United States District Court, District of Columbia
March 21, 2002
JUDICIAL WATCH, INC., PLAINTIFF,
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION TO DISMISS
Implicating constitutional issues courts rarely addressed only a decade
ago, this case involves technology that would allegedly allow the Federal
Bureau of Investigation ("FBI" or "the defendant") to "wiretap" the
Internet. Judicial Watch, Inc. ("the plaintiff") brings this action
against the FBI*fn1 for an alleged failure to comply with the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552. The alleged violation
stems from the defendant's refusal to respond to the plaintiff's FOIA
request for documents related to the FBI's automated system called
"Carnivore." The plaintiff seeks declaratory and injunctive relief under
FOIA. The defendant moves to dismiss the complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) based on the plaintiff's
failure to exhaust administrative remedies, and thus for lack of
jurisdiction, and failure to state a claim on which relief can be
granted. For the reasons that follow, the court will grant the
defendant's motion to dismiss.
On July 15, 2000, Judicial Watch sent a FOIA request via fax and
certified mail to the defendant requesting certain records related to
Carnivore. See Compl. at 2 & Ex. 1; Def.'s Mot. to Dismiss ("Mot. to
Dismiss") at 1 & Ex. 1. Known as a "packet sniffer," Carnivore analyzes
data flowing through computer networks, allowing law enforcement
officials to monitor e-mail messages of criminal suspects. See Compl.
Ex. 1. Civil liberties groups are interested in Carnivore because of the
potential Fourth Amendment search and seizure concerns the system
allegedly raises. See id. Judicial Watch claims that Carnivore allows
the FBI to "wiretap" the Internet. See Compl. at 2. The FBI responded in
a letter to Judicial Watch dated July 21, 2000, acknowledging receipt of
Judicial Watch's request and assigning it a Freedom of
Information-Privacy Acts ("FOIPA") number. See Mot. to Dismiss at 1,
Ex. 1; Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n") at 3. The July 21,
2000 letter advised Judicial Watch that the defendant had been
experiencing processing delays and would process its request as soon as
possible. See Mot. to Dismiss Ex. 1.
In a letter to Judicial Watch dated August 17, 2000, the defendant
stated that approximately 3,000 pages*fn2
of material responsive to
Judicial Watch's FOIA request had been located and that interim releases
of information would begin in about 45 days. See Mot. to Dismiss at 1,
Ex. 1; Pl.'s Opp'n at 3-4. The August 17, 2000 letter denied Judicial
Watch's request for a fee waiver*fn3
and requested that Judicial Watch
indicate in writing its willingness to pay the initial processing fee of
approximately $290.00. See Mot. to Dismiss at 1-2, Ex. 1; Pl.'s Opp'n at
4. The August 17, 2000 letter did not advise Judicial Watch of its right
to appeal the decision to the head of the agency pursuant to
5 U.S.C. § 552(a)(6)(A)(i). See Pl.'s Opp'n at 4.
On October 2, 2000, the defendant sent Judicial Watch 565 pages of
material responsive to its FOIA request.*fn4 See Mot. to Dismiss at 2,
Ex. 1. Judicial Watch claims that it never received these documents.
See Compl. at 2; Pl.'s Opp'n at 4. Judicial Watch did not pay the $46.50
duplication fee requested in the August 17, 2000 letter, nor did it
provide a written willingness to pay for the remaining pages. See Mot. to
Dismiss at 2.
On February 1, 2001, Judicial Watch filed its complaint in this court.
The defendant filed a motion to dismiss on March 19, 2001 pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). On April 2,
2001, Judicial Watch filed an opposition to the defendant's motion to
dismiss, in which it agreed to pay the $290.00 duplication fee if the
defendant produced the rest of the documents without delay. See Pl.'s
Opp'n at 5.
For the reasons that follow, the court agrees with the defendant that
this court lacks subject-matter jurisdiction because the plaintiff has
failed to exhaust its administrative remedies. Accordingly, the court
will grant the defendant's motion to dismiss.
A. Legal Standard for a Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears
the burden of establishing that the court has jurisdiction. See District
of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431
(D.D.C. 1987). In evaluating whether subject-matter jurisdiction
exists, the court must accept all the complaint's well-pled factual
allegations as true and draw all reasonable inferences in the plaintiff's
favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overturned on
other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The court
need not, however, accept inferences unsupported by the facts alleged or
legal conclusions that are cast as factual allegations. See, e.g.,
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Moreover, the court need not limit itself to the allegations of the
complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.
1986), vacated on other grounds by 482 U.S. 64 (1987). Rather, the court
may consider such materials outside the pleadings as it deems appropriate
to determine whether it has jurisdiction in the case. See Herbert v.
National Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need
only provide a short and plain statement of the claim and the grounds on
which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson,
355 U.S. 41, 47 (1957). A motion to dismiss under Rule 12(b)(6) tests
not whether the plaintiff will prevail on the merits, but instead whether
the plaintiff has properly stated a claim. See FED. R. CIV. P.
