UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
:
WILLIAM DALE MACLEOD, :
:
Plaintiff, :
:
v. : No. 15-cv-1792 (KBJ)
:
UNITED STATES DEPARTMENT OF :
HOMELAND SECURITY, et al., :
:
Defendants. :
______________________________________ :
MEMORANDUM OPINION
Pro se plaintiff William MacLeod is a Canadian national who twice applied to
the United States Customs and Border Protection (“CBP”) agency for a “NEXUS
card”—a credential that expedites customs processing when one crosses the border
between the United States and Canada. CBP denied both of MacLeod’s NEXUS
applications, and in the instant lawsuit, MacLeod appears to challenge the propriety of
those denials. (See Compl., ECF No. 1, ¶¶ 1, 8–10.) MacLeod’s complaint also
references the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”) (id. ¶¶ 4–7), and
contends that MacLeod submitted records requests to the Department of Homeland
Security (“DHS”), the Central Intelligence Agency (“CIA”), the National Security
Administration (“NSA”), and the General Services Administration (“GSA”), and that
those agencies have thus far failed to furnish the requested documents (id.).
Before this Court at present is a motion that the defendant federal agencies—the
CBP, DHS, CIA, NSA, and GSA (collectively “Defendants”)—have filed, seeking
outright dismissal of one of the claims in MacLeod’s complaint and summary judgment
with respect to the others. (See Defs.’ Mem. in Support of Mot. to Dismiss & Mot. for
Summ. J. (“Defs.’ Mem.”), ECF No. 8, at 42–49) (arguing that MacLeod’s claim
regarding the denial of his NEXUS applications must be dismissed); see also id. at 17–
19 (maintaining that summary judgment is warranted in favor of GSA and NSA because
neither has any record of receiving a FOIA request from MacLeod); id. at 19–42
(contending that DHS does not maintain the records that MacLeod requested, and that
MacLeod failed to exhaust his administrative remedies with respect to the CIA’s
processing-related determination).) 1 For the reasons explained below, this Court finds
that MacLeod has conceded to the dismissal of his NEXUS-related claim against CBP,
and that each of the other agency defendants has established (for various reasons) that
there is no genuine issue of material fact with respect to any of MacLeod’s FOIA
claims. Consequently, Defendants’ omnibus Motion to Dismiss and Motion for
Summary Judgment will be GRANTED. A separate Order consistent with this
Memorandum Opinion will follow.
I. BACKGROUND
A. The Facts 2
1. MacLeod’s Applications To The NEXUS Program
MacLeod is a Canadian national who twice applied to participate in a customs
program that “is administered jointly by the [United States] and Canada and provides
1
Page numbers herein refer to those that the Court’s electronic case-filing system automatically
assigns.
2
The facts recited herein are drawn primarily from the defendant agencies’ statement of material facts,
and the affidavits and materials that are appended to the parties’ briefs. Although review of such
materials is ordinarily impermissible when evaluating a motion that seeks dismissal of a plaintiff’s
2
for expedited travel between the countries for certain pre-approved, low risk travelers.”
(Defs.’ Mem. at 42; see also id. at 42–44 (describing the NEXUS program, which is
administered jointly with Canada pursuant to 8 U.S.C. § 1753 and is one of CBP’s
voluntary “Trusted Traveler” programs).) NEXUS cards that facilitate expedited border
crossings are “available to persons who pass a comprehensive background check”
(Letter from CBP Ombudsman to William MacLeod (Apr. 24, 2015) (“2015
Reconsideration Denial Letter”), Ex. 7 to Defs.’ Mem., ECF No. 8-2 at 63), and it is
undisputed that criminal convictions or pending criminal charges of any sort are a
disqualifying factor (see id.). Notably, CBP’s denial of a NEXUS application does not
mean that an individual cannot enter the United States from Canada; rather, such
individuals simply “will not be permitted to use the NEXUS dedicated lanes” at border
checkpoints. (Letter from Supervisor, NEXUS Enrollment Ctr. to William MacLeod
(Mar. 27, 2014) (“2014 Denial Letter”), Ex. 6 to Defs.’ Mem., ECF No. 8-2 at 60.)
MacLeod submitted his first NEXUS application via DHS’s website “[s]ometime
on or before March 27, 2014[.]” (Defs.’ Mem. at 43.) MacLeod disclosed two relevant
facts on this application form: (1) that he had been convicted in Canada of “Utter[ing]
Threat Intent Of Bodily Harm or Death contrary to Section 264.01(a) of the Criminal
Code (Canada)[,]” and (2) that he had not been pardoned for that crime. (Global
Enrollment Sys. Application, Ex. 5 to Defs.’ Mem., ECF No. 8-2 at 57.) CBP denied
MacLeod’s application by letter dated March 27, 2014, on the grounds that MacLeod
claim, see Ross v. U.S. Capitol Police, 195 F. Supp. 3d 180, 192 (D.D.C. 2016), MacLeod does not
contest the basic facts as Defendants articulate them, nor does he oppose the arguments that CBP makes
in seeking dismissal of his claim. (See infra Part III.A.) In any event, MacLeod’s two-page pleading
consists of a bare list of grievances divorced from any narrative content that could possibly be the basis
for this Memorandum Opinion’s discussion of the facts that pertain to MacLeod’s claims.
3
did “not meet the program eligibility requirements” as a result of this criminal
conviction. (2014 Denial Letter.) Thereafter, in September of 2014, and presumably in
conjunction with an appeal of this initial denial, CBP requested that MacLeod provide
the agency with copies of court records showing that he had been acquitted of the
criminal conviction that he had disclosed. (See Pl.’s Opp’n to Defs.’ Mot. (“Pl.’s
Opp’n”), ECF No. 13, at 32, 60.) As of October 3, 2014, CBP had not received the
requested documents, and on October 6, 2014, CBP issued MacLeod another letter
denying this NEXUS application. (See id. at 60–61.) 3 MacLeod sought reconsideration
of this denial, and on April 24, 2015, CBP affirmed its initial decision. (See 2015
Reconsideration Denial Letter.) 4
MacLeod reapplied for the NEXUS program “[s]ometime on or before November
20, 2015.” (Defs.’ Mem. at 44). In response to the same application question regarding
whether he had “ever been convicted of an offense in any country for which [he has] not
received a pardon,” MacLeod responded, “No.” (Global Enrollment Sys. Application,
Ex. 8 to Defs.’ Mem., ECF No. 8-2 at 69.). CBP again denied MacLeod’s application
on the grounds that he did “not meet the program eligibility requirements[,]” without
providing any further comment. (Letter from Supervisor, NEXUS Enrollment Ctr. to
William MacLeod (Nov. 20, 2015) (“2015 Denial Letter”), Ex. 9 to Defs.’ Mem., ECF
No. 8-2 at 71.) MacLeod does not allege that he appealed this denial determination.
