UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

___________________________________ 

 ) 

GILBERT ROMAN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil No. 12-1370 (EGS) 

 ) 

NATIONAL RECONNAISSANCE OFFICE, ) 

 ) 

 Defendant. ) 

___________________________________) 

MEMORANDUM OPINION 

 Plaintiff Gilbert Roman, proceeding pro se, brings this 

case alleging violations of his constitutional rights in 

connection with the government’s processing of his requests for 

information under the Freedom of Information Act (“FOIA”).1 

Pending before the Court are: (1) Defendant’s Motion to Dismiss 

for Failure to State a Claim, (Docket No. 7), and Plaintiff’s 

oppositions thereto (Docket Nos. 11, 14, 17); (2) Plaintiff’s 

motions for discovery (Docket Nos. 9 and 15); and (3) 

Plaintiff’s requests to enter evidence into the record. (Docket 

Nos. 10, 16, 18). 

As an initial matter, Plaintiff’s requests to enter 

evidence into the record are GRANTED. Upon consideration of 

                                                            

1

 Plaintiff filed another case, Roman v. Department of the Air 

Force, Case No. 12-1381, also resolved by the Court this same 

day. The two cases involve different FOIA requests to different 

agencies. 
2 

Defendant’s Motion to Dismiss, Plaintiff’s Oppositions, the 

entire record in this case, and for the reasons set forth below, 

Defendant’s Motion to Dismiss is GRANTED. Consequently, 

Plaintiff’s motions for discovery are DENIED as moot. 

I. BACKGROUND 

Plaintiff is a private citizen seeking damages of 

$7,000,000 against defendant National Reconnaissance Office 

(“NRO”), a United States government agency responsible for 

building, launching, and maintaining America’s intelligence 

satellites. Compl. at 1; Civil Cover Sheet at 2. Plaintiff 

claims that Defendant failed to adequately respond to his 

requests for documents under the Freedom of Information Act 

(“FOIA”), 5 U.S.C. § 552 (2012). Compl. at 1. Mr. Roman 

requested documents concerning functional magnetic resonance 

imaging (“FMRI”) technology “or the ability to read the pulses 

and patterns of the human brain.” Id. He alleges Defendant’s 

inadequate search for the requested documents violated his First 

Amendment rights of free speech and free press, and his Fifth 

Amendment right to due process. Id. Although the Complaint 

does not specify which requests Plaintiff claims the NRO 

inadequately considered, the attachments to the Complaint 

reference three FOIA requests. 

First, on August 16, 1996, Plaintiff made a FOIA request 

for several categories of information to the Department of 
3 

Defense, which was forwarded to the NRO for processing.2 Compl., 

Ex. A. On September 26, 1996, the NRO responded to Plaintiff’s 

request advising that it did not have responsive records for 

some of his requests.3 Compl., Ex. A1-2. As to the other 

requests, Defendant claimed those documents would be classified 

under Executive Order 12958, if they existed, making them exempt 

from disclosure under 5 U.S.C. § 552(b)(1).4 Id. Defendant also 

advised Plaintiff that he had the right to appeal the decision, 

which, according to the record before this Court, Plaintiff did 

not. Compl., Ex. A2. 

                                                            

2

 Plaintiff requested: “1. ‘. . . the complete biographical 

backgrounds on all personnel assigned to the 8X spy satellite 

program & US Policy on Remote Sensing Space Capabilities. The 

medical, scientific, & scholastic backgrounds of these 

gentlemen.’ . . . . 2. ‘. . . copies of any and all flyers and 

tapes which read (The Gov’t Can Read Our Minds) . . . 

fingerprint verification (who[se] fingerprints appear on these 

papers).’ . . . . 3. ‘. . . any and all papers and tapes 

pertaining to me. . . born [ ] ss# [ ].’ . . . . 4. ‘. . . the 

annual budget for these two programs’ (8X spy satellite program 

& US policy on Remote Sensing Space Capabilities). . . . 5. ‘. . 

. how many satellites are in orbit with the technology which 

reads the pulses and patterns of the human brain, and converts 

these readings into words and sentences . . . .’ . . . . 6. ‘. . 

. technology is built in the 8X spy satellite program and might 

fall under the name US Policy on Remote Sensing Space 

Capabilities . . . the person assigned to retrieve this data . . 

. said person sign an affidavit stating his clearance . . . a 

list of all levels of clearance assigned to personnel.’ . . . .” 

Compl., Ex. A1-2. 

3

 Request Nos. 2, 3, and 5. 

