The opinion of the court was delivered by: Reggie B. Walton United States District Judge
This matter is before the Court on defendant's motion for reconsideration of the February 8, 2006 ruling that there remains a genuine issue of material fact in dispute as to whether plaintiff exhausted his administrative remedies before filing the instant civil action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The motion will be granted.
"[T]he FOIA's administrative scheme favors treating failure to exhaust as a bar to judicial review." Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1259 (D.C. Cir. 2003). The exhaustion requirement provides an agency the "'opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.'" Wilbur v. Cent. Intelligence Agency, 355 F.3d, 675, 677 (D.C. Cir. 2004) (per curiam) (quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). To ignore the exhaustion requirement may frustrate these goals by "cut[ting] off the agency's power to correct or rethink initial judgments or errors." Hidalgo, 344 F.3d at 1260(quoting Oglesby, 920 F.2d at 64). "[I]t would be both contrary to 'orderly procedure and good administration' and unfair 'to those who are engaged in the tasks of administration' to decide an issue which [an agency] never had a fair opportunity to resolve prior to being ushered into litigation." Dettman v. Dep't of Justice, 802 F.2d 1472, 1476 n.8 (D.C. Cir. 1986) (citing United States v. Tucker Truck Lines, 344 U.S. 33, 36-37 (1952)).
In its August 19, 2003 "no records" response to plaintiff's FOIA request, the United States Secret Service ("Secret Service") informed plaintiff of his right to pursue an administrative appeal. See Lyerly Decl. ¶ 5 & Ex. D. Plaintiff was advised that within 35 days, he was required to submit his written appeal to the following individual:
Freedom of Information Appeal
Deputy Director, U.S. Secret Service
950 H Street N.W., Suite 8000
Id., Ex. D. The Secret Service has found no record of having received plaintiff's administrative appeal. Id. ¶¶ 5, 16.
Plaintiff counters by declaring that "on or about August 28, 2003, [he] forwarded a hand written appeal addressed to the Deputy Director, Freedom of Information Appeal, U.S. Secret Service, 950 H Street, Suite 8000, Washington, DC 20223. [He] received no reply to this communication." Pl.'s Decl. ¶ 9. As purported support for his position, plaintiff has submitted a copy of a certified mail return receipt stamped "received" by the Secret Service on July 8, 2003. Id., Ex. 05. Relying on this evidence, plaintiff argues the existence of a "genuine issue of material fact in dispute [that] preclude[s] entry of summary judgment in favor of the [Secret Service] based in part on [plaintiff's] sworn declaration averring that [he] appealed or attempted to appeal the agency determination." Id. ¶ 13.
Defendant argues that plaintiff failed to meet his evidentiary burden of establishing that he filed an administrative appeal by providing "evidence showing that there is a triable issue as to each element essential to that party's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Specifically, defendant notes that the certified mail return receipt predates both the Secret Service's August 19, 2003 "no records" response to plaintiff's FOIA request, and the date on which plaintiff allegedly mailed his administrative appeal. The Court agrees that this certified mail return receipt is not competent evidence of plaintiff's compliance with the FOIA's exhaustion requirement.
It is plaintiff's burden to show his prior exhaustion of his administrative remedies. Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979) (per curiam). In Williams v. McCausland, Civ. No. 90-7563 (RWS), 1994 WL 18510, *4 (S.D.N.Y. Jan. 18, 1994), the court noted that:
The burden of producing evidence of a proper appeal is on the person requesting documents under the FOIA. Otherwise, the exhaustion doctrine would be a nullity. If a party could avoid the exhaustion requirement merely by asserting that they had pursued all available administrative relief, administrative agencies would be placed in the position of having to prove the negative: that proper avenues of appeal had not been pursued. Placing the burden of proof of a proper appeal on the person seeking disclosure also comports with the principle of forensic procedure ...