                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
GABRIEL SCAFF-MARTINEZ,                   )
                                           )
                  Plaintiff,               )
                                           )
                  v.                       ) Civil Action No. 10-0249 (BAH)
                                           )
DRUG ENFORCEMENT                           )
ADMINISTRATION et al.,                     )
                                           )
                                           )
                  Defendants.              )
__________________________________________)


                                 MEMORANDUM OPINION

       In this action brought pro se under the Freedom of Information (“FOIA”), 5 U.S.C. § 552,

the Plaintiff challenges the Drug Enforcement Administration’s (“DEA”) response to his request

for records pertaining to the investigation of an alleged drug smuggling operation in Panama.1

Pending before the Court are the Defendants’ motion to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure or for summary judgment under Rule 56 [Dkt. # 14]2, the

Plaintiff’s motion for summary judgment [Dkt. # 26], and the Defendants’ motion to strike the

Plaintiff’s motion, which is also their opposition to the motion [Dkt. # 28]. Upon consideration

of the parties’ submissions and the entire record, the Court will grant the Defendants’ motion for


       1
           In addition to suing the Department of Justice and its component, DEA, the Plaintiff
sues an agency employee, Katherine L. Myrick. Because the FOIA provides a cause of action
against government agencies only, the complaint against Ms. Myrick is dismissed for failure to
state a claim upon which relief can be granted. See Martinez v. Bureau of Prisons, 444 F.3d 620,
624 (D.C. Cir. 2006) (affirming the dismissal of “the named individual defendants because no
cause of action exists that would entitle appellant to relief from them under the Privacy Act or
FOIA.”) (citations omitted).
       2
          The Defendants filed a corrected dispositive motion to reflect that they are not seeking
“partial” summary judgment [Dkt. # 15]. In all other respects, the motion and supporting
documents are the same as the first motion, which remains on the docket as the operative
pending motion.
summary judgment, deny their motion to strike, and deny the Plaintiff’s motion for summary

judgment.

                                        I. BACKGROUND

       By letter of January 18, 2007, the Plaintiff requested from DEA certified copies of

“written consents” from the Department of Justice (“DOJ”) and the “Sovereign Republic of

Panama’s Government” that authorized DEA and the U.S. Army Criminal Investigation

Command to “conduct [] cocaine smuggling activities” in February 1990, “and any and all other

document [sic], reports, and bilateral agreement between the U.S. Government with the

Government of Panama, related to the specific matter detailed for this criminal case.” Complaint

Pursuant to Title 5 U.S.C. § 552(a) et seq. (“Compl.”), Ex. 1. The alleged operation resulted in

the Plaintiff’s criminal prosecution and conviction in the United States District Court for the

Southern District of Florida. See Compl. at 2. By letter of October 23, 2007, DEA informed the

Plaintiff that his request was deficient in several ways and invited him to reformulate the request.

Def.’s Mot., Declaration of William C. Little, Jr. (“Little Decl.”) [Dkt. # 14-1], Ex. J.3 It further

invited the Plaintiff to “reformulate your request and provide your intent to satisfy any fees that

may be assessed for processing a ‘First Party/Self’ request pertaining to you.” Id. at 2.

       By letter of November 6, 2007, the Plaintiff attempted to clarify his request by

emphasizing his “need [for] a copy of the [actual] authorization issued by the U.S. Attorney [sic]

Office through the Department of Justice, to the DEA & CID agents that travelled [sic] to

Panama in January, 1990, to bring back to U.S. Territory 182 kilograms of cocaine, for Criminal

Case No. 90-CR-06036-JAG, United States v. Maria Del C. Gulfo et [al].” Id., Ex. L. By letters


       3
            The exhibits to Mr. Little’s declaration appear at Dkt. # 16.

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of December 24, 2007, and March 3, 2008, the Plaintiff sought the status of his request. Id., Ex.

M; Compl. Attach. 10. On September 29, 2008, the Plaintiff reiterated his request to DEA on a

form captioned “Freedom of Information Request.” Little Decl., Ex. N; Compl. Attach. 11. By

letter of October 10, 2008, DEA informed the Plaintiff that it had not yet completed its search for

responsive records. Little Decl., Ex. O. By letter of March 2, 2009, the Plaintiff, having

received no records, appealed to the Office of Information and Privacy (“OIP”), which informed

Plaintiff by letter of July 8, 2009, that it had nothing to consider because DEA had yet to make an

adverse determination. Id., Ex. T.

