                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

JEREMY PINSON,                                    :
                                                  :
       Plaintiff,                                 :       Civil Action No.:      12-1872 (RC)
                                                  :
       v.                                         :       Re Document No.:       66
                                                  :
U.S. DEPARTMENT OF JUSTICE, et al.,               :
                                                  :
       Defendants.                                :

                                  MEMORANDUM OPINION

       GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION
                       FOR SUMMARY JUDGMENT

                                      I. INTRODUCTION

       Jeremy Pinson is an inmate at MCFP Springfield, an administrative security federal

medical center located in Missouri. While in prison, Mr. Pinson filed Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, requests with several components of the U.S. Department of

Justice (“DOJ”). In certain cases, the DOJ asked Mr. Pinson to clarify his records requests, told

him that it could not find records that are responsive to his requests, or informed him that the

records he sought were exempt from disclosure by law. Mr. Pinson disagreed with some of these

determinations, so he filed a complaint claiming that the DOJ improperly withheld numerous

records from him in violation of FOIA. In response, the DOJ filed nine pre-answer motions,

each asking the Court to dismiss or grant summary judgment in its favor on different portions of

Mr. Pinson’s complaint.

       This matter comes before the Court on the DOJ’s motion to dismiss or for summary

judgment on Mr. Pinson’s two FOIA claims against the United States Marshals Service

(“USMS”). See Def.’s Mot. Dismiss Summ. J., Mar. 26, 2014, ECF No. 66. The DOJ argues
that it is entitled to summary judgment on Mr. Pinson’s first claim because he failed to exhaust

his administrative remedies before bringing this lawsuit. See Def.’s Mem. Supp. Dismiss Summ.

J. 5-7, ECF No. 66-2. On the second claim, the DOJ argues it is entitled to summary judgment

because a third party’s signature on a requisite form is inauthentic, and that therefore responsive

records are exempt from disclosure under exemption 7(C) of the Privacy Act. See id. at 7-9.

       For the reasons explained below, the Court grants the DOJ’s motion for summary

judgment as to Mr. Pinson’s first claim, but denies the DOJ’s motion for summary judgment as to

the second.

                                II. FACTUAL BACKGROUND

                                A. Request No. 2012USMS21333

       On July 31, 2012, Mr. Pinson submitted FOIA Request No. 2012USMS21333 to the

USMS for all information it maintains on Jamil Abdullah Al-Amin. See Bordley Decl. ¶ 2, ECF

No. 66-3; Pinson Decl. ¶ 2, ECF No. 78. Mr. Pinson did not submit a DOJ Form 361, titled

“Certification of Identity,” signed by Mr. Al-Amin as part of this request. See Bordley Decl. ¶3;

Pinson Decl. ¶ 4. After receiving the request, the USMS advised Mr. Pinson that it would close

out the request until the USMS received Mr. Al-Amin’s signed form. See Bordley Decl. ¶¶ 2-3.

The USMS further advised Mr. Pinson that he could appeal this determination within 60 days.

Id.

       According to the USMS’s records, Mr. Pinson never appealed its determination. Id. Mr.

Pinson does not dispute this in either his response to the DOJ’s motion or in his supporting

declaration. See Pl.’s Resp. Def.’s Mot. Dismiss Summ. J. 1-2, ECF No. 78; Pinson Decl.




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                               B. Request No. 2012USMS21692 1

       By letter dated September 2, 2012, Mr. Pinson submitted FOIA Request No.

2012USMS21692 to the USMS for the “production of all information maintained . . . on Jamil

Abdullah Al-Amin.” See Bordley Decl. ¶ 5; Bordley Decl. Ex. B; Pinson Decl. ¶ 4. The USMS

received the request on September 12, 2012. See Bordley Decl. ¶ 5. This second request

included a DOJ Form 361 purportedly signed by Mr. Al-Amin (“Certification”). See Bordley

Decl. ¶ 6; Pinson Decl. ¶ 4. The USMS examined the Certification and became concerned that

Mr. Al-Amin’s signature was inauthentic and that any responsive production would violate the

Privacy Act. See Bordley Decl. ¶¶ 6-7; Bordley Decl. Ex. D.

