Carter v. United States of America et al

Filing 14

REPORT AND RECOMMENDATION that defendants' 8 MOTION to Dismiss be Granted. Objections to R&R due by 9/2/2016. Signed by Magistrate Judge Karen L. Litkovitz on 8/16/2016. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ORLANDO CARTER,
Plaintiff,

Case No. 1: I 6-cv-530
Barrett, J.
Litkovitz, M.J.

vs.
UNITED STATES OF AMERICA, et al.,
Defendants.

REPORT AND
RECOMMENDATION

Plaintiff Orlando Carter brings this pro se action for injunctive relief against defendants
United States of America and the United States Attorney' s Office under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552. This matter is before the court on defendants'
motion to dismiss for lack of subject matter jurisdiction (Doc. 8) and plaintiffs response in
opposition (Doc. 12).

I. Background
In June 20 I 0, the Court sentenced plaintiff to a total of 180 months' imprisonment after a
jury found him guilty on I I fraud-related counts. See United States v. Carter, Case No. I :08-cr51 (S.D. Ohio Jun. 9, 2010), Doc. 103 at 1-3.
In the instant complaint, plaintiff alleges that in securing the convictions against him, the
government used two exhibits that indicated there was a creditor-borrower relationship between
PNC Bank and plaintiffs company in the amount of $4 million. (See Doc. 3 at~~ 9-10).
Plaintiff alleges that no such financial relationship existed and that his trial attorney admitted
under oath in March 20 I 4 that plaintiffs legal team "never challenged the validity or
truthfulness of the Government Exhibits." (Id. at ~ 13).
Based on his belief that the relevant government exhibits used at his criminal trial were
neither valid nor truthful, plaintiff alleges that he sent an FOIA request by certified mail to the

Cincinnati office of the United States Attorney for the Southern District of Ohio on February 8,
2016. (Id. at ~ 14). In the request, plaintiff sought "certified and authenticated records" related
to the alleged "$4,000,000 obligation the government claims [plaintiff] had with PNC in 2004."

(Id.). Plaintiff alleges that defendants received the FOIA request on February 12, 2016, but had
not responded to it as of his filing of the instant action on May 6, 2016. (See id. at~~ 14-15).
Plaintiff alleges he sent the FOIA request to the Cincinnati office of the United States Attorney,
but asked that his request be forwarded to the "responsible government official for timely
processing" pursuant to 28 C.F .R. § 16.4. (Id.

at~

16). Plaintiff has attached to his complaint a

copy of his FOIA request dated February 8, 2016. (FOIA Request, Exh. A to Complaint, Doc. 3
at PAGEID# 62-64).

II. Defendants' Motion to Dismiss
Defendants argue that plaintiffs complaint must be dismissed for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(l) because plaintiff failed to exhaust his administrative
remedies prior to filing this action. (Doc. 8 at 1). Defendants assert that the United States
Attorney's Office for the Southern District of Ohio has no record of having received an FOIA
request from plaintiff on February 12, 20 16. (Id. at 2, 7). In support, they submit the declaration
of deputy civil chief Matthew J. Horwitz, who attests that the electronic record system used by
the Department of Justice to track and respond to FOIA requests "does not reflect that the letter
at issue ... was received by the United States Attorney's Office for the Southern District of Ohio
or the Executive Office for United States Attorneys." (Declaration of Matthew J. Horwitz, Doc.
8-1 ). Defendants argue that even if plaintiff did make an FOIA request, he mailed it to the
wrong office. (Doc. 8 at 7). Defendants contend that because they never received plaintiffs

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FOIA request, " (t]he administrative exhaustion requirement has not yet been triggered in this
case" and plaintiff cannot prove that the Court has subject matter jurisdiction. (Id. at 8).
Plaintiff disputes that he failed to exhaust his administrative remedies in this case.
Plaintiff attests that he sent a certified letter regarding his FOIA request to the United States
Attorney's office on February 8, 2016. (Doc. 10 at 1). Attached to plaintiff's declaration is a
copy of a certified mail receipt postmarked February 9, 2016 for a piece of mail sent to the
Cincinnati office of the United States Attorney. (See Doc. 10-1 at 1). Plaintiff has also
submitted tracking information that indicates this mail was delivered to "Cincinnati, OH 45202"
on February 12, 2016. (Id. at 2). Plaintiff argues that even ifhe mailed his FOIA request to the
wrong office, defendants were required under 28 C.F.R. § 16.4 to forward the request to the
appropriate office. (Doc. 12 at 6-7).

The Jurisdictional Issue
The first question the Court must answer is whether plaintiff's alleged failure to exhaust
his administrative remedies deprives the Court of jurisdiction over this case. The FOIA
provides, in relevant part:
On complaint, the district court of the United States in the district in which the
complainant resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia, has jurisdiction to enjoin the
agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant.
5 U.S.C. § 552(a)(4)(B). Exhaustion of administrative remedies is a "mandatory prerequisite" to
filing a lawsuit under the FOIA. Ning Ye v. Holder, 624 F. Supp.2d 121 , 123 (D.D.C. 2009)
(quoting Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004)). A person making an FOIA request
"shall be deemed to have exhausted his administrative remedies" if the agency fails- absent
exceptional circumstances-to determine within 20 days after receipt of the request whether to

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comply with the 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." 5 U.S.C. § 552(a)(6)(A)(i), (C)(i).
In a 2001 opinion not selected for publication, the Sixth Circuit held that a plaintiffs
failure to administratively exhaust an FOIA claim "deprived the district court of jurisdiction."

