Kretchmar v. Federal Bureau of Investigation ( 2014 )


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  •                          UNITED STATES DISTR ICT COURT
    FOR THE DISTR ICT OF COLUMBIA
    GARY L. KRETCHMAR,                    )
    )
    Plaintiff,                )
    )
    v.                              )     Civil Action No. 12-1551 (KBJ)
    )
    FEDERAL BUREAU OF                     )
    INVESTIGATION, et al.,                )
    )
    Defendants.               )
    MEMORANDUM OPINION
    Plaintiff Gary Kretchmar (“Plaintiff” or “Kretchmar”) is serving a life
    sentence following his 1988 conviction in Penns ylvania state court for first-
    degree murder. (Compl., ECF No. 1, ¶ 17.) At his trial, a Federal Bureau of
    Investigation (“FBI”) Special Agent testified about a forensic technique known
    as “Comparative Bullet Lead Anal ysis” (“CBLA”) that the FBI laboratory
    conducted on certain evidence that investigators recovered from the murder
    scene. (Id. ¶¶ 15-16.) Shortl y after Kretchmar’s conviction, there was
    widespread public criticism of the scientific work of thirteen FBI laboratory
    examiners, and as a result, the FBI issued a memorandum recommending that the
    forensic work of these particular examiners be reviewed under certain specified
    circumstances. (Id. ¶¶ 20-21.) That FBI memorandum forms the basis of
    Kretchmar’s lawsuit, which he filed pro se in September 2012, against the FBI,
    the FBI Laboratory Division, and the Director of the FBI Laboratory Division
    (collectivel y, “Defendants”). Kretchmar’s complaint here alleges that
    Defendants deprived him of his Fifth Amendment due process rights (Count I),
    and violated the Administrative Procedure Act, 
    5 U.S.C. § 702
     (“APA”) (Count
    II), when the agency proceeded to review the forensic testimony that its agent
    had provided during Kretchmar’s murder trial—review that was done as part of a
    broader program to ensure that witnesses had not provided misleading CBLA-
    related testimon y (the “Bullet Lead Transcript Review”)—but, according to
    Kretchmar, did not follow the FBI memorandum’s specific guidance in
    conducting that review. (Compl. ¶¶ 22-26, 36, 46.) 1
    Before this Court at present is Defendants’ motion to dismiss or, in the
    alternative, motion for summary judgment, which argues that Kretchmar cannot
    maintain a claim under either the Due Process Clause or the APA based on
    Defendants’ alleged non-adherence to the FBI memorandum’s recommendations.
    (See Mem. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J.
    (“Defs.’ Mot.”), ECF No. 16; Suppl. Br. in Support of Defs.’ Mot. to Dismiss or
    in the Alternative, for Summ. J. on Counts I & II, ECF No. 39 (“Defs.’ Suppl.
    Br.”).) Because Kretchmar cannot establish that Defendants deprived him of
    due process, nor can he claim an y injury under the APA, the Court will GRANT
    Defendants’ motion and DISMISS Kretchmar’s case in its entiret y. A separate
    order consistent with this opinion will follow.
    1
    Kretchmar also initially asserted a claim under the Privacy Act, 5 U.S.C. § 552a, as Count III of the
    complaint, but he has conceded that this claim should be dismissed. (See Pl.’s Mot. in Opp’n to Def.’s
    Mot. to Dismiss or in the Alternative for Summ. J., ECF No. 23 (“Pl.’s Opp’n”), at 13.)
    2
    I. FACTUAL BACKGROUND
    In 1998, Kretchmar stood trial for first degree murder in Pennsylvania
    state court. (See Compl. ¶¶ 13, 15.) The prosecutor in Kretchmar’s case asked
    the FBI to conduct forensic anal ysis, including CBLA, on certain pieces of
    crime scene evidence. (Id. ¶ 14.) FBI Special Agent John Riley, who was a
    member of the FBI’s crime lab, testified at trial about the results of the CBLA.
    (Id. ¶¶ 15-16.) See also Kretchmar v. Penn., 
    971 A.2d 1249
    , 1252, 1256-57 (Pa.
    2009) (recounting Special Agent Riley’s CBLA testimony). The jury convicted
    Kretchmar, and the Penns ylvania court sentenced him to a term of life
    imprisonment. (Compl. ¶ 17.)
