UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANTHONY VIOLA,

Plaintiff, v. Civil Action No. 18-2351 (JEB) FEDERAL DEPOSIT INSURANCE CORP., et al.,

Defendants.

MEMORANDUM OPINION

Incarcerated pro se Plaintiff Anthony L. Viola makes a clear request: show me the money.

Or at least: show me where the money went. Convicted of wire fraud and ordered, along with

several co-defendants, to pay restitution to assorted victims, Viola now seeks an accounting. As

he and his co-defendants are jointly and severally liable, Viola wants to know what payments

have been made and to whom. Plaintiff’s claims hit several snags, however. For starters, he fails

to show injury and thus lacks standing. His counts against each of the four Defendants also

suffer substantive defects. As a result, the Court will dismiss the suit without prejudice.

I. Background

On April 1, 2011, Viola was convicted of wire fraud and related charges in the U.S.

District Court for the Northern District of Ohio. See ECF No. 12 (Fed. Def. MTD) at 2; see also

United States v. Viola,

, at *2 (N.D. Ohio Dec. 22, 2011). That court

subsequently held him and five co-defendants jointly and severally liable for $2,649,865 in

restitution to five victims of the fraud. See Fed. Def. MTD at 2; see also ECF No. 1 (Compl.),

Attach. 1 at 1–6 (Restitution Order). Those victims included the Federal Deposit Insurance

1 Corporation and Argent Mortgage Company. See Restitution Order at 3. To execute the court’s

restitution order, the Bureau of Prisons has deducted between $25 and $50 from Viola’s account

every three months since September 2012.

at 8–10 (Inmate Financial Obligations); Fed. Def.

MTD, Attach. 1 (Viola Payment History).

Viola alleges that in January 2018, he requested that each of the payees provide a current

balance of his outstanding restitution debt. See Compl. at 1. He claims that they either ignored

him or failed to confirm receipt of restitution payments.

Viola further alleges that he

requested from the court a “full accounting” of his payments, but that the court “refused to

provide the information.”

Unhappy with his lack of progress, on October 9, 2018, Plaintiff filed suit in this Court

against the U.S. District Court for the Northern District of Ohio, the FDIC, BOP, and Argent.

Although he does not delineate specific causes of action, he principally invokes

, the Mandatory Victims Restitution Act. Id. at 4. He seeks to obtain an accounting of his

restitution payments, verification that his payments have reached the proper payees, and the

amount remaining on all co-defendants’ liability. Id. at 4–5. The three federal Defendants have

now filed a collective Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Citigroup, Inc., as alleged successor to Argent, has filed a separate Motion to Dismiss

under Rule 12(b)(6). See ECF No. 13.

II. Legal Standard

In evaluating Defendants’ Motions to Dismiss, the 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.’” Sparrow v. United Air Lines, Inc.,

(D.C.

Cir. 2000) (quoting Schuler v. United States,

(D.C. Cir. 1979)); see

2 also Jerome Stevens Pharms., Inc. v. FDA,

, 1253–54 (D.C. Cir. 2005). The Court

need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor an

inference unsupported by the facts set forth in the Complaint. See Trudeau v. FTC,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(1986)).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal,

(2009) (internal citation omitted). For a complaint

to survive a 12(b)(6) motion, the facts alleged in the complaint “must be enough to raise a right

to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

, 555–56 (2007).

The standard to survive a motion to dismiss under Rule 12(b)(1) is less forgiving. Under

this Rule, a plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to

hear his claims. See Lujan v. Defenders of Wildlife,

(1992). A court also has

an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional

authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft,

(D.D.C.

2001). For this reason, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer

scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a

claim.”

at 13–14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1350 (2d ed. 1987)).

The Court is mindful that complaints filed by pro se claimants are held “to less stringent

standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

(1972). But “even a pro se complainant must plead ‘factual matter’ that permits the court to infer

3 ‘more than the mere possibility of misconduct.’” Atherton v. D.C. Office of the Mayor,

, 681–82 (D.C. Cir. 2009) (quoting Iqbal,

). The Court therefore must dismiss

a pro se complaint “where the plaintiff’s complaint provides no factual or legal basis for the

requested relief.” Strunk v. Obama,

(D.D.C. 2011) (internal citations

omitted).

III. Analysis

The Court, as it must, first considers Defendants’ jurisdictional challenges, see Steel Co.

v. Citizens for a Better Env’t,

(1998), before exploring defects in Viola’s claims

against each Defendant.

A. Jurisdiction

The Government initially argues that the case is now moot because the Clerk has since

provided Viola with a two-page payment history. Yet Plaintiff rejoins that this is insufficient,

especially because it does not detail payments from his co-defendants. The Court need not spend

time on this point, however, as a more basic obstacle blocks Viola’s path — namely, lack of

standing.

