AMY BERMAN JACKSON, United States District Judge.
Plaintiff Edwin Lopez brought this action under three statutes: the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a, and the President John F. Kennedy Assassination Records Collection Act of 1992 ("JFK Records Act"), 44 U.S.C. § 2107. He seeks to compel the National Archives and Records Administration ("NARA"); David S. Ferriero, sued in his official capacity as the Archivist of the United States; and the Central Intelligence Agency ("CIA"), to produce various documents that relate to him. Am. Compl. [Dkt. # 18].
The Court accepts as true the following facts set out in plaintiff's amended complaint for the purposes of resolving the pending motion for judgment on the pleadings.
Plaintiff sought production of the following four items:
Request; see also Am. Compl. ¶ 8.
On January 7, 2015, NARA sent plaintiff a letter acknowledging that it had received the request on December 23, 2014, and assigned it the request reference number NW 44935. Am. Compl. ¶ 9; Ex. 2 to Am. Compl. [Dkt. # 25-1]. On January 26, 2015, Martha Wagner Murphy, Chief of the Special Access and FOIA staff to NARA, informed Joseph W. Lambert, Director of the Information Management Services at CIA, of the request and forwarded a copy. Am. Compl. ¶ 10; Ex. 3 to Am. Compl. [Dkt. # 25-1] ("Ex. 3"). She asked that he inform NARA of the CIA's determination and any "sanitizing instructions" since "a full-text copy of the requested
On May 27, 2015, Michael Lavergne of the CIA responded to Murphy, and he advised her that CIA had located and reviewed the Lopez File and had determined that "it is currently and properly classified and must be denied in its entirety on the basis of FOIA exemptions (b)(1) [classified records] and (b)(3) [records exempted by other statutes]." Am. Compl. ¶ 11; Ex. 4 to Am. Compl. [Dkt. # 25-1] ("Ex. 4"). The CIA cited to section 6 of the Central Intelligence Agency Act of 1949, and section 102A(i)(1) of the National Security Act of 1947 to support the use of the exemptions. Am. Compl. ¶ 11; Ex. 4.
By letter dated June 9, 2015, NARA informed plaintiff of the CIA determination to withhold the Lopez File in full pursuant to the two FOIA exemptions. Am. Compl. ¶ 12; Ex. 5 to Am. Compl. [Dkt. # 25-1] ("Ex. 5"). NARA also advised plaintiff that a search of the closed records of the Assassination Records Review Board had been made "and no information was found" responsive to the remainder of his request. Am. Compl. ¶¶ 12-13; Ex. 5. Finally, NARA advised plaintiff that he had the right to administratively appeal the decision within sixty days of the date of the letter. See Ex. 5.
On June 1, 2017, plaintiff filed an amended complaint asserting claims under FOIA (Count I), the Privacy Act (Count II), and the JFK Records Act (Count III). Am. Compl. On June 12, 2017, defendants renewed their motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Renewed Mot. for J. on the Pleadings [Dkt. # 19] ("Defs.' Mot."); Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 19] ("Defs.' Mem."). Plaintiff opposed the motion and also filed a cross-motion for summary judgment on July 3, 2017. Pl.'s Resp. to Defs.' Mot. & Pl.'s Renewed Cross-Mot. for Summ. J. [Dkt. ## 20-21] ("Pl.'s Opp. & Cross-Mot."); Mem. of Opposing P. & A. in Resp. to Defs.' Mot. & in Supp. of Pl.'s Opp. & Cross-Mot.) [Dkt. ## 20-21] ("Pl.'s Opp. & Cross-Mem.).
Federal Rule of Civil Procedure 12(c) authorizes a party to move for judgment on the pleadings at any time "after the pleadings are closed." Fed. R. Civ. P. 12(c).
While there are opinions in this district that state that the standards of review between a Rule 12(b)(6) motion and a Rule 12(c) motion are "essentially the same" or "virtually identical," see, e.g., Nat'l Shopmen Pension Fund v. Disa, 583 F.Supp.2d 95, 99 (D.D.C. 2008), citing Plain v. AT & T Corp., 424 F.Supp.2d 11, 20 n.11 (D.D.C. 2006); Maniaci v. Georgetown Univ., 510 F.Supp.2d 50, 58 (D.D.C. 2007); Jung v. Ass'n of Am. Med. Colleges, 339 F.Supp.2d 26, 35-36 (D.D.C. 2004), the standard set out in the Schuler case by the D.C. Circuit comes closer to a summary judgment type of determination.