3
For reasons that are not clear, this denial letter apparently stated that CBP was denying MacLeod’s
application on the grounds that MacLeod “appear[ed] to be an intended immigrant without legal status
in the USA.” (Pl.’s Opp’n at 61.)
4
CBP informed MacLeod that the agency denied his reconsideration request “for the reasons originally
provided to you on your denial notification letter.” (2015 Reconsideration Denial Letter.)
4
2. MacLeod’s Freedom Of Information Act Requests
Meanwhile, in this same timeframe and in an effort that appears to have nothing
to do with MacLeod’s quest for a NEXUS card, MacLeod allegedly sought records from
various federal agencies. (See Compl. ¶¶ 4–7 (alleging that he requested information
from the CIA, NSA, GSA, and DHS.) Only DHS and CIA have a record of receiving
any FOIA request from MacLeod. (See Defs.’ Mem. at 17–18.)
a. Department of Homeland Security
On April 14, 2014, the Privacy Office of DHS received a letter from MacLeod,
which it construed as a FOIA request. (See Ex. A to Decl. of Kevin L. Tyrrell (“Tyrrell
Decl.”), ECF No. 8-2 at 19.) In its entirety, the letter stated:
Hello
I am currently inquiring on getting a Diplomatic Status card,
as I am within the Canadian Government as an MP of
Parliament.
I would like to know the costs, timeframe, and other
necessities as per.
I would also like to have the forms and books disclosed to
[me at my address.]
I would furthermore like to discuss this in a meeting at the
Embassy in Toronto.
Thank you
William Dale MacLeod
(Id.) The DHS Privacy Office determined that it did not have any responsive records in
its control, but that DHS’s Office of United States Citizenship and Immigration
Services (“USCIS”) and United States Visitor and Immigration Status Indicator
Technology (“US-VISIT”) might have the requested information; therefore, the Privacy
5
Office transferred MacLeod’s letter to USCIS and US-VISIT for processing and a
response. (See Tyrrell Decl., ECF No. 8-2 at 13, ¶ 9.) At the time MacLeod filed his
complaint in October of 2015, DHS had not responded to MacLeod with a final
determination on the FOIA request, but the agency has subsequently represented that
“the requested records are not within the purview of DHS [at all], but are instead within
the purview of the United States Department of State[.]” (Id. at 14, ¶ 13; see also infra
Sec. III.B.2.)
b. Central Intelligence Agency
By letter dated August 28, 2014, MacLeod submitted a FOIA request to the CIA
seeking seven categories of information, as follows:
1. Information in MacLeod’s name;
2. Information relating to the Cold War;
3. Information relating to “CIA and NSA involvement with Russia”;
4. Information relating to “United States Involvement with Ukraine and
Russia (Ukraine Crisis)”;
5. “United States files on Vladimir Putin dating back to the KGB”;
6. “Any files herein of the USCBP and USHS involvement with the human
trafficking of children from January 1973 to Current that may involve
Canada, the United States, Ukraine, Russia, and Eastern Asia . . . . ,
including Project Spade, and any other involvement leading to the sale of
children”; and
7. “Any or all flight records from 1973 to current from CYYG, LGA, JFK,
and LAX whereas Lufthansa Flights were involved in international
abduction.”
(Ex. A to Decl. of Antoinette B. Shiner (“Shiner Decl.”), ECF No. 8-2 at 47–48 (“CIA
FOIA Request”).)
On September 12, 2014, the CIA issued a response to MacLeod’s request that
focused on two different aspects of his FOIA inquiry. (See Shiner Decl. ¶ 7.) With
respect to MacLeod’s request for information in his own name, the CIA neither
confirmed nor denied the existence of any records in its files in MacLeod’s name, on
6
the grounds that “[t]he fact of the existence or nonexistence of requested records is
currently and properly classified and is intelligence sources and methods information
that is protected from disclosure” (Letter from Michele Meeks, Information and Privacy
Coordinator, to William Dale MacLeod (Sept. 12, 2014) (“CIA Response Letter”), Ex.
B to Shiner Decl., ECF No. 8-2 at 52)—which is colloquially known as a “Glomar
response.” 5 With respect to the remaining items that MacLeod sought in his FOIA
request, the CIA refused to process the request on the grounds that the request did not
“reasonably describe” the specific records MacLeod sought, and would therefore
require the CIA “to perform an unreasonably burdensome search.” (Id. at 53.)
MacLeod did not pursue an administrative appeal of the CIA’s response to his FOIA
request through the CIA’s Agency Release Panel. (See Shiner Decl. ¶ 8.)
B. Procedural History
On October 20, 2015, MacLeod initiated the instant pro se lawsuit. The two-
page document lists various items in ten separate paragraphs, making what appears to
be challenges to CBP’s denial of MacLeod’s NEXUS applications, the CIA’s refusal to
5
Glomar responses are “named for the Hughes Glomar Explorer, a ship used in a classified Central
Intelligence Agency project ‘to raise a sunken Soviet submarine from the floor of the Pacific Ocean to
recover the missiles, codes, and communications equipment onboard for analysis by United States
military and intelligence experts.’” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1171 (D.C. Cir. 2011)
(quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981)). The FOIA permits an agency to issue
a Glomar response with respect to (1) certain law enforcement records, the disclosure of which could
reasonably be expected to interfere with enforcement proceedings; (2) informant records; and (3)
certain classified records. See 5 U.S.C. § 552(c); see also Subh v. CIA, 760 F. Supp. 2d 66, 72 (D.D.C.
