UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RONALD GEDDIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 23-cv-00191 (CKK) ) DEPARTMENT OF ) HOMELAND SECURITY, ) ) Defendant. )
MEMORANDUM OPINION
This case brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and
the Privacy Act, 5 U.S.C. § 552a, see Amended Complaint (“Am. Compl.”), ECF No. 6, is before
the Court on the Motion to Dismiss (“Mot.”), ECF No. 11, filed by Defendant, the Department of
Homeland Security (“DHS”). For the reasons explained below, DHS’s Motion to Dismiss will be
converted into a Motion for Summary Judgment, the Motion will be granted, and judgment will
be entered on behalf of DHS.
I. BACKGROUND
Plaintiff Ronald Geddis, who is proceeding pro se, and is incarcerated at the Federal
Correctional Complex in Coleman, Florida, see Am. Compl. at 5, alleges that, on August 17, 2022,
he mailed a FOIA/Privacy Act request to DHS’s Homeland Security Investigations (“HSI”), id. ¶
7; see Opposition Exhibits (“Opp’n Exs.”), ECF No. 12-1, at 1 1 (copy of Pl.’s FOIA/Privacy Act
Request, dated Aug. 14, 2022) (“FOIA/PA Request”), a principal investigative component of
Immigration and Customs Enforcement (“ICE”), see Mot. Exhibit A, ECF No. 20-1, ¶ 4
1 In citing to the Exhibits attached to Plaintiff’s Opposition (“Opp’n”), ECF No. 20, the Court references the ECF-generated pagination. 1 (Declaration of Fernando Pineiro, ICE’s FOIA Director) (“Pineiro Decl.”). Plaintiff contends that
he sent his request via certified U.S. first class mail, seeking:
(1) indictment and charging documents; (2) transcripts of pre-trial proceedings; (3) discovery; (4) copies of plea agreements and drafts thereof; (5) audio or video recordings of any pre- or post-arrest interrogations or interviews of individual; (6) arrest warrants; (7) search warrants, subpoenas and their attendant affidavits; (8) handwritten or field notes; (9) email communication between the U.S. Attorney’s Office for the Middle District of Florida and his; (10) email communications between HSI and the Hillsborough County Sheriff’s Office; and (11) any and all other information not listed above and not exempt under law.
Am. Compl. ¶ 7 (emphasis in original); FOIA/PA Request; see Opp’n Exs. at 4 (Pl.’s Certified
Mailing Label) (“CML”). Plaintiff’s mailing containing his request was, however, addressed
incorrectly. Compare FOIA/PA Request, with Pineiro Decl. ¶ 1. The mailing address that Plaintiff
listed on the certified mailing label is: Homeland Security Investigations, FOIA/PA Office, 500
12th Street N.W., 11th floor, Washington, DC 20530. See CML. However, the correct address is:
U.S. Immigration & Customs Enforcement, FOIA Office, 500 12th Street S.W., Stop 5009,
Washington, DC 20536-5009. See Pineiro Decl. ¶ 1. As a result, Plaintiff made more than one
error in addressing his request; he listed the incorrect quadrant, as well as the wrong zip code, and
he also failed to include mail stop code, while including what appears to be an erroneous floor
number. See id.; CML.
Plaintiff contends that he received an initial response letter regarding his request, dated
September 7, 2022, and directing him to submit additional information, including a certificate of
identity. See Opp’n ¶ 2; Opp’n Exs. at 6–7, ECF No. 11-3 (Initial Response Letter, dated Sept. 7,
2022) (“Initial Resp. Ltr.”). Plaintiff asserts that he responded on September 14, 2022,
resubmitting his request with the required supplemental information. See Opp’n ¶ 3; Opp’n Exs.
at 8–10 (Pl.’s Reply & Resubmission, dated Sept. 14, 2022) (“Pl.’s Resub. Ltr.”). According to
2 Plaintiff, he received a letter of acknowledgement, dated September 28, 2022, discussing fee
arrangements for his resubmitted request. See Am. Compl. ¶ 14; Opp’n ¶ 4; Opp’n Exs. at 11–12
(Second Response Letter, dated Sept. 8, 2022) (“Sec. Resp. Ltr.”). On October 7, 2022, Plaintiff
signed a fee agreement. See Opp’n ¶ 5; Opp’n Exs. at 12–16 (Pl.’s Fee Agreement Letter) (“Pl.
