RUDOLPH CONTRERAS, United States District Judge
Jeremy Pinson currently is an inmate at ADX Florence, a federal prison located in Colorado. While in prison, Mr. Pinson has filed multiple Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requests with different components of the U.S. Department of Justice ("DOJ"). On several occasions, the DOJ has asked Mr. Pinson to clarify his records requests, told him that it could not find records that are responsive to his requests, or informed him that the records he sought were exempt from disclosure by law. Mr. Pinson took issue with some of these determinations, so he filed a complaint claiming that the DOJ improperly withheld numerous records from him in violation of FOIA. In addition, Mr. Pinson's complaint alleges that the DOJ and two government officials violated the Privacy Act, 5 U.S.C. § 552a, and certain unspecified provisions in the U.S. Constitution. In response, the DOJ filed nine pre-answer motions, each asking the Court to dismiss or grant summary judgment in its favor on different portions of Mr. Pinson's complaint.
Now before the Court is the DOJ's motion to dismiss or, in the alternative, for summary judgment as to Mr. Pinson's FOIA claims against the Drug Enforcement Administration ("DEA"). (See ECF
For the reasons explained below, the Court grants the DOJ's motion for summary judgment as to FOIA Request No. 11-0080-P but denies the DOJ's motion for summary judgment as to FOIA Request No. 12-0429-F.
In 2010, Mr. Pinson submitted an undated FOIA request (Request No. 11-0080-P) to the DEA requesting a copy of "[a]ll records which pertain to, mention, or make reference to myself." (Pinson Letter Ex. A, Nov. 3, 2010, ECF No. 45.) When the DEA received this request, it searched its Investigative Reporting and Filing System (IRFS) for any records pertaining to Mr. Pinson and came up empty-handed. (See Little Decl. ¶¶ 20-23, ECF No. 45.) On November 16, 2010, the DEA mailed Mr. Pinson a letter informing him that no records responsive to his request could be located and advising him of his right to appeal. (See id. ¶ 23-24. DEA Letter Ex. B, Nov. 16, 2010, ECF No. 45.) Mr. Pinson received the DEA's response letter on November 29, 2010. (Corr.2d Am. Compl. 9, ECF No. 32.) Although Mr. Pinson's verified complaint asserts that in all requests in which a response was received he submitted an appeal the following day, (id. at 12), the DEA asserts that no record of any such appeal exists (see Little Decl. ¶ 15).
On July 8, 2012, Mr. Pinson submitted a second FOIA request (Request No. 12-0429-F) to the DEA. (See Pinson Letter Ex. C, July 8, 2012, ECF No. 45.) This second request sought "production of all information, in any format in which it exists regarding, referencing or containing the name Ismael Eduardo Guzman, including investigative reports, transcripts, photographs, records, memorandums, electronic files or data, emails, video or audio recordings, and any other available information." (Id.) The DEA sent two letters to Mr. Pinson in response to this request.
First, in a letter dated July 23, 2012, the DEA wrote that it had assigned Mr. Pinson's request a case number and that it would need additional time to make a determination because Mr. Pinson had requested "investigative records." (See Little Decl. ¶ 17; DEA Letter Ex. D, July 23, 2012, ECF No. 45.) Then, on February 21, 2013, the DEA sent Mr. Pinson a second letter informing him that his request could not be processed because it was "not a proper request." (DEA Letter Ex. E, Feb. 21, 2013, ECF No. 45.) The letter stated that the request did not reasonably describe the records sought,
Although Mr. Pinson acknowledges receiving some response to Request No. 12-0429-F on December 10, 2012, (see Corr.2d Am. Compl. 10), he also contends that the Bureau of Prisons ("BOP") intercepted and confiscated his mail so that he did not receive either the July 2012 or the February 2013 letter from the DEA, (Pinson Resp. Mot. Dismiss, 2, Mar. 31, 2014, ECF No. 74; Pinson Decl. ¶ 5, Mar 31, 2014, ECF No. 74). DEA records show that Mr. Pinson did not respond to their February 2013 letter. (See Little Decl. ¶¶ 19, 33.)
