Opinion
Civil Action No. 3:99-CV-1989-M
December 4, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Special Order No. 3-214, filed September 11, 2002, the Motion to Dismiss Defendant United States of America, filed April 26, 2002, the Motion to Dismiss Defendant Federal Bureau of Investigation, filed May 14, 2002, Defendant Edward Kraemer' s Motion to Dismiss, filed May 15, 2002, and Defendants Richard A. Kamp, Pamela L. Dempsey, and Jack Hinton's Motion to Dismiss, filed May 15, 2002, were transferred from the docket of U.S. Magistrate Judge Jeff Kaplan to the docket of this Court for findings and recommendation pursuant to 28 U.S.C. § 636(b). The motions are now before the Court, have been fully briefed, and are ripe for determination.
After thoroughly reviewing the record, the parties' arguments, and the applicable law, the Court is of the opinion that each motion to dismiss should be GRANTED.
I. BACKGROUND
A. Facts
This case arises out of the March 22, 1995 prosecution and conviction of John H. Carney and James R. Fisher ("Plaintiffs") for bank fraud, mail fraud, wire fraud, conspiracy, and making false statements to government officials. Plaintiffs appealed, and on February 13, 1997, the Fifth Circuit Court of Appeals reversed their convictions, vacated their sentences, and remanded the case for a new trial. See United States v. Fisher, 106 F.3d 622 (5th Cir. 1997). On October 3, 1997, Plaintiffs were retried and acquitted of all charges (except bank fraud, which had been dropped before trial). Plaintiffs then jointly brought this action against the United States, several federal agencies, and individual federal employees.
Plaintiff Carney, who is proceeding pro se, is an attorney who has been licensed by the State of Texas since 1981. Plaintiff Fisher is represented by counsel. Together, they have filed four lengthy complaints, culminating in their Third Amended Complaint, which primarily alleges that the defendants conspired to withhold exculpatory evidence. Additionally, Plaintiffs claim that the defendants committed, used, and suborned perjury, and otherwise engaged in prosecutorial misconduct.
B. Procedural History
The procedural history of this case is long and convoluted. On September 3, 1999, Plaintiffs filed this suit alleging constitutional and common law tort claims against the United States, the Office of Thrift Supervision ("OTS"), the Federal Bureau of Investigation ("FBI"), and federal employees in their official and individual capacities. (Orig. Compl. at 1-2). On November 1, 1999, the OTS moved to dismiss. On November 3, 1999, the remaining defendants filed a collective motion to dismiss that included a Department of Justice certification that all federal employees were acting within the scope of their employment and the United States should be substituted as the proper defendant. (Defs. Mot. Dis. at App. A.) On December 6, 1999, Plaintiffs filed a response. The same day, they filed their First Amended Complaint, which omitted the United States from the caption and introductory paragraph. (First Am. Compl. at 1, 3.)
Under authority granted by § 6 of the Federal Employees Liability Reform and Tort Compensation Act ("Westfall Act "), the Director of the Torts Branch of the Department of Justice certified that the each federal employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d)(1). Where such certification is made, the United States is substituted for the individual defendant and all common-law tort claims are then directed against the United States. See United States v. Smith, 499 U.S. 160, 164 n. 5 (1991).
