United States District Court, District of Columbia
September 6, 2002
STEVEN AFTERGOOD, PLAINTIFF,
CENTRAL INTELLIGENCE AGENCY, DEFENDANT
The opinion of the court was delivered by: Ricardo M. Urbina, District Judge
GRANTING THE DEFENDANT'S MOTION TO DISMISS;
GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO FILE A
I. INTRODUCTION AND BACKGROUND
This matter comes before the court on the defendant's motion to dismiss
for lack of subject-matter jurisdiction and the plaintiff's motion for
leave to file a supplemental complaint. On May 11, 1995, Steven
Aftergood ("the plaintiff"), filed a Freedom of Information Act
("FOIA"), 5 U.S.C. § 552 et seq., request with the Central
Intelligence Agency ("CIA" or "the defendant") seeking budget information
for the years 1947 through 1990. Compl. ¶ 14. The CIA denied the
plaintiff's request and on June 5, 1995 the plaintiff filed an
administrative appeal with the CIA. Id. ¶ 16-17. Five years later,
the CIA denied the plaintiff's appeal. Id. ¶ 18. Continuing his
effort to obtain the budget information from the CIA, the plaintiff filed
a complaint with this court on December 7, 2001. Id. ¶ 10.
On February 19, 2002, the defendant moved to dismiss this action
pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the
statute of limitations bars the plaintiff's claim. Def.'s Mot. to
Dismiss at 1-4. In response, on February 22,
2002, the plaintiff filed a
new FOIA request with the CIA that is "substantially identical" to the
1995 FOIA request. Pl.'s Mot. for Leave to File a Supp. Compl. at 1-2.
The plaintiff now seeks leave to file a supplemental complaint that cures
the original complaint's jurisdictional defect by adding claims regarding
his 2002 FOIA request. Id. at 2-4. For the reasons that follow, the
court grants both the defendant's motion to dismiss and the plaintiff's
motion for leave to file a supplemental complaint.
A. The Court Grants the Defendant's Motion to Dismiss
for Lack of Subject-Matter Jurisdiction
The defendant moves to dismiss, pursuant to Federal Rule of Civil
Procedure 12(b)(1), arguing that the statute of limitations precludes the
court's subject-matter jurisdiction. Def.'s Mot. to Dismiss at 1. On a
motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the
burden of establishing that the court has jurisdiction. Dist. 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. Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), overturned on other grounds, 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).
The plaintiff in this case filed his complaint pro se.*fn1 As such,
the court recognizes and applies to this case the principal that "[p]ro
se litigants are allowed more latitude than litigants represented by
counsel to correct defects in service of process and pleadings." Moore
v. Agency for Int'l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, a pro se
plaintiff, must still follow the Federal Rules of Civil Procedure. Id.
The applicable statute of limitations for FOIA actions is
28 U.S.C. § 2401(a), which requires that a complaint be filed within
six years of the accrual of a claim. 5 U.S.C. § 552; Spannaus v.
Dep't of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987). "Unlike an ordinary
statute of limitations, § 2401(a) is a jurisdictional condition
attached to the government's waiver of sovereign immunity, and as such
must be strictly construed." Id.
Generally, a cause of action accrues as soon as the claimant can
institute and maintain a suit in court. Spannaus, 824 F.2d at 56. More
specifically, a FOIA claim accrues once the claimant has constructively
exhausted his or her administrative remedies. Id. at 57. Constructive
exhaustion occurs when the time limits by which an agency must reply to a
FOIA claimant's request or appeal (if there is an appeal) expire.
5 U.S.C. § 552(a)(6)(C); Spannaus, 824 F.2d at 58.
Because the plaintiff filed an appeal with the CIA on June 5, 1995, and
that appeal was constructively exhausted 20 business days later when the
agency's response period expired, the cause of action accrued during July
5 U.S.C. § 552(a)(6)(A)(ii). Accordingly, the statute of
limitations for the plaintiff's 1995 FOIA request expired in July 2001,
six years after it accrued and about 5 months before the plaintiff filed
his complaint with the court. 28 U.S.C. § 2401(a). As a result, the
court lacks subject-matter jurisdiction over the plaintiff's complaint
and thus grants the defendant's motion to dismiss. Spannaus, 824 F.2d at
B. The Court Grants the Plaintiff's Motion for Leave to File a
Supplemental Complaint Based on the 2002 FOIA Request
The plaintiff filed a second FOIA request with the CIA on February 22,
2002. Pl.'s Mot. for Leave to File a Supp. Compl. at 1-2. Though the
requests were filed at different times and may have been reviewed by
different CIA employees, the 2002 FOIA request is "substantially similar"
to the 1995 FOIA request in that both request the same CIA budget
information. Id. Regarding the 2002 request, the plaintiff
constructively exhausted his administrative remedies 20 business days
after filing the 2002 request, when the agency's response period
expired. 5 U.S.C. § 552(a)(6)(A)(i). Therefore, a new cause of
action accrued on or about March 22, 2002. Id.; Pl.'s Mot. for Leave to
File a Supp. Compl. at 2. The plaintiff requests leave to file a
supplemental complaint, asserting that the addition of claims regarding
the 2002 FOIA request cures the jurisdictional defect in the original
complaint. Pl.'s Mot. for Leave to File a Supp. Compl. at 2.
