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: Urbina, District Judge.
GRANTING THE DEFENDANT'S MOTION TO DISMISS; GRANTING THE
PLAINTIFF'S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT
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
plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs
claim. Def.'s Mot. to Dismiss at 1-4. In response, on February
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 plaintiffs motion for leave to file a
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.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 plaintiffs favor.
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974), overturned on other grounds, Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(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, 92 S.Ct. 594, 30 L.Ed.2d
652 (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."
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 1995. 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
plaintiffs complaint and thus grants the defendant's motion to
dismiss. Spannaus, 824 F.2d at 55.
B. The Court Grants the Plaintiffs 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.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, 78 S.Ct. 99, 2 L.Ed.2d 80 (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 56 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
strategy 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. 2.
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 plaintiffs 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 plaintiffs motion will not
surprise or prejudice the defendant that is already familiar
with the 1995 request. Montgomery Envtl. Coalition,
366 F. Supp. at 266; Quaratino, 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 plaintiffs 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.