UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) MORRIS J. PEAVEY, JR., ) ) Plaintiff, ) ) v. ) Civil Action No. 05-819 (RWR) ) ERIC H. HOLDER, JR, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Pro se plaintiff Morris J. Peavey, Jr., an African-American,

Orthodox Muslim Army veteran, brings this action against the

United States Attorney General, the Secretary of Veterans

Affairs, the Archivist of the United States, the Director of the

National Personnel Records Center (“NPRC”), the Secretary of the

Treasury, and the Secretary of the Army in their official

capacities, and against the Equal Employment Opportunity

Commission (“EEOC”) and the United States Postal Service

(“USPS”), challenging several decisions by the Department of

Veteran’s Affairs (“VA”) regarding his entitlement to benefits

since his 1967 discharge from the Army, seeking to compel the

release of records under the Freedom of Information Act (“FOIA”),

, and asserting a variety of claims based on the

other named defendants’ alleged harassment of Peavey since his - 2 -

Army service.1 The defendants have moved to dismiss the

complaint or, in the alternative, for summary judgment. Because

there is no material factual dispute and the defendants are

entitled to judgment as a matter of law on Peavey’s FOIA claims,

the defendants’ motion, treated as a motion for summary judgment

with respect to the FOIA claims only, will be granted. Because

Peavey has failed to state any other claim entitling him to

relief over which the district court has jurisdiction, the

remainder of the complaint will be dismissed.

BACKGROUND

The complaint in this action consists of more than one

hundred single-spaced paragraphs and more than 100 pages of

attached exhibits. Portions of Peavey’s allegations, which cover

a timespan of more than forty years, beginning with the

circumstances leading up to Peavey’s discharge from the Army in

1967, are difficult to understand and are not clear enough to be

illuminating. Peavey alleges that he bring claims against the

1 Eric H. Holder, Jr., Eric Shinseki, Adrienne Thomas, Timothy Geithner, and Pete Geren are substituted for Alberto Gonzalez, Jim Nicholson, Allen Weinstein, John Snow, and Francis Harvey under Federal Rule of Civil Procedure 25(d). The Secretary of the Army, the EEOC, and the USPS have not been served with a copy of the complaint. Nonetheless, because “complaints may . . . be dismissed sua sponte, if need be, under Rule 12(b)(6) whenever ‘the plaintiff cannot possibly win relief[,]’” Best v. Kelly,

(D.C. Cir. 1994) (quoting Baker v. Director, U.S. Parole Comm’n,

(D.C. Cir. 1990)), claims against these defendants also will be considered. - 3 -

defendants under the First, Fifth, Ninth, and Fourteenth

Amendments; the Freedom of Information Act (“FOIA”),

; Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5;

, 1983, 1985;

,

1503, 1505, 1512, 1519; and other unspecified common law tort

theories. (Compl. at 2.)

Peavey appears to be challenging several VA decisions

determining his entitlement to certain veterans benefits at

various times since his discharge. The complaint provides a

detailed description of his medical and benefits history since

his discharge from the Army in 1967, and alleges that the VA

incorrectly determined his disability rating on several occasions

and improperly discontinued his benefits for a period of several

months in 2001 and in May and June of 2003. Peavey states that

he sought appeals to the Board of Veterans Appeals regarding

certain benefits decisions in 1971, 1994, 2003, and 2004. (See

.) He alleges that the VA’s decisions not to provide

him certain benefits were made with a discriminatory purpose,

violated his rights to due process and equal protection under the

law, and constituted an unconstitutional taking. (Id. at 15-16.)

In addition, Peavey challenges the constitutionality of

(a),2 the statute limiting judicial review of decisions made

2 The complaint identifies the relevant statute as

(a). This provision has been recodified at

(a). - 4 -

by the VA Secretary. He contends that § 511(a) “conflicts with

the constructs” of the First, Fifth, Ninth and Fourteenth

Amendments and abridges his “rights and privileges which he would

otherwise enjoy under the constitutional laws.” (Id. at 3.)

Peavey brings FOIA claims against the NPRC and the VA,

alleging that the NPRC, the VA, and the VA Hospital in Brooklyn,

New York failed to fully respond to his FOIA requests for records

regarding his military service and medical history. (Id. at 13-

14, 23.) In addition, he contends, based upon the NPRC’s and

VA’s failure to produce certain records related to his military

service and medical treatment that he believes they possess, that

the NPRC, the VA, and the Army have deliberately concealed,

altered, or destroyed portions of his military and medical

records in violation of FOIA and several criminal obstruction of

justice statutes.3 (Id. at 13, 17.) Peavey further claims that

he filed a complaint with the Department of Justice (“DOJ”)

alleging that the VA and its agents altered, suppressed, or

destroyed federal documents. (Id. at 20-21.) He contends that

the DOJ did not properly investigate and bring charges based upon

his complaint. (Id. at 21.)