The DOJ moves for dismissal of Mr. Pinson's causes of action under Rule 12(b)(6) or, alternatively, for summary judgment under Rule 56. In general, exhaustion arguments in FOIA cases are analyzed under Rule 12(b)(6). See, e.g., Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C.Cir.2003) (vacating the district court's summary judgment order and remanding the case with instructions to dismiss the complaint under Rule 12(b)(6) on exhaustion grounds); Jean-Pierre v. Fed. Bureau of Prisons, 880 F.Supp.2d 95, 100 n. 4 (D.D.C.2012) ("Although FOIA cases typically and appropriately are decided on motions for summary judgment,' where an agency argues that the requester has failed to exhaust his administrative remedies, courts analyze the matter under Rule 12(b)(6) for failure to state a claim." (citations omitted)). If, however, the defendant's motion references matters outside the pleadings, a court must treat the motion as one for summary judgment, not as one for dismissal based on failure to state a claim under Rule 12(b)(6). See Fed. R. Civ. P. 12(d); Colbert v. Potter, 471 F.3d 158, 164 (D.C.Cir.2006); Yates v. District of Columbia, 324 F.3d 724, 725 (D.C.Cir. 2003); see also Rosenberg v. U.S. Dep't of Immigration & Customs Enforcement, 956 F.Supp.2d 32, 36-43 (D.D.C.2013) (granting summary judgment for the government "on the grounds [that] the Plaintiff failed to exhaust his administrative remedies before seeking judicial review").
In this case, both the DOJ and Mr. Pinson refer to materials that are not part of the pleadings. Specifically, the DOJ's motion relies on a declaration by a DOJ employee who avers that he conducted a search of the DOJ's records and found no evidence that Mr. Pinson ever appealed the DEA's determination of his two FOIA requests. (See Little Decl. ¶¶ 15, 19.) The DOJ's motion also references several letters that were exchanged between Mr. Pinson and the DEA. (See, e.g., Pinson Letter Ex. A; DEA Letter Ex. B; Pinson Letter Ex. C; DEA Letter Ex. E.) For his part, Mr. Pinson offers a declaration averring that he never received either one of the DEA's response letters to FOIA Request No. 12-0429-F. (See Pinson Decl. ¶ 5.) Under these circumstances, the Court will evaluate the DOJ's entire motion under the summary judgment standard.
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009) (citing Big wood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007)). A court may grant summary judgment when "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). A "material" fact is one capable of affecting the substantive out-come of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In considering a motion for summary judgment, a court must avoid "making credibility determinations," Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007), and analyze all underlying facts and inferences in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citation omitted). "In addition, the nonmoving party cannot rely upon inadmissible evidence to survive summary judgment; rather, the non-moving party must rely on evidence that would arguably be admissible at trial." Manuel v. Potter, 685 F.Supp.2d 46, 58 (D.D.C. 2010) (internal citations and quotation marks omitted).
The DOJ asserts that it is entitled to summary judgment as to FOIA Request No. 11-0080-P because there is no genuine dispute regarding the material fact that Mr. Pinson failed to exhaust his administrative remedies for the request. Alternatively, the DOJ argues that it is entitled to summary judgment because the agency conducted an adequate search in response
The DOJ filed its motion for summary judgment as to the two DEA requests on February 19, 2014. Included in the DOJ's motion was language warning Mr. Pinson that his failure to contradict the assertions in the DOJ's declaration and attachments could cause the Court to accept those assertions as true. (See ECF No. 45.) On February 24, 2014, this Court issued a Fox/Neal Order, which also warned Mr. Pinson that his failure to respond to the DOJ's motion could result in the motion being treated as conceded and his claims being dismissed. (See ECF No. 46.) Rather than respond to the DOJ's arguments regarding Request No. 11-0080-P, however, Mr. Pinson abandoned his claims, stating that he "challenges only Request No. 12-429-P." (Pinson Resp. Mot. Dismiss, 2, Mar. 31, 2014, ECF No. 74). As a consequence, this Court finds that Mr. Pinson has effectively conceded that he failed to appeal the DEA's decision and thus failed to exhaust his administrative remedies regarding FOIA Request No. 11-0080-P. See Wilkins v. Jackson, 750 F.Supp.2d 160, 162 (D.D.C.2010) ("It is well established that if a plaintiff fails to respond to an argument raised in a motion for summary judgment, it is proper to treat that argument as conceded."); Sykes v. Dudas, 573 F.Supp.2d 191, 202 (D.D.C. 2008) ("when a party responds to some but not all arguments raised on a Motion for Summary Judgment, a court may fairly view the unacknowledged arguments as conceded.").
