                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                              )
PAUL GUNTER,                                  )
                                              )
                    Plaintiff,                )
                                              )
               v.                             )       Civil Action No. 19-353 (TFH)
                                              )
UNITED STATES SECRET SERVICE,                 )
                                              )
                Defendant.                    )
__________________________________            )


                                 MEMORANDUM OPINION

       Plaintiff, proceeding pro se, seeks to compel the disclosure of records under the Freedom

of Information Act (FOIA), 5 U.S.C. § 552. Defendant United States Secret Service has moved

to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment

under Rule 56, on the basis that Plaintiff failed to exhaust his administrative remedies before

filing suit. See Mot. to Dismiss or in the Alternative Mot. for Summ. J. [ECF No. 7]. For the

reasons explained below, Defendant’s motion will be granted.

                                      I. BACKGROUND

       In a FOIA request to the Secret Service dated May 3, 2016, Plaintiff sought essentially all

records pertaining to himself. See Campbell Decl. Ex. 1 [ECF No. 7-1]. The Secret Service

received Plaintiff’s request on May 23, 2016, and acknowledged as much in a letter dated May

25, 2016. Campbell Decl. ¶ 5. The acknowledgment letter notified Plaintiff that “[a] search for

files responsive to your request is being conducted” and about potential search and duplication

charges. Id. at Ex. 2. In a letter dated July 5, 2016, the Secret Service informed Plaintiff that a
                                                  1
search was conducted and “any responsive records . . . have been located and forwarded . . . for

review and a disclosure determination.” Campbell Decl. Ex. 3. The letter, as did the initial

letter, warned that there might be “some delay in processing” the request but that it was being

processed “as expeditiously as possible.” Id.

       In a letter dated November 19, 2018, the Secret Service responded to Plaintiff’s FOIA

request by stating that “no records or documents” were available “at this time” because they

were being withheld under FOIA Exemption 7(A), codified in 5 U.S.C. § 552(b). Id. Ex. 4.

The letter informed Plaintiff of his right to appeal administratively within 90 days and the

process for doing so. It further informed about alternative dispute resolution services but noted

that pursuing that route “does not stop the 90-day appeal clock.” Id. The Secret Service “has

no record of having received nor adjudicated any administrative appeals by Plaintiff[.]”

Campbell Decl. ¶ 8. Nor does it have any record or indication that any of the foregoing

correspondence was returned to the Secret Service “as undeliverable.” Id. ¶¶ 5, 6, 7. Plaintiff

filed this civil action on February 8, 2019.

                                    II. LEGAL STANDARD

       The Court’s reliance on Defendant’s declaration requires treatment of the Rule 12(b)(6)

motion as one for summary judgment. Fed. R. Civ. P. 12(d). Summary judgment is warranted

when the movant shows that there is no genuine dispute as to any material fact and he is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). In a FOIA case, “it is now well

established that summary judgment on the basis of . . . agency affidavits is warranted if the

affidavits describe the documents and the justifications for nondisclosure with reasonably

specific detail, demonstrate that the information withheld logically falls within the claimed


                                                 2
exemption, and are not controverted by either contrary evidence in the record nor by evidence of

agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

                                        III. DISCUSSION

       “Exhaustion of administrative remedies is generally required before seeking judicial

review” under FOIA “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.” Wilbur v. CIA, 355

F.3d 675, 677 (D.C. Cir. 2004) (per curiam) (quoting Oglesby v. U.S. Dep’t of the Army, 920

F.2d 57, 61 (D.C. Cir. 1990)). Although a plaintiff’s failure to exhaust does not deprive the

court of subject matter jurisdiction, it “can be a substantive ground for rejecting a FOIA claim in

litigation.” Bayala v. United States Dep’t of Homeland Sec., Office of Gen. Counsel, 827 F.3d

31, 35 (D.C. Cir. 2016).