3 Although it is difficult to discern, Peavey also appears to allege that the agencies’ deliberate acts concealing, altering, or destroying his records violated his due process rights by interfering with benefits determinations and his ability to correct his military records. (See Id. at 13, 15-16, 18, 20; Pl.’s Mem. in Supp. of Summ. J. at 3, 37.) - 5 -

In addition, Peavey alleges that the “IRS and EEOC [have]

practiced harassment against [him] since 1983.” (Id. at 11.)

Specifically, Peavey contends that the IRS harassed him from 1983

to 2001 by filing at least one claim against him for back taxes,

placing liens on his assets, “revoking licenses, taking assets,

placing liens on assets” of his employers, and by subjecting his

business clients to unwarranted audits because they were his

business clients. (See Id. at 11-12.) He alleges that the EEOC

violated his rights under Title VII, and his right to equal

protection under the law by improperly handling a discrimination

claim he filed in 1983. (Id.) Moreover, Peavey alleges that the

USPS “acted to harass” him by interrupting his mail service for

periods of time in 1983 to 1984 and 1990 to 1993, and on other

occasions, by delaying delivery of or failing to deliver pieces

of mail. (Aff. in Supp. of Compl. at 24.) Finally, Peavey seeks

review of an Army Board for Corrections of Military Records

(“ABCMR”) decision on his May 9, 1968 application to correct his

military records, alleging that the ABCMR failed to properly

investigate his application for correction. (Compl. at 15.)

Peavey requests $15,000,000 in damages for injuries caused by the

defendants’ actions, and other declaratory and injunctive relief,

including an order declaring his right to certain benefits,

compelling the Secretary of the Army and the Army Board of

Corrections to amend his military records, and compelling the - 6 -

defendants to provide records which he requested from the NPRC

and the VA. (Id. at 23-24.)

The defendants have filed a motion to dismiss under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of

subject-matter jurisdiction and failure to state a claim upon

which relief can be granted, or in the alternative, for summary

judgment.4 Peavey has filed a motion for summary judgment, two

motions for declaratory judgment that repeat the allegations and

requests for relief contained in Peavey’s complaint and summary

4 The defendants also move to dismiss the complaint for failure to comply with the minimal pleading requirements of Rule 8(a). Rule 8(a) sets forth a minimum standard for the sufficiency of a complaint, requiring a plaintiff to provide “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “The burden imposed by the rule is by no means exacting” and “generously accords the plaintiff wide latitude in framing his claims for relief[,] . . . particularly . . . where, as here, the plaintiff is proceeding pro se.” Brown v. Califano,

(D.D.C. 1977). Peavey’s voluminous allegations are imprecise and portions are difficult to comprehend. However, when afforded the benefit of the less stringent standard applied to pro se complaints and when viewed in their entirety, the complaint and attachments plead sufficient allegations to provide the defendants notice of the basis of Peavey’s claims and the relief which he seeks. Accordingly, the defendants’ motion to dismiss under Rule 8(a) will be denied. - 7 -

judgment motion, and two motions for leave to file documents he

contends show the defendants’ acts of “abuse of process.”5

DISCUSSION

“‘On a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the

burden of establishing that the court has subject-matter

jurisdiction.’” Peter B. v. C.I.A.,

(D.D.C. 2009) (quoting Shuler v. United States,

(D.D.C. 2006)) (citing Lujan v. Defenders of Wildlife,

(1992)). A court must accept as true all of the

factual allegations contained in the complaint, see Lujan,

, and may also consider “‘undisputed facts evidenced

in the record.’” Randolph v. ING Life Ins. and Annuity Co.,

, 3 n.3 (D.D.C. 2007) (quoting Coalition for

Underground Expansion v. Mineta,

(D.C. Cir.

2003)). The “nonmoving party is entitled to all reasonable

inferences that can be drawn in [its] favor.” Artis v.

Greenspan,

(D.C. Cir. 1998); see also Barr v.

Clinton,

(D.C. Cir. 2004); Bernard v. U.S.

Dep’t of Defense,

(D.D.C. 2005).

5 Peavey adds to his theories of recovery in his opposition to the defendants’ motion to dismiss or for summary judgment and his motion for summary judgment by alleging a Bivens constitutional tort theory that is not clearly identified in his complaint. (See Pl.’s Opp’n to Def.’s Mot. to Dismiss or for Summ. J. at 44; Pl.’s Mem. in Supp. of Mot. for Summ. J. at 27.) - 8 -

A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted. See Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal,

(2009) (citing Bell

Atlantic Corp. v. Twombly,

(2007)). “[A]

court ‘must treat the complaint’s factual allegations as true

. . . and must grant plaintiff the benefit of all inferences that

can be derived from the facts alleged.’” Holy Land Found. for

Relief & Dev. v. Ashcroft,

(D.C. Cir. 2003)

(quoting Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000)). On the other hand, the court is “not bound to

accept as true a legal conclusion couched as a factual

allegation.” Iqbal,

(internal quotation marks

omitted). If a plaintiff fails to allege sufficient facts to

support a claim, the complaint must be dismissed. See Twombly,

.

