AMENDED MEMORANDUM OPINION [1]
TREVOR
N. McFADDEN, U.S.D.J.
Plaintiff
Juan Luciano Machado Amadis sues the U.S. Department of
Justice (“DOJ”) and the U.S. Department of State
(“State”) under the Freedom of Information Act, 5
U.S.C. § 552 (“FOIA”). He also seeks relief
under the Declaratory Judgment Act, 28 U.S.C. § 2201,
and the All Writs Act, 28 U.S.C. § 1651. At issue are
Government's responses to Mr. Machado Amadis's
requests for documents about State's decision to deny his
visa applications based on events that occurred nearly four
decades ago.
Mr.
Machado Amadis alleges that State and DOJ's
components-the Drug Enforcement Agency (“DEA”)
and the Federal Bureau of Investigation
(“FBI”)-conducted inadequate searches in response
to his FOIA requests. He also contends that the FBI and
DOJ's Office of Information Policy (“OIP”)
improperly withheld records. Before the Court is the
Government's Motion for Summary Judgment and Mr. Machado
Amadis's Cross-Motion for Partial Summary Judgment. For
the reasons given below, the Court will grant summary
judgment to the Government and deny Mr. Machado Amadis's
cross-motion.
I.
BACKGROUND
Juan
Luciano Machado Amadis is a Dominican citizen who lives in
Santo Domingo, Dominican Republic. Am. Compl., ECF No. 15,
¶ 3. In 1989, he was denied a visa by the U.S. Embassy
in Santo Domingo. Cross Mot. for Summ. J., Ex. D, ECF No.
31-4, p. 1. State explained that Mr. Machado Amadis was
inadmissible under Section 212(a) of the Immigration and
Nationality Act because he had been arrested for possession
of over 100 grams of cocaine. Id. Section 212 allows
State to refuse visas to persons who it has reason to believe
“is or has been” a drug trafficker. Id.
at 2. The cocaine charge, however, was dismissed,
see Cross Mot. for Summ. J., Ex. B, ECF No. 31-2,
pp. 4-5, and Mr. Machado Amadis provided evidence to State
that he had no conviction record, Cross Mot. for Summ. J.,
Ex. D, ECF No. 31-4, p. 2.
State
again found Mr. Machado Amadis ineligible for a visa under
Section 212(a) in 1990. Cross Mot. for Summ. J., Ex. D, ECF
No. 31-4, p. 2. It explained that while Mr. Machado Amadis
“has no conviction record . . . this does not address
whether or not he was arrested, ” and Section 212(a)
does not require a conviction for State to make an
ineligibility finding. Id. “According to
information available to [State], [Mr. Machado Amadis] was
arrested December 10, 1980, at the Santo Domingo Airport at
which time 125 grams of cocaine was confiscated from his
luggage.” Id. In 2012, Mr. Machado Amadis
again applied for a visa, and for a third time, State refused
his request. Id. at 3. State cited Section
212(a)(2)(C) of the Immigration and Nationality Act, which
makes known and suspected drug traffickers inadmissible,
see 8 U.S.C. § 1182(a)(2)(C). Id.
Mr.
Machado Amadis maintains that State is misinformed. He
acknowledges that on December 10, 1980, he flew from New York
to Santo Domingo where local authorities detained him on
suspicion of drug trafficking. Cross Mot. for Summ. J., Ex.
A, ECF No. 31-1, ¶¶ 11, 13, 17. But he claims that
he was never searched for drugs, no drugs were confiscated
from his luggage, and he was only arrested two weeks later at
his home. Id. ¶¶ 11-17. Even though his
own version of events would likely justify a visa denial
under Section 212, Mr. Machado Amadis filed FOIA requests
with State, the FBI, and the DEA hoping to determine the
basis for State's decisions denying his visa
applications.
