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Walsh v. F.B.I.

United States District Court, District of Columbia

November 21, 2012

Rory WALSH, Plaintiff,
v.
FEDERAL BUREAU of INVESTIGATION, et al., Defendants.

Page 81

[Copyrighted Material Omitted]

Page 82

Rory M. Walsh, York, PA, pro se.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff Rory Walsh, on his own behalf and as the natural guardian of minor S.J.W., brings claims under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., against the Federal Bureau of Investigation (" FBI" ), the Department of Veteran Affairs (" VA" ), Director James R. Clapper of the Office of the Director of National Intelligence (" ODNI" ) in his official capacity, and the Foreign Intelligence Surveillance Court (" FISC" ). The defendants have moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment under Federal Rule of Civil Procedure 56, arguing that Walsh failed to exhaust his administrative remedies before seeking judicial review. Because administrative remedies were never exhausted for FOIA requests or appeals that Walsh allegedly sent to the VA and ODNI but that those agencies have no record of, the defendants' motions for summary judgment with respect to the VA and ODNI claims will be granted. Because the FISC is not subject to the FOIA, Walsh's claims against the FISC will be dismissed. However, because there is a factual dispute regarding whether Walsh was properly informed of his administrative remedies by the FBI, the FBI's motion to dismiss will be denied. [1]

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BACKGROUND

Walsh is a former Marine Corps officer. Compl. ¶ 7. In his complaint, Walsh describes at length his relationship with a former Commandant of the Marine Corps named Michael Hagee, and Hagee's alleged harassment of Walsh and role in an ongoing coverup of a " pre-meditated murder attempt" on Walsh when Walsh was serving as a Marine. Id. ¶¶ 14, 17, 22. According to the complaint, Hagee has been harassing and " throwing national Counter-Intelligence forces" at Walsh for over twenty-two years, since Walsh served under Hagee as a rifle company commander. Id. ¶¶ 13, 14. Walsh alleges that Hagee is now an agent of the " ultra secret NCCCIC [National Center for the Coordination of Counter-Intelligence Committee]," an alleged " part of the DNI structure of forces." Id. ¶¶ 2, 13. Walsh states that in recent years, Hagee has placed Walsh under " crushing surveillance," withheld " Walsh's VA treatments, medications, rightful VA compensation and child support," broken into Walsh's bank accounts, and intercepted Walsh's communications through " the U.S. Mails[.]" Id. ¶ 2. The complaint asserts that Walsh sent FOIA requests to the defendants seeking records related to Hagee's harassment and Walsh's medical records from the VA, and that the defendants have not adequately responded to his requests. Id. ¶¶ 55-58. Walsh seeks an order directing the defendants to immediately respond to his FOIA requests. Id. at 14.

The defendants have filed motions to dismiss under Rule 12(b)(6) for failure to state a claim, or in the alternative, for summary judgment under Rule 56. They argue that Walsh failed to exhaust administrative remedies under the FOIA for his VA, ODNI, and FBI claims since he did not submit FOIA requests to the VA or ODNI, and did not pursue the FBI's responses to his FOIA requests. The defendants also argue that the FISC is not subject to the FOIA. Walsh has opposed the defendants' motions.

DISCUSSION

Courts ordinarily analyze under Rule 12(b)(6) an agency's argument that a FOIA requester has failed to initiate a FOIA claim or failed to exhaust administrative remedies. See Tereshchuk v. Bureau of Prisons,851 F.Supp.2d 157, 161 (D.D.C.2012). Under Rule 12(b)(6), a court can dismiss an action where the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). However, " [w]here, as here, a defendant files a motion under Rule 12(b)(6) that is supported by declarations and documentary evidence ‘ outside the pleadings [that] are presented to and not excluded by the court, the motion must be treated as one for summary judgment and disposed of as provided in Rule 56.’ " Calhoun v. Dep't of Justice, 693 F.Supp.2d 89, 90-91 (D.D.C.2010) (quoting Fed.R.Civ.P. 12(d)). If the evidence presented " is subject to conflicting ...


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