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Hornes v. Executive Office for United States Attorneys

September 27, 2006


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 18




In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a, the plaintiff challenges the Executive Office for United States Attorneys' ("EOUSA") responses to his FOIA request for records pertaining to himself and his PA request for an accounting of previous disclosures of such information. The Department of Justice, of which the EOUSA is a component, moves to dismiss the FOIA claim pursuant to Fed. R. Civ. P. 12(b)(1) and for summary judgment on the PA claim. Upon consideration of the parties' submissions and the entire record, the court grants summary judgment on the PA claim and denies the motion to dismiss the FOIA claim.


On December 14, 2003, the plaintiff requested from the EOUSA all records "under my name and/or identifier to my name," including bond information pertaining to his criminal prosecution in the Superior Court of the District of Columbia. The plaintiff further requested information pertaining to the disclosure, if any, of such information to "Governmental" bodies. Defs.' Motion to Dismiss and Motion for Partial Summary Judgment, Decl. of John F. Boseker ("Boseker Decl."), Ex. A. On January 23, 2004, the EOUSA acknowledged the request by letter, assigned a FOIA request number, and denied the PA request on the basis that its criminal case files are exempt from the PA's accounting disclosure requirements. Defs.' Ex. B (citing 5 U.S.C. § 552a(j) and (k)). The letter further informed the plaintiff of his right to appeal the decision to the Office of Information and Privacy ("OIP"), which the plaintiff did by letter of March 5, 2004. Defs.' Ex. C. On March 31, 2004, the OIP sent the plaintiff a letter denying the plaintiff's appeal because the EOUSA had not rendered an initial determination on the FOIA request. Defs.' Ex. D. The OIP made no reference to the denial of the PA request.

On November 18, 2004, the EOUSA responded to the FOIA request. It released to the plaintiff 42 complete pages of material and five redacted pages, and it withheld another 101 complete pages. The EOUSA informed the plaintiff that it had located no records responsive to his request for bond information and that the plaintiff could obtain relevant public records from the clerk of the court or from the EOUSA upon a separate request. Defs.' Ex. E. The EOUSA withheld records under FOIA exemptions 5, 7(C) and 7(D). Id. The letter further informed the plaintiff of his administrative appeal rights. The EOUSA has no record of the plaintiff's appeal. Boseker Decl. ¶ 14. The plaintiff formally filed this suit on December 20, 2004.


As an initial matter, the defendant seeks dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction on the ground that the plaintiff failed to exhaust his administrative remedies. The FOIA's exhaustion requirement is not jurisdictional. Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003). Rather "as a jurisprudential doctrine, [the] failure to exhaust [generally] precludes judicial review." 1258-59 (citation omitted). Thus, a dismissal for failure to exhaust is properly entered pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. See id. at 1260 (remanding with instructions for the district court to dismiss the unexhausted complaint under Rule 12(b)(6)). Because the resolution of the exhaustion question under Rule 12(b)(6) will require consideration of matters beyond the pleadings, the court will apply the standard for summary judgment to both the FOIA and PA claims. See Fed. R. Civ. P. 12(b)(6) (conversion clause); Order of June 8, 2005 (advising the plaintiff about his obligations in responding to a summary judgment motion).

A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly ...

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