                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

______________________________________
                                       :
WILLIAM DALE MACLEOD,                  :
                                       :
                      Plaintiff,       :
                                       :
      v.                               :               No. 15-cv-1792 (KBJ)
                                       :
UNITED STATES DEPARTMENT OF            :
HOMELAND SECURITY, et al.,             :
                                       :
                      Defendants.      :
______________________________________ :


                             MEMORANDUM OPINION

      Pro se plaintiff William MacLeod is a Canadian national who twice applied to

the United States Customs and Border Protection (“CBP”) agency for a “NEXUS

card”—a credential that expedites customs processing when one crosses the border

between the United States and Canada. CBP denied both of MacLeod’s NEXUS

applications, and in the instant lawsuit, MacLeod appears to challenge the propriety of

those denials. (See Compl., ECF No. 1, ¶¶ 1, 8–10.) MacLeod’s complaint also

references the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”) (id. ¶¶ 4–7), and

contends that MacLeod submitted records requests to the Department of Homeland

Security (“DHS”), the Central Intelligence Agency (“CIA”), the National Security

Administration (“NSA”), and the General Services Administration (“GSA”), and that

those agencies have thus far failed to furnish the requested documents (id.).

      Before this Court at present is a motion that the defendant federal agencies—the

CBP, DHS, CIA, NSA, and GSA (collectively “Defendants”)—have filed, seeking
outright dismissal of one of the claims in MacLeod’s complaint and summary judgment

with respect to the others. (See Defs.’ Mem. in Support of Mot. to Dismiss & Mot. for

Summ. J. (“Defs.’ Mem.”), ECF No. 8, at 42–49) (arguing that MacLeod’s claim

regarding the denial of his NEXUS applications must be dismissed); see also id. at 17–

19 (maintaining that summary judgment is warranted in favor of GSA and NSA because

neither has any record of receiving a FOIA request from MacLeod); id. at 19–42

(contending that DHS does not maintain the records that MacLeod requested, and that

MacLeod failed to exhaust his administrative remedies with respect to the CIA’s

processing-related determination).) 1 For the reasons explained below, this Court finds

that MacLeod has conceded to the dismissal of his NEXUS-related claim against CBP,

and that each of the other agency defendants has established (for various reasons) that

there is no genuine issue of material fact with respect to any of MacLeod’s FOIA

claims. Consequently, Defendants’ omnibus Motion to Dismiss and Motion for

Summary Judgment will be GRANTED. A separate Order consistent with this

Memorandum Opinion will follow.


I.      BACKGROUND

        A.      The Facts 2

                1.      MacLeod’s Applications To The NEXUS Program

        MacLeod is a Canadian national who twice applied to participate in a customs

program that “is administered jointly by the [United States] and Canada and provides


1
  Page numbers herein refer to those that the Court’s electronic case-filing system automatically
assigns.
2
 The facts recited herein are drawn primarily from the defendant agencies’ statement of material facts,
and the affidavits and materials that are appended to the parties’ briefs. Although review of such
materials is ordinarily impermissible when evaluating a motion that seeks dismissal of a plaintiff’s


                                                   2
for expedited travel between the countries for certain pre-approved, low risk travelers.”

(Defs.’ Mem. at 42; see also id. at 42–44 (describing the NEXUS program, which is

administered jointly with Canada pursuant to 8 U.S.C. § 1753 and is one of CBP’s

voluntary “Trusted Traveler” programs).) NEXUS cards that facilitate expedited border

crossings are “available to persons who pass a comprehensive background check”

(Letter from CBP Ombudsman to William MacLeod (Apr. 24, 2015) (“2015

Reconsideration Denial Letter”), Ex. 7 to Defs.’ Mem., ECF No. 8-2 at 63), and it is

undisputed that criminal convictions or pending criminal charges of any sort are a

disqualifying factor (see id.). Notably, CBP’s denial of a NEXUS application does not

mean that an individual cannot enter the United States from Canada; rather, such

individuals simply “will not be permitted to use the NEXUS dedicated lanes” at border

checkpoints. (Letter from Supervisor, NEXUS Enrollment Ctr. to William MacLeod

(Mar. 27, 2014) (“2014 Denial Letter”), Ex. 6 to Defs.’ Mem., ECF No. 8-2 at 60.)

        MacLeod submitted his first NEXUS application via DHS’s website “[s]ometime

on or before March 27, 2014[.]” (Defs.’ Mem. at 43.) MacLeod disclosed two relevant

facts on this application form: (1) that he had been convicted in Canada of “Utter[ing]

Threat Intent Of Bodily Harm or Death contrary to Section 264.01(a) of the Criminal

Code (Canada)[,]” and (2) that he had not been pardoned for that crime. (Global

Enrollment Sys. Application, Ex. 5 to Defs.’ Mem., ECF No. 8-2 at 57.) CBP denied

MacLeod’s application by letter dated March 27, 2014, on the grounds that MacLeod



claim, see Ross v. U.S. Capitol Police, 195 F. Supp. 3d 180, 192 (D.D.C. 2016), MacLeod does not
contest the basic facts as Defendants articulate them, nor does he oppose the arguments that CBP makes
in seeking dismissal of his claim. (See infra Part III.A.) In any event, MacLeod’s two-page pleading
consists of a bare list of grievances divorced from any narrative content that could possibly be the basis
for this Memorandum Opinion’s discussion of the facts that pertain to MacLeod’s claims.



                                                    3
did “not meet the program eligibility requirements” as a result of this criminal

conviction. (2014 Denial Letter.) Thereafter, in September of 2014, and presumably in

conjunction with an appeal of this initial denial, CBP requested that MacLeod provide

the agency with copies of court records showing that he had been acquitted of the

criminal conviction that he had disclosed. (See Pl.’s Opp’n to Defs.’ Mot. (“Pl.’s

Opp’n”), ECF No. 13, at 32, 60.) As of October 3, 2014, CBP had not received the

requested documents, and on October 6, 2014, CBP issued MacLeod another letter

denying this NEXUS application. (See id. at 60–61.) 3 MacLeod sought reconsideration

of this denial, and on April 24, 2015, CBP affirmed its initial decision. (See 2015

Reconsideration Denial Letter.) 4

       MacLeod reapplied for the NEXUS program “[s]ometime on or before November

20, 2015.” (Defs.’ Mem. at 44). In response to the same application question regarding

whether he had “ever been convicted of an offense in any country for which [he has] not

received a pardon,” MacLeod responded, “No.” (Global Enrollment Sys. Application,

Ex. 8 to Defs.’ Mem., ECF No. 8-2 at 69.). CBP again denied MacLeod’s application

on the grounds that he did “not meet the program eligibility requirements[,]” without

providing any further comment. (Letter from Supervisor, NEXUS Enrollment Ctr. to

William MacLeod (Nov. 20, 2015) (“2015 Denial Letter”), Ex. 9 to Defs.’ Mem., ECF

No. 8-2 at 71.) MacLeod does not allege that he appealed this denial determination.




