Bahrampour v. Department of the Army

Filing 15

MEMORANDUM OPINION. Signed by Judge Julie Rebecca Rubin on 1/15/2023. (c/m 1/17/2023 bas, Deputy Clerk)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

AFSHIN BAHRAMPOUR,
v.

Plaintiff,

Civil No.: 1:22-cv-00710-JRR

DEPARTMENT OF THE ARMY,
Defendant.
MEMORANDUM OPINION
This matter comes before the court on Defendant Department of the Army’s Motion to
Dismiss for Lack of Subject Matter Jurisdiction. (ECF No. 7; the “Motion.”) The court has
reviewed all submissions on the Motion. No hearing is necessary. Local Rule 105.6 (D. Md.
2021).
BACKGROUND 1
On August 26, 2020, Plaintiff submitted a Freedom of Information Act (“FOIA”) request
to the Department of the Army. (Complaint, ECF No. 1, p. 2.) On March 1, 2021, the Army FOIA
Office received Plaintiff’s FOIA request, and requested that Plaintiff provide clarification because
the request was too broad. (Motion, ECF No. 7-1, p. 2.) On March 9, 2021, Plaintiff submitted
clarification and sought records pertaining to the following:
Bioeffects of non-lethal weapons, microwave hearing or microwave auditory effect, Frey
effect, voice to skull devices, including silent audio devices, radio frequency radiation
auditory effect in humans, (also, RFR auditory effect in humans, synthetic telepathy,
electronic brain link or EBL, P300 brain wave technology, remote neutral monitoring or
RNM, targeted neuroplasticity training or T.N.T., communicating via the microwave
auditory effect (see SBIR F41624 95C907), contracts, purchase orders, or solicitations, or
research involving Digital Receiver Technologies, Inc., which involve proprietary
1

For purposes of adjudicating the Motion, the court accepts as true all well-pled facts set forth in the Complaint.

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equipment used as (of for) cell site simulators and digital voice interception, contracts,
purchase orders, or solicitations, or research involving Sierra Nevada Corporation for a
device named M.E.D.U.S.A. or mob excess deterrent using silent audio.
(ECF No. 11-1; Opposition, Ex. 1.)
By letter of July 1, 2021, Joseph Walukonis from the Army FOIA Office informed Plaintiff
that his “[r]equests for information and documents under the purview of the Army are referred to
the proponent agency for appropriate handling and the proponent of the requested records in
accordance with Army Regulation 25-55 (The Army Freedom of Information Act Program).” (Id.)
The letter explained that, following research on Plaintiff’s request, the Army FOIA Office referred
Plaintiff’s request to four different activities for processing and direct response to Plaintiff: (1) HQ
U.S. Army Intelligence and Security Command; (2) U.S. Army Futures Command; (3) CDR, USA
MRMC; and (4) U.S. Army Combat Capabilities Development Command. (Id.) On September
23, 2021, Plaintiff received a response to his FOIA request from the U.S. Army Intelligence and
Security Command, which included one document titled “Bioeffects of Non-lethal Weapons.”
(ECF No. 1, p. 3.)
On March 23, 2022, Plaintiff initiated this action under FOIA, 5 U.S.C. § 552, seeking a
“court order for release of all responsive records and adequate searches for such responsive records
and prevention of Defendants from using privileges to shield government misconduct or
malfeasance or the use of FOIA exemptions to shield government misconduct in ‘special access
programs.’” (Id. at p. 4.) The Complaint alleges that “responsive records are being improperly
withheld in the above referenced FOIA letter response which has FOIA case #0303F-21 and FOIA
control number FP-21-021072 associated with plaintiffs request.” (Id. at p. 3.) The Complaint
omits to mention whether Plaintiff pursued an administrative appeal to address his dissatisfaction
with the outcome of his FOIA request prior to filing this civil action. Defendant moves to dismiss

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the Complaint for lack of subject matter jurisdiction (per Rule 12(b)(1)) or, alternatively, for failure
to state a claim (per Rule 12(b)(6)), because Plaintiff failed to exhaust his administrative remedies.
(ECF No. 7.) Plaintiff filed a brief in opposition and Defendant filed a reply in support of the
Motion.
LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1)
“Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of
subject matter jurisdiction.” Barnett v. United States, 193 F. Supp. 3d 515, 518 (D. Md. 2016). “A
failure to exhaust administrative remedies under FOIA deprives the courts of subject matter
jurisdiction, requiring analysis under Rule 12(b)(1) at the motion to dismiss stage.” 2 Gray v. Wash.
Metro Area Transit Auth., No. DKC-16-1792, 2017 U.S. Dist. LEXIS 18223, *5 (D. Md. Feb. 8,
2017); see Pair v. SSA, No. RDB-15-1458, 2016 U.S. Dist. LEXIS 22863, at *10 (D. Md. Feb. 25,
2016) (finding that the court does not have subject matter jurisdiction over the plaintiff’s FOIA
claim because he failed to exhaust his administrative remedies); Scott v. United States Atty. Offices,
No. RDB-18-725, 2019 U.S. Dist. LEXIS 79726, at *11 (D. Md. May 10, 2019) (dismissing claims
for lack of jurisdiction because there is no “evidence that the plaintiff exhausted his administrative
remedies as to any Agency final decision at issue here.”).

