UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) NOSHIR GOW ADIA, ) ) Plaintiff, ) ) 

### v. ) ) INTERNAL REVENUE SERVICE 

### etal, ) ) ,) Defendants. )**~~~~~~~~~~~~~~~·)** Civil Action No. 13-01991 (RDM)

MEMORANDUM OPINION Plaintiff, a former defense contractor, was convicted in the United States District Court for the District ofHawaii ofmultiple counts for violations ofthe Arms Export Control and ' Espionage Acts, tax fraud, and money laundering. See UnitedStates v. Gowadia, 760 F.3d 989, 990 (9th Cir. 2014). Plaintiffappealed the export control- and espionage-related convictions to the Ninth Circuit, which affirmed. Id. While Plaintiffs appeal was pending, he filed this civil lawsuit against the Internal Revenue Service ("IRS") and two IRS agents (collectively, "Defendants."). Hisprose complaint alleges that his tax fraud convictions were based on "knowingly falsified" information. Compl. pp. 3-10. He seeks eighteen million dollars in damages underBivens v. Six Unknown Named Agents of FederalBureau of Narcotics, 403 U.S. 388 (1971), for the violation ofhis civil rights. Plaintiffhas filed two similar actions in this district against different federal agencies, both of which were summarily dismissed. See Gowadia v. FederalBureau of Investigation, 2014 U.S. Dist. LEXIS 63357 (D.D.C., April 23, 2014) (dismissing suit for forty-five million dollars in - 1 -damages); Gowadia v. United StatesAirForce, 2014 U.S. Dist. LEXIS 57418 (D.D.C., April 23, 2014) (dismissing suit for one hundred and ten million dollars in damages), aff'd, 587 F. App'x 660, 661 (D.C. Cir. 2014). Plaintiffalso brought a civil action in the District ofHawaii alleging that his criminal convictions and the civil forfeiture ofhis home were obtained through the use of fabricated evidence, prosecutorial misconduct and a conspiracy involving federal prosecutors and others. That suit was also dismissed. Gowadia v. Sorenson, 2014 U.S. Dist. LEXIS 98262 (D. Haw., July 18, 2014), aff'd, Appeal No. 14-16556 (9th Cir., Feb 26, 2015). This matter is currentlybeforethe Court on Defendants' motion to dismiss. Among other defenses, Defendants argue that this action is barred byHeck v. Humphrey, 512 U.S. 477 (1994), because success on PlaintiffsBivens claim would necessarily implythat his convictions are invalid. For the reasons stated below, the Court agrees. InHeck, a state prisoner sought damages based on the allegedlyunlawful conduct ofthe officials heheld responsible for his conviction. The Supreme Court held that the damages claim
was not cognizable: "[I]n orderto recover damages for allegedlyunconstitutional conviction or imprisonment, or for other harm caused by actions whose.unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiffmustprove that the conviction or sentencehas beenreversed on direct appeal, expungedbyexecutive order, declared invalid by a state tribunal authorized to make such determination, or called into questionby a federal court's issuance ofa writ ofhabeas corpus." 512 U.S. at 486-87. A "district court must consider whether ajudgment in favor oftheplaintiffwould necessarily implythe invalidity ofhis conviction or sentence; ifit would, the complaint must be dismissed unless the plaintiffcan demonstrate that the conviction
or sentence has alreadybeen invalidated." Id. at 487. In contrast, a plaintiffs action "shouldbe allowed to proceed" where, "even ifsuccessful," itwould "not demonstrate the invalidity ofany

