ELIAS YUNES v. U.S. DEPARTMENT OF JUSTICE et al
MEMORANDUM OPINION. Signed by Judge John D. Bates on 1/5/15. (lcjdb1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDMON FELIPE ELIAS YUNES,
Civil Action No. 14-1397 (JDB)
UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Edmon Felipe Elias Yunes asks this Court to compel the Federal Bureau of Investigation
to undertake a search of his records pursuant to a Freedom of Information Act request. When he
filed suit, Elias Yunes believed that the statutory period for a response had expired without any
action from the FBI. But the FBI had conducted a search—and its letter to that effect crossed
paths with the filing of this suit. As a result, the Department of Justice (representing the FBI) 1
has moved to dismiss Elias Yunes’s lawsuit, or alternatively to obtain summary judgment,
arguing that he failed to exhaust his administrative remedies. The Court agrees.
Elias Yunes is a citizen of the Dominican Republic. Earlier this year, the United States
government revoked his visa: the Department of Justice had flagged him as a known or
suspected terrorist. See Ex. B to Pl.’s Opp’n [ECF No. 11-4] at 4. On June 13, with the
assistance of a lawyer, Elias Yunes submitted a FOIA request to the FBI, asking for a search of
Elias Yunes has also named as a defendant the Department of State. State has filed an answer to the
complaint and has not requested dismissal of the suit. This opinion thus pertains only to defendant Department of
the agency’s Central Records System for any information regarding criminal or terrorist
activities under his name. See Ex. A to Def.’s Mot. to Dismiss [ECF No. 9-2] at 3.
From here, accounts diverge. According to the government, the FBI sent Elias Yunes’s
lawyer an acknowledgement letter on July 1. The letter indicated that the agency had begun
searching its records for responsive information and provided Elias Yunes with his request
number. See Ex. B to Def.’s Mot. [ECF No. 9-2] at 6; Hardy Decl. [ECF No. 9-1] at 3. Elias
Yunes’s lawyer, however, avers that she never received this letter. Perez Decl. [ECF No. 11-2]
at 2. But when she received a similar letter regarding another client—a client whose request she
had submitted in the same envelope as Elias Yunes’s—she called to investigate. Id. As a result,
the lawyer obtained Elias Yunes’s case number on July 22. 2
On August 8, the FBI mailed a letter to Elias Yunes’s lawyer (at Elias Yunes’s address),
informing her that the agency was “unable to identify main file records responsive to the
FOIPA” and explaining his right to appeal to the Office of Information Policy within sixty days.
Ex. C to Def.’s Mot. [ECF No. 9-2] at 8. But Elias Yunes’s lawyer did not receive the letter until
September 19. See Perez Decl. at 2. 3 And the letter she received was dated August 6, while the
one the FBI produced was dated August 8. Compare Ex. B to Pl.’s Opp’n at 2 with Ex. C to
Def.’s Mot. at 8.
Meanwhile, on August 15—after the FBI mailed the letter, but before the lawyer received
it—Elias Yunes filed the present suit, requesting that the Court order the FBI to conduct an
appropriate search. Compl. at 6. A few weeks later, on September 3, Elias Yunes’s lawyer
This account is somewhat difficult to reconcile with Elias Yunes’s statement that, on July 2, his lawyer
received an e-mail from the FBI acknowledging that it received his request on June 16. See Compl. [ECF No. 1] at
5. In any event, it is clear that, at some point in July, Elias Yunes’s lawyer knew his request had been received and
knew the case number.
Elias Yunes’s lawyer is careful to state that she received the letter on September 19; she does not reveal
whether Elias Yunes received it on an earlier date. Indeed, because the letter was mailed to Elias Yunes’s address in
Florida, see Ex. C to Def.’s Mot. at 8, it appears likely that he would have forwarded it to his lawyer in the
Dominican Republic—which would explain the delay in receipt.
received a letter regarding her other client, explaining that no records had been found. See 2d
Perez Decl. [ECF No. 14-2] at 1. When she appealed that determination, she decided, “[a]s a
matter of caution,” Perez Decl. at 2, to appeal Elias Yunes’s as well, “though [she] had not yet
received the denial for Elias Yunes at that time,” 2d Perez Decl. at 2. The Office of Information
Policy received the appeal on October 15. Perez Decl. at 3.
The Department of Justice has filed a motion to dismiss, or, alternatively, to obtain
summary judgment as to the FBI request. The government argues that Elias Yunes failed to
exhaust his administrative remedies—namely, an appeal to the Office of Information Policy—
before filing this suit.
The government presents its motion as one to dismiss, or, in the alternative, for summary
judgment. It is true that “[c]ourts ordinarily analyze [such an argument] under Rule 12(b)(6).”
Walsh v. FBI, 905 F. Supp. 2d 80, 83 (D.D.C. 2012). But where, “on a motion under Rule
12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
Here, both parties have attached “declarations and documentary evidence outside the
pleadings” to their briefs; thus, the Court must convert the motion to one for summary judgment.
Calhoun v. Dep’t of Justice, 693 F. Supp. 2d 89, 91 (D.D.C. 2010) (internal quotation marks
omitted). Under that standard, “[t]he Court shall grant summary judgment 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). “By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). In
making such a determination, “[a]gency affidavits are afforded a presumption of good faith and
can be rebutted only with evidence that the agency did not act in good faith.” Walsh, 905 F.
Supp. 2d at 84 (internal quotation marks omitted).
“Exhaustion of administrative remedies is generally required before filing suit in federal
court so that the agency has an opportunity to exercise its discretion and expertise on the matter
and to make a factual record to support its decision.” Hidalgo v. F.B.I., 344 F.3d 1256, 1258
(D.C. Cir. 2003) (internal quotation marks omitted). Although exhaustion is not a jurisdictional
requirement in FOIA cases, it is a jurisprudential one. See id. at 1258–59.
