ACOSTA v. FEDERAL BUREAU OF INVESTIGATION et al

Filing 26

MEMORANDUM OPINION re 25 Order on Federal Defendants' Partial Motion to Dismiss. Signed by Judge James E. Boasberg on 4/17/2013. (lcjeb2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SAMUEL ACOSTA,
Plaintiff,
v.

Civil Action No. 12-1578 (JEB)

FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.

MEMORANDUM OPINION
Pro se Plaintiff Samuel Acosta, a federal prisoner in Texas, brought this action under the
Freedom of Information Act, seeking documents and records about himself from a passel of
governmental entities: the Federal Bureau of Investigation, the Department of Treasury, the
Department of Justice, DOJ’s Criminal Division, the Executive Office of United States
Attorneys, the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement
Administration, the Department of Homeland Security, Immigration and Customs Enforcement,
the United States Attorney’s Office for the Southern District of Iowa, the Des Moines Police
Department, and the Virgin Islands Police Department. In moving to dismiss or for summary
judgment, the federal Defendants (all but the last two listed) principally argue Plaintiff’s failure
to exhaust his administrative remedies. The Court will grant the Motion with respect to all but
EOUSA and the FBI, as prolonged delay vitiates Plaintiff’s exhaustion requirement with respect
to those entities.
I.

Background
Plaintiff’s Complaint says that “beginning in 2010 and thereafter up to this day

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[apparently September 21, 2012, the date the Complaint was filed], Plaintiff made requests in
writing for copies of documents . . . within the systems of records maintained by the Defendants
as to Criminal Case No. 4:07-CR-00083-RP-1 . . . .” Compl., ¶ 9. The Complaint does not
reference any specific FOIA requests, and the pleadings only reveal three: one submitted to ICE
dated October 11, 2010, see Mot., Decl. of Ryan Law, ¶ 6 & Exh. A, one submitted to EOUSA
the same date, see Mot., Decl. of David M. Hardy, ¶ 6 & Exh. A, and one submitted to the DEA
dated March 19, 2012. See Mot., Decl. of William C. Little, Jr., ¶ 13 & Exh. A (separately filed
at ECF No. 24). The manner in which each agency responded will be set forth in further detail in
Section III, infra.
II.

Legal Standard
Although Defendants here move alternatively for dismissal or summary judgment, the

D.C. Circuit has directed that the Court address their exhaustion arguments under Federal Rule
of Civil Procedure 12(b)(6). See Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003)
(vacating grant of summary judgment and remanding FOIA case “with instructions to the district
court to dismiss the complaint under [Rule] 12(b)(6) . . . for failure to exhaust administrative
remedies”); see also Jean-Pierre v. Federal Bureau of Prisons, 880 F. Supp. 2d 95, 100 n.4
(D.D.C. 2012) (“Although FOIA cases typically and appropriately are decided on motions for
summary judgment, where an agency argues that the requester has failed to exhaust his
administrative remedies, courts analyze the matter under Rule 12(b)(6) for failure to state a
claim.”) (citations, internal citations, and internal quotation marks omitted).
The difficulty with such a directive is that Rule 12(b)(6) confines a court to the
Complaint, subject to a few exceptions not applicable here. Yet, most exhaustion analyses will
require courts to consider materials outside of the Complaint – e.g., declarations describing how

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agencies responded to requests and letters memorializing their communications to requesters –
particularly when dealing with pro se litigants, who are unlikely to provide a full procedural
background of their claim. In fact, Hidalgo itself may well be relying on documents outside the
Complaint when considering the exhaustion issue, although references to a joint appendix do not
make that entirely clear. See 344 F.3d at 1258. In any event, were this Motion considered under
the summary-judgment standard, the result would be identical.
III.

Analysis
Before discussing the three particular FOIA requests at issue, the Court believes it

worthwhile to clear up a few ancillary matters. First, Plaintiff has apparently sued Treasury
under the mistaken belief that ATF is an agency housed there. See Compl., ¶ 4. In 2003,
however, Congress transferred ATF to DOJ, where it remains. See Title XI of the Homeland
Security Act of 2002, Pub. L. No. 107-206, 116 Stat. 2135. Treasury should thus be dismissed as
a defendant. In any event, there is no evidence of a FOIA request to ATF, which will also be
dismissed. Second, there is similarly no allegation in Plaintiff’s Complaint or Opposition of a
separate request to the USAO for the Southern District of Iowa or to DOJ’s Criminal Division,
which will both also be dismissed. Third, although the federal Defendants categorically state
that “only federal agencies [rather than components of such agencies] are proper party
defendants in FOIA litigation,” Mot. at 1 n.1, this is not so clear. See Jean-Pierre, 880 F. Supp.
2d at 101 (“the weight of authority is that subcomponents of federal executive departments may,
at least in some cases, be properly named as FOIA defendants”) (citations omitted). The Court
will thus assume, without deciding, that the subcomponents here are properly named. Finally, in
suing two non-federal agencies – the Des Moines Police Department and the Virgin Islands
Police Department – Plaintiff appears to be venturing farther afield than the FOIA statute