On September 12, 2000, U.S. Magistrate Judge Jane Boyle held a hearing on the motions. During the hearing, the Court determined that Plaintiffs' claims accrued no later than the date of their acquittals, October 3, 1997. (Tr. at 68, 70-71.) The Court also stated that it would recommend that, under the Westfall Act, the United States would be substituted as the proper defendant with regards to Plaintiffs' common-law tort claims against the Individual Defendants, and those claims would be dismissed against the individuals. (Tr. at 64-5.) Regarding the claims against the FBI, counsel for the FBI agreed with the Court that it had moved for dismissal under Federal Rule of Civil Procedure 12(b)(6). (Tr. at 36.) In light of that understanding, the Court stated that it would recommend to the District Court that all constitutional claims and common-law tort claims against the FBI be dismissed, but that the expungement claim would remain. (Tr. at 39-40.) The Court also recommended that all claims against the OTS be dismissed on grounds of sovereign immunity, failure to exhaust administrative remedies under the Federal Tort Claims Act, and the statutory preclusion of this type of suit against the OTS. (Tr. at 104.) The Court issued a written recommendation to that effect on September 13, 2000. (Mag. Rec. at 1, 6.) On January 8, 2001, the District Court adopted the recommendation and entered judgment accordingly. (D.J. at 1.) Meanwhile, Plaintiffs had presented their administrative claims to the FBI on December 20, 2000, and to the OTS on December 22, 2000.
Over ten months later, on October 15, 2001, Plaintiffs filed their Second Amended Complaint renaming the United States as a defendant and joining Richard Kamp, Pamela Dempsey, and Jack Hinton, who were Department of Justice employees, as defendants. (Sec. Am. Compl. at 1, 3.) On December 21, 2001, the United States filed its second motion to dismiss, which was dismissed without prejudice when Plaintiffs were granted leave to file their Third Amended Complaint. Plaintiffs filed that complaint on April 5, 2002, adding claims against Edward Kraemer, an OTS employee. (Third Am. Compl. at 1.) Subsequently, the United States renewed its motion to dismiss, Kraemer filed his own motion to dismiss, and Kamp, Dempsey, and Hinton filed their collective motion to dismiss. On May 23, 2002, in accordance with the Westfall Act, the Court filed an Agreed Order substituting the United States for Kraemer, Kamp, Dempsey, and Hinton ("Individual Defendants") on all common-law tort claims against them, leaving them liable for only constitutional torts.
The United States moves to dismiss Plaintiffs' common-law tort claims, arguing that Plaintiffs failed to exhaust administrative remedies under the Federal Tort Claims Act. The Individual Defendants move to dismiss the constitutional tort claims, arguing qualified immunity and that Plaintiffs' claims are time-barred under the two-year statute of limitation. The United States moves to dismiss the constitutional torts against it because of sovereign immunity. Finally, the FBI moves to dismiss Plaintiffs' expungement claim for lack of standing.
II. ANALYSIS
A. Legal Standards for Dismissal 1. Federal Rule of Civil Procedure 12(b)(1)
Under Rule 12(b)(1), a claim is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim. Home Builders Assoc., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). A motion to dismiss may facially or factually attack the complaint's basis for subject matter jurisdiction. Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). A facial attack usually occurs early in the proceedings and it directs the court's attention to only "the sufficiency of the allegations in the complaint[,] because they are presumed to be true." Id. If sufficient, those allegations alone provide jurisdiction.
In contrast, a factual attack challenges the existence of subject matter jurisdiction in fact irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, may be considered. Menchaca v. Chiysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Moreover, a factual attack may occur at any stage of the proceedings. Id. No presumptive truthfulness attaches to the plaintiffs allegations, the plaintiff bears the burden of proving that jurisdiction exists, and the presence of disputed material facts will not preclude the trial court from evaluating, for itself, the merits of jurisdictional claims. Williamson v. Tucker, 645 F.2d 404, 412-413 (5th Cir. 1981) ("Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.")
2. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) motions to dismiss are disfavored and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). As opposed to a factual attack under Rule 12(b)(1), under this standard, a court cannot look beyond the face of the pleadings. Baker, 75 F.3d at 196; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). To avoid dismissal, those pleadings must show specific, well-pleaded facts, not mere conclusory allegations. Guidiy v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-6 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
B. Common-Law Torts: The Federal Tort Claims Act
The United States moves, under Rule 12(b)(1), for dismissal of Plaintiffs' common-law tort claims for malicious prosecution, abuse of process, false imprisonment, gross negligence, and spoliation of evidence. (Defs. B.R. at 1.) The United States contends that the Court lacks subject matter jurisdiction over Plaintiffs' claims because Plaintiffs failed to timely exhaust their administrative remedies under the Federal Tort Claims Act ("FTCA"). Deciding this issue requires the Court's resolution of disputed factual matters outside the pleadings — such as facts bearing on whether Plaintiffs' were required to present their claims before or after the United States' substitution. Therefore, the United States' motion is a factual attack, and the Court may consider matters outside the pleadings. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Williamson, 645 F.2d at 412-413.