3
  For reasons that are not clear, this denial letter apparently stated that CBP was denying MacLeod’s
application on the grounds that MacLeod “appear[ed] to be an intended immigrant without legal status
in the USA.” (Pl.’s Opp’n at 61.)
4
  CBP informed MacLeod that the agency denied his reconsideration request “for the reasons originally
provided to you on your denial notification letter.” (2015 Reconsideration Denial Letter.)



                                                  4
              2.      MacLeod’s Freedom Of Information Act Requests

       Meanwhile, in this same timeframe and in an effort that appears to have nothing

to do with MacLeod’s quest for a NEXUS card, MacLeod allegedly sought records from

various federal agencies. (See Compl. ¶¶ 4–7 (alleging that he requested information

from the CIA, NSA, GSA, and DHS.) Only DHS and CIA have a record of receiving

any FOIA request from MacLeod. (See Defs.’ Mem. at 17–18.)

                      a.    Department of Homeland Security

       On April 14, 2014, the Privacy Office of DHS received a letter from MacLeod,

which it construed as a FOIA request. (See Ex. A to Decl. of Kevin L. Tyrrell (“Tyrrell

Decl.”), ECF No. 8-2 at 19.) In its entirety, the letter stated:

              Hello

              I am currently inquiring on getting a Diplomatic Status card,
              as I am within the Canadian Government as an MP of
              Parliament.

              I would like to know the costs, timeframe, and other
              necessities as per.

              I would also like to have the forms and books disclosed to
              [me at my address.]

              I would furthermore like to discuss this in a meeting at the
              Embassy in Toronto.

              Thank you

              William Dale MacLeod

(Id.) The DHS Privacy Office determined that it did not have any responsive records in

its control, but that DHS’s Office of United States Citizenship and Immigration

Services (“USCIS”) and United States Visitor and Immigration Status Indicator

Technology (“US-VISIT”) might have the requested information; therefore, the Privacy



                                              5
Office transferred MacLeod’s letter to USCIS and US-VISIT for processing and a

response. (See Tyrrell Decl., ECF No. 8-2 at 13, ¶ 9.) At the time MacLeod filed his

complaint in October of 2015, DHS had not responded to MacLeod with a final

determination on the FOIA request, but the agency has subsequently represented that

“the requested records are not within the purview of DHS [at all], but are instead within

the purview of the United States Department of State[.]” (Id. at 14, ¶ 13; see also infra

Sec. III.B.2.)

                    b.     Central Intelligence Agency

       By letter dated August 28, 2014, MacLeod submitted a FOIA request to the CIA

seeking seven categories of information, as follows:

          1. Information in MacLeod’s name;
          2. Information relating to the Cold War;
          3. Information relating to “CIA and NSA involvement with Russia”;
          4. Information relating to “United States Involvement with Ukraine and
             Russia (Ukraine Crisis)”;
          5. “United States files on Vladimir Putin dating back to the KGB”;
          6. “Any files herein of the USCBP and USHS involvement with the human
             trafficking of children from January 1973 to Current that may involve
             Canada, the United States, Ukraine, Russia, and Eastern Asia . . . . ,
             including Project Spade, and any other involvement leading to the sale of
             children”; and
          7. “Any or all flight records from 1973 to current from CYYG, LGA, JFK,
             and LAX whereas Lufthansa Flights were involved in international
             abduction.”

(Ex. A to Decl. of Antoinette B. Shiner (“Shiner Decl.”), ECF No. 8-2 at 47–48 (“CIA

FOIA Request”).)

       On September 12, 2014, the CIA issued a response to MacLeod’s request that

focused on two different aspects of his FOIA inquiry. (See Shiner Decl. ¶ 7.) With

respect to MacLeod’s request for information in his own name, the CIA neither

confirmed nor denied the existence of any records in its files in MacLeod’s name, on


                                            6
the grounds that “[t]he fact of the existence or nonexistence of requested records is

currently and properly classified and is intelligence sources and methods information

that is protected from disclosure” (Letter from Michele Meeks, Information and Privacy

Coordinator, to William Dale MacLeod (Sept. 12, 2014) (“CIA Response Letter”), Ex.

B to Shiner Decl., ECF No. 8-2 at 52)—which is colloquially known as a “Glomar

response.” 5 With respect to the remaining items that MacLeod sought in his FOIA

request, the CIA refused to process the request on the grounds that the request did not

“reasonably describe” the specific records MacLeod sought, and would therefore

require the CIA “to perform an unreasonably burdensome search.” (Id. at 53.)

MacLeod did not pursue an administrative appeal of the CIA’s response to his FOIA

request through the CIA’s Agency Release Panel. (See Shiner Decl. ¶ 8.)

        B.      Procedural History

        On October 20, 2015, MacLeod initiated the instant pro se lawsuit. The two-

page document lists various items in ten separate paragraphs, making what appears to

be challenges to CBP’s denial of MacLeod’s NEXUS applications, the CIA’s refusal to



5
  Glomar responses are “named for the Hughes Glomar Explorer, a ship used in a classified Central
Intelligence Agency project ‘to raise a sunken Soviet submarine from the floor of the Pacific Ocean to
recover the missiles, codes, and communications equipment onboard for analysis by United States
military and intelligence experts.’” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1171 (D.C. Cir. 2011)
(quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981)). The FOIA permits an agency to issue
a Glomar response with respect to (1) certain law enforcement records, the disclosure of which could
reasonably be expected to interfere with enforcement proceedings; (2) informant records; and (3)
certain classified records. See 5 U.S.C. § 552(c); see also Subh v. CIA, 760 F. Supp. 2d 66, 72 (D.D.C.
2011) (finding that CIA’s Glomar response to plaintiff’s request for records regarding himself was
appropriate, because “any further response to Plaintiff’s FOIA request would result in disclosure of
whether it has an intelligence interest in [p]laintiff, which, in light of the CIA’s covert intelligence
responsibilities, would amount to the disclosure of an intelligence method”); People for the Am. Way
Found. v. Nat’l Sec. Agency/Cent. Sec. Serv., 462 F. Supp. 2d 21, 26 (D.D.C. 2006) (concluding that
NSA’s Glomar response to a first-person FOIA request was proper “because confirmation or denial of
the NSA’s surveillance of any particular target would allow our adversaries to accumulate information
and draw conclusions about NSA’s technical capabilities and methods” (internal quotation marks and
citation omitted)).



