Lakin v. United States Department of Justice , 917 F. Supp. 2d 142 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
)
LOWELL THOMAS LAKIN, )
)
Plaintiff, )
)
v. ) Civ. Action No. 11-594
) (EGS)
UNITED STATES DEPARTMENT OF JUSTICE )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Lowell Thomas Lakin has sued the United States
Department of Justice (“DOJ” or defendant) alleging violations
of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 and
the Privacy Act, 5 U.S.C. § 552(a). Pending before the Court is
defendant’s motion to dismiss plaintiff’s complaint for failure
to exhaust administrative remedies. In the alternative, the DOJ
seeks summary judgment and asserts that there are no issues of
material fact in dispute. For the reasons set forth below,
defendant’s motion for summary judgment will be GRANTED.
I. BACKGROUND
Plaintiff Lowell Thomas Lakin, who is currently
incarcerated, sent a FOIA request on May 15, 2009 to the
Executive Office for United States Attorneys (EOUSA) seeking
records concerning himself. Def.’s Statement of Facts (“Def.’s
SOF”) ¶ 1. Specifically, plaintiff requested
any and all records contained within your system of
records which either pertains to me or makes any
reference to me in any way.
. . . .
This request should be construed broadly to cover any
and all records, whether generated by the United
States Attorney for the Southern District of Illinois,
or elsewhere, the Federal Bureau of Investigation,
Homeland Security, or any other federal or State
agency, whether specifically identified [by] me herein
or not.
May 15, 2009 FOIA Request, ECF No. 11-4.
On September 8, 2009, EOUSA notified plaintiff that it was
denying plaintiff’s request because plaintiff had waived his
right to request records pursuant to a February 24, 2008 plea
agreement. Def.’s SOF ¶ 6. In that plea agreement, plaintiff
stated that he “waive[d] all rights . . . to request or receive
from any Department or Agency of the United States any records
pertaining to the investigation or prosecution of this case,
including without limitations, any records that may be sought
under the [FOIA] or the Privacy Act of 1974 . . . .” Def.’s SOF
¶ 5. The EOUSA’s letter informed plaintiff that he could file
an administrative appeal with the Office of Information Policy
(OIP) and that the appeal must be received within sixty days of
EOUSA’s September 8, 2009 letter. Def.’s SOF ¶ 7.
On November 17, 2009, OIP received a letter dated November
5, 2009 in which plaintiff sought to appeal the denial of his
FOIA request. Def.’s SOF ¶ 8. On January 19, 2010, OIP
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notified plaintiff that it was closing plaintiff’s appeal as
untimely because the appeal was received ten days after the
deadline for the appeal. Def.’s SOF ¶ 9. On February 1, 2010,
plaintiff requested that the denial of his appeal be
reconsidered, and the OIP denied that request on April 8, 2010.
Def.’s SOF ¶ 10-11.
Defendant has moved to dismiss or, in the alternative, for
summary judgment, alleging that the complaint fails to state a
claim and that plaintiff has failed to exhaust his
administrative remedies. Because the motion relies on materials
outside the pleadings, the Court will construe defendant’s
motion as one for summary judgment. See Fed. R. Civ. P. 12(d).
The motion is ripe for the Court’s decision.
II. STANDARD OF REVIEW
Summary judgment may be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A genuine issue of material fact is one that would
change the outcome of the litigation. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”). In
the event of conflicting evidence on a material issue, the Court
is to construe the conflicting evidence in the light most
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favorable to the non-moving party. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual
assertions in the moving party's affidavits or declarations may
be accepted as true unless the opposing party submits his own
affidavits, declarations, or documentary evidence to the
contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). 1
In a FOIA action, the Court may award summary judgment to the
agency solely on the basis of information provided in reasonably
detailed affidavits or declarations. Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Campbell v.
Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King
v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)).
