UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMEER FLIPPIN, ) ) Plaintiff, ) ) v. ) Civil Action No. 19-1221 (BAH) ) Chief Judge Beryl A. Howell ) U.S. DEPARTMENT OF INTERIOR et al., ) ) Defendants. )
MEMORANDUM OPINION
The plaintiff, Ameer Flippin, filed this lawsuit under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to compel disclosure of records pertaining to certain federal police
officers, maintained by the Department of Interior (“DOI”). Pending are Defendant United
States Capitol Police Department’s Motion to Dismiss, ECF No. 14, and Defendants Department
of the Interior (“DOI”) and United States Park Police’s Motion to Dismiss, or in the Alternative,
for Summary Judgment, ECF No. 16. For the reasons discussed below, each motion will be
granted.
I. BACKGROUND
In a FOIA request submitted to DOI on April 24, 2019, through its “online portal,” the
plaintiff requested records pertaining to his arrest on December 30, 2018, and the personnel
files of and other information about the arresting officers “believed to be . . . of the US Parks
Police and/or the US Capitol Police.” Compl. ¶ 8. DOI acknowledged the plaintiff’s request on
the day it was submitted and “advised that the correspondence had been forwarded to the U.S.
1 Parks Police FOIA Officers.” Id. ¶ 9. Yet the plaintiff lodged the instant complaint, also dated
April 24, 2019, with the Clerk of Court on April 25, 2019. The complaint was filed before
expiration of the 20 days an agency has under FOIA to respond to a request and, consequently,
this action was dismissed promptly. See May 8, 2019 Mem. Op., ECF No. 4.
On May 31, 2019, the plaintiff filed a motion to reconsider the dismissal order, asserting
that the 20-day response time had expired. See Mot., ECF No. 7. In a supporting memorandum
filed on June 12, 2019, the plaintiff claimed that DOI had yet to provide “a candid reply” to his
request. Mem. of P. & A. at 2, ECF No. 8. The plaintiff’s assertions were accepted as true “[f]or
present purposes,” and he was “deem[ed] to have constructively exhausted his administrative
remedies.” Jun. 12, 2019 Order, ECF No. 9. Accordingly, the plaintiff’s motion was granted, and
this case was reopened and randomly assigned to the undersigned judge for further
proceedings. See id.
Meanwhile, on May 24, 2019, DOI responded to the plaintiff’s FOIA request by releasing
certain information and withholding certain information under FOIA Exemptions 2, 6 and 7(C).
Def.’s Ex. A, ECF No. 16-3. The release letter informed the plaintiff of his right to appeal to the
agency’s FOIA/Privacy Act Appeals Office within 90 workdays from the date of the letter. Id.
II. DISCUSSION
A. U.S. Capitol Police’s Motion to Dismiss
The U.S. Capitol Police asserts correctly that as “an entity of the Congress,” it is not a
proper FOIA defendant. Mot. at 4 (citing 5 C.F.R. § 2641.104). The FOIA applies to executive
branch agencies of the federal government. See 5 U.S.C. § 552(f)(1). “The Congress” is
specifically excluded from the statutory definition of agency, id. § 551(1)(A); therefore, the
2 plaintiff can bring no claim against this defendant. Accordingly, the complaint against the U.S.
Capitol Police is dismissed with prejudice for failure to state a claim upon which relief can be
granted. 1
B. DOI and U.S. Park Police’s Motion to Dismiss
DOI, of which the Park Police is a component, asserts that dismissal is warranted
because the plaintiff failed to exhaust his administrative remedies before filing suit. Mem. at 4-
5. The Court agrees.
“Exhaustion of administrative remedies is generally required before seeking judicial
review” under FOIA, Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam), in order that
an agency have “an opportunity to exercise its discretion and expertise on the matter and to
make a factual record to support its decision,” id. (quoting Oglesby v. U.S. Dep’t of the Army,
920 F.2d 57, 61 (D.C. Cir. 1990)). FOIA requires an agency to “determine within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request
whether to comply” and to “immediately notify” the requester. 5 U.S.C. § 552(a)(6)(A)(i). If
“the agency fails to answer the request within twenty days,” Judicial Watch, Inc. v. Rossotti, 326
F.3d 1309, 1310 (D.C. Cir. 2003), the requester “shall be deemed to have exhausted his
administrative remedies,” and he may proceed directly to court, 5 U.S.C. § 552(a)(6)(c)(i). If
“the agency responds to the request after the twenty-day statutory window, but before the
requester files suit, the administrative exhaustion requirement still applies.” Rossotti, 326 F.3d
at 1310 (citing Oglesby, 920 F.2d at 64-65). In other words, the “right to judicial review based
1 The U.S. Capitol Police has moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. The Court is satisfied that it has subject matter jurisdiction as conferred by FOIA. 3 on constructive exhaustion ends . . . if an agency responds at any time before the requester
files suit.” Flaherty v. President of U.S., 796 F. Supp. 2d 201, 208-09 (D.D.C. 2011), aff'd sub
nom. Flaherty v. I.R.S., 468 Fed. App’x 8 (D.C. Cir. 2012).