Plaintiff, implicitly conceding that he did not pursue an administrative appeal, argues that “exhaustion under FOIA
is a jurisprudential consideration, rather than a jurisdictional one.” (ECF No. 11, p. 1.) The court is aware of one
Fourth Circuit case that analyzed “the sufficiency of the allegations in the [c]omplaint concerning administrative
exhaustion under Rule 12(b)(6).” McKenzie-El v. IRS, No. ELH-19-1956, 2020 U.S. Dist. LEXIS 31455, at *26 (D.
Md. Feb. 24, 2020). In McKenzie-El, the court dismissed the plaintiff’s FOIA claim under Rule 12(b)(6) because
“there [was] no allegation that [the] plaintiff exhausted his administrative remedies by seeking further review from
the IRS of its initial response to his request.” Id. In this case, whether reviewed under 12(b)(1) or 12(b)(6), the result
is the same. The Complaint does not aver or suggest that Plaintiff exhausted his administrative remedies, and
Plaintiff’s Opposition makes it plain that, in fact, he did not.
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Subject matter jurisdiction challenges may proceed in two ways: a facial challenge or a
factual challenge. Mayor & City Council of Balt. v. Trump, 416 F. Supp. 3d 452, 479 (D. Md.
2019). A facial challenge asserts “that the allegations pleaded in the complaint are insufficient to
establish subject matter jurisdiction.” Id. A factual challenge asserts “that the jurisdictional
allegations of the complaint [are] not true.” Id. (quoting Kerns v. United States, 585 F.3d 187, 192
(4th Cir. 2009)). “The plaintiff bears the burden of proving, by a preponderance of evidence, the
existence of subject matter jurisdiction.” Id.
Defendant asserts both a facial challenge and a factual challenge. Defendant presents a
facial challenge on the basis that the Complaint fails to state (or demonstrate by attachment, for
example) that Plaintiff exhausted his administrative remedies. (ECF No. 7, p. 5.) “In a facial
challenge, ‘the facts alleged in the complaint are taken as true, and the motion must be denied if
the complaint alleges sufficient facts to invoke subject matter jurisdiction.’” Trump, 416 F. Supp.
3d at 479 (quoting Kerns, 585 F.3d at 192). Defendant’s factual challenge asserts “there is, in fact,
no record of Plaintiff filing an appeal prior to initiating this lawsuit.” (ECF No. 7-1, p. 5.) “[I]n a
factual challenge, ‘the district court is entitled to decide disputed issues of fact with respect to
subject matter jurisdiction.’” Trump, 416 F. Supp. 3d at 479 (quoting Kerns, 585 F.3d at 192).
Further, in a factual challenge, “the court ‘may regard the pleadings as mere evidence on the issue
and may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.’” Id. (quoting Velasco v. Gov’t of Indonesia, 370 F.3d 391, 398 (4th Cir.
2004)).
ANALYSIS
As an initial matter, the court is ever-mindful that “pro se pleadings are liberally construed
and held to a less stringent standard than pleadings drafted by lawyers.” Gray v. Wash. Metro

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Area Transit Auth., No. DKC-16-1792, 2017 U.S. Dist. LEXIS 18223, *6 (D. Md. Feb. 8, 2017)
(citing Erickson v. Paradus, 551 U.S. 89, 94 (2007)). “Liberal construction means that the court
will read the pleadings to state a valid claim to the extent that it is possible to do so from the facts
available; it does not mean that the court should rewrite the complaint to include claims never
presented.” Id. Further, “[t]hough it is ordinarily true that a party cannot amend its pleading
through briefing, as part of the ‘duty to construe pro se pleadings liberally,’ courts may consider
allegations in a response to a motion to dismiss, even if they were not included in the original
complaint.” Johnson v. UPS, Inc., No. JKB-19-1916, 2020 U.S. Dist. LEXIS 7636, at *11 (D.
Md. Jan. 15, 2020); see Van Orden v. City of Port Jervis, No. 20-07207 (PMH), 2022 U.S. Dist.
LEXIS 94195, at *3 n. 4 (S.D. N.Y. May 25, 2022) (“Given the liberality afforded pro se litigants,
it is appropriate to consider new allegations in a pro se plaintiff’s opposition memorandum where
they are consistent with the allegations in the pleading.”). To the extent that Plaintiff does not seek
to add new claims in his opposition brief, and only provides additional details supporting the
claims he has already alleged, the court may consider the additional information provided by
Plaintiff in his Response to Defendant’s Motion to Dismiss. Johnson, supra.
I.