FA Ltr.”). Plaintiff alleges that, thereafter, there has been no progress made on his request. See
Am. Compl. ¶ 15. The Court notes, however, that these letters are all authored by Kevin Krebs,
Assistant Director of the FOIA/Privacy Staff Executive Office for United States Attorneys
(“EOUSA”) of the United States Department of Justice (“DOJ”), and not by anyone affiliated with
HSI, ICE, or DHS. See Initial Resp. Ltr.; Sec. Resp. Ltr.
On January 23, 2023, Plaintiff filed the instant lawsuit against DHS. See generally,
Complaint, ECF No. 1. He filed an Amended Complaint on April 18, 2023, raising the same
claims, but attempting to now limit the documents sought to items No. 7 and No. 11 in his
FOIA/Privacy Act request, more specifically, “search warrants, subpoenas and their attendant
affidavits[,]” and “any and all other information not listed above and not exempt under law[.]” See
Am. Compl. ¶¶ 7–11.
In response to the Amended Complaint, on July 20, 2023, DHS filed the pending Motion
to Dismiss for failure to state a claim pursuant to Federal Rule 12(b)(6). See Mot. at 1–2. DHS
asserts that neither it, nor any of its components, including ICE or HSI, ever received Plaintiff’s
request. See Mot. at 2–4; Pineiro Decl. ¶¶ 5–9. In support, DHS has submitted a Declaration from
Fernando Pineiro, ICE’s FOIA Director, who attests that, upon notice of this lawsuit, ICE and HSI
conducted several searches, but found no record of receipt of any FOIA or Privacy Act request
from Plaintiff. See Pineiro Decl. ¶¶ 5–9.
3 On August 11, 2023, Plaintiff filed his Opposition to the Motion to Dismiss, to which DHS
filed a Reply, ECF No. 14, on September 2, 2023. On September 25, 2023, Plaintiff filed a Motion
for Leave to file a Surreply, ECF No. 15, which was granted by Minute Order on September 28,
2023, and his Surreply (“Surreply I”), ECF No. 16, was then separately docketed on the same date.
DHS was afforded a Response to Plaintiff’s Surreply, ECF No. 17, which was then filed on
October 10, 2023. Finally, on October 20, 2023, Plaintiff filed a Motion for Leave to file a Second
Surreply (“Surreply II”), ECF No. 18, which was granted by Minute Order on October 26, 2023,
and construed accordingly.
II. STANDARD OF REVIEW
In ruling upon a motion to dismiss for failure to state a claim, a court is limited to
considering the facts alleged in the complaint, any documents attached to or incorporated therein,
matters of which a court may take judicial notice, and matters of public record. See EEOC v. St.
Francis Xavier Parochial Sch., 117 F. 3d 621, 624 (D.C. Cir. 1997); see also Vanover v. Hantman,
77 F. Supp. 2d 91, 98 (D.D.C. 1999), (“[W]here a document is referred to in the complaint and is
central to plaintiff's claim, such a document attached to the motion papers may be considered
without converting the motion to one for summary judgment.”) (citing Greenberg v. The Life Ins.
Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999)), aff'd, 38 Fed. Appx. 4 (D.C. Cir. 2002); Ward v.
Dist. of Columbia Dep't of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (finding
that a court may consider “documents upon which the plaintiff's complaint necessarily relies even
if the document is produced not by the plaintiff in the complaint but by the defendant in a motion
to dismiss” without converting to summary judgment) (internal quotation marks omitted). If a
court considers materials outside of those mentioned, it must convert a Rule 12(b)(6) motion to
4 dismiss into one for summary judgment. See Kim v. United States, 632 F.3d 713, 719 (D.C. Cir.
2011) (citing Fed. R. Civ. P. 12(d)).
Here, because DHS has submitted, and the Court has considered, matters outside of the
pleadings, and outside of which it may take judicial notice or of public record, the Court thus
converts DHS’s Motion to Dismiss into a Motion for Summary Judgment under Rule 56. See
Johnson v. Dist. of Columbia, 869 F. Supp. 2d 34, 37 (D.D.C. 2012) (collecting cases). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To defeat
summary judgment, the non-moving party must “designate specific facts showing that there is a
genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation
marks omitted). The mere existence of a factual dispute is insufficient to preclude summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine”
only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it
can affect the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F. 2d 1236, 1241
(D.C. Cir. 1987) (per curiam).