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permits. See 5 U.S.C. § 552(f)(1). The Court will, consequently, order him to show cause why
these two should remain in the case.
In now moving to the actual FOIA requests, the Court will begin with a general
discussion of how exhaustion operates in FOIA cases and then address the three requests
separately.
A. Exhaustion
It is generally understood that before filing suit in federal court, a FOIA requester must
exhaust administrative remedies. See Citizens for Responsibility & Ethics in Washington
(CREW) v. FEC, -- F.3d --, No. 12-5004, 2013 WL 1296289, at *1 (D.C. Cir. April 2, 2013); see
also Hidalgo, 344 F.3d at 1258; Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir.
1990). Exhaustion is required so “the agency has an opportunity to exercise its discretion and
expertise on the matter and to make a factual record to support its decision.” Oglesby, 920 F.2d
at 61. Allowing requesters to bypass administrative remedies “undercut[s] ‘the purposes of
exhaustion, namely, ‘preventing premature interference with agency processes, . . . afford[ing]
the parties and the courts the benefit of [the agency’s] experience and expertise, . . . [or]
compil[ing] a record which is adequate for judicial review.’” Hidalgo, 344 F.3d at 1259 (quoting
Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993)).
Until very recently, the D.C. Circuit had not determined when a FOIA requester could
bypass administrative appeal remedies and proceed directly to federal court to challenge an
agency’s failure to produce requested documents. Earlier this month, the court resolved this
issue in CREW v. FEC, holding: “If the agency has made and communicated its ‘determination’
in a timely manner, the requester is required to administratively appeal that ‘determination’
before bringing suit. But if the agency has not issued its ‘determination’ within the required time

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period, the requester may bring suit directly in federal district court without exhausting
administrative appeal remedies.” Id. at *1. Such “determination” means that the agency “must
at least indicate within the relevant time period the scope of the documents it will produce and
the exemptions it will claim with respect to any withheld documents.” Id.
The relevant statutory time period is straightforward. FOIA requires the agency to
“determine within twenty days (excepting Saturdays, Sundays, and legal public holidays) after
the receipt of any such request whether to comply with such request and . . . immediately notify
the person making such request of such determination and the reasons therefor, and of the right
of such person to appeal to the head of the agency any adverse determination.”
§ 552(a)(6)(A)(i). Further, in “unusual circumstances” an agency may extend the twenty-day
period by ten days by providing written notice to the requester explaining the unusual
circumstances and the date on which a determination is expected. § 552(a)(6)(B)(i). If thirty
working days is not enough time for an agency to make a determination, the agency can also ask
the court to extend its response time because of “exceptional circumstances.” § 552(a)(6)(C)(i).
Additionally, an agency may toll the initial twenty-day period in two circumstances: 1) while it
awaits the requester’s response to an agency request and 2) “if necessary to clarify with the
requester issues regarding fee assessment.” § 552(a)(6)(A)(I), (II). Further, “[i]n either case, the
agency’s receipt of the requester’s response to the agency’s request for information or
clarification ends the tolling period.” Id.
In most exhaustion cases, then, courts will perform a calculation of days to determine if
agencies have sufficiently responded within these statutory deadlines. “[I]f the agency has not
[timely] issued its ‘determination[,]’ . . . the requester may bring suit directly in federal district
court without exhausting administrative appeal remedies.” CREW, 2013 WL 1296289, at *1. In

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CREW, the Court of Appeals held that “[b]ecause the FEC did not make and communicate its
‘determination’ within . . . 20 working days of receiving CREW’s FOIA request, CREW …
exhausted its administrative appeal remedies under Section 552(a)(6)(C)(i), and its suit [could]
proceed.” Id. at *8.
Bearing these guidelines in mind, the Court now turns to the specific requests.
B. Request to ICE
On October 11, 2010, Plaintiff filed a FOIA request with ICE, which was received a
week later. See Law Decl., ¶ 6 & Exh. A (FOIA request) at 1. Ordinarily, ICE would have
twenty calendar days (excluding holidays and weekends) from the date it received the request to
respond. See 5 U.S.C. § 552(a)(6)(A)(i). The twenty-day deadline, however, was tolled here
because ICE responded to Plaintiff on October 18, requesting that he “complete and submit an
identity verification form,” and ICE did not receive his response until November 12. Law Decl.,
¶¶ 7, 9. On November 16, after searching its Office of Homeland Security Investigations, ICE
sent Plaintiff a letter informing him that the search did not identify any responsive records and
explaining his right to appeal this determination. Id., ¶ 10 & Exh. B (Letter to Acosta) at 1.
Plaintiff never filed any such administrative appeal. Id., ¶ 12.
Since ICE sent the request for further information the same day it received Plaintiff’s
FOIA request, the only days charged against it are the four from November 12 to November 16.
See § 552(a)(6)(A)(i) Given that this does not exceed the twenty days permitted, ICE has
responded timely, and Plaintiff has failed to exhaust his administrative appeals. He seems to
admit as much in his Opposition: “Plaintiff will resubmit [his] FOIA request to the FBI, DEA,
and the Dept[.] of Homeland Security and once more travel the food chain through all FOIA
appeals.” Opp. at 1. Dismissal is thus appropriate for ICE and its parent, DHS.

