Ulis v. Federal Bureau of Investigation

• Court: District Court, District of Columbia
• Decided: December 13, 2023
• Docket: Civil Action No. 2023-0636
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ERIC ULIS,

Plaintiff, Case No. 23-CV-636 (JMC)

v.

FEDERAL BUREAU OF INVESTIGATION, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Eric Ulis brings this suit, pro se, against the United States Department of Justice

and the Federal Bureau of Investigation (FBI). ECF 1. 1 In his Complaint, he alleges that

Defendants unlawfully denied the Freedom of Information Act (FOIA) request he made on January

23, 2023, and asks this Court to order the production of the “agency record” to which he believes

he is entitled. ECF 1 ¶¶ 34, 39–40; see 5 U.S.C. § 552(a)(4)(B). However, as Defendants point out

in their motion to dismiss for failure to state a claim, Mr. Ulis is not seeking anything that could

even arguably be considered an “agency record.” ECF 3 at 2–3; see Fed. R. Civ. Pro. 12(b)(6).

Instead, he seeks a clip-on necktie. ECF 1 ¶¶ 33–34.

Of course, Mr. Ulis does not seek any old tie, but specifically the tie of the infamous “D.B.

Cooper,” the man who, in late 1971, hijacked a commercial airliner, exchanged passengers for a

ransom upon landing, ordered the plane to take off again, and then jumped out of the plane at

10,000 feet altitude while strapped with a parachute and $200,000 in cash. ECF 1 ¶¶ 13–17; D.B.

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.

1 Cooper Hijacking, FBI (Dec. 11, 2023), https://www.fbi.gov/history/famous-cases/db-cooper-

hijacking. The crime remains unsolved, but the “skinny black JC Penney Towncraft #3 clip-on tie”

that Mr. Cooper removed before his mid-flight farewell represents one of the key (and only) pieces

of physical evidence recovered by investigators. ECF 1 ¶¶ 18–19. Mr. Ulis believes there may be

untested DNA in the tie’s “spindle apparatus”—a belief that led him to file a FOIA request

“seeking limited access to Mr. Cooper’s tie” so that he could, at his own expense, “attempt[] to

secure a complete DNA sequence for any DNA found upon the spindle.” Id. ¶¶ 28–29, 34–38. The

FBI denied his request, which prompted this suit. Id. ¶ 39.

Regardless of the intrigue and mystery that shroud the case of D.B. Cooper, however, FOIA

only compels production of “records,” not tangible objects. At the very least, not this tangible

object. Plain meaning, other provisions of FOIA, and precedent all support this conclusion. Black’s

Law Dictionary defines a “record” as “[a] documentary account of past events, usu[ally] designed

to memorialize those events.” Record, BLACK’S LAW DICTIONARY (11th ed. 2019). In Section

552(a)(3)(B) of Title 5, FOIA asks each agency to “make reasonable efforts to maintain its records

in forms or formats that are reproducible for purposes of this section.” 5 U.S.C. § 552(a)(3)(B)

(emphasis added). And other courts both inside and outside of this District have explicitly held

that, “[f]or purposes of the FOIA, the term ‘records’ does not include tangible objects.” Friedman

v. U.S. Secret Service, 923 F. Supp. 2d 262, 275 (D.D.C. 2013); see also, e.g., Nichols v. United

States, 325 F. Supp. 130, 135–36 (D. Kan. 1971) (bullets, rifle, and clothing related to Kennedy

assassination “may not be classified as a ‘record’ within the meaning of the Act”).

A necktie—even a necktie that might contain DNA of a prominent figure like D.B.

Cooper—struggles to find a place within the common understanding of “record,” is incapable of

replication or copying and thus is not “reproducible,” and is similar if not identical in kind to the

2 physical items that courts have already rejected as beyond the scope of FOIA. Indeed, if the shirt

and coat worn by President John F. Kennedy during his assassination do not qualify, then certainly

the necktie of rogue hijacker D.B. Cooper warrants the same treatment. Nichols, 325 F. Supp. at

135. True enough, the D.C. Circuit has yet to delineate the precise limits of what is and is not a

“record,” noting only (in dicta) that there must be some “boundary of reasonableness.” Citizens

for Resp. & Ethics in Wash. v. DOJ, No. 18-CV-007, 2020 WL 2735570, at *5 (D.D.C. May 26,

2020) (citing Am. Immigr. Laws. Assoc. v. Exec. Off. for Immigr. Rev., 830 F.3d 667, 678–79 (D.C.

Cir. 2016)). For this case, however, it suffices to say that to call a clip-on necktie an “agency

record” is not reasonable.

* * *

The Court has taken all the factual allegations in the complaint as true, Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), and applied the more forgiving standards that govern complaints filed

by pro se litigants in ruling on this motion, see Haines v. Kerner, 404 U.S. 519, 520 (1972). But at

the end of the day the viability of Plaintiff’s action hinges on whether the clip-on necktie he seeks

qualifies as an “agency record” under FOIA. As a matter of law, it does not, and for that reason

the Court GRANTS Defendants’ motion to dismiss for failure to state a claim, ECF 3, and further

ORDERS that this civil action is DISMISSED. A separate order accompanies this memorandum

opinion.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: December 13, 2023