I. VA’S BENEFITS DECISIONS

Peavey brings claims challenging various benefits decisions

made by the VA since Peavey’s 1967 discharge from the Army and

challenging the constitutionality of

, the statute - 9 -

limiting judicial review of the VA’s benefits decisions. The

defendants allege that Peavey’s claims challenging the VA’s

benefits determinations, including his claims alleging that the

VA’s acts violated his constitutional rights, should be dismissed

under Rule 12(b)(1) for lack of subject matter jurisdiction and

that Peavey’s facial challenge to § 511 should be dismissed under

Rule 12(b)(6) for failure to state a claim.

Under

(a), the Secretary “shall decide all

questions of law and fact necessary to a decision by the

Secretary under a law that affects the provision of benefits by

the Secretary to veterans,” and review of the Secretary’s

decisions “may not be reviewed by any other official or by any

court,” except for limited matters listed in § 511(b) that are

excluded from § 511(a)’s limit on judicial review.

. Section 511(a) “precludes judicial review in Article III

courts of VA decisions affecting the provision of veterans’

benefits[.]” Price v. United States,

(D.C.

Cir. 2000). Instead, under the scheme created by the Veterans’

Judicial Review Act,

Stat. 4105 (1988),

“[t]he exclusive avenue for redress of veterans’ benefits

determinations is appeal to the Court of Veterans Appeals and

from there to the United States Court of Appeals for the Federal

Circuit.” See

- 10 -

In explaining the scope of § 511(a)’s prohibition on

judicial review, the D.C. Circuit has instructed that a district

court lacks jurisdiction over all claims involving veterans

benefits that require “the district court ‘to determine first

whether the VA acted properly in handling’” a benefit request.

Thomas v. Principi,

(D.C. Cir. 2005) (quoting

Price,

). “[A] federal district court may not

entertain constitutional or statutory claims whose resolution

would require the court to intrude upon the VA’s exclusive

jurisdiction.” Price,

(determining that the

district court lacked jurisdiction to consider the plaintiff’s

federal claim because underlying the claim was an allegation that

the VA unjustifiably denied him a veteran’s benefit). On the

other hand, § 511(a) “does not give the VA exclusive jurisdiction

to construe laws affecting the provision of veterans benefits or

to consider all issues that might somehow touch upon whether

someone receives veterans benefits.” Broudy v. Mather,

(D.C. Cir. 2006). “Section 511(a) prevents district

courts from hearing a particular question only when the Secretary

has ‘actual[ly] deci[ded]’ the question.

(quoting McKelvey

v. Turnage,

(D.C. Cir. 1986)).

Applying this guidance, the district court has jurisdiction

over Peavey’s claim to the extent that it is a facial challenge

to the constitutionality of § 511(a). It is not entirely clear - 11 -

whether Peavey actually is making a facial challenge to § 511

since the bulk of his argument alleges due process violations.

Nevertheless, “[t]he burden on one making a facial challenge to

the constitutionality of a statute is heavy.” Kraft Gen. Foods,

Inc. v. Iowa Dep’t of Revenue and Fin.,

(1992).

It requires a showing by the litigant that the “legislative

scheme is unconstitutional in all or nearly all of its

applications.” U.S. v. Booker,

(2005).

Assuming that he is asserting a facial challenge, Peavey fails to

show how § 511 conflicts with his First, Fifth, Ninth, and

Fourteenth Amendment rights.

Section 511's limit on judicial review does not restrict

Peavey’s First Amendment right of free speech or abridge his

right to seek redress of his grievances. It does not preclude

Peavey from expressing himself or going to court; rather, § 511

directs him to the proper judicial fora. Peavey also has failed

to show how § 511's process of review violates the Fifth

Amendment.6 He has been given notice of the VA’s decisions

regarding his benefits and can seek review of the decisions in

two successive courts -- the United States Court of Veterans

Appeals and the United States Court of Appeals for the Federal

6 It is the due process clause of the Fifth, not the Fourteenth, Amendment that applies to actions of the federal government. Thus, Peavey’s Fourteenth Amendment challenge is unavailing. - 12 -

Circuit. With regard to the Ninth Amendment, which states that

“[t]he enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by the

people,” U.S. Const. amend. IX, Peavey has not shown that the VA

has construed any of his constitutional rights so as to deny or

disparage any of his other rights. Thus, as a matter of law,

even with reasonable inferences drawn in Peavey’s favor, he has

failed to support his vague argument that § 511 is facially

unconstitutional. Accordingly, Peavey’s facial challenge to

§ 511 will be dismissed for failure to state claim entitling him

to relief.

