UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 15-1290 (TJK) MATTHEW P. SCHORR, Plaintiff , v. DENISE E. ROBERSON et al. , Defendants

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MEMORANDUM OPINION Plaintiff Matthew P. Schorr, proceeding pro se , was convicted of federal childpornography charges in 2011. Bas ed on his conviction, United S tates Immigration and Customs Enforcement (“ICE”), a component of the Department of Homeland Security (“DHS”), debarred him from participating in federal contracts and other federal p rograms. Schorr filed this lawsuit challenging his debarment agains t DHS, ICE, and various public officials. He brings two claims under the Administrative Proce dure Act (“APA”), 5 U.S.C. § 551 et seq. , and a Bivens claim for alleged violations of his due pro cess and equal protection righ ts. See ECF No. 1 (“Compl.”) ¶¶ 60-73. Shortly after Schorr filed suit, ICE terminated the debarment. Defendants filed a Motion to Dismiss and/or for Summary Judgmen t (ECF No. 17), and Schorr filed a Partial Motion f or Summary Judgment (ECF No. 20) in response. The Court referred the matter to Magistrat e Judge G. Michael Harvey, who issued a Report and Recommendation to grant Defendants’ motion, deny Schorr’s motio n, and dismiss the case. ECF No. 29 (“R&R”). Schorr filed objections to Magistr ate Judge Harvey’s Report and Recommendation. ECF No. 33 (“Pl.’s Obj.”). His objectio ns are that Magistrate Judg e Harvey (1) misapprehended Schorr’s factual allegations, id. at 2-3; (2) failed to cons ider all of his submissions, id. at 15-18;2 (3) incorrectly determined that Schorr lacked standing at the t ime he filed suit, id. at 5-8; (4) incorrectly determined that Schorr’s APA claim was mooted by IC E’s termination of Schorr’s debarment, id. at 9-15; and (5) incorrectly d etermined that Schorr failed to allege egregious government misconduct in connection with his Bivens claim, id. at 18-19. 1 Reviewing Schorr’s objections de novo , see Fed. R. Civ. P. 72(b)(3), the Court overrules the objections a nd adopts Magistrate Judge Harvey’s Report and Recommendation in its enti rety except for its conclusion that Schorr lacked standing (al though the Report and Recommenda tion’s reasoning on standing supports the conclusion that Schor r’s APA claims are moot), see R&R at 7-12, and as otherwise noted below. First, Schorr complains, Magis trate Judge Harvey failed to appr eciate the supposedly extraordinary nature of his alleg ations. He argues that Magistrate Judge Harvey incorrectly assumed that “Defendants were [,] in fact, diligent bureaucrats, ” when in reality “ICE Suspension and Debarment personnel have created a debarment mill that cranks out useless and illegal debarments whose only purpose is to perpetuate the continued ex istence of their j obs.” Pl.’s Obj. at 2. In support of this argument , Schorr cites the following allegations: that (1) “Defendants failed to check their CorrLinks account for [Schorr’s] Response before they debarred [him],”
id. ; 2 (2) two of the Defendants received a copy of his complaint in this action shortly before terminating his debarment, Pl.’s Obj. at 2; and (3) Defendants’ decision to terminate his debarment was set forth in a ve ry short letter with no reasonin g, id. at 3. These allegations,

1 Magistrate Judge Harvey also recommended dismissing Schorr’s A PA claims on the ground of sovereign immunity to the extent they seek money damages. R&R at 12-13. Schorr effectively concedes that point in his objecti ons, but insists that he is e ntitled to equitable relief. Pl.’s Obj. at 8-9.