Wright's Federal Practice and Procedure makes the same observation, noting that a 12(c) motion asks the Court to address the merits of the parties' claims and defenses and not procedural barriers or pleading deficiencies. 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1369 (3d ed. 2017) (commenting that the appropriate standard of review for a Rule 12(c) motion is more similar to a Rule 56 motion for summary judgment, except that the Court may only consider the contents of the pleadings); see also Jones v. Dufek, 830 F.3d 523, 528 (D.C. Cir. 2016) ("The district court properly resolved these questions as a matter of law on a motion under Rule 12(c)."), citing Alexander v. City of Chi., 994 F.2d 333, 336 (7th Cir. 1993) ("[T]he standard courts apply for summary judgment and for judgment on the pleadings `appears to be identical.'").
In this case, the parties have submitted declarations and other exhibits in support of, and in opposition to, the pending motions. The Court may consider certain exhibits, such as the Request itself, without converting the motion for judgment on the pleadings to one for summary judgment since those records either attached to, or incorporated by reference in, the complaint itself. See St. Francis Xavier Parochial Sch., 117 F.3d at 624. However, since the Court will consider the declarations attached to defendants' motion for judgment on the pleadings, the Court is required to treat the motion as if it were a motion for summary judgment. See Fed. R. Civ. P. 12(d). And because plaintiff had a full opportunity to oppose the motion, and treated it as a Rule 56 motion himself by submitting a cross-motion supported by a statement of facts and a declaration, as well as an opposition, the Court concludes that the parties have had an opportunity to present all the material pertinent to the motion, and that it is fair to both parties to convert defendants' motion to one for summary judgment. See Hollis v. U.S. Dep't of the Army, 856 F.2d 1541, 1544 (D.C. Cir. 1988); Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985) ("[T]he reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.").
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary
"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." Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003), quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990); see also 5 U.S.C. § 552(a)(6). However, absent an express statutory provision to the contrary, failure to exhaust is not "an automatic bar to judicial review." Oglesby, 920 F.2d at 61.
It is true that "the exhaustion requirement is not jurisdictional because the FOIA does not unequivocally make it so." Hidalgo, 344 F.3d at 1258; see I.A.M. Nat'l Pension Fund Ben. Plan C. v. Stockton TRI Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984) ("Only when Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision... has the Supreme Court held that exhaustion is a jurisdictional prerequisite."). However, "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, 344 F.3d at 1258-59, quoting Oglesby, 920 F.2d at 61. And this Circuit has consistently held that FOIA's administrative scheme supports such a bar, and thus "requires each requestor to exhaust administrative remedies" prior to filing suit. Hidalgo, 344 F.3d at 1259, citing Sinito v. DOJ, 176 F.3d 512, 516 (D.C. Cir. 1999); see also Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 182 (D.C. Cir. 2013) ("[A] FOIA requester must exhaust administrative appeal remedies before seeking judicial redress.").
Under the statute, the agency has twenty days to determine if it will comply with the request, and it must notify the requestor of this decision. 5 U.S.C. § 552(a)(6)(A)(i). The agency's response should include its "determination of whether or not to comply with the request[,] the reasons for its decision[,]" and if the decision is adverse, notice of the requestor's right "to appeal to the head of the agency." Oglesby, 920 F.2d at 65. Once the agency responds, "the FOIA requestor must appeal to the head of the agency" before bringing suit. Id. The agency must then make a determination on the appeal within twenty days. 5 U.S.C. § 552(a)(6)(A)(ii).