4

 Request Nos. 1, 4, and 6. 
4 

 Second, on May 14, 2009, Plaintiff sent another FOIA 

request to Defendant. Compl., Ex. A3-4. Plaintiff requested: 

“1. . . . information on functional magnetic resonance imaging. 

2. The date it was put into service. 3. The first successful 

report on the first person it was used on successfully.” 

Compl., Ex. A3. On June 16, 2009, Defendant accepted 

Plaintiff’s May 14, 2009 request, and advised Plaintiff that it 

was limiting its search to NRO-originated records. Compl., Ex. 

A6. 

 On July 1, 2009, Defendant advised Plaintiff that it 

completed its search but did not have responsive documents. 

Compl., Ex. A8-9. Plaintiff appealed Defendant’s determination 

on July 12, 2009. Compl., Ex. A10. After review, Defendant 

confirmed the determination, and advised Plaintiff of his rights 

for judicial review of the decision. Compl., Ex. A11. 

 Plaintiff filed a lawsuit against the NRO in the Eastern 

District of New York, Roman v. National Reconnaissance Office,

No. 09-CV-2504 (the “New York case”). Def.’s Mot. to Dismiss 

(“Def.’s Mot.”), Ex. A at 1, 4. In the New York case, Plaintiff 

requested documents in response to his May 14, 2009 FOIA request 

to the NRO – the same request he references in this action. 

Compare Id. at 2 n.3, with Compl., Ex. A3-4. The NRO filed a 

motion for summary judgment, which the court granted. Def.’s 

Mot., Ex. A at 10-11. The court found that the NRO performed a 
5 

reasonable and adequate search for the requested documents and 

did not improperly withhold any responsive documents. Id. at 

11. 

 Third, on October 22, 2009, Plaintiff sent another FOIA 

request to Defendant.5

 Compl., Ex. A13-14. Defendant responded 

to the request on November 23, 2010, and enclosed 412 pages of 

responsive documents but withheld 37 pages of responsive 

documents asserting applicable FOIA exemptions. Id. Defendant 

advised Plaintiff of his right to appeal its determination, 

which according to the record before this Court, Plaintiff did 

not. Compl., Ex. A14. 

Pursuant to the record before this Court, Plaintiff’s FOIA 

requests at issue in this case are his August 16, 1996, May 14, 

2009, and October 22, 2009 requests. 

II. STANDARD OF REVIEW 

When evaluating a motion to dismiss for failure to state a 

claim, the Court must accept as true all factual allegations in 

the complaint and draw all reasonable inferences in favor of the 

plaintiff. Fed. R. Civ. P. 12(b)(6); Elec. Privacy Info. Ctr. 

                                                            

5

 Plaintiff requested: “1. . . . copies of all the Freedom of 

Information and/or Privacy Act of 1974 task sheets used to 

process my request to your agency; which you responded to on 

July 1, 2009 and Oct. 15, 2009. . .; 2. Copies of the DUTY 

OFFICER forms authorizing these searches. . .; 3. Copies of 

forms from the CLASSIFIED DOCUMENTS RECEIPTS. . .; 4. Copies of 

the forms from the OFFICE OF THE CLASSIFIED REGISTER OF CONTROL. 

. .; 5. Copies of any and all memorandums, emails concerning 

Gilbert Roman (ME).” Compl., Ex. A13. 
6 

v. Nat'l Sec. Agency, 795 F. Supp. 2d 85, 90 (D.D.C. 2011). To 

survive a Rule 12(b)(6) motion, the complaint must contain “a 

short and plain statement of the claim showing that the pleader 

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint 

must have “‘enough facts to state a claim to relief that is 

plausible on its face’ . . . .” Elec. Privacy Info. Ctr., 795 

F. Supp. 2d at 90 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). A claim is facially plausible when the facts 

of the complaint will allow the court to make a reasonable 

inference that the defendant is liable for the alleged 

misconduct. Id. 

Furthermore, when evaluating a pro se complaint, the courts 

apply “less stringent standards than formal pleadings drafted by 

lawyers. . . .” Haines v. Kerner, 404 U.S. 519, 520 (1972). 

However, a pro se complaint must still meet the requirements of 

Federal Rules of Civil Procedure, Rule 8(a)(2) to survive a Rule 

12(b)(6) motion to dismiss. See Atherton v. Dist. of Columbia 

Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009). 

III. ANALYSIS 

A. Defendant is Immune from Monetary Damages. 

Plaintiff attempts to state a constitutional claim for 

money damages against the NRO. Specifically, he claims that the 

Defendant violated his constitutional rights under the First and 

Fifth Amendments by improperly withholding documents responsive 
7 

to his FOIA requests. Compl. at 1; Civil Cover Sheet at 2. Mr. 

