                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA



RAUL RODRIGUEZ-CERVANTES,

       Plaintiff,
                 v.                                        Civil Action No. 11-1387 (JEB)
U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES, et al.,

       Defendants.


                                   MEMORANDUM OPINION

       Plaintiff Raul Rodriguez-Cervantes, a federal prisoner incarcerated in Post, Texas, brings

this pro se suit under the Freedom of Information Act, 5 U.S.C. § 552. In so doing, Plaintiff

seems to have put the cart before the horse. Plaintiff has brought a FOIA suit before first having

his FOIA request denied. Indeed, he has brought a FOIA suit before even submitting a FOIA

request. As such, the Court will grant Defendants’ Motion for Summary Judgment and dismiss

the case without prejudice.

I.     Background

       On December 15, 2010, Plaintiff sent a letter to Defendant Social Security

Administration (SSA) seeking assistance regarding applying for social security benefits. See

Mot., Exh. A (Declaration of Ron Cyryca), Attach. 1 (Plaintiff’s Letter). The letter stated in

relevant part:

                 I worked in the United States for about 15 years and always paid
                 my social security deductions. Now I am a federal prisoner and
                 upon the expiration of my sentence I will be removed to Mexico,
                 my native country. At this time, I would like to know if there is
                 any way/application to get my social security benefit before the
                 age established by the S.S. policies. My question is due to the fact

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               that I will be deported from this country and I do not know
               whether I should have a relative or friend in this country (which I
               do not have) to get those benefits or I should file some forms to get
               it in advance of the age required by the S.S. Administration.

Id.

       SSA responded with a standard form letter in which it informed Plaintiff that “[n]either

Social Security benefits not SSI payments are payable to prisoners just because they are being

released or because they have been in prison.” Id., Attach. 3 (SSA Letter). In addition to

providing Plaintiff with a phone number to call if he wished to file for social security benefits,

SSA enclosed in the letter two brochures entitled “Social Security: What Prisoners Need To

Know” and “Social Security: Entering The Community After Incarceration—How We Can

Help.” Id.

       On April 8, 2011, Plaintiff sent another letter to SSA stating:

               This is a request for Social Security Disability Benefits.

               In suport of my request, a deportation from the United States will
               be executed as soon as my current sentence be completed. The
               term of deportation is undefined. Although, my age is not the
               required in accordance with the proceedings, however, there is
               undisputable that a deportation will satisfy more than the necessary
               disability [sic].

               Accordingly, please provide me with the necessary information in
               order to proceed with my request.

Opp., Exh. A (Plaintiff’s Letter). According to Plaintiff, on April 20, 2011, the agency

responded with “an identical letter as the [prior one].” Opp. at 2.

       Finally, on May 12, 2011, Plaintiff sent yet another letter to SSA stating:

               I am an inmate incarcerated at the Giles W. Dalby Correctional
               Facility in Post, Texas. Since I can’t visit your office in Lubbock
               and I have no access to a computer, I am requesting that you please
               send me an application so that I may apply for my social security
               benefits.

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Opp., Exh. 2 (Plaintiff’s Letter). This time, SSA responded with “Social Security Earnings

Information,” and Plaintiff was informed that SSA was “returning [his] request for information

from [his] earnings record” because “[i]n light of the current budget situation, [SSA has]

suspended the Request[-]a[-]Social[-]Security[-]Statement service.” Opp., Exh. 1 (SSA Letter).

Plaintiff was, however, given the option to go online to estimate his retirement benefits using

SSA’s online Retirement Estimator. Id.

       No other record exists of Plaintiff’s seeking to obtain information from SSA. See Cyryca

Decl., ¶ 4; Mot., Exh. B (Declaration of Dawn S. Wiggins), ¶¶ 7, 9; id., Exh. C (Declaration of

Jim Morphew), ¶ 5. Plaintiff has nonetheless brought this FOIA suit seeking the “disclos[ure] . .

. [of] his entire record as maintained within the System of Records of the Social Security

Administration Office on December 15, 2010, together with any other records pertinent to the

said request.” Compl., ¶ 6. Before the Court now is Defendant’s Motion for Summary

Judgment.

II.    Legal Standard

       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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” Fed. R. Civ. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party” on an element of the claim. Liberty Lobby, Inc., 477 U.S. at

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248. 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).