Freedom of Information Act
FOIA “provides a mechanism for citizens to obtain documents from federal agencies, and

grants federal district courts jurisdiction to review agency compliance with citizens’ requests.”
Shortall v. Baltimore Dist. U.S. Army Corps of Engineers, No. WMN-14-3904, 2015 U.S. Dist.
LEXIS 72823, at *3 (D. Md. June 4, 2015). FOIA requires that “each agency upon any request
for records which reasonably describes such records . . . shall make the records promptly available
to any person.” 5 U.S.C. § 552(a)(3)(A). “A federal court only has jurisdiction to device a remedy
upon a showing that the agency has improperly withheld agency records.” Elliott v. Beltsville

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Agric. Rsch. Ctr., 2020 U.S. Dist. LEXIS 31483, at *4 (D. Md. Feb. 19, 2020) (citing Kissinger v.
Rep. Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)).
A. Exhaustion
“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.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57,
61 (D.C. Cir. 1990). Failure to exhaust administrative remedies, however, is not an automatic bar
to judicial review and “courts usually look at the purposes of exhaustion and the particular
administrative scheme in deciding whether they will hear a case or return it to the agency for
further processing.” Id.
The statutory scheme for FOIA provides for an administrative appellate process:
Each agency, upon request for records . . . shall determine within 20 days (excepting
Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether
to comply with such request and shall immediately notify the person making such request
of in the case of an adverse determination the right of such person to appeal to the head of
the agency, within a period determine by the head of the agency that is not less than 90
days after the date of such adverse determination
5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). In addition,
Each agency, upon request for records shall make a determination with respect to any
appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after
the receipt of such appeal. If on appeal the denial of the request for records is in whole or
in part upheld, the agency shall notify the person making such request of the provisions for
judicial review of that determination under paragraph (4) of this subsection.
5 U.S.C. § 552(a)(6)(A)(ii). Moreover, “[c]ourts have consistently confirmed that the FOIA
requires exhaustion of this appeal process before an individual may seek relief in the courts.”
Oglesby, 920 F.2d at 61-62.
Plaintiff alleges that on August 26, 2020, he sent a FOIA request to Defendant, and, on
September 23, 2021, he received a response to his request from the U.S. Army Intelligence and
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Security Command. (ECF No. 1 at pp. 2-3.) He alleges that he received one responsive document:
“[t]his unclassified report from 16 March 2010 was the only document released as responsive to
Plaintiff Bahrampours [sic] FOIA Request.” (Id. p. 3.) Based upon the response from the U.S.
Army Intelligence and Security Command to his FOIA request, Plaintiff alleges that “responsive
records are being improperly withheld.” (Id.) Defendant attaches to its Motion the declaration of
Mr. Michael Heaton, Director of the U.S. Army Intelligence and Security Command FOIA Office. 3
(ECF No. 7-4.) The declaration avers that Mr. Heaton received an email from the Army FOIA
Office related to Plaintiff’s case and that, subsequently, the U.S. Army Intelligence and Security
Command opened internal case number 0303F-21. (Id. at p. 3.) A search for documents
responsive to Plaintiff’s request resulted in identification of one responsive record titled
“Bioeffects of Selected Nonlethal Weapons.” (Id. at p. 5.) The responsive record was released to
Plaintiff in full and the U.S. Army Intelligence and Security Command received no appeals to the
final release. (Id. at p. 6.)
Plaintiff’s Complaint does not allege that he utilized the administrative appeals process to
resolve his FOIA request; his Opposition to the Motion argues that such an appeal is not a barrier
to his Complaint (thus, implicitly conceding that none was filed); and Mr. Heaton’s declaration
asserts that the U.S. Army Intelligence and Security Command received no appeal regarding
Plaintiff’s case. Plaintiff must utilize the administrative appeals process to resolve any FOIA
request prior to seeking judicial review.

Oglesby, supra.

Accordingly, judicial review of

Plaintiff’s FOIA request is precluded at this time.

As discussed supra, Defendant presents a factual challenge to subject matter jurisdiction and therefore, “the court
‘may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.’” Id. (quoting Velasco v. Gov’t of Indonesia, 370 F.3d 391,
398 (4th Cir. 2004)).