    On May 17, 1999, the Civil Discovery Review Unit (“CDRU”) of the
    FBI’s Office of General Counsel (“OIG”) issued a memorandum naming thirteen
    lab examiners whose scientific work OIG had criticized in a report dated April
    15, 1997. (Pl.’s Opp’n, App. A (“CDRU Memo”), ECF No. 23, at 1-2.) 2                                          The
    CDRU Memo stated that “[t]he allegations and criticisms concerning these
    individuals var[ y] greatl y and in some instances [are] case specific.” (Id. at 1.)
    The CDRU Memo directed that “this document” be placed “in every
    investigative file containing forensic work performed by any of [the named
    examiners].” (Id.) In addition, the memorandum stated that “[i]f the forensic
    work contained in this file is used in any way in the future, both the OIG’s
    findings and the forensic anal ysis of the [named] examiners should be reviewed”
    and “legal advice should be obtained as to the FBI’s disclosure obligations.”
    2
    Sp ec ial Ag e n t J o h n Ri l e y wa s no t o ne o f t h e la b e xa mi n er s wh o wa s n a med i n t he C D RU
    Me mo .
    3
    (Id.) The FBI placed a cop y of the CDRU Memo at the top of Kretchmar’s FBI
    Laboratory file. (Pl.’s Opp’n at 2.) 3
    Five years after the CDRU Memo issued, “a study published by the
    National Research Council of the National Academies (‘NAS’) assessed the
    reliabilit y of the science of CBLA and its usefulness as a forensic evidentiary
    tool and [ ] raise[d] questions as to the usefulness of CBLA evidence.”
    Kretchmar v. FBI, 
    882 F. Supp. 2d 52
    , 54-55 (D.D.C. 2012) (alteration in the
    original) (internal quotation marks and citation omitted). Thereafter, in 2007
    and 2008, Kretchmar submitted two separate FOIA requests to the FBI, the first
    of which sought “release of [Kretchmar’s] bullet-lead case file”; and the second
    of which requested “release of an April 15, 1997, Office of the Inspector
    General Report” that criticized the forensic work performed by certain lab
    examiners. 
    Id. at 55
    .
    Then, in 2009, as part of a broader CBLA review program that the FBI
    conducted in conjunction with the Innocence Project, the FBI and the
    Department of Justice reviewed the transcript of the CBLA-related testimony
    that Agent Riley had provided in Kretchmar’s state murder case. (See Compl.
    ¶¶ 22-25.) See also FBI Press Release, FBI Laboratory to Increase Outreach in
    Bullet Lead Cases (Nov. 17, 2007) (describing plan to review transcripts of
    proceedings “to determine whether the [CBLA] testimony was consistent with
    the findings of the FBI Laboratory in 2005, particularl y concerning the inabilit y
    3
    I t i s no t cl ear wh y t h e FB I p l aced t he me mo r a n d u m i n Kr et c h mar ’ s f il e . ( S ee C D RU Me mo
    at 1 -2 .) B ec a us e t h e Co ur t mu s t co ns tr ue al l fa c ts i n t he li g h t mo st f a vo r ab le to Kr et c h mar
    in d ec id i n g t hi s mo t io n t o d is mi s s, i t wi ll as s u m e t ha t a t l ea st o ne o f t he na med e x a m i n er s
    wo r ked o n t he CB L A - r e l ated e val u at io n o f t he e vid e nce fo r Kr et c h mar ’ s tr i al.
    4
    of scientists and manufacturers to definitivel y evaluate the significance of an
    association between bullets . . . in the course of a bullet lead examination.”). 4
    On Jul y 17, 2009, at the conclusion of Kretchmar’s transcript review, the
    director of the FBI Laboratory sent a letter to the office that had prosecuted
    Kretchmar (the Buck’s Count y Penns ylvania District Attorney’s Office)
    informing it that the FBI had completed its review of the transcript from
    Kretchmar’s trial. (Compl. ¶¶ 27-28; see also Ex. D. to Decl. of David M.
    Hard y (“Hard y Decl.”), ECF No. 16-2 (“Transcript Review Letter”).) The letter
    explained that the “goal of the review was to determine if there was a
    suggestion b y the examiner that a bullet fragment or shot pellet was linked to a
    single box of ammunition without clarification that there would be a large
    number of other bullets or boxes of bullets that could also match those
    fragments or shot pellet” because any such suggestion was not supported by
    science and would be “potentiall y misleading.” (Transcript Review Letter at 1.)