Although the exhaustion requirement is not jurisdictional, it “can be a substantive
ground for rejecting a FOIA claim in litigation.” Bayala v. United States Dep't of Homeland Sec.,
Office of Gen. Counsel, 827 F.3d 31, 35 (D.C. Cir. 2016). “The District of Columbia Circuit
instructs that ‘[a] FOIA plaintiff’s failure to exhaust administrative remedies before filing a civil
action is properly treated as a failure to state a claim upon which relief may be granted’ under
Fed. R. Civ. P. 12(b)(6).” Mitchell v. Samuels, 160 F. Supp. 3d 8, 12, n.4 (D.D.C. 2016) (quoting
Saldana v. Fed. Bureau of Prisons, 715 F. Supp. 2d 10, 18 (D.D.C. 2010), citing Hidalgo v. FBI, 344
F.3d 1256, 1260 (D.C. Cir. 2003)). The plaintiff admits in the complaint -- dated the same day as
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMEER FLIPPIN, ) ) Plaintiff, ) ) v. ) Civil Action No. 19-1221 (BAH) ) Chief Judge Beryl A. Howell ) U.S. DEPARTMENT OF INTERIOR et al., ) ) Defendants. )
MEMORANDUM OPINION
The plaintiff, Ameer Flippin, filed this lawsuit under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to compel disclosure of records pertaining to certain federal police
officers, maintained by the Department of Interior (“DOI”). Pending are Defendant United
States Capitol Police Department’s Motion to Dismiss, ECF No. 14, and Defendants Department
of the Interior (“DOI”) and United States Park Police’s Motion to Dismiss, or in the Alternative,
for Summary Judgment, ECF No. 16. For the reasons discussed below, each motion will be
granted.
I. BACKGROUND
In a FOIA request submitted to DOI on April 24, 2019, through its “online portal,” the
plaintiff requested records pertaining to his arrest on December 30, 2018, and the personnel
files of and other information about the arresting officers “believed to be . . . of the US Parks
Police and/or the US Capitol Police.” Compl. ¶ 8. DOI acknowledged the plaintiff’s request on
the day it was submitted and “advised that the correspondence had been forwarded to the U.S.
1 Parks Police FOIA Officers.” Id. ¶ 9. Yet the plaintiff lodged the instant complaint, also dated
April 24, 2019, with the Clerk of Court on April 25, 2019. The complaint was filed before
expiration of the 20 days an agency has under FOIA to respond to a request and, consequently,
this action was dismissed promptly. See May 8, 2019 Mem. Op., ECF No. 4.
On May 31, 2019, the plaintiff filed a motion to reconsider the dismissal order, asserting
that the 20-day response time had expired. See Mot., ECF No. 7. In a supporting memorandum
filed on June 12, 2019, the plaintiff claimed that DOI had yet to provide “a candid reply” to his
request. Mem. of P. & A. at 2, ECF No. 8. The plaintiff’s assertions were accepted as true “[f]or
present purposes,” and he was “deem[ed] to have constructively exhausted his administrative
remedies.” Jun. 12, 2019 Order, ECF No. 9. Accordingly, the plaintiff’s motion was granted, and
this case was reopened and randomly assigned to the undersigned judge for further
proceedings. See id.
Meanwhile, on May 24, 2019, DOI responded to the plaintiff’s FOIA request by releasing
certain information and withholding certain information under FOIA Exemptions 2, 6 and 7(C).
Def.’s Ex. A, ECF No. 16-3. The release letter informed the plaintiff of his right to appeal to the
agency’s FOIA/Privacy Act Appeals Office within 90 workdays from the date of the letter. Id.
II. DISCUSSION
A. U.S. Capitol Police’s Motion to Dismiss
The U.S. Capitol Police asserts correctly that as “an entity of the Congress,” it is not a
proper FOIA defendant. Mot. at 4 (citing 5 C.F.R. § 2641.104). The FOIA applies to executive
branch agencies of the federal government. See 5 U.S.C. § 552(f)(1). “The Congress” is
specifically excluded from the statutory definition of agency, id. § 551(1)(A); therefore, the
2 plaintiff can bring no claim against this defendant. Accordingly, the complaint against the U.S.
