The opinion of the court was delivered by: HENRY KENNEDY, District Judge
This matter is before the Court on plaintiff's motion to
reinstate this action and on defendants' motion to dismiss the
remaining complaint.*fn1 The Court will grant both motions.
Plaintiff submitted two FOIA requests in 1997. In October 1997,
plaintiff submitted a FOIA request to the Federal Bureau of
Investigation Headquarters ("FBIHQ") in Washington, DC for
records about himself. Hodes Decl. ¶ 4 & Ex. A. Ultimately, FBIHQ
processed 1,611 pages of records, withheld 597 pages, and
released 962 pages to plaintiff. Kiefer Decl. ¶ 9.
In November 1997, plaintiff submitted a FOIA request to the
United States Attorney's Office for the Southern District of
Florida (West Palm Beach Division) ("USAO/SDFL"). Compl. at 1;
Pl.'s Opp., Ex. (Freedom of Information/Privacy Act Request
signed on November 29, 1997).*fn2 He sought records pertaining to his criminal
case, United States v. Terrence Bernard Hutchins, Case No.
95-8089-CR-HURLEY. Id., Ex. A. Plaintiff received no response
to this request.
The Court's October 27, 2003 Order granted defendant's summary
judgment motion in part and denied the motion in part without
prejudice. With respect to plaintiff's FOIA request to FBIHQ, the
Court concluded that the agency's search was adequate, and that
it properly withheld records under the claimed exemptions.
However, because defendant's motion did not address plaintiff's
FOIA request to the USAO/SDFL, the Court did not address the
A complaint should not be dismissed for failure to state a
claim unless the plaintiff can prove no set of facts in support
of his claim that would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). The ruling on a motion under
Rule 12(b)(6) does not test a plaintiff's likelihood of success
on the merits; rather, it tests whether a plaintiff properly has
stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). The factual allegations of the complaint must be presumed
to be true and liberally construed in plaintiff's favor. See,
e.g., United States v. Phillip Morris, Inc., 116 F.Supp. 2d 131,
135 (D.D.C. 2001). The Court, however, is not obligated to draw
an inference that is not supported by the facts presented. Kowal
v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.
Generally, a person submits his FOIA request to the Department
of Justice by sending the reuqest directly to the FOIA office of
the component that maintains the records sought. See 28 C.F.R. § 16.3(a). A request is deemed "received" as of the date
on which the proper component's FOIA office receives the request.
Id. "If no FOIA request is received, an agency has no reason to
search or produce records and similarly has no basis to respond."
Carbe v. Bureau of Alcohol, Tobacco and Firearms, No. 03-1658,
2004 WL 2051359 *8 (D.D.C. Aug. 12, 2004).
A person who is not satisfied with the Justice Department
component's initial response to a FOIA request must appeal the
decision to the Office of Information and Privacy ("OIP"). See
Boseker Decl., ¶¶ 10-11 & Ex. C-2. A plaintiff "may generally
seek judicial review of his FOIA request only after he has
exhausted all administrative remedies." Pollack v. Dep't of
Justice, 49 F.3d 115, 118 (4th Cir. 1995). "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. United
States Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)
(citing McKart v. United States, 395 U.S. 185, 194 (1969)).
Absent exhaustion, a FOIA suit is subject to dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Hidalgo v.
Federal Bureau of Investigation, 344 F.3d 1256, 1260 (D.C. Cir.
Defendants state that the Department of Justice, Executive
Office for United States Attorneys ("EOUSA"), has no record of
having received plaintiff's November 29, 1997 FOIA
request.*fn3 Def.'s Mot., Ex. (Boseker Decl.), ¶¶ 7-8. There
is, however, a record of EOUSA's receipt on April 19, 2002 of a
FOIA request in which plaintiff requested "any and all records
referencing [plaintiff] and alleged co-conspirator(s) that are
maintained at the EOUSA." Boseker Decl., Ex. C-1 (FOIA request dated March 2, 2002). The declarant
states that the EOUSA responded to this request in October 2002,
and that, as plaintiff concedes, plaintiff did not appeal its
determination.*fn4 Id., ¶¶ 10-11; Pl.'s Opp. at 3.
Defendants argue that the agency was under no obligation to
respond to a FOIA request that it did not receive. In the
alternative, defendants argue that plaintiff's March 2, 2002
request is a duplicate of the November 29, 1997 request, and
plaintiff's failure to appeal the EOUSA's determination deprives
the court of jurisdiction. Both arguments are persuasive.
Although plaintiff shows that he mailed a FOIA request on or
about November 29, 1997 directly to the United States Attorney's
Office in West Palm Beach, Florida, there is nothing in the
record to show its receipt. Pl.'s Opp. at 5 & Ex. (Freedom of
Information/Privacy Act Request signed on November 29, 1997).
Without any showing that the agency received the request, the
agency has no obligation to respond to it. It appears that
plaintiff's March 2, 2002 request is a duplicate of the wayward
November 29, 1997 request. Plaintiff's failure to appeal the
EOUSA's initial determination to OIP renders this action subject
to dismissal for failure to exhaust administrative remedies. III. CONCLUSION
The Court will grant plaintiff's motion to reinstate this case,
and will grant defendants' motion to dismiss. An Order consistent
with this Memorandum Opinion ...