The Federal Tort Claims Act, 28 U.S.C. § 2671, et. seq., provides a limited waiver of the United States' sovereign immunity for tort claims brought against the federal government. United States v. Kubrick, 444 U.S. 111, 123-24 (1979); Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1956); McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998). The waiver's express and specific terms define the Court's subject matter jurisdiction. Honda v. Clark, 386 U.S. 484 (1967); United States v. Sherwood, 312 U.S. 584, 586 (1941) ("The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.") (citations omitted).
Under the FTCA's specific terms, the Court lacks subject matter jurisdiction "unless the claimant shall have first presented his claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a); Williamson v. United States Dept. of Agriculture, 815 F.2d 368, 378 (5th Cir. 1987). It is well settled that compliance with the FTCA's administrative-claim process is a jurisdictional prerequisite to suit against the federal government. Shah v. Quinlin, 901 F.2d 1241, 1243 (5th Cir. 1990) ( citing Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981)); Murphy v. Mayfield, 860 F. Supp. 340, 342 n. 5 (N.D. Tex. 1994). Only when the claim has been denied or six months have passed may the plaintiff bring suit. See, e.g., Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995); McAfee v. 5th Circuit Judges, 884 F.2d 221, 222-23 (5th Cir. 1989).
1. Two-Year Limitation Period: 28 U.S.C. § 2401(b)
Under the FTCA, a common-law tort claim against the United States "shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after the claim accrues . . ." 28 U.S.C. § 2401(b); see also Ramming, 281 F.3d at 162. According to the Court's earlier findings, Plaintiffs' claims accrued against defendants on October 3, 1997. (Tr. at 68, 70-1.) Thus, pursuant to § 2401(b), Plaintiffs had until October 3, 1999, to present their claims for administrative consideration. Ramming, at 162-23 (determining that the two-year limitation in § 2401(b) began when the claim accrued against a known federal presence). However, the record reflects that Plaintiffs did not submit their administrative claim to the FBI until after the two-year period expired, on December 20, 2000. Indeed, Plaintiffs admit that they failed to satisfy § 2401(b). (Third. Am. Compl. at 53) ("Plaintiffs did not send a [sic] FTCA demand prior to filing the lawsuit[.]") Moreover, the Court already noted that the common-law tort claims against the United States could not stand "because of the plaintiffs' failure to exhaust their administrative remedies under the FTCA." (Mag. Find, at 6.) Consequently, Plaintiffs failed to timely submit their claims under the FTCA's two-year limitation.
In response, Plaintiffs argue that the filing of their Original Complaint "satisfied all notice requirements to the FBI and OS [sic] under the FTCA and that notice was timely." (Third. Am. Compl. at 53) (footnote omitted). However, this argument is foreclosed by settled precedent. McNeil v. United States, 508 U.S. 106, 112 (1993) ("Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process"); see also Houston v. U.S. Postal Serv., 823 F.2d 896, 901 (5th Cir. 1987) (citing with approval Eighth and Fourth Circuit Courts of Appeals opinions rejecting arguments similar to Plaintiffs').