                                                   7
release information in response to his FOIA request, and DHS’s failure to respond to

his FOIA request. (See Compl., ECF No. 1, ¶¶ 1, 4, 7.) 6 MacLeod’s complaint also

names NSA and GSA as defendants, and asserts that MacLeod requested records from

NSA and the “United States Department of General Services[,]” but he did not receive

any response from the NSA, and the “United States Department of General Services”

claimed that it does not have the information that MacLeod requested. (Id. ¶¶ 5–6.) 7

       After receiving the bare list of grievances that comprises MacLeod’s complaint,

DHS’s Privacy Office determined that it was a mistake to have transferred MacLeod’s

letter requesting documents to its internal offices rather than the State Department.

(See Tyrrell Decl. ¶ 13.) Accordingly, DHS forwarded MacLeod’s request to the State

Department. (See Ex. C. to Tyrrell Decl., ECF No. 8-2 at 23.) The State Department

then informed DHS that it would only process MacLeod’s FOIA request if MacLeod

submitted the letter directly to the State Department, and DHS passed this information

along to MacLeod. (See Ex. D. to Tyrrell Decl., ECF No. 8-2 at 25.)

       On March 1, 2016, Defendants filed the pending motion to dismiss and for

summary judgment. In the motion, CBP argues that NEXUS decisions are committed

by law to CBP’s discretion, and thus are unreviewable under the APA, and that CBP’s

denials of MacLeod’s NEXUS applications were not arbitrary or capricious in light of



6
  The title of MacLeod’s complaint references only “the Constitution of the United States of America,
the Immigration Act of 1990, and the Freedom of Information Act[,]” (Compl.), but defendant CBP has
interpreted MacLeod’s pleading as also bringing a claim against the agency under the Administrative
Procedure Act, 5 U.S.C. §§ 701–706 (see Defs.’ Mem. at 42). A liberal reading of MacLeod’s
disjointed assertions regarding the denial of his application for a NEXUS card supports this
interpretation.
7
  The “United States Department of General Services” is an entity that does not exist. The Court
assumes, along with Defendants, that MacLeod has intended to name the U.S. General Services
Administration as a defendant in this action.



                                                  8
MacLeod’s disclosed criminal history. (Defs.’ Mem. at 42–49.) With respect to

MacLeod’s FOIA claims, GSA and NSA argue that the claims against them should be

dismissed because neither agency has any record of MacLeod submitting a FOIA

request to it (see id. at 17–19), and DHS contends that, while it did receive a letter from

MacLeod and undertook to process his records request, that agency does not maintain

the records that MacLeod seeks (see id. at 19–23). The CIA—which, as explained

above, received a FOIA request from McLeod and issued a Glomar response with

respect to one part and declined to process the remainder—asserts that it is entitled to

summary judgment because MacLeod failed to exhaust FOIA’s administrative remedies,

insofar as he did not appeal the agency’s response to the first item he requested (records

regarding himself), and with respect to the other records sought, MacLeod did not

submit a request that “compl[ied] with the administrative requirements set forth in the

agency’s FOIA regulations.” (Id. at 23–31.)

       On March 11, 2016, this Court issued an Order advising MacLeod of his

obligations under the Federal Rules of Civil Procedure and the local rules of this Court

to respond to Defendants’ motion, and specifically warning MacLeod that, if he did not

respond to the motion by April 15, 2016, the Court would treat the motion as conceded.

(See Order, ECF No. 10.) When MacLeod did not file a timely response, this Court

issued an order requiring MacLeod to show cause why the case should not be dismissed

for failure to prosecute. (See Order, ECF No. 12.) MacLeod thereafter submitted a

package of materials that this Court characterized as his “opposition” to Defendants’

motion. (See ECF No. 13 (“Pl.’s Opp’n”).)




                                             9
       Notably, and significantly for present purposes, the materials MacLeod has

submitted do not respond directly to any of Defendants’ statements of fact or legal

arguments. Instead, MacLeod makes several disjointed requests and contentions: for

instance, he asks that his “Criminal Record [be removed] from United States Databases”

(id. at 8, ¶ 2); he asserts that the materials that he requested from the CIA are “critical

to the necessary evidence required for revision of the Child Protection System” (id. at

9, ¶ 12); and he references Canadian law as a basis for releasing records to him (id. at 8,

¶ 9). MacLeod also appends to his two-page statement a variety of documents that do

not clearly pertain in any way to the merits of this action or Defendants’ arguments,

including materials that appear to be related to cases he has filed in Canadian courts (id.

at 24–35), printouts of Canadian statutes and court rules (id. at 37–49, 73–110), records

related to his prior criminal conviction (id. at 112–130), and college enrollment and

financial aid documents (id. at 136–137, 146–160). (See also Pl.’s Notice, ECF No. 18,

at 3–5 (seeking to compare the instant lawsuit with George Zimmerman’s shooting of

Trayvon Martin).)

       Defendants’ motion to dismiss MacLeod’s complaint and for summary judgment

became ripe on June 22, 2016. (See Reply in Further Support of Defs.’ Mot., ECF No.

15.) In their reply to MacLeod’s materials, Defendants reiterate their core contentions,

and they also observe that while MacLeod’s “‘opposition’ spills considerable ink on his

additional reasons for wanting certain documents” and other “irrelevant and/or

incoherent matters[,]” his filing “offers little, if any, argument in opposition to the

points made” by Defendants. (Id. at 1.)




                                             10
II.    LEGAL STANDARDS

       A.     Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(6)

       CBP moves for dismissal of MacLeod’s NEXUS-related APA claim under

Federal Rule of Civil Procedure 12(b)(6), which authorizes a defendant to move to

dismiss a complaint on the grounds that the pleading “fail[s] to state a claim upon

which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion to

dismiss tests the legal sufficiency of a complaint by raising the question of whether or

not the complaint contains “sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Harris v. D.C. Water & Sewer Auth., 791 F.3d

65, 68 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)).