       To ensure that Mr. Pinson’s request complied with the Privacy Act, on September 25,

2012, the USMS emailed Special Investigative Agent Diana Krist asking her to investigate and

advise on whether Mr. Al-Amin’s signature on the Certification was genuine. See Bordley Decl.

¶ 7; Bordley Decl. Ex. D. Agent Krist responded to the USMS by email on September 26, 2012,

stating that “based on our files, the signature of inmate Al-Amin is not authentic.” See Bordley

Decl. ¶ 7; Bordley Decl. Ex. D. Agent Krist did not explain how she reached this conclusion.

See Bordley Decl. Ex. D. By letter dated October 18, 2012, the USMS informed Mr. Pinson that

it was denying his request based on Agent Krist’s determination, and it advised Mr. Pinson of his

right to appeal. See Bordley Decl. ¶ 9; Bordley Decl. Ex. E; Pinson Decl. ¶ 5.




       1
                As the result of administrative error, the USMS’s correspondence with Mr. Pinson
regarding Request No. 2012USMS21692 erroneously referenced FOIA Request No.
2011USMS16705. See Def.’s Statement of Material Facts Not in Genuine Dispute as to the
United States Marshals Service Claims 2 n.1, ECF No. 66-1. In its briefing, DOJ combined the
two request numbers to refer to all correspondence relating to the second FOIA request. Here,
for brevity, the Court uses only the original request number.


                                                3
       Mr. Pinson appealed the USMS’s decision by letter dated October, 22, 2012. See Bordley

Decl. ¶ 10; Pinson Decl. ¶ 5. Shortly thereafter, 2 on November 15, 2012, Mr. Pinson commenced

this lawsuit claiming that the USMS improperly refused to produce information responsive to

both of his requests. See Compl. 5, ECF. No. 1.

                                    III. LEGAL STANDARD

               A. Analyzing the DOJ’s Motion Under Rule 12(b)(6) or Rule 56

       The DOJ moves for dismissal of Mr. Pinson’s causes of action under Rule 12(b)(6) or,

alternatively, for summary judgment under Rule 56. In general, exhaustion arguments in FOIA

cases are analyzed under Rule 12(b)(6). See, e.g., Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C.

Cir. 2003) (vacating the district court’s summary judgment order and remanding the case with

instructions to dismiss the complaint under Rule 12(b)(6) on exhaustion grounds); Jean-Pierre v.

Fed. Bureau of Prisons, 880 F. Supp. 2d 95, 100 n.4 (D.D.C. 2012) (“Although FOIA cases

‘typically and appropriately are decided on motions for summary judgment,’ where an agency

argues that the requester has failed to exhaust his administrative remedies, courts analyze the

matter under Rule 12(b)(6) for failure to state a claim.” (citations omitted)). If, however, the

defendant’s motion references matters outside the pleadings, a court must treat the motion as one

for summary judgment, not as one for dismissal based on failure to state a claim under Rule
2
        Mr. Pinson filed this suit 18 working-days after he dispatched his appeal regarding
Request No. 2012USMS21692. Under 5 U.S.C. § 552(6)(A)(2) (2009), the USMS had 20
working-days from the date it received Mr. Pinson’s appeal to make a determination.
Accordingly, it is likely that Mr. Pinson had not yet exhausted his administrative remedies with
respect to this request at the time he filed suit. While exhaustion of administrative remedies is a
mandatory prerequisite to a FOIA suit, failure to exhaust is not a jurisdictional bar. Wilbur v.
C.I.A., 355 F.3d 675, 676 (D.C. Cir. 2004). Failure to exhaust is treated as an affirmative defense
that a defendant waives when he does not raise it. See, e.g., Ramstack v. Dep't of Army, 607 F.
Supp. 2d 94, 104 (D.D.C. 2009) (“Because the failure to exhaust administrative remedies [under
FOIA] is considered an affirmative defense, the defendants bear the burden of pleading and
proving it.” (internal quotation marks omitted)). Accordingly, because Defendants failed to raise
a claim of premature filing in District Court as an exhaustion defense, this Court will not decide
Mr. Pinson’s second claim on exhaustion grounds.


