Walsh v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
RORY WALSH, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2214 (RWR)
)
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Rory Walsh, on his own behalf and as the

natural guardian of minor S.J.W., brings claims under the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., against the

Federal Bureau of Investigation (“FBI”), the Department of

Veteran Affairs (“VA”), Director James R. Clapper of the Office

of the Director of National Intelligence (“ODNI”) in his official

capacity, and the Foreign Intelligence Surveillance Court

(“FISC”). The defendants have moved to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(6), or in the

alternative, for summary judgment under Federal Rule of Civil

Procedure 56, arguing that Walsh failed to exhaust his

administrative remedies before seeking judicial review. Because

administrative remedies were never exhausted for FOIA requests or

appeals that Walsh allegedly sent to the VA and ODNI but that

those agencies have no record of, the defendants’ motions for

summary judgment with respect to the VA and ODNI claims will be
 -2-

granted. Because the FISC is not subject to the FOIA, Walsh’s

claims against the FISC will be dismissed. However, because

there is a factual dispute regarding whether Walsh was properly

informed of his administrative remedies by the FBI, the FBI’s

motion to dismiss will be denied.1

BACKGROUND

Walsh is a former Marine Corps officer. Compl. ¶ 7. In his

complaint, Walsh describes at length his relationship with a

former Commandant of the Marine Corps named Michael Hagee, and

Hagee’s alleged harassment of Walsh and role in an ongoing cover-

up of a “pre-meditated murder attempt” on Walsh when Walsh was

serving as a Marine. Id. ¶¶ 14, 17, 22. According to the

complaint, Hagee has been harassing and “throwing national

Counter-Intelligence forces” at Walsh for over twenty-two years,

since Walsh served under Hagee as a rifle company commander. Id.

¶¶ 13, 14. Walsh alleges that Hagee is now an agent of the

1
Walsh also moved under Federal Rule of Civil Procedure 55(b)(1)
for default judgment in an amount certain that Walsh neither
mentioned in his complaint nor provided in his motion a basis for
the Clerk to calculate. In any event, since Walsh never first
sought entry of default under Rule 55(a), his motion will be
denied. In addition, Walsh has moved for leave to file a
petition for a writ of mandamus alleging fanciful, improbable
allegations and showing no good cause for the relief sought.
Walsh unsuccessfully moved for leave to file a substantively
identical writ in the court of appeals in a related case. See In
Re Walsh, No. 12-5263 (D.C. Cir. September 14, 2011) (order
denying petition for writ of mandamus). Therefore, his motion
for leave to file a petition for writ of mandamus will be denied.
 -3-

“ultra secret NCCCIC [National Center for the Coordination of

Counter-Intelligence Committee],” an alleged “part of the DNI

structure of forces.” Id. ¶¶ 2, 13. Walsh states that in recent

years, Hagee has placed Walsh under “crushing surveillance,”

withheld “Walsh’s VA treatments, medications, rightful VA

compensation and child support,” broken into Walsh’s bank

accounts, and intercepted Walsh’s communications through “the US

Mails[.]” Id. ¶ 2. The complaint asserts that Walsh sent FOIA

requests to the defendants seeking records related to Hagee’s

harassment and Walsh’s medical records from the VA, and that the

defendants have not adequately responded to his requests. Id.

¶¶ 55-58. Walsh seeks an order directing the defendants to

immediately respond to his FOIA requests. Id. at 14.

The defendants have filed motions to dismiss under

Rule 12(b)(6) for failure to state a claim, or in the

alternative, for summary judgment under Rule 56. They argue that

Walsh failed to exhaust administrative remedies under the FOIA

for his VA, ODNI, and FBI claims since he did not submit FOIA

requests to the VA or ODNI, and did not pursue the FBI’s

responses to his FOIA requests. The defendants also argue that

the FISC is not subject to the FOIA. Walsh has opposed the

defendants’ motions.
 -4-

DISCUSSION

Courts ordinarily analyze under Rule 12(b)(6) an agency’s

argument that a FOIA requester has failed to initiate a FOIA

claim or failed to exhaust administrative remedies. See

Tereshchuk v. Bureau of Prisons, 851 F. Supp. 2d 157, 161 (D.D.C.

2012). Under Rule 12(b)(6), a court can dismiss an action where

the complaint fails to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). However, “[w]here, as here,

a defendant files a motion under Rule 12(b)(6) that is supported

by declarations and documentary evidence ‘outside the pleadings

[that] are presented to and not excluded by the court, the motion

must be treated as one for summary judgment and disposed of as

provided in Rule 56.’” Calhoun v. Dep’t of Justice, 693 F. Supp.

2d 89, 90-91 (D.D.C. 2010) (quoting Fed. R. Civ. P. 12(d)). If

the evidence presented “is subject to conflicting

interpretations, or reasonable persons might differ as to its

significance, summary judgment is improper.” Etheridge v.