       “Under Local Civil Rule 7(b), if any party fails to file a response to a motion

within the prescribed time, ‘the Court may treat the motion as conceded.’” Washington

v. United States, No. 17-cv-0111, 2017 WL 1232400, at *1 (D.D.C. Apr. 3, 2017)

(quoting LCvR 7(b).) The D.C. Circuit has found that it is not an abuse of discretion

for a district court to grant as conceded an unopposed motion to dismiss a complaint so

long as the dismissal is without prejudice. See Jordan v. Ormond, No. 15-7151, 2016

WL 4098823, at *1 (D.C. Cir. July 22, 2016); see also Cohen v. Bd. of Trustees of the

Univ. of D.C., 819 F.3d 476, 480 (D.C. Cir. 2016) (affirming grant of motion to dismiss

where plaintiff failed to file a timely response, but holding that the district court erred

in dismissing complaint with prejudice). Before granting any motion to dismiss a pro se


                                             11
complaint, the district court must explain to the plaintiff the consequences of failing to

respond to the motion. See Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (per

curiam) (requiring a district court to inform a pro se party that “failure to respond . . .

may result in the district court granting the motion and dismissing the case”).

       B.     Summary Judgment In FOIA Cases

       Many of the agency defendants in the instant case seek summary judgment with

respect to MacLeod’s contention that they have violated the FOIA for various reasons,

as noted above. “FOIA cases typically and appropriately are decided on motions for

summary judgment.” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131, 136

(D.D.C. 2014) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d

83, 87 (D.D.C. 2009)). Under Rule 56 of the Federal Rules of Civil Procedure, a court

must grant summary judgment if the pleadings, disclosure materials on file, and

affidavits “show[ ] 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); see Judicial

Watch, 25 F. Supp. 3d at 136 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986)).

       In the FOIA context, a district court reviewing a motion for summary judgment

conducts a de novo review of the record, and the responding federal agency bears the

burden of proving that it has complied with its obligations under the FOIA. See 5

U.S.C. § 552(a)(4)(B); see also In Def. of Animals v. Nat’l Insts. of Health, 543 F.

Supp. 2d 83, 92–93 (D.D.C. 2008). The court must analyze all underlying facts and

inferences in the light most favorable to the FOIA requester, see Willis v. U.S. Dep’t of

Justice, 581 F. Supp. 2d 57, 65 (D.D.C. 2008); therefore summary judgment for an

agency is appropriate only after the agency proves that it has “fully discharged its


                                             12
[FOIA] obligations[,]” Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996). With

respect to evaluating an agency’s fulfillment of its FOIA obligations, the overarching

question is whether the defendant agency is improperly withholding requested records

over which the agency has possession or control. See U.S. Dep’t of Justice v. Tax

Analysts, 492 U.S. 136, 142 (1989).

       Under the FOIA, the specified scope of an agency’s statutory duties to produce

records is important: as relevant here, the statute requires agencies to “make [] records

promptly available to any person” who submits “any 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). If an agency’s affidavits—which are entitled to a presumption of good

faith, Conservation Force v. Jewell, 66 F. Supp. 3d 46, 55 (D.D.C. 2014), aff’d, No. 15-

5131, 2015 WL 9309920 (D.C. Cir. Dec. 4, 2015)—demonstrate that the prerequisites

for triggering the agency’s duties to search and produce responsive records have not

been satisfied, the agency is entitled to summary judgment. See Dale v. IRS., 238 F.

Supp. 2d 99, 103 (D.D.C. 2002) (“An agency’s obligations commence upon receipt of a

valid request; failure to file a perfected request therefore constitutes failure to exhaust

administrative remedies.” (emphasis added)); see also, e.g., Schoenman v. FBI, No. 04-

cv-2202, 2006 WL 1126813, at *13 (D.D.C. Mar. 31, 2006) (dismissing FOIA claim

where plaintiff submitted no proof that agency received request, and where agency

submitted affidavit stating it had not received request).

       Furthermore, and notably, insofar as the FOIA statute indicates that a request

need only be honored pursuant to an agency’s published rules for the submission and




                                             13
processing of FOIA requests, it is well established that a requester’s “failure to comply

with [such] FOIA regulations is the equivalent of a failure to exhaust[.]” West v.

Jackson, 448 F. Supp. 2d 207, 211 (D.D.C. 2006) (citations omitted); see also Church

of Scientology v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986). And in this jurisdiction,

“[e]xhaustion of administrative remedies is generally required before seeking judicial

review” under the FOIA. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per

curiam); see also id. (explaining that the exhaustion requirement permits the agency to

have “an opportunity to exercise its discretion and expertise on the matter and to make

a factual record to support its decision” (quoting Oglesby v. U.S. Dep’t of the Army, 920

F.2d 57, 61 (D.C. Cir. 1990)); Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003)

(observing that, if a requester has not exhausted his administrative remedies prior to the

filing of a FOIA action in district court, his claim is subject to dismissal). 8

        Finally, it is important to note for present purposes that, in this jurisdiction, there

appears to be a distinction between the treatment of unopposed motions to dismiss, on

the one hand, and the handling of unopposed motions for summary judgment, on the

other. If a plaintiff has the requisite notice, an unopposed motion to dismiss may be

deemed conceded, and the complaint dismissed on that basis alone. See LCvR 7(b);

Cohen, 819 F.3d at 480 (affirming that LCvR 7(b) vests district courts with discretion


8
   It appears that failure to exhaust administrative remedies may be grounds for either dismissal of the
complaint or summary judgment in FOIA cases. If a plaintiff’s complaint contains all of the
information that is necessary to determine if exhaustion occurred, “[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), and thus dismissal of the
action is appropriate. Saldana v. Fed. Bureau of Prisons, 715 F. Supp. 2d 10, 18 (D.D.C. 2010) (citing
Hidalgo, 344 F.3d at 1260). But when the court is called upon to address the exhaustion issue by
considering matters outside of the pleadings—e.g., by reviewing the content of agency declarations—it
must treat a defendant’s motion as one for summary judgment. See id. at 18–19; see also Fed. R. Civ.
P. 12(d), 56.



