Hart v. US Department of the Treasury et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. 	Case No. 14-cv-421-LM
United States Department
of the Treasury et al.1
REPORT AND RECOMMENDATION
Before the court is a motion (doc. no. 26), filed by pro se
prisoner Kenneth Hannibal Hart, requesting that this court order
the U.S. Treasury Secretary and Comptroller to respond to
letters Hart alleges he sent to them, asking each of them to
provide Hart with all public funds appropriated to him under
law, along with an accounting of such funds. 	The district judge
has referred the motion to this magistrate judge for a
recommendation as to disposition.
Discussion
I. 	Standard
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
1The sole defendant remaining in this lawsuit is an unnamed
agency or organization of the state or federal government,
identified as “John Doe #3,” that plaintiff asserts is
responsible for making errors in his criminal record. 	This
court previously dismissed without prejudice Hart’s Federal Tort
Claims Act claims relating to government checks issued by the
U.S. Department of the Treasury and the Office of the
Comptroller of the Currency, and dropped those agencies, the
Treasury Secretary, and the Comptroller of the Currency as
defendants.
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likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.” 	Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 	The likelihood
of success on the merits and irreparable harm in the absence of
an injunction are the factors that weigh most heavily in the
analysis. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13,
18 (1st Cir. 2006) (“if the moving party cannot demonstrate that
he is likely to succeed in his quest,” preliminary injunctive
relief is properly denied without further analysis); Voice of
the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26,
32 (1st Cir. 2011) (“perhaps the single most important
prerequisite for the issuance of a preliminary injunction is a
demonstration that if it is not granted the applicant is likely
to suffer irreparable harm before a decision on the merits can
be rendered.” (internal quotation marks, alterations, and
citation omitted)). 	The burden of proof is on the movant. 	See
Esso Std. Oil Co., 445 F.3d at 18.
II. 	Statement and Account Clause
Hart asserts that Article I, Section 9, Clause 7 of the
U.S. Constitution imposes a duty upon the Secretary and
Comptroller to pay him public funds owed to him, and to give him
an accounting of such funds. 	The cited part of Clause 7, known
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as the “Statement and Account Clause,” provides as follows:
No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of
all public Money shall be published from time to time.
U.S. Const. art. I, § 9, cl. 7 (emphasis added).
Hart alleges that there is a “controversy” as to whether he
is owed any public funds, and that if the agencies simply
answered his letters he could find out if the funds existed.
Hart has not alleged facts showing that the federal government
owes him any funds. 	Nothing in the Statement and Account Clause
imposes any duty upon the federal government to report at the
level of detail demanded by Hart, regarding the existence, or
nonexistence, of appropriations of funds for the benefit of
Hart. 	Accordingly, Hart has not shown a likelihood of success
on the merits of any claim under the Statement and Account
Clause.
III. Freedom of Information Act
The Freedom of Information Act (“FOIA”) requires federal
agencies to respond to requests for records which reasonably
describe the records at issue, and which comply with the
agency’s FOIA rules, regarding procedures to be followed in
submitting a request for records under FOIA. 	See 5 U.S.C.
§ 552(a)(3)(A), (6)(A). 	The letters attached to Hart’s motion,
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which do not refer to FOIA, and demand a payment of funds, are
not the type of letters that would appear to trigger the
Treasury Department’s or Comptroller’s duties to respond under
FOIA. 	See generally id. § 552(a)(3)(A); 31 C.F.R. Part 1
(Treasury Department FOIA procedures). 	Accordingly, Hart has
not shown a likelihood of success on the merits of a FOIA claim,
to the extent any such claim is intended to be asserted by Hart.
IV. 	Irreparable Harm
Hart has not demonstrated that he is likely to suffer any
irreparable harm in the absence of an injunction. 	Hart, who is
presently incarcerated, is not at risk of imminent harm if
public funds that might be owed to him are not paid immediately.
Cf. Zipkin v. Heckler, 790 F.2d 16, 19 & n.3 (2d Cir. 1986)
(federal law, 42 U.S.C. § 402(x)(1), rationally reflects policy
that prisoners’ Social Security retirement or disability
payments be suspended since “their substantial economic needs
are already met”). 	Hart has also not shown that without an
injunction, he lacks a remedy for the agency’s failure to answer
his inquiries. 	Hart may resubmit a request for records to the
agencies employing the FOIA procedures established in pertinent
agency rules, such as 31 C.F.R. Part 1. 	FOIA imposes upon those
agencies a fixed time period in which they are required to
respond to FOIA requests. 	See 5 U.S.C. § 552(a)(6)(A)(ii);
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Pinson v. U.S. Dep’t of Justice, No. 12-1872 (RC), 2015 U.S.
Dist. LEXIS 152170, at *14, 2015 WL 7008124, at *5 (D.D.C. Nov.
10, 2015). 	Accordingly, plaintiff has failed to show that this
court should issue the requested injunction.
Conclusion
For the foregoing reasons, the magistrate judge recommends
that the district judge deny the motion (doc. no. 26) seeking to
compel the U.S. Treasury Secretary and the Comptroller to pay
public funds to plaintiff and to provide him with an accounting
of any such funds. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	Failure to file
objections within the specified time waives the right to appeal
the district court’s order. 	See United States v. De Jesús-
Viera, 655 F.3d 52, 57 (1st Cir. 2011); Sch. Union No. 37 v.
United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010).
/s/ Andrea K. Johnstone
Andrea K. Johnstone
United States Magistrate Judge
November 20, 2015
cc: 	Kenneth Hannibal Hart, pro se
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