                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 WILLIAM B. BALL,

         Plaintiff,
                 v.                                          Civil Action No. 19-1230 (JEB)
 UNITED STATES MARSHAL SERVICE,
 et al.,

         Defendants.


                                   MEMORANDUM OPINION

       Pro se Plaintiff William B. Ball alleges that he submitted a Freedom of Information Act

and Privacy Act request to numerous law-enforcement agencies, and he brought this suit to

enforce that request. Two government entities now move to dismiss or for summary judgment

on the ground that they never received his request. As Plaintiff concedes as to one and the Court

agrees as to the other, it will grant the Motion.

I.     Background

       Ball is a federal prisoner who has brought this action against the U.S. Marshal Service,

the Department of Homeland Security, the U.S. Secret Service, the Federal Bureau of

Investigation, and the Office of Intelligence and Analysis. See ECF No. 1 (Complaint). He

invokes the Administrative Procedure Act, FOIA, and the Privacy Act in seeking to enforce his

request to the aforementioned entities for the following documents:

       1) Arrest reports; 2) investigatory records, including hand-written notes and
       final drafts; 3) reports on evidentiary and/or scientific information, findings,
       and conclusions; 4) plea agreements of co-defendants; 5) charging
       documents; 6) classifications of the charged offenses; 7) video tapes and/or
       DVDs; 8) telephonic recordings; 9) computer discs and storage devices; 10)


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       computerized notepad discs; 11) photographs; and 12) all other information,
       data and reports of any kind not listed above and exempt by law.


Id. at 3. The FBI and USSS only now move to dismiss or, in the alternative, for summary

judgment.

II.    Legal Standard

       Exhaustion of administrative remedies under FOIA “is a jurisprudential doctrine that

prevents judicial review if the purposes of exhaustion and the particular administrative scheme

support such a bar.” Kalu v. IRS, 2015 WL 4077756, at *4 (D.D.C. July 1, 2015) (quotations

and citation omitted). Exhaustion under the Privacy Act, by contrast, “is a jurisdictional

threshold to challenging an agency determination.” Kearns v. FAA, 312 F. Supp. 3d 97, 107

(D.D.C. 2018). Since the Court looks at materials outside the pleadings, it will analyze

Defendants’ Motion under Rule 56 with respect to the FOIA claim, Kalu, 2015 WL 4077756, at

*4, and under Rule 12(b)(1) for the Privacy Act claim. Powell v. IRS, 317 F. Supp. 3d 266, 272,

275 (D.D.C. 2018).

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

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

Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, a court may grant

summary judgment based solely on information provided in an agency’s affidavits or

declarations when they “describe 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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey,

730 F.2d 773, 776 (D.C. Cir. 1984)). “Unlike the review of other agency action that must be



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upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly

places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine

the matter de novo.’” DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755

(1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

       Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff bears the burden of proving

that the Court has subject-matter jurisdiction to hear his claims. See Lujan v. Defs. of Wildlife,

504 U.S. 555, 561 (1992). A court also has an “affirmative obligation to ensure that it is acting

within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v.

Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual

allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in

resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13–14 (quoting 5A Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in

original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may

consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack

of jurisdiction.” Jerome Stevens Pharm. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also

Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005).

III.   Analysis

       Before addressing the merits, there are a few preliminary matters to clear away. First,

although Plaintiff refers to the APA in his Complaint, see Compl. at 1-2, his only articulated

cause of action relies on FOIA and the Privacy Act. Id. at 4. He additionally neglected to

address the APA arguments raised in Defendants’ Motion, further leading the Court to conclude

that he does not wish to proceed under that statute. Nor could he, given his ability to obtain his

sought-after relief via FOIA and the Privacy Act. See EPIC v. IRS, 261 F. Supp. 3d 1, 12



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(D.D.C. 2017) (explaining that litigants cannot bring APA claim where same relief available

under FOIA).

          Second, Plaintiff’s Opposition concedes his arguments related to the USSS. See ECF No.

19 (Amended Response) at 1, 2. All that remains, accordingly, is his request to the FBI. The

Court will look separately at the exhaustion issues relating to Ball’s Privacy Act and FOIA

claims.

