                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    DANIEL HULL,

                Plaintiff,

         v.                                                Civil Action No. 16-2415 (RDM)

    UNITED STATES ATTORNEY, et al.,

                 Defendants.


                             MEMORANDUM OPINION AND ORDER

        Plaintiff Daniel Hull, proceeding pro se, initiated this action by filing a complaint

captioned “Civil Action for Demand for Discovery.” Dkt. 1 at 1. He names as defendants an

unspecified “United States Attorney” 1 and the Executive Office for United States Attorneys

(“EOUSA”). Id. In 2002, Hull pled guilty to federal charges of bank robbery and use or

carrying of a firearm in the commission of a violent crime, in violation of 18 U.S.C. § 924(c).

See Hull v. United States, No. 15-cv-123-BBC, 2015 WL 5009998, at *1-2 (W.D. Wis. Aug. 18,

2015). In the present action, he alleges that his sentence for his 2002 conviction was enhanced

based on an assault that he did not commit, and he demands that Defendants produce “all

discovery documents” from his criminal proceeding, which he asserts will contain evidence

demonstrating his “actual innocence” of the assault. Dkt. 1 at 1–2. Attached to Hull’s

complaint are several letters addressed to various federal agencies and private attorneys seeking

discovery documents from his 2002 criminal case. See id. at 3–12. Thus, although styled as an



1
 The attachments to Hull’s complaint suggest that he intends to name the U.S. Attorney for the
Western District of Wisconsin. See, e.g., Dkt. 1 at 7 (letter from John W. Vaudreuil, the U.S.
Attorney for the Western District of Wisconsin, regarding Hull’s FOIA request).
action for discovery, the complaint resembles an action under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552.

       On the same day that he filed suit, Hull also filed a “Motion for an Order Compelling

Discovery,” seeking an entirely different set of documents. Dkt. 4 at 1. In that motion, he asks

the Court to order Defendants to produce “[d]ocumentation and investigative reports” relating to

a 2010 incident in which Hull allegedly intervened to stop an assault by another inmate on a

corrections officer. Id. Hull explains that he needs this documentation to support a request for a

reduction in his sentence under Federal Rule of Criminal Procedure 35. 2 Id. Although the

attachments to Hull’s motion indicate that the Bureau of Prisons is the custodian of these records,

his pending complaint does not name the Bureau of Prisons as a defendant. In addition, the

complaint says nothing about the events in 2010 and, instead, relates solely to his efforts to

obtain records concerning his 2002 conviction. The Court will, accordingly, deny Hull’s Motion

for an Order Compelling Discovery about his alleged intervention in the assault on the

corrections officer. See Dkt. 4. To the extent Hull has filed a proper FOIA request with the

Bureau of Prisons relating to the 2010 events, has properly exhausted his administrative

remedies, and has not received responsive records to which he is entitled, he may file a separate

action seeking an order requiring the Bureau of Prisons to fulfill its FOIA obligations. This,

however, is not such a suit.

       Unlike his Motion for an Order Compelling Discovery, Hull’s complaint—at least

liberally construed—appears to name the proper parties: the United States Attorney’s Office (for

the Western District of Wisconsin, see supra n.1) and EOUSA. On its face, however, the



2
 The Court expresses no view on whether Hull’s alleged assistance to a corrections officer falls
within the scope of Rule 35.

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complaint does not state a claim under FOIA but, rather, appears to seek “discovery” pursuant to

Federal Rule of Civil Procedure 37(a). Dkt. 1 at 2. As a result, the Court entered an order

directing that the parties show cause why the case should not be dismissed for failure to state a

claim. Dkt. 13. As the Court noted, Hull “seeks various documents in discovery, but does not

appear to assert an underlying cause of action separate from his request for documents.” Id. The

Court’s order further advised Hull that “discovery is available . . . only in support of other claims

asserted in a case, not as a freestanding entitlement.” Id. And the Court concluded by noting

that, “[t]o the extent [Hull] intends for his complaint to be construed as having been brought

under [FOIA] . . . , he is advised that before bringing suit under that Act, he must first file a

FOIA request with the relevant agency and must exhaust his administrative remedies.” Id.