FedChoice Federal Credit Union, 789 F. Supp. 2d 27, 32 (D.D.C.

2011). But, “if the pleadings and evidence on file show that

there is no genuine issue of material fact, and that the moving

party is entitled to judgment as a matter of law[,]” the motion

must be granted. Anderson v. Liberty Lobby, 477 U.S. 242, 247

(1986).
 -5-

The moving party bears the burden of providing a “sufficient

factual record that demonstrates the absence of a genuine issue

of material fact.” Peavey v. Holder, 657 F. Supp. 2d 180, 187

(D.D.C. 2009). Although “a court must draw all reasonable

inferences in favor of a non-moving party,” Brown v. F.B.I., 675

F. Supp. 2d 122, 125 (D.D.C. 2009) (citing Anderson, 477 U.S. at

255), “[t]he party opposing a motion for summary judgment[] ‘may

not rest upon the mere allegations or denials of his pleading,

but . . . must set forth specific facts showing that there is a

genuine issue for trial.’” Brown, 675 F. Supp. 2d at 122

(quoting Anderson, 477 U.S. at 248). In considering a motion for

summary judgment on a FOIA claim, a court may rely upon an

agency’s affidavits so long as they “contain sufficient detail”

and “are not ‘controverted by contrary evidence.’” Peavey, 657

F. Supp. 2d at 188 (quoting Schrecker v. U.S. Dep’t of Justice,

217 F. Supp. 2d 29, 33 (D.D.C. 2002)). Agency affidavits are

afforded a “presumption of good faith” and can be rebutted only

with evidence that the agency did not act in good faith.

Defenders of Wildlife v. Dep’t of the Interior, 314 F. Supp.

2d 1, 8 (D.D.C. 2004). In FOIA cases where agencies allege that

they were unable to find relevant information or plaintiffs’

requests for information, the agencies must demonstrate that they

conducted searches reasonably calculated to uncover all relevant

documents. Peavey, 657 F. Supp. 2d at 187 (citing Weisberg v.
 -6-

U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).

“[A]n agency could demonstrate appropriate, reasonable search

methods by demonstrating a ‘systematic approach to document

location.’” Nance v. U. S. Federal Bureau of Investigation, 845

F. Supp. 2d 197, 202 (D.D.C. 2012) (quoting Oglesby v. U.S. Dep’t

Of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).

Under FOIA, an agency’s obligations to provide information

do not begin until the agency receives a valid request; “‘failure

to file a perfected request therefore constitutes failure to

exhaust administrative remedies.’” Rodriguez-Cervantes v. Dep’t

of Health and Human Services, 853 F. Supp. 2d 114, 117 (D.D.C.

2012) (quoting Dale v. Internal Revenue Service, 238 F. Supp. 2d

99, 103 (D.D.C. 2002)). In this circuit, the failure to exhaust

administrative remedies for a FOIA claim is considered a

jurisprudential, rather than a jurisdictional, bar to judicial

review. See Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir.

2003). Thus, “exhaustion is a ‘condition precedent’ to filing a

FOIA action.” Tereshchuk, 851 F. Supp. 2d at 161 n.5 (citing

Flaherty v. President of the United States, 796 F. Supp. 2d 201,

207 (D.D.C. 2011), aff’d sub nom. Flaherty v. I.R.S., 468 F.

App'x 8 (D.C. Cir. 2012)). The exhaustion requirement ensures

that “an agency has the opportunity to exercise its discretion

and expertise on the matter and to make a factual record to

support its decision[,]” and it “allows the top managers of an
 -7-

agency to correct mistakes made at lower levels and thereby

obviates unnecessary judicial review.” Oglesby, 920 F.2d at 61.

I. FOIA REQUEST TO THE VA

Walsh alleges that the VA has not adequately responded to a

FOIA request he claims he submitted on November 4, 2011 to the VA

Medical Center (“VAMC”) in Wilmington, Delaware, seeking records

of an allegedly falsified medical evaluation of Walsh conducted

there. Compl. ¶ 56; Pl.’s Mem. Opposing Defs.’ Motion, Ex. J.

The VA, however, reports that it has no record of receiving the

alleged FOIA request. Defs.’ Mot. to Dismiss, Ex. 1 (“Johnson

Decl.”) ¶¶ 8-9.

According to Keith Johnson, the Wilmington, Delaware VAMC’s

Privacy/FOIA Officer, all FOIA requests submitted to the VAMC in

Wilmington Delaware are stamped and logged into a software

program named “FOIA Express.” Johnson Decl. ¶ 6. The VAMC staff

inputs into the FOIA Express program the name of the requester,

the date the request was received, and a brief description and

copy of the request. The program assigns the request a case

number. Id. Johnson typically takes the information from

“perfected” FOIA requests from the FOIA Express system and adds

it to an excel spreadsheet that is held by the FOIA office. Id.