Regarding Peavey’s challenges to the VA’s decisions on his

benefit claims, Peavey attempts to avoid application of § 511 by

labeling his claims as constitutional claims. However, courts

“examine the substance of [a plaintiff’s] allegations, rather

than the plaintiff’s labels, to determine their true nature.”

Weaver v. United States,

(10th Cir. 1996); see

Tietjen v. U.S. Veterans Admin.,

(9th Cir.

1989) (finding that the court lacked jurisdiction over the

appellant’s claims, even though they were brought as

constitutional challenges, because the substance of the

appellant’s claims required review of a VA decision on a question

of law or fact regarding the appellant’s benefits). Here,

Peavey’s claims would require reviewing whether the VA acted - 13 -

properly in handling Peavey’s benefit requests and correctly

resolved questions of fact or law when determining what benefits

Peavey was entitled to receive. Under § 511, judicial review of

these benefits decisions is available, if at all, only in the

Federal Circuit, and the district court lacks jurisdiction over

them. Thus, Peavey’s claims challenging the VA’s decisions

regarding his benefits will be dismissed for lack of

jurisdiction.

II. FOIA CLAIMS

Peavey brings FOIA claims against the Director of the NPRC

and the VA Secretary to compel release of requested records,

alleging that the VA, the VA Hospital Center in Brooklyn, New

York, and the NPRC failed to fully respond to his FOIA requests

for documents. Peavey alleges that he requested copies of his

military records and early VA medical records, but his requests

“have been consistently refused.” (Compl. at 13.) The

defendants have moved to dismiss these FOIA claims as moot or, in

the alternative, for summary judgment, alleging that these

agencies produced all documents in their possession responsive to

Peavey’s requests. In support of their motion, the defendants

submit declarations from Scott Levins, NPRC Assistant Director

for Military Records, Cynthia Stock, Assistant Chief of the

Support Services Division in the VA’s Regional Office in

St. Petersburg, Florida, and Peter Juliano, Privacy Officer in - 14 -

the New York Harbor Healthcare System in Brooklyn, New York, each

attesting to his or her agency’s efforts to locate and produce

documents responsive to Peavey’s requests.

The defendants move in the alternative for dismissal or

summary judgment. Under Rule 12(d), “[i]f, on a motion under

Rule 12(b)(6) . . . , matters outside the pleadings are presented

to and not excluded by the court, the motion must be treated as

one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d);

see Wiley v. Glassman,

(D.C. Cir. 2007).

Summary judgment may be granted only where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c); see Moore v. Hartman,

(D.C. Cir. 2009). The burden falls on the moving party to

provide a sufficient factual record that demonstrates the absence

of a genuine issue of material fact. See Beard v. Banks,

(2006). If the moving party meets this burden,

“the nonmoving party must come forward with ‘specific facts

showing that there is a genuine issue for trial.’” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)

(quoting Fed. R. Civ. P. 56(e)) (emphasis in original). In

considering a motion for summary judgment, a court draws all

“justifiable inferences” from the evidence in favor of the - 15 -

nonmovant. Anderson v. Liberty Lobby, Inc.,

(1986).

In FOIA cases, “[t]o meet its burden to show that no genuine

issue of material fact exists, with the facts viewed in the light

most favorable to the requester, the agency must demonstrate that

it has conducted a search reasonably calculated to uncover all

relevant documents.” Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1984) (internal quotation marks omitted).

“In demonstrating the adequacy of the search, the agency may rely

upon reasonably detailed, nonconclusory affidavits submitted in

good faith.”

“The question is not ‘whether there might

exist any other documents possibly responsive to the request, but

rather whether the search for those documents was adequate.’”

Steinberg v. U.S. Dep’t of Justice,

(D.C. Cir.

1994) (quoting Weisberg,

). Thus, the failure to

locate a particular document which the requester seeks “does not

alone render the search inadequate.” Nation Magazine v. U.S.

Customs Serv.,

, 892 n.7 (D.C. Cir. 1995). A court

may grant summary judgment for the agency relying only upon the

agency’s affidavits if they contain sufficient detail

establishing the adequacy of a search and are not “controverted

by contrary evidence.” Schrecker v. U.S. Dep’t of Justice,

(D.D.C. 2002). - 16 -

A. NPRC response

Peavey alleges that he filed a request with the NPRC on

April 7, 2003, requesting his military records pertaining to

“[a]ll disciplinary actions, to [include] Art. 15 and US courts

martial; [and all] medical records, to include medical treatment

in Unit Dispensaries and two admissions to Womack Army Hospital

1966.” (Compl. at 13.) Peavey admits that he received some

records in response to his request, but nonetheless maintains

that the NPRC provided incomplete records because his official

military personnel file (“OMPF”) should have included additional

clinical and laboratory records and records relating to a

June 16, 1967 court martial. (Pl.’s Mem. in Supp. of Summ. J. at

21-22; Pl.’s Stmt. Supporting FOIA Request at 3.)