Reisman v. Bullard, 14 F. App'x 377, 379 (6th Cir. 2001) (citing In re Steele, 799 F.2d 461, 46566 (9th Cir. 1986); Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981)). However, since
the Reisman decision, the Supreme Court has repeatedly cautioned that courts should not treat a
rule as jurisdictional unless Congress has "clearly state[d]" so. Arbaugh v. Y & H Corp., 546
U.S. 500, 515-16 (2006). Accord Sebelius v. Auburn Reg '! Med. Ctr., 133 S.Ct. 817, 824 (2013);

Henderson v. Shinseki, 562 U.S . 428, 434-41 (2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S.
154, 161-66 (2010); Union Pac. R.R. Co. v. Bhd. ofLocomotive Eng 'rs & Trainmen Gen. Comm.

ofAdjustment, Cent. Region, 558 U.S. 67, 81-86 (2009). Further, the other courts of appeals to
consider the issue have concluded that exhaustion of administrative remedies is not a
jurisdictional prerequisite to filing an FOIA action in federal court. See, e.g., Hull v. lR.S., U.S.

Dep 't a/Treasury, 656 F.3d 1174, 1181-82 (10th Cir. 2011); Hidalgo v. FBI, 344 F.3d 1256,
1258 (D.C. Cir. 2003); Taylor v. Appleton, 30 F.3d 1365, 1367 n.3 (11th Cir. 1994); McDonnell

v. United States, 4 F.3d 1227, 1240 n.9 (3d Cir. 1993); Matter ofLawrence, 4 F.3d 996, 1993
WL 360952 at *2 n.3 (7th Cir. 1993) (table decision).
The Court finds that Congress has not given a clear statement that a plaintiffs failure to
exhaust administrative remedies strips a federal court of jurisdiction to consider his complaint.

See 5 U.S.C. § 552(a)(6)(C)(i). This is especially evident when the exhaustion provision in§
552(a)(6)(C)(i) is considered alongside the provision in§ 552(a)(6)(E)(iv) concerning expedited

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processing of FOIA requests, which does provide a clear statement that the courts are deprived of
jurisdiction in certain other circumstances. See 5 U.S .C. § 552(a)(6)(E)(iv) ("A district court of
the United States shall not have jurisdiction to review an agency denial of expedited processing
of a request for records after the agency has provided a complete response to the request.").
Given this analysis of the statutory text, the Supreme Court's repeated cautionary language
narrowing jurisdictional dismissals in the absence of a clear statement from Congress, and the
weight of persuasive authority, the Court finds that defendants' motion is not properly brought
under Rule 12(b)(l) for lack of subject matter jurisdiction.
However, while a failure to exhaust administrative remedies is not grounds for a
jurisdictional dismissal under Rule l 2(b )(I), it may still be grounds for dismissal of plaintiffs
complaint under Rule l 2(b)(6) for failure to state a claim upon which relief can be granted. In
considering a Rule 12(b)(6) motion, the Court may not ordinarily "consider matters beyond the
complaint." Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir. 2001). Nevertheless, the
Court may consider evidence outside the complaint in ruling on a Rule 12(b)(6) motion by
converting it to a motion for summary judgment. Id. " If the district court chooses to treat the
motion as one for summary judgment, it must give the parties a reasonable opportunity to present
all material made pertinent to such a motion by Rule 56." Id. at 644 (quotation omitted). A
plaintiff may have received such a "reasonable opportunity" if he "file[ d] any affidavits or other
documents outside the pleadings that would give him notice that the district court might venture
outside the pleadings." Id. Here, plaintiff received such a reasonable opportunity to present all
material pertinent to the question whether he properly exhausted his administrative remedies, as
evidenced by his filing a declaration in support, a certified mail receipt, and tracking
information. (See Doc. 10 at 1; Doc. 10-1 at 1-2); See Baldwin v. Wynne, No. 3 :08-cv- l , 2009

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WL 1032850, at *2 (S.D. Ohio Apr. 16, 2009) (considering Rule l 2(b )(6) motion under
summary judgment principles where plaintiff "was given a full opportunity to present responsive
matter outside the pleadings"). Accordingly, the Court will decide the motion to di smiss for
failure to exhaust under summary judgment standards.
Summary Judgment Standard

A motion for summary judgment should be granted if the evidence submitted to the Court
demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled
to judgment as a matter oflaw. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). Under Federal Rule
of Civil Procedure 56(c), a grant of summary judgment is proper if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
oflaw." Satterfield v. Tennessee, 295 F.3d 611 , 615 (6th Cir. 2002). The Court must evaluate
the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving
party. Satterfield, 295 F.3d at 615; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S.
574, 587 (1986); Little Caesar Enters., Inc. v. OPPC. LLC, 219 F.3d 547, 551 (6th Cir. 2000).
The trial judge' s function is not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at
249. The trial court need not search the entire record for material issues of fact, Street v. J. C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine "whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter oflaw." Anderson, 477 U.S. at 251-52.