       FOIA cases typically and appropriately are decided on motions for summary judgment.

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.

United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the

Court may grant summary judgment based solely on information provided in an agency’s

affidavits or declarations if they are relatively detailed and when they describe “the documents

and the justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed 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). Such affidavits or declarations are

accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims

about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. &

Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.

Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III.   Analysis

       The sole basis for Plaintiff’s FOIA claim seems to be that SSA did not produce “his

entire record as maintained within [SSA’s] System of Records” in response to his December 15

letter, which merely requested “to know if there is any way/application to get my social security

benefits before the age established by the S.S. policies.” See Compl., ¶¶ 3-6 & Attach. 1. The

natural question raised by this claim is whether the December 15 letter—or indeed any of

Plaintiff’s other letters to SSA—somehow amounts to a FOIA request. Although common sense



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offers an answer to this question, the Court will probe further.

       A valid FOIA request must (i) “reasonably” describe the records sought and (ii) must be

made “in accordance with [the requested agency’s] published rules stating the time, place, fees

(if any), and procedures to be followed.” 5 U.S.C.A. § 552(a)(3)(A). Pursuant to this provision,

SSA has enacted regulations that define a valid FOIA request as one that “ask[s] for records,

whether or not [the requester] refer[s] specifically to the FOIA.” 20 C.F.R. § 402.30 (emphasis

added). Importantly, “an agency’s obligations commence upon receipt of a valid request; failure

to file a perfected request therefore constitutes failure to exhaust administrative remedies.” Dale

v. I.R.S., 238 F. Supp. 2d 99, 103 (D.D.C. 2002) (citing Crooker v. CIA, 577 F. Supp. 1225,

1225 (D.D.C. 1984)). And, as is well settled, a FOIA suit cannot be sustained where the plaintiff

has failed to exhaust his administrative remedies. Judicial Watch, Inc. v. U.S. Naval

Observatory, 160 F. Supp. 2d 111, 112 (D.D.C. 2001) (citing Spannaus v. U.S. Dept. of Justice,

824 F.2d 52, 58 (D.C. Cir. 1987) (“It goes without saying that exhaustion of remedies is required

in FOIA cases.”)). Since SSA requires that all FOIA requests actually “ask for records,” any

purported request that does not do so is invalid. A requester that fails to ask for records,

therefore, fails to exhaust his administrative remedies.

       Even if given the liberal interpretation that Plaintiff urges, see Opp. at 4, his December 15

letter is by no means a FOIA request, and the circumstances plainly suggest he did not intend it

to be one. Plaintiff’s letter contains no explicit or even implicit request for the production of any

records. Indeed, in his own words, Plaintiff characterizes the letter as one “seeking assistance for

benefits under the grounds of his deportation.” Id. at 1. In addition, neither of Plaintiff’s two

other letters to SSA was a FOIA request or anything that could be liberally construed to amount

to a request for records. Plaintiff requests information about how to apply for social security



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benefits, asks whether or not he qualifies for those benefits given his circumstances, and seeks an

application for social security benefits. He does not, however, request the production of records.

As his letters merely pose questions to SSA or ask for assistance in applying for social security

benefits, they do not constitute valid FOIA requests. Whether or not Plaintiff was satisfied by

the responses to his questions or the level of assistance he was receiving, a FOIA suit is not the

proper means by which to obtain a different response.

       Finally, the fate of Plaintiff’s suit is sealed with his concession that “there may not have

record of a freedom information request, but, however there his request for benefits [sic].” Opp.

at 6. Plaintiff himself admits that he has no FOIA request before SSA. He has, therefore,

brought a FOIA suit without first filing a FOIA request and exhausting available remedies. It

cannot survive.

       The Court last notes that Plaintiff’s objective throughout may simply be to acquire an

application for social security benefits. To that end, Defendant has offered to arrange for

Plaintiff to request a copy of his earnings record and to provide him with an application for

benefits. See Reply at 3. The Court appreciates the assistance.

IV.    Conclusion

       As the Court finds that Plaintiff has failed to exhaust his administrative remedies, the

Court will grant Defendant’s Motion for Summary Judgment. A separate Order consistent with

this Opinion will issue dismissing the case without prejudice.



                                                      /s/ James E. Boasberg
                                                      JAMES E. BOASBERG
                                                      United States District Judge
Date: April 6, 2012




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