156 F. Supp. 3d 54
D.D.C.2016Background
- Plaintiffs Superior Fibre-Canada, Superior Fibre-New York, and Gregory Bertram allege they are entitled to a duplicate of a lost "Treasury instrument" originally acquired by Melville Leck and claim misrepresentation damages arising from letters signed by a purported Treasury employee, Lee Myung Hee Ambrocio.
- Plaintiffs say the instrument passed to Bertram after Leck’s death (2007); Leck’s records were destroyed in a 2009 flood and plaintiffs lack documentary proof of purchase or transfer.
- Plaintiffs received electronic letters (and an ID card copy) allegedly from Ambrocio on Treasury letterhead, coordinated with parties in Nigeria who sought advance payments from plaintiffs to facilitate recovery; meetings were repeatedly postponed and the recovery never occurred.
- Plaintiffs sued the Treasury Department, Ambrocio, and Doe defendants seeking (1) issuance of a duplicate instrument, (2) declaratory ownership, and (3) misrepresentation damages. Defendants moved to dismiss or for summary judgment; plaintiffs sought leave to serve Ambrocio by publication.
- The Treasury investigated and found the instrument number was not a Treasury number and that it does not maintain records of securities held through commercial brokers; Treasury does not reissue securities purchased on the secondary market.
- Court disposed of the case: dismissed Counts I (reissuance) and II (declaratory relief) for failure to state a claim (and granted summary judgment on alternative grounds); dismissed misrepresentation claims against federal defendants with prejudice for sovereign immunity; dismissed individual-capacity claims against Ambrocio/Doe defendants without prejudice for insufficient service and denied service by publication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may obtain a court order directing Treasury to issue a duplicate Treasury instrument | Bertram argues he is entitled to reissuance because the instrument was owned by Leck and transferred to him on Leck’s death | Treasury argues no statutory cause of action authorizes mandamus-like relief; APA review requires final agency action and other review avenues are absent | Dismissed: no viable cause of action under APA or other doctrine; summary judgment for Treasury because plaintiffs cannot prove essential elements (no instrument copy, no records, provided number not a Treasury number) |
| Whether plaintiffs can obtain declaratory judgment of ownership over the instrument | Plaintiffs seek declaratory relief that they are lawful owners/assignees | Defendants argue lacking a cognizable cause of action against the agency; declaratory relief derivative of merits | Dismissed: declaratory claim fails because underlying cause of action is lacking; alternative summary judgment granted |
| Whether misrepresentation claims may proceed against Treasury or federal employees in their official capacities | Plaintiffs assert letters/ID induced payments and created liability | Defendants invoke sovereign immunity and FTCA exceptions (misrepresentation excluded) | Dismissed with prejudice: sovereign immunity bars tort claims against agency and official-capacity defendants; FTCA excludes misrepresentation |
| Whether plaintiffs may pursue individual-capacity misrepresentation claims against Ambrocio/Doe defendants given service issues | Plaintiffs request permission to serve Ambrocio by publication and argue discovery may identify Doe defendants | Defendants and court note plaintiffs failed to effect Rule 4 service, Treasury records show no Ambrocio employee match, and D.C. law narrowly limits service by publication | Dismissed without prejudice as to individual-capacity claims for insufficient service; service-by-publication denied and time to serve not extended |
Key Cases Cited
- Trudeau v. Fed. Trade Comm’n, 456 F.3d 178 (D.C. Cir. 2006) (APA supplies a generic cause of action for review of agency action)
- Holistic Candlers & Consumers Ass'n v. Food & Drug Admin., 664 F.3d 940 (D.C. Cir. 2012) (APA requires final agency action for review)
- Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300 (D.C. Cir. 2014) (non-statutory review available for ultra vires agency action)
- Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166 (D.C. Cir. 2003) (review to determine whether an agency acted ultra vires)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard; burden-shifting on movant/nonmovant)
- Osborn v. Haley, 549 U.S. 225 (2007) (Westfall Act grants federal employees absolute immunity for acts within scope of employment)
- FDIC v. Meyer, 510 U.S. 471 (1994) (sovereign immunity bars suits against the United States absent waiver)
- Block v. North Dakota, 461 U.S. 273 (1983) (sovereign immunity principle that United States cannot be sued without consent)
- World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (due process requires adequate notice for assertion of personal jurisdiction)
- Rollins v. Wackenhut Services, Inc., 703 F.3d 122 (D.C. Cir. 2012) (procedural requirements for seeking leave to amend complaint)