                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


DAVID EARL WATTLETON,                        )
                                             )
               Plaintiff,                    )
                                             )
       v.                                    )       Civil Action No.: 19-1402 (BAH)
                                             )       Chief Judge Beryl A. Howell
                                             )
U.S. DEPARTMENT OF JUSTICE,                  )
                                             )
               Defendant.                    )


                                 MEMORANDUM OPINION

       Plaintiff David Earl Wattleton, who is proceeding pro se and in forma pauperis (“IFP”),

filed this lawsuit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel the

U.S. Department of Justice (“DOJ”) to disclose certain records he requested in February 2019. See

generally Compl., ECF No. 1. DOJ now seeks summary judgment due to plaintiff’s failure to

exhaust administrative remedies, DOJ Mot. for Summ. J. (“DOJ Mot.”), at 1, ECF No. 20; DOJ

Mem. Supp. Mot. for Summ. J. (“DOJ Mem.”), at 1, ECF No. 20-1; DOJ Stmt. of Facts Mot. for

Summ. J., ECF No. 20-1, and, for the reasons discussed below, that motion is granted.

I.     BACKGROUND

       On February 1, 2019, DOJ received from plaintiff a written FOIA request, which was

assigned tracking number EOUSA-2019-001813 (“Pl.’s FOIA Request”). Compl.at 2; Declaration

of Theodore B. Smith (“Smith Decl.”), ¶¶ 4-5, ECF No. 23-3; id., Ex. A (Pl.’s FOIA Request).

This FOIA request sought “the names of all individuals and/or entities of all PACER (Public

Access to Court Electronic Records) system and/or LIONS system users who, within the last 20

years, accessed a United States District Court or United States Attorney for the Northern District



                                                 1
of Georgia affiliated with case number 1:99-cr306- 'IWI', or to retrieve information based on the

name David Earl Wattleton.” Smith Decl. ¶ 5; id., Ex. A.

       On February 21, 2019, the Executive Office of United States Attorneys (“EOUSA”),

responded by letter, denying plaintiff’s request, pursuant to 5 U.S.C. §§ 552(b)(6) and (b)(7)(C).

Smith Decl. ¶¶ 6–7, 10; id., Ex. B (“EOUSA Denial Letter”). This letter further advised plaintiff

of his right to appeal the decision to DOJ’s Office of Information Policy (“OIP”), and that any

appeal must be postmarked within 90 days and mailed to “Director, Office of Information Policy

(OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW,

Washington, DC 20530-0001.” EOUSA Denial Letter at 1.

       Plaintiff claims that he “made a written appeal” of EOUSA’s denial to OIP “on or about

March, 2019,” Compl. at 2, or “on or about April 2, 2019,” Pl.’s Opp’n to DOJ Mot. (“Pl.’s

Opp’n”), at 1, ECF No. 18, but received no response. He mailed his appeal to “Freedom of

Information Act Appeal United States Department of Justice 1425 New York Avenue, NW

Washington, DC 20530.001,” Pl.’s Mot. to Issue Subpoena (“Pl.’s Mot.”), at 1, ECF No. 14, which

DOJ points out is an incorrect address, DOJ Mem. at 5. To bolster his claim of having filed an

administrative appeal, plaintiff submits an undated and unsigned document titled “Administrative

Appeal No. EOUSA 2019-001813.” Compl., Ex. C. (Pl.’s Notice of Appeal). DOJ denies that OIP

received any document from plaintiff noting an appeal. Declaration of Priscilla Jones (“Jones

Decl.”), ¶ 1, ECF No. 20-4; Smith Decl. ¶ 11.

       Plaintiff filed this lawsuit on May 14, 2019, and a briefing schedule was then ordered, with

two extensions granted. See Scheduling Order (Nov. 4, 2019), ECF No. 16; Minute Order (Nov.

27, 2019); Minute Order (December 12, 2019). In advance of DOJ’s filing of its pending motion

for summary judgment, plaintiff filed an opposition to summary judgment, seemingly anticipating



                                                2
DOJ’s exhaustion argument. See generally, Pl.’s Opp’n. After DOJ timely filed its motion for

summary judgment, the Court advised plaintiff of his obligations to respond, by April 2, 2020, to

the motion for summary judgment under the Federal Rules of Civil Procedure and the Local Civil

Rules of this Court and cautioned him that failure to file a timely response could result in resolution

of the pending motion without the benefit of his response. Order (March 3, 2020), ¶ 4, ECF No.

21; see also Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland, 837 F.2d 507,

509 (D.C. Cir. 1988). Plaintiff has made no further filing after DOJ’s pending motion for summary

judgment was docketed on January 2, 2020.

