UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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RICHARD ISASI, )
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Plaintiff, )
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v. ) Civil Action No. 07-2015 (RBW)
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OFFICE OF THE ATTORNEY GENERAL )
et al., )
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Defendants. )
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MEMORANDUM OPINION
Plaintiff Richard Isasi has filed a pro se complaint in this case against a federal agency
alleging a violation of the Freedom of Information Act (“FOIA”). 5 U.S.C. § 552. He also
asserts a Bivens claim1 against an individual federal officer for the alleged FOIA violation. The
defendants have filed a motion to dismiss the case as moot, and Isasi has opposed that motion.
Because a plaintiff may not maintain a Bivens action for a FOIA violation, the claim against the
individual defendant will be dismissed for failure to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915A (obligating this Court to review and dismiss sua sponte any
portion of a complaint that fails to state a claim upon which relief may be granted). Moreover,
because Isasi has already received all the information to which he is entitled under the law, a
determination this Court has already made, the motion to dismiss the claim against the agency as
moot will be granted.
1
Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
I. Factual Background
In 2003, Isasi made two letter requests for documents related to his extradition
proceedings commenced in 1995 from Mexico to the State of New Jersey to answer to state
criminal charges. In 2006, Isasi filed a FOIA action regarding his requests.2 While that action
was still pending Isasi filed this suit, complaining specifically about the decision by the
Department of Justice to withhold two pages of documents that were responsive to his 2003
FOIA requests, and demanding millions in compensatory and punitive damages and a trial by
jury. See Compl. at 3-4. The defendants argue that his claims are moot because he has received
the two pages — in full — that are at issue in this case. Isasi’s opposition did not identify any
issue of fact with respect to the two pages that were the sole subject of the complaint.3
II. Discussion
A Bivens action provides a remedy where a federal officer has committed a violation of
an individual's constitutional rights. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001); FDIC v.
Meyer, 510 U.S. 471, 485 (1994). A Bivens remedy is not available where a statute provides a
“comprehensive system to administer public rights.” Spagnola v. Mathis, 859 F.2d 223, 228
2
See slip op. Isasi v. Jones et al., Civil Action No. 06-2222 (D.D.C. Jan. 27, 2009).
3
Isasi has, however, pointed out that documents that undoubtedly existed at some time
were not produced in response to his request. See Pl.’s Motion in Opposition to Dismiss the
Case and Plaintiff’s Demand for Judgment at 2. It is irrelevant to this action for the following
reasons that there may be documents that once existed that have not been produced. First, the
complaint in this case did not put the defendants on notice as to any claim with respect to that
issue, and to introduce this issue at this late juncture in the case would unduly prejudice the
defendant. Second, it is entirely possible that a FOIA request does not produce a document that
undoubtedly existed at one time without any FOIA violation, as would be the case where a
document no longer exists, where the document was never in the agency’s possession, or where a
reasonable search of its files does not lead the agency to the discovery of the requested document.
See slip op. Isasi v. Jones et al., supra n. 2.
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(D.C. Cir. 1988) ( en banc ). The FOIA represents such a statutory scheme. Johnson v.
Executive Office for United States Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002). Thus, a
plaintiff cannot maintain a Bivens action for an alleged violation of the FOIA by the individual
defendant. See id. Accordingly, the Bivens claim against the individual defendant in this action
will be dismissed.
In resolving a motion to dismiss for failure to state a claim upon which relief may be
granted where matters outside the pleadings are considered, the motion is treated as one for
summary judgment. See Fed. R. Civ. P. 12(d). Summary judgment is permitted only when
“there is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). In a FOIA suit, an agency is entitled to summary judgment once it
bears its burden of demonstrating that no material facts are in dispute and that all information
that falls within the class requested either has been produced, is unidentifiable, or is exempt from
disclosure. Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001);
Weisberg v. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To challenge such a showing
where the only documents requested have been produced, the non-moving party “must set forth
specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
The complaint in this case placed in issue only two pages of responsive documents. In a
sworn statement filed with its motion to dismiss, the defendant agency has attested, and the
plaintiff does not dispute, that those two pages have been released to him without any redactions.
Accordingly, there exists no dispute of fact in this case for a trial and the defendant agency is
entitled to judgment as a matter of law.
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III. Conclusion
Because a Bivens action is not viable as a remedy for FOIA violations, and the FOIA does
not permit claims against individual federal officers, the claim against the individual defendant
will be dismissed for failure to state a claim upon which relief may be granted. And, because the
only issue raised in the complaint was resolved when the defendant agency released the disputed
documents in full to Isasi, the claim against the agency will be dismissed as moot. A related final
order accompanies this memorandum opinion.
/s/
REGGIE B. WALTON
Date: January 27, 2009 United States District Judge
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