2011) (finding that CIA’s Glomar response to plaintiff’s request for records regarding himself was
appropriate, because “any further response to Plaintiff’s FOIA request would result in disclosure of
whether it has an intelligence interest in [p]laintiff, which, in light of the CIA’s covert intelligence
responsibilities, would amount to the disclosure of an intelligence method”); People for the Am. Way
Found. v. Nat’l Sec. Agency/Cent. Sec. Serv., 462 F. Supp. 2d 21, 26 (D.D.C. 2006) (concluding that
NSA’s Glomar response to a first-person FOIA request was proper “because confirmation or denial of
the NSA’s surveillance of any particular target would allow our adversaries to accumulate information
and draw conclusions about NSA’s technical capabilities and methods” (internal quotation marks and
citation omitted)).
7
release information in response to his FOIA request, and DHS’s failure to respond to
his FOIA request. (See Compl., ECF No. 1, ¶¶ 1, 4, 7.) 6 MacLeod’s complaint also
names NSA and GSA as defendants, and asserts that MacLeod requested records from
NSA and the “United States Department of General Services[,]” but he did not receive
any response from the NSA, and the “United States Department of General Services”
claimed that it does not have the information that MacLeod requested. (Id. ¶¶ 5–6.) 7
After receiving the bare list of grievances that comprises MacLeod’s complaint,
DHS’s Privacy Office determined that it was a mistake to have transferred MacLeod’s
letter requesting documents to its internal offices rather than the State Department.
(See Tyrrell Decl. ¶ 13.) Accordingly, DHS forwarded MacLeod’s request to the State
Department. (See Ex. C. to Tyrrell Decl., ECF No. 8-2 at 23.) The State Department
then informed DHS that it would only process MacLeod’s FOIA request if MacLeod
submitted the letter directly to the State Department, and DHS passed this information
along to MacLeod. (See Ex. D. to Tyrrell Decl., ECF No. 8-2 at 25.)
On March 1, 2016, Defendants filed the pending motion to dismiss and for
summary judgment. In the motion, CBP argues that NEXUS decisions are committed
by law to CBP’s discretion, and thus are unreviewable under the APA, and that CBP’s
denials of MacLeod’s NEXUS applications were not arbitrary or capricious in light of
6
The title of MacLeod’s complaint references only “the Constitution of the United States of America,
the Immigration Act of 1990, and the Freedom of Information Act[,]” (Compl.), but defendant CBP has
interpreted MacLeod’s pleading as also bringing a claim against the agency under the Administrative
Procedure Act, 5 U.S.C. §§ 701–706 (see Defs.’ Mem. at 42). A liberal reading of MacLeod’s
disjointed assertions regarding the denial of his application for a NEXUS card supports this
interpretation.
7
The “United States Department of General Services” is an entity that does not exist. The Court
assumes, along with Defendants, that MacLeod has intended to name the U.S. General Services
Administration as a defendant in this action.
8
MacLeod’s disclosed criminal history. (Defs.’ Mem. at 42–49.) With respect to
MacLeod’s FOIA claims, GSA and NSA argue that the claims against them should be
dismissed because neither agency has any record of MacLeod submitting a FOIA
request to it (see id. at 17–19), and DHS contends that, while it did receive a letter from
MacLeod and undertook to process his records request, that agency does not maintain
the records that MacLeod seeks (see id. at 19–23). The CIA—which, as explained
above, received a FOIA request from McLeod and issued a Glomar response with
respect to one part and declined to process the remainder—asserts that it is entitled to
summary judgment because MacLeod failed to exhaust FOIA’s administrative remedies,
insofar as he did not appeal the agency’s response to the first item he requested (records
regarding himself), and with respect to the other records sought, MacLeod did not
submit a request that “compl[ied] with the administrative requirements set forth in the
agency’s FOIA regulations.” (Id. at 23–31.)
On March 11, 2016, this Court issued an Order advising MacLeod of his
obligations under the Federal Rules of Civil Procedure and the local rules of this Court
to respond to Defendants’ motion, and specifically warning MacLeod that, if he did not
respond to the motion by April 15, 2016, the Court would treat the motion as conceded.
(See Order, ECF No. 10.) When MacLeod did not file a timely response, this Court
issued an order requiring MacLeod to show cause why the case should not be dismissed
for failure to prosecute. (See Order, ECF No. 12.) MacLeod thereafter submitted a
package of materials that this Court characterized as his “opposition” to Defendants’
motion. (See ECF No. 13 (“Pl.’s Opp’n”).)
9
Notably, and significantly for present purposes, the materials MacLeod has
submitted do not respond directly to any of Defendants’ statements of fact or legal
arguments. Instead, MacLeod makes several disjointed requests and contentions: for
instance, he asks that his “Criminal Record [be removed] from United States Databases”
(id. at 8, ¶ 2); he asserts that the materials that he requested from the CIA are “critical
to the necessary evidence required for revision of the Child Protection System” (id. at
9, ¶ 12); and he references Canadian law as a basis for releasing records to him (id. at 8,
¶ 9). MacLeod also appends to his two-page statement a variety of documents that do
not clearly pertain in any way to the merits of this action or Defendants’ arguments,
including materials that appear to be related to cases he has filed in Canadian courts (id.
at 24–35), printouts of Canadian statutes and court rules (id. at 37–49, 73–110), records
related to his prior criminal conviction (id. at 112–130), and college enrollment and
financial aid documents (id. at 136–137, 146–160). (See also Pl.’s Notice, ECF No. 18,
at 3–5 (seeking to compare the instant lawsuit with George Zimmerman’s shooting of
Trayvon Martin).)
Defendants’ motion to dismiss MacLeod’s complaint and for summary judgment
became ripe on June 22, 2016. (See Reply in Further Support of Defs.’ Mot., ECF No.
15.) In their reply to MacLeod’s materials, Defendants reiterate their core contentions,
and they also observe that while MacLeod’s “‘opposition’ spills considerable ink on his
additional reasons for wanting certain documents” and other “irrelevant and/or
incoherent matters[,]” his filing “offers little, if any, argument in opposition to the
points made” by Defendants. (Id. at 1.)
