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Penny v. U.S. Dep't of Justice

September 21, 2009


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

Re Document No.: 9



In this civil action brought pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the plaintiff challenges the Drug Enforcement Administration's ("DEA") response to his requests for records pertaining to himself, other individuals and certain real property. The defendant moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56.

Upon consideration of the parties' submissions and the entire record, the court dismisses without prejudice the plaintiff's claims premised on his request for third-party records because he failed to exhaust his administrative remedies with respect to those requests prior to commencing suit. With respect to his remaining requests, however, the court denies the defendant's motion without prejudice because the defendant has not submitted a competent affidavit demonstrating the reasonableness of its search efforts.


In September 2006, the plaintiff requested DEA records pertaining to himself, a search warrant issued against him in August 1990, DEA agents who executed the search warrant and a retired case agent who allegedly made a statement about the plaintiff. Def.'s Mot., Decl. of Leila I. Wassom ("Wassom Decl."), Ex. A. In addition, he also requested records pertaining to the occupants at 4901 W. Congress, Chicago, Illinois, including himself and an individual named Tammie Brown. Id. By letter dated June 1, 2007, the DEA informed the plaintiff that it could not process his request for records pertaining to third parties without a notarized privacy waiver or proof of death for each third party. Id., Ex. F. Subsequently, by letter dated June 6, 2007, the DEA informed the plaintiff that its search for records pertaining to himself and the aforementioned address returned no responsive records. Id., Ex. G. The DEA's June 6 letter invited the plaintiff to offer additional search criteria that he felt would assist in conducting a more in-depth search and advised him of his right to appeal its determination to the Department of Justice's Office of Information and Privacy ("OIP"). Id.

The plaintiff appealed to the OIP, which, by letter dated July 26, 2007, affirmed the DEA's determinations. Id., Exs. H, J. The plaintiff initiated this civil action on September 30, 2008. See generally Compl.


A. The Court Dismisses Without Prejudice the Plaintiff's Claims Predicated on his Requests for Third-Party Records for Failure to Exhaust His Administrative Remedies

The defendant contends that because the plaintiff failed to exhaust his administrative remedies with respect to his requests for records pertaining to third parties, the claims predicated on those requests should be dismissed. Def.'s Mot. at 10-12. The plaintiff does not specifically address this argument. See generally Pl.'s Opp'n. The plaintiff concedes, however, that he did not provide the required third-party privacy waivers until several months after his administrative appeal to the OIP was denied. Pl.'s Opp'n, Pl.'s Decl. ¶¶ 7-8, 15; Def.'s Mot. at 2.

"Exhaustion of administrative remedies is generally required before seeking judicial review '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.'" Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (quoting Oglesby v. Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). In the FOIA context, the exhaustion requirement is a prudential consideration, not a jurisdictional prerequisite, and therefore a plaintiff's failure to exhaust does not deprive the court of subject-matter jurisdiction. Id. But as a prudential consideration, the exhaustion requirement may still bar judicial review if both (1) the administrative scheme at issue and (2) the purposes of exhaustion support such a bar. Id. (citing Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003)). With regard to the first factor, the D.C. Circuit has concluded that the FOIA's administrative scheme supports barring judicial review.*fn1 Id. (citing Hidalgo, 344 F.3d at 1259). As for the second factor, courts look to see whether barring judicial review would "prevent[] premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review." Weinberger v. Salfi, 422 U.S. 749, 765 (1975); see also Hidalgo, 344 F.3d at 1259 (applying the Weinberger description of the purpose of exhaustion in the FOIA context).

In the instant case, the plaintiff has offered nothing to indicate that the defendant withheld any third-party records after the plaintiff submitted the required privacy waivers. See generally Compl.; Pl.'s Opp'n. To the contrary, it appears that the defendant has yet to formally respond to the plaintiff's requests for third-party records, as the defendant represents that it needs time to "authenticate the privacy waivers and begin its search for the third-party information." Def.'s Mot. at 11. As a result, it would be premature at this juncture for the court to interfere with the agency's efforts to respond to the plaintiff's requests. The court therefore dismisses without prejudice the plaintiff's claims predicated on his requests for third-party records based on his failure to exhaust administrative remedies.

B. The Defendant Is Not Entitled to Summary Judgment on Claims Predicated on the Plaintiff's Request ...

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