Capitol Police is dismissed with prejudice for failure to state a claim upon which relief can be
granted. 1
B. DOI and U.S. Park Police’s Motion to Dismiss
DOI, of which the Park Police is a component, asserts that dismissal is warranted
because the plaintiff failed to exhaust his administrative remedies before filing suit. Mem. at 4-
5. The Court agrees.
“Exhaustion of administrative remedies is generally required before seeking judicial
review” under FOIA, Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam), in order that
an agency have “an opportunity to exercise its discretion and expertise on the matter and to
make a factual record to support its decision,” id. (quoting Oglesby v. U.S. Dep’t of the Army,
920 F.2d 57, 61 (D.C. Cir. 1990)). FOIA requires an agency to “determine within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request
whether to comply” and to “immediately notify” the requester. 5 U.S.C. § 552(a)(6)(A)(i). If
“the agency fails to answer the request within twenty days,” Judicial Watch, Inc. v. Rossotti, 326
F.3d 1309, 1310 (D.C. Cir. 2003), the requester “shall be deemed to have exhausted his
administrative remedies,” and he may proceed directly to court, 5 U.S.C. § 552(a)(6)(c)(i). If
“the agency responds to the request after the twenty-day statutory window, but before the
requester files suit, the administrative exhaustion requirement still applies.” Rossotti, 326 F.3d
at 1310 (citing Oglesby, 920 F.2d at 64-65). In other words, the “right to judicial review based
1 The U.S. Capitol Police has moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. The Court is satisfied that it has subject matter jurisdiction as conferred by FOIA. 3 on constructive exhaustion ends . . . if an agency responds at any time before the requester
files suit.” Flaherty v. President of U.S., 796 F. Supp. 2d 201, 208-09 (D.D.C. 2011), aff'd sub
nom. Flaherty v. I.R.S., 468 Fed. App’x 8 (D.C. Cir. 2012).
Although the exhaustion requirement is not jurisdictional, it “can be a substantive
ground for rejecting a FOIA claim in litigation.” Bayala v. United States Dep't of Homeland Sec.,
Office of Gen. Counsel, 827 F.3d 31, 35 (D.C. Cir. 2016). “The District of Columbia Circuit
instructs that ‘[a] FOIA plaintiff’s failure to exhaust administrative remedies before filing a civil
action is properly treated as a failure to state a claim upon which relief may be granted’ under
Fed. R. Civ. P. 12(b)(6).” Mitchell v. Samuels, 160 F. Supp. 3d 8, 12, n.4 (D.D.C. 2016) (quoting
Saldana v. Fed. Bureau of Prisons, 715 F. Supp. 2d 10, 18 (D.D.C. 2010), citing Hidalgo v. FBI, 344
F.3d 1256, 1260 (D.C. Cir. 2003)). The plaintiff admits in the complaint -- dated the same day as
the FOIA request -- that DOI acknowledged his request on the day it was submitted and
“advised” him that the request “had been forwarded” to the Park Police’s FOIA Officers for
processing. Compl. ¶¶ 8-9. Before the plaintiff moved to reopen this action, moreover, DOI
had in fact responded to his FOIA request, explaining (1) why certain information was withheld
and (2) the plaintiff’s right to pursue an administrative appeal. See Def.’s Ex. A. 2 DOI has not
2 Mindful that consideration of this exhibit could trigger the conversion rule, see Fed. R. Civ. P. 12(d), DOI has moved in the alternative for summary judgment. Mem. of P & A at 5. But in ruling on a motion to dismiss under Rule 12(b)(6), a court may consider “the factual allegations set forth in the complaint, documents attached to or incorporated by reference in the complaint, and matters subject to judicial notice” without converting the motion into one for summary judgment under Rule 56. Ruffin v. Gray, 443 Fed. App’x. 562, 563 (D.C. Cir. 2011) (per curiam) (internal quotation marks omitted). Such “matters” include “official, public documents,” Grant v. Dep't of Treasury, 194 F. Supp. 3d 25, 28 (D.D.C. 2016) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)), and, as here, agency decisions, Gumpad v. Comm'r of Soc. Sec. Admin., 19 F. Supp. 3d 325, 328 (D.D.C. 2014). In addition, a court may consider without triggering the conversion rule “documents upon which the plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but 4 “abandoned” that decision during the course of this litigation, Bayala, 827 F.3d at 35, and thus
the plaintiff must exhaust his administrative remedies before obtaining judicial review.
III. CONCLUSION
For the foregoing reasons, the Capitol Police’s motion is granted on the ground that it is
not a proper defendant under FOIA, and DOI’s motion is granted on the ground that the
plaintiff failed to exhaust his administrative remedies before filing suit. A separate Order
consistent with this Memorandum Opinion will be filed contemporaneously.
/s/ Beryl A. Howell CHIEF JUDGE DATE: December 31, 2019
by the defendant in a motion to dismiss.” Gumpad, 19 F. Supp. 3d at 328 (quoting Hinton v. Corrections Corp. of America, 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (internal quotation marks omitted)). 5