2 CorrLinks is an email system used by prison inmates. See Compl. ¶ 37(b).3 Schorr claims, give rise to the inference that these public off icials ran a supposed “debarment mill,” which in his view amounted to “egregious abuse of offici al power.” Id. at 2. The Court disagrees, because the facts alleged are insufficient to make s uch an inference plausible. See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Schorr also claims that Magistr ate Judge Harvey f ailed to take into account certain documents attached to his motion for partial summary judgment. See Pl.’s Obj. at 15-18. But Schorr is incorrect. While the a ttachments are not separately listed on the docket sheet, they are in fact included in the Court’s electronic files. See ECF No. 20 (“Pl.’s Mot.”). Magistrate Judge Harvey expressly listed the mo tion for partial summary judgment(which is docketed together with its attachments) among the documents he considered. See R&R at 2 n.1. Next, Schorr objects to Magistr ate Judge Harvey’s recommendatio n that the Court dismiss his APA claims for bot h lack of standing and mootness. Pl.’s Obj. at 5-15. The Court finds it unnecessary to determine w hether Magistrate Judge Harv ey was correct that Schorr lacks standing, because the Court agrees with Magistrate Judge Harveythat Schorr’s APA claims— assuming Schorr had standing to bri ng them in the first place—b ecame moot when ICE terminated his debarment shortly after the case was filed. “Th e fundamental concept of mootness is quite straightforwa rd. As applied in the context o f injunctive litigation, if there remains no conduct to be enjoine d, then normally there is no re lief that need be granted, the case or controversy has ceased, and the jurisdiction of the court ha s expired under Article III.” True the Vote, Inc. v. IRS , 831 F.3d 551, 561 (D.C. Cir. 2016), cert. denied , 137 S. Ct. 1068 (2017). That is, the plaintiff must ret ain a “continuing interest” in t he litigation. Hardaway v. D.C. Hous.
Auth. , 843 F.3d 973, 979 (D.C. Cir. 2016).4 Applying these principles, courts h ave concluded that challenge s to debarments become moot after the underlying debarm ents have expired, unless the p laintiff can make a particularized showing of lasting harm. For example, in O’Gilvie v. Corporation for National Community
Service , 802 F. Supp. 2d 77 (D.D.C. 2011), the court concluded that cl aims arising from an expired debarment were nonjustici able where the plaintiff did n ot allege that “he has applied for any government grants or contracts, ” “that he has any present p lans to do so,” or “that his expired debarment would be a fact or in determining his eligibil ity for government grants.” Id. at 82-83. By contrast, in Tri-County Contractors, Inc. v. Perez , 155 F. Supp. 3d 81 (D.D.C. 2016), a “close case” on mootness, the c ourt found a challenge to an e xpired debarment remained justiciable where the plaintiff demonstrated “that it intends t o continue to operate government contracting businesses and that the existence of a past debarme nt order poses an ongoing impediment to its ability to do so.” Id. at 91-92. Here, Schorr’s debarment ended s hortly after this case began, a nd he has offered nothing to suggest that he will suffer fu rther harm absent judicial int ervention. He asserts that the Court should order the government to e xpunge the records showing thathe was temporarily debarred. Pl.’s Obj. at 9. 3 But he has not shown any interes t in expungement sufficient t o justify maintenance of his APA claims. His theory of harm consists of the general claim that a person who is “formerly debarred” bears a “badge of legal status in th e modern business world” that is “akin to a criminal c onviction.” Pl.’s Obj. at 5, 7. He does not explain how this asserted “badge