First,
Mr. Machado Amadis submitted a FOIA request to State for
records “regarding alleged criminal activities that
have led to his visa revocation/denial” (“First
State Request”). See Stein Decl. Ex. 1, ECF
No. 20-5, p. 1. After searching its Consular Consolidated
Database, the Consular Affairs Section of the U.S. Embassy in
Santo Domingo, and State Archiving System, State retrieved 53
responsive records. Stein Decl., ECF No. 20-4, ¶¶
11, 29-36. State informed Mr. Machado Amadis of the search
results, and it released 32 documents in full, released 9
documents in part, and withheld 12 documents in full.
Id. ¶ 11; Stein Decl. Ex. 4, ECF No. 20-5, p.
22.
Next,
Mr. Machado Amadis submitted a FOIA request to the DEA for
“all records related to [himself], as well as [his]
entire record[] within the [DEA]” (“First DEA
Request”). Myrick Decl. Ex. A, ECF No. 20-7, p. 2.
Given the request's breadth, the DEA construed Mr.
Machado Amadis to be seeking the DEA's investigative
files about himself. Myrick Decl., ECF No. 20-6, ¶ 26.
After searching its Investigative Reporting and Filing System
and its Narcotics and Dangerous Drugs Information System, the
DEA found no responsive records. Id. ¶¶
30-31. The DEA informed Mr. Machado Amadis of its search
results by letter. Id. ¶ 6.[2]
Finally,
Mr. Machado Amadis submitted a FOIA request to the FBI for
“[i]nformation regarding any/all criminal and/or drug
trafficking related crimes” about himself (“First
FBI Request”). Hardy Decl., ECF No. 20-8, ¶5;
Hardy Decl. Ex. A, ECF No. 20-9, p. 2. The FBI searched its
Central Records System, and because Mr. Machado Amadis's
FOIA request included an attachment about his 1990 visa
application, the FBI searched its manual indices, index cards
cataloguing pre-1995 records not searchable through
electronic indices. Hardy Decl., ECF No. 20-8, ¶¶
41, 43-45, 50, 52-54. The FBI informed Mr. Machado Amadis
that it uncovered no responsive records and stated that its
FOIA response “neither confirms nor denies the
existence of [Mr. Machado Amadis's] name on any watch
lists.” See Hardy Decl. Ex. B, ECF No. 20-9,
p. 8 (citing FOIA exemption (b)(7)(E)).[3] Because the FBI
determined that Mr. Machado Amadis was likely seeking a copy
of his FBI identification records (“rap sheet”),
it referred his First FBI Request to its Criminal Justice
Information Services (“CJIS”) for processing.
Hardy Decl., ECF No. 20-8, ¶¶ 7-8. Generally, a
person must request a copy of his or her rap sheet directly
from CJIS. Id. ¶ 8, n.1.[4]
Dissatisfied
with the agencies' search results, Mr. Machado Amadis
filed six new FOIA requests. He requested that each agency
provide records “memorializing or describing the
processing” of his previous FOIA requests (Count
VI-“Second DEA Request, ” Count VII-“Second
FBI Request, ” and Count IX-“Second State
Request”). He also sought “all records, including
emails, memorializing or describing the processing” of
the appeals of his First DEA Request and First FBI Request
from OIP (Count VIII-“OIP Request”). Finally, he
renewed his attempts to find the information causing State to
deny his visa requests. He requested that the DEA disclose
“copies of all records, including emails, about
him[self]” (Count IV-“Third DEA Request”).
And he requested that the FBI provide “all records,
including emails and cross references, about him[self]”
(Count V-“Third FBI Request”). These six FOIA
requests are the basis for this action.
II.
LEGAL STANDARD
Under
FOIA, agencies must conduct “a good faith effort to []
search for the requested records, using methods which can be
reasonably expected to produce the information
requested.” Oglesby v. U.S. Dep't of the
Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (Oglesby
I). FOIA also requires agencies “to comply with
requests to make their records available to the public,
unless the requested records fit within one or more of nine
categories of exempt material. Oglesby v. U.S. Dept. of
the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)
(Oglesby II). The “vast majority” of
FOIA cases are resolved on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d
521, 527 (D.C. Cir. 2011).
