Virginia Lawyers Weekly VA Lawyers Weekly
Where a detainee sued the United States Postal Service, or USPS, for failing to respond to his requests under the Freedom of Information Act, or FOIA, but the record showed he sent his requests to the wrong component of the USPS, his requests asked the agency to produce records from the postal inspection service and his requests were related to the Privacy Act and not FOIA, his claims against the USPS were dismissed for failure to exhaust.
Background
William A. White, a detainee in federal prison, alleges violations of his rights under the FOIA, the Administrative Procedure Act, or APA, and the United States Constitution. According to White, the federal agency defendants in this matter all failed to provide records pursuant to FOIA requests. In total, plaintiff alleges 16 claims for relief. Defendants move to dismiss four of these claims.
Jurisdiction
Defendants move to dismiss Counts Three and Four on the grounds that the court lacks subject matter jurisdiction because plaintiff did not exhaust administrative remedies. Plaintiff did not exhaust his request to the USPS (Count Three) because the USPS did not receive his request, at least not until after this litigation commenced. Plaintiff sent his request to the wrong component of the USPS.
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Further, plaintiff’s request asked the USPS to produce documents from a different component, the postal inspection service. Only a valid FOIA request can trigger an agency’s FOIA obligations, and “failure to file a perfected request therefore constitutes failure to exhaust administrative remedies.” Here, the USPS did not improperly withhold anything because it did not receive a request in accordance with its rules.
In response to the motion to dismiss, plaintiff attaches documents which he claims show that the USPS received his requests from November and December 2018. However, the correspondence he attaches from USPS confirms that these requests were Privacy Act requests, not the FOIA requests at issue in this case.
As for plaintiff’s request to the Secret Service (Count Four), plaintiff did not comply with the requirement to provide proof of identity. While plaintiff did attempt to comply with this requirement, he sent his proof of identity to the wrong agency component. Therefore, plaintiff’s claim against the Secret Service is unexhausted. Plaintiff also failed to exhaust by not filing an administrative appeal.
For these reasons, Counts Three and Four will be dismissed for lack of subject matter jurisdiction. Because these are the only claims against the USPS and the United States Secret Service, those defendants will be dismissed.
Claims
Plaintiff’s one sentence claim in Count Two — that the Department of Homeland Security’s policy of requiring FOIA requesters to provide an original fingerprint card was applied to him in an arbitrary and capricious manner — is insufficient to state a plausible claim for relief. It does not state or describe a final agency action that was nondiscretionary. The court will dismiss this claim.
Plaintiff’s claim is that the FBI violated his First Amendment rights by placing his FOIA requests at the end of a “multi-decade long queue” in retaliation for the lawful exercise of his rights under FOIA. Even assuming that the receipt of information pursuant to a FOIA request somehow qualifies as protected First Amendment activity, plaintiff has not plausibly alleged that the alleged delay in processing “was taken in response to the exercise of a constitutionally protected right.” Therefore, the court will dismiss this claim under Rule 12(b)(6).
Defendants’ partial motion to dismiss granted.
White v. Department of Homeland Security, Case No. 7:21-cv-00219, Sept. 23, 2022. WDVA at Roanoke (Dillon). VLW 022-3-410. 12 pp.