                                                   14
to grant unopposed motions to dismiss as conceded); Voacolo v. Fed. Nat’l Mortgage

Ass’n, 224 F. Supp. 3d 39, 43 (D.D.C. 2016) (granting unopposed motion to dismiss as

conceded). But with respect to an unopposed motion for summary judgment, the D.C.

Circuit has specifically held that a district court cannot grant summary judgment as

conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016).

Rather, because “[t]he burden is always on the movant to demonstrate why summary

judgment is warranted[,]” and “[t]he nonmoving party’s failure to oppose summary

judgment does not shift that burden[,]” the district court “must always determine for

itself whether the record and any undisputed material facts justify granting summary

judgment.” Id. (internal quotation marks and citation omitted).

       C.     Application Of The Governing Legal Standards To Pro Se Parties

       Finally, this Court must be mindful of the fact that MacLeod is proceeding in this

matter pro se when it evaluates the pending motion to dismiss/motion for summary

judgment. It is well established that the pleadings of pro se parties are to be “liberally

construed” and that a pro se complaint, “however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations omitted);

see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). However, it is

also quite clear “[t]his benefit is not . . . a license to ignore the Federal Rules of Civil

Procedure.” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009);

see also McNeil v. United States, 508 U.S. 106, 113 (1993).

       Thus, even though a pro se complaint “must be construed liberally, the complaint

must still present a claim on which the Court can grant relief.” Budik v. Dartmouth-

Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (internal quotation marks and


                                              15
citation omitted); see also Moore v. Motz, 437 F. Supp. 2d 88, 90 (D.D.C. 2006) (noting

that “[e]ven a pro se plaintiff’s inferences . . . need not be accepted” if they “are

unsupported by the facts set out in the complaint” (internal quotation marks and citation

omitted)); Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981) (noting that a pro

se complaint must state a claim upon which relief can be granted). Likewise, when

faced with a motion for summary judgment, a pro se plaintiff, just like a represented

party, must comply with a court’s rules regarding responses to statements of material

fact and the need to identify record evidence that establishes each element of his claim

for relief. See Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015)

(“Because Grimes is the plaintiff and so bears the burden of proof of her claims, it is

well established that she cannot rely on the allegations of her own complaint in

response to a summary judgment motion, but must substantiate them with evidence.”).


III.   ANALYSIS

       As explained above, MacLeod’s submission in opposition to the pending motion

to dismiss/motion for summary judgment offers no substantive response whatsoever to

any of the points or arguments that Defendants make. (See Sec. I.B, supra.) Because

MacLeod’s filing neither addresses the legal issues that his claims present nor responds

in any way to the declarations that the defendant agencies have submitted, this Court

will address the pending motion as follows. First, as explained below, the Court finds

that MacLeod has conceded to the dismissal of the APA claim against CBP arising from

that agency’s denial of MacLeod’s NEXUS applications, and as a result, Defendants’

motion to dismiss will be GRANTED as conceded, and that claim will be dismissed

without prejudice.



                                             16
       The Court has also accepted as true the unrebutted facts contained in the other

agency defendants’ declarations regarding both their receipt (or non-receipt) of

MacLeod’s FOIA requests and their responses to those requests, see Jackson v.

Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996)

(where a responding party does not file a statement of material facts in dispute, “the

district court is to deem as admitted the moving party’s facts”), and consistent with

D.C. Circuit precedent, this Court has proceeded to review the agencies’ facts and

evidence to determine whether summary judgment in favor of the agency defendants is

warranted despite the lack of a coherent opposition from the plaintiff. For the reasons

explained fully below, this Court concludes that the agencies’ evidence demonstrates

either (1) that the agency in question is not improperly withholding requested records

that it has in its possession, or (2) that MacLeod has failed to exhaust his administrative

remedies with respect to the agency’s response to his FOIA request. Therefore,

Defendants’ motion for summary judgment in favor of CIA, NSA, GSA, and DHS with

respect to the complaint’s FOIA claims will be GRANTED as well.

       A.     Plaintiff Has Conceded Defendants’ Motion To Dismiss The APA
              Claim

       In response to the complaint’s purported claim that CBP improperly denied

MacLeod’s applications for the NEXUS Trusted Traveler program, CBP has made two

arguments: first, that MacLeod failed to state a claim against CBP under the APA

because decisions regarding NEXUS applications are committed by law to CBP’s

discretion (see Defs.’ Mem. at 42–47), and second, that even if this decision is

reviewable, CBP did not act arbitrarily or capriciously in denying MacLeod’s

application in light of his admitted criminal history and the agency’s published criteria



                                            17
that establish that individuals with criminal convictions are not eligible for the NEXUS

program (id. at 47–49). MacLeod’s submission in response to these arguments is a

rambling and incoherent listing of contentions that appear to relate generally to the

circumstances underlying his criminal conviction and the general criteria for admission

into the United States. (See Pl.’s Opp’n at 5–9.)

       For example, MacLeod makes a series of contentions about his own mental

health (see id. at 5 (“Mental Health is stable, and since suicide is towards oneself, it

does not harm the security of the United States of America[.]”)), and also maintains his

“right to freedom of movement, and entry” pursuant to “Canadian and US Charters

(Constitutions)” (id. at 6). One gleans from MacLeod’s contentions that he perceives

himself to be an “‘immigrant with permission to’ return” under “the British Nationality

Act and the Immigration and Refugee Protection Act” (id. at 8), and that he believes

that his criminal record should have been “purged” when he turned 18 (id. at 6). But

these assertions are completely untethered from any legal argument regarding the

propriety of CBP’s denial of his NEXUS applications. Rather, MacLeod maintains

generally that “other incidences with the Customs and Border Protection in relation

with the vulnerable or one-time offenders being denied access [are] common,” and that

“the reason” for CBP’s response to his application is “‘paranoia’” (id. at 9; see also id.

(arguing that “[t]he United States of America has incorporated laws that have bec[o]me

restrictive due to 9/11 and that these laws placed restrict[ions on] travel. Surely,

restriction are necessary, but they should not be causing international constitutional

conflicts, causing a person whom is only harmful to their selves [sic] and not others

entry, or causing ‘border distress’”); id. at 1 (“The plaintiff furthermore claims that the




                                             18
United States Foreign Policy is now also Canada’s Foreign Policy due to agreements in

the [NEXUS program]. As a result of the co-operations within governments including

handover of prisoners, joint nation prosecutions, etc., the United States Government

should not be permitted to restrict or deny access to information requested.”).)