2. Sixty-Day Exception: 28 U.S.C. § 2679(d)(5)
Plaintiffs further contend that they timely submitted their claims under 28 U.S.C. § 2679(d)(5). Section 2679(d)(5) is a limited, sixty-day exception to the general two-year limitation period. It states in relevant part:
Whenever an action . . . in which the United States is substituted as a party defendant is dismissed [for failure to exhaust administrative remedies], such a claim shall be deemed timely presented under 2401(b) of this title if . . . presented to the appropriate Federal agency within 60 days after dismissal of the civil action.28 U.S.C. § 2679(d)(5)-(B). Plaintiffs argue that they timely presented their administrative claims within sixty days of learning that the United States would be substituted for the Individual Defendants.
The United States argues that Plaintiffs' presentation was premature under the plain language of § 2679(d)(5) because Plaintiffs presented their claims before the District Court formally entered judgment substituting the United States for the Individual Defendants. Because the Court finds that § 2679(d)(5) does not apply here, the Court does not address this argument.
Generally, the courts that have addressed this issue have held that the sixty-day exception applies only to a claimant who files suit against a defendant while uninformed of the defendant's federal status. See Bryant v. United States, 96 F. Supp.2d 552, 553-554 (N.D. Miss. 2000) (clarifying that § 2679(d)(5) applies in cases where the plaintiff has "no knowledge of a federal presence" and "to actions which are not originally brought against the United States.") (emphasis added); accord Faura Cirino v. United States, 210 F. Supp.2d 46, 53 (D. Puerto Rico 2002) (same). The uninformed claimant is obviously unaware of the need to present his administrative claim within the two-year limitation. The sixty-day exception saves the claimant from the dismissal that may otherwise occur once the United States is substituted into the suit after the two-year limitation expires. The exception does not, however, save claims originally brought against the United States or a known federal opposition. See Houston, 823 F.2d at 902 (discussing a similar situation and holding that "the plaintiff — at least one who knows or should know that the driver was a government employee — must meet the FTCA's administrative exhaustion requirements and then timely commence suit against the government as provided by 28 U.S.C. § 2401(b)").
The record reflects that not only did Plaintiffs know of the Individual Defendants' federal status, but Plaintiffs purposefully directed their claims against federal employees, federal agencies and the United States. First, it is undisputed that Plaintiffs sued government employees in their federal capacities. (Orig. Compl. at 1-2; Sec. Am. Compl. at 3; Third Am. Compl. at 3.) ("This is a federal constitutional tort action against the United States of America, named government officers, and known and unknown agents of the Department of Justice . . .") This alone forecloses relief under the sixty-day exception. See McGuire, 137 F.3d at 324 (stating that the "FTCA . . . is the exclusive remedy for a federal employee's tortious acts committed in the scope of employment."); accord Artis v. Petrovsky, 638 F. Supp. 51, 53 (W.D.Mo. 1986) (explaining that it is superfluous to sue federal employees in their official capacities and concluding that "the statutory provisions of the FTCA cannot be avoided by naming officers and employees of the United States as defendants.").
Second, the substance of Plaintiffs' claims appear directed at the United States, itself. (First Am. Compl. at 18) (alleging that a grand jury witness's testimony "was false, that Government knew it was false, and it was material.") (emphasis added, footnote omitted); Id. at 20 (stating that "the Government lacked sufficient grounds for charging and convicting plaintiffs.") (emphasis added); Id. at 21 (adding that the " government, through unknown agents of the DOJ, Fazio [sic], Gant and OTS employee Colburn conspired to investigate, structure and construct the knowing perjured testimony with the express purpose of obtaining a conviction.") (emphasis added); Id. at 22 (alleging that the " government encouraged Courage to testify falsely about the following issues; made no effort to correct the falsehood for the jury and did so knowing the truth withheld was highly exculpatory.") (emphasis added). Plaintiffs reallege these allegations in their substantive claims. Id. at 28, 49.
Curiously, page 29 precedes page 28, but the paragraphs remain consecutively numbered throughout.
As the bulk of Plaintiffs' complaints demonstrates, not only were Plaintiffs aware of the defendants' federal statuses, but they levied claims directly against the government. Therefore, the sixty-day exception does not save Plaintiffs' late claims. Plaintiffs respond that equitable tolling be applied to render their late presentations timely.
