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Machado Amadis v. Department of Justice

United States District Court, District of Columbia

May 22, 2019

DEPARTMENT OF JUSTICE, et al. Defendants.


          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.


         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 ...

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