III. DISCUSSION
The DOJ seeks dismissal on the grounds that plaintiff has
failed to exhaust his administrative remedies because he failed
to timely appeal of the denial of his FOIA request. Def.’s Mot.
to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s
Br.”), ECF No. 11, at 6. Specifically, DOJ argues that
plaintiff failed to comply with 28 C.F.R. § 16.9(a), which
requires that an appeal of the denial of a FOIA request “must be
received by the Office of Information and Privacy within 60 days
of the date of the letter denying [the FOIA] request.” The
1
Because plaintiff is proceeding pro se, the Court informed
plaintiff of his obligation to respond to the statements of fact
in a so-called “Fox/Neal” order on June 5, 2012.
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regulation further states that a FOIA requestor must first
appeal a denial according to the above procedure if he intends
to seek judicial review. See id. § 16.9(c). Because
plaintiff’s appeal was received ten days late, DOJ argues, it
was untimely.
A party seeking agency records under FOIA must comply with
the procedures set forth in the regulations promulgated by that
agency. See Hidalgo v. FBI, 344 F.3d 1256, 1257 (D.C. Cir.
2003); Calhoun v. U.S. Dep't of Justice, 693 F. Supp. 2d 89, 91
(D.D.C. 2010), aff'd, No. 10-5125, 2010 WL 4340370 (D.C. Cir.
Oct. 19, 2010). When a FOIA request “is not made in accordance
with the published regulations, the FOIA claim is subject to
dismissal for failure to exhaust administrative remedies, as
‘[t]he failure to comply with an agency's FOIA regulations [for
filing a proper FOIA request] is the equivalent of a failure to
exhaust.’” Id. (citing and quoting West v. Jackson, 448 F. Supp.
2d 207, 211 (D.D.C. 2006)); see also Hidalgo, 344 F.3d at 1259(“FOIA's administrative scheme favors treating failure to
exhaust as a bar to judicial review.”). Although the exhaustion
requirement under FOIA is not jurisdictional, judicial review is
precluded under FOIA as a jurisprudential matter because “‘the
purposes of exhaustion’ and the ‘particular administrative
scheme’ support such a bar.” Hidalgo, 344 F.3d at 1259 (citing
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir.
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1990)); see also Oglesby, 920 F.2d at 61–62 (“Courts have
consistently confirmed that the FOIA requires exhaustion of this
appeals process before an individual may seek relief in the
courts.”) (citations omitted). A FOIA requestor bears the
burden of producing evidence of a proper appeal. See Schoneman
v. FBI, No. 04-2202, 2006 WL 1582253, at *11 (D.D.C. June 5,
2006) (citing Bestor v. CIA, No. 04-2049, 2005 WL 327323, at *4
(D.D.C. Sept. 1, 2005).
Here, plaintiff’s appeal was received ten days after the
sixty-day deadline had passed for the appeal of the EOUSA’s
denial of his FOIA request. Defendant argues that plaintiff’s
complaint should therefore be dismissed because he failed to
exhaust administrative remedies. In support of this argument,
defendant cites Hamilton Sec. Group, Inc. v. HUD, which held
that an administrative appeal filed one day after the regulatory
deadline did not constitute exhaustion of administrative
remedies. 106 F. Supp. 2d 23, 27-28 (D.D.C. 2000).
In plaintiff’s opposition to defendant’s motion, plaintiff
mainly argues the merits of his underlying FOIA request. 2
2
For example, plaintiff argues that his waiver in the plea
agreement is not valid because the sentencing court “rejected”
the plea agreement. Pl.’s Opp., ECF No. 13, at 2. Although
these claims are not relevant to the outcome of the case, the
Court has reviewed the docket from plaintiff’s underlying
criminal matter. While it does appear that the sentencing court
rejected an initial plea agreement, see Feb. 28, 2008 Plea
Agreement, ECF No. 125, No. 07-30068 (S.D. Ill.), a subsequent
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Plaintiff also concedes that defendant’s recitation of the facts
is “fairly accurate.” Pl.’s Opp. at 3. Plaintiff contends,
however, that the “prisoner’s mailbox rule” renders his appeal
timely. In this respect, plaintiff cites Houston v. Lack, which
held that a pro se prisoner’s notice of appeal from the denial
of his motion for habeas corpus was deemed “filed” at the moment
of delivery to prison authorities, rather than when it is
received by the district court. 487 U.S. 266, 274-276 (1988).