A party may file supplemental pleadings "setting forth transactions or
occurrences or events which have happened since the date of the pleading
sought to be supplemented." FED. R. CIV. P. 15(d). Supplemental
pleadings may introduce new causes of action not alleged in the original
complaint so long as their introduction does not create surprise or
prejudice the rights of the adverse party. Montgomery Envtl. Coalition
v. Fri, 366 F. Supp. 261, 265-66 (D.D.C. 1973). Moreover, "leave to file
a supplemental pleading should be freely permitted when the supplemental
facts connect it to the original pleading." Quaratino v. Tiffany &
Co., 71 F.3d 58, 66 (2d Cir. 1995). Finally, the purpose of pleading "is
to facilitate a proper decision on the merits" and avoid the dismissal of
potentially meritorious claims due to procedural missteps. Conley v.
Gibson, 355 U.S. 41, 48 (1957).
In Spannaus, the D.C. Circuit discussed a FOIA requester's ability to
"later request the same information," effectively resurrecting a claim
dismissed pursuant to the statute of limitations. Spannaus, 824 F.2d at
n. 2. In holding that this ability to effectively resurrect FOIA claims
does not exempt FOIA cases from the statute of limitations, the circuit
As appellant himself has observed, little is at stake
in [holding that the cause of action is time
barred]. Appellant can simply refile his FOIA request
tomorrow and restart the process. In fact, so far as
we can tell, nothing prevents him from requesting the
same withheld documents decade after decade without
ever bringing a timely suit to compel disclosure. With
the hope that appellant will not unduly clog the
docket of an agency that has until now apparently
attempted to pursue its responsibilities diligently,
we affirm the District Court's judgment.
Id. at 61 (emphasis added).
In this case, unlike in Spannaus, the plaintiff has already resurrected
his claim by filing a new FOIA request. Pl.'s Mot. for Leave to File a
Supp. Compl. at 2. The Spannaus court implicitly endorses this
by specifically acknowledging that a requester can resurrect a FOIA claim
and, for all practical purposes, render a dismissal pursuant to the
statute of limitations meaningless. Spannaus, 824 F.2d at 61 & n.
The facts of this case present this specific procedural question: When
the statute of limitations bars the claims set out in a complaint, may
the plaintiff file a supplemental complaint that brings new similar
claims based on a subsequent similar transaction? The answer in this
FOIA case is yes, so long as the new claims replace the time-barred
claims. See Spannaus, 824 F.2d at 61 & n. 2. The issue here is not
the Spannaus issue of whether the statute of limitations applies to the
plaintiff's original claim-it does. Part II.A supra.
Though the plaintiff's new claims involve a distinct transaction (a new
FOIA request), the 2002 FOIA request is "substantially identical" to the
1995 FOIA request and discovery has not yet begun. Pl.'s Mot. for Leave
to File a Supp. Compl. at 2. Therefore, granting the plaintiff's motion
will not surprise or prejudice the defendant that is already familiar
with the 1995 request. Montgomery Envtl. Coalition, 366 F. Supp. at
266; Quarantino, 71 F.3d at 66. Accordingly, allowing the plaintiff to
supplement his pleading is appropriate. Id. Consequently, the court
grants the plaintiff leave to supplement his complaint with claims
pursuant to the 2002 FOIA request so long as the complaint no longer
includes the claims relating to the now-expired 1995 FOIA request.
For these reasons, it is this ___ day of September 2002,
ORDERED that the defendant's motion to dismiss the complaint is GRANTED,
and it is
FURTHER ORDERED that the plaintiff's motion for leave to file a
supplemental complaint is GRANTED; and it is
ORDERED that the plaintiff file the supplemental complaint in
accordance with this Memorandum Order by October 10, 2002, and the
defendant file an answer by December 10, 2002. The plaintiff is on
notice that failure to timely comply with this Memorandum Order could
lead to dismissal of the entire action.