Strunk v. U.S. Department of State ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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CHRISTOPHER EARL STRUNK, )
)
Plaintiff, )
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v. ) Civil Action No. 08-2234 (RJL)
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UNITED STATES DEPARTMENT )
OF STATE, et al., )
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Defendants. )
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MEMORANDUM OPINION
Plaintiff brings this action under the Freedom of Information Act ("FOIA), see 5 U.S.C. §
552, seeking information from the United States Departments of State "(State Department") and
Homeland Security ("DHS") about then President Elect Barack Hussein Obama and his late
mother, Stanley Ann Dunham. This matter is before the Court on defendants' partial motion to
dismiss, and the Court will grant the motion for the reasons discussed below. l
The Court summarily denies plaintiffs request for a writ of mandamus. Mandamus relief
is available only if: "(1) the plaintiff has a clear right to relief; (2) that defendant has a clear duty
to act; and (3) there is no other adequate remedy available to plaintiff." Northern States Power
Co. v. u.s. Dep't of Energy, 128 F.3d 754, 758 (D.C. Cir. 1997). In this action, plaintiff demands
the release of records maintained by federal government agencies, and an adequate remedy for a
request of this nature exists pursuant to the FOIA. 5 U.S.c. § 552(a)(4)(B); see Pickering-
George v. Registration Unit, DEAIDOJ, 553 F. Supp. 2d 3, 4 (D.D.C. 2008) ("The exclusive
nature of the FOIA precludes mandamus relief."); see also Johnson v. Executive Office for u.s.
Attorneys, 310 F.3d 771,777 (D.C. Cir. 2002).
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I. BACKGROUND
A. FOIA Requests to the State Department
1. Stanley Ann Dunham
Plaintiff submitted a FOIA request to the State Department on October 17, 2008, Amd.
CompI. ~ 12, seeking the following:
[I]nfonnation or records related to Stanley Ann Dunham born
November29, 1942 at Fort Leavenworth KS. U.S., a.k.a. Stanley Ann
Dunham Obama a.k.a. and who died on November 7, 1995 under the
name Stanley Ann Dunham Soetoro (a.k. a. Sutoro) for any and or all
exit and entry records for travel outside of the USA for the period
between 1960 through 1963.
!d., Ex. A. The State Department notified plaintiff that it did not maintain this type of
infonnation, and referred plaintiff to the Bureau of Customs and Border Protection, a component
of the DHS. Defs.' Partial Mot. to Dismiss PI.'s Amd. CompI. ("Defs.' Mot."), Ex. D at 1.
2. Barack Hussein Obama
In his second FOIA request to the State Department, plaintiff sought infonnation
pertaining not only to Stanley Ann Dunham but also to Barack Hussein Obama. With respect to
both subjects, plaintiff requested:
1. any and all U.S. Applications for a U.S. Passport;
2. entry and exit passport records pertaining to the United States
and Kenya between January 1, 1960 and December 31, 1975,
and between January 1, 1979 and December 31, 2005;
3. entry and exit passport records pertaining to the United States
and Indonesia between January 1, 1960 and December 31,
1973, and between January 1, 1979 and December 31,2005;
4. records for travel on a U.S., Kenyan, Indonesian or other
foreign passport or visa;
5. a foreign birth certificate registered or filed with the U.S.
Embassy in Kenya or Indonesia for Barack Obama;
6. a foreign birth registry filed by Stanley Ann Dunham with the
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u.s. Embassy in Kenya or Indonesia for Barack Obama; and
7. adoption records or other government records acknowledging
Barack Obama as Lolo Soetoro's son.
See CompI., Ex. E at 1.
With respect to the request for the late Ms. Dunham's passport applications, the State
Department notified plaintiff that it would process the request, to which it assigned case
processing number 200807238. Defs.' Mot., Ex. E at 2. All other aspects ofthe request,
assigned case control number 200807272, were denied because plaintiff did not comply with
regulations for requests for information pertaining to living third parties. Id. at 3-4. Specifically,
plaintiff did not submit Mr. Obama's authorization for release of his passport and similar
records. Id. at 4.
B. FOIA Request to the DHS
On December 26, 2008, plaintiff submitted a FOIA request to the DHS' Bureau of
Customs and Border Protection ("CBP"). Compi. ~ 22. He sought the same information from
the DHS that he requested from the State Department. See id., Ex. I at 1-2. Defendants' counsel
represents that, on February 3,2009, the CBP "informed [plaintiff] that it would not release
records relating to [Mr.] Obama because DHS regulations ... require privacy waivers before
third-party records can be released," and that the CBP "released ... responsive entry/exit records
relating to [Mrs.] Dunham." Defs.' Mot. at 3.
Plaintiff believes that Barack Hussein Obama was born in Kenya, that his birth was
registered in Hawaii, and that he, at most, is a naturalized United States citizen. See Amd.
Compi. ~ 36. For these reasons, plaintiff asserts that Mr. Obama "is not a U.S. 'natural born'
citizen and [is] ineligible to serve as the United States President, pursuant to the United States
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Constitution, Article II, Section 1, Clause 5." Id. ~ 27. Plaintiff claims to have "suffered an
informational injury as a voter and member ofpublic[,] and the lack of information on [Mr.