         MacLeod also proffers what appear to be various explanations for requesting a

NEXUS card and the records that he seeks from the defendant agencies. (See, e.g., Pl.’s

Notice at 3 (“The plaintiff requires those records to re-open Project Spade.”); id. at 5

(noting that he wants certain documents because he “holds interest as a criminological

topic [in the Cold War and the annexation of the Crimean Peninsula, Ukraine] and may

be able to assist in the repatriation of the Crimean Peninsula with Ukraine and advise

authorities further in international efforts”).) What MacLeod does not do is

acknowledge that Defendants have filed a motion to dismiss his complaint, much less

attempt to respond to any of the CBP’s arguments for dismissal in any meaningful

sense.

         When evaluating a defendant’s dispositive motion, “[t]he court’s role is not to

act as an advocate for the plaintiff and construct legal arguments on his behalf in order

to counter those in the motion to dismiss.” Stephenson v. Cox, 223 F. Supp. 2d 119,

122 (D.D.C. 2002). Indeed, as noted, under its Local Rules, this Court has the

discretion to treat a motion that is unopposed as conceded, see LCvR 7(b), and courts in

this district regularly exercise this discretion both in circumstances where no response

is filed, see, e.g., Washington, 2017 WL 1232400, at * 1 (granting as conceded motion

to dismiss where plaintiff failed to respond and thereby conceded motion), and in

situations in which the plaintiff’s response does not specifically address the individual




                                             19
arguments that the defendant makes, see, e.g., Potter v. Toei Animation Inc., 839 F.

Supp. 2d 49, 53 (D.D.C.) (“In the District of Columbia Circuit, it is established that an

argument in a dispositive motion that the opponent fails to address in an opposition may

be deemed conceded.”), aff’d, No. 12-5084, 2012 WL 3055990 (D.C. Cir. July 18,

2012). It is also clear that application of Local Civil Rule 7(b) to deem a motion

conceded may be warranted if the plaintiff’s response is incoherently “filled with

irrelevant legal principles and citations” and “does not address the substance of

defendants’ arguments as to why plaintiff’s claims [] should be dismissed[.]”

Cummings ex rel. J.C. v. Woodson Senior High Sch., 563 F. Supp. 2d 256, 259 (D.D.C.

2008); see also Howard v. Locke, 729 F. Supp. 2d 85, 87–88 (D.D.C. 2010) (finding

that a plaintiff’s opposition to a defendant’s motion cannot properly be deemed “a

response to defendant’s motion” where plaintiff “fails to contest or otherwise address

the legal authority cited by defendant” (emphasis in original)).

      So it is here. Although MacLeod’s opposition to the motion touches upon the

subject matter of the claims he has brought in this lawsuit, MacLeod has offered no

substantive response to any of CBP’s legal arguments regarding why the claims against

that agency must be dismissed. As a result, this Court will treat CBP arguments for

dismissal of the complaint’s claims regarding that agency’s denial of MacLeod’s

NEXUS applications as conceded under Local Civil Rule 7(b). See Howard, 729 F.

Supp. 2d at 87–88. Furthermore, in accordance with D.C. Circuit case law, the Court




                                            20
will note specifically that the dismissal of this aspect of MacLeod’s complaint is

without prejudice. Cf. Cohen, 819 F.3d at 484. 9

       B.      The Various Agency Defendants Are Entitled To Summary Judgment
               With Respect To MacLeod’s FOIA Claims

       MacLeod’s FOIA claims against CIA, NSA, GSA, and DHS fare no better.

Under the circumstances presented here, the Court’s analysis of Defendants’ summary

judgment motion must begin with acceptance of the facts as Defendants state them. See

Fed. R. Civ. P. 56(e)(2) (authorizing court, when non-moving party “fails to properly

address another party’s assertion of fact as required by Rule 56(c),” to “consider the

fact undisputed for purposes of the motion”); Grimes, 794 F.3d at 94 (noting that a

plaintiff has the “burden to identify evidence that a reasonable jury could credit in

support of each essential element of [his] claims” and “cannot rely on the allegations of

[his] own complaint in response to a summary judgment motion, but must substantiate

them with evidence”); LCvR 7(h)(1) (“In determining a motion for summary judgment,

the court may assume that facts identified by the moving party in its statement of

material facts are admitted, unless such a fact is controverted in the statement of

genuine issues filed in opposition to the motion.”). And with the Defendants’ version

of the facts (see Defs.’ Statement of Material Facts to Which There is No Genuine

Dispute, ECF No. 8-1) established, it is clear to this Court for the reasons that follow


9
  To be clear, this Court is dismissing MacLeod’s NEXUS-related claim without reaching the merits of
CBP’s legal arguments. For what it’s worth, however, it appears that even a coherent opposition to
CBP’s dismissal arguments would be difficult to sustain. Assuming arguendo and in light of the D.C.
Circuit’s opinion in Watervale Marine Co. v. U.S. Department of Homeland Security, 807 F.3d 325, 330
(D.C. Cir. 2015), that MacLeod could overcome the agency’s ‘committed to agency discretion by law’
analysis, CBP has made a persuasive argument that its denial of MacLeod’s application was neither
arbitrary nor capricious given the agency’s established policies and his criminal history. (See Global
Enrollment Sys. Application, Ex. 5 to Defs.’ Mem., ECF No. 8-2 at 57.) Therefore, CBP’s merits
contention that MacLeod has failed to make a plausible APA claim is a strong one.



                                                 21
that each of the agency defendants has met its burden of demonstrating that summary

judgment should be granted in its favor with respect to MacLeod’s FOIA claims.

              1.     Neither NSA Nor GSA Received A FOIA Request From
                     MacLeod

       MacLeod asserts in his complaint that he “requested personal information” from

NSA but did not receive any response, and that he likewise “requested information from

[GSA] and received a response claiming they do not have the information requested.”

(Compl. ¶¶ 5–6.) In response to these allegations, both NSA and GSA have submitted

separate declarations in which each affiant explains that the agency never received any

FOIA request from MacLeod.

