United States District Court, District of Columbia
A. Howell CHIEF JUDGE
plaintiff, Ameer Flippin, filed this lawsuit under the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, to compel disclosure of records pertaining to
certain federal police officers, maintained by the Department
of Interior (“DOI”). Pending are Defendant United
States Capitol Police Department's Motion to Dismiss, ECF
No. 14, and Defendants Department of the Interior
(“DOI”) and United States Park Police's
Motion to Dismiss, or in the Alternative, for Summary
Judgment, ECF No. 16. For the reasons discussed below, each
motion will be granted.
FOIA request submitted to DOI on April 24, 2019, through its
“online portal, ” the plaintiff requested records
pertaining to his arrest on December 30, 2018, and the
personnel files of and other information about the arresting
officers “believed to be . . . of the U.S. Parks Police
and/or the U.S. Capitol Police.” Compl. ¶ 8. DOI
acknowledged the plaintiff's request on the day it was
submitted and “advised that the correspondence had been
forwarded to the U.S. Parks Police FOIA Officers.”
Id. ¶ 9. Yet the plaintiff lodged the instant
complaint, also dated April 24, 2019, with the Clerk of Court
on April 25, 2019. The complaint was filed before expiration
of the 20 days an agency has under FOIA to respond to a
request and, consequently, this action was dismissed
promptly. See May 8, 2019 Mem. Op., ECF No. 4.
31, 2019, the plaintiff filed a motion to reconsider the
dismissal order, asserting that the 20-day response time had
expired. See Mot., ECF No. 7. In a supporting
memorandum filed on June 12, 2019, the plaintiff claimed that
DOI had yet to provide “a candid reply” to his
request. Mem. of P. & A. at 2, ECF No. 8. The
plaintiff's assertions were accepted as true “[f]or
present purposes, ” and he was “deem[ed] to have
constructively exhausted his administrative remedies.”
Jun. 12, 2019 Order, ECF No. 9. Accordingly, the
plaintiff's motion was granted, and this case was
reopened and randomly assigned to the undersigned judge for
further proceedings. See id.
on May 24, 2019, DOI responded to the plaintiff's FOIA
request by releasing certain information and withholding
certain information under FOIA Exemptions 2, 6 and 7(C).
Def.'s Ex. A, ECF No. 16-3. The release letter informed
the plaintiff of his right to appeal to the agency's
FOIA/Privacy Act Appeals Office within 90 workdays from the
date of the letter. Id.
U.S. Capitol Police's Motion to Dismiss
U.S. Capitol Police asserts correctly that as “an
entity of the Congress, ” it is not a proper FOIA
defendant. Mot. at 4 (citing 5 C.F.R. § 2641.104). The
FOIA applies to executive branch agencies of the federal
government. See 5 U.S.C. § 552(f)(1).
“The Congress” is specifically excluded from the
statutory definition of agency, id. §
551(1)(A); therefore, the plaintiff can bring no claim
against this defendant. Accordingly, the complaint against
the U.S. Capitol Police is dismissed with prejudice for
failure to state a claim upon which relief can be
DOI and U.S. Park Police's Motion to Dismiss
which the Park Police is a component, asserts that dismissal
is warranted because the plaintiff failed to exhaust his
administrative remedies before filing suit. Mem. at 4-5. The
of administrative remedies is generally required before
seeking judicial review” under FOIA, Wilbur v.
CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam), in
order that an agency have “an opportunity to exercise
its discretion and expertise on the matter and to make a
factual record to support its decision, ” id.
(quoting Oglesby v. U.S. Dep't of the Army, 920
F.2d 57, 61 (D.C. Cir. 1990)). FOIA requires an agency to
“determine within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of any
such request whether to comply” and to
“immediately notify” the requester. 5 U.S.C.
§ 552(a)(6)(A)(i). If “the agency fails to answer
the request within twenty days, ” Judicial Watch,
Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003),
the requester “shall be deemed to have exhausted his
administrative remedies, ” and he may proceed directly
to court, 5 U.S.C. § 552(a)(6)(c)(i). If “the
agency responds to the request after the twenty-day statutory
window, but before the requester files suit, the
administrative exhaustion requirement still applies.”
Rossotti, 326 F.3d at 1310 (citing Oglesby,
920 F.2d at 64-65). In other words, the “right to
judicial review based on constructive exhaustion ends . . .
if an agency responds at any time before the requester files
suit.” Flaherty v. President of U.S., 796
F.Supp.2d 201, 208-09 (D.D.C. 2011), aff'd sub nom.
Flaherty v. I.R.S., 468 Fed. App'x 8 (D.C. Cir.
the exhaustion requirement is not jurisdictional, it
“can be a substantive ground for rejecting a FOIA claim
in litigation.” Bayala v. United States Dep't
of Homeland Sec., Office of Gen. Counsel, 827 F.3d 31,
35 (D.C. Cir. 2016). “The District of Columbia Circuit
instructs that ‘[a] FOIA plaintiff's failure to
exhaust administrative remedies before filing a civil action
is properly treated as a failure to state a claim upon which
relief may be granted' under Fed.R.Civ.P.
12(b)(6).” Mitchell v. Samuels, 160 F.Supp.3d
8, 12, n.4 (D.D.C. 2016) (quoting Saldana v. Fed. Bureau
of Prisons, 715 F.Supp.2d 10, 18 (D.D.C. 2010), citing
Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir.
2003)). The plaintiff admits in the complaint -- dated the
same day as the FOIA request -- that DOI acknowledged his
request on the day it was submitted and “advised”
him that the request “had been forwarded” to the
Park Police's FOIA Officers for processing. Compl.
¶¶ 8-9. Before the plaintiff moved to reopen this
action, moreover, DOI had in fact responded to his FOIA
request, explaining (1) why certain information was withheld
and (2) the plaintiff's right to pursue an administrative
appeal. See Def.'s Ex. A. DOI has not
“abandoned” that decision during the course of
this litigation, Bayala, 827 F.3d at 35, and thus
the plaintiff must exhaust his administrative remedies before
obtaining judicial review.