    The letter explained that the testimony in Kretchmar’s case had been reviewed
    in light of that goal, and stated that “it is the opinion of the FBI Laboratory that
    the examiner properly testified to the results of [the CBLA] examination.”
    (Id.) 5
    Thereafter, in response to Kretchmar’s outstanding FOIA requests, the
    FBI released to him (1) a cop y of the 1999 CDRU Memo, (2) a copy of the 2009
    Transcript Review Letter that the FBI Laboratory had sent to the Penns ylvania
    4
    Available at http://www.fbi.gov/news/pressrel/press-releases/fbi-laboratory-to-increase-outreach-in-
    bullet-lead-cases
    5
    W he n t he st ate s e nt e nci n g co ur t d e nied Kr etc h m ar ’ s p o s t -co n v ict io n mo t io n i n 2 0 0 9 , i t a lso
    co n cl ud ed , b a sed o n a fa ct ua ll y d e velo p ed r e co r d , “t ha t t h e CB L A t es ti mo n y o f f er ed i n
    [ P lai n ti f f ’ s] tr i al wa s no t mi sr ep r e se nt at i ve. ” K re tch ma r, 9 7 1 A.2 d at 1 2 5 6 .
    5
    prosecutor, and (3) copies of various working papers associated with the FBI’s
    transcript review. (Pl.’s Opp’n at 4-5.) See also Kretchmar 882 F. Supp. 2d at
    55 (explaining that the working papers were materials that three FBI reviewers
    had used to evaluate the trial testimony in Kretchmar’s case, including “copies
    of the transcript from plaintiff’s state criminal trial”). Upon receiving and
    reviewing these materials, Kretchmar requested that the FBI amend the
    Transcript Review Letter and the related working papers because, in his view,
    those documents were “not accurate or complete, because the FBI Laboratory
    Bullet Lead Transcript Review agency action did not include a mandatory
    review of the April 15, 1997 OIG Report findings and/or the forensic anal ysis of
    the Laboratory Examiner(s) who anal yzed the evidence contained in” his file.
    (Ex. A. to Hard y Decl., ECF No. 16-2, at 2-3 (emphasis in original).) The FBI
    denied Kretchmar’s request (Compl. ¶¶ 52-53), and this lawsuit followed.
    As noted above, Kretchmar alleges in the complaint that Defendants
    violated the Due Process Clause and the APA by failing to (1) evaluate the
    impact of the 1997 OIG findings as discussed in the CDRU Memo on the
    forensic testimon y presented in his case, or (2) “review the forensic anal ysis
    contained in [plaintiff’s] Laboratory file[.]” (Pl.’s Opp’n at 18-20.)
    Significantl y, Kretchmar maintains that these actions were required pursuant to
    “the May 17, 1999 CDRU intra-agency memorandum.” (Compl. ¶ 34.) In their
    motion to dismiss, or in the alternative, motion for summary judgment,
    Defendants maintain that Kretchmar’s due process claim fails to state a claim
    upon which relief can be granted because he has failed to identify any life,
    6
    libert y, or propert y interest that Kretchmar was deprived of when the agency did
    not review the forensic anal ysis in his file and the 1997 OIG findings addressed
    in the CDRU Memo, nor does he state any facts to support his claim that
    Defendants had an y obligation to conduct such a review. (Defs.’ Suppl. Br. at
    7-8.) Defendants further argue that Kretchmar’s APA claim fails because he has
    not identified an y injury-in-fact that he suffered as a result of Defendants’
    actions. (Id. at 9-10.) In opposition to the motion, Kretchmar argues that he
    has “a right, or right of expectation” under the Due Process Clause that
    Defendants would follow the guidance in the CDRU Memo when reviewing the
    transcript and evidence from his trial, and that he “has identified the loss of a
    libert y interest due to a procedurall y deficient [Bullet Lead Transcript Review]
    administrative decision.” (Pl.’s Suppl. Br. in Opp’n to Ds.’ Mot. to Dismiss or,
    In The Alternative, for Summ. J. on Counts One & Two, ECF No. 42 (“Pl.’s
    Suppl. Br.”), at 14, 15.) Kretchmar also maintains that “the APA is the federal
    statute designed to provide review, and potentiall y relief, for the claims sub
    judice.” (Id. at 15.)