A party
moving for summary judgment must show an absence of a genuine
issue of material fact-a fact that “might affect the
outcome of the suit under governing law.” See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “In the FOIA context, a district court
reviewing a motion for summary judgment conducts a de
novo review of the record, and the responding federal
agency bears the burden of proving that it has complied with
its obligations under FOIA.” Pinson v. Dep't of
Justice, 160 F.Supp.3d 285, 292 (D.D.C. 2016). So a
court may grant summary judgment to an agency only if it can
establish that any withheld document falls into one of the
enumerated exemptions, see 5 U.S.C. §
552(a)(4)(B), and its search was reasonably calculated to
uncover all relevant documents, see Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999).
III.
ANALYSIS
A.
Mr. Machado Amadis has waived his claims under the
Declaratory Judgment Act and the All Writs Act fail.
In
their motion for summary judgment, DOJ and State argued that
Mr. Machado Amadis's claims under the Declaratory
Judgment Act and the All Writs Act fail for two reasons.
First, they argued that a request for declaratory relief does
not confer jurisdiction on the federal courts if jurisdiction
would not otherwise exist. See Skelly Oil Co. v. Phillips
Petrol. Co., 339 U.S. 667, 671 (1950). And since Mr.
Machado Amadis's underlying FOIA claims fail, he also
cannot establish entitlement to relief under the Declaratory
Judgment Act. See Def. Mot. for Summ. J., ECF No.
20-2, p. 11 (citing Kenney v. U.S. Dep't of
Justice, 603 F.Supp.2d 184, 190 n. 4 (D.D.C. 2009)).
Second, they claimed that “the ‘comprehensiveness
of FOIA' forecloses any claims purportedly also brought
under [the Declaratory Judgment Act or the All Writs
Act].” Id. (citing Johnson v. Exec. Office
for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002)).
Mr.
Machado Amadis, however, did not address the Defendant's
arguments in his opposition. See Cross Mot. for
Summ. J., ECF No. 31. And “it is well understood in
this Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments
raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.”
Davis v. Transp. Sec. Admin., 264 F.Supp.3d 6, 10
(D.D.C. 2017) (cleaned up). So the Court treats the
Government's arguments about the Declaratory Judgment Act
and the All Writs Act as conceded and grants its motion for
summary judgment on those claims.
B.
Mr. Machado Amadis has failed to exhaust administrative
remedies for his Third DEA Request and his Third FBI
Request.
“Exhaustion
of administrative remedies is generally required before
filing suit in federal court 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.” Oglesby I, 920 F.2d at 61. In the
FOIA context, exhaustion is not jurisdictional, but “as
a jurisprudential doctrine, failure to exhaust precludes
judicial review if ‘the purposes of exhaustion' and
the ‘particular administrative scheme' support such
a bar.'” Hidalgo v. FBI, 344 F.3d 1256,
1258-59 (D.C. Cir. 2003) (citing Oglesby I, 920 F.2d
at 61). And “FOIA's specific administrative
procedures, clear deadlines for processing requests, and
detailed provisions on appeal all suggest that FOIA is an
administrative scheme that not only requires exhaustion of
administrative remedies, but, moreover, permits a court to
dismiss a case when a plaintiff fails to exhaust his
administrative remedies.” Porter v. CIA, 778
F.Supp.2d 60, 68 (D.D.C. 2011).
An
agency generally must substantively respond to a request
within 20 working days to trigger FOIA's administrative
exhaustion requirement. See 5 U.S.C. §
552(a)(6)(A); Oglesby I, 920 F.2d at 62-64. The
agency must at least: “(i) gather and review the
documents; (ii) determine and communicate the scope of the
documents it intends to produce and withhold, and the reasons
for withholding any documents; and (iii) inform the requester
that it can appeal whatever portion of the
‘determination' is adverse.” Citizens for
Responsibility & Ethics in Wash.
(“CREW”) v. FEC, 711 F.3d 180,
188 (D.C. Cir. 2013). Once the agency has issued such a
determination, “the requester must exhaust his
administrative remedies before seeking judicial
review.” Oglesby I, 920 F.2d at 64.