Article III of the United States Constitution limits the jurisdiction of federal courts to

resolving “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. A party’s standing “is an

essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan,

. Standing therefore represents a “predicate to any exercise of [the Court’s]

jurisdiction.” Florida Audubon Soc’y v. Bentsen,

(D.C. Cir. 1996).

To maintain standing, a plaintiff must meet three criteria. First, he “must have suffered

an injury in fact — an invasion of a legally-protected interest which is (a) concrete and

particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan,

4 at 560 (citations and internal quotation marks omitted). Second, “there must be a causal

connection between the injury and the conduct complained of — the injury has to be fairly . . .

trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent

action of some third party not before the court.” Id. (alterations in original) (citation and internal

quotation marks omitted). Third, “it must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Id. at 561 (citation and internal quotation

marks omitted). A “deficiency on any one of the three prongs suffices to defeat standing.” US

Ecology, Inc. v. US Dep’t of Interior,

(D.C. Cir. 2000).

Injury is the “[f]irst and foremost” of standing’s three elements. See Steel Co.,

. To meet this requirement, a plaintiff must show that he has suffered a distinct harm. See

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,

(1982). Such an injury, moreover, must be “concrete and particularized.”

Spokeo, Inc. v. Robins,

(2016) (quoting Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc.,

, 180–81 (2000)). In other words,

injury requires more than a statutory violation: plaintiffs must also show a “‘concrete interest’

that is ‘de facto,’ ‘real,’ and ‘actually exist[s].’” Owner-Operator Indep. Drivers Ass’n v. U.S.

Dep’t of Transportation,

(D.C. Cir. 2018) (quoting Hancock v. Urban

Outfitters, Inc.,

(D.C. Cir. 2016)).

Here, Viola has not demonstrated such a concrete injury. He makes a conclusory

statement that he “continues to be damaged” by the Government’s acceptance of restitution

payments “without any certainty of the amount of his liability and to whom it is being paid.”

Compl. at 3. But uncertainty alone is insufficient to show injury. See, e.g., New England Power

Generators Ass’n, Inc. v. FERC,

(D.C. Cir. 2013) (“It would be a strange

5 thing indeed if uncertainty were a sufficiently certain harm to constitute an injury in fact.”). To

the extent Viola alleges a violation of the MVRA, he still must show he has suffered a concrete

injury that “actually exist[s],” Spokeo,

— not that he is merely uncertain

whether the Government is properly reimbursing his victims.

Viola, consequently, must show either that there is a likelihood he has overpaid, or that

the lack of accounting is causing him some other concrete injury — e.g., it affects how he pays

the restitution. Yet he has pled neither. Indeed, his own submissions indicate that he has not

come close to paying his full restitution balance. See Inmate Financial Obligations; see also

Viola Payment History. In other words, his payments of a few hundred dollars are nowhere near

the $2.5 million that is due, even when adding in the more than $88,000 he alleges his co-

defendants have paid. See ECF No. 16 (Pl. Opp.) at 1. Likewise, Viola does not claim that the

withholding of an accounting has affected the manner of his quarterly payments of $25 to $50.

This is not to preclude standing in the future if, for instance, substantial payments are made by

him or the others such that the full figure is in sight. As for now, however, Viola has not shown

he has suffered any real harm here.

There is another potential avenue, however. Rather than argue direct injury, he could

seek to show informational standing — that is, he might maintain that he has been deprived of

information about his restitution payments to which he is entitled. Under the Supreme Court’s

holding in FEC v. Akins,

(1998), a plaintiff “suffers an ‘injury in fact’ when [he]

fails to obtain information which must be publicly disclosed pursuant to a statute.”

.

The D.C. Circuit has since elaborated that “a denial of access to information can work an ‘injury

in fact’ for standing purposes, at least where a statute (on the claimants’ reading) requires that

the information ‘be publicly disclosed’ and there ‘is no reason to doubt their claim that the

6 information would help them.’” Ethyl Corp. v. EPA,

(D.C. Cir. 2002)

(quoting Akins,

). For informational standing to apply, however, the statute in

question must specifically give the plaintiff a right to the sought information. See Am. Soc. for

Prevention of Cruelty to Animals v. Feld Entm’t, Inc.,

(D.C. Cir. 2011).

The difficulty for Viola here is that the MVRA contains no such information-disclosure

requirement. Section 3664(b) comes closest, by requiring the court to disclose its pre-sentence

restitution report to the defendant. That section, however, only requires disclosing one pre-

sentence report; it plainly does not compel ongoing accounting to convicted defendants.

