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Brown v. F.B.I.

December 28, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Timothy Demitri Brown filed this pro se complaint under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, against the FBI, other components of the Department of Justice ("DOJ"), and the DOJ itself. The defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or in the alternative for summary judgment under Rule 56, and Brown filed a cross-motion for summary judgment. Brown's claims regarding "federal questions" will be dismissed for lack of subject matter jurisdiction because they seek relief that is not available under the FOIA. As to Brown's FOIA claims, because two were not administratively exhausted, and there is no genuine factual dispute regarding the other and defendants are entitled to summary judgment as a matter of law, the defendants' motion will be granted. All other pending motions will be denied as moot.


At issue in this case are the defendants' responses to three FOIA requests by Brown and requests to answer what Brown characterizes as "federal questions." See Pl.'s Decl. and Response to Defs.' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Pl.'s Opp'n") at 1 (identifying three FOIA requests and two "federal questions" in dispute); Pl.'s Statement of Genuine Issues, Supplement to Plaintiff's Response ("Pl.'s Suppl.") at 1-2 (identifying two FOIA requests and two "federal questions" in dispute).*fn1 Brown sent the oldest of the disputed FOIA requests to the FBI's office in Alexandria, Louisiana (the "Alexandria Request"), and requested records pertaining to himself. Defs.' Statement of Material Facts Not in Dispute ("Defs.' Facts") ¶ 5; see Pl.'s Opp'n at 2; Pl.'s Suppl. at 1. The precise date and scope of the request are unknown, as the parties have not placed the document in the record.*fn2

The other two FOIA requests in dispute are both dated November 9, 2006. Brown sent one to the FBI headquarters in Washington. See Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Defs.' Mot."), Declaration of David M. Hardy, March 14, 2008 ("Hardy Decl.") Ex. I. He sent the other to the BOP at its South Central Regional Office in Dallas, Texas. See id., Declaration of Karen Summers, Aug. 11, 2008 ("Summers Decl.") Ex. 1. Both requests sought information relating to a book authored by the plaintiff called "Tyrant Wanted," and an investigation related to that book. See Hardy Decl., Ex. I; Summers Decl. Ex. 1.

The record in this case does not reveal any actual FOIA requests related to "federal questions." Nonetheless, Brown mentions the questions in the complaint and his submissions opposing the defendants' dispositive motion. The "federal questions" Brown asks are whether the federal government "exercised exclusive legislative jurisdiction over the property located at 3708 Third Street, Alexandria, Louisiana on or before May 31, 2001[,]" and what is "the legal status of 21 U.S.C. §§ 841 and 846," prohibiting trafficking in controlled or counterfeit substances, and engaging in a narcotics conspiracy. Pl.'s Opp'n at 4; Pl.'s Suppl. at 2-3.

The defendants move under Rule 12(b)(6) to dismiss for failure to state a claim or alternatively move under Rule 56 for summary judgment. Brown likewise seeks summary judgment.


A FOIA claim should be dismissed if the plaintiff did not exhaust his administrative remedies before filing suit. Hidalgo v. FBI, 344 F.3d 1256, 1258-60 (D.C. Cir. 2003) (teaching that a plaintiff who has not exhausted his administrative remedies has failed to state a claim upon which relief may be granted). Here, because both parties have submitted declarations in support of their positions with respect to the pending dispositive motions, the motions will be analyzed as ones made under Rule 56. See Fed. R. Civ. P. 12(d) (requiring a motion made under Rule 12(b)(6) to be treated as one under Rule 56 if matters outside the pleadings are considered). A motion under Rule 56 must be granted if the pleadings and evidence on file show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A material fact is one that is capable of affecting the outcome of the litigation. Id. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id. at 247, as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. In considering whether there is a triable issue of fact, a court must draw all reasonable inferences in favor of the non-moving party. Id. at 255. The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. at 248; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (stating that a genuine issue is one that would permit a reasonable jury to find in favor of the non-moving party). The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

An agency is entitled to summary judgment if it demonstrates that no material facts are in dispute and that it conducted a search of records in its custody or control, Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-51 (1980), that was reasonably calculated to uncover all relevant information, Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), which either has been released to the requestor or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). To show that its search "us[ed] methods which can be reasonably expected to produce the information requested," Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see also Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), the agency may submit affidavits or declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations reflecting a search reasonably calculated to uncover all relevant information are sufficient to demonstrate an agency's compliance with the FOIA. Perry, 684 F.2d at 127. A search need not be exhaustive, Miller v United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985), and the adequacy of a search is not determined by its results, but by the method of the search itself. Weisberg, 745 F.2d at 1485. An agency's failure to find a particular document does not necessarily indicate that its search was inadequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).

A. The Alexandria Request

"FOIA requires agencies to make records available in response to any request 'made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed.'" Church of Scientology of California v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986) (quoting 5 U.S.C. § 552(a)(3)(A)); accord Moayedi v. U.S. Customs and Border Protection, 510 F. Supp. 2d 73, 81 (D.D.C. 2007) (stating that "the FOIA requires that a request be made in accordance with the agency's published FOIA rules") (internal alterations and quotation marks omitted). The DOJ publishes regulations that tell a requester how to make and where to send a FOIA request. That regulation provides in pertinent part as follows:

In most cases, your FOIA request should be sent to [the DOJ] component's central FOIA office. For records held by a field office of the . . . FBI, however, you must write directly to that FBI . . . field office address, which can be found in most telephone books or by calling the [FBI's] central FOIA office. If you cannot determine where within the Department to send your request you may send it to the FOIA/PA Mail Referral Unit, Justice Management Division, U.S. Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC 20530-0001. That office will forward your request to the component(s) it believes most likely to have the records that you want.

28 C.F.R. ยง 16.3(a). Here, Brown did not send his Alexandria Request either to the FOIA/PA Mail Referral Unit or to an FBI field office, but to the FBI's Alexandria, Louisiana office, which is not identified in the applicable regulation and is not an FBI field office. See Defs.' Reply at 2-3. Thus, Brown's Alexandria Request did not comply with "the statutory command that [FOIA] requests be made in accordance with published rules." Church of Scientology of California, 792 F.2d at 150. As such, the Alexandria Request did not constitute a proper FOIA request and did not trigger an agency's obligation to respond. As Brown ...

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