                                                  4
12(b)(6). See Fed. R. Civ. P. 12(d); Colbert v. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006); Yates

v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003); see also Rosenberg v. U.S. Dep’t of

Immigration & Customs Enforcement, 956 F. Supp. 2d 32, 36-43 (D.D.C. 2013) (granting

summary judgment for the government “on the grounds [that] the Plaintiff failed to exhaust his

administrative remedies before seeking judicial review”).

       In this case, both the DOJ and Mr. Pinson refer to materials that are not part of the

pleadings. Specifically, the DOJ’s motion relies on a declaration by William Bordley, who avers

that Mr. Pinson never appealed the USMS’s determination regarding the first request and

explains how the USMS determined that Mr. Al-Amin’s signature on the Certification was

inauthentic. See Bordley Decl. ¶¶ 3-9. The DOJ’s motion also references several exhibits to the

Bordley Declaration, including copies of correspondence between the USMS and Mr. Pinson and

USMS internal correspondence. See Bordley Decl. Ex. A-F. For his part, Mr. Pinson offers a

declaration describing when and how Mr. Al-Amin completed the Certification. See Pinson

Decl. ¶¶ 4-5. Under these circumstances, the Court will evaluate the DOJ’s entire motion under

the summary judgment standard. 3




       3
                 It is possible that construing the DOJ’s motion under Rule 12(b)(6) would make
no difference in the end. Cf. Mendoza v. Perez, No. 13-5118, 2014 WL 2619844, at *8 n.9 (D.C.
Cir. June 13, 2014) (“The standard for resolution of these legal arguments is the same at the
motion to dismiss stage as it is on a motion for summary judgment.”); Acosta v. FBI, 946 F.
Supp. 2d 47, 50 (D.D.C. 2013) (“In any event, were this Motion considered under the summary
judgment standard, the result would be identical.”); Schoenman v. FBI, No. 04-2202, 2006 WL
1582253, at *8 n.1 (D.D.C. June 5, 2006) (“[T]the Court will treat Defendants' motion as either a
Rule 12(b)(6) motion for failure to state a claim or as a motion for summary judgment under
Rule 56—either treatment will generate the same legal conclusions.”). That being said,
analyzing the motion under Rule 12(b)(6) would preclude the Court from considering materials
outside the pleadings, see Acosta, 946 F. Supp. 2d at 50, which would not be appropriate in a
situation like this when both parties reference such materials.


                                                 5
                                B. Summary Judgment Standard

       “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) (citing

Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). A court may grant

summary judgment when “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

“material” fact is one capable of affecting the substantive outcome of the litigation. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough

evidence for a reasonable jury to return a verdict for the non-movant. Scott v. Harris, 550 U.S.

372, 380 (2007).

       The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24

(1986). The movant bears the initial burden of identifying portions of the record that

demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1);

Celotex, 477 U.S. at 323. In response, the non-movant must point to specific facts in the record

that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324.

       In considering a motion for summary judgment, a court must avoid “making credibility

determinations,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), analyze all underlying

facts and inferences in the light most favorable to the non-movant, and shall accept the

nonmoving party’s evidence as true, see Anderson, 477 U.S. at 255. Nevertheless, conclusory

assertions offered without any evidentiary support do not establish a genuine issue for trial. See

Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). “If the evidence is merely colorable, or is

not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50

(internal citation omitted). “In addition, the non-moving party cannot rely upon inadmissible


                                                  6
evidence to survive summary judgment; rather, the non-moving party must rely on evidence that

would arguably be admissible at trial.” Manuel v. Potter, 685 F. Supp. 2d 46, 58 (D.D.C. 2010)

(internal citations and quotation marks omitted).

       When an agency withholds records responsive to a FOIA request, the agency “bears the

burden of proving the applicability of claimed exemptions.” ACLU v. U.S. Dep't of Def., 628 F.3d

612, 619 (D.C. Cir. 2011). “With respect to the applicability of exemptions . . . , summary

judgment may be based solely on information provided in the agency's supporting declarations.”

Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 133 (D.D.C. 2013) (citations omitted). “If an

agency's [declaration] describes the justifications for withholding the information with specific

detail, demonstrates that the information withheld logically falls within the claimed exemption,”

and “is not contradicted by contrary evidence in the record,” then summary judgment may be

warranted solely on the basis of the agency’s declaration. ACLU, 628 F.3d at 619.