3. Equitable Toiling
Plaintiffs request that their claims against the United States be equitably tolled under Texas' fraudulent concealment doctrine. (Pls. Br. at 37.) "The doctrine of equitable tolling preserves a plaintiffs claims when strict interpretation of the statute of limitations would be inequitable." Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995). However, equitable tolling is not a doctrine that courts use whenever they please; statutes of limitation serve a vital role in blocking stale claims. Perez v. United States, 167 F.3d 919 (5th Cir. 1999). Therefore, federal courts typically extend equitable tolling relief only sparingly. Irwin v. Dept. Veteran's Affairs, 498 U.S. 89, 96 (1990). The plaintiff bears the burden of proving that strict interpretation of the statute of limitations would be inequitable. FDIC v. Shrader York, 991 F.2d 216, 220 (5th Cir. 1993).
The "doctrine of fraudulent concealment tolls or suspends the running of limitations after it has begun because the defendant concealed from the plaintiff facts necessary for the plaintiff to know that he or she had a cause of action." Achee v. Port Drum Co., 197 F. Supp.2d 723, 737 (E.D. Tex. 2002). At issue is whether there was a fraud and whether the plaintiff exercised due diligence in pursuing the facts that would disclose the fraud. Id. The applicable statute of limitations is tolled until the fraud is discovered or could have been discovered in the exercise of reasonable diligence. Id.; Love v. National Medical Enterprises, 230 F.3d 765, 779 (5th Cir. 2000). In asserting a claim of fraudulent concealment, the plaintiff must show that the defendant had a duty to disclose and that he breached that duty by fraudulently concealing the existence of a cause of action. Seatrax, Inc. v. Sonbeck Intern, Inc., 200 F.3d 358, 366 (5th Cir. 2000). There is no fraudulent concealment of facts that were or should have been known by the plaintiff. Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 646 (5th Cir. 1999).
Plaintiffs were aware of the facts essential to determining that they had a cause of action against the United States on October 3, 1997, or earlier. Indeed, Plaintiffs filed suit against the United States within the two-year statute of limitation. Further, Plaintiffs have provided no evidence of fraudulent concealment of their causes of action by the United States. In light of this, the Court is "not free to construe § 2401(b) so as to defeat its obvious purpose of encouraging the prompt presentation of claims." Ramming v. United States, 281 F.3d 158, 163 (5th Cir. 2001). Therefore, this argument fails and Plaintiffs' common-law tort claims against the United States should be dismissed with prejudice.
C. Constitutional Tort Claims
1. United States
Plaintiffs also raise constitutional tort claims against the United States. (Third Am. Compl. at 3.) Plaintiffs' constitutional tort claims against the United States are foreclosed by settled precedent. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (explaining that "the United States simply has not rendered itself liable under § 1346(b) [of the FTCA] for constitutional tort claims."); see also Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989) (agreeing "with the Second and Eleventh Circuits that suits for violations of federal constitutional rights, even though tortious in nature, are not within the scope of the FTCA"). Plaintiffs' constitutional claims against the United States should be dismissed with prejudice.
2. Individual Defendants
Plaintiffs also raise constitutional claims, or Bivens claims, against the Individual Defendants. The Individual Defendants have moved to dismiss Plaintiffs' claims as time-barred. The statute of limitations for constitutional tort claims is controlled by borrowing the applicable state statute of limitations; in Texas, the limitations period is two years. Brown v. Nationsbank Corp., 188 F.3d 579, 590 (5th Cir. 1999). As stated above, Plaintiffs' causes of action accrued when they were acquitted on October 3, 1997. However, Plaintiffs did not name Kamp, Dempsey, and Hinton until they filed their Second Amended Complaint on October 15, 2001 — four years and twelve days after their claims accrued. Plaintiffs did not name Kraemer until they filed their Third Amended Complaint almost six months after that, on April 5, 2002. Thus, the statute of limitations had clearly run by the time Plaintiffs sued the Individual Defendants and Plaintiffs' claims against them are time-barred.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court recognized an implied private right of action for damages against federal officers alleged to have violated a citizen's constitutional rights.