    II. MOTIONS TO DISMISS UNDER RULE 12(B)(6)
    Federal Rule of Civil Procedure 12(b)(6) provides that a part y may move
    to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which
    relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests
    the legal sufficiency of a complaint. Browning v. Clinton, 
    292 F.3d 235
    , 242
    (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain
    sufficient factual matter” to “state a claim to relief that is plausible on its face.”
    7
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (internal quotation marks and
    citation omitted). “Although ‘detailed factual allegations’ are not necessary to
    withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a
    plaintiff must furnish ‘more than labels and conclusions’ or ‘a formulaic
    recitation of the elements of a cause of action.’” Busby v. Capital One, N.A.,
    
    932 F. Supp. 2d 114
    , 133 (D.D.C. 2013) (quoting Bell Atl. Corp. v. Twombly,
    
    550 U.S. 544
    , 555 (2007)). In other words, the plaintiff must provide “more
    than an unadorned, the-defendant-unlawfull y-harmed-me accusation.” Iqbal,
    
    556 U.S. at 678
     (citation omitted). “[M]ere conclusory statements” of
    misconduct are not enough to make out a cause of action against a defendant,
    
    id.,
     and this is so even when the plaintiff is proceeding pro se, see Moore v.
    Motz, 
    437 F. Supp. 2d 88
    , 90 (D.D.C. 2006). That is, even though a court must
    construe liberall y the pleadings of pro se parties, “[t]his benefit is not . . . a license
    to ignore the Federal Rules of Civil Procedure.” Sturdza v. U.A.E., 
    658 F. Supp. 2d 135
    , 137 (D.D.C. 2009) (citation omitted).
    In deciding a Rule 12(b)(6) motion to dismiss, the Court must “accept the
    plaintiff’s factual allegations as true and construe the complaint liberall y,
    grant[ing] plaintiff[ ] the benefit of all inferences that can be derived from the
    facts alleged[.]” Browning, 
    292 F.3d at 242
     (alterations in original) (internal
    quotation marks and citation omitted). Although the court must accept as true
    the facts in the complaint, it need not accept inferences a plaintiff draws if the
    facts set out in the complaint do not support those inferences. Hettinga v.
    United States, 
    677 F.3d 471
    , 476 (D.C. Cir. 2012). If the alleged and liberall y
    8
    construed facts fail to establish that a plaintiff has stated a claim upon which
    relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am.
    Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs., 
    922 F. Supp. 2d 56
    , 61 (D.D.C. 2013).
    Additionall y, when deciding a Rule 12(b)(6) motion, a court may not
    consider matters “outside the pleadings” without converting the motion to one
    for summary judgment. Fed. R. Civ. P. 12(d). However, a court may consider,
    without triggering the conversion rule, “the facts alleged in the complaint,
    documents attached as exhibits or incorporated by reference in the
    complaint . . . or documents upon which the plaintiff’s complaint necessaril y
    relies even if the document is produced not by the plaintiff in the complaint but
    b y the defendant in a motion to dismiss.” Hinton v. Corrs. Corp. of Am., 
    624 F. Supp. 2d 45
    , 46 (D.D.C. 2009) (citations and internal quotation marks omitted);
    accord EEOC v. St. Francis Xavier Parochial Sch., 
    117 F.3d 621
    , 624 (D.C. Cir.
    1997). In addition, without triggering the conversion rule, a court may consider
    “matters of which . . . judicial notice” may be taken, St. Francis Xavier
    Parochial Sch., 
    117 F.3d at 624
    , such as an agency decision contained in the
    administrative record. See Dist. Hosp. Partners, L.P. v. Sebelius, No.
    11cv0116, 2013 W L 5273929, at *12 n.14 (D.D.C. Sept. 19, 2013) (citation
    omitted); see also Howard v. Gutierrez, 
    474 F. Supp. 2d 41
    , 48 (D.D.C. 2007)
    (“Indeed, it is a well-settled principle that the decision of another court or
    agency, including the decision of an administrative law judge, is a proper
    subject of judicial notice.” (citation omitted)).