In his declaration explaining the NPRC’s efforts to respond

to Peavey’s request, NPRC’s Levins explains that “the NPRC is the

designated repository for the Official Military Personnel Files7

. . . and medical records of former Army personnel who served

from the early 1900’s until 2002.” (Defs.’ Mot. to Dismiss or

for Summ. J., Levins Decl. ¶ 3.) In addition, the NPRC receives

from military service departments additional records, such as an

7 An OMPF contains the military personnel and medical records of a service member and includes records relating to “enlistment/appointment, duty stations and assignments, training, qualifications, performance, awards and medals, disciplinary actions, . . . separation/discharge/retirement, and other personnel actions.” (Levins Decl. ¶ 4.) - 17 -

individual hospital’s clinical records documenting inpatient

treatment, that are maintained as separate systems of records.

(Levins Decl. ¶ 6.) Regarding record retention, Levins states

that the NPRC does not dispose of OMPF files, clinical records

have a retention period of fifty years, and no records have been

disposed of since the mid-1990s. (Id. ¶¶ 5-6.) Levins explains

that in response to Peavey’s April 7, 2003 request, the NPRC

“inform[ed] plaintiff that the original medical records were

loaned to the VA, and [provided him] copies of all disciplinary

records found in the OMPF.” (Id. ¶ 7.) Levins also explains

that in response to further inquiries from Peavey seeking

additional records, the NPRC provided Peavey “with copies of

every document in his OMPF.” (Id. ¶¶ 8-9.) The NPRC also

supplemented its release of Peavey’s OMPF with copies of Womack

Army Hospital inpatient records for 1965-1966 that were located

in a separate system of inpatient treatment records, copies of

all morning reports pertaining to Peavey from August 1966 to

April 1967, and a copy of a 1993 request by the VA for service

verification. (Id. ¶¶ 8-9, 11, 14.) In addition, Levins states

that the NPRC informed Peavey on April 11, 2005 that it had

erroneously reported to him that his medical records were retired

to NPRC and loaned to the VA, but had subsequently determined

that “because [Peavey’s] OMPF contains a DA Form 644,

Serviceman’s Statement Concerning Application for Compensation - 18 -

from the Veterans Administration, dated August 1, 1967,” his

medical records were sent directly to the VA upon his discharge

from the Army. (Id. ¶ 11.) Finally, regarding what searches

were made to locate responsive records, Levins states that in

addition to locating Peavey’s OMPF file, the NPRC also searched

its records, using Peavey’s personal identifying information, for

Peavey’s entrance and separation chest x-rays, court martial

transcripts from Ft. Bragg, and morning reports for Peavey’s Army

units. (Id. ¶¶ 11-15.) Levins concludes that “[t]o the best of

[his] knowledge, all documents capable of being located by

reference to plaintiff’s personal identifying information have

been provided to [Peavey].” (Id. ¶ 15.)

With the Levins declaration, the NPRC has carried its burden

of demonstrating that it conducted a reasonable search calculated

to locate all relevant documents responsive to Peavey’s FOIA

request. Peavey’s assertion that his OMPF should have contained

additional documents does not undermine the NPRC’s undisputed

evidence demonstrating that in response to Peavey’s FOIA request,

the NPRC reasonably searched its relevant systems of records that

could contain responsive documents, including Peavey’s OMPF, and

produced copies of all existing OMPF records and other relevant

non-OMPF records that were located. Thus, Peavey has not created

a material dispute about the adequacy of the NPRC’s search - 19 -

efforts, and summary judgment will be granted for the defendants

on Peavey’s FOIA claim seeking release of records from the NPRC.

B. VA and VA hospital response

On July 7, 2004, Peavey filed a FOIA request with the VA

seeking (1) military medical records showing he was hit by a car

and hospitalized in 1966; (2) findings and impressions from an

“intravenous pyelogram”; (3) records from his hospitalization in

a Brooklyn VA hospital in 1968, and (4) documents relating to

Peavey’s employment at Shanty Restaurant. (Def.’s Mot. to

Dismiss or for Summ. J., Stock Decl., Ex. 2; see Pl.’s Mem. in

Supp. of Summ. J. at 17.) The VA’s Stock states that, in

response to Peavey’s request, she “caused a complete copy of

Mr. Peavey’s VA C-file to be mailed to him” on August 19, 2004.

(Def.’s Mot. to Dismiss or for Summ. J., Stock Decl. at 2.) She

further states that included in Peavey’s C-file were (1) his Army

service medical records, “including doctor’s orders and treatment

notes from an inpatient stay in late September to early

October 1966 and an IVP Radiographic report dated 4 Oct 66;” (2)

a hospital summary for Peavey’s hospitalization at a VA hospital

in Brooklyn, New York from January 26, 1968 to March 4, 1968; (3)

New Hospital of Medicine and Dentistry records for May 14 to

September 17, 2003; (4) a letter from Shanty Restaurant; (5)

multiple requests from Peavey to the VA and other government

agencies; (6) multiple responses to Peavey’s requests from the VA - 20 -

and its offices, including the VA’s Debt Management Center, the

Board of Veterans Appeals, and the VA regional office in

St. Petersburg, Florida; and (7) copies of a debt management

center audit, decisions on Peavey’s benefits claims, and a

decision by a VA Committee on Waivers and Compromises. (Id. at

1-2.)