Roman does not, however, provide any authority for the 

proposition that he is entitled to damages from the government. 

The Defendant is not subject to liability for damages 

because it is a federal agency. F.D.I.C. v. Meyer, 510 U.S. 

471, 486 (1994). Generally, the federal government and its 

agencies are immune from lawsuits due to the doctrine of 

sovereign immunity, unless Congress explicitly waives immunity. 

See id. at 475; United States v. Mitchell, 463 U.S. 206, 212 

(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.”). The Court is unaware of any 

waiver of sovereign immunity that would permit Plaintiff to seek 

money damages from Defendant for allegedly failing to provide 

documents responsive to Plaintiff’s FOIA request. 

Likewise, no money damages are available under FOIA. The 

sole remedy available to a requester is injunctive relief—the 

court can compel an agency to produce documents or enjoin an 

agency from improperly withholding documents. See 5 U.S.C. § 

552 (a)(4)(B); see also Johnson v. Exec. Ofc. for United States 

Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002); Sterling v. 

United States, 798 F. Supp. 47, 48 (D.D.C. 1992) (“[T]he FOIA 

does not authorize the award of monetary damages.”). 
8 

Therefore, Defendant is not subject to monetary damages due 

to sovereign immunity and because FOIA does not provide for 

monetary damages. 

B. Beyond Unavailability of Monetary Damages, Plaintiff’s 

Complaint is also Dismissed Under FOIA. 

The Complaint in this action does not appear to allege a 

violation of the FOIA, nor does Plaintiff request any injunctive 

relief, which, as discussed above, is the only remedy available 

under the statute. In his Oppositions, Plaintiff again states 

that he does not bring his claims under FOIA. See Pl.’s Mot. 

Opposing Dismissal and Req. for Discovery at 1, Docket No. 14 

(“FOIA cannot and does not allow protection of constitutional 

rights[,] so FOIA cannot be used as a measure of my rights. 

Only the constitution can measure my rights.”); Pl.’s Suppl. 

Opp’n to Dismissal at 1, Docket No. 17 (“FOIA does not and 

should never be used as a measure [of] a person[’s] 

constitutional rights.”). Nevertheless, in its Motion to 

Dismiss, the Defendant argues that the claims should be 

dismissed under FOIA as well as principles of sovereign 

immunity. Def.’s Mot. at 2-5. 

As discussed above, Mr. Roman’s claims for money damages 

are barred. Even if, however, the Court were to construe 

Plaintiff’s Complaint as requesting injunctive relief under the 

FOIA, Plaintiff’s claims would still be dismissed. 
9 

1. This Court Cannot Adjudicate Plaintiff’s May 14, 

2009 FOIA Request Due to the Doctrines of Res 

Judicata and Collateral Estoppel. 

Plaintiff is barred by the doctrines of res judicata and 

collateral estoppel from seeking adjudication by this Court with 

respect to his May 14, 2009 FOIA request. The documents 

Plaintiff requests are identical to the documents requested by 

Plaintiff in the New York case. Compare Def.’s Mot., Ex. A at 2 

n.3, with Compl., Ex. A3-4. Thus, this Court is not the forum 

to adjudicate Plaintiff’s claims regarding his May 14, 2009 FOIA 

request. 

Res judicata precludes Plaintiff from re-litigating the 

same claim that was litigated in the New York case. There are 

four elements of res judicata: “(1) an identity of parties in 

both suits; (2) a judgment rendered by a court of competent 

jurisdiction; (3) a final judgment on the merits; and (4) the 

same cause of action in both suits.” Primorac v. C.I.A., 277 F. 

Supp. 2d 117, 119 (D.D.C. 2003) (quoting Polsby v. Thompson, 201 

F. Supp. 2d 45, 48 (D.D.C. 2002)). Plaintiff Gilbert Roman and 

defendant NRO are both parties in this case and were parties in 

the New York case. Compare Compl. at 1, with Def.’s Mot., Ex. 

A. An order was entered by the District Court of the Eastern 

District of New York granting NRO summary judgment on February 

22, 2012, and Plaintiff alleged that the NRO did not adequately 

respond to his May 14, 2009 FOIA request in both lawsuits. 
10 

Compare Compl. at 1, with Def.’s Mot., Ex. A at 4, 10-11. The 

four elements of res judicata are met. 