       Specifically, NSA has submitted a declaration from John R. Chapman, who states

that NSA’s FOIA/Privacy Act Office is the only office “charged with receiving and

processing requests for documents or information from the public[,]” and that two

separate searches of the records system “in which all valid FOIA . . . requests . . . are

logged” did not reveal any FOIA request that MacLeod had submitted to the NSA. (See

Decl. of John R. Chapman, Ex. 2 to Defs.’ Mot., ECF No. 8-2 at 6–8, ¶¶ 4–5; see also

id. ¶ 4 (“If a valid FOIA request has been filed with NSA, a record of that request

would be maintained in the document management system and would be searchable by

name of requester, date of request, topic of request, or other identifiers.”).) Similarly,

GSA’s declarant, Travis S. Lewis, says that he twice searched GSA’s “FOIAonline”

system, which is a database that houses all FOIA requests submitted to GSA, and did

not find any request from MacLeod. (See Decl. of Travis S. Lewis, Ex. 1 to Defs.’

Mot., ECF No. 8-2 at 2-4, ¶¶ 2, 4; see also id. ¶ 2 (“[I]f a FOIA request has been filed

with the GSA, a record of that filing would be maintained in the database . . . known as



                                            22
the FOIAonline[, which] is searchable by name of requester, date of request, phone

number, email, requester’s organization and topic of request.”).) MacLeod has not

provided any evidence that even pertains to these agency’s representations, much less

rebuts them.

      Thus, this Court deems the unrebutted representations that neither NSA nor GSA

ever received any FOIA request from MacLeod to be true for the purpose of the instant

motion, and it reiterates that a necessary prerequisite to any FOIA claim is the

submission of a request to the agency that complies with the relevant procedural

requirements. See 5 U.S.C. § 552(a)(3)(A). “If no FOIA request is received, an agency

has no reason to search or produce records and similarly has no basis to respond.”

Carbe v. Bureau of Alcohol, Tobacco & Firearms, No. 03-cv-1658, 2004 WL 2051359,

at *8 (D.D.C. Aug. 12, 2004). The conceded facts in the declarations that NSA and

GSA have submitted establish that neither agency received a FOIA request from

MacLeod; consequently, the Court finds that NSA and GSA are not improperly

withholding records from MacLeod under the FOIA, and are therefore entitled to

summary judgment. See Thomas v. FCC, 534 F. Supp. 2d 144, 146 (D.D.C. 2008)

(granting summary judgment in the agency’s favor “[i]n the absence of any evidence

that plaintiff submitted a proper FOIA request to which defendant would have been

obligated to respond”).

               2.   DHS Does Not Maintain The Records That MacLeod
                    Requested

      As explained above, a plaintiff can prevail in a FOIA case only if he has

demonstrated “that an agency has (1) improperly (2) withheld (3) agency records.”

Judicial Watch, Inc. v. Dep’t of State, 177 F. Supp. 3d 450, 454 (D.D.C. 2016); see also



                                           23
Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 152 (1980) (noting

that the FOIA “does not obligate agencies to create or retain documents; it only

obligates them to provide access to those which it in fact has created and retained”).

Here, while DHS acknowledges that MacLeod sent the agency a letter in which he

claimed to be “within the Canadian Government as an MP of Parliament” and sought

information about obtaining “a Diplomatic Status card,” the declarant whose testimony

DHS has provided explains that no DHS component maintains information pertaining to

visas for diplomats or government officials from foreign countries or any other records

potentially responsive to MacLeod’s FOIA request. (See Tyrrell Decl. ¶¶ 8, 10, 13.)

       It is clear beyond cavil that an agency cannot improperly withhold records that it

does not maintain, and that “[w]here the Government’s declarations establish that a

search would be futile, the reasonable search required by FOIA may be no search at

all.” Reyes v. U.S. Envtl. Prot. Agency, 991 F. Supp. 2d 20, 27 (D.D.C. 2014)

(alterations, internal quotation marks, and citation omitted); see also Earle v. U.S.

Dep’t of Justice, 217 F. Supp. 3d 117, 123–24 (D.D.C. 2016) (granting summary

judgment to agency on FOIA claim where the declarant explained that the agency did

not maintain records sought, such that a search for those records would be futile); Am.-

Arab Anti-Discrimination Comm. v. U.S. Dep’t of Homeland Sec., 516 F. Supp. 2d 83,

88 (D.D.C. 2007) (same). Having made the unrebutted representation that it does not

maintain the records that MacLeod requested, DHS is likewise entitled to summary

judgment on MacLeod’s FOIA claim.




                                            24
              3.     MacLeod Did Not Exhaust His Administrative Remedies With
                     Respect To The CIA’s Response To His FOIA Request

       Unlike the other defendant agencies, the CIA made a substantive response to

MacLeod’s FOIA request by sending him a letter that addressed two different aspects of

his request. (See Sec. I.A.2.b, supra.) As explained, with respect to MacLeod’s request

for records regarding himself, the CIA issued a Glomar response, refusing to admit or

deny that it maintained any responsive records (see CIA Response Letter at 52; see also

Shiner Decl. ¶¶ 7, 16), and in regard to the remaining broad categories of requested

records dating back to 1973 or earlier, the CIA notified MacLeod that it had declined to

process the requests on the grounds that they were not reasonably specific and thus

would require the agency to conduct an unreasonably burdensome search. (CIA

Response Letter at 53; see also Shiner Decl. ¶ 7 n.4.) Significantly for present

purposes, in its response letter to MacLeod, the CIA specifically informed MacLeod of

his right “to appeal [the Glomar] response to the Agency Release Panel[.]” (CIA

Response Letter at 53.) See also 32 C.F.R. § 1900.42(a) (establishing that a FOIA

requester has the right to appeal administratively “whenever access to any requested

record or any portion thereof is denied” by the CIA). However, according to the

agency’s declarant, MacLeod did not avail himself of this appeal opportunity. (See

Shiner Decl. ¶ 8.)