       The Plaintiff filed this civil action on February 18, 2010. By letter of April 5, 2010,

DEA informed the Plaintiff that his request was not sufficiently detailed to permit it to conduct a

reasonable search for responsive records. Id., Ex. U. Nevertheless, based on the information

contained in the Plaintiff’s Certificate of Identity, DEA searched its Narcotics and Dangerous

Drug Information System (“NADDIS”), using the Plaintiff’s name, social security number and

date of birth, and located seven files mentioning the Plaintiff. Id. at 3. Each file “is available

through DEA Headquarters information systems and a corresponding file . . . in a DEA field

office[,]” thereby amounting to “10 DEA investigative case files . . . .” Id. Five of the files were

opened between 1984 and 1990 but none contained information pertaining to “any DEA foreign

office located in Central America.” Id. DEA explained that it does not “index[,] retrieve or

maintain records based upon a criminal case name and/or docket number, or by reference to

evidence submitted at trial.” Id. It offered to search the “10 DEA investigative files that possibly

contain information responsive to [the Plaintiff’s] request,” if the Plaintiff agreed to pay the

estimated search fee of $840. Id. It also informed the Plaintiff about reformulating the request to


                                                  3
reduce the fee. Id. at 4. DEA advised the Plaintiff that he had 30 days to indicate in writing his

consent for the search and which files to search, and to remit his payment of “the associated fee.”

Id. By letter of April 13, 2010, DEA supplemented the April 5 letter by informing the Plaintiff

that “knowing the citation to the ‘mandate’ or ‘requirement’ to which you refer will assist in

determining if records exist and where they may be located.” Little Decl., Ex. V at 3. In

response, the Plaintiff, in a letter dated May 5, 2010, reiterated his request and referred to his

criminal case information. Id., Ex. W.

       Mr. Little made inquiries to “several DEA offices” and conducted a search within the

Office of Chief Counsel “to ascertain whether any mandate existed that required DEA or its

agents to obtain authority from the [Attorney General] to bring cocaine into the United States in

the course of a criminal investigation.” Little Decl. ¶ 42. He located no such authority. Id. ¶ 46.

                                     II. LEGAL STANDARD

       Summary judgment is warranted “if the movant shows [through facts supported in the

record] 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); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). “[T]he substantive law will identify which facts are material. Only disputes

over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will

not be counted.” Anderson, 477 U.S. at 248.

       The FOIA is violated when an agency improperly withholds agency records. See 5

U.S.C. § 552(a)(4)(B); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,

139 (1980). An agency’s inadequate search for responsive records is equivalent to an improper


                                                  4
withholding. See Maydak v. U.S. Dep’t. of Justice, 254 F. Supp.2d 23, 44 (D.D.C. 2003). In a

FOIA lawsuit, summary judgment may be granted based on the information provided in

affidavits or declarations 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) (citations omitted); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir.

1973), cert. denied, 415 U.S. 977 (1974).

       When, as here, the search for records is challenged, an agency is entitled to summary

judgment if it establishes “beyond material doubt [] that it conducted a search reasonably

calculated to uncover all relevant documents.” Weisberg v. United States Dep't of Justice, 705

F.2d 1344, 1351 (D.C. Cir. 1983). For purposes of this showing, the agency "may rely upon

affidavits . . . , as long as they are relatively detailed and nonconclusory and . . . submitted in

good faith." Id. (citations and quotations marks omitted). The required level of detail "set[s]

forth the search terms and the type of search performed, and aver[s] that all files likely to contain

responsive materials (if such records exist) were searched. . . ." Oglesby v. Dep't of the Army,

920 F.2d 57, 68 (D.C. Cir. 1990). "If the requester produces countervailing evidence placing the

sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is

inappropriate." Spannaus v. CIA, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing Church of

Scientology v. Nat’l Security Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)); see Valencia-Lucena

v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (summary judgment is inappropriate “if

a review of the record raises substantial doubt” about the adequacy of the search) (citation

omitted).

                                                  5
        In determining the adequacy of a FOIA search, the court is guided by principles of

reasonableness “based on what the agency knew at its conclusion rather than what the agency

speculated at its inception.” Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).

“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by

the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of

Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Thus, “the [mere] fact that a particular document

was not found does not demonstrate the inadequacy of a search.” Boyd v. Crim. Div. of U.S.

Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (citations omitted).

                                       III. DISCUSSION

        The Defendants argue that the Plaintiff has failed to exhaust his administrative remedies

by reasonably describing the records sought. See Mem. of P. & A. in Support of Defs.’ Mot. to

Dismiss or, in the Alternative, Mot. for Summ. J. at 6-11. But their subsequent search for

records discussed below significantly weakens this argument as a basis for relief. The Court

need not dismiss a FOIA claim for failure to exhaust if it determines, as it does with regard to the

search, that the "purposes and policies underlying the exhaustion requirement" would not be

undermined by reaching the merits. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004); see also

Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003) (while exhaustion is not jurisdictional,

"as a jurisprudential doctrine, failure to exhaust precludes judicial review" if a merits

determination would undermine the purpose of permitting an agency to review its determinations

in the first instance).

        1. DEA Conducted An Adequate Search for Responsive Records

        An agency’s disclosure obligations are triggered by its receipt of a proper FOIA request in

compliance with its published regulations. 5 U.S.C. § 552(a)(3); see 5 U.S.C. § 552(a)(6)(A)(i)

                                                  6
(requiring an agency “to determine within twenty days . . . after the receipt” of a properly

submitted request “whether to comply with such request” and to notify the requester

accordingly); 28 C.F.R. § 16.3 (DOJ regulation requiring requesters to “describe the records

[sought] in enough detail to enable Department personnel to locate them with a reasonable

amount of effort.”). “Although a requester must ‘reasonably describe[]’ the records sought . . . ,

an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, Wash. Bur. v.

U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt v. Dep't of State, 897 F.2d

540, 544-45 (D.C. Cir. 1990)) (other citations omitted) (alterations in original).

       DEA reasonably construed the Plaintiff’s request as seeking “a document from the

Attorney General of the United States authorizing DEA and/or its agents to bring cocaine,

associated with an investigation that led to indictments” in the Plaintiff’s criminal case, Little

Decl. ¶ 39, but determined that it had insufficient information “to identify a system of records or

an office that would maintain the requested document.” Id. ¶ 41. DEA explained to the Plaintiff

that his request was deficient because (1) “[t]o retrieve a record related to any agency policy[,] a

date that the policy would be in effect [was] required[,]” (2) DEA was not required “to obtain

records . . . [that apparently were] under the control and custody of another agency[,]” and (3)

“an agency is not required to answer questions, conduct research or create records to satisfy a

request.” Defs.’ Mot., Ex. J. The law supports DEA’s position on the latter two points. See

McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (An agency is required to produce only

those records in its custody and control at the time of the FOIA request.); Maydak v. U.S. Dep’t

of Justice, 254 F. Supp. 2d 23, 45 (D.D.C. 2003) (“Under [the] FOIA, an individual may obtain

access to records ‘written or transcribed to perpetuate knowledge or events.’ . . . [The] FOIA

neither requires an agency to answer questions disguised as a FOIA request, [n]or to create

                                                  7
documents or opinions in response to an individual's request for information.”(quoting Hudgins

v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985)) (alterations in original).

       In response to DEA’s first point, the Plaintiff, in his response letter dated December 24,

2007, cited U.S. v. Hill, 935 F.2d 196, 198-99 (11th Cir. 1991) and 21 C.F.R. §§ 1311-12. Little

Decl., Ex. M. Neither of those references, however, specifies the information DEA claimed it

would need to conduct a search. Nevertheless, the issue is moot because Mr. Little has since

demonstrated his good-faith effort “to ascertain whether any mandate existed that required DEA

or its agents to obtain authority from the AG” for the alleged drug smuggling operation. Little

Decl. ¶ 42. He “canvassed” DEA’s legal offices and contacted its Operations Division and

Office of Operations Management, but located no such mandate. Id. ¶¶ 42-46. In addition, DEA

has searched the filing system most likely to contain records about the Plaintiff -- NADDIS --

utilizing the Plaintiff’s name, social security number and date of birth. See id. ¶¶ 47-54. It has

located seven files mentioning the Plaintiff, but “none reflect[s] a file established by any DEA

foreign office located in Central America.” Id. ¶ 54. The Court is satisfied from Mr. Little’s

description of DEA’s record systems and the search methods employed that DEA conducted an

adequate search for responsive records.

       2. DEA Has Not Improperly Withheld Records

       DEA has located investigative files that mention the Plaintiff and has assessed an

estimated search fee of $840. Little Decl., Ex. U. The Plaintiff argues that the fee should be

waived. See Pl.’s Mem. of P. & A. in Opp’n to Defs.’ Mot. to Dismiss or for Summ. J. [Dkt. #

20] at 18-21. Under the FOIA, however, “[e]xhaustion [also] does not occur until the required

fees are paid or an appeal is taken from the [agency’s] refusal to waive fees.” Oglesby v. U.S.

Dep't of Army, 920 F.2d 57, 66 (D.C. Cir. 1990); accord Judicial Watch, Inc. v. FBI, 190 F.

                                                 8
Supp. 2d 29, 33 (D.D.C. 2002). “Regardless of whether the plaintiff ‘filed’ suit before or after

receiving a request for payment, the [P]laintiff has an obligation to pay for the reasonable

copying and search fees assessed by the [D]efendant.” Trueblood v. U.S. Dep’t of Treasury,

I.R.S., 943 F. Supp. 64, 68 (D.D.C. 1996) (citing Pollack v. Dep’t of Justice, 49 F.3d 115, 120

(4th Cir.), cert. denied, 518 U.S. 1032 (1995)).

        It is undisputed that the Plaintiff has not paid the assessed fee, and the agency has not

granted him a fee waiver. Consequently, it appears that DEA has not yet processed the located

records, and it has not issued a decision denying responsive records. The Court concludes that

judicial review prior to the agency’s resolution of the fee waiver request and the processing of

potentially responsive records would undermine the FOIA’s exhaustion purposes and implicitly

condone circumvention of the foregoing exhaustion requirement by filing a lawsuit.

                                       IV. CONCLUSION

       For the reasons stated above, the Court finds that no genuine issue of material fact is

presented on the Defendants’ response to the Plaintiff’s FOIA request and that the Defendants,

having satisfied their obligations under the FOIA, are entitled to judgment as a matter of law.

Hence, the Defendants’ motion for summary judgment is granted and the Plaintiff’s motion for

summary judgment is denied. A separate Order accompanies this Memorandum Opinion.

                                                         /s/ Beryl A. Howell
                                                       United States District Judge
DATE: March 14, 2011




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