10
II. LEGAL STANDARDS
A. Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(6)
CBP moves for dismissal of MacLeod’s NEXUS-related APA claim under
Federal Rule of Civil Procedure 12(b)(6), which authorizes a defendant to move to
dismiss a complaint on the grounds that the pleading “fail[s] to state a claim upon
which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion to
dismiss tests the legal sufficiency of a complaint by raising the question of whether or
not the complaint contains “sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Harris v. D.C. Water & Sewer Auth., 791 F.3d
65, 68 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
“Under Local Civil Rule 7(b), if any party fails to file a response to a motion
within the prescribed time, ‘the Court may treat the motion as conceded.’” Washington
v. United States, No. 17-cv-0111, 2017 WL 1232400, at *1 (D.D.C. Apr. 3, 2017)
(quoting LCvR 7(b).) The D.C. Circuit has found that it is not an abuse of discretion
for a district court to grant as conceded an unopposed motion to dismiss a complaint so
long as the dismissal is without prejudice. See Jordan v. Ormond, No. 15-7151, 2016
WL 4098823, at *1 (D.C. Cir. July 22, 2016); see also Cohen v. Bd. of Trustees of the
Univ. of D.C., 819 F.3d 476, 480 (D.C. Cir. 2016) (affirming grant of motion to dismiss
where plaintiff failed to file a timely response, but holding that the district court erred
in dismissing complaint with prejudice). Before granting any motion to dismiss a pro se
11
complaint, the district court must explain to the plaintiff the consequences of failing to
respond to the motion. See Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (per
curiam) (requiring a district court to inform a pro se party that “failure to respond . . .
may result in the district court granting the motion and dismissing the case”).
B. Summary Judgment In FOIA Cases
Many of the agency defendants in the instant case seek summary judgment with
respect to MacLeod’s contention that they have violated the FOIA for various reasons,
as noted above. “FOIA cases typically and appropriately are decided on motions for
summary judgment.” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131, 136
(D.D.C. 2014) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d
83, 87 (D.D.C. 2009)). Under Rule 56 of the Federal Rules of Civil Procedure, a court
must grant summary judgment if the pleadings, disclosure materials on file, and
affidavits “show[ ] 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); see Judicial
Watch, 25 F. Supp. 3d at 136 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)).
In the FOIA context, a district court reviewing a motion for summary judgment
conducts a de novo review of the record, and the responding federal agency bears the
burden of proving that it has complied with its obligations under the FOIA. See 5
U.S.C. § 552(a)(4)(B); see also In Def. of Animals v. Nat’l Insts. of Health, 543 F.
Supp. 2d 83, 92–93 (D.D.C. 2008). The court must analyze all underlying facts and
inferences in the light most favorable to the FOIA requester, see Willis v. U.S. Dep’t of
Justice, 581 F. Supp. 2d 57, 65 (D.D.C. 2008); therefore summary judgment for an
agency is appropriate only after the agency proves that it has “fully discharged its
12
[FOIA] obligations[,]” Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996). With
respect to evaluating an agency’s fulfillment of its FOIA obligations, the overarching
question is whether the defendant agency is improperly withholding requested records
over which the agency has possession or control. See U.S. Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 142 (1989).
Under the FOIA, the specified scope of an agency’s statutory duties to produce
records is important: as relevant here, the statute requires agencies to “make [] records
promptly available to any person” who submits “any request for records which (i)
reasonably describes such records and (ii) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed[.]” 5 U.S.C.
§ 552(a)(3)(A). If an agency’s affidavits—which are entitled to a presumption of good
faith, Conservation Force v. Jewell, 66 F. Supp. 3d 46, 55 (D.D.C. 2014), aff’d, No. 15-
5131, 2015 WL 9309920 (D.C. Cir. Dec. 4, 2015)—demonstrate that the prerequisites
for triggering the agency’s duties to search and produce responsive records have not
been satisfied, the agency is entitled to summary judgment. See Dale v. IRS., 238 F.
Supp. 2d 99, 103 (D.D.C. 2002) (“An agency’s obligations commence upon receipt of a
valid request; failure to file a perfected request therefore constitutes failure to exhaust
administrative remedies.” (emphasis added)); see also, e.g., Schoenman v. FBI, No. 04-
cv-2202, 2006 WL 1126813, at *13 (D.D.C. Mar. 31, 2006) (dismissing FOIA claim
where plaintiff submitted no proof that agency received request, and where agency
submitted affidavit stating it had not received request).
Furthermore, and notably, insofar as the FOIA statute indicates that a request
need only be honored pursuant to an agency’s published rules for the submission and
13
processing of FOIA requests, it is well established that a requester’s “failure to comply
with [such] FOIA regulations is the equivalent of a failure to exhaust[.]” West v.
Jackson, 448 F. Supp. 2d 207, 211 (D.D.C. 2006) (citations omitted); see also Church
of Scientology v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986). And in this jurisdiction,
“[e]xhaustion of administrative remedies is generally required before seeking judicial
review” under the FOIA. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per
curiam); see also id. (explaining that the exhaustion requirement permits the agency to
have “an opportunity to exercise its discretion and expertise on the matter and to make
a factual record to support its decision” (quoting Oglesby v. U.S. Dep’t of the Army, 920
F.2d 57, 61 (D.C. Cir. 1990)); Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003)
(observing that, if a requester has not exhausted his administrative remedies prior to the
filing of a FOIA action in district court, his claim is subject to dismissal). 8
Finally, it is important to note for present purposes that, in this jurisdiction, there
appears to be a distinction between the treatment of unopposed motions to dismiss, on
the one hand, and the handling of unopposed motions for summary judgment, on the
other. If a plaintiff has the requisite notice, an unopposed motion to dismiss may be
deemed conceded, and the complaint dismissed on that basis alone. See LCvR 7(b);
Cohen, 819 F.3d at 480 (affirming that LCvR 7(b) vests district courts with discretion
8
It appears that failure to exhaust administrative remedies may be grounds for either dismissal of the
complaint or summary judgment in FOIA cases. If a plaintiff’s complaint contains all of the
information that is necessary to determine if exhaustion occurred, “[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), and thus dismissal of the
action is appropriate. Saldana v. Fed. Bureau of Prisons, 715 F. Supp. 2d 10, 18 (D.D.C. 2010) (citing
Hidalgo, 344 F.3d at 1260). But when the court is called upon to address the exhaustion issue by
considering matters outside of the pleadings—e.g., by reviewing the content of agency declarations—it
must treat a defendant’s motion as one for summary judgment. See id. at 18–19; see also Fed. R. Civ.