- 2 -outstanding criminaljudgment against the plaintiff." Taylor v. UnitedStates Probation Office, 409 F.3d 426, 429 (D.C. Cir. 2005) (citation and quotation marks omitted). WhileHeckinvolved claims for damages under 42 U.S.C. § 1983, "[t]he rationale of Heck applies equally to claims against federal officers inBivens actions." Williams v. Hill, 74 F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam). Thepremise ofPlaintiffs suit is that he was wrongfully convicted onthe basis offabricated evidence and testimonyprovided byDefendants. Thus, PlaintiffsBivens claims, "ifsuccessful, would necessarily implythe invalidity of[his] conviction[s]." Taylor, 409 F.3d at 427. Because Plaintiffs convictions have not been invalidated in anypriorproceeding, Heckbars this suit. Id.; seeHeck, 512 U.S. at 487. Plaintiffdoes not dispute that success onhis damages claims would necessarily imply that his criminal convictions are invalid. 1 Instead, he argues thatHeckis unconstitutional and cannot, consistent with the Framer's intent, preclude him from pursing a claim for damages based on the alleged use offabricated evidence at his trial. Plaintiffraised the same contention in his appeal in Gowadia v. United StatesAirForce, No. 14-5154 (D.C. Cir.). There, the Court of Appeals rejected his argument in an unpublished opinion, concluding that the Court of Appeals-like this Court-is "bound bythe Supreme Court's decision inHeek." 5 8 7 F. App'x at 661. Regardless ofthe precedential weight to be accorded an unpublished decision ofthe Court ofAppeals, see D.C. Cir. R. 36(e)(2) ("[A] panel's decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition."), see also Martin
v. D.C., 2015 U.S. Dist. LEXIS 7593, 70-71 (D.D.C. Jan. 23, 2015), it is clearlybinding on Mr.

1 The Court cautioned Plaintiffthat failure to address the arguments presented in Defendants' motion to dismiss carried the risk that this case mightbe dismissed and that unaddressed arguments mightbetreated as conceded, and granted Plaintiffleave to file a supplemental response. Dkt. No. 14; see Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988); Neal v. Kelly, 963 F.2d453, 456-57 (D.C. Cir. 1992). Plaintiffdid not file a supplemental response. - 3 -Gowadia, see Taylor v. Sturgell, 553 U.S. 880, 892 (2008) ("Issue preclusion
...bars successive litigation ofan issue offact or law actually litigated and resolved in a valid court determination essential to the priorjudgment, even ifthe issue recurs in the context ofa different claim.") (internal quotation marks omitted); National Classification Comm. v. United States, 765 F.2d 164, 170 (D.C. Cir. 1985) (giving preclusive effect to an unpublished decision ofthe Court of Appeals). And, in any event, the reasoning ofthe Court ofAppeals is unquestionably correct and dispositive. This Court, like all other lower courts, is "boundby the Supreme Court's decision in Heck." Gowadia, 587 Fed. App'x at 661; see, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (explaining that lower courts must "follow the case which directly controls, leaving to [the Supreme] Court the prerogative ofoverruling its own decisions."). Finally, to the extent Plaintiffbelieves thatHeck "makes it difficult orimpossible to overturn" his allegedly false convictions, Dkt. No. 13, at 3, heis mistaken: Heckmerely prevents him from claiming damages based on convictions that have notbeen invalidated. The Court is mindful thatpro se complaints shouldbe liberally construed. However,
even ifPlaintiffs complaint could be construed as a Section 2255 challenge to the validity ofthe underlying convictions, it would still have to be dismissed because this is not the proper forum. A federal prisoner who wishes to challenge the validity ofa federal conviction or sentence should "move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Thus, Plaintiffmayonlybring a Section 2255 challenge to his conviction in the U.S. District Court for the District ofHawaii- and, indeed, he has already done so. See Gowadia v. United States, Case No. 14-cv-00481, Dkt. No. 2-2 (D. Haw., Oct. 23, 2014). Accordingly, there is no basis for this Court to treat this lawsuit as a challenge to Plaintiffs conviction under Section 2255.

-4-For the reasons stated above, the Court will DISMISS the case for failure to state a claim upon which reliefmaybe granted.2 This dismissal is without prejudice to Plaintiffs right to file
a new action, ifand when he can satisfy the requirements recognized inHeck (for example, should he succeed in obtaining vacatur ofhis convictions in an appropriate proceeding). See Anderson v. United States, 96 F. App'x 723, 724 (D.C. Cir. 2004) (per curiam). An appropriate Order accompanies this Memorandum Opinion.

United States District Judge
Date: April 6, 2015

2 In light ofthis disposition, the Court does notreach the question whether Plaintiffs complaint states a valid Bivens claim or Defendants' remaining arguments for dismissal. - 5 -