                                         IV. ANALYSIS

                                A. Request No. 2012USMS21333

       The DOJ asserts that it is entitled to summary judgment as to Request No.

2012USMS21333, arguing that there is no genuine dispute regarding the material fact that Mr.

Pinson failed to exhaust his administrative remedies. See Def.’s Mem. Supp. Dismiss Summ. J.

5-7. Mr. Pinson has failed to respond to this argument.

       The DOJ filed its motion for summary judgment as to Mr. Pinson’s claims against the

USMS on March 26, 2014. The DOJ’s motion included language warning Mr. Pinson that his

failure to contradict the assertions in the DOJ’s declaration and attachments could cause the

Court to accept those assertions as true. See Def.’s Mot. Dismiss Summ. J. 1. On February 26,

2014, this Court issued a Fox/Neal Order, which also warned Mr. Pinson that his failure to




                                                 7
respond to the DOJ’s motion could result in the motion being treated as conceded and his claims

being dismissed. See Fox/Neal Order, ECF No. 52.

       Despite these warnings, Mr. Pinson did not respond to the argument that he failed to

exhaust his administrative remedies with respect to Request No. 2012USMS21333. In his

opposition, Mr. Pinson identifies no material facts in dispute related to Request No.

2012USMS21333, and his arguments make no mention of Request No. 2012USMS21333. See

Pl.’s Resp. Def.’s Mot. Dismiss Summ. J. Looking beyond Mr. Pinson’s opposition to his

supporting declaration, Mr. Pinson avers nothing suggesting that he disputes the DOJ’s

exhaustion argument. See Pinson Decl. Additionally, Mr. Pinson’s response concludes by

conceding that the DOJ’s motion “must be [g]ranted in part, and denied as argued herein.” Pl.’s

Resp. Def.’s Mot. Dismiss Summ. J. 2.

       As a consequence, this Court finds that Mr. Pinson has effectively conceded that he failed

to appeal the USMS’s decision and thus failed to exhaust his administrative remedies regarding

Request No. 2012USMS21333. See Wilkins v. Jackson, 750 F. Supp. 2d 160, 162 (D.D.C. 2010)

(“It is well established that if a plaintiff fails to respond to an argument raised in a motion for

summary judgment, it is proper to treat that argument as conceded.”); Sykes v. Dudas, 573 F.

Supp. 2d 191, 202 (D.D.C. 2008) (“[W]hen a party responds to some but not all arguments raised

on a Motion for Summary Judgment, a court may fairly view the unacknowledged arguments as

conceded.”).

       Accordingly, this Court grants the DOJ’s motion for summary judgment as to FOIA

Request No. 2012USMS21333 because Mr. Pinson “failed to exhaust his administrative

remedies before seeking judicial review.” Rosenberg, 956 F. Supp. 2d at 36-43.




                                                   8
                                B. Request No. 2012USMS21692

       The DOJ next asserts it is entitled to summary judgment on Mr. Pinson’s claim regarding

Request No. 2012USMS21692 because responsive records are exempt under Section 7(C) of the

Privacy Act. See Def.’s Mem. Supp. Dismiss Summ. J. 7-9. Section 7(C) exempts information

compiled for law enforcement purposes from FOIA disclosure when the agency reasonably

expects that disclosure would “constitute an unwarranted invasion of [a person’s] privacy.” 5

U.S.C. § 552(b)(7)(C) (2009). Specifically, the DOJ argues that Mr. Al-Amin’s signature on the

Certification is inauthentic, and therefore that Section 7(C)’s exemption applies. See Def.’s

Mem. Supp. Dismiss Summ. J. 7-9. The DOJ supports its contention that Mr. Al-Amin’s

signature on the Certification is false with the Bordley Declaration and its exhibits. Id.

       The DOJ made a similar argument when it sought summary judgment on Mr. Pinson’s

request to the DOJ’s National Security Division (“NSD”) for records related to Mr. Al-Amin.