Accordingly, this Court grants summary judgment for the government because Mr. Pinson "failed to exhaust his administrative remedies before seeking judicial review." Rosenberg, 956 F.Supp.2d at 36-43.
The Court now turns to consider the DOJ's motion for summary judgment as to Request No. 12-0429-F. The DOJ contends that Mr. Pinson's failure to respond to the DEA's February 2013 letter and his failure to submit a proper request constitute a failure to exhaust administrative remedies such that summary judgment is appropriate. It notes that DOJ FOIA regulations require that a requester "describe the records that you seek in enough detail to enable Department personnel to locate them with a reasonable amount of effort." See 28 C.F.R. § 16.3(b). Mr. Pinson, however, never replied to the DEA's letter dated February 21, 2013 advising him that his request did not contain a reasonable description of the records sought. Additionally, the DOJ argues, Mr. Pinson never responded to the DEA's legitimate questions regarding the validity of the attached certification of identity even though he was warned that the certification he submitted was inadequate. It therefore asks that this Court grant the DOJ summary judgment as to Mr. Pinson's second FOIA request to the DEA. For the reasons set forth below, the Court denies the DOJ's motion for summary judgment as to Request No. 12-0429-F.
It is well-established that to prevail on a FOIA cause of action, the plaintiff
It is undisputed that Mr. Pinson did not respond to the DOJ's February 21, 2013, letter instructing him to reformulate his request,
The latter situation is precisely what Mr. Pinson alleges. He asserts that the BOP, a component of the DOJ, confiscated the DEA's responses to FOIA Request No. 12-0429-F. (Pinson Decl. ¶ 5.) Mr. Pinson alleges that under these circumstances, he could not have exhausted his administrative appeals process before he filed his lawsuit, and thus the exhaustion requirement ought to be waived. (Id.) The DOJ does not contest these factual allegations in its opposition or offer evidence to show that Mr. Pinson did receive the DEA's response letters. Instead, the DOJ argues the exhaustion requirement would become meaningless if a FOIA requester could evade it simply by asserting a failure to receive the letter of response.
As a preliminary matter, the Court acknowledges an apparent conflict between Mr. Pinson's assertions in his declaration that he never received the DEA's letters, and his assertion in his complaint that he received a response from the DOJ regarding Request No. 12-0429-F on December 10, 2012.
Ultimately, because at summary judgment the Court must view facts in the light most favorable to the non-movant, see Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Fed. R. Civ. P. 56(c), and cannot make credibility determinations, see Fed. Ins. Co. v. Olawuni, 539 F.Supp.2d 63, 66 (D.D.C.2008) ("[o]n a motion for summary judgment, the Court must `eschew making credibility determinations or weighing the evidence.'") (quotingCzekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007)), the Court must accept as true Mr. Pinson's declaration that he never received the
The Court now turns to the DOJ's arguments that summary judgment is appropriate because FOIA Request No. 12-0429-F was not a proper request.
The DOJ next argues that it is entitled to summary judgment on FOIA Request No. 12-0429-F because the language used in the request was overly broad and did not "reasonably" describe the records sought. In addition, the DOJ argues that the request, was improper because the attached certification of identity was of questionable authenticity and did not appear to contain Mr. Guzman's original signature. Mr. Pinson, on the other hand, points out that his Request No. 11-0080-P, like Request No. 12-0429-F, included only a name and social security number, and yet the DEA found Request No. 11-0080-P sufficiently descriptive to run an adequate search. Mr. Pinson also contends that he watched Mr. Guzman sign the certification of identity, which he argues was properly completed and submitted.
The purpose of the Freedom of Information Act is to give citizens a way to find out "what their Government is up to." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (quoting U.S. Dep't of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). To that end, the Freedom of Information Act requires the government to disclose most types of government records to the public upon request. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 153, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (noting that the Act has "broad provisions favoring disclosure"). Courts have held that it is reasonable for a FOIA request to ask the government to pull a large number of investigative records from one specific records system or to produce one specific document out of a large batch of chronologically indexed files. See Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 (D.C.Cir.1995) (holding that it was presumptively reasonable to ask the government to search a set of chronologically indexed files for a specific memo written by a specific person on a specific date); Yeager v. DEA, 678 F.2d 315, 322, 326 (D.C.Cir.1982) (concluding that a request that asked for all of the investigative records contained within a particular computer system "reasonably described" the records sought).