They also move to dismiss them on grounds of qualified immunity. Because the Court finds that Plaintiffs' claims are time-barred, the Court does not address this argument.
3. Equitable Tolling
As with the FTCA claims against the United States, Plaintiffs request that their claims against the Individual Defendants be tolled by Texas' fraudulent concealment doctrine. In addition, Plaintiffs request tolling according to Texas' discovery rule.
a. Fraudulent Concealment
Plaintiffs argue that tolling is proper according to the fraudulent concealment doctrine because they did not learn of the individuals' specific involvement in withholding exculpatory information until November 2, 2000. The Individual Defendants had a duty to disclose exculpatory material. However, Plaintiffs were aware of their causes of action for this concealment on the date of their acquittals, October 3, 1997, or earlier. Although Plaintiffs may have been unaware of the Individual Defendant's specific involvement on that date, Plaintiffs knew the facts essential to determining that they had a cause of action. Therefore, there was no fraudulent concealment that would toll the statute of limitations.
b. Discovery Rule
Additionally, Plaintiffs request equitable tolling against the Individual Defendants under Texas' discovery rule. Assuming that the discovery rule even applies to Bivens claims, it does not apply on these facts. Unlike the fraudulent concealment doctrine, Texas' discovery rule tolls the limitations period until such time as the plaintiff has "knowledge of facts which would cause a reasonable person to make inquiry to determine his or her legal rights." Vaught v. Show Denko K.K., 107 F.3d 1137, 1141 (5th Cir. 1997). Once a plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the injury and that the injury was caused by another's wrongful acts, "limitations commences, even if the plaintiff does not know the exact identity of the wrongdoer." Childs v. Houssecker, 974 S.W.2d 31, 40 (Tex. 1998). The discovery rule does not "toll limitations periods until a plaintiff discovers a specific cause of action against a specific defendant." Vaught, 107 F.3d at 1142. The party seeking the benefit of the discovery rule bears the burden of proving and securing favorable findings thereon. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988).
The discovery rule operates to toll a limitation period that expired while the claimant was unaware of a specific injury, regardless of whether she was unaware of a specific defendant. Here, Plaintiffs knew of their specific injuries on October 3, 1997. Also on that date, they knew that their injuries were caused by others' wrongful acts. Therefore, Plaintiffs had nothing to later "discover" within the meaning of the discovery rule. Accordingly, equitable tolling of Plaintiffs' claims would be inappropriate. Because neither the discovery rule nor fraudulent concealment are applicable to Plaintiffs' claims, equitable tolling is inappropriate. Consequently, Plaintiffs' constitutional tort claims are time-barred and should be dismissed with prejudice.
D. Rule 15(c): Relation Back
In a final attempt to make their claims timely, Plaintiffs assert that all amendments in their second and third amended complaints relate back to the time of the filing of the Original Complaint pursuant to Federal Rule of Civil Procedure 15(c). Rule 15(c)(3) permits an amendment to relate back where the amendment names a party against whom a claim is asserted if (1) the claim arose out of the transaction, conduct, or occurrence set forth in the original complaint, (2) the party to be brought in has received such notice of the suit that the party will not be prejudiced, and (3) the party "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998).
Under the first prong, it is undisputed that the claims against the Individual Defendants arose out of the same occurrences set forth in the Original Complaint. Under the second prong, the Individual Defendants received notice of the suit. Notice will be inferred if there is an identity of interest between the original defendant and the added defendant. Jacobsen, 133 F.3d at 320. Further, there is an identity of interest if the defendants "are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." Id. Finally, "[n]otice may be imputed to the new party through shared counsel." Id. Here, the Original Complaint named multiple employees of the OTS and FBI, as well as the agencies themselves. The Individual Defendants played a role in the investigation that provided the basis for the instant suit. Thus, there is an identity of interest between the agencies and the respective Individual Defendants. Accordingly, the Individual Defendants had notice of the litigation, and the second prong is satisfied.