Importantly, a requestor "shall be deemed to have exhausted his administrative remedies with respect to [a] request if the agency fails to comply with the applicable time limit provisions," and the requestor
Here, there is no dispute that plaintiff filed this lawsuit after NARA responded to his FOIA request but before he had appealed the agency's determination. Although plaintiff makes the conclusory allegation in his complaint that he has "exhausted his administrative remedies," see Am. Compl. ¶ 15, he also acknowledges that after he received NARA's determination of June 9, 2015, which notified him of his right to appeal, "no further communications have been exchanged." Id. ¶ 14. Further, NARA's declarant averred that "NARA has no record of ever receiving an appeal," see Decl. of Joseph A. Scanlon [Dkt. # 19-2] ¶ 10, and plaintiff has not provided the Court with any other evidence to support his claim that he appealed NARA's determination.
Plaintiff argues that he constructively exhausted his administrative remedies since the agency did not respond to his request within the twenty-day statutory period. Pl.'s Opp. & Cross-Mem. at 7-8. However, the special right to immediate judicial review that arises from the lack of a timely response is not available if an agency responds to a request at any time before the requestor files suit. See Oglesby, 920 F.2d at 61, 66-67, 70-71. That is what happened here.
To permit plaintiff to ignore NARA's directive "would cut off the agency's power to correct or rethink initial misjudgments or errors," Oglesby, 920 F.2d at 64, and frustrate the policies underlying the exhaustion requirement. See Dettmann v. DOJ, 802 F.2d 1472, 1476 n.8 (D.C. Cir. 1986) (applying exhaustion requirement because "it would be both contrary to `orderly procedure and good administration' and unfair `to those who are engaged in the tasks of administration' to decide an issue which the [agency] never had a fair opportunity to resolve prior to being ushered into litigation."), quoting United States v. Tucker Truck Lines, 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 S.Ct. 54 (1952).
Because plaintiff has failed to exhaust his administrative remedies, NARA is entitled to summary judgment on plaintiff's FOIA claim in Count I.
The CIA argues that the FOIA claim against it should be dismissed because plaintiff never sent it a request. Defs.' Mem. at 6. The Court agrees.
The Court's jurisdiction under FOIA is dependent upon a showing that an agency improperly withheld agency records. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150,
A proper FOIA request must "reasonably describe[]" the records sought and must comply with the agency's published procedures, including the agency's schedule of fees. 5 U.S.C. § 552(a)(3)(A). "The failure to comply with an agency's FOIA regulations is the equivalent of a failure to exhaust." West v. Jackson, 448 F.Supp.2d 207, 211-12 (D.D.C. 2006), citing Ivey v. Snow, No. 05-1095, 2006 WL 2051339, at *3 (D.D.C. July 20, 2006). Accordingly, if there is no showing that the agency received the request pursuant to the agency's published procedures, the agency has no obligation to respond to it. See Banks v. Lappin, 539 F.Supp.2d 228, 235 (D.D.C. 2008) (granting judgment as a matter of law to defendants because there was no evidence they had received the request at issue).
Here, there is no allegation, let alone evidence, that plaintiff submitted a FOIA request to CIA.
Plaintiff argues that "the CIA had actual notice of the request" after NARA sent it a copy, Pl.'s Opp. & Cross-Mem. at 12, and that because exhaustion "is not jurisdictional," the Court should "either waive the formal requirements in view of the actual facts of the case or remand the request to the CIA for actual exhaustion." Id. Plaintiff cites no case law supporting his theory that "actual notice" may serve as an alternative to properly sending a request to an agency, and his approach is contrary to binding Circuit authority that makes exhaustion of administrative remedies "a mandatory prerequisite to a lawsuit under FOIA." Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004).
Since it is undisputed that plaintiff's request was not sent through the proper
Therefore, CIA is entitled to summary judgment on the FOIA count.
"The Privacy Act regulates the `collection, maintenance, use, and dissemination of information' about individuals by federal agencies." Wilson v. Libby, 535 F.3d 697, 707 (D.C. Cir. 2008) (internal quotation marks omitted), quoting Doe v. Chao, 540 U.S. 614, 618, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004). If an agency "refuses to comply with an individual's request" to "gain access to his record or to any information pertaining to him which is contained in the [record] system," the individual "may bring a civil action against the agency, and the district courts of United States shall have jurisdiction." 5 U.S.C. §§ 552a(d), (g)(1).