          Finally, the other Defendants do not file their own dispositive motions, even though

Plaintiff’s request is incredibly wide ranging. According to him, it is not limited to records about

himself, but appears to seek broad information about all criminal defendants. The Court leaves

this for another day.

          A. Privacy Act Claim

          The Privacy Act provides a cause of action against an agency that refuses to comply with

an individual’s request for his records. See 5 U.S.C. § 552a(g)(1)(B). Before bringing such a

claim in court, however, a plaintiff must submit a “Privacy Act inquiry [that is] clearly marked

‘request for notification and access’ and ‘contain[s] a statement that it is being made under the

provisions of’ [the statute].” Powell v. IRS, 255 F. Supp. 3d 33, 41 (D.D.C. 2017) (quoting 31

C.F.R. § 1.26 Pt. 1, Subpt. C, App. B(3)(b)(iii)). Failure to do so is cause for dismissal because

exhaustion under the Privacy Act is jurisdictional. See Stein v. SEC, 266 F. Supp. 3d 326, 336

(D.D.C. 2017); Powell, 255 F. Supp. 3d at 42 (collecting cases). Given this posture, the Court

may consider materials outside the pleadings in addressing this claim without converting the

motion into one for summary judgment. See Powell, 317 F. Supp. 3d at 272; Welborn v. IRS,

218 F. Supp. 3d 64, 73 (D.D.C. 2016).




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       Defendant correctly argues that this is what happened here. In light of the FBI’s detailed

declaration about how it searched in vain for the request, see Declaration of David Hardy, ¶¶ 4–

5, Ball’s allegation (even if verified) that he submitted the request does not satisfy the “closer

scrutiny” placed on his burden to establish the Court’s jurisdiction. See Powell, 317 F. Supp. 3d

at 272 (citation omitted). Like in Reynolds v. DOJ, 2017 WL 1495932 (D.D.C. 2017), where the

Government “offered comprehensive sworn testimony that it never received [the plaintiff’s]

FOIA requests” and the plaintiff responded by attaching copies of his letters and “swearing he

mailed them,” the Court will dismiss the Privacy Act claim because Plaintiff “does not offer

proof via, e.g., a certified-mail receipt or any other form of mailing that his missive[] reached

[its] intended target.” Id. at *2. This contrasts with Guthery v. United States, 507 F. Supp. 2d

111 (D.D.C. 2007), where the court found that a pro se plaintiff’s proof of mailing — in the form

of a certified-mail confirmation number — was enough to defeat the agency’s declaration that it

had never received his administrative claim for purposes of dismissal or summary judgment. Id.

at 116–17.

       B. FOIA Claim

       The analysis under FOIA is essentially the same. “There is no dispute that ‘[a] FOIA

requester is generally required to exhaust administrative appeal remedies before seeking judicial

redress.’” Coss v. U.S. DOJ, 98 F. Supp. 3d 28, 35 (D.D.C. 2015) (quoting CREW v. FEC, 711

F.3d 180, 184 (D.C. Cir. 2013)). Again, as Plaintiff offers no evidence beyond his own say-so,

the Court can conclude on summary judgment that his claim to have mailed the request to the

FBI is defeated by the Bureau’s sworn declaration that it was not received. See Pinson v. U.S.

DOJ, 69 F. Supp. 3d 108, 114 (D.D.C. 2014) (collecting cases); see also Powell, 317 F. Supp. 3d

at 280 (holding that plaintiff’s claim of requesting certain records failed to establish genuine



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dispute as to agency’s receipt, in light of agency declaration stating it had no record of request).

Plaintiff is, of course, free to file the identical request and resubmit it to the FBI, which will then

trigger a Bureau response. As there is little prejudice in requiring resubmission and as the Court

does not hold FOIA trials on the parties’ credibility on this threshold issue, it believes that this is

thus the wisest resolution of such a dispute.

IV.    Conclusion

       For the foregoing reasons, the Court will grant Defendants’ Motion. A separate Order

consistent with this Opinion will issue this day.



                                                        /s/ James E. Boasberg
                                                        JAMES E. BOASBERG
                                                        United States District Judge
Date: March 6, 2020




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