Under the third prong, however, Plaintiffs' arguments fail. Plaintiffs allege that they were unaware of either the Individual Defendants' identity or specific involvement until after discovery commenced. However, Plaintiffs' claimed ignorance is not the type of "mistake" necessary for relation back. Jacobsen, 133 F.3d at 320-21 (siding with other circuits that have held that "for a `John Doe' defendant, there was no `mistake' in identifying the correct defendant; rather, the problem was not being able to identify that defendant"); accord Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993); Wayne v. Jarvis, 197F.3d 1098, 1103 (11th Cir. 1999). Ultimately, Rule 15(c) does not allow relation back of the amendments if the reason Plaintiffs failed to name the Individual Defendants in the Original Complaint was because they did not know their identities or specific involvement. See Jacobsen, 133 F.3d at 320-21. Accordingly, Plaintiffs' claims do not relate back.
E. Expungement Claim
The FBI challenges Plaintiffs' standing on their expungement claim. (FBI Br. at 1-6.) Plaintiffs argue that the Court's earlier denial of the FBI's first motion to dismiss under Rule 12(b)(6) forecloses the FBI's jurisdictional challenge. However, it is well-settled that objections to jurisdiction maybe raised at any time, even by the court, and they are not precluded by a previous Rule 12 defense. See FED. R. Civ. P. 12(h)(3); see also Matter of Kutner, 656 F.2d 1107, 1100 (5th Cir. 1981). Thus, the FBI's motion is not foreclosed.
There is a strong presumption against expungement, which is an "exceedingly narrow" remedy that is rarely granted. Sealed Appellant, 130 F.3d at 701; see also Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972). In the context of criminal records, it is under rare circumstances that courts find expungement as the only available remedy. See United States v. McLeod, 385 F.2d 734, 749-50 (5th Cir. 1967) (finding that because the county ordered mass arrests only to harass and intimidate voters, the court was empowered to "do all within its power to eradicate the effect of the unlawful prosecutions" including expunging county records); accord Sullivan v. Murphy, 478 F.2d 938, 968-73 (D.C. Cir.) (discussing several expungement cases and ordering expungement to prevent dissemination of records of arrests where the arrests were without probable cause). To have standing to expunge executive branch records, a plaintiff "must assert a specific. . . . affirmative rights violation" to "an explicit constitutional or statutorily-created right. . . . by executive branch officers or agencies to justify the intrusion into the executive's affairs." Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 697 and 700 n. 12 (5th Cir. 1997) cert. denied, 523 U.S. 1077 (1998). The injury must be "such that no other remedy would afford relief[;]" a mere showing of burden is insufficient. Id. at 697.
In the instant, even construing Plaintiffs' complaints and the additional allegations raised in Plaintiffs' brief as alleging affirmative rights violations, Plaintiffs' claims still fail to justify expungement for three reasons. First, a good deal of Plaintiffs' claimed violations are not tied to an explicit or statutorily-created right. For instance, Plaintiffs allege that the continued maintenance of their records could lead to adverse professional consequences and tarnishes "the names, reputations and the very identities of the wrongly accused beyond judicial repair." (Third Am. Compl. at 92). These allegations are not tied to an explicit constitutional or statutorily-created right and are thereby insufficient to warrant expungement. Sealed Appellant, 130 F.3d at 701-02 (noting that granting expungement of executive branch records on allegations of "employment availability, reputation in the community, and possible denial of professional licensing" was abuse of discretion). In their brief, Plaintiffs object to being named on "suspects lists" and argue that there "are no remedies available to remedy the inter-agency sharing of suspects list" between banks, regulatory agencies, and law enforcement agencies. (Pls. Br. at 43) (emphasis in original.) Even assuming that there is "a database ofsuspects," as they claim, Plaintiffs have failed to show how such information is being used to violate an explicit constitutional or statutorily-created right. Sealed Appellant, 130 F.3d at 700.