12(b)(6); Scheuer, 416 U.S. at 236. The plaintiff need not plead the
elements of a prima-facie case in the complaint. See Sparrow v. United
Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000); see also
Swierkiewicz v. Sorema N.A., 2002 WL 261807 (U.S., Feb. 26, 2002)
(holding that a plaintiff in an employment-discrimination case need not
establish her prima-facie case in the complaint). Thus, the court may
dismiss a complaint for failure to state a claim only if it is clear that
no relief could be granted under any set of facts that could be proved
consistent with the allegations. See Hishon v. King & Spalding,
467 U.S. 69, 73 (1984); Atchinson v. District of Columbia, 73 F.3d 418,
422 (D.C. Cir. 1996). In deciding such a motion, the court must accept
all the complaint's well-pled factual allegations as true and draw all
reasonable inferences in the nonmovant's favor. See Scheuer, 416 U.S. at
B. The Plaintiff Has Failed to Exhaust its Administrative Remedies
FOIA requires a plaintiff to exhaust its administrative remedies before
seeking judicial review of a FOIA request. See
5 U.S.C. § 552(a)(6)(A)(i)-(ii). The agency receiving a plaintiff's
FOIA request must determine within 20 days whether it will comply with
the request and "notify the person making such request . . . 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). To exhaust its
administrative remedies, the party making the FOIA request must first
appeal to the
head of the agency.*fn5 See Thomas v. Office of U.S. Attorney for the
Eastern Dist. of New York, 171 F.R.D. 53 (E.D.N.Y. 1997). A plaintiff's
failure to exhaust administrative remedies precludes a federal court from
exercising subject-matter jurisdiction over the party's FOIA claims. See
id. "The exhaustion requirement . . . allows the top managers of an
agency to correct mistakes made at lower levels and thereby obviates
unnecessary judicial review." Oglesby v. United States Dep't of the
Army, 920 F.2d 57, 61 (D.C. Cir. 1990).
The plaintiff argues that it has exhausted its administrative remedies
pursuant to 5 U.S.C. § 552(a)(6)(C), which states that exhaustion
occurs if the agency fails to respond to a party's FOIA request within
the 20-day response period set forth in
5 U.S.C. § 552(a)(6)(A)(i).*fn6
See Compl. at 2. According to the
plaintiff, the defendant's July 21, 2000 letter did not constitute a
proper response under 5 U.S.C. § 552(a)(6)(A)(i) because it was only
an acknowledgment of receipt and did not advise the plaintiff of its
right to appeal. See Pl.'s Opp'n at 3.
The court deems the plaintiff's constructive exhaustion argument
irrelevant, however, for two reasons. First, the plaintiff never paid
the fees imposed by the defendant. The D.C. Circuit has held that
failure to pay FOIA fees constitutes a failure to exhaust administrative
remedies. See Oglesby, 920 F.2d at 66 (stating that "[e]xhaustion does
not occur until the required fees are paid or an appeal is taken from the
refusal to waive fees"); see also Crooker v. United States Secret Serv.,
577 F. Supp. 1218, 1220 (D.D.C. 1983) (granting the defendant's motion to
dismiss because the plaintiff failed to respond to or appeal the
defendant's request for payment).
Second, the plaintiff filed suit after the defendant had already
responded to its request. Once an agency has responded to the request,
regardless of whether the response is timely under
5 U.S.C. § 552(a)(6)(C), the requestor can seek judicial review only
after appealing to the agency first. See Oglesby, 920 F.2d at 61; McCall
v. U.S. Marshals Service, 36 F. Supp.2d 3, 5 (D.D.C. 1999) (holding that
a "FOIA plaintiff's option to proceed to court without pursuing an . . .
administrative appeal terminates when the agency responds before the
plaintiff goes to court"). Thus, the court does not need to consider
whether the defendant's July 21, 2000 letter was an adequate response
under 5 U.S.C. § 552(a)(6)(A)(i) because the defendant sent
additional letters dated August 17, 2000 and October 2, 2000 before the
plaintiff filed suit. See Oglesby, 920 F.2d at 69; Mot. to Dismiss Ex.
The court concludes that the plaintiff has failed to exhaust its
administrative remedies. Accordingly, the court lacks subject-matter
jurisdiction under Rule 12(b)(1) and the court need not address the
defendant's argument pursuant to 12(b)(6).*fn7
For all these reasons, the court grants the defendant's motion to
dismiss. An order directing the parties in a manner consistent with this
is separately and contemporaneously issued this ___ day of March, 2002.
ORDER GRANTING THE DEFENDANT'S MOTION TO DISMISS
For the reasons stated in this court's Memorandum Opinion separately
and contemporaneously issued this ___ day of March, 2002, it is ORDERED
that the defendants' motion to dismiss is GRANTED.