P. 12(d), 56.
14
to grant unopposed motions to dismiss as conceded); Voacolo v. Fed. Nat’l Mortgage
Ass’n, 224 F. Supp. 3d 39, 43 (D.D.C. 2016) (granting unopposed motion to dismiss as
conceded). But with respect to an unopposed motion for summary judgment, the D.C.
Circuit has specifically held that a district court cannot grant summary judgment as
conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016).
Rather, because “[t]he burden is always on the movant to demonstrate why summary
judgment is warranted[,]” and “[t]he nonmoving party’s failure to oppose summary
judgment does not shift that burden[,]” the district court “must always determine for
itself whether the record and any undisputed material facts justify granting summary
judgment.” Id. (internal quotation marks and citation omitted).
C. Application Of The Governing Legal Standards To Pro Se Parties
Finally, this Court must be mindful of the fact that MacLeod is proceeding in this
matter pro se when it evaluates the pending motion to dismiss/motion for summary
judgment. It is well established that the pleadings of pro se parties are to be “liberally
construed” and that a pro se complaint, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations omitted);
see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). However, it is
also quite clear “[t]his benefit is not . . . a license to ignore the Federal Rules of Civil
Procedure.” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009);
see also McNeil v. United States, 508 U.S. 106, 113 (1993).
Thus, even though a pro se complaint “must be construed liberally, the complaint
must still present a claim on which the Court can grant relief.” Budik v. Dartmouth-
Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (internal quotation marks and
15
citation omitted); see also Moore v. Motz, 437 F. Supp. 2d 88, 90 (D.D.C. 2006) (noting
that “[e]ven a pro se plaintiff’s inferences . . . need not be accepted” if they “are
unsupported by the facts set out in the complaint” (internal quotation marks and citation
omitted)); Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981) (noting that a pro
se complaint must state a claim upon which relief can be granted). Likewise, when
faced with a motion for summary judgment, a pro se plaintiff, just like a represented
party, must comply with a court’s rules regarding responses to statements of material
fact and the need to identify record evidence that establishes each element of his claim
for relief. See Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015)
(“Because Grimes is the plaintiff and so bears the burden of proof of her claims, it is
well established that she cannot rely on the allegations of her own complaint in
response to a summary judgment motion, but must substantiate them with evidence.”).
III. ANALYSIS
As explained above, MacLeod’s submission in opposition to the pending motion
to dismiss/motion for summary judgment offers no substantive response whatsoever to
any of the points or arguments that Defendants make. (See Sec. I.B, supra.) Because
MacLeod’s filing neither addresses the legal issues that his claims present nor responds
in any way to the declarations that the defendant agencies have submitted, this Court
will address the pending motion as follows. First, as explained below, the Court finds
that MacLeod has conceded to the dismissal of the APA claim against CBP arising from
that agency’s denial of MacLeod’s NEXUS applications, and as a result, Defendants’
motion to dismiss will be GRANTED as conceded, and that claim will be dismissed
without prejudice.
16
The Court has also accepted as true the unrebutted facts contained in the other
agency defendants’ declarations regarding both their receipt (or non-receipt) of
MacLeod’s FOIA requests and their responses to those requests, see Jackson v.
Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996)
(where a responding party does not file a statement of material facts in dispute, “the
district court is to deem as admitted the moving party’s facts”), and consistent with
D.C. Circuit precedent, this Court has proceeded to review the agencies’ facts and
evidence to determine whether summary judgment in favor of the agency defendants is
warranted despite the lack of a coherent opposition from the plaintiff. For the reasons
explained fully below, this Court concludes that the agencies’ evidence demonstrates
either (1) that the agency in question is not improperly withholding requested records
that it has in its possession, or (2) that MacLeod has failed to exhaust his administrative
remedies with respect to the agency’s response to his FOIA request. Therefore,
Defendants’ motion for summary judgment in favor of CIA, NSA, GSA, and DHS with
respect to the complaint’s FOIA claims will be GRANTED as well.
A. Plaintiff Has Conceded Defendants’ Motion To Dismiss The APA
Claim
In response to the complaint’s purported claim that CBP improperly denied
MacLeod’s applications for the NEXUS Trusted Traveler program, CBP has made two
arguments: first, that MacLeod failed to state a claim against CBP under the APA
because decisions regarding NEXUS applications are committed by law to CBP’s
discretion (see Defs.’ Mem. at 42–47), and second, that even if this decision is
reviewable, CBP did not act arbitrarily or capriciously in denying MacLeod’s
application in light of his admitted criminal history and the agency’s published criteria
17
that establish that individuals with criminal convictions are not eligible for the NEXUS
program (id. at 47–49). MacLeod’s submission in response to these arguments is a
rambling and incoherent listing of contentions that appear to relate generally to the
circumstances underlying his criminal conviction and the general criteria for admission
into the United States. (See Pl.’s Opp’n at 5–9.)
For example, MacLeod makes a series of contentions about his own mental
health (see id. at 5 (“Mental Health is stable, and since suicide is towards oneself, it
does not harm the security of the United States of America[.]”)), and also maintains his
“right to freedom of movement, and entry” pursuant to “Canadian and US Charters
(Constitutions)” (id. at 6). One gleans from MacLeod’s contentions that he perceives
himself to be an “‘immigrant with permission to’ return” under “the British Nationality
Act and the Immigration and Refugee Protection Act” (id. at 8), and that he believes
that his criminal record should have been “purged” when he turned 18 (id. at 6). But
these assertions are completely untethered from any legal argument regarding the
propriety of CBP’s denial of his NEXUS applications. Rather, MacLeod maintains
generally that “other incidences with the Customs and Border Protection in relation
with the vulnerable or one-time offenders being denied access [are] common,” and that
“the reason” for CBP’s response to his application is “‘paranoia’” (id. at 9; see also id.
(arguing that “[t]he United States of America has incorporated laws that have bec[o]me
restrictive due to 9/11 and that these laws placed restrict[ions on] travel. Surely,
restriction are necessary, but they should not be causing international constitutional
conflicts, causing a person whom is only harmful to their selves [sic] and not others
entry, or causing ‘border distress’”); id. at 1 (“The plaintiff furthermore claims that the
18
United States Foreign Policy is now also Canada’s Foreign Policy due to agreements in
the [NEXUS program]. As a result of the co-operations within governments including
handover of prisoners, joint nation prosecutions, etc., the United States Government
should not be permitted to restrict or deny access to information requested.”).)