In a FOIA case, a district court reviews the agency's decisions de novo and “the burden is
on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of U.S. Trade Rep., 641 F. 3d 521, 527 (D.C. Cir. 2011); Defenders
of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). “Summary judgment may
be granted on the basis of agency affidavit[,]” when those affidavits “contain reasonable specificity
of detail rather than merely conclusory statements[.]” Judicial Watch, Inc. v. U.S. Secret Serv., 726
F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283,
5 287 (D.C. Cir. 2006)); see also Peavey v. Holder, 657 F. Supp. 2d 180, 188 (D.D.C. 2009) (quoting
Schrecker v. U.S. Dep't of Justice, 217 F. Supp. 2d 29, 33 (D.D.C. 2002)). This is due to the
“presumption of good faith” accorded to agency declarations, that can be rebutted only with
evidence that the agency did not act in good faith. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir.
1981)), aff’d, No. 09–5389, 2010 WL 4485438 (D.C. Cir. Nov. 5, 2010) (per curiam).
Likewise, in assessing a Privacy Act claim, at the summary judgment stage, where the
agency has the burden to show that it acted in accordance with its statutory obligations, a court
may rely on a reasonably detailed declaration in entering summary judgment. See Chambers v.
U.S. Dep't of the Interior, 568 F. 3d 998, 1003 (D.C. Cir. 2009).
III. DISCUSSION
Under the FOIA, “each agency, upon any request for records which (i) reasonably describes
such records and (ii) is made in accordance with published rules . . . shall make the records
promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Agencies are afforded express
statutory authority to establish their own rules concerning “the time, place, fees (if any) and
procedures to be followed” by a requester. 5 U.S.C. § 552 (a)(3)(A); see also id. §§ 552 (a)(4)(A);
(a)(6)(D); (a)(6)(E).
Similarly, the Privacy Act regulates the collection, maintenance, use, and dissemination of
an individual's personal information by federal government agencies, see 5 U.S.C. § 552a(e), and
also allows “any individual to gain access to his record or to any information pertaining to him
which is contained in the system,” so long as a proper Privacy Act request is submitted, see id. §
552a(d)(1). The Privacy Act also holds that “each agency that maintains a system of records shall
6 promulgate rules” relating to the procedures, fees, and other myriad requirements, associated with
such requests. See 5 U.S.C. § 552a(f).
To that same end, an agency’s obligations under the FOIA or the Privacy Act can only be
triggered upon confirmed receipt of a conforming request. See Antonelli v. Fed. Bureau of Prisons,
591 F. Supp. 2d 15, 26 (D.D.C. 2008) (finding that “[a]n agency’s disclosure obligations are not
triggered . . . until it has received a proper FOIA request in compliance with its published
regulations”); Banks v. Lappin, 539 F. Supp. 2d 228, 235 (D.D.C. 2008) (“It cannot be said that an
agency improperly withheld records if the agency did not receive a request for those records.”)
(collecting cases). Absent receipt of a request, an agency “has no reason to search or produce
records and similarly has no basis to respond.” Johnson v. United States, 239 F. Supp. 3d 38, 44–
5 (D.D.C. 2017) (granting summary judgment where the plaintiff had not submitted a request)
(quoting Carbe v. Bureau of Alcohol, Tobacco and Firearms, No. 03-CV-1658, 2004 WL
2051359, at *8 (D.D.C. Aug. 12, 2004)); Mitchell v. Samuels, 160 F. Supp. 3d 8, 12 (D.D.C. 2016)
(same); Lopez-Pena v. U.S. Dep’t of Justice, No. 19-2884, 2021 WL 3077559, at *2 (D.D.C. July
20, 2021) (same) (collecting cases).
As noted above, DHS has submitted the Declaration of Fernando Pineiro, who bears
experience, tenure, and personal knowledge regarding ICE and HSI’s FOIA and Privacy Act
procedures, and regarding the investigation into the receipt of Plaintiff’s request. See Pineiro Decl.
¶¶ 1–3. Pineiro attests that this lawsuit was the agency’s first notice of Plaintiff’s request, and that,
on June 22, 2023, shortly after DHS was served with process in this lawsuit, see Returns of Service,
ECF No. 8, “the ICE FOIA Office conducted a search within FOIAXpress (“FX”), ICE FOIA
Processing system[,]” see Pineiro Decl. ¶ 5. It searched FX by using Plaintiff’s first name, last
name, and the approximate date of receipt of the request. Id. The “ICE FOIA Office also
7 conducted a search in FX based on the description in the complaint of records being sought to
determine whether they received Plaintiff’s FOIA request.” Id. No record of Plaintiff’s request
was found. See id.