In the FOIA context, exhaustion generally requires completion of “an administrative
appeal process following an agency’s denial of a FOIA request.” Oglesby v. U.S. Dep’t of
Army, 920 F.2d 57, 61 (D.C. Cir. 1990); see also 5 U.S.C. § 552(a)(6)(A)(ii) (requiring agencies
to “make a determination with respect to any appeal within twenty days . . . after the receipt of
such appeal” and providing for notification of the possibility of judicial review if the denial is
upheld). But that requirement is predicated on the agency fulfilling its own responsibilities in the
first instance—namely, to make a determination on any request within twenty days, see 5 U.S.C.
§ 552(a)(6)(A)(i), or within thirty days in “unusual circumstances,” id. § 552(a)(6)(B)(i). If the
agency “fails to comply with the applicable time limit provisions,” however, the requester “shall
be deemed to have exhausted his administrative remedies.” Id. § 552(a)(6)(C)(i). In that case,
“the requester may [then] bring suit.” Oglesby, 920 F.2d at 62.
This escape-hatch provision is not, however, without limit. “[A]n administrative appeal
is [still] mandatory if the agency cures its failure to respond within the statutory period by
responding to the FOIA request before suit is filed.”
Id. at 63.
That is: “[C]onstructive
exhaustion under 5 U.S.C. § 552(a)(6)(C) allows immediate recourse to the courts to compel the
agency’s response to a FOIA request. But once the agency responds to the FOIA request, the
requester must exhaust his administrative remedies before seeking judicial review.” Id. at 64.
And that seems to be the situation here. The government’s twenty-day period expired at
the end of July (counting from the acknowledgment letter sent on July 1.) As a result, Elias
Yunes would have been well within his rights to file suit immediately without pursuing any
administrative appeal. But he did not do so until August 15. And in the interim, on August 8,
the FBI responded to the request: Elias Yunes’s complaint, then, was a week too late to avoid the
Elias Yunes offers two responses. First, he suggests that there is something fishy about
the FBI’s August letter. The FBI’s copy is dated August 8, but the one his lawyer received is
dated August 6.
Elias Yunes intimates that the discrepancy is indicative, perhaps, of the
government backdating its files. But the government proffers a reasonable explanation: the
FOIA analyst accidentally mailed an earlier version of the letter, one that she had printed before
its review. See Argall Decl. [ECF No. 13] at 4. Elias Yunes puts forth no evidence to dispute
the government’s account or to undermine the presumption of good faith in such agency
affidavits. See Walsh, 905 F. Supp. 2d at 84. Indeed, one imagines that if the government were
nefariously backdating FOIA request letters, it would take care to avoid such discrepancies.
Elias Yunes has therefore failed to evince a genuine issue of material fact as to the date of the
government’s determination. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (explaining that a non-moving party “must do more than simply show that there
is some metaphysical doubt as to the material facts”).
Elias Yunes further argues that, even if the letter was sent before he filed suit, the date of
its mailing is not pertinent. Rather, he contends that the timing of the letter’s receipt, rather than
its mailing, is what counts. Because he filed suit before receiving the FBI’s determination, Elias
Yunes believes, he need not exhaust his administrative remedies. But this interpretation finds no
support in the relevant caselaw. See, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310
(D.C. Cir. 2003) (“If the agency responds to the request after the twenty-day statutory window,
but before the requester files suit, the administrative exhaustion requirement still applies.”
(emphasis added)); Oglesby, 920 F.2d at 66 (“[I]f the agencies do not respond within twenty
days of the appeal, the appellant will be deemed to have fully exhausted his administrative
remedies and may bring suit.” (emphasis added)). The Court of Appeals’s focus on response,
rather than receipt, comports with the relevant statutory language as well: the statute requires an
agency to make a “determin[ation]” within twenty days of the receipt of a request. 5 U.S.C.
§ 552(a)(6)(A)(i). There is no stricture on when that determination must be received by the
Elias Yunes counters with one district court case, which he believes stands for the
proposition that exhaustion is not required unless it is established that he received a response
before filing suit. See Pl.’s Opp’n [ECF No. 11-1] at 3. But in that case, the court found a
genuine issue of material fact as to whether the government ever mailed a relevant letter—not as
to its arrival date. See Walsh, 905 F. Supp. 2d at 86–87. Here, in contrast, it is clear that the FBI
mailed the determination letter—and there is no genuine dispute that it did so before Elias Yunes
filed this suit.
Finally, Elias Yunes contends that he has, in fact, exhausted his administrative remedies
because he filed an appeal with OIP within the appropriate timeframe. But that assertion does
not comport with any accepted definition of exhaustion. See Oglesby, 920 F.2d at 65 (noting
that the “statutory administrative appeal process allow[s] the agency to complete its disclosure
process before courts step in”). True, he took the right steps to start—but he did so after filing
this complaint, and he has failed to wait for the appeal to be resolved.
In short, “permitting [Elias Yunes] to pursue judicial review without benefit of prior OIP
consideration would undercut the purposes of exhaustion, namely, preventing premature
interference with agency processes, affording the parties and the courts the benefit of the
agency’s experience and expertise, or compiling a record which is adequate for judicial review.”
Hidalgo, 344 F.3d at 1259 (internal quotation marks and alterations omitted). As far as the
parties have informed the Court, Elias Yunes’s appeal is currently pending before OIP. He may,
of course, choose to file suit again after that remedy has been fully exhausted. Until then, the
Court’s consideration of his claims is premature.
For the reasons set forth above, the DOJ’s motion for summary judgment is granted. A
separate Order will issue on this date.
JOHN D. BATES
United States District Judge
Dated: January 5, 2015
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