See Def.’s Mot. Dismiss Summ. J. 8-11, ECF No. 49-1. There, as here, the NSD was concerned

that Mr. Al-Amin’s signature on the DOJ Form 361 that Mr. Pinson submitted with his request

was not genuine. Id. This Court’s Order denying summary judgment directed the DOJ to contact

Mr. Al-Amin to determine whether his signature was authentic. See Order, Sep. 30, 2014, ECF

No. 116. This Court also ordered that the DOJ submit briefing regarding the outcome of its

investigation. Id.

       The DOJ submitted briefing detailing its investigation into the authenticity of Mr. Al-

Amin’s signature on October 27, 2014. See Supplemental Br. Order Mot. Dismiss Summ. J.,

ECF No. 129. The investigation revealed that Mr. Al-Amin’s signature on the Certification of

Identity Mr. Pinson supplied with his FOIA request to the NSD was genuine, and the Mr. Al-

Amin authorized Mr. Pinson to receive his records. Id. 2-3. The DOJ provided a supporting

declaration by Joseph Dunstone, Mr. Al-Amin’s prison case manager, who appended an affidavit


                                                 9
signed by Mr. Al-Amin. See Dunstone Decl., ECF No. 129-1; Dunstone Decl. Ex. A.

Significantly, Mr. Al-Amin’s affidavit stated not only that he signed the Certification with respect

to the NSD request, but also that he signed the Certification Mr. Pinson submitted with the

request to the USMS. See Dunstone Decl. Ex. A. In his declaration, Mr. Dunstone stated he

showed this affidavit to Mr. Al-Amin, and Mr. Al-Amin confirmed that he had completed and

signed it. See Dunstone Decl. ¶ 4. Mr. Dunstone also stated that he asked Mr. Al-Amin whether

he would like Mr. Pinson to receive copies of records that pertain to him, and Mr. Al-Amin

verified that he authorized Mr. Pinson to receive his records. Id. ¶ 5.

       Additionally, Mr. Dunstone’s Declaration appended two questionnaires that Mr. Dunstone

prepared and that Mr. Al-Amin completed and signed during their meeting. See Dunstone Decl.

Ex. A. The first questionnaire asked whether Mr. Al-Amin “completed and signed [the]

affidavit.” Id. The second questionnaire asked whether Mr. Al-Amin provided “[Mr.] Pinson

with [certifications of identity] for the 10 FOIA requests listed in the affidavit,” including the

Certification Mr. Pinson submitted to the USMS. Id. Mr. Al-Amin handwrote “Yes” in response

to both inquiries. Id.

       Generally, “[i]f an agency's [declaration] describes the justifications for withholding the

information with specific detail, demonstrates that the information withheld logically falls within

the claimed exemption, and is not contradicted by contrary evidence in the record . . . then

summary judgment is warranted on the basis of the affidavit alone.” 4 ACLU, 628 F.3d at 619.

Here, however, the DOJ’s own submissions offer two contradictory versions of the facts.

Specifically, the Bordley Declaration asserts that Mr. Al-Amin’s signature on the Certification is

inauthentic, while the Dunstone Declaration seems to establish that Mr. Al-Amin’s signature is

4
       Though the Court is required to consider the materials submitted by the parties, it may of
its own accord consider “other materials on the record.” Fed. R. Civ. P. 56(c)(3).


                                                  10
authentic. Compare Bordley Decl. ¶¶ 6-9, with Dunstone Decl. ¶¶ 3-6. Accordingly, because the

DOJ has submitted a declaration contradicting the evidence it relies on in its motion, summary

judgment is not appropriate. The Court therefore denies the DOJ’s motion for summary judgment

as to FOIA Request No. 2012USMS21692.

                                      V. CONCLUSION

       For the foregoing reasons, the Court grants summary judgment for the DOJ as to Request

No. 2012USMS21333 on the basis that Mr. Pinson failed to exhaust his administrative remedies

before bringing suit. The Court denies the DOJ’s motion for summary judgment as to Request

No. 2012USMS21692 because the DOJ’s assertion that Mr. Al-Amin’s signature is inauthentic is

contradicted by evidence in the record. The USMS is ordered to process the Plaintiff’s FOIA

Request No. 2012USMS21692 consistent with the new information obtained directly from Mr.

Al-Amin. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.




Dated: February 10, 2015                                         RUDOLPH CONTRERAS
                                                                 United States District Judge




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