In January 2012, an attorney working for the VA Office of

General Counsel asked Johnson for any information he had

regarding a FOIA request Walsh could have made to VAMC
 -8-

Wilmington. Id. ¶ 7. Johnson searched the FOIA spreadsheet and

FOIA Express for the name “Rory M. Walsh,” and that name did not

appear in either FOIA Express or the spreadsheet. Id. ¶ 8. The

attorney working for the VA Office of General Counsel informed

Johnson that she asked the FOIA officers in Philadelphia,

Pennsylvania, and Lebanon, Pennsylvania, to conduct searches in

their FOIA Express systems for any FOIA requests in Walsh’s name,

but they did not locate the alleged FOIA request from Walsh. Id.

Johnson also contacted the Release of Information (“ROI”)

office which handles veterans’ requests for copies of their own

medical records. A veteran makes such a request by completing a

request form and submitting it to the ROI. The ROI also keeps in

its Computerized Patient Record System notes of all calls made to

veterans regarding their medical records. The ROI office did not

have records of any medical records request form from Walsh or

calls with Walsh regarding his medical records. Id. ¶ 9.

Walsh has submitted no proof that he mailed this request, or

that the VA received it. The VA has presented undisputed

evidence that it searched for Walsh’s FOIA request in the places

that Walsh’s FOIA request to the VA would have been located, but

did not discover any such request. Thus, either Walsh never

properly initiated and exhausted the FOIA administrative process,

or if he did send a valid request, the VA has shown that it does

not have the request and the request was not exhausted. Walsh,
 -9-

then, “is not entitled to maintain a civil action with respect to

the [claimed VA] Request.” Brown, 675 F. Supp. at 126. Summary

judgment will be granted for the VA on Walsh’s FOIA claim against

the VA.

II. FOIA REQUEST TO ODNI

According to the complaint, Walsh sent a FOIA request to

ODNI on December 6, 2011, “requesting records regarding the

crushing surveillance” orchestrated by Hagee. Compl. ¶ 57.

Walsh alleges that ODNI has not responded to this request.

According to John Hackett, the Chief of Information for the ODNI,

the ODNI Information Management Group is responsible for

receiving, processing, and responding to all FOIA requests

submitted to ODNI. Defs.’ Partial Mot. to Dismiss, Ex. 2

(“Hackett Decl.”) ¶ 1. Hackett states that while Walsh alleges

that he submitted a FOIA request to ODNI on December 6, 2011, an

ODNI Information Management Group staff member searched for

Walsh’s request in an ODNI tracking file and in a listing of FOIA

requests for ODNI records that had been received, scanned, and

assigned a tracking number, and uncovered no record that ODNI

ever received Walsh’s alleged FOIA request.2 Hackett Decl. ¶ 5.

2
While ODNI did receive two FOIA requests from Walsh on
August 7, 2009, and October 24, 2009, “requesting information
concerning Michael G. Hagee and further information concerning
surveillance and threats against [Walsh] and his family,” ODNI
responded to these requests on June 25, 2010, by sending a letter
to Walsh informing him that ODNI had no indices that would
reasonably be expected to contain any information responsive to
 -10-

Based upon Hackett’s undisputed assertion, ODNI conducted a

search reasonably calculated to located Walsh’s alleged FOIA

request and did not discover any such request. Therefore,

summary judgment will also be granted for ODNI on Walsh’s FOIA

claim against the ODNI.

III. FOIA REQUEST TO THE FBI

According to David Hardy, the FBI’s Chief of the

Record/Information Dissemination Section (“RIDS”), Records

Management Division (“RMD”), the FBI received a letter from

Congressman Todd Platts, dated September 9, 2011, asking about

the status of Walsh’s attached “unanswered FOIA request” dated

July 5, 2011, which requested “the name and FBI agent number of

the Special Agent in Charge of the Harrisburg office,” from

November 2006 to the present date. FBI’s Mot. to Dismiss, Ex. 1

(“Hardy Decl.”) ¶¶ 5-6. Hardy says that after receiving Walsh’s

FOIA request, the FBI sent a letter to Walsh on September 14,

2011 stating “that the Harrisburg Resident Agency falls under the

Philadelphia Field Office” and providing Walsh with the office

contact information and the name of the special agent in charge.

Id. ¶ 7. Walsh says that in response, he sent to the FBI’s

Office of Information Policy (“OIP”) an “appeal” letter dated

September 27, 2011, requesting “[t]he name of each FBI agent in

charge of the Harrisburg Resident Agency from May 2005 to the

his request. Hackett Decl. ¶¶ 3-4.
 -11-

present date” and three additional requests related to the

alleged FBI surveillance and questioning of Walsh. Id. ¶ 8.