    9
    III. DISCUSSION
    Kretchmar’s legal argument is difficult to follow, but distilled to its core,
    Kretchmar’s claim is that Defendants should have reviewed the underl ying
    forensic evidence that was submitted in his trial, as the CDRU Memo
    purportedl y directed them to do, when they conducted the transcript review in
    his case. Kretchmar asserts that Defendants “used” the CBLA forensic work
    that was the subject of the trial testimony when they reviewed the transcript of
    the CBLA-related testimon y from his trial, and he maintains that by the CDRU
    Memo’s direction, Defendants should have proceeded to reanalyze the
    underl ying forensic work, such that Defendants’ failure to do so violated his
    Fifth Amendment right to due process. (Pl.’s Suppl. Br. at 15-16.) Kretchmar
    further argues that the Transcript Review Letter was a final agency action, and
    that Defendants’ failure to do anything more than review the transcript of his
    trial proceedings renders an y findings in that letter arbitrary and capricious
    within the meaning of the APA. (Id.)
    As explained below, this Court concludes that Kretchmar’s Fifth
    Amendment claim fails in the first instance because the CDRU Memo does not
    vest Kretchmar with a substantive libert y interest that is entitled to protection
    under the Due Process Clause. Furthermore, even if Kretchmar has some
    enforceable libert y interest related to the CDRU Memo, Defendants did not
    deprive Kretchmar of an y process to which he was due given that, even under
    the most liberal construction of the facts, Defendants did not “use” the bullet-
    lead forensic information in Kretchmar’s case file when they conducted the
    10
    transcript review. Kretchmar’s APA claim fails as well because Kretchmar has
    not alleged any injury under the APA and thus lacks standing to bring such a
    claim.
    A.    Kretchmar’s Due Process Claim
    The Due Process Clause is triggered when the government deprives an
    individual of life, libert y, or propert y. Ky. Dep’t of Corr. v. Thompson, 
    490 U.S. 454
    , 459-60 (1989) (citation and internal quotation marks omitted). In
    order to state a claim for violation of the Fifth Amendment’s Due Process
    Clause, a plaintiff must allege that the government has deprived him of at least
    one of the foregoing interests without due process of law. See Budik v. U.S.,
    
    949 F. Supp. 2d 14
    , 25 (D.D.C. 2013), aff’d Nos. 13-5122, 13-5123, 
    2013 WL 6222903
     (D.C. Cir. Nov. 19, 2013). “When [as here] neither life nor propert y is
    involved, courts—speaking in a sort of shorthand—talk of the need to find a
    ‘libert y interest’ before considering what process is due under the Fifth
    Amendment (or the Fourteenth Amendment).” Franklin v. D.C., 
    163 F.3d 625
    ,
    631 (D.C. Cir. 1998) (citations omitted). And a libert y interest “may arise from
    two sources—the Due Process Clause itself and the laws of the States.” Ky.
    Dep’t of Corr., 
    490 U.S. at 459-60
     (citation and internal quotation marks
    omitted).
    Protected libert y interests “are not unlimited; the interest must rise to
    more than an abstract need or desire, and must be based on more than a
    unilateral hope.” 
    Id. at 460
     (internal quotation marks and citation omitted). If
    a libert y interest is found, due process requires minimall y that the target of the
    11
    deprivation receive notice and the opportunit y to be heard. See UDC Chairs
    Chapter, Am. Ass’n of Univ. Professors v. Bd. of Trs. of Univ. of D.C., 
    56 F.3d 1469
    , 1472 (D.C. Cir. 1995). However, it is “[o]nl y after finding the
    deprivation of a protected interest does the Court look to see if the
    government’s procedures comport with due process.” Budik, 949 F. Supp. 2d at
    25 (internal quotation marks and alterations omitted) (quoting Gen. Elec. Co. v.
    Jackson, 
    610 F.3d 110
    , 117 (D.C. Cir. 2010)).
    Kretchmar’s theme throughout his opposition to Defendant’s motion to
    dismiss is that he “was a part y to the state court criminal action” and has an
    “interest in a fair and procedurall y adequate [transcript review process.]” (Pl.’s
    Opp’n at 23.) He alleges that the due process “violation occurred when” the
    FBI “failed to act pursuant to the preexisting CDRU affirmative obligation or
    dut y for a future condition that was imposed upon all FBI employees who should
    use the forensic work contained in [his] FBI Laboratory file [ ] in an y way in
    the future.” (Id. at 9 (emphasis omitted) (citing Complaint ¶¶ 19-21).) In other
    words, Kretchmar maintains that he has a constitutionall y-protected libert y
    interest in having the agency reviewers follow his interpretation of the CDRU
    Memo’s guidance in connection with the consideration of the forensic testimon y
    presented in his case, presumabl y in order to preserve his abilit y to attack his
    conviction in collateral proceedings. (Pl.’s Supp. Br. at 14-15.)
    Kretchmar correctl y maintains that it is proper to bring this t ype of claim
    under the Due Process Clause, rather than as a petition for a writ of habeas
    corpus, because a decision in his favor will not “‘necessaril y impl y’ the
    12
    invalidit y of his conviction.” Skinner v. Switzer, 
    131 S. Ct. 1289
    , 1298 (2011)
    (quoting Heck v. Humphrey, 
    512 U.S. 447
    , 487 (1994)). In this regard, the
    Court agrees with Kretchmar and rejects Defendants’ contention that he is
    required to bring his claim in the context of a habeas proceeding. (See Def.’s
    Suppl. Br. at 7 n.1.) Even so, Kretchmar’s due process claim fails.
    It is well settled that “the mere fact that the government has established
    certain procedures does not mean that the procedures thereby become
    substantive libert y interests entitled to federal constitutional protection under
    the Due Process Clause.” Brandon v. D.C. Bd. of Parole, 
    823 F.2d 644
    , 648
    (D.C. Cir. 1987). In Brandon, an inmate brought suit alleging that he had a
    protected libert y interest in having the Parole Board adhere to its own
    procedures, and that the Board deprived him of due process when it delayed his
    reparole hearing in contravention of these procedures. 
    Id. at 646
    . The D.C.
    Circuit affirmed the trial court’s grant of summary judgment in favor of the
    Board, finding that “[a]ppellant’s claim that he has a constitutionall y protected
    libert y interest in a reparole hearing and thus a due process right to have the
    Board adhere to its regulations lacks support in law or logic; indeed, it is
    anal yticall y indefensible.” 
    Id.
     (internal quotation marks and citation omitted).
    Kretchmar’s argument is even weaker than that of the plaintiff in Brandon
    because Kretchmar cannot even allege that Defendants have violated any
    mandatory agency regulation. Instead, as the basis for his due process claim, he
    relies on an intra-agency memorandum, which advises what the agency “should”
    do before using the forensic work in a criminal defendant’s case file. (Pl.’s
    13
    Suppl. Br. at 12; see also id. at 14 (referencing the 1999 CDRU Memo).)
    Kretchmar also points to the FBI’s Press Release of November 17, 2007, which
    states that “some cases may require closer examination of the scientific findings
    and testimon y b y FBI experts” (id. at 17), but Kretchmar himself acknowledges
    that the release is neither “a working law document [n]or a binding norm.” (Id.
    at 18.) Under Brandon, neither the intra-agency memorandum not the agency’s
    statements in a press release establish a substantive libert y interest that would
    entitle Kretchmar to due process protection. See Brandon, 
    823 F.2d at 648
    .
    Even assuming that Kretchmar has some substantive libert y interest in
    having Defendants follow the review procedures that the CDRU Memo suggests,
    Kretchmar has pleaded no facts showing that Defendants actuall y deviated from
    those procedures. First of all, there is no dispute that the transcript review that
    Kretchmar received was undertaken in order “to determine if there was a
    suggestion b y the examiner that a bullet fragment or shot pellet was linked to a
    single box of ammunition without clarification.” (Transcript Review Letter at
    1.) This stated goal does not reference the CDRU Memo, and there is neither
    allegation nor evidence that the review of Kretchmar’s trial testimony was
    undertaken pursuant to, or as a result of, that memorandum. Regardless, the
    CDRU Memo directs that, “[i]f the forensic work contained in this file is used in
    any way in the future, both the OIG’s findings and the forensic anal ysis of the
    examiners should be reviewed.” (CDRU Memo at 1 (emphasis added).)