II.    LEGAL STANDARD

       The D.C. Circuit has made clear that “[t]he doctrine of administrative exhaustion applies

to FOIA and limits the availability of judicial review.” Elec. Privacy Info. Ctr. v. IRS, 910 F.3d

1232, 1239 (D.C. Cir. 2018) (citing Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61–62 (D.C. Cir.

1990)). At the same time, in the FOIA context, the exhaustion requirement “is not jurisdictional,”

Bayala v. United States Dep't of Homeland Sec., Office of Gen. Counsel, 827 F.3d 31, 35 (D.C.

Cir. 2016), but rather “a jurisprudential doctrine” that "precludes judicial review if the purposes

of exhaustion and the particular administrative scheme support such a bar," Khine v. United States

Dep't of Homeland Sec., 943 F.3d 959, 964 (D.C. Cir. 2019) (quoting Wilbur v. CIA, 355 F.3d 675,

677 (D.C. Cir. 2004) (per curiam) (internal quotation marks and citations omitted)).

“Administrative appeal provides the agency a further chance to ‘exercise its discretion and

expertise on the matter and to make a factual record to support its decision.’" Id. at 968

(quoting Oglesby, 920 F.2d at 61). Thus, “[a] FOIA requester must complete the ‘statutory

administrative appeal process, allowing the agency to complete its disclosure process before courts




                                                  3
step in.’" Elec. Privacy Info. Ctr., 910 F.3d at 1238 (quoting Oglesby, 920 F.2d at 65) (emphasis

in original).

        The “typical course of action” is to analyze an agency challenge to a FOIA claim for lack

of administrative exhaustion, under Federal Rule of Civil Procedure 12(b)(6), because

“exhaustion is generally considered to be an element of a FOIA claim.” Bayala, 827 F.3d at 35

n.1; see also Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003) (vacating the summary

judgment order of the district court and remanding the case with instructions to dismiss the

complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust). Yet, when such

analysis requires examination of “matters outside the pleadings,” the court must treat the motion

as one for summary judgment. FED. R. CIV. P. 12(d). A court may grant summary judgment by

relying on the information included in the agency's affidavits or declarations if they are “relatively

detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(internal quotation marks omitted).

        When, as here, an action is brought by a pro se plaintiff, a district court has an obligation

“to consider his filings as a whole[,]” Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014)

(citing Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999)), because such complaints

are held “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner,

404 U.S. 519, 520–21 (1972). Nevertheless, a court need not accept inferences drawn by a plaintiff

if those inferences are unsupported by facts alleged in the complaint, nor must it accept a plaintiff's

legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

III.    DISCUSSION

        A FOIA requestor must comply the relevant agency regulations. See 5 U.S.C. § 552

(a)(3)(A); see also id. §§ 552 (a)(4)(A); (a)(6)(D); (a)(6)(E). As noted, generally, failure to file a

timely administrative appeal as specified by an agency's FOIA regulations will preclude judicial
                                                  4
review. Wilbur v. Cent. Intelligence Agency, 355 F.3d at 676; see also DeBrew v. Atwood, 792

F.3d 118, 123 (D.C. Cir. 2015) (holding that allowing a plaintiff to “pursue judicial review without

benefit of prior OIP consideration [on administrative appeal] would undercut the purposes of

exhaustion.”) (quoting Hidalgo, 344 F.3d at 1259).

       DOJ regulations require that plaintiff file an administrative appeal with OIP. See 28 CFR

§ 16.8(e); see also also Vt. Dep't of Pub. Serv. v. United States, 684 F.3d 149, 157 (D.C. Cir. 2012)

(“[W]hen ‘an agency's regulations require issue exhaustion in administrative appeals . . . courts

reviewing agency actions regularly ensure against the bypassing of that requirement[.]’ ”) (quoting

Sims v. Apfel, 530 U.S. 103, 108 (2000)). Here, DOJ has submitted the sworn declarations of both

Theodore B. Smith, an EOUSA attorney-advisor and liaison to the FOIA unit, Smith Decl. ¶ 1,

who personally handled plaintiff’s FOIA Request, id. ¶ 4, and Priscilla A. Jones, Supervisory

Administrative Specialist for OIP, who oversees the logging of administrative appeals taken from

denials by all DOJ components, Jones Decl. ¶ 1. Both Smith and Jones attest that they personally

searched their respective internal record-keeping systems where an appeal would be noted and

found no record of receipt. Id.; Smith Decl. ¶ 11. These attestations are afforded a “presumption

of good faith.” SafeCard Servs., 926 F.2d at 1200.