The FBI interpreted the three new requests as requests for

“any and all information on Rory M. Walsh.” Id. ¶ 11. According

to Hardy, the FBI responded to these three new requests by

sending to Walsh a letter dated October 12, 2011, stating that

“[Walsh’s] request did not contain sufficient information to

conduct an adequate search of the Central Records System” and

seeking additional information from Walsh to assist the FBI in

locating the information Walsh sought, including Walsh’s full

name, address, date of birth, and telephone number. Id. ¶ 12.

Hardy states that the letter advised Walsh that the FBI would

close his request if it did not receive a response within 30

days, and that he could appeal the FBI’s denials within 60 days.

Id. Hardy claims that the FBI has no record of receiving a

response from Walsh. Id. ¶ 17. Walsh disputes that the FBI ever

sent such a letter. Pl.’s Opp’n to FBI’s Mot. to Dismiss,

¶ 25(b),(c).

According to Hardy, on December 9, 2011, the FBI sent to

Walsh a letter informing him that his request for the names of

the agents in charge of the Harrisburg Resident Agency “contained

information regarding third parties [that] was being withheld

pursuant to FOIA exemptions (b)(6) and (b)(7)(C)[,]” and that the

“information was not appropriate for discretionary release.”
 -12-

FBI’s Mem. of Law at 6. The letter also informed Walsh of his

ability to appeal the decision within 60 days. Hardy Decl. ¶ 15.

Although Walsh asserts that he filed an administrative appeal in

response to the letter of December 9, 2011, Pl.’s Opp’n to FBI’s

Mot. to Dismiss, at ¶ 25(d), Ex. H, Hardy states that on

January 24, 2012, the FBI Headquarters contacted the FBI’s OIP to

determine whether it had received any appeals from Walsh

regarding the September or October letters. According to Hardy,

the OIP informed FBI Headquarters that it had no record of Walsh

filing administrative appeals to the FBI’s September and October

letters. Hardy Decl. ¶ 17. The FBI argues that this shows that

Walsh failed to properly file an administrative appeal of the

FBI’s responses to his FOIA request and to exhaust his available

administrative remedies. However, the FBI does not provide

factual detail to show that its searches for Walsh’s responses

were reasonably calculated to find his response, nor does the FBI

provide any evidence, such as a return receipt, that would

resolve the factual dispute about whether it mailed Walsh the

October 12 letter. Therefore, the FBI’s motion for summary

judgment will be denied.

IV. FOIA REQUEST TO FISC

Walsh asserts that the FISC has not responded to a FOIA

request that he allegedly sent on November 26, 2010, “requesting

records of any search warrants issued to the CIA, Michael W.
 -13-

Hagee . . ., the FBI, or the Department of the Navy.” Compl.

¶ 55. However, the FISC, as a federal court, is not subject to

the FOIA. See 5 U.S.C. § 551(1)(B) (2011) (stating that the

definition of “agency” does not include federal courts); Lewis v.

U.S. Dep’t of Justice, Civil Action No. 09-746 (RBW), 2011 WL

5222896, at *6 n.5 (D.D.C. Nov. 2, 2011) (holding that the

judicial branch is exempt from the FOIA); Dockery v. Gonzales,

524 F. Supp. 2d 49, 52 n.1 (D.D.C. 2007) (stating that

“[p]laintiff also appears now to seek records from this Court and

the D.C. Superior Court . . . [b]ut the FOIA does not apply to

courts or state and local governments”). Thus, Walsh’s FOIA

claim against the FISC will be dismissed under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which

relief can be granted.

CONCLUSION AND ORDER

Because Walsh failed to exhaust available administrative

remedies against the VA and ODNI, and the FISC is not subject to

the FOIA, it is hereby

ORDERED that the defendants’ motion [5] to dismiss or for

summary judgment be, and hereby is, GRANTED. Judgment is entered

for the VA and ODNI, and the complaint is dismissed as to the

FISC. However, because there is a genuine issue of material fact

regarding whether Walsh availed himself of his administrative

remedies regarding his request to the FBI, it is further
 -14-

ORDERED that the FBI’s motion [16] for summary judgment be,

and hereby is, DENIED. The FBI shall have until December 12,

2012 to file a new motion for summary judgment. It is further

ORDERED that the plaintiff’s motions for partial summary

judgment against the FBI [10], for expeditious treatment of his

motion for partial summary judgment against the FBI [18], and for

a writ of mandamus [19] be, and hereby are, DENIED. It is

further

ORDERED that the plaintiff’s motion for default judgment

against all defendants [11] be, and hereby is, DENIED as moot.

SIGNED this 21st day of November, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge