Bahrampour v. Dep’t of the Army, No. 22-00710, 2023 WL 200115 (D. Md. Jan. 15, 2023) (Rubin, J.)

Bahrampour v. Dep’t of the Army, No. 22-00710, 2023 WL 200115 (D. Md. Jan. 15, 2023) (Rubin, J.)

Re:  Request for records concerning certain non-lethal weapons

Disposition:  Granting defendant’s motion to dismiss

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court notes that “Plaintiff’s Complaint does not allege that he utilized the administrative appeals process to resolve his FOIA request; his Opposition to the Motion argues that such an appeal is not a barrier to his Complaint (thus, implicitly conceding that none was filed); and [defendant’s] declaration asserts that the U.S. Army Intelligence and Security Command received no appeal regarding Plaintiff’s case.”  “Plaintiff must utilize the administrative appeals process to resolve any FOIA request prior to seeking judicial review.”  “Accordingly, judicial review of Plaintiff’s FOIA request is precluded at this time.”  Responding to plaintiff’s arguments, the court first finds that “Plaintiff does not allege how an appeal of his FOIA request would be futile.”  “[T]o allow appellants to avoid the administrative process on their unsupported allegation of futility would allow the futility exception to swallow the exhaustion rule.”  “Accordingly, the court finds that the futility exception does not apply.”  The court additionally finds that “[a]lthough [defendant] did not respond within the 20-day window provided for in the statute, [defendant] responded before Plaintiff initiated this action.”  “Constructive exhaustion does not apply to Plaintiff’s request, and judicial review of Plaintiff’s FOIA request is not proper until he exhausts his administrative remedies.”