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Administrative Exhaustion under the FOIA
The " FOIA provides for two different types of exhaustion, actual and constructive."

Ocon-Fierro v. Drug Enforcement Admin. , No. l: 10-cv-1228, 2013 WL 869911, at *6 (W.D.
Mich. Feb. 15, 2013) (Report and Recommendation) (quoting Taylor, 30 F.3d at 1368), adopted
2013 WL 868325 (W.D. Mich. March. 7, 2013). "Actual exhaustion occurs when the agency
denies all or part of a party' s document request. Constructive exhaustion occurs when certain
statutory requirements are not met by the agency." Id. (quoting Taylor, 30 F.3d at 1368). "[A]
person making a records request shall be deemed to have constructively exhausted his
administrative remedies if the agency fails to respond within the statutory time limitations."

Miller v. Fed. Elections Comm 'n, No. 1: l 2-cv-242, 2013 WL 4243044, at *4 (S.D. Ohio Aug.
15, 2013) (citing 5 U.S.C. § 552(a)(6)(C)(i)).
"To prevail on a FOIA claim, a plaintiff must show that an agency improperly withheld
agency records." Tunchez v. U.S. Dep 't ofJustice, 715 F. Supp.2d 49, 53 (D.D.C. 2010) (citing

Kissinger v. Reporters Comm.for Freedom of the Press, 445 U.S. 136, 150 (1980)). " An agency
cannot improperly withhold records if it did not receive a request for those records." Id. (citing

Ning Ye, 624 F. Supp.2d at 123-24). The plaintiff bears the burden of establishing that the
agency received the FOIA request. See id. (finding that a return receipt for mail or a letter of
acknowledgment could constitute evidence to establish that an agency received an FOIA
request).
Here, plaintiff has failed to meet his burden of establishing that the United States
Attorney' s Office received his FOIA request. Defendants have submitted the affidavit of Mr.
Horwitz, who attests that the United States Attorney's Office has no record of having received
plaintiffs FOIA request. (See Doc. 8-1 ). In response, plaintiff has provided the Court with

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evidence-in the form of a certified mail receipt- that he mailed an item to the Cincinnati office
of the United States Attorney. (See Doc. l 0-1 at l ). However, he has not provided the Court
with sufficient evidence to establish that the United States Attorney received that piece of mail,
such as a return receipt for that mail or a letter of acknowledgment. See Tunchez, 715 F. Supp.2d
at 53. In fact, the certified mail receipt that plaintiff has submitted shows that he did not
purchase return receipt service. (See Doc. l 0-1 at l ). While plaintiff has submitted tracking
information from the United States Postal Service's website, this is insufficient to establish that
the agency actually received plaintiff's request. The tracking information shows only that the
item was delivered to somewhere in "Cincinnati, OH 45202," not the specific address of the
Cincinnati office of the United States Attorney. (See id. at 2).
In reaching this conclusion, the Court finds persuasive the reasoning in Ning Ye. In that
case, the plaintiff presented a copy of a letter from FedEx to an unidentified "FedEx Customer,"
stating that on a specific date, "M. Parris" signed for a parcel in Washington D.C. Ning Ye, 624
F. Supp.2d at 124. The court found that this letter failed to create a disputed issue of fact
regarding whether the agency received the FOIA request because the letter did "not identify the
shipper, the addressee, the parcel, or the relationship between ' M. Parris' and the unknown
addressee." Id. Therefore, the court found " no basis to discredit" the agency' s sworn declaration
that it had no record of the FOIA request. Id. Similarly, the tracking information that plaintiff
has submitted in this case does not show the address to which the item was delivered, nor that
anyone signed for it. Thus, because plaintiff has failed to establish that the United States
Attorney received his FOIA request, he has not exhausted his administrative remedies. See id.
(citing West v. Jackson, 448 F. Supp.2d 207, 211 (D.D.C. 2006)).

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Accordingly, defendants' motion to dismiss, considered under summary judgment
standards, should be granted and plaintiff's FOIA claim should be dismissed without prejudice. 1

III. Conclusion
Based on the foregoing, it is RECOMMENDED that defendants' motion to dismiss be
GRANTED.

~x~

Date:

Karen L. Litkovitz
United States Magistrate Judge

1

Should plaintiff still wish to pursue an FOIA request with the United States Attorney, he could begin the process
again by resubmitting the request and ensuring receipt. "Depending on the outcome ofth[is] request[], [plaintiff]
could certainly file another FOIA-related lawsuit" if the United States Attorney's Office fails to comply with the
requirements of the FOIA and plaintiff exhausts his administrative remedies concerning a resubmitted request. Ning
Ye , 624 F. Supp.2d at 124 n.2 .

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UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ORLANDO CARTER,
Plaintiff,

Case No: 1: l 6-cv-530
Barrett, J.
Litkovitz, M.J.

vs.
UNITED STATES OF AMERICA, et al.,
Defendants.
NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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