MacLeod also proffers what appear to be various explanations for requesting a
NEXUS card and the records that he seeks from the defendant agencies. (See, e.g., Pl.’s
Notice at 3 (“The plaintiff requires those records to re-open Project Spade.”); id. at 5
(noting that he wants certain documents because he “holds interest as a criminological
topic [in the Cold War and the annexation of the Crimean Peninsula, Ukraine] and may
be able to assist in the repatriation of the Crimean Peninsula with Ukraine and advise
authorities further in international efforts”).) What MacLeod does not do is
acknowledge that Defendants have filed a motion to dismiss his complaint, much less
attempt to respond to any of the CBP’s arguments for dismissal in any meaningful
sense.
When evaluating a defendant’s dispositive motion, “[t]he court’s role is not to
act as an advocate for the plaintiff and construct legal arguments on his behalf in order
to counter those in the motion to dismiss.” Stephenson v. Cox, 223 F. Supp. 2d 119,
122 (D.D.C. 2002). Indeed, as noted, under its Local Rules, this Court has the
discretion to treat a motion that is unopposed as conceded, see LCvR 7(b), and courts in
this district regularly exercise this discretion both in circumstances where no response
is filed, see, e.g., Washington, 2017 WL 1232400, at * 1 (granting as conceded motion
to dismiss where plaintiff failed to respond and thereby conceded motion), and in
situations in which the plaintiff’s response does not specifically address the individual
19
arguments that the defendant makes, see, e.g., Potter v. Toei Animation Inc., 839 F.
Supp. 2d 49, 53 (D.D.C.) (“In the District of Columbia Circuit, it is established that an
argument in a dispositive motion that the opponent fails to address in an opposition may
be deemed conceded.”), aff’d, No. 12-5084, 2012 WL 3055990 (D.C. Cir. July 18,
2012). It is also clear that application of Local Civil Rule 7(b) to deem a motion
conceded may be warranted if the plaintiff’s response is incoherently “filled with
irrelevant legal principles and citations” and “does not address the substance of
defendants’ arguments as to why plaintiff’s claims [] should be dismissed[.]”
Cummings ex rel. J.C. v. Woodson Senior High Sch., 563 F. Supp. 2d 256, 259 (D.D.C.
2008); see also Howard v. Locke, 729 F. Supp. 2d 85, 87–88 (D.D.C. 2010) (finding
that a plaintiff’s opposition to a defendant’s motion cannot properly be deemed “a
response to defendant’s motion” where plaintiff “fails to contest or otherwise address
the legal authority cited by defendant” (emphasis in original)).
So it is here. Although MacLeod’s opposition to the motion touches upon the
subject matter of the claims he has brought in this lawsuit, MacLeod has offered no
substantive response to any of CBP’s legal arguments regarding why the claims against
that agency must be dismissed. As a result, this Court will treat CBP arguments for
dismissal of the complaint’s claims regarding that agency’s denial of MacLeod’s
NEXUS applications as conceded under Local Civil Rule 7(b). See Howard, 729 F.
Supp. 2d at 87–88. Furthermore, in accordance with D.C. Circuit case law, the Court
20
will note specifically that the dismissal of this aspect of MacLeod’s complaint is
without prejudice. Cf. Cohen, 819 F.3d at 484. 9
B. The Various Agency Defendants Are Entitled To Summary Judgment
With Respect To MacLeod’s FOIA Claims
MacLeod’s FOIA claims against CIA, NSA, GSA, and DHS fare no better.
Under the circumstances presented here, the Court’s analysis of Defendants’ summary
judgment motion must begin with acceptance of the facts as Defendants state them. See
Fed. R. Civ. P. 56(e)(2) (authorizing court, when non-moving party “fails to properly
address another party’s assertion of fact as required by Rule 56(c),” to “consider the
fact undisputed for purposes of the motion”); Grimes, 794 F.3d at 94 (noting that a
plaintiff has the “burden to identify evidence that a reasonable jury could credit in
support of each essential element of [his] claims” and “cannot rely on the allegations of
[his] own complaint in response to a summary judgment motion, but must substantiate
them with evidence”); LCvR 7(h)(1) (“In determining a motion for summary judgment,
the court may assume that facts identified by the moving party in its statement of
material facts are admitted, unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion.”). And with the Defendants’ version
of the facts (see Defs.’ Statement of Material Facts to Which There is No Genuine
Dispute, ECF No. 8-1) established, it is clear to this Court for the reasons that follow
9
To be clear, this Court is dismissing MacLeod’s NEXUS-related claim without reaching the merits of
CBP’s legal arguments. For what it’s worth, however, it appears that even a coherent opposition to
CBP’s dismissal arguments would be difficult to sustain. Assuming arguendo and in light of the D.C.
Circuit’s opinion in Watervale Marine Co. v. U.S. Department of Homeland Security, 807 F.3d 325, 330
(D.C. Cir. 2015), that MacLeod could overcome the agency’s ‘committed to agency discretion by law’
analysis, CBP has made a persuasive argument that its denial of MacLeod’s application was neither
arbitrary nor capricious given the agency’s established policies and his criminal history. (See Global
Enrollment Sys. Application, Ex. 5 to Defs.’ Mem., ECF No. 8-2 at 57.) Therefore, CBP’s merits
contention that MacLeod has failed to make a plausible APA claim is a strong one.
21
that each of the agency defendants has met its burden of demonstrating that summary
judgment should be granted in its favor with respect to MacLeod’s FOIA claims.
1. Neither NSA Nor GSA Received A FOIA Request From
MacLeod
MacLeod asserts in his complaint that he “requested personal information” from
NSA but did not receive any response, and that he likewise “requested information from
[GSA] and received a response claiming they do not have the information requested.”
(Compl. ¶¶ 5–6.) In response to these allegations, both NSA and GSA have submitted
separate declarations in which each affiant explains that the agency never received any
FOIA request from MacLeod.