       Defendants argue that MacLeod’s failure to seek an administrative appeal of the

CIA’s Glomar response forecloses his ability to challenge the decision in this Court,

and this Court agrees. It is the law in this circuit that “[e]xhaustion of administrative

remedies is generally required before filing suit in federal court so that the agency has

an opportunity to exercise its discretion and expertise on the matter and to make a



                                            25
factual record to support its decision.” Hidalgo, 344 F.3d at 1258 (internal quotation

marks and citation omitted). Although exhaustion is not jurisdictional in the FOIA

context, see id., the D.C. Circuit has long held that exhaustion of an agency’s FOIA

appeal procedures is a condition precedent to initiating FOIA litigation as a

jurisprudential matter. See Oglesby, 920 F.2d at 61–62 (“Courts have consistently

confirmed that the FOIA requires exhaustion of this appeal process before an individual

may seek relief in the courts.”); Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476

(D.C. Cir. 1986) (“It goes without saying that exhaustion of remedies is required in

FOIA cases.”). In light of this clear command from the D.C. Circuit, courts in this

district regularly find that a FOIA lawsuit cannot proceed if the agency has made a

determination regarding the plaintiff’s FOIA request but the plaintiff failed to appeal

the agency’s response through proper administrative channels. See, e.g., Freedom

Watch, Inc. v. NSA, 134 F. Supp. 3d 437, 439 (D.D.C. 2015) (dismissing FOIA claim

where plaintiff admitted it had not appealed agency’s response to its FOIA request and

thereby had not exhausted its administrative remedies); Freedom Watch, Inc. v. CIA,

895 F. Supp. 2d 221, 227–28 (D.D.C. 2012) (same); Citizens For Responsibility &

Ethics in Wash. v. Dep’t of the Interior, 503 F. Supp. 2d 88, 101 (D.D.C. 2007)

(granting agency’s motion for judgment on the pleadings where the plaintiff had filed

late appeals, or no appeals at all, with respect to various FOIA requests).

       The circumstances here demand the same result. That is, in contrast to a case in

which constructive exhaustion is inferred from the agency’s failure to respond timely to

a plaintiff’s FOIA request, see 5 U.S.C. 552(a)(6)(C)(i), the CIA issued a Glomar

response to MacLeod’s request for information about himself, and informed MacLeod




                                            26
of his right to appeal that response (see CIA Response Letter at 52–53). Yet, rather

than exercising his right to appeal, MacLeod filed the instant lawsuit. In accordance

with established precedent, MacLeod’s failure to avail himself of an administrative

appeal clearly forecloses his ability to challenge the CIA’s Glomar response in this

lawsuit. See, e.g., Freedom Watch, Inc. v. NSA, 134 F. Supp. 3d at 439; Freedom

Watch, Inc. v. CIA, 895 F. Supp. 2d at 227–28; Citizens For Responsibility & Ethics in

Wash., 503 F. Supp. 2d at 101.

       The CIA’s argument regarding MacLeod’s unfulfilled request for a wide swath of

CIA documents concerning such matters as “the Cold War,” and “CIA and NSA

involvement with Russia” requires a different analysis, because the agency maintains

that MacLeod’s FOIA claim is irretrievably unexhausted based on the lack of

specificity in MacLeod’s document request. (See Defs.’ Mem. at 26–31.) The agency

is right to assert that a plaintiff who has not presented a reasonably specific request for

documents, in violation of that agency’s own FOIA regulations, can also be conceived

of as having failed to exhaust available administrative remedies prior to bringing suit.

See Latham v. U.S. Dep’t of Justice, 658 F. Supp. 2d 155, 161–62 (D.D.C. 2009)

(awarding summary judgment to agency based on plaintiff’s failure to exhaust

administrative remedies where his “FOIA request does not reasonably describe the

records sought and, therefore, is not a proper FOIA request”); Keys v. Dep’t of

Homeland Sec., No. 08-cv-0726, 2009 WL 614755, at *4 (D.D.C. Mar. 10, 2009) (“A

FOIA requester may be deemed to have failed to exhaust administrative remedies when

the requester has . . . failed to reasonably describe the records being sought[.]”) (citing




                                             27
Gillin v. IRS, 980 F.2d 819, 822–23 (1st Cir. 1992)). And that appears to be exactly

what has happened here.

       Specifically, the CIA’s regulations require requesters to “reasonably describe the

records of interest[,]” 32 C.F.R. § 1900.12(a), and a reasonable description of a record

is one that is contains “a description of a document (record) by unique identification

number or descriptive terms which permit an Agency employee to locate documents

with reasonable effort given existing indices and finding aids[,]” id. § 1900.02(m); see

also Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982) (when

evaluating the reasonableness of a FOIA request, “[t]he linchpin inquiry is whether the

agency is able to determine precisely what records are being requested” (internal

quotation marks and citation omitted)). It is clear on the face of MacLeod’s letter that

the categories of records he seeks are not at all specific, and the records sought are far

from reasonably described. (See, e.g., CIA FOIA Request (requesting, among other

things, any information relating to “the Cold War,” “Vladimir Putin dating back to the

KGB,” and “[a]ny or all flight records from 1973 to current from CYYG, LGA, JFK,

and LAX whereas Lufthansa Flights were involved in international abduction”).)

Courts in this district readily find similar requests for “any” and “all” records that relate

to some general topic to be overly-broad and invalid. See, e.g., Sack v. CIA, 53 F.

Supp. 3d 154, 164 (D.D.C. 2014) (FOIA request for “all records that pertain[ ] in whole

or in part” to a list of closed investigations and reports was insufficiently descriptive

and did not require a response); Freedom Watch, Inc. v. Dep’t of State, 925 F. Supp. 2d

55, 57 (D.D.C. 2013) (FOIA request seeking, inter alia, “[a]ny and all enumerated

documents and things which discuss Iran in the context of American politics and/or




                                             28
elections from 1992 to the present” failed to reasonably describe the records sought and

was void ab initio); Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 26

(D.D.C. 2000) (request for “all records pertaining to contacts between [two individuals]

and companies, entities, and/or persons related or doing or conducting business in any

way with the People’s Republic of China” did not reasonably describe records sought

(internal quotation marks omitted)).

      Therefore, this Court agrees with the CIA that MacLeod failed to exhaust

administrative remedies insofar as, with respect to the bulk of his records request, the

documents he purports to seek are not reasonably described, such that a response would

be overly burdensome to the agency. See Latham, 658 F. Supp. 2d at 161–62; Keys,

2009 WL 614755, at *4.


IV.   CONCLUSION

      Because MacLeod has conceded CBP’s motion to dismiss his APA claims, and

has failed to exhaust his administrative remedies with respect the FOIA claims he has

brought against CIA, NSA and GSA, and DHS, his claims cannot proceed.

Accordingly, as stated in the accompanying Order, Defendants’ combined motion to

dismiss and for summary judgment will be GRANTED.


DATE: September 21, 2017                 Ketanji Brown Jackson
                                         KETANJI BROWN JACKSON
                                         United States District Judge




                                            29
