                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________________
                                      )
LOWELL THOMAS LAKIN,                  )
                                      )
        Plaintiff,                    )
                                      )
               v.                     )    Civ. Action No. 11-594
                                      )       (EGS)
UNITED STATES DEPARTMENT OF JUSTICE )
                                      )
        Defendant.                    )
                                      )

                         MEMORANDUM OPINION

       Plaintiff Lowell Thomas Lakin has sued the United States

Department of Justice (“DOJ” or defendant) alleging violations

of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 and

the Privacy Act, 5 U.S.C. § 552(a).    Pending before the Court is

defendant’s motion to dismiss plaintiff’s complaint for failure

to exhaust administrative remedies.    In the alternative, the DOJ

seeks summary judgment and asserts that there are no issues of

material fact in dispute.    For the reasons set forth below,

defendant’s motion for summary judgment will be GRANTED.

  I.     BACKGROUND

       Plaintiff Lowell Thomas Lakin, who is currently

incarcerated, sent a FOIA request on May 15, 2009 to the

Executive Office for United States Attorneys (EOUSA) seeking

records concerning himself.    Def.’s Statement of Facts (“Def.’s

SOF”) ¶ 1.    Specifically, plaintiff requested
       any and all records contained within your system of
       records which either pertains to me or makes any
       reference to me in any way.
       . . . .
       This request should be construed broadly to cover any
       and all records, whether generated by the United
       States Attorney for the Southern District of Illinois,
       or elsewhere, the Federal Bureau of Investigation,
       Homeland Security, or any other federal or State
       agency, whether specifically identified [by] me herein
       or not.

May 15, 2009 FOIA Request, ECF No. 11-4.

       On September 8, 2009, EOUSA notified plaintiff that it was

denying plaintiff’s request because plaintiff had waived his

right to request records pursuant to a February 24, 2008 plea

agreement.    Def.’s SOF ¶ 6.   In that plea agreement, plaintiff

stated that he “waive[d] all rights . . . to request or receive

from any Department or Agency of the United States any records

pertaining to the investigation or prosecution of this case,

including without limitations, any records that may be sought

under the [FOIA] or the Privacy Act of 1974 . . . .”     Def.’s SOF

¶ 5.    The EOUSA’s letter informed plaintiff that he could file

an administrative appeal with the Office of Information Policy

(OIP) and that the appeal must be received within sixty days of

EOUSA’s September 8, 2009 letter.      Def.’s SOF ¶ 7.

       On November 17, 2009, OIP received a letter dated November

5, 2009 in which plaintiff sought to appeal the denial of his

FOIA request.    Def.’s SOF ¶ 8.   On January 19, 2010, OIP

                                   2
notified plaintiff that it was closing plaintiff’s appeal as

untimely because the appeal was received ten days after the

deadline for the appeal.     Def.’s SOF ¶ 9.   On February 1, 2010,

plaintiff requested that the denial of his appeal be

reconsidered, and the OIP denied that request on April 8, 2010.

Def.’s SOF ¶ 10-11.

     Defendant has moved to dismiss or, in the alternative, for

summary judgment, alleging that the complaint fails to state a

claim and that plaintiff has failed to exhaust his

administrative remedies.     Because the motion relies on materials

outside the pleadings, the Court will construe defendant’s

motion as one for summary judgment.     See Fed. R. Civ. P. 12(d).

The motion is ripe for the Court’s decision.

  II.   STANDARD OF REVIEW

     Summary judgment may be granted 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).   A genuine issue of material fact is one that would

change the outcome of the litigation.     See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts

that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.”).     In

the event of conflicting evidence on a material issue, the Court

is to construe the conflicting evidence in the light most

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favorable to the non-moving party.   See Sample v. Bureau of

Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).   Factual

assertions in the moving party's affidavits or declarations may

be accepted as true unless the opposing party submits his own

affidavits, declarations, or documentary evidence to the

contrary.   Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). 1

In a FOIA action, the Court may award summary judgment to the

agency solely on the basis of information provided in reasonably

detailed affidavits or declarations.   Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Campbell v.

Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King

v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)).