    Kretchmar argues that “the forensic analysis in plaintiff’s Laboratory file was
    used” when FBI emplo yees reviewed Special Agent Riley’s CBLA testimony
    14
    (Pl.’s Suppl. Br. at 14), but this Court finds that a re-reading of the trial
    transcript to ensure that the testimony that was given was not misleading—
    without something more—does not constitute “use” of the forensic anal ysis that
    would trigger the review the CDRU Memo suggests. Kretchmar has not alleged,
    and the record does not establish, that the CBLA-related forensic information
    from Kretchmar’s trial was subsequentl y used in later proceedings, such as if
    the state sought to admit that forensic anal ysis on retrial or on collateral review;
    therefore, even b y its own terms, the CDRU Memo’s suggested procedures were
    not transgressed here.
    In sum, because there is no basis in law or fact for Kretchmar’s due
    process claim, the complaint fails to state a due process claim upon which relief
    can be granted. Accordingl y, that claim must be dismissed.
    B.     Kretchmar’s APA Claim
    The APA “permits an y person adversel y affected or aggrieved by agency
    action to obtain judicial review of the lawfulness of that action.” Douglas v.
    Indep. Living Ctr. of So. Cal. Inc., 
    132 S. Ct. 1204
    , 1210 (2012) (citing 
    5 U.S.C. § 702
    ). “To allege a cognizable procedural harm, plaintiffs must identify an
    injury that follows the violation of a procedural right, which was afforded to
    them b y statute and designed to protect their threatened concrete interests.” St.
    Croix Chippewa Indians of Wis. v. Salazar, 384 F. App’x. 7 (D.C. Cir. 2010)
    (per curiam) (citing Ctr. for Law & Educ. v. Dep’t. of Educ., 
    396 F.3d 1152
    ,
    1157 (D.C. Cir. 2005)). Here, Kretchmar rests his APA claim on the contention
    that the Transcript Review Letter is a reviewable final agency action and that
    15
    the FBI Lab Director “acted in an arbitrary and capricious manner [when issuing
    the Transcript Review Letter], because he knew that the [Bullet Lead Transcript
    Review] record did not include the mandatory review of the forensic anal ysis
    contained in [Kretchmar’s] file and/or a review of the 1997 OIG Findings.”
    (Compl. ¶ 46.) But Kretchmar has not established that he was aggrieved as a
    result of the agency’s issuance of the Transcript Review Letter, not onl y
    because he has failed to establish the violation of a protected procedural right,
    as explained above, but also because he has not identified any actual injury
    arising from that correspondence.
    Stated simpl y, although Kretchmar maintains that the Transcript Review
    Letter was inaccurate, he has not alleged any injury that he has suffered as a
    result of that alleged inaccuracy. Therefore, even if it could be said that
    Kretchmar had a protected procedural right to have the forensic evidence in his
    file reviewed, or reviewed in particular manner, “deprivation of a procedural
    right without some concrete interest that is affected by the deprivation . . . is
    insufficient to create Article III standing.” Summers v. Earth Island Inst., 
    555 U.S. 488
    , 496 (2009); see also Wilderness Soc’y v. Griles, 
    824 F.2d 4
    , 11 (D.C.
    Cir. 1987) (in addressing legal standing, noting that “the Supreme Court has
    interpreted both § 702 [of the APA] and the Constitution as requiring plaintiffs
    to show that they are personall y injured by the challenged action and that their
    injury is caused b y that action” (citing cases)).
    Significantl y, a “defect of standing is a defect in subject matter
    jurisdiction.” Haase v. Sessions, 
    835 F.2d 902
    , 906 (D.C. Cir. 1987). Thus,
    16
    this Court must grant Defendants’ motion to dismiss the APA claim under Rule
    12(b)(1), without reaching Defendants’ other equall y plausible argument that the
    letter constituted discretionary action that is not subject to judicial review.
    (Defs.’ Suppl. Brief at 10-12.) See Fed. R. Civ. P. 12(h)(3) (requiring dismissal
    “any time” jurisdiction over the subject matter is found wanting); Firestone Tire
    & Rubber Co. v. Risjord, 
    449 U.S. 368
    , 379 (1981) (“A court lacks discretion to
    consider the merits of a [claim] over which it is without jurisdiction[.]”).
    IV. CONCLUSION
    For the foregoing reasons, Defendants’ motion to dismiss Counts I and II
    of the complaint is GRANTED. Because Kretchmar has already agreed to the
    dismissal of count III, the complaint is dismissed in its entirety, as set forth in
    the order that accompanies this opinion.
    Date: March 27, 2014                   Ketanji Brown Jackson
    KETANJI BROWN JACKSON
    United States District Judge
    17