Plaintiff argues that his appeal to OIP should be deemed timely
filed under this rule, though plaintiff does not make any
representation regarding when he mailed his appeal. 3
Plaintiff has not cited any cases in which this Circuit has
applied the prisoner’s mailbox rule to administrative appeals
and it does not appear that the Circuit has expressly addressed
the issue. Several other courts have considered the issue and
plea agreement was entered on August 18, 2008, see Aug. 18, 2008
Plea Agreement, ECF No. 144, No. 07-30068 (S.D. Ill.). That
agreement included a FOIA waver, see id. § V.5, and was accepted
by the sentencing court on September 10, 2008, see Sept. 10,
2008 Tr., ECF No. 156, No. 07-30068 (S.D. Ill.).
3
Plaintiff further contends that summary judgment should be
denied because “the United States has . . . not asserted that
Plaintiff did not deliver his appeal to the Office of
Information Policy to the institutional mailbox on or before the
7th of November, 2009.” Pl.’s Sur-reply, ECF No. 15, at 2. In
this respect, plaintiff misunderstands the burden of proof in
this case, which requires plaintiff to produce evidence of a
proper appeal. See Schoneman v. FBI, 04 Civ. 2202, 2006 WL
1582253, at *11 (D.D.C. June 5, 2006) (citing Bestor v. CIA, 04
Civ. 2049, 2005 WL 327323, at *4 (D.D.C. Sept. 1, 2005).
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have rejected the application of the prisoner’s mailbox rule to
administrative proceedings when precluded by a specific
statutory or regulatory regime. See, e.g., Smith v. Conner, 250
F.3d 277, 279 (5th Cir. 2001) (declining to apply prisoner’s
mailbox rule to untimely immigration appeal where INS regulation
specifically provided that the date of filing is the date the
appeal is received); Nigro v. Sullivan, 40 F.3d 990, 994 (9th
Cir. 1994) (declining to apply prisoner’s mailbox rule to
untimely appeal where administrative regulations specifically
defined the word “filed”); contra Longenette v. Krusing, 322
F.3d 758, 765 (3d Cir. 2003) (distinguishing Smith and Nigro and
applying prisoner’s mailbox rule to statute that did not
expressly define “filed” as requiring actual receipt).
Here, the applicable regulation specifically states that an
appeal of a FOIA request “must be received by the Office of
Information and Privacy within 60 days of the date of the letter
denying [the FOIA] request.” 28 C.F.R. § 16.9(a) (emphasis
added). In Houston, the relevant statute provided that “no
appeal shall bring any judgment . . . before a court of appeals
for review unless notice of appeal is filed, within thirty days
of entry of such judgment.” 28 U.S.C. § 2107. The statute in
Houston did not define whether “filed” meant actual receipt by
the court. Because of this ambiguity, the Supreme Court created
the prisoner’s mailbox rule. See Longenette, 322 F.3d at 765.
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The Court finds that this case is similar to Smith and
Nigro, both of which involved statutory or regulatory schemes
that required receipt by a specific date, and is distinguishable
from Houston. The FOIA appeal regulation in this case
specifically required that OIP receive the appeal within sixty
days of the date of the September 8, 2009 letter. Because the
appeal was not received until November 17, 2009, plaintiff did
not comply with the regulation. Accordingly, the Court finds
plaintiff failed to exhaust administrative remedies and his
claim is not properly before this Court.
IV. CONCLUSION
For the reasons stated above, the Court finds that
plaintiff has failed to exhaust his administrative remedies.
Accordingly, defendant’s motion for summary judgment is GRANTED
and plaintiff’s complaint is DISMISSED. An appropriate Order
accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
January 20, 2013
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