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C. Request to DEA
For the same reasons, the Court will dismiss Defendant DEA. On March 19, 2012,
Plaintiff submitted a FOIA request to DEA, which was “opened” on March 27. See Little Decl.,
¶¶ 13-14 & Exh. A (FOIA Request, separately filed at ECF No. 24). DEA responded in a letter
dated March 29, informing him that it could not locate any responsive records. Id., ¶ 15 & Exh.
B (Letter to Acosta, separately filed at ECF No. 24). The letter also informed Plaintiff of his
right to appeal the denial of his FOIA request to the Office of Information Policy. Id., ¶ 16. As
of February 15, 2013, Plaintiff had not appealed the DEA determination. Id., ¶ 17.
If “opening” Plaintiff’s request means receiving it, then DEA only took two days to
respond; if the two terms are not synonymous, DEA still took no more than ten days, well within
the 20-day limit. Plaintiff’s concession regarding DHS also expressly applied to DEA. See
Section III-B, supra. Dismissal, therefore, is also proper for DEA.
D. Request to EOUSA/FBI
Plaintiff’s third request took a more circuitous path. On October 11, 2010, Plaintiff sent
this request to the Executive Office for United States Attorneys. See Hardy Decl., ¶ 6 & Exh. A
(FOIA Request). Over eight months later, EOUSA forwarded Plaintiff’s request to the FBI,
noting that it had located records originating from the FBI and thus asking the Bureau to respond
directly to Plaintiff. Id., ¶ 7 & Exh. B (EOUSA Letter to FBI of June 30, 2011) at 1. The FBI,
on September 26, 2011, then released certain pages and withheld others. Id., ¶ 8 & Exh. C (FBI
Letter to Acosta).
Although the Government asserts that Plaintiff failed to exhaust his administrative
remedies by not appealing the FBI’s September 26, 2011, decision, such an argument ignores the

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nearly one-year delay between his request and a response. 1 Under CREW, such lapse waives
any requirement Plaintiff had to exhaust his administrative appeals.
The one other wrinkle here is that the Government might have been able to argue that a
transfer to another agency could give the new agency more than twenty days to respond to the
FOIA request. See S. Yuba River Citizens League & Friends of the River v. Nat’l Marine
Fisheries Serv., No. 06-2845, 2008 WL 2523819, at *8 n.10 (E.D. Cal. June 20, 2008) (“[T]he
relationship between the timeliness and forwarding the documents to other agencies[] has not
been fully explored. It hardly seems remarkable, however, that a brief delay occasioned by such
referral is to be expected.”); Or. Natural Desert Ass’n v. Gutierrez, 409 F. Supp. 2d 1237, 1248
(D. Or. 2006) (finding that “defendants failed to make a timely determination” after both initial
agency and other agencies who received referrals sent responses months past statutory time
limits); Bogan v. FBI, No. 04-532, 2005 WL 1367214, at *3 (W.D. Wis. June 7, 2005) (noting
that after defendant acknowledged a referral nearly four months after receipt “without setting
forth any explanation for the delay in responding or giving an estimation of or explanation for
the delay that would follow[,] . . . defendant has not shown that it either attempted to comply
with the notification requirements . . . or that it faced exceptional circumstances and asked for”
more time). It never so contends, however.
Even if the Government had made such an argument, it would have an uphill climb here,
given that the transfer resulted in almost a full year’s delay in responding. As a result, the Court
finds that Plaintiff has exhausted his administrative remedies and his suit can proceed. EOUSA
or the FBI, therefore, must provide a Vaughn index and justify any exemptions if it seeks to

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It is possible that EOUSA actually did respond in timely fashion, but the Government never argues this
point. In fact, Exhibit B to the Hardy Declaration includes an undated letter from EOUSA to Plaintiff, which
released 800+ pages to him. Yet, neither Hardy in his Declaration nor the Government in its Motion ever mentions
this document or any response by EOUSA to Plaintiff.

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withhold any of the documents. It must also explain the adequacy of its search. The Motion to
Dismiss will thus be denied on this request.
IV.

Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting the

Motion to Dismiss as to Defendants Treasury, ICE, DEA, ATF, DHS, DOJ’s Criminal Division,
and USAO-SDIA, denying it as to the FBI and EOUSA (and DOJ itself), and requiring Plaintiff
to show cause why the case should proceed against the non-federal Defendants.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: April 17, 2013

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