Additionally, collateral estoppel precludes Plaintiff from 

re-litigating the same issues that were litigated in the New 

York case. The elements of collateral estoppel are: "‘[1], 

the same issue now being raised must have been contested by the 

parties and submitted for judicial determination in the prior 

case[; 2], the issue must have been actually and necessarily 

determined by a court of competent jurisdiction[; and 3] 

preclusion in the second case must not work a basic unfairness 

to the party bound by the first determination.’" Martin v. 

Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting 

Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. 

Cir. 1992)). Here, the issues concerning Plaintiff’s May 14, 

2009 FOIA request are identical to the issues in the New York 

case: whether Defendant conducted an adequate search for the 

records Plaintiff sought, and if Defendant properly responded. 

Compare Compl. at 1, with Def.’s Mot., Ex. A at 10-11. In the 

New York Case, the court fully considered the issues and found 

that the NRO fully complied with the FOIA in conducting its 

search for the requested documents and did not improperly 

withhold documents. Def.’s Mot., Ex. A at 1, 11. The elements 

of collateral estoppel are met. Accordingly, Plaintiff’s FOIA 

claims regarding his May 2009 request must be DISMISSED.
11 

2. Plaintiff Failed to Exhaust his Administrative 

Remedies with Respect to his August 16, 1996 and 

October 22, 2009 FOIA Requests. 

A FOIA requester must exhaust administrative remedies 

before seeking judicial review. See Oglesby v. Dep't of the 

Army, 920 F.2d 57, 61 (D.C. Cir. 1990) (overruled in part on 

other grounds); see also Wilbur v. C.I.A., 355 F.3d 675, 676 

(D.C. Cir. 2004) (“‘[E]xhaustion of administrative remedies is a 

mandatory prerequisite to a lawsuit under FOIA’. . . .” 

(citations omitted)). A plaintiff exhausts administrative 

remedies when he appeals an agency’s response to his FOIA 

request, and the agency fails to respond to the appeal within 

the appropriate time limit, denies the appeal, or makes an 

adverse determination. 5 U.S.C. § 552(a)(6)(A)(i)-(ii); See

Hidalgo v. F.B.I., 344 F.3d 1256, 1259 (D.C. Cir. 2003). When a 

plaintiff has not exhausted administrative remedies, the court 

can dismiss the complaint sua sponte for failure to state a 

claim. Isasi v. Office of Attorney. Gen., 594 F. Supp. 2d 12, 

13 (D.D.C. 2009). Furthermore, the burden is on the plaintiff 

to prove exhaustion of administrative remedies. Brown v. 

F.B.I., 793 F. Supp. 2d 368, 380 (D.D.C. 2011). 

 Plaintiff has not met his burden to demonstrate that he 

exhausted his administrative remedies; there is no evidence that 

he appealed Defendant’s decisions with respect to his August 16, 
12 

1996 and October 22, 2009 FOIA requests.6 Specifically, 

Defendant’s response to Plaintiff’s August 16, 1996 request 

(dated September 26, 1996) and Plaintiff’s October 22, 2009 

request (dated November 23, 2010) state that Plaintiff has “the 

right to appeal this determination . . . within 60 days of the 

above date.” Compl. Ex. A2, A14. Therefore, Plaintiff’s 

deadlines to appeal Defendant’s response to his August 16, 1996 

and October 22, 2009 requests were November 25, 1996 and January 

22, 2011, respectively. Both deadlines have long since lapsed. 

IV. CONCLUSION 

For the above reasons, Plaintiff’s Motions to Enter 

Evidence are GRANTED, and Defendant’s Motion to Dismiss is also 

GRANTED. In light of the foregoing, Plaintiff’s pending motions 

                                                            

6

 Since filing his Complaint, Mr. Roman has requested to enter 

evidence into the record. See “Enter Evidence Into Court 

Record,” Docket No. 10; “Motion to Enter Evidence Into the Court 

Record,” Docket No. 16; and “Motion to Enter Evidence,” Docket 

No. 18. Plaintiff’s motions are hereby GRANTED. The Court has 

reviewed all of Mr. Roman’s submissions, none of which 

demonstrate that he exhausted his claims. Because this Court 

does not rely on this evidence to make its decision, Defendant’s 

Motion to Dismiss does not convert to a motion for summary 

judgment. See Robinson v. Dist. of Columbia, 736 F. Supp. 2d 

254, 263 (D.D.C. 2010). Likewise, although Plaintiff has 

requested discovery in this case, none of the discovery he seeks 

pertains to the exhaustion requirement. See Mots. for 

Discovery, Docket Nos. 9, 12, 13 and 15. 
13 

for discovery are hereby DENIED as moot. An appropriate Order 

will accompany this Memorandum Opinion. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 July 9, 2013