As

nothing in the statute gives Viola an independent entitlement to the information, he cannot show

informational standing. See Feld,

. Showing no injury under any theory, Plaintiff

lacks standing.

There is a further jurisdictional hurdle in relation to Plaintiff’s suing the court itself. It is

“well established that federal district courts do not have jurisdiction to reconsider decisions of

other federal courts.” Yi Tai Shao v. Roberts,

, at *14 (D.D.C. Jan. 17, 2019);

accord Jung v. Bank of America, N.A.,

, at *5 n.7 (D.D.C. Dec. 19, 2018)

(noting that “federal district courts do not have jurisdiction to reconsider decisions of other

federal district courts”); Atchison v. U.S. Dist. Courts,

(D.D.C. 2016)

(noting that federal district courts “ha[ve] no subject matter jurisdiction to reconsider the

decisions of other federal district courts”). As a corollary, federal district courts lack jurisdiction

to “attack the judicial acts of a sister court” by ordering its clerks or staff to implement their

judgements in a certain way. See Atchison,

. Plaintiff, consequently, has

not sufficiently established subject-matter jurisdiction for the Court to proceed.

7 While one may sympathize with Viola’s being left in the dark, he is not without remedy.

The Clerk’s Office has provided him with a detailed accounting of his payments and appears

receptive to working with him to correct any errors. See Fed. Def. MTD at 5–6; ECF No. 18

(Fed. Def. Reply) at 2. And if Viola believes the Clerk’s accounting to be inaccurate or

incomplete, his best route to relief is through petitioning his sentencing court. See

(o); see also United States v. Villongco,

, at *5 (D.D.C. July 11, 2016)

(listing circumstances where sentencing court may modify restitution order).

B. Merits

Even if there were jurisdiction, the Court would have to dismiss Viola’s suit because his

claim against each Defendant is deficient.

U.S. District Court

A court (as well as its Clerk) retains absolute judicial immunity, and Viola thus fails to

state a claim against either. It has long been established that “judges . . . are not liable to civil

actions for their judicial acts.” Stump v. Sparkman,

, 356–57 (1978) (citation

omitted). Similarly, “[i]t is well established that judicial immunity ‘extends to other officers of

government whose duties are related to the judicial process,’” including court clerks. See Roth

v. King,

(D.C. Cir. 2006) (quoting Barr v. Matteo,

(1959)); see also Hester v. Dickerson,

(D.D.C. 2008) (denying injunctive

relief because “[i]n this Circuit, absolute judicial immunity extends to clerks of the court”)

(citing Sindram v. Suda,

, 1460–61 (D.C. Cir. 1993)). If court clerks were not

immune from suit, “courts would face the danger that disappointed litigants, blocked by the

doctrine of absolute immunity from suing the judge directly[,] [would] vent their wrath on clerks,

court reporters, and other judicial adjuncts.” Sindram,

(second alteration in

8 original) (internal quotation marks and citations omitted). Judges and clerks, however, have

absolute immunity only for acts performed as part of the judicial process. They enjoy no

immunity for “administrative” acts involving “supervising court employees” or “overseeing the

efficient operation of a court.” Forrester v. White,

(1988).

Viola challenges the Clerk’s alleged refusal to provide him with a full accounting of all

restitution payments. See Compl. at 1. First off, the court did eventually deliver to him an

accounting of his payments, though he contests its accuracy and seeks further information. See

Viola Payment History; Pl. Reply at 1. It is also unclear whether Viola is suing the Clerk, to

whom he addresses his arguments, or the court itself, which he names in his Complaint. See

Compl. at 2, 4. In any event, Plaintiff’s claim deals with a judicial action taken — or not taken

— by the Clerk in her judicial role. Court-ordered restitution payments are part of a court’s

ruling, and the way the Clerk goes about implementing that ruling is a judicial function shielded

by judicial immunity. Cf. Sibley v. U.S. Supreme Court,

(D.D.C. 2011)

(“The clerk or deputy clerk’s receipt and processing of a litigant’s filings are part and parcel of

the process of adjudicating cases.”).

Monitoring court-ordered restitution is dissimilar to the types of administrative

employment actions courts have found may give rise to liability. Viola cites Forrester v. White, a

case that dealt narrowly with a judge’s demotion and discharge of a probation officer. Id. at 221;

see also Kurowski v. Krajewski,

, 775–76 (7th Cir. 1988) (holding judge’s firing of

public defenders because of their political beliefs was administrative act not protected by judicial

immunity). Yet even if Viola’s claim could be seen as similar to a request for public judicial

records, this Court remains the wrong place for him to seek relief.

