect service. Id. The Court

did that in part because Plaintiff filed proof of service on the Attorney General, triggering Rule

4(i)(4)’s provision for “a reasonable time to cure” some of his other service failures. See Min.

Order of June 23, 2023. But it also warned him that, if he did not “serve Defendants according to

Rule 4(i) and [the Court’s] instructions” by then, the Court would “dismiss the complaint.” Id.

Plaintiff responded by filing five more documents. The first four he filed on June 25, 2023.

Of those, one reports service on the National Security Agency. ECF No. 9. One reports service

on Paul Nakasone. ECF No. 10. One reports service on “Simon â Johnâ T.” likely the same

defendant the complaint identifies as “Simon ‘John’ T.” See ECF No. 11; ECF No. 1 at 1. And

the last of those four reports service on “Randal D.” ECF No. 12. Later (and a few hours after the

extended deadline), Plaintiff filed the fifth document, which reports service on the United States

Department of Defense. See ECF No. 13.

Those filings fixed some of the prior defects. But critically absent from that list is proof

of service on the United States Attorney for the District of Columbia. That is despite the Court’s

2 explicit warning that Rule 4(i) requires service on “the Attorney General and the U.S. Attorney

for the district where the action is brought.” See Min. Order of June 23, 2023 (quoting Morrissey,

17 F.4th at 1156 (emphasis added)). And that requirement is no empty formality. Serving the

“United States attorney for the district where the action is brought,” Fed. R. Civ. P. 4(i)(1)(A)(i),

“provide[s] notice to the officials who will be litigating the claims,” Morrissey, 17 F.4th at 1156.

Notably, even though this action has been pending for four months, no defendant has appeared.

When service is untimely, Federal Rule of Civil Procedure 4(m) directs courts to “dismiss

the action without prejudice against [unserved defendants] or order that service be made within a

specified time.” The Court has already attempted the latter course, explaining both the rule and

the service deficiencies, and giving Plaintiff “a reasonable time to cure” the shortfalls. See Fed.

R. Civ. P. 4(i)(4). Still, no defendant has yet been properly served, despite those explicit instruc-

tions. Moreover, the Court alerted Plaintiff that, if he did not perfect service by July 7, 2023, it

would take the former course. Min. Order of June 23, 2023. As the D.C. Circuit has recognized,

the Court has “discretion [to] dismiss[ ] [a] complaint when the time for effectuating service ha[s]

passed.” Morrissey, 17 F.4th at 1158.

Thus, in its discretion, and for all the above reasons, the Court will “dismiss the action

without prejudice.” Fed. R. Civ. P. 4(m). A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: July 11, 2023