       Plaintiff relies on the putative undated and unsigned notice of appeal submitted with his

original pleading in this case as evidence designed to show that he exhausted his administrative

remedies. See Compl., Ex. C. In addition, he argues, in his opposition filed prior to the filing of

DOJ’s pending summary judgment motion, that the prison log book would prove that he did, in

fact, submit the document for mailing. Pl.’s Opp’n at 1. This proffered evidence is simply not

persuasive for at least two reasons. First, plaintiff bears the burden of demonstrating not that he

mailed a notice of appeal, but that the agency actually received it. See Ebling v. DOJ, 796 F. Supp.



                                                 5
2d 52, 65–7 (D.D.C. 2011) (entering summary judgment for failure to exhaust where plaintiff

submitted her appeal in contravention of DOJ regulations and where DOJ had no record of

receiving it). Second, even assuming that plaintiff’s notice of appeal was mailed, the record shows

that plaintiff attempted to mail the document to an incomplete and incorrect address. See Pl.’s Mot.

at 1; Smith Decl. ¶ 13; Jones Decl. ¶ 1. The address on this purported notice (1) fails to reference

OIP, (2) is missing the relevant suite number, and; (3) contains a partially defective zip code. See

Pl.’s Mot. at 1.

        Plaintiff appears to concede that his notice of appeal was improperly mailed, but seeks to

excuse this error due to “extraordinary circumstances.” Pl.’s Opp’n at 2. According to plaintiff,

the Federal Bureau of Prisons’ Trust Fund Limited Inmate Computer System (“TRULINCS”)

generated mailing label “does not provide adequate space to include the full address of the OIP[,]”

making it “impossible for [him] to comply with the DOJ’s instructions[.]” Pl.’s Opp. at 2. DOJ

has countered this excuse by submitting unrebutted evidence from Jeremy Nerstad, the

Correctional Systems Supervisor with oversight responsibility of the mail room and its functions

at the Bureau of Prisons facility where plaintiff is currently designated, that the TRULINCS

labelling system provides enough space to list the full required address. Declaration of Jeremy

Nerstad (“Nerstad Decl.”), ¶¶ 1, 4, ECF No. 20-5. He attests that the TRULINCS label provides

ample room to type up to five full lines of a mailing address, id. ¶ 4, and if additional space were

required, plaintiff could simply “write or print information on envelopes in addition to placing a

TRULINCS mailing label bearing the address,” id. ¶ 5. Plaintiff’s submission of the very FOIA

request at issue in this case corroborates the information provided in the Nerstad Declaration since

that plaintiff wrote information on the outside of the mailing envelope containing Request No.

2019-001813. See Smith Decl., Ex. A. This uncontroverted evidence shows not only that the



                                                 6
TRULINCS label provides adequate space to display the OIP address, but also that plaintiff could

have hand-written any additional required information. See Nerstad Decl.¶¶ 4–5.

       Plaintiff has failed to offer any objective evidence that DOJ or OIP ever received his notice

of appeal. He does not attach, for example, “a certified-mail receipt or any other form of mailing

that his missives reached their intended target[.]” Ball v. USMS, No. 19-1230 (JEB), 2020 WL

1079069 at *2–*3 (D.D.C. Mar. 6, 2020) (entering summary judgment for failure to exhaust

because plaintiff offered no evidence “beyond his own say-so” that agency had received his

correspondence) (quoting Reynolds v. Dep’t of Justice, No. 16–1428, 2017 WL 1495932 at *2

(D.D.C. Apr. 26, 2017)).

       Therefore, because “DOJ has introduced unrefuted evidence that it has no record of ever

receiving an appeal from” plaintiff, it is thus “fatal to [his] position.” Ebling, 796 F. Supp. 2d at

66 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). Plaintiff’s argument that

extraordinary circumstances exist to, ostensibly, warrant equitable tolling, is simply not supported.

See Ctr. to Prevent Handgun Violence v. Dep't of the Treasury, 981 F. Supp. 20, 23 (D.D.C. 1997)

(finding that, where plaintiff failed to exhaust administrative remedies, he was not entitled to

equitable tolling because “strict enforcement of the exhaustion doctrine is favored in FOIA cases.”)

(citing Dettmann v. Dep't of Justice, 802 F.2d 1472 (D.C. Cir. 1986)).

       As plaintiff’s response is insufficient to create a genuine dispute of material fact, summary

judgment is entered on behalf of DOJ. See Lopez v. Nat'l Archives and Records Admin., 301 F.

Supp. 3d 78, 87 (D.D.C. 2018) (granting summary judgment for failure to exhaust where agency

responded to request before filing of complaint, declaration stated agency had no record of appeal,

and plaintiff failed to provide evidence of appeal).




                                                 7
IV.    CONCLUSION

       For the foregoing reasons, DOJ’s motion for summary judgment is granted. An order

consistent with this memorandum opinion will be issued contemporaneously.



                                                 ________/s/_________________
                                                     BERYL A. HOWELL
Date: August 12, 2020                            Chief United States District Judge




                                             8