3 The Court notes that Schorr doe s not appear to have requested expungement in his complaint. See Compl. at 13-14. Nonetheless, S chorr did mention expungement in his cross-motion and opposition to the government’s motion to dismiss. See Pl.’s Mot. at 25. Courts ordinarily consider all filings made by a pro se plaintiff like Schorr, not m erely the complaint, when deciding a motion to dismiss. See Washington v. AlliedBarton Sec. Servs., LLC , 289 F. Supp. 3d 137, 139 (D.D.C. 2018) (citing Brown v. Whole Foods Mkt. Grp., Inc. , 789 F.3d 146, 152 (D.C. Cir. 2015)).5 of legal status” has resulted or will result in any harm to him in particular. To the contrary, as Magistrate Judge Harvey observed, Schorr never attempted to eng age in any of the activities from which he was temporaril y debarred and has himself suggeste d that he does not intend to do so in the future. See R&R at 8. Because Schorr has not made a particularized showin g of lasting harm from the debarment, he no lon ger has a con tinuing interestin his APA claims challenging it (assuming he ever did), and those claims are moot. Schorr also objects to Magistrat e Judge Harvey’s conclusion tha t the voluntary-cessation exception to mootness does not apply. See Pl.’s Obj. at 11-14. Magistrate Judge Harvey reasoned that, as a threshold ma tter, the exception is unavaila ble unless the defendant ceased the objectionable conduct in response to litigation, and here ICE t erminated the debarment before any Defendant had been served. See R&R at 15. While Magistrate Judge Harvey was correct that Schorr did not properly eff ect service of process until af ter ICE terminated the debarment on September 3, 2015, see ECF No. 3, at least one Defendantmay have had actual notice o f the complaint a few days earlier on August 31, 2015, see ECF No. 4. The Court need not and does not adopt Magistrate Judge Harvey’s conclusion that Schorr fail ed to meet this threshold requirement, because his opinion offers other, independent grounds to reject Schorr’s voluntarycessation argument. “Voluntary cessation will only moota case if the re is no reaso nable expectation . . . that the alleged violation w ill recur and interim relief or events h ave completely and irrevocably eradicated the effects of the alleged violation.” Cierco v. Mnuchin , 857 F.3d 407, 414-15 (D.C. Cir. 2017) (alteration in original ) (internal quotation marks o mitted). “The defendant carries the burden of demonstrating that the re is no reasonable expectationthat the wrong will be repeated, and [t]he burden is a heavy one.” Id. at 415 (alteration in original ) (internal quotation marks6 omitted). Here, Defendants have carried that burden. ICE has terminated the debarment, and Schorr’s claim that it might be reinstated is based on pure spe culation. “[T]here must be evidence indicating that the ch allenged [policy] likely will be reenacted.” Larsen v. U.S. Navy , 525 F.3d 1, 4 (D.C. Cir. 2008) (second a lteration in original) (quoting Nat’l Black Police Ass’n v. District of Columbia , 108 F.3d 346, 349 (D.C. Cir. 1997)). Bu t there is none here. It has been almost three years since ICE te rminated the debarment, and ther e is no suggestion in the record that ICE has even considered re opening the matter during that t ime. Thus, there is simply no reasonable expectation that the debarment will recur. The term ination has also completely eliminated the cognizable effects of the debarment; all that re mains is the historical record that the debarment occurred. And as explained above, because Schorr never engaged in the activities from which he was temporaril y debarred and has suggested he nev er will, he lacks a concrete interest in expunging the historic al record. Therefore, the Co urt agrees with Magistrate Judge Harvey that the voluntary-cessation doctrine does not apply and Schorr’s APA claims are moot.
See R&R at 14-16. Finally, Schorr objects that his Bivens claim was improperly dismissed because he has alleged “egregious government misconduct”—namely, that “Defenda nts were running a debarment mill for their own benefit rather than in furtherance of any legitimate governmental purpose.” Pl.’s Obj. at 18. 4 As explained above, Schorr’s f actual allegations simply do no t support that exceptional inference. The Court thus agrees withMagistrate Judge Harvey’s determination that Schorr’s com plaint does not allege egregious conduct by the government. See R&R at 20-21.

4 Once again, this allegation appears to be absent from Schorr’s complaint. See Compl. at 12. Nonetheless, Schorr did make arelated claim in his opposition and cross-motion. See Pl.’s Mot. at 20-21.7 For the above reasons, the Court adopts Magistrate Judge Harvey ’s Report and Recommendation, except for its conclusion on standing and as otherwise noted above, overrules Schorr’s objections, and will dismiss the case in a separate or der.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: July 19, 2018