Obama's] citizenship, caused by the State Department[']s action, limited the information
available to [plaintiff] as a voter and impaired his ability to influence and inform the public and
policymakers." Id. ~ 57. Plaintiff demands that the State Department and DRS release all the
documents he requested, so that he may determine whether Mr. Obama is a natural born United
States citizen, see id. ~ 62, lest "an illegal candidate ... serve as President of the United States."
Id. ~ 63.
II. DISCUSSION
Defendants move to dismiss the amended complaint to the extent it seeks records
pertaining to Barack Obama, see Defs.' Mot. at 6, on the ground that plaintiffs FOIA requests
did not comply with agency regulations. See id. at 5-6.
"[E]ach agency, upon any request for records which (i) reasonably describes such records
and (ii) is made in accordance with published rules stating the time, place, fees (if any), and
procedures to be followed, shall make the records promptly available to any person." U.S.C. §
552(a)(3)(A). "An agency's disclosure obligations are not triggered ... until it has received a
proper FOIA request in compliance with its published regulations." Antonelli v. Fed. Bureau of
Prisons, 591 F. Supp. 2d 15,26 (D.D.C. 2008) (citing 5 U.S.C. § 552(a)(3) and 552(a)(6)(A)(i));
see Carbe v. Bureau ofAlcohol, Tobacco and Firearms, No.03-1658, 2004 WL 2051359, at *8
(D.D.C. Aug. 12,2004) ("A proper FOIA request, once received, requires the government to
search for responsive records and to release all that are not otherwise exempt."). A requester's
"failure to comply with an agency's FOIA regulations is the equivalent of a failure to exhaust"
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administrative remedies. West v. Jackson, 448 F. Supp. 2d 207,211 (D.D.C. 2006) (citations
omitted).
"Exhaustion of administrative remedies is generally required before seeking judicial
review" under FOIA. Wilbur v. Central Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004)
(per curiam). Exhaustion allows "the agency [] an opportunity to exercise its discretion and
expertise on the matter and to make a factual record to support its decision." Id. (quoting
Oglesby v. United States Dep 't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). It is not a
jurisdictional requirement, Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1258 (D.C.
Cir. 2003), but instead is a prudential consideration. Wilbur, 355 F.3d at 677. If a requester has
not exhausted his administrative remedies prior to the filing of a civil action, his claim is subject
to dismissal. See Hidalgo, 344 F.3d at 1258.
State Department regulations require that "requests for records pertaining to another
individual ... be accompanied by a written authorization for access by the individual, notarized
or made under penalty ofperjury, or by proof that the individual is deceased (e.g., death
certificate or obituary)." 22 C.F.R. § 171.12(a) (emphasis added). Similarly, DHS regulations
require that requests for records about another individual include "either a written authorization
signed by that individual permitting disclosure of those records . .. or proof that that individual
is deceased (for example, a copy of a death certificate or an obituary)[.]" 5 C.F.R. § 5.3(a)
(emphasis added).
Plaintiff "admits that Barack Hussein Obama ... has not provided permission to release
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documents[.]" PI. 's Aff.~ 20. 2 Rather, he steadfastly asserts his claims that Mr. Obama neither is
a natural born citizen of the United States nor is eligible to hold the office of President of the
United States. See generally PI.'s Aff. Neither of these claims is relevant to this FOIA action,
the sole purpose of which is to determine whether defendants properly responded to plaintiffs
FOIA requests to the State Department and to the DHS.
It is clear on this record that plaintiff did not submit proper FOIA requests to the State
Department and to DHS because the requests did not include written authorization from Mr.
Obama for the release of information to plaintiff. Plaintiff has failed to exhaust his
administrative remedies with respect to his requests for information about Mr. Obama, and these
claims will be dismissed. See Brown v. Fed. Bureau of Investigation, _ F. Supp. 2d _, _,
2009 WL 5102713, at *4 (D.D.C. Dec. 28,2009) (dismissing a FOIA claim against the FBI
because plaintiff failed to mail his request directly to the appropriate field office as is required
under agency regulations); Thomas v. Fed. Comm 'ens Comm 'n, 534 F. Supp. 2d 144, 146
(D.D.C.2008) (granting summary judgment in the agency's favor "[i]n the absence of any
evidence that plaintiff submitted a proper FOIA request to which defendant would have been
obligated to respond").
2 In opposition to defendants' motion for partial dismissal, plaintiff filed a "Notice
of Cross Motion of Quo Warranto Demand for Jury Trial and Decision on Question of First
Impression in Response in Opposition to Defendant's Partial Motion to Dismiss Plaintiffs
Amended Complaint as to Alleged POTUS: Barack Hussein Obarna In Esse" [Dkt. #19], to
which he attached a supporting memorandum oflaw and affidavit ("PI.'s Aff."). Plaintiffs
demand for a jury trial before a three-judge panel on matters pertaining to President Obama's
citizenship and eligibility to hold the office of the President of the United States is summarily
denied, as are all of his requests for relief not authorized under the FOIA.
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III. CONCLUSION
The Court will grant defendant's partial motion to dismiss, and will direct the parties to
submit a joint proposed schedule to govern future proceedings in this action. An Order is issued
separately.
United States District Judge
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