On May
16, 2017, Mr. Machado Amadis submitted his Third DEA Request.
Myrick Decl., ECF No. 20-6, ¶ 17; Myrick Decl. Ex. L.,
ECF No. 20-7, p. 29. He sought “copies of all records,
including emails, about him[self].” Id. That
same day, he also submitted his Third FBI Request, seeking
“copies of all records, including emails and
cross-references, about him[self].” See Hardy
Decl. Ex. V, ECF No. 20-9, p. 73. So the DEA and the FBI
needed to issue a determination on Mr. Machado Amadis's
requests by June 14, 2017. See 5 U.S.C. §
552(a)(6)(A). They did so.
The DEA
issued its determination on June 8. The DEA explained that
“[t]o search for responsive records, [it] queried the
DEA Investigative Reporting[] and Filing System.”
Myrick Decl. Ex. M, ECF No. 20-7, p. 32. But after trying to
“gather and review” responsive documents, the DEA
could not locate any. Id. So the DEA
“communicate[d] the scope of the documents it
intend[ed] to produce”-none-and the reason
therefor-they could not locate responsive documents. See
CREW, 711 F.3d at 188. Finally, the DEA told Mr. Machado
Amadis how he could administratively appeal its adverse
decision and that he could contact the DEA's FOIA Public
Liaison for further assistance. Myrick Decl. Ex. M, ECF No.
20-7, p. 32.
The FBI
responded two days before the deadline. It informed Mr.
Machado Amadis that “[b]ased on the information you
provided, [it] conducted a search of the Central Records
System, ” but the FBI was “unable to identify
main file records responsive to the FOIA.” See
Hardy Decl. Ex. X, ECF No. 20-9, p. 86. And it issued a
Glomar response, neither confirming nor denying the
existence of Mr. Machado Amadis's name on any watch
lists. Id. The FBI also informed Mr. Machado Amadis
that he could appeal its adverse decision to OIP.
Thus,
both the DEA and the FBI issued adverse determinations as
defined by CREW, 711 F.3d at 188. See also
Nat'l Sec. Counselors v. CIA, 931 F.Supp.2d 77, 95
(D.D.C. 2013) (“A response is sufficient for purposes
of requiring an administrative appeal if it includes the
agency's determination of whether or not to comply with
the request; the reasons for its decision; and notice of the
right of the requester to appeal to the head of the agency if
the initial agency decision is adverse.”) (cleaned up).
Both complied with Mr. Machado Amadis's request and
conducted a search, trying to “gather and review”
responsive documents. Both determined and communicated the
scope of the records they intended to produce-none. And they
explained the reason for the scope of their disclosure-they
found no responsive records. The FBI also suggested that to
whatever extent it may have found responsive documents they
were withheld under Exemption 7(E) or 5 U.S.C. § 552(c).
Both agencies also told Mr. Machado Amadis that he could
appeal their adverse determinations. And because both
agencies issued their determinations within 20 working days
of receiving the requests, FOIA's administrative
exhaustion requirements were triggered.
Mr.
Machado Amadis, however, appealed neither decision to OIP
before amending his Complaint to add his Third DEA Request
and Third FBI Request. He concedes as much. But he argues
that the agencies' responses did not trigger the
administrative exhaustion requirement. Mr. Machado Amadis
reasons that because the DEA and the FBI offered to conduct
additional searches if he submitted more information, the
agencies' respective responses were not final
“determinations” under CREW and 5 U.S.C.
§ 552(a)(6)(A). And he therefore constructively
exhausted his administrative remedies under 5 U.S.C. §
552(a)(6)(C).
Not so.
As described above, when an agency informs a requester that
it has complied with a request but has located no responsive
records, that is a determination, and such a determination is
susceptible to immediate administrative appeal. The agency is
not “simply decid[ing] to decide later.” See
CREW, 711 F.3d at 186. It has rendered an adverse
decision and given its basis therefor. FOIA requires no more
to trigger the administrative ...