Specifically, NSA has submitted a declaration from John R. Chapman, who states
that NSA’s FOIA/Privacy Act Office is the only office “charged with receiving and
processing requests for documents or information from the public[,]” and that two
separate searches of the records system “in which all valid FOIA . . . requests . . . are
logged” did not reveal any FOIA request that MacLeod had submitted to the NSA. (See
Decl. of John R. Chapman, Ex. 2 to Defs.’ Mot., ECF No. 8-2 at 6–8, ¶¶ 4–5; see also
id. ¶ 4 (“If a valid FOIA request has been filed with NSA, a record of that request
would be maintained in the document management system and would be searchable by
name of requester, date of request, topic of request, or other identifiers.”).) Similarly,
GSA’s declarant, Travis S. Lewis, says that he twice searched GSA’s “FOIAonline”
system, which is a database that houses all FOIA requests submitted to GSA, and did
not find any request from MacLeod. (See Decl. of Travis S. Lewis, Ex. 1 to Defs.’
Mot., ECF No. 8-2 at 2-4, ¶¶ 2, 4; see also id. ¶ 2 (“[I]f a FOIA request has been filed
with the GSA, a record of that filing would be maintained in the database . . . known as
22
the FOIAonline[, which] is searchable by name of requester, date of request, phone
number, email, requester’s organization and topic of request.”).) MacLeod has not
provided any evidence that even pertains to these agency’s representations, much less
rebuts them.
Thus, this Court deems the unrebutted representations that neither NSA nor GSA
ever received any FOIA request from MacLeod to be true for the purpose of the instant
motion, and it reiterates that a necessary prerequisite to any FOIA claim is the
submission of a request to the agency that complies with the relevant procedural
requirements. See 5 U.S.C. § 552(a)(3)(A). “If no FOIA request is received, an agency
has no reason to search or produce records and similarly has no basis to respond.”
Carbe v. Bureau of Alcohol, Tobacco & Firearms, No. 03-cv-1658, 2004 WL 2051359,
at *8 (D.D.C. Aug. 12, 2004). The conceded facts in the declarations that NSA and
GSA have submitted establish that neither agency received a FOIA request from
MacLeod; consequently, the Court finds that NSA and GSA are not improperly
withholding records from MacLeod under the FOIA, and are therefore entitled to
summary judgment. See Thomas v. FCC, 534 F. Supp. 2d 144, 146 (D.D.C. 2008)
(granting summary judgment in the agency’s favor “[i]n the absence of any evidence
that plaintiff submitted a proper FOIA request to which defendant would have been
obligated to respond”).
2. DHS Does Not Maintain The Records That MacLeod
Requested
As explained above, a plaintiff can prevail in a FOIA case only if he has
demonstrated “that an agency has (1) improperly (2) withheld (3) agency records.”
Judicial Watch, Inc. v. Dep’t of State, 177 F. Supp. 3d 450, 454 (D.D.C. 2016); see also
23
Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 152 (1980) (noting
that the FOIA “does not obligate agencies to create or retain documents; it only
obligates them to provide access to those which it in fact has created and retained”).
Here, while DHS acknowledges that MacLeod sent the agency a letter in which he
claimed to be “within the Canadian Government as an MP of Parliament” and sought
information about obtaining “a Diplomatic Status card,” the declarant whose testimony
DHS has provided explains that no DHS component maintains information pertaining to
visas for diplomats or government officials from foreign countries or any other records
potentially responsive to MacLeod’s FOIA request. (See Tyrrell Decl. ¶¶ 8, 10, 13.)
It is clear beyond cavil that an agency cannot improperly withhold records that it
does not maintain, and that “[w]here the Government’s declarations establish that a
search would be futile, the reasonable search required by FOIA may be no search at
all.” Reyes v. U.S. Envtl. Prot. Agency, 991 F. Supp. 2d 20, 27 (D.D.C. 2014)
(alterations, internal quotation marks, and citation omitted); see also Earle v. U.S.
Dep’t of Justice, 217 F. Supp. 3d 117, 123–24 (D.D.C. 2016) (granting summary
judgment to agency on FOIA claim where the declarant explained that the agency did
not maintain records sought, such that a search for those records would be futile); Am.-
Arab Anti-Discrimination Comm. v. U.S. Dep’t of Homeland Sec., 516 F. Supp. 2d 83,
88 (D.D.C. 2007) (same). Having made the unrebutted representation that it does not
maintain the records that MacLeod requested, DHS is likewise entitled to summary
judgment on MacLeod’s FOIA claim.
24
3. MacLeod Did Not Exhaust His Administrative Remedies With
Respect To The CIA’s Response To His FOIA Request
Unlike the other defendant agencies, the CIA made a substantive response to
MacLeod’s FOIA request by sending him a letter that addressed two different aspects of
his request. (See Sec. I.A.2.b, supra.) As explained, with respect to MacLeod’s request
for records regarding himself, the CIA issued a Glomar response, refusing to admit or
deny that it maintained any responsive records (see CIA Response Letter at 52; see also
Shiner Decl. ¶¶ 7, 16), and in regard to the remaining broad categories of requested
records dating back to 1973 or earlier, the CIA notified MacLeod that it had declined to
process the requests on the grounds that they were not reasonably specific and thus
would require the agency to conduct an unreasonably burdensome search. (CIA
Response Letter at 53; see also Shiner Decl. ¶ 7 n.4.) Significantly for present
purposes, in its response letter to MacLeod, the CIA specifically informed MacLeod of
his right “to appeal [the Glomar] response to the Agency Release Panel[.]” (CIA
Response Letter at 53.) See also 32 C.F.R. § 1900.42(a) (establishing that a FOIA
requester has the right to appeal administratively “whenever access to any requested
record or any portion thereof is denied” by the CIA). However, according to the
agency’s declarant, MacLeod did not avail himself of this appeal opportunity. (See
Shiner Decl. ¶ 8.)