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B. Futility and Constructive Exhaustion
Plaintiff argues that he is not required to exhaust administrative remedies because an
administrative appeal would have been futile. (ECF No. 11, p. 1.) Plaintiff further argues that,
should the court find that an administrative appeal would not have been futile, the doctrine of
constructive exhaustion applies because only one sub-agency replied to his request and the other
three sub-agencies did not provide a response. (Id.)
“Absent a clear showing that an administrative agency has taken a hard and fast position
that makes an adverse [appellate] ruling a certainty, a litigant’s prognostication that he is likely to
fail before an agency is not a sufficient reason to excuse the lack of exhaustion.” Thetford
Properties IV Ltd. Partnership v. U.S. Dep’t of Housing & Urban Dev., 907 F.2d 445, 450 (4th
Cir. 1990). Further, “[t]o allow appellants to avoid the administrative process on their unsupported
allegation of futility would allow the futility exception to swallow the exhaustion rule.” Id.
Plaintiff does not allege how an appeal of his FOIA request would be futile. Accordingly, the
court finds that the futility exception does not apply.
Under FOIA, “[a]ny person making a request to any agency for records . . . shall be deemed
to have exhausted his administrative remedies with respect to such request if the agency fails to
comply with the applicable time limits provisions of this paragraph.” 5 U.S.C. § 552(a)(6)(C)(i).
“However, this so-called ‘constructive exhaustion ceases to offer a basis for judicial action once
an agency actually responds.’” Schwaner v. Dep’t of the Army, 696 F. Supp. 2d 77, 80 (D.D.C.
2010) (quoting Smith v. Fed. Bureau of Investigation, 448 F. Supp. 2d 216, 220 (D.D.C. 2006)).
“[I]n order to foreclose constructive exhaustion and require a requester to file an administrative
appeal, an agency need only satisfy the requirements of 5 U.S.C. § 552(a)(6)(A).” Nat’l Sec.
Counselors v. CIA, 913 F. Supp. 2d 77, 97 (D.C. Cir. 2013). Ultimately, “[c]onstructive exhaustion

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in the FOIA is a privilege granted only to individuals whose requests for records have essentially
been ignored by the agency, and it is a privilege reserved for a situation in which agency has
resulted in a ‘fail[ure] to comply with the applicable time limits provisions of 5 U.S.C. §
552(a)(6).’” Nat’l Sec. Counselors, 913 F. Supp. 2d at 97 (quoting 5 U.S.C. § 552(a)(6)).
Although the U.S. Army Intelligence and Security Command did not respond within the
20-day window provided for in the statute, the U.S. Army Intelligence and Security Command
responded before Plaintiff initiated this action. Plaintiff does not allege that his FOIA request was
ignored by the U.S. Army Intelligence and Security Command; instead, he agrees that he received
a response before he initiated this suit, but urges that the court should nonetheless afford him the
benefit of constructive exhaustion. The court disagrees. Constructive exhaustion does not apply
to Plaintiff’s request, and judicial review of Plaintiff’s FOIA request is not proper until he exhausts
his administrative remedies. 4
CONCLUSION
For the reasons set forth herein, Defendant’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction (ECF No. 7) is granted. Plaintiff may file an amended complaint no later than twenty
days from entry of this opinion and accompanying order. Plaintiff is cautioned to abide the Federal
Rules of Civil Procedure and the Local Rules of this court should he elect to amend his Complaint

Within his opposition to the Motion, Plaintiff requests leave to amend his Complaint and raises new allegations (not
contained in the Complaint) about three additional sub-agencies within the Department of the Army that he alleges
received, and failed to respond to, his FOIA request (ECF No. 11 at p. 4.) Plaintiff’s Complaint makes no mention
of these other sub-agencies; his allegations pertain to one army activity – the U.S. Army Intelligence and Security
Command. In the context of ruling on the Motion based on the Complaint as filed, the court declines to consider new
allegations against additional sub-agencies within the Department of the Army, as doing so would deprive Defendant
of notice and an opportunity to respond. The court, however, will grant Plaintiff leave to amend his Complaint within
20 days of this opinion and accompanying order. Plaintiff is cautioned to abide the Federal Rules of Civil Procedure
and the Local Rules of this court should he elect to amend his Complaint by adding new allegations and/or parties.
Further, should Plaintiff not amend his Complaint within the provided timeframe, the court will close this case.
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by adding new allegations and/or parties. If Plaintiff fails to file an amended complaint within the
time permitted, the court will close this case without further notice.
A separate order follows.
/S/
______________________
Julie R. Rubin
United States District Judge
January 15, 2023

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