    III. DISCUSSION

      The DOJ seeks dismissal on the grounds that plaintiff has

failed to exhaust his administrative remedies because he failed

to timely appeal of the denial of his FOIA request.    Def.’s Mot.

to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s

Br.”), ECF No. 11, at 6.   Specifically, DOJ argues that

plaintiff failed to comply with 28 C.F.R. § 16.9(a), which

requires that an appeal of the denial of a FOIA request “must be

received by the Office of Information and Privacy within 60 days

of the date of the letter denying [the FOIA] request.”     The

1
 Because plaintiff is proceeding pro se, the Court informed
plaintiff of his obligation to respond to the statements of fact
in a so-called “Fox/Neal” order on June 5, 2012.
                                 4
regulation further states that a FOIA requestor must first

appeal a denial according to the above procedure if he intends

to seek judicial review.   See id. § 16.9(c).   Because

plaintiff’s appeal was received ten days late, DOJ argues, it

was untimely.

     A party seeking agency records under FOIA must comply with

the procedures set forth in the regulations promulgated by that

agency.   See Hidalgo v. FBI, 344 F.3d 1256, 1257 (D.C. Cir.

2003); Calhoun v. U.S. Dep't of Justice, 693 F. Supp. 2d 89, 91

(D.D.C. 2010), aff'd, No. 10-5125, 2010 WL 4340370 (D.C. Cir.

Oct. 19, 2010).   When a FOIA request “is not made in accordance

with the published regulations, the FOIA claim is subject to

dismissal for failure to exhaust administrative remedies, as

‘[t]he failure to comply with an agency's FOIA regulations [for

filing a proper FOIA request] is the equivalent of a failure to

exhaust.’” Id. (citing and quoting West v. Jackson, 448 F. Supp.

2d 207, 211 (D.D.C. 2006)); see also Hidalgo, 344 F.3d at 1259

(“FOIA's administrative scheme favors treating failure to

exhaust as a bar to judicial review.”).   Although the exhaustion

requirement under FOIA is not jurisdictional, judicial review is

precluded under FOIA as a jurisprudential matter because “‘the

purposes of exhaustion’ and the ‘particular administrative

scheme’ support such a bar.”   Hidalgo, 344 F.3d at 1259 (citing

Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir.

                                 5
1990)); see also Oglesby, 920 F.2d at 61–62 (“Courts have

consistently confirmed that the FOIA requires exhaustion of this

appeals process before an individual may seek relief in the

courts.”) (citations omitted).   A FOIA requestor bears the

burden of producing evidence of a proper appeal.       See Schoneman

v. FBI, No. 04-2202, 2006 WL 1582253, at *11 (D.D.C. June 5,

2006) (citing Bestor v. CIA, No. 04-2049, 2005 WL 327323, at *4

(D.D.C. Sept. 1, 2005).

     Here, plaintiff’s appeal was received ten days after the

sixty-day deadline had passed for the appeal of the EOUSA’s

denial of his FOIA request.   Defendant argues that plaintiff’s

complaint should therefore be dismissed because he failed to

exhaust administrative remedies.       In support of this argument,

defendant cites Hamilton Sec. Group, Inc. v. HUD, which held

that an administrative appeal filed one day after the regulatory

deadline did not constitute exhaustion of administrative

remedies.   106 F. Supp. 2d 23, 27-28 (D.D.C. 2000).

     In plaintiff’s opposition to defendant’s motion, plaintiff

mainly argues the merits of his underlying FOIA request. 2


2
 For example, plaintiff argues that his waiver in the plea
agreement is not valid because the sentencing court “rejected”
the plea agreement. Pl.’s Opp., ECF No. 13, at 2. Although
these claims are not relevant to the outcome of the case, the
Court has reviewed the docket from plaintiff’s underlying
criminal matter. While it does appear that the sentencing court
rejected an initial plea agreement, see Feb. 28, 2008 Plea
Agreement, ECF No. 125, No. 07-30068 (S.D. Ill.), a subsequent
                                   6
Plaintiff also concedes that defendant’s recitation of the facts

is “fairly accurate.”   Pl.’s Opp. at 3.   Plaintiff contends,

however, that the “prisoner’s mailbox rule” renders his appeal

timely.   In this respect, plaintiff cites Houston v. Lack, which

held that a pro se prisoner’s notice of appeal from the denial

of his motion for habeas corpus was deemed “filed” at the moment

of delivery to prison authorities, rather than when it is

received by the district court.   487 U.S. 266, 274-276 (1988).