9 FDIC and BOP

Viola’s claims against the FDIC and BOP are similarly barred — this time, by the

doctrine of sovereign immunity. Under that doctrine, the federal government is subject to suit

only upon its consent, which must be clear and unequivocal. See United States v. Mitchell,

(1983) (“It is axiomatic that the United States may not be sued without its consent

and that the existence of consent is a prerequisite for jurisdiction.”). Such a waiver of sovereign

immunity must be “unequivocally expressed” in a statute. Hubbard v. EPA,

(D.C. Cir. 1992) (en banc) (quoting United States v. Mitchell, 445 U.S. at 535, 538 (1980)).

Viola has failed to establish that sovereign immunity has been waived here. He appears

to premise jurisdiction on a combination of

(federal-question jurisdiction),

(the MVRA), and

(the Mandamus Act). See Compl. at 3–4.

But none of these statutes waives sovereign immunity. See, e.g., Walton v. Fed. Bureau of

Prisons,

(D.D.C. 2008) (holding federal-question statute does not waive

sovereign immunity); Stone v. Holder,

(D.D.C. 2012) (same for MVRA);

Washington Legal Found. v. U.S. Sentencing Comm’n,

(D.C. Cir. 1996) (same

for Mandamus Act). As a result, this Court lacks subject-matter jurisdiction to hear the claims

against the remaining federal Defendants.

To the extent the Administrative Procedure Act waives sovereign immunity even when

not explicitly invoked, see Chamber of Commerce v. Reich,

, 1328–29 (D.C. Cir.

1996), Viola is still out of luck because he fails to state a claim under the APA. That Act

authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed.”

(1). But “a claim under § 706(1) can proceed only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah

10 Wilderness All.,

(2004). Viola does not point to any authority showing that the

FDIC or BOP was obliged to provide him the information he seeks. Indeed, the MVRA makes

clear that “[n]othing in this section . . . shall be construed to create a cause of action not

otherwise authorized in favor of any person against the United States or any officer or employee

of the United States.”

(p). As Plaintiff cannot demonstrate that either agency

failed to take a discrete action it was required to take, he does not state a claim against the FDIC

or BOP.

Citigroup/Argent

Finally, Plaintiff seeks from “Argent Mortgage—successors—assigns” an accounting of

all payments it has received on his behalf. See Compl. at 2. Citigroup, as alleged successor to

Argent, responds with two arguments. First, it points out that Viola never named it as a

Defendant or alleged that Citigroup was the legal successor to Argent. See ECF No. 13 (Citi

MTD) at 3. Second, Citigroup notes that a fraud victim has no obligation to produce restitution

accounting to the person ordered to pay such restitution.

at 4–5. The Court agrees on both

counts.

First, Viola does not mention Citigroup in his Complaint. In his Opposition, he suggests

that he intended to refer to Citigroup as the successor to Argent, although the bank never appears

in the Complaint. See Pl. Opp. at 3. The Court appreciates that pro se claims are held “to less

stringent standards than formal pleadings drafted by lawyers,” Haines,

, and

Viola’s Opposition did indicate that he understood Citigroup to be the successor to Argent, even

if he never pled that fact. See Pl. Opp. at 3. But “even a pro se complainant must plead ‘factual

matter’ that permits the court to infer ‘more than the mere possibility of misconduct.’” Atherton,

567 F.3d at 681–82 (quoting Iqbal,

). Although he seems to have served

11 Citigroup with his Complaint, Viola nowhere named Citigroup a defendant. See Citi MTD at 2.

As a result, his pleadings do not state a claim against that entity. Similarly, while Plaintiff names

Argent in the Complaint, he neither served it nor argued in his brief that it is in any way liable to

him.

Regardless of which entity he is suing, Viola has a second, bigger problem: he never pled

facts sufficient to support a claim of liability against either one. The MVRA is quite clear that

“[n]o victim shall be required to participate in any phase of a restitution order.”

(g)(1). That system makes sense, as it would be irrational to allow a convicted fraudster

to badger his former victim for an accounting of his payments.

For that reason, the court serves as an intermediary between Viola and his payees.

Plaintiff has no direct relationship in the restitutionary process with any of them; as Viola himself

recognizes, his dealings are with the court. See Compl. at 1 (requesting accounting of

“restitution collected by the government”). The Complaint, therefore, is devoid of any plausible

allegation that Citigroup or Argent owes a legal duty to provide an accounting to him. Even if

Viola had standing, then, the Court would grant Citigroup’s Motion to Dismiss for failure to state

a claim.

IV. Conclusion

For these reasons, the Court will dismiss Plaintiff’s claims for lack of subject-matter

jurisdiction. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: June 14, 2019

12