Hester v. Mayorkas, No. 21-639, 2022 WL 4464876 (D.D.C. Sept. 26, 2022) (Friedrich, J.)

Hester v. Mayorkas, No. 21-639, 2022 WL 4464876 (D.D.C. Sept. 26, 2022) (Friedrich, J.)

Re:  Request for records concerning complaints filed by plaintiff, as well as associated communications

Disposition: 

• Litigation Considerations, Pleadings & Litigation Considerations, Exhaustion of Administrative Remedies:  The court finds that “[plaintiff] has named improper defendants [individual employees], as FOIA authorizes claims only against agencies.”  “Even if the Court were to substitute the [Office of Special Counsel] as the defendant, [plaintiff] would still fail to state a claim.”  “It is apparent from the face of the complaint that Hester failed to exhaust his administrative remedies, as he must before he may bring suit.”  “Before fulfilling [plaintiff’s] request for records, OSC asked him to provide proof of identity as required by 5 C.F.R. § 1830.2(c) – and he did not do so.”  “[Plaintiff] does not dispute that he failed to provide proof of identity; rather, he argues that 5 C.F.R. § 1830.2(c) did not apply to him, because he submitted his FOIA request by email.”  “That argument is not persuasive.”  “According to the regulation, OSC record requests may be ‘sent by mail or by fax, or delivered in person,’ . . . and ‘[r]equests received by mail, fax, or personal delivery should’ include proof of identity . . . .”  “Though the regulation does not list email separately, it plainly requires proof of identification no matter the method of submitting a request.”  “Because [plaintiff] failed to comply with agency regulations in submitting his FOIA request, his FOIA claim is dismissed.”