Plaintiff argues that his appeal to OIP should be deemed timely

filed under this rule, though plaintiff does not make any

representation regarding when he mailed his appeal. 3

     Plaintiff has not cited any cases in which this Circuit has

applied the prisoner’s mailbox rule to administrative appeals

and it does not appear that the Circuit has expressly addressed

the issue.   Several other courts have considered the issue and



plea agreement was entered on August 18, 2008, see Aug. 18, 2008
Plea Agreement, ECF No. 144, No. 07-30068 (S.D. Ill.). That
agreement included a FOIA waver, see id. § V.5, and was accepted
by the sentencing court on September 10, 2008, see Sept. 10,
2008 Tr., ECF No. 156, No. 07-30068 (S.D. Ill.).
3
  Plaintiff further contends that summary judgment should be
denied because “the United States has . . . not asserted that
Plaintiff did not deliver his appeal to the Office of
Information Policy to the institutional mailbox on or before the
7th of November, 2009.” Pl.’s Sur-reply, ECF No. 15, at 2. In
this respect, plaintiff misunderstands the burden of proof in
this case, which requires plaintiff to produce evidence of a
proper appeal. See Schoneman v. FBI, 04 Civ. 2202, 2006 WL
1582253, at *11 (D.D.C. June 5, 2006) (citing Bestor v. CIA, 04
Civ. 2049, 2005 WL 327323, at *4 (D.D.C. Sept. 1, 2005).
                                  7
have rejected the application of the prisoner’s mailbox rule to

administrative proceedings when precluded by a specific

statutory or regulatory regime.    See, e.g., Smith v. Conner, 250

F.3d 277, 279 (5th Cir. 2001) (declining to apply prisoner’s

mailbox rule to untimely immigration appeal where INS regulation

specifically provided that the date of filing is the date the

appeal is received); Nigro v. Sullivan, 40 F.3d 990, 994 (9th

Cir. 1994) (declining to apply prisoner’s mailbox rule to

untimely appeal where administrative regulations specifically

defined the word “filed”); contra Longenette v. Krusing, 322

F.3d 758, 765 (3d Cir. 2003) (distinguishing Smith and Nigro and

applying prisoner’s mailbox rule to statute that did not

expressly define “filed” as requiring actual receipt).

     Here, the applicable regulation specifically states that an

appeal of a FOIA request “must be received by the Office of

Information and Privacy within 60 days of the date of the letter

denying [the FOIA] request.”    28 C.F.R. § 16.9(a) (emphasis

added).   In Houston, the relevant statute provided that “no

appeal shall bring any judgment . . . before a court of appeals

for review unless notice of appeal is filed, within thirty days

of entry of such judgment.”    28 U.S.C. § 2107.   The statute in

Houston did not define whether “filed” meant actual receipt by

the court.   Because of this ambiguity, the Supreme Court created

the prisoner’s mailbox rule.    See Longenette, 322 F.3d at 765.

                                  8
     The Court finds that this case is similar to Smith and

Nigro, both of which involved statutory or regulatory schemes

that required receipt by a specific date, and is distinguishable

from Houston.   The FOIA appeal regulation in this case

specifically required that OIP receive the appeal within sixty

days of the date of the September 8, 2009 letter.    Because the

appeal was not received until November 17, 2009, plaintiff did

not comply with the regulation.   Accordingly, the Court finds

plaintiff failed to exhaust administrative remedies and his

claim is not properly before this Court.

  IV.   CONCLUSION

     For the reasons stated above, the Court finds that

plaintiff has failed to exhaust his administrative remedies.

Accordingly, defendant’s motion for summary judgment is GRANTED

and plaintiff’s complaint is DISMISSED.    An appropriate Order

accompanies this Memorandum Opinion.

SIGNED: Emmet G. Sullivan
        United States District Court Judge
        January 20, 2013




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