On the same date, the HSI/Record Disclosure Unit, “which is the unit within HSI that
handles all matters relating to FOIA requests involving HSI records” also searched “the RDU
FOIA shared drive and SharePoint site for incoming FOIA taskings from the ICE FOIA Office,
including requests, litigation, and appeals[.]” Id. ¶ 6. Once again, “it did not locate any documents
or records indicating that HSI had received Plaintiff’s FOIA request.” Id.
Finally, “HSI also reached out to the HSI Tampa Field Office FOIA Coordinator to
determine if the field office had received Plaintiff’s FOIA request.” Id. ¶ 7. The HSI Tampa FOIA
Coordinator “then conducted a search of the in the Investigative Case Management System
(“ICM”), to identify whether an agent was assigned to Plaintiff’s investigation[,]” and further
coordinated, not only with the would-be FOIA case agent and group supervisor, but also with the
entire HSI Tampa Office, to ascertain whether anyone had notice of Plaintiff’s request. See id.
But no one at HSI Tampa was aware of it. See id.
“Where, as here, an agency submits a declaration stating it did not receive the FOIA
request, the burden falls on the requester to come forward with proof to create a genuine dispute
of fact that he sent the FOIA request to the agency and the agency received it.” Kanaya v. Alcohol,
Tobacco, Firearm and Explosives, 284 F. Supp. 3d 1, 2 (D.D.C. 2018) (citing Pinson v. U.S. Dep't
of Justice, 69 F. Supp. 3d 108, 113–14 (D.D.C. 2014)). “In response to such a declaration, the
plaintiff must provide something more than his own declaration to create a genuine issue of
material fact as to the agency's receipt of the FOIA request.” Pinson, 69 F. Supp. 3d at 114 (citing
Carbe, 2004 WL 2051359, at *1, *8).
8 Here, there is no disagreement that Plaintiff sent a request; the dispute is thus whether the
ICE FOIA Office received it. See Mot. at 2–5; see also CML (indicia that Plaintiff attempted to
mail the request). In response to DHS’s “comprehensive sworn testimony that [ICE and HSI]
never received Plaintiff's FOIA request[][,]” Reynolds v. Dep’t of Justice, No. 16–1428, 2017 WL
1495932, at *2 (D.D.C. Apr. 26, 2017), Plaintiff insists upon the opposite; he largely argues that
the ICE FOIA Office (in the District) received his request on more than one occasion. See Opp’n
¶¶ 1–6. In support, Plaintiff offers several exhibits. See id. But, as explained below, these exhibits
are insufficient to generate a genuine despite of material fact.
First, Plaintiff attaches a certified mailing label, see CML, accompanied by a tracking print-
out from the United States Postal Service’s (“USPS’s”) website, see Opp’n Exs. at 5 (USPS
tracking reflecting Aug. 22, 2022 receipt) (“USPS Tracking”), in an effort to establish that ICE’s
FOIA Office received his request on August 22, 2022, after he first mailed it, see Opp’n ¶ 1. But
as already discussed above, Plaintiff incorrectly addressed the mailing containing his request,
labelling it with the wrong zip code and the wrong quadrant, omitting a mail stop code, and
including an incorrect floor number. Compare CML, with Pineiro Decl. ¶ 1.
The USPS tracking print-out is not a model in clarity. See generally USPS Tracking.
