United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's motion to
dismiss. Dkt. 6. On December 17, 2018, Plaintiff filed suit
against “the Office of Benton Peterson” under the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, seeking all documents published in the Federal
Register which supported or refuted various arguments
Assistant U.S. Attorney Peterson had made in a motion to
dismiss in another case. Dkt. 1 (Compl.); see also
Dkt. 3 (Amd. Compl.). In response, Defendant moves to dismiss
the amended complaint on two grounds. First,
Defendant asserts that Plaintiff has failed to exhaust his
administrative remedies under FOIA because he failed to
follow agency procedures for submitting a FOIA request. Dkt.
6 at 5-6 (citing 5 U.S.C. § 552(a)(1) & (3)).
Second, Defendant asserts that, even if Plaintiff
had exhausted his administrative remedies, Plaintiff's
amended complaint nevertheless fails to state a claim because
his request does not seek “agency records”
subject to FOIA. Dkt. 6 at 6-7. The Court agrees with
Defendant that Plaintiff's claim fails because he did not
follow the agency's procedures for submitting a FOIA
request. The Court will, accordingly,
DISMISS Plaintiff's amended complaint.
to filing this case, Plaintiff brought a separate suit
against the Department of the Interior. He sought an
injunction under the Administrative Procedure Act
(“APA”) to compel the Department of the Interior
to add the Pilchuck Nation to the list of Federally
Recognized Tribes. See Dkt. 1 (Compl.), Kanam v.
Bernhardt, No. 18-cv-1760 (D.D.C. July 23, 2018). The
Department of the Interior moved to dismiss Plaintiff's
APA claim. Dkt. 5, Kanam v. Bernhardt, No.
18-cv-1760. In lieu of filing an opposition, Plaintiff mailed
Benton Peterson, the Assistant U.S. Attorney
(“AUSA”) who was representing the Department of
the Interior, a letter styled as a FOIA request, see
Dkt. 1 at 5-8 (Compl. Attachment A), but bearing more of a
resemblance to contention interrogatories or document
requests. Plaintiff's letter comprised nineteen
individual requests for documents published in the Federal
Register that either supported or refuted certain arguments
made by AUSA Peterson in the Department's motion to
dismiss. Dkt. 1 at 5-8 (Compl. Attachment A). The Court in
Kanam v. Bernhardt ultimately dismissed the case
because Plaintiff failed to comply with its repeated orders
to file an opposition. See Dkt. 13, Kanam,
No. 18-1760. Plaintiff then filed this lawsuit against
“the Office of Benton Peterson” to compel
Defendant to act on his FOIA request. See Dkt. 1
motion to dismiss, the Court “must accept as true all
of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotations omitted); see also Bell Atl.
Corp., 550 U.S. at 562.
requires that, subject to certain exceptions, “each
agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any) and
procedures to be followed, shall make the records promptly
available to any person.” 5 U.S.C. § 552(a)(3).
Compliance with such “published rules” is a
precondition of “the agency's duty” to
produce records. McDonnell v. United States, 4 F.3d
1227, 1236 (3d Cir. 1993); see Rosenberg v. U.S.
Dep't of Immigration & Customs Enforcement, 959
F.Supp.2d 61, 69 (D.D.C. 2013) (“Because the Plaintiff
failed to comply with the applicable regulations, the FBI was
not required to ‘make the records promptly
available.'” (quoting 5 U.S.C. §
552(a)(3)(A)(ii))); see also Church of Scientology of
California v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986)
(holding that the IRS did not need to search regional offices
when the request was not directed to those offices, as
required by IRS FOIA regulations).
Department of Justice-AUSA Peterson's employer-has,
pursuant to FOIA's command, 5 U.S.C. § 552(a)(1),
adopted regulations governing the process for submitting FOIA
requests to the Department of Justice, see, e.g., 28
C.F.R. § 16.3. Those regulations provide two avenues by
which a requester may request records under FOIA. First, a
requester may “write directly to the FOIA office of the
component [of the Department of Justice] that maintains the
records being sought.” Id. § 16.3(a)(1).
The Department of Justice provides a “FOIA Reference
Guide, ” 28 C.F.R. 16.1(a), which “contains
descriptions of the functions of each component and provides
other information”-including component-specific
requirements-“that is helpful in determining where to
make such a request. Id. § 16.3(a)(1). Second,
a requester may send a request “to the FOIA/PA Mail
Referral Unit, ” which “will forward the request
to the component(s) that it determines to be most likely to
maintain the records that are sought. Id. §
16.3(a)(2). The mailing address, email address, and fax
number for this unit are provided in the regulation.
than submitting his request via one of these two means,
Plaintiff simply mailed a request for records to a Department
of Justice lawyer, who was responsible for drafting a motion
to dismiss in a separate lawsuit brought by Plaintiff. Dkt. 1
at 6-8 (Compl. Attachment A). Because Plaintiff attached a
copy of his FOIA request, to his original complaint,
see Dkt. 1 at 6- 8, and cites to it repeatedly in
his amended complaint, see Dkt. 3 at 1-2, the Court
may consider the request-and the manner in which it was
addressed-for purposes of Defendant's motion to dismiss.
See Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must
consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference” (citing
5B Wright & Miller § 1357 (3d ed. 2004))).
moves to dismiss for failure to exhaust, citing
Plaintiff's failure to comply with the Department of
Justice's FOIA procedures. Dkt. 6 at 5. The Court agrees
that Plaintiff's claim should be dismissed, but for
failure to state a claim rather than failure to exhaust. The
cases that Defendant cites concerning exhaustion all involved
FOIA requests that were properly submitted but that were not
properly appealed prior to bringing suit. See Dkt. 6
at 5 (collecting cases). Here, by contrast, Plaintiff, failed
to follow the “published rules . . . and
procedures” governing the submission of FOIA requests
to the Department of Justice by mailing a FOIA request to an
individual DOJ attorney. 5 U.S.C. § 552(a)(3)(B)(ii); 28
C.F.R. § 16.3(a)(3); Dkt. 1 at 6-8 (Compl. Attachment
A). Accordingly, Plaintiff did not submit a request to which
the agency was required to respond under FOIA, 5 U.S.C.
§ 552(a)(3)(B)(ii), and thus has failed to state a claim
upon which relief can be granted, Fed.R.Civ.P. 12(b)(6).
foregoing reasons, the Court will GRANT
Defendant's motion to dismiss, Dkt. 6, ...