Defendants argue that MacLeod’s failure to seek an administrative appeal of the
CIA’s Glomar response forecloses his ability to challenge the decision in this Court,
and this Court agrees. It is the law in this circuit that “[e]xhaustion of administrative
remedies is generally required before filing suit in federal court so that the agency has
an opportunity to exercise its discretion and expertise on the matter and to make a
25
factual record to support its decision.” Hidalgo, 344 F.3d at 1258 (internal quotation
marks and citation omitted). Although exhaustion is not jurisdictional in the FOIA
context, see id., the D.C. Circuit has long held that exhaustion of an agency’s FOIA
appeal procedures is a condition precedent to initiating FOIA litigation as a
jurisprudential matter. See Oglesby, 920 F.2d at 61–62 (“Courts have consistently
confirmed that the FOIA requires exhaustion of this appeal process before an individual
may seek relief in the courts.”); Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476
(D.C. Cir. 1986) (“It goes without saying that exhaustion of remedies is required in
FOIA cases.”). In light of this clear command from the D.C. Circuit, courts in this
district regularly find that a FOIA lawsuit cannot proceed if the agency has made a
determination regarding the plaintiff’s FOIA request but the plaintiff failed to appeal
the agency’s response through proper administrative channels. See, e.g., Freedom
Watch, Inc. v. NSA, 134 F. Supp. 3d 437, 439 (D.D.C. 2015) (dismissing FOIA claim
where plaintiff admitted it had not appealed agency’s response to its FOIA request and
thereby had not exhausted its administrative remedies); Freedom Watch, Inc. v. CIA,
895 F. Supp. 2d 221, 227–28 (D.D.C. 2012) (same); Citizens For Responsibility &
Ethics in Wash. v. Dep’t of the Interior, 503 F. Supp. 2d 88, 101 (D.D.C. 2007)
(granting agency’s motion for judgment on the pleadings where the plaintiff had filed
late appeals, or no appeals at all, with respect to various FOIA requests).
The circumstances here demand the same result. That is, in contrast to a case in
which constructive exhaustion is inferred from the agency’s failure to respond timely to
a plaintiff’s FOIA request, see 5 U.S.C. 552(a)(6)(C)(i), the CIA issued a Glomar
response to MacLeod’s request for information about himself, and informed MacLeod
26
of his right to appeal that response (see CIA Response Letter at 52–53). Yet, rather
than exercising his right to appeal, MacLeod filed the instant lawsuit. In accordance
with established precedent, MacLeod’s failure to avail himself of an administrative
appeal clearly forecloses his ability to challenge the CIA’s Glomar response in this
lawsuit. See, e.g., Freedom Watch, Inc. v. NSA, 134 F. Supp. 3d at 439; Freedom
Watch, Inc. v. CIA, 895 F. Supp. 2d at 227–28; Citizens For Responsibility & Ethics in
Wash., 503 F. Supp. 2d at 101.
The CIA’s argument regarding MacLeod’s unfulfilled request for a wide swath of
CIA documents concerning such matters as “the Cold War,” and “CIA and NSA
involvement with Russia” requires a different analysis, because the agency maintains
that MacLeod’s FOIA claim is irretrievably unexhausted based on the lack of
specificity in MacLeod’s document request. (See Defs.’ Mem. at 26–31.) The agency
is right to assert that a plaintiff who has not presented a reasonably specific request for
documents, in violation of that agency’s own FOIA regulations, can also be conceived
of as having failed to exhaust available administrative remedies prior to bringing suit.
See Latham v. U.S. Dep’t of Justice, 658 F. Supp. 2d 155, 161–62 (D.D.C. 2009)
(awarding summary judgment to agency based on plaintiff’s failure to exhaust
administrative remedies where his “FOIA request does not reasonably describe the
records sought and, therefore, is not a proper FOIA request”); Keys v. Dep’t of
Homeland Sec., No. 08-cv-0726, 2009 WL 614755, at *4 (D.D.C. Mar. 10, 2009) (“A
FOIA requester may be deemed to have failed to exhaust administrative remedies when
the requester has . . . failed to reasonably describe the records being sought[.]”) (citing
27
Gillin v. IRS, 980 F.2d 819, 822–23 (1st Cir. 1992)). And that appears to be exactly
what has happened here.
Specifically, the CIA’s regulations require requesters to “reasonably describe the
records of interest[,]” 32 C.F.R. § 1900.12(a), and a reasonable description of a record
is one that is contains “a description of a document (record) by unique identification
number or descriptive terms which permit an Agency employee to locate documents
with reasonable effort given existing indices and finding aids[,]” id. § 1900.02(m); see
also Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982) (when
evaluating the reasonableness of a FOIA request, “[t]he linchpin inquiry is whether the
agency is able to determine precisely what records are being requested” (internal
quotation marks and citation omitted)). It is clear on the face of MacLeod’s letter that
the categories of records he seeks are not at all specific, and the records sought are far
from reasonably described. (See, e.g., CIA FOIA Request (requesting, among other
things, any information relating to “the Cold War,” “Vladimir Putin dating back to the
KGB,” and “[a]ny or all flight records from 1973 to current from CYYG, LGA, JFK,
and LAX whereas Lufthansa Flights were involved in international abduction”).)
Courts in this district readily find similar requests for “any” and “all” records that relate
to some general topic to be overly-broad and invalid. See, e.g., Sack v. CIA, 53 F.
Supp. 3d 154, 164 (D.D.C. 2014) (FOIA request for “all records that pertain[ ] in whole
or in part” to a list of closed investigations and reports was insufficiently descriptive
and did not require a response); Freedom Watch, Inc. v. Dep’t of State, 925 F. Supp. 2d
55, 57 (D.D.C. 2013) (FOIA request seeking, inter alia, “[a]ny and all enumerated
documents and things which discuss Iran in the context of American politics and/or
28
elections from 1992 to the present” failed to reasonably describe the records sought and
was void ab initio); Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 26
(D.D.C. 2000) (request for “all records pertaining to contacts between [two individuals]
and companies, entities, and/or persons related or doing or conducting business in any
way with the People’s Republic of China” did not reasonably describe records sought
(internal quotation marks omitted)).
Therefore, this Court agrees with the CIA that MacLeod failed to exhaust
administrative remedies insofar as, with respect to the bulk of his records request, the
documents he purports to seek are not reasonably described, such that a response would
be overly burdensome to the agency. See Latham, 658 F. Supp. 2d at 161–62; Keys,
2009 WL 614755, at *4.
IV. CONCLUSION
Because MacLeod has conceded CBP’s motion to dismiss his APA claims, and
has failed to exhaust his administrative remedies with respect the FOIA claims he has
brought against CIA, NSA and GSA, and DHS, his claims cannot proceed.
Accordingly, as stated in the accompanying Order, Defendants’ combined motion to
dismiss and for summary judgment will be GRANTED.
DATE: September 21, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
29
MacLeod v. United States Department of Homeland Security
Combined Opinion