While the tracking does reveal that USPS apparently endeavored to deliver the mailing to a
location in the correct zip code, namely, 20536, it does not provide the address where it was
delivered, nor does it include any information as to whom, if anyone, accepted or signed for the
mailing. See id. This inadequacy is compounded by Plaintiff’s assertion that he sent his request
via certified first-class mail, which means that a signature would have been obtained, yet the Court
is without this information. See id.; CML; Am. Compl. ¶ 7. The tracking only vaguely indicates
that the mailing was delivered to a “front desk, reception area, or mail room.” See id. In other
9 words, there is nothing in the tracking print-out to establish that the mailing containing Plaintiff’s
request was actually delivered to ICE’s FOIA Office, located at 500 12th Street S.W., Stop 5009,
Washington, DC 20536-5009, or that it was accepted by authorized agency personnel. See Pineiro
Decl. ¶ 1. Consequently, this exhibit does not demonstrate that the ICE FOIA Office ever received
Plaintiff’s request. See, e.g., Ning Ye v. Holder, 624 F. Supp. 2d 121, 124 (D.D.C. 2009)
(dismissing claim when the plaintiff offered a letter from FedEx stating that a “M. Parris” signed
for a certain parcel because the letter failed to “identify the shipper, the addressee, the parcel, or
the relationship between ‘M. Parris’ and the unknown addressee”); Schoenman v. FBI, No. 04–
2202, 2006 WL 1126813, at *10, *13 (D.D.C. March 31, 2006) (granting summary judgment for
the government where the plaintiff failed to provide a “a returned receipt certifying the actual
receipt of the request by the agency”); Reynolds, 2017 WL 1495932, at *2 (granting summary
judgment for DOJ where the plaintiff failed to submit a “a certified-mail receipt or any other form
of mailing that his missives reached their intended target.”). Notably, in his later briefing, Plaintiff
ultimately admits to his mailing error. See Surreply I at 2–3 (recognizes the “mishap of the
address”); Surreply II at 1 (recognizing the “misapplied address”); see also Pickering-George v.
Registration Unit, DEA/DOJ, 553 F. Supp. 2d 3, 5 (D.D.C. 2008) (entering summary judgment on
behalf of the government where the plaintiff mailed his request to an “address . . . not listed in the
controlling DOJ regulation as one to which FOIA requests to DEA should be sent[.]”); Lopez-
Pena, 2021 WL 3077559, at *3 (entering summary judgment for the government where the
plaintiff conceded that he sent his request to the wrong address); Day v. U.S. Dep’t of the Treasury,
No. 19-3467, 2020 WL 4432239, at *3 (D.D.C. July 31, 2020) (holding that an agency “need not
spring into action simply because Plaintiff placed a request in the mail, particularly when Plaintiff
appears to have sent his FOIA request to an incorrect address.”) (collecting cases).
10 Second, Plaintiff attaches a series of exhibits meant to establish that he communicated back
and forth with DHS in September and October 2022, including two agency response letters, and
his execution of an agency fee agreement. See Opp’n ¶¶ 2–5; id. pp. 3–4; Am. Compl. ¶ 14; Initial
Resp. Ltr.; Pl.’s Resub. Ltr.; Sec. Resp. Ltr.; Pl. FA Ltr; Opp’n Exs. at 17 (USPS tracking reflecting
Oct. 19, 2022 receipt of Pl.’s FA Ltr.). But as noted above, all of these communications were with
Kevin Krebs, the Assistant Director of EOUSA’s FOIA/Privacy Staff Executive Office, not with
DHS, ICE, or HSI. See id. Per Plaintiff’s own admission, he sent an identical request to EOUSA’s
FOIA Office around the same time that he attempted to send his request to ICE’s FOIA Office.
See Opp’n ¶¶ 1–6.
Although the FOIA requests themselves may be the same, EOUSA’s receipt of the request
is not tantamount to ICE’s receipt. Krebs is not associated whatsoever with DHS, ICE, or HSI.
See Mot. at 4–5; Pineiro Decl. ¶ 10; Initial Resp. Ltr.; Sec. Resp. Ltr. Indeed, EOUSA, who was
not named as a defendant in this lawsuit, is located at a completely different address than ICE and
HSI, in another building, quadrant, and zip code. See Initial Resp. Ltr.; Pl.’s Resub. Ltr.; Sec.
Resp. Ltr.; Pl. FA Ltr. Moreover, EOUSA is not a component of DHS; it is a component of a
different agency, the DOJ, and is bound by its own distinct set of statutory requirements. Compare
28 CFR § 16.1 et seq. (DOJ FOIA Rules and Regulations); 28 CFR 16.40 et. seq. (DOJ Privacy
Act Rules and Regulations), with 6 CFR § 5.1 et. seq. (DHS FOIA Rules and Regulations); 6 CFR
§ 5.20 et seq. (DHS Privacy Act Rules and Regulations); see Mot. at 4–5; Pineiro Decl. ¶ 10.
