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 .
3 (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 .
5 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,
6 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.”
7 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)).
9 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
13 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
14 (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