       Under FOIA, an agency must “determine within 20 days (excepting Saturdays, Sundays,

and legal public holidays) after the receipt of any such request whether to comply” and

“immediately notify” the requester. 5 U.S.C. § 552(a)(6)(A)(i). If “the agency fails to answer

the request within twenty days,” Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir.

2003), the requester “shall be deemed to have exhausted his administrative remedies,” and he

may proceed directly to a federal district court for relief, 5 U.S.C. § 552(a)(6)(c)(i). 1 If,

however, the agency “cures its failure to respond within the statutory period by responding to the

FOIA request before suit is filed,” then “the requester must exhaust his administrative remedies

before seeking judicial review.” Oglesby, 920 F.2d at 64.




1
 This is referred to in caselaw as “constructive” exhaustion. See, e.g., Ogelsby, 920 F.2d at 71
(characterizing 5 U.S.C. § 552(a)(6)(C) as the “constructive exhaustion provision of FOIA”).
                                                 3
        As already stated, the Secret Service responded to Plaintiff’s FOIA request on November

19, 2018, which was 80 days before Plaintiff filed this lawsuit. As a result, Plaintiff was

required to exhaust his administrative remedies before seeking federal judicial review,

notwithstanding whether the Secret Service initially failed to comply with FOIA’s statutory

deadline, as Plaintiff alleges, see Pl.’s Opp’n Br. 1–3 [ECF No. 10]. See also Oglesby, 920 F.2d

at 64 (stating that “once the agency responds to the FOIA request, the requester must exhaust his

administrative remedies before seeking judicial review” if the agency’s response is made “before

suit is filed”); Flaherty v. President of U.S., 796 F. Supp. 2d 201, 208-09 (D.D.C. 2011), aff’d

sub nom. Flaherty v. I.R.S., 468 Fed. App’x 8 (D.C. Cir. 2012) (noting that the “right to judicial

review based on constructive exhaustion ends . . . if an agency responds at any time before the

requester files suit”).

        Because Plaintiff offered no facts to show that he exhausted the required administrative

remedies, see Pl.’s Opp’n Br. 1–3, his federal lawsuit is premature, see, e.g., Khine v. United

States Dep’t of Homeland Sec., 334 F. Supp. 3d 324, 334 (D.D.C. 2018), aff’d, 943 F.3d 959

(D.C. Cir. 2019) (“[I]n typical FOIA cases, failure to exhaust administrative remedies operates as

a ‘jurisprudential doctrine’ to bar premature judicial review when the purposes of exhaustion and

the particular administrative scheme support such a bar.” (quoting Hidalgo v. F.B.I., 344 F.3d

1256, 1258 (D.C. Cir. 2003))). Accordingly, this case will be dismissed without prejudice. See

Wilbur, 355 F.3d at 676 (agreeing with the district court that “exhaustion of administrative

remedies is a mandatory prerequisite to a lawsuit under FOIA,” which “means that a requester

under FOIA must file an administrative appeal within the time limit specified in an agency’s

FOIA regulations or face dismissal of any lawsuit complaining about the agency’s response”)


                                                 4
(internal quotation marks and citation omitted); Mitchell v. Samuels, 160 F. Supp. 3d 8, 12, n.4

(D.D.C. 2016) (“The District of Columbia Circuit instructs that ‘[a] FOIA plaintiff’s failure to

exhaust administrative remedies before filing a civil action is properly treated as a failure to state

a claim upon which relief may be granted’ under Fed. R. Civ. P. 12(b)(6).”) (quoting Saldana v.

Fed. Bureau of Prisons, 715 F. Supp. 2d 10, 18 (D.D.C. 2010)).

                                          CONCLUSION

       For the foregoing reasons, Defendant’s motion to dismiss is granted. A separate order

accompanies this Memorandum Opinion.

                                                       ____________s/___________
                                                       THOMAS F. HOGAN
                                                       United States District Judge

DATE: February 5, 2020




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