Brooklyn VA hospital’s Juliano states that the hospital

received a request from Peavey on February 26, 2003 to have

copies of his records sent to a physician. (Defs.’ Mot. for

Leave to File Supp’l Aff., Juliano Decl. at 1.) In response to

the request, the hospital determined that Peavey was not in its

system and advised Peavey on March 3, 2003 that a search of the

hospital’s records did not identify him in its system of records.

(Id.) Juliano further explains that “in January 2006, [the

hospital] initiated an intensive search to ensure that [it] had

located any and all files concerning [Peavey]” from 1968. (Id.)

The hospital found that in 2005, a file-room employee attempted

to locate Peavey’s 1968 records utilizing a copy of the first

page of a discharge summary provided by Peavey, but the employee

did not locate any files. (Id. at 2.) Juliano represents that

despite the 2005 effort, further efforts to locate Peavey’s

records were made and the hospital determined that there were

paper records for Peavey that had been retired to a storage

facility in Missouri on February 5, 1975. (Id.) He states that - 21 -

the hospital retrieved the records from the storage facility and

forwarded copies to Peavey on January 20, 2006. (Id.)

Peavey contends that the VA’s response to his FOIA requests

are insufficient because the VA did not find and produce copies

of certain medical testing performed at an Army hospital in 1966,

or any copies of clinical and laboratory records or doctors’

reports from his 1968 Brooklyn VA hospital stay. (Pl.’s Mem. in

Supp. of Summ. J. at 15, 17.) Despite Peavey’s contention that

these records exist and should currently be in the VA or VA

hospital’s possession, Peavey has not raised a factual dispute

regarding the adequacy of the search efforts made by the VA’s

regional office and the Brooklyn VA hospital to locate these

records. The VA has submitted undisputed evidence that the VA

regional office provided Peavey with a copy of his entire claims

file and the VA hospital searched both its on-site and archived

records, producing records relating to Peavey it retrieved from a

Missouri storage facility. Peavey offers no suggestion as to

where else these agencies might have looked for his records or

what other search criteria should have been used. Accordingly,

based upon the undisputed evidence that the VA regional office

and Brooklyn VA hospital conducted reasonable searches in

response to Peavey’s FOIA requests and produced all responsive

documents located during their searches, summary judgment will be - 22 -

granted for the defendants on Peavey’s FOIA claim seeking the

release of records from the VA.

III. ALLEGED CONCEALMENT, ALTERATION, OR DESTRUCTION OF FEDERAL DOCUMENTS

Peavey alleges that the NPRC, the VA, and the Army acted

together to conceal, alter, or destroy government records in an

attempt to obstruct justice in violation of several criminal

statutes, including

, 1503, 1505, 1512, and

1519. (Compl. at 2, 17, 20; Pl.’s Mem. in Supp. of Summ. J. at

12-23.) Section 1001 criminalizes making false or fraudulent

statements “in any matter within the jurisdiction of” the federal

government.

. Sections 1503, 1505, 1512, and

1519 are federal criminal obstruction of justice statutes.

, 1503, 1505, 1512, and 1519. Sections 1001, 1503,

1505, and 1512 do not create private causes of action. See

Hamrick v. Gottlieb,

(D.D.C. 2005)

(finding that § 1512 contains no private right of action);

Hamilton v. Reed,

(6th Cir. 2002) (§ 1505);

Anderson v. Wiggins,

(D.D.C. 2006)

(§ 1001); Forsyth v. Humana, Inc.,

(9th Cir.

1997) (§ 1503). Furthermore, to date, no circuit or Supreme

Court opinion has held that § 1519 creates a private right of

action. Courts are “quite reluctant to infer a private right of

action from a criminal prohibition alone[.]” Central Bank of

Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. - 23 -

164, 190 (1994). To determine whether a criminal statute

contains an implied private cause of action, “the central

analysis is directed at discovering legislative intent by means

of the language of the statute, the statutory structure, or some

other source.” Tax Analysts v. IRS,

(D.C. Cir.

2000) (internal quotation marks omitted). Peavey has shown no

such legislative intent regarding § 1519. Thus, the defendants’

motion to dismiss Peavey’s claims under

, 1503,

1505, 1512, and 1519 will be granted.

In addition, Peavey alleges a coordinated effort by federal

agencies to conceal, alter, or destroy documents that violated his

Fifth Amendment due process rights by interfering with his ability

to obtain benefits and correct his military records. (See Compl.

at 13, 15-16, 18, 20; Pl.’s Mem. in Supp. of Summ. J. at 3, 37.)

