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HUTCHINS v. DEPARTMENT OF JUSTICE

United States District Court for the District of Columbia


June 6, 2005.

TERRENCE B. HUTCHINS, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

The opinion of the court was delivered by: HENRY KENNEDY, District Judge

MEMORANDUM OPINION

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.

I. BACKGROUND

  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 matter further.

  II. DISCUSSION

  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. 1994).

  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. 2003).

  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 will be issued separately on this same date.


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