       In responding to the Court’s order, Defendants offer the declaration of John Kornmeier,

EOUSA’s liaison for FOIA matters. Dkt. 14-1. Kornmeier (1) acknowledges that “[b]y letter

dated September 3, 2013, [Hull] submitted a [FOIA] request for the discovery in his criminal

case;” (2) claims that EOUSA “responded to [Hull] with a partial release of records;” and (3)

asserts that he has found “no evidence that [Hull] filed an administrative appeal of EOUSA’s

determination.” Dkt. 14-1 at 2 (Kornmeier Decl. ¶¶ 4, 7–8). The attachments to Hull’s

complaint, moreover, confirm that Hull submitted a FOIA request to EOUSA dated September 3,

2013, seeking “a complete copy of the discovery” that was “generated by the U.S. attorney[’]s

office in Madison[,] [W]isconsin in case #01-cr-69-C-01 [p]ertaining to [Hull].” Dkt. 1 at 6.

Accepting the fact that Hull did file a FOIA request with the proper entity, Defendants

nonetheless contend that Hull’s complaint fails to state a claim because there is no evidence or

allegation that he has exhausted his administrative remedies. Dkt. 14 at 2.




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       Hull’s response, captioned “Plaintiff’s Motion To Show Cause,” confirms that Hull did,

in fact, file a FOIA request with “the relevant agency”—that is, EOUSA—and he confirms that

he did, in fact, receive “various documents and papers” in response. Dkt. 15 at 1. He also

appears to confirm, however, that he did not exhaust administrative remedies. Hull asserts that

because the records he received were unresponsive, he assumed that the U.S. Attorney’s Office

for the Western District of Wisconsin did not possess any responsive records and, for that reason,

he “assumed there was no need to appeal.” Id.

       In light of the liberal pleading rules applicable to pro se litigants, see Erickson v. Pardus,

551 U.S. 89, 94 (2007), and the parties’ agreement that Hull filed a FOIA request with EOUSA,

the Court will construe Hull’s complaint as seeking to compel EOUSA to release additional

records pursuant to that request. The Court is not yet persuaded, however, that Hull has stated a

claim that can survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

or a motion for summary judgment.

       Under FOIA, “[e]xhaustion of administrative remedies is generally required before filing

suit in federal court.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). FOIA

provides “two ways for a requester to exhaust administrative remedies: actual exhaustion and

constructive exhaustion.” Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 95 (D.D.C. 2013).

Actual exhaustion, or an administrative “appeal to the head of the agency,” is required when an

agency responds to a request. 5 U.S.C. § 552(a)(6)(A). Constructive exhaustion, by contrast,

occurs “[w]hen an agency fails to respond to a request within twenty working days.” Nat’l Sec.

Counselors, 931 F. Supp. 2d at 95. Under that scenario, a requester “shall be deemed to have

exhausted his administrative remedies” and may seek judicial review of the agency’s failure to

respond. 5 U.S.C. § 552(a)(6)(C)(i). “[A]n administrative appeal is mandatory,” moreover, “if



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the agency cures its failure to respond within the statutory period by responding to the FOIA

request before suit is filed.” Oglesby, 920 F.2d at 63.

       Because the exhaustion requirement “is not jurisdictional,” however, judicial review may

sometimes proceed even when a requester has not exhausted his administrative remedies.

Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). The key inquiry is whether “permitting

[the plaintiff] to pursue judicial review without benefit of prior [agency] consideration would

undercut ‘the purposes of exhaustion, namely, preventing premature interference with agency

processes, . . . afford[ing] the parties and the courts the benefit of [the agency’s] experience and

expertise, . . . [or] compil[ing] a record which is adequate for judicial review.’” Id. at 1259

(quoting Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993)); see, e.g., Nat’l Sec. Counselors v.