That being said, a records request made under subsection (a)(3)(A) of the FOIA must "reasonably describe" the records sought. 8 U.S.C. § 552(a)(3)(A). This means the records request must enable "a professional agency employee familiar with the subject area to locate the
This Court has previously held that it was unreasonable to ask an agency to locate and produce "any" documents that referenced, related to, or "pertain[ed]" to a certain person, see Latham v. U.S. Dep't of Justice, 658 F.Supp.2d 155, 157, 161 (D.D.C.2009). In this case, however, the DEA has demonstrated, by interpreting FOIA Request No. 11-0080-P as seeking criminal investigative records, that it is able to perform a FOIA records search in response to a request for "all records which pertain to, mention, or make reference to" a named individual when that request is accompanied by a certification of the individual's social security number and date of birth. After construing FOIA Request No. 11-0080-P "as seeking criminal investigative information related to" Mr. Pinson, the DOJ had a "SARF FOIA specialist" run a search in the DEA record system that contains "all ... [the] files compiled by [the] DEA for law enforcement purposes," using Mr. Pinson's "name, social security number, and date of birth" to search its system. (Little Decl. ¶¶ 20-23.) The DOJ asserts that the DEA's search was in the one database that contained "all" of its investigative records (and so was most likely to contain records responsive to Mr. Pinson's request) using search terms that corresponded to the very way its files were indexed (and so was most likely to pull up records responsive to Mr. Pinson's request). (Id.)
FOIA Request No. 12-0429-F, like FOIA Request No. 11-0080-P, asks for a copy of any and all information relating to a specific person.
The Court is unconvinced that there is a rational reason to treat the language used in FOIA Request No. 12-0429-F differently than the language used by Mr. Pinson in requesting information on himself in FOIA Request No. 11-0080-P, where the DOJ was able to construe the records sought as being limited to investigative records. The addition of the words "including investigative reports, transcripts, photographs, records, memorandums, electronic files or data, emails, video or audio recordings, and any other available information" does not unreasonably broaden the search given that the DOJ had the same information for the third party as it did for Mr. Pinson (i.e., name, social security number, and date of birth). The DOJ could have run a reasonable search in response to FOIA Request No. 12-0429-F by interpreting the scope to be limited to criminal investigative records. See Meeropol v. Meese, 790 F.2d 942, 956 (D.C.Cir.1986) (noting that "a search need not be perfect, only adequate, ... measured by the reasonableness of the effort in light of the specific request.") Thus, the Court denies the DOJ's motion for summary judgment regarding FOIA Request No. 12-0429-F.
As a final matter, the Court must address the DOJ's concern that the certification of identity submitted for Mr. Guzman was a photocopy containing differing handwriting and was of questionable authenticity. Although Mr. Pinson insists that he witnessed Mr. Guzman sign the certification of identity and that Mr. Pinson's handwriting was on the form per Mr. Guzman's request, it is unclear from Mr. Pinson's declaration whether the certification of identity that he submitted to the DEA contained Mr. Guzman's original signature or whether he submitted a photocopy of the form that Mr. Guzman signed. (See Pinson Decl. ¶ 4). In either case, the Court is sympathetic to the DEA's concerns about the document's authenticity.
The DOJ, as the umbrella agency that includes the BOP, should have easier access to Mr. Guzman than Mr. Pinson has given the nature of the ADX Florence facility. Moreover, because the DOJ distrusts Mr. Pinson's assertions, it is unlikely that it will take even an original signature submitted by him at face value. Accordingly, the Court hereby instructs the DOJ to contact Mr. Guzman to determine whether he signed the certification of identity and consented to the release of his information to Mr. Pinson in connection with FOIA Request No. 12-0429-F. See 28 C.F.R. § 16.41 (requiring that when an individual requests records about himself, he must verify his identity and "must sign [his] request and [his] signature must either be notarized or submitted by [him] under 28 U.S.C. 1746"). After consulting Mr. Guzman, the DOJ should submit further briefing to the Court within 30 days of this Order.
V. CONCLUSION
For the foregoing reasons, the Court grants the DOJ's motion for summary judgment regarding FOIA Request No. 11-0080-P, and denies the DOJ's motion for summary judgment regarding FOIA Request No. 12-0429-F. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
