Opinion
DOCKET NO. 99-CV-0445E(Sc)
July 31, 2000
ATTORNEYS FOR THE PLAINTIFF: Pro Se.
ATTORNEYS FOR THE DEFENDANT: Jane B. Wolfe, Esq., Asst. United States Attorney.
MEMORANDUM and ORDER
Plaintiff, proceeding pro Se, includes in his Second Amended Complaint a prayer for an order enjoining the Federal Bureau of Investigation ("the FBI" or "the agency") to respond to his request under the Freedom of Information Act ("the FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, for all FBI records and documentation pertaining to him. Defendants have moved to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("FRCvP") and for failure to state a claim upon which relief can be granted pursuant to FRCvP 12(b)(6) or, in the alternative, for summary judgment pursuant to FRCvP 56. For the following reasons, the motion to dismiss for lack of subject matter jurisdiction will be granted.
By letter dated March 27, 1999, plaintiff requested from the FBI Headquarters all information concerning him under the FOIA and the Privacy Act. The letter was acknowledged by return letter dated April 5, 1999, within the twenty-day period specified in 5 U.S.C. § 552(a)(6)(A)(i). See Hodes Decl. ¶ 5 and Ex. B. The FBI sent plaintiff a second letter on April 12 informing him that there were no "main file" records responsive to his request and that he had a right to an administrative appeal. See Id. ¶ and Ex.C. Plaintiff sent further letters to the FBI Headquarters on April 19 and June 7, seeking substantially the same information. The only significant difference between the first and subsequent letters is that, in the latter, he requested "all past, present and ongoing investigatory records." Id. Exs. D and E. His Second Amended Complaint seeks a formal response and the documents requested in the June 7 letter.
The first issue presented for this Court's consideration is whether the United States and Louis J. Freeh, as Director of the FBI, are proper defendants in this matter. Under the FOIA, "[T]he district court of the United States in the district in which the complainant resides *** has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. 5 U.S.C. § 552(a)(4)(B) (emphasis added). A claim under the FOIA may be brought against a federal agency, but not against individuals or the United States itself. See, e.g., Readers Digest Ass'n v. FBI, 524 F. Supp. 591, 593 (S.D.N Y 1981). Accordingly, because this Court is without jurisdiction over the United States and Director Freeh, the claim against them will be dismissed pursuant to FRCvP 12(b)(1).
With respect to the FBI, it is argued firstly that this Court does not have subject matter jurisdiction. Such is an appropriate threshold consideration in that the absence of subject matter jurisdiction moots all other defenses and objections. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). Suits against federal agencies are barred absent a specific statutory authorization. See 14 Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3655 (1998). If a plaintiff fails to exhaust the administrative remedies available under the FOIA and the Privacy Act before commencing an action in a United States District Court, the court is without jurisdiction. See, e.g., Sloman v. U.S. Dept. of Justice, 832 F. Supp. 63, 66 (S.D.N.Y. 1993). For example, in Sloman, the plaintiff argued that, because the agency did not fully respond to his request within the statutory time period, he had constructively exhausted his administrative remedy under 5 U.S.C. § 552(a)(6)(C). The court held that an interim response informing the plaintiff that, due to excessive volume, the requests were being handled in the order of receipt was sufficient to satisfy the requirement of a response within the statutory period. See ibid. (citing Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 610 (D.C. Cir. 1976)). Similarly, in the instant case, the agency's response to plaintiff's initial letter of March 27 was sufficient to require an administrative appeal before filing suit in this Court became proper. Plaintiff was informed of his right to take an administrative intra-departmental appeal within 60 days. See Notice of Motion, Ex. 1-C. Instead of appealing, plaintiff merely repeated his request with a minor change. He may not circumvent the administrative procedures and leapfrog to this Court on the theory that the agency failed to respond to the later requests. Therefore, the claim against the FBI will be dismissed, pursuant to FRCvP 12(b)(1), for lack of subject matter jurisdiction.
Even if the required administrative appeal had been taken or was deemed to have been taken through constructive exhaustion, the instant case must be dismissed. The United States Supreme Court has held that federal jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) is proper only upon a showing that an agency has improperly withheld agency records. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); see also Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999). Plaintiff has not provided any evidence that the FBI improperly withheld any agency records. For its part, the agency has demonstrated that it has satisfied its burden under the FOIA through the declaration of an attorney-advisor involved in this matter, which explains the process of indexing and searching the FBI files of retrievable information and makes clear that no main files pertaining to plaintiff had been located after a search of the Central Records System ("CRS"). See Hodes Decl. ¶¶ 9-12. While it is possible that the FBI has some records containing references to plaintiff, such would not be readily retrievable via a reasonable search inasmuch as plaintiff's name would not be reflected in any index. See id. ¶ 11. After the agency had responded to the original request and determined that there was no FBI file at the headquarters concerning plaintiff, his further letters effectively requested an unavailable repetitive search of the CRS.
The standard for reasonableness of a search by an agency is one of adequacy, not of perfection. See, e.g., Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1360 (D.C. Cir. 1983). Information that has not been indexed has been adjudged by agency personnel not to be "pertinent, relevant, or essential for future retrieval." Hodes Decl. ¶ 11. Without an index, the FBI files would be merely archival and could not be effectively searched. Searching the files relating to a subject or entity not referenced in the index would be an unreasonable imposition on the agency and one that is beyond the requirements of the FOIA.
Agency affidavits are accorded a presumption of good faith and discovery relating to the agency's search is generally unnecessary if the agency's submissions are facially adequate. Carney v. U.S. Dept. of justice, 19 F.3d 807, 812 (2d Cir. 1994). To justify discovery and avoid summary judgment in favor of the agency, plaintiff must make a showing of bad faith by presenting specific facts showing that documents exist that were not released by the agency. Ibid. Inasmuch as the agency declaration is sufficiently detailed and plaintiff has not attempted to show bad faith on the part of the agency — even assuming subject matter jurisdiction —, the FBI would be entitled to summary judgment based on the declaration of its employee.
Accordingly, it is hereby ORDERED that this case is dismissed for lack of subject matter jurisdiction as to all defendants and that this case shall be closed.