United States District Court, D. Columbia.
For Edmon Felipe Elias Yunes, Plaintiff: Scott Allan Hodes, LEAD ATTORNEY, LAW OFFICES OF SCOTT HODES, Washington, DC USA.
For U.S. Department of Justice, U.S. Department of State, Defendants: John G. Interrante, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.
JOHN D. BATES, United States District Judge.
Edmon Felipe Elias Yunes asks this Court to compel the Federal Bureau of Investigation to undertake a search of his records pursuant to a Freedom of Information Act request. When he filed suit, Elias Yunes believed that the statutory period for a response had expired without any action from the FBI. But the FBI had conducted a search--and its letter to that effect crossed paths with the filing of this suit. As a result, the Department of Justice (representing the FBI) has moved to dismiss Elias Yunes's lawsuit, or alternatively to obtain summary judgment, arguing that he failed to exhaust his administrative remedies. The Court agrees.
Elias Yunes is a citizen of the Dominican Republic. Earlier this year, the United
States government revoked his visa: the Department of Justice had flagged him as a known or suspected terrorist. See Ex. B to Pl.'s Opp'n [ECF No. 11-4] at 4. On June 13, with the assistance of a lawyer, Elias Yunes submitted a FOIA request to the FBI, asking for a search of the agency's Central Records System for any information regarding criminal or terrorist activities under his name. See Ex. A to Def.'s Mot. to Dismiss [ECF No. 9-2] at 3.
From here, accounts diverge. According to the government, the FBI sent Elias Yunes's lawyer an acknowledgement letter on July 1. The letter indicated that the agency had begun searching its records for responsive information and provided Elias Yunes with his request number. See Ex. B to Def.'s Mot. [ECF No. 9-2] at 6; Hardy Decl. [ECF No. 9-1] at 3. Elias Yunes's lawyer, however, avers that she never received this letter. Perez Decl. [ECF No. 11-2] at 2. But when she received a similar letter regarding another client--a client whose request she had submitted in the same envelope as Elias Yunes's--she called to investigate. Id. As a result, the lawyer obtained Elias Yunes's case number on July 22.
On August 8, the FBI mailed a letter to Elias Yunes's lawyer (at Elias Yunes's address), informing her that the agency was " unable to identify main file records responsive to the FOIPA" and explaining his right to appeal to the Office of Information Policy within sixty days. Ex. C to Def.'s Mot. [ECF No. 9-2] at 8. But Elias Yunes's lawyer did not receive the letter until September 19. See Perez Decl. at 2. And the letter she received was dated August 6, while the one the FBI produced was dated August 8. Compare Ex. B to Pl.'s Opp'n at 2 with Ex. C to Def.'s Mot. at 8.
Meanwhile, on August 15--after the FBI mailed the letter, but before the lawyer received it--Elias Yunes filed the present suit, requesting that the Court order the FBI to conduct an appropriate search. Compl. at 6. A few weeks later, on September 3, Elias Yunes's lawyer received a letter regarding her other client, explaining that no records had been found. See 2d Perez Decl. [ECF No. 14-2] at 1. When she appealed that determination, she decided, " [a]s a matter of caution," Perez Decl. at 2, to appeal Elias Yunes's as well, " though [she] had not yet received the denial for Elias Yunes at that time," 2d Perez Decl. at 2. The Office of Information Policy received the appeal on October 15. Perez Decl. at 3.
The Department of Justice has filed a motion to dismiss, or, alternatively, to obtain summary judgment as to the FBI request. The government argues that Elias Yunes failed to exhaust his administrative remedies--namely, an appeal ...