He has not alleged facts in support of this conclusory allegation

that, if proven, would entitle him to relief. “The due process

clause requires the government to provide sufficient notice and a

meaningful opportunity to be heard on the deprivation of a

protected liberty or property interest.” Rason v. Nicholson,

(D.D.C. 2008) (citing United States v. E-

Gold, Ltd.,

(D.C. Cir. 2008)). The VA and the

Army have established administrative procedures, which Peavey

alleges he utilized, for reviewing benefits determinations and

requests to correct military records that include affording - 24 -

aggrieved persons a meaningful opportunity to challenge erroneous

records and decisions. Peavey could have presented evidence

showing that his medical and military records were incorrect or

incomplete. He has failed to allege facts explaining how his

opportunities to be heard under the VA and the Army’s

administrative processes were rendered so inadequate by his

failure to get particular documents he sought from the named

agencies that he was denied a meaningful opportunity to be heard.

Because Peavey has not alleged facts that, if proven, demonstrate

that he did not have a meaningful opportunity to be heard on his

benefits claims or records correction request, his due process

claim will be dismissed for failure to state a claim.

IV. DAMAGES CLAIMS

Peavey seeks damages for the variety of alleged wrongs he has

experienced since 1967, alleging that he is bringing both

constitutional and common law tort claims. Because Peavey’s

claims are brought against federal agencies and agency officials

in their official capacities, such claims must be construed as

claims against the United States. “[T]he 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.” United

States v. Mitchell,

(1980) (quoting United

States v. Sherwood,

(1941)). “Absent [an - 25 -

express] waiver, sovereign immunity shields the Federal Government

and its agencies from suit.” FDIC v. Meyer,

(1994). Peavey does not expressly invoke any waiver of sovereign

immunity. Nonetheless, construing his complaint liberally,

Peavey’s allegation that he is bringing “tort” claims (Compl. at

2) suggests that he brings his tort claims under the Federal Tort

Claims Act (“FTCA”),

. The United States

has waived its immunity from suit for certain torts under the

FTCA.

(b). The FTCA’s waiver of sovereign

immunity, however, does not apply to constitutional tort claims.

See FDIC,

. In addition, before a plaintiff may

file suit under the FTCA, his claim must “first [be] presented ...

to the appropriate Federal agency.”

(a). This

exhaustion of administrative remedies is a mandatory prerequisite

to filing such a lawsuit in federal court. See Jones v. U.S.,

(D.C. Cir. 2008); Simpkins v. District of

Columbia Gov’t,

(D.C. Cir. 1997); GAF Corp.

v. United States,

(D.C. Cir. 1987); Jackson

v. United States,

(D.C. Cir. 1984). Peavey has

not alleged or provided any evidence within his voluminous filings

showing that he properly exhausted his administrative remedies

with respect to any potential FTCA claim against any of the

defendant agencies. Since he failed to properly invoke the FTCA’s

limited waiver of sovereign immunity, Peavey’s tort claims for - 26 -

damages against the United States will be dismissed. Cf.

Simpkins,

(stating that the district court erred

in reaching the merits of an unexhausted FTCA claim).

V. CIVIL RIGHTS STATUTES

Peavey purports to bring claims under the civil rights

statutes,

and 1985. “These statutes, by

their terms, do not apply to actions against the United States.”

Hohri v. United States,

, 245 n.43 (D.C. Cir. 1986),

vacated on other grounds,

(1987); see Strong-Fisher v.

LaHood,

(D.D.C. 2009) (concluding that

§ 1981 does not apply to claims against the United States).

Because Peavey brings his claims solely against federal defendants

in their official capacities, he has not stated claims under these

civil rights statutes and these claims will be dismissed.

VI. BIVENS CLAIMS

Peavey alleges that he is bringing claims against the

defendants under a Bivens constitutional tort theory. “A Bivens

suit is an action against a federal officer seeking damages for

violations of the plaintiff’s constitutional rights.” Simpkins,

. A Bivens suit must be brought against federal

officers in their individual capacity and “[t]he complaint must at

least allege that the defendant federal official was personally

involved in the illegal conduct.”

. Here, Peavey has

neither sued nor served the named defendants in their individual - 27 -

capacities, nor alleged any facts suggesting that the agency heads

named in his complaint –- Alberto Gonzalez, Jim Nicholson,

Dr. Allen Weinstein, Ronald Hindman, or John Snow -- were

personally involved in the alleged conduct underlying his claims.

Although improper service typically warrants dismissal without

prejudice, dismissal with prejudice is appropriate and consistent

“with the duty of the lower federal courts to stop insubstantial

Bivens actions in their tracks and get rid of them” where, as

here, it is clear that the plaintiff’s Bivens claims lack merit in

the total absence of allegations of personal involvement.

. Since Peavey has failed to state Bivens claims against the

named defendants, his Bivens claims will be dismissed with

prejudice.