Plaintiff’s bald assertion that all agencies and components within executive branch must field each
other’s FOIA/Privacy Act requests, see Opp’n at pp. 3–4, is not only submitted without supporting
legal authority, but also defies common sense, as it would lead to, inter alia, considerable
confusion and disorganization. Simply put, EOUSA’s ostensible receipt of Plaintiff’s request does
11 not speak to whether ICE or HSI received it. See Barouch v. U.S. Dep’t of Justice, 962 F. Supp.
2d 30, 48 (D.D.C. 2013) (granting summary judgment for the Treasury Department where the
plaintiff seemingly incorrectly assumed that ATF’s receipt of his request also constituted the
receipt of his request by the Treasury Department); Lopez-Pena, 2021 WL 3077559, at *3 (finding
DOJ/EOUSA and DHS are “entirely different” agencies, and that DHS’s possession of the
plaintiff’s request did not establish that DOJ or EOUSA received it); Day, 2020 WL 4432239, at
*3 (finding that the plaintiff’s evidence that the DOD received his request was insufficient to show
that the IRS also received it, and entering summary judgment on the IRS’s behalf); Stelmaszek v.
Dep’t of Vet. Affairs, 19-cv-00172, 2020 WL 4673415, at *4 (D.D.C. Aug. 12, 2020) (entering
summary judgment on behalf of government because the plaintiff sent his request to the wrong
agency component) (citing Gordon v. Courter, 118 F. Supp. 3d 276, 285–86 (D.D.C. 2015)
(same)).
Finally, Plaintiff argues in the alternative that, despite any errors he committed, see
Surreply I at 2–3; Surreply II at 1, DHS nonetheless now has notice of his request because it was
served in this lawsuit, see Surreply I ¶ 2; Surreply II ¶¶ 1–2. Although, in a vacuum, this statement
is true, it is of no consequence, because a plaintiff bringing a FOIA or Privacy Act claim in federal
court must file it with the given agency prior to bringing suit. See Banks, 539 F. Supp. at 234–35
(citing Wilbur v. Central Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam);
Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003); Oglesby v. U.S. Dep’t of the Army, 920
F.2d 57, 61 (D.C. Cir. 1990); Blazy v. Tenet, 979 F. Supp. 10, 18 (D.D.C. 1997), aff'd, No. 97–
5330, 1998 WL 315583 (D.C. Cir. May 12, 1998) (per curiam); Crooker v. United States Marshals
Serv., 577 F. Supp. 1217, 1217–18 (D.D.C. 1983)). This allows an agency the opportunity to
review and address a request, establish a factual record, and plausibly mutually resolve the request
12 before either party endures the costs and burdens of litigation. See Wilbur, 355 F.3d at 677
(quoting Oglesby, 920 F.2d at 61); see also Reynolds, 2017 WL 1495932, at *3 (“Plaintiff argues
that DOJ should now look for his documents since it cannot dispute that it is currently aware of
his request. Were the Court to acquiesce, such a procedure would unwisely bypass the
administrative process.”); Carbe, 2004 WL 2051359, at *8 (finding that “[a] lawsuit does not
constitute a FOIA request,” and that once an agency indicates “that it had never received a FOIA
request . . . the suit alleging a violation of FOIA [is] doomed.”).
Because Plaintiff has failed to create a dispute of material fact that DHS (or ICE or HSI)
received his FOIA/Privacy Act request prior to filing this civil action, summary judgment is
entered on DHS’s behalf. See Pinson, 69 F. Supp. 3d at 114 (finding that, “if an agency never
received a plaintiff's FOIA request in accordance with its published rules, the agency is entitled to
summary judgment as a matter of law.”) (citing Barouch, 962 F. Supp. 2d at 48). Plaintiff is, of
course, free to resubmit his FOIA request directly to DHS’s FOIA Office, see Mot. at 3–4, or
directly to ICE’s FOIA Office, at a correct and verified address, if he so chooses. See Credico v.
Dep’t of Homeland Security, 170 F. Supp. 3d 1, 5 (D.D.C. 2016), appeal dismissed, No. 16–5143,
2017 WL 9509960 (D.C. Cir. Dec. 12, 2017); Carbe, 2004 WL 2051359, at *8.
IV. CONCLUSION
For the foregoing reasons, DHS’s Motion to Dismiss is converted into a Motion for
Summary Judgment and is granted accordingly. An Order consistent with this Memorandum
Opinion is issued contemporaneously.
Date: February 16, 2024 s/s COLLEEN KOLLAR-KOTELLY United States District Judge