However, this civil remedy is not available unless a plaintiff has exhausted his administrative remedies. See 5 U.S.C. § 552a(g)(1); Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990) (finding a cause of action under the Privacy Act to be subject to administrative exhaustion requirement). Indeed, failure to exhaust administrative remedies under the Privacy Act is a jurisdictional deficiency because exhaustion is required by statute. See 5 U.S.C. § 552a(d)(1)-(3); Haase, 893 F.2d at 373-74 (holding that causes of action for amendment of records and for access to records incorporate exhaustion requirements); Mulhern v. Gates, 525 F.Supp.2d 174, 183 (D.D.C. 2007) ("Premature Privacy Act suits [for improperly withholding documents] are dismissed for lack of subject matter jurisdiction.").
Because the exhaustion requirement under the Privacy Act is jurisdictional, a court may dismiss a claim for failure to exhaust administrative remedies sua sponte. Fed. R. Civ. P. 12(h)(3); see Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety."); Doe ex rel. Fein v. Dist. of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996) (observing that because subject-matter jurisdiction cannot be waived, a court is "obliged to address it sua sponte" when the parties have failed to do so), citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Even though defendants do not raise this issue, the Court must determine if it has jurisdiction over plaintiff's Privacy Act claims.
To properly exhaust administrative remedies under the Privacy Act, a plaintiff must submit a Privacy Act request to the agency and seek review within the agency under the agency's promulgated
In the complaint, plaintiff alleges that defendants have not followed the procedures established in JFK Records Act, and that "the Lopez file is illegally and improperly withheld under the provisions of the JFK Records Act." Am. Compl. ¶¶ 22-24. Plaintiff then asks the Court to "order the defendants [to] fully comply with the JFK Records Act in regard to the Lopez file." Id. at 6.
Congress enacted the JFK Records Act in order to establish a timetable and a procedure for the disclosure of records concerning the assassination of President John F. Kennedy. See President John F. Kennedy Assassination Records Collection Act of 1992, Pub. L. No. 102-526, 106 Stat. 3443 (1992) ("JFK Records Act") § 2; see also Morley v. CIA, 508 F.3d 1108, 1115 (D.C. Cir. 2007) (describing the purposes and scheme of the JFK Records Act). The Act requires that all assassination records be transmitted to NARA to comprise its JFK Assassination Records Collection. JFK Records Act § 4. The Act also created the Assassination Records Review Board ("ARRB") to determine whether agency documents constitute assassination records, and to render decisions on whether certain records qualify for postponement of disclosure. Id. § 7(i). In 1998, upon expiration of the ARRB's operations, CIA, NARA, and the ARRB agreed that CIA would transmit a number of specifically identified documents to the JFK Collection at NARA, along with other non-duplicative assassination-related records created or discovered after that date. Morley, 508 F.3d at 1115 (citation omitted), citing the Memorandum of Understanding Regarding Continuing Obligations of the CIA Under the JFK Act ("MOU").
This Circuit has made it clear that the JFK Records Act and FOIA are separate statutory schemes with different standards and enforcement mechanisms. Morley, 508 F.3d at 1115; Assassination Archives & Research Ctr. v. DOJ, 43 F.3d 1542, 1544 (D.C. Cir. 1995); see also JFK Records Act § 11(b) ("Nothing in this Act shall be construed to eliminate or limit any right to file requests with any executive agency or seek judicial review of the decisions pursuant to section 552 of title 5, United States Code."). Further, this Circuit has held that no private right to initiate or maintain a cause of action under the JFK Records Act exists because the Act does not provide for a private right of action. See Assassination Archives, 43 F.3d at 1542-44 (holding that the "JFK Act does not create an implied private right of action for the release of documents and that the substantive standards for the release of documents under the JFK Act cannot be grafted onto FOIA's procedures"). And plaintiff acknowledges that the Act does not create a private cause of action. Pl.'s Opp. & Cross-Mem. at 27 ("[I]t is true that the JFK Act does not create a private cause of action ....").
While Section 11(c) of the JFK Act does state that the Act does not "preclude judicial review" under the APA of "final actions taken or required to be taken under th[e] Act," JFK Act § 11(c), plaintiff did not bring a cause of action under the APA. See generally Am. Compl.
Therefore, the Court will grant summary judgment in favor of defendants on Count III.
For the foregoing reasons, the Court will grant defendants' motion in its entirety. A separate order will issue.