VII. OTHER CLAIMS AGAINST THE EEOC, IRS, and USPS

It is unclear what other remedies beyond damages, if any,

Peavey seeks for the alleged harassment by the EEOC, IRS, and

USPS. However, to the extent Peavey’s complaint can be construed

with reasonable inferences drawn in his favor as attempting to

raise constitutional claims not barred by the doctrine of

sovereign immunity, he has failed to allege any facts stating a

plausible claim that these agencies unlawfully infringed upon any

of his fundamental rights. Similarly, Peavey has not stated an

actionable Title VII claim against the EEOC for the EEOC’s alleged

failure to prosecute his discrimination complaint. Title VII - 28 -

provides no cause of action against the EEOC for mishandling a

discrimination complaint. See Nelson v. Greenspan,

(D.D.C. 2001); see also Smith v. Casellas,

(D.C. Cir. 1997) (finding that Congress did not intend to

provide a cause of action under Title VII “for any improper

handling of a discrimination charge by the EEOC”). Therefore, all

claims against these defendants will be dismissed.

VIII. DOJ COMPLAINT

Peavey alleges that he was injured by the DOJ’s failure to

investigate and bring charges based upon a complaint he filed with

the DOJ accusing the VA or its agents of unlawfully concealing,

altering, or destroying federal records. (Compl. at 20-21; see

Pl.’s Mem. in Supp. of Summ. J. at 30.) The decision whether to

institute an investigation or to bring charges in response to a

particular complaint is a decision committed to an agency’s

discretion and presumptively unreviewable unless Congress has

indicated otherwise. See Heckler v. Chaney,

(1985). Here, there is no colorable argument that Congress

intended for judicial review of the DOJ’s decision not to

investigate or bring charges based upon Peavey’s complaint against

the VA. Thus, this claim will be dismissed. - 29 -

IX. REVIEW OF ABCMR DECISION

Peavey seeks judicial review of an AMBCMR’s decision not to

correct his army records. He alleges that he submitted a claim to

the ABCMR upon his release from service, but the ABCMR did not

properly investigate his claim to correct his military records and

denied him relief. (Compl. at 15, 17.) In a subsequent filing,

Peavey clarifies that he filed his claim with the ABCMR on May 9,

1968. (Pl.’s Mot. for Order to Certify the Rec. (Docket Entry 41)

at 2.) He seeks an order directing the AMBCMR to overturn a

January 23, 1967 court martial judgment and correct his records to

reflect the rank he would have attained but for the judgment.

(Id. at 23.)

The district court has jurisdiction to review an ABCMR

decision. See Lewis v. Sec’y of the Navy, Civil Action No. 89-

1446 (JHG),

, at *7-8 (D.D.C. June 29, 1990).

However, a claim seeking review of an ABCMR decision must be

brought within six years of the ABCMR’s decision.

(a); see Lewis,

, at *8. Although courts are

hesitant to dismiss claims as untimely solely on the face of the

complaint because application of a statute of limitations often

requires resolution of contested questions of fact, dismissal is

appropriate when “the complaint on its face is conclusively time-

barred.” Firestone v. Firestone,

(D.C. Cir.

1996). Here, it is quite clear that Peavey’s claim seeking review - 30 -

of the ABCMR’s decision on his 1968 claim to correct his military

record is untimely on its face and that claim will be dismissed as

barred by the applicable statute of limitations.

CONCLUSION

Because the district court lacks jurisdiction over Peavey’s

claims challenging various VA benefits determinations since 1967,

those claims will be dismissed for want of jurisdiction. Peavey’s

damages claims will be dismissed because the United States has not

waived sovereign immunity for any of his damages claims. In

addition, Peavey has not stated actionable claims under

and 1985, Title VII,

, 1503, 1505,

1512, and 1519, or under a Bivens theory, nor has he alleged

sufficient facts that, if proven, establish any constitutional

violations. Moreover, Peavey is not entitled to judicial review

of the DOJ’s handling of his complaint against the VA, and he has

failed timely to seek review of the ABCMR’s decision on his 1968

request for correction of his military records. Because the NPRC

and the VA have submitted unrebutted declarations demonstrating

the adequacy of their responses to Peavey’s FOIA requests and such

declarations have not been excluded, the defendant’s motion to

dismiss will be converted to one for summary judgment with respect

to Peavey’s FOIA claims and summary judgment will be granted for

the defendants on those claims. Because no other claims are

discernible from Peavey’s pleadings, the defendants’ motion to - 31 -

dismiss will be granted, and the plaintiff’s complaint will be

dismissed. To preserve a complete record, Peavey’s motions to

enter documents will be granted. His motions for summary judgment

and for declaratory judgment will be denied as moot.

A final, appealable Order accompanies this Memorandum

Opinion.

SIGNED this 28th day of September, 2009.

________/s/_________________ RICHARD W. ROBERTS United States District Judge