U.S. Dep’t of Justice, 848 F.3d 467, 470 (D.C. Cir. 2017) (concluding that “the purposes of the

exhaustion doctrine would not be served by declining to hear [plaintiff’s] claim” given that his

“two co-plaintiffs jointly asserting precisely the same claim in the same action [had]

exhaust[ed]” their administrative remedies); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004)

(concluding that “the policies underlying the exhaustion requirement ha[d] been served” despite

the plaintiff’s “failure to comply with the [agency’s] FOIA appeal deadline”).

       As the D.C. Circuit has instructed, when a court concludes that (1) a plaintiff has failed to

exhaust his administrative remedies; and (2) reviewing his claim would undermine the purposes

of exhaustion, the court should dismiss the claim under Federal Rule of Civil Procedure 12(b)(6).

See Hidalgo, 344 F.3d at 1260; see also Bayala v. U.S. Dep’t of Homeland Sec., Office of Gen.

Counsel, 827 F.3d 31, 35 n.1 (D.C. Cir. 2016) (noting that “because exhaustion is generally

considered to be an element of a FOIA claim,” the “typical course of action” for an agency in a




                                                  5
FOIA suit is to “move . . . to dismiss for failure to exhaust under Federal Rule of Civil Procedure

12(b)(6)”).

       Here, Hull appears to concede (1) that EOUSA responded to his FOIA request before he

filed the instant complaint; and (2) that he did not file an administrative appeal after receiving

EOUSA’s response. See Dkt. 15 at 1. The parties have not addressed, however, whether there is

some reason why the Court should not strictly apply the exhaustion requirement in this case. As

explained above, that is a difficult hurdle for a FOIA litigant to clear. But it is not an issue that

the Court is prepared to resolve on the present record, where Defendants have not moved to

dismiss and have devoted only four sentences to the exhaustion requirement in response to the

Court’s Order to Show Cause; where Hull is proceeding pro se; and where neither side has

addressed whether the exhaustion requirement should be strictly enforced on the facts of this

case. The Court will, accordingly, treat Defendant’s response to the Court’s Order to Show

Cause as a motion to dismiss or, in the alternative, for summary judgment; 3 will afford Hull a

final opportunity to address Defendants’ contention that the Court should dismiss his complaint

for failure to exhaust; and will permit Defendants to file a reply brief to address any new

arguments Hull raises in his opposition.

       Hull is advised that if he fails to address Defendants’ exhaustion argument, the Court

may decide the issue without considering Hull’s arguments. Moreover, to the extent Hull

disputes any of the facts asserted in the Kornmeier Declaration, Dkt. 14-1, he shall offer his own

controverting declaration or other evidence. Hull is advised that, if he fails to controvert any of



3
  To the extent Defendants rely on the Kornmeier Declaration, their request that the Court
dismiss the action is appropriately treated as a motion for summary judgment. See Fed. R. Civ.
P. 12(d) (“If . . . matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.”).

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the facts asserted in the Kornmeier Declaration, those facts may be accepted as true for the

purpose of determining whether the complaint should be dismissed for failure to exhaust. See

Fed. R. Civ. P. 56(e)(2).

          Accordingly, it is hereby ORDERED that Defendants’ response to the Court’s Order to

Show Cause shall be treated as a motion to dismiss or, in the alternative, for summary judgment;

and it is further

          ORDERED that Plaintiff shall file a further brief and any relevant evidence on or before

September 20, 2017; and it is further

          ORDERED that Defendants shall file a reply brief on or before October 4, 2017; and it is

further

          ORDERED that Plaintiff’s Motion for an Order Compelling Discovery, Dkt. 4, is hereby

DENIED.


                                                      /s/ Randolph D. Moss
                                                      RANDOLPH D. MOSS
                                                      United States District Judge


Date: August 22, 2017




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