Second, expungement is not the only available remedy for violations to Plaintiffs' explicit constitutional or statutorily-created rights. Indeed, Plaintiffs have alreadypursued a multitude of other remedies against the FBI, the OTS, the United States, and the Individual Defendants. Moreover, for future violations, Plaintiffs "could assert a civil rights challenge [for] double jeopardy," maintain a Bivens action, or properly proceed under the FTCA. See Sealed Appellant, 130 F.3d at 701. Plaintiffs complain that their records prevent the purchase of a firearm. However, assuming that Plaintiffs' constitutional rights were therefore violated, federal regulations provide a means for correcting inaccuracies in the relevant records. See 25 C.F.R. § 25.10(c)-(f). Other federal regulations provide ways to accurately amend other records that incorrectly reflect Plaintiffs' information. See 28 C.F.R. § 16.96(o)(2)(i) (specifying the means of amending records in the National DNA Index System.); see also 28 C.F.R. § 20.34 (referring to the "procedures by which an individual may obtain a copy of his or her identification record from the FBI to review and request any change, correction, or update . . ."). Therefore, expungement is not the only available remedy, and Plaintiffs have failed to assert a violation "that cannot be remedied by the relief otherwise provided for by the court or by Congress[.]" Sealed Appellant, 130 F.3d at 699.
In their last argument, Plaintiffs contend that the facts of their overturned convictions and subsequent acquittals justify expungement. (Third Am. Compl. at 92.) However, neither an overturned conviction nor an acquittal necessarily entitles Plaintiffs to expungement. Sealed Appellant, 130 F.3d at 701 n. 14; see also Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972) (noting that such a remedy "gave the defendant more relief than if he had been acquitted.") Furthermore, even though Plaintiffs were acquitted, the FBI has executive discretion to maintain its records. See Rogers, 469 F.2d at 1085 ("Public policy requires here that the retention of records of the arrest and of the subsequent proceedings be left to the discretion of the appropriate authorities.") The rationale for generally refusing to expunge arrest or indictment records is that an arrest or indictment has independent legal significance, insofar as it shows the existence of probable cause to believe that a defendant committed a crime, even when the government ultimately fails to prove guilt. See United States v. Schnitzer, 567 F.2d 536, 540 (2nd Cir. 1977). As a result, the government has an important interest in keeping a record of the arrest or indictment, even after an acquittal. See United States v. Flagg, 178 F. Supp.2d 903, 905 (S.D. Ohio 2001).
In sum, Plaintiffs fail to show a harm to "an explicit constitutional or statutorily-created right" that has as its only remedy expungement. Given this failure, and the FBI's important interest in maintaining its accurate files, Plaintiffs' request for expungement should be dismissed with prejudice.
III. Conclusion
For the reasons stated, the Court, having addressed and resolved the jurisdictional facts, has determined that it is without jurisdiction over Plaintiffs' common-law tort claims against the United States. Moreover, Plaintiffs' constitutional tort claims against the United States are foreclosed. Therefore, the Court recommends that the United States' motion to dismiss be GRANTED and that these claims be DISMISSED with prejudice.
The Court finds that Plaintiffs' constitutional tort claims against the Individual Defendants should be dismissed as time-barred. Accordingly, the Court recommends that the Defendant Edward Kraemer's Motion to Dismiss, and Defendants Richard A. Kamp, Pamela L. Dempsey, and Jack Hinton's Motion to Dismiss, be GRANTED and these claims be DISMISSED with prejudice.
The Court further finds that Plaintiffs are not entitled to the rare remedy of expungement. The Court recommends that the FBI's motion to dismiss be GRANTED and Plaintiffs' expungement claim be DISMISSED with prejudice.