                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA


                                        )
RICHARD W. ROSE,                        )
                                        )
            Plaintiff,                  )
                                        )
     v.                                 )       Civil Action No. 18-cv-2199 (TSC)
                                        )
U.S. DEPARTMENT OF JUSTICE,             )
                                        )
            Defendant.                  )
                                        )
                                        )


                             MEMORANDUM OPINION

      Plaintiff, appearing pro se, challenges the alleged refusal of the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”) to expedite his request for

documents under the Freedom of Information Act (“FOIA”). The Department of

Justice, of which ATF is a component, has moved for summary judgment under Federal

Rule of Civil Procedure 56, ECF No. 10. For the reasons explained below, the motion

will be GRANTED.

      I. BACKGROUND

      Plaintiff alleges that in letters to ATF dated May 28, 2018, and June 27, 2018,

he requested the release of “all firearms trace summary reports as well as aggregated

information obtained from trace summary reports on a Smith & Wesson, 357 Model 27,

Revolver, Serial No.” S269365.” Compl. for Declaratory and Injunctive Relief ¶ 10

(citing Attach. A). Plaintiff included “a time frame of (2) working days for ATF to

answer,” id. ¶ 11, but he did not formally request expedited processing. See 28 C.F.R.


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§ 16.5(e)(3) (“A requester who seeks expedited processing must submit a statement,

certified to be true and correct, explaining in detail the basis for making the request for

expedited processing.”). In the complaint dated September 18, 2018, Plaintiff states:

“To date, defendants have not responded to plaintiff’s request for expedited processing

of its FOIA request.” Compl. ¶ 14.

       In response to this lawsuit, ATF’s Disclosure Division searched its databases

first to determine if Plaintiff had submitted a FOIA request, but located no such request.

Consequently, DOJ contends that it is entitled to judgment as a matter of law. Plaintiff

has opposed the motion, ECF No. 14, and Defendant has replied, ECF No. 17.

       II. LEGAL STANDARD

       Summary judgment is appropriate where the record shows there is no genuine

issue of material fact and the movant is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse

v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). “FOIA cases typically and

appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI,

908 F. Supp. 2d 176, 180 (D.D.C. 2012) (citation omitted).

       “FOIA provides a ‘statutory right of public access to documents and records’

held by federal government agencies.” Citizens for Responsibility & Ethics in

Washington v. DOJ, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v.

Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies

comply with requests to make their records available to the public, unless such

“information is exempted under [one of nine] clearly delineated statutory language.”

Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b). Upon



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complaint, a plaintiff prevails “only if he has demonstrated that an agency has (1)

improperly (2) withheld (3) agency records.” Johnson v. United States, 239 F. Supp.

3d 38, 44 (D.D.C. 2017) (citation and internal quotation marks omitted).

      In deciding whether an agency has fulfilled its obligations under FOIA, “the

court shall determine the matter de novo . . . and the burden is on the agency to

sustain its action.” 5 U.S.C. § 552(a)(4)(B). The court may rely solely on

information provided in an agency’s supporting affidavits or declarations if they are

relatively detailed and “are not controverted by either contrary evidence in the record

[or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724,

738 (D.C. Cir. 1981). “To successfully challenge an agency’s showing that it complied

with the FOIA,” the plaintiff “must come forward with ‘specific facts’ demonstrating

that there is a genuine issue with respect to whether the agency has improperly withheld

extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119

(D.D.C. 2010) (quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

      III. ANALYSIS

      An agency is generally required to disclose only those records that are in its

custody and control at the time of the FOIA request, McGehee v. Central Intelligence

Agency, 697 F.2d 1095, 1110 (D.C. Cir. 1983), and only upon receiving a “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[.]” 5 U.S.C. § 552(a)(3)(A). But if the agency receives no FOIA request, or

one that does not comply with its published rules, it “has no reason to search or




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produce records[.]” Johnson, 239 F. Supp. 3d at 44 (citation and internal quotation

marks omitted).

      Defendant’s declarant, Chief of ATF’s Disclosure Division, explains that the

Disclosure Division “learn[ed] about this lawsuit” in early November 2018, upon

notification from ATF’s Office of Chief Counsel. Decl. of Adam C. Siple ¶¶ 5-6, ECF

No. 10-2. Thereafter, staff at the Disclosure Division, utilizing Plaintiff’s name and

prison register number, searched “its electronic FOIA databases to determine if the

alleged FOIA requests [dated May 28, 2018, and June 27, 2018] were received by our

office.” Siple Decl. ¶¶ 6-7. The searched databases “track incoming [FOIA] requests,

consultations, and referrals received by ATF from the time period covering fiscal year

2014 to the present.” Id. ¶ 6. The search located no request from Plaintiff. Id. ¶ 7.

      Both the initial and follow-up requests were addressed to ATF’s National

Tracing Center (“NTC”) in West Virginia, albeit at different addresses. See Def.’s

Stmt. of Material Facts ¶ 4, ECF No. 10-1. Therefore, the Disclosure Division staff

also asked “NTC personnel . . . whether the NTC had received any FOIA requests

from Mr. Rose.” Siple Decl. ¶ 9. “NTC had no record of receiving any [such]

requests . . . or of forwarding any such FOIA request to ATF headquarters.” Id. In

addition, NTC staff “confirmed” that the facility in Falling Waters, West Virginia,

where Plaintiff addressed the initial request, “has not been at that location for

approximately the last ten years.” Id.

      Plaintiff has proffered nothing to rebut ATF’s evidence of nonreceipt of the two

FOIA requests identified in and attached to the complaint. Plaintiff contends instead

“that his initial FOIA request was made in October 2009” and was denied by ATF in



                                            4
2010 “because the situation was a[n] on-going investigation[.]” Pl.’s Resp. at 1.

Plaintiff posits that ATF should have expanded its search to include “fiscal years 2009

and 2010.” Id. at 3. But the complaint does not mention any other FOIA requests,

much less one from 2009, and it is “well settled law that a plaintiff cannot amend his .

. . complaint by the briefs in opposition to a motion to dismiss.” Kingman Park Civic

Ass’n v. Gray, 27 F. Supp. 3d 142, 160 n.7 (D.D.C. 2014) (citing cases); see Manna v.

U.S. Dep’t of Justice, 106 F. Supp. 3d 16, 19 (D.D.C. 2015) (noting that “Plaintiff

never moved to amend his complaint to add claims based on other [FOIA] requests,

and he cannot expand the scope of this litigation by merely referring to other requests

in his opposition to Defendants’ motion”); see also Detar v. United States Gov't, 174

F. Supp. 3d 566, 571 (D.D.C. 2016) (a plaintiff “must plead sufficient factual content

so as to provide Defendants with ‘fair notice of the claim being asserted’ . . . .”)

(quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)). Therefore, the court

agrees that Defendant has no obligation to fulfill under the FOIA and is entitled to

judgment as a matter of law.

      IV. CONCLUSION

      For the foregoing reasons, Defendant’s motion for summary judgment will be

GRANTED. A corresponding order will issue separately.



Date: April 15, 2019

                                         Tanya S. Chutkan
                                         TANYA S. CHUTKAN
                                         United States District Judge




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