Pinson v. DOJ, No. 12-1872, 2014 WL 4825255 (D.D.C. Sept. 30, 2014) (Contreras, J.)

Pinson v. DOJ, No. 12-1872, 2014 WL 4825255 (D.D.C. Sept. 30, 2014) (Contreras, J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  "[T]his Court grants summary judgment for the government because [plaintiff] 'failed to exhaust his administrative remedies before seeking judicial review.'"  The court explained that it "warned [plaintiff] that his failure to respond to the DOJ's motion could result in the motion being treated as conceded and his claims being dismissed", but that "[r]ather than respond to the DOJ's arguments regarding [one request], however, [plaintiff] abandoned his claims, stating that he 'challenges only [a different request].'"  "As a consequence, this Court finds that [plaintiff] has effectively conceded that he failed to appeal the DEA's decision and thus failed to exhaust his administrative remedies regarding [the first   request]."
  
  However, concerning another request, "[g]iven the factual disputes on this issue, the Court cannot grant the DOJ's motion for summary judgment on exhaustion grounds."  The court notes that "[i]t is undisputed that [plaintiff] did not respond to the DOJ's . . . letter instructing him to reformulate his request, which in most cases would be automatic grounds for the Court to dismiss [plaintiff's] cause of action."  "Nevertheless, the exhaustion requirement is a prudential consideration rather than a jurisdictional requirement."  "Ultimately, because at summary judgment the Court must view facts in the light most favorable to the non-movant, . . ., and cannot make credibility determinations, . . ., the Court must accept as true [plaintiff's] declaration that he never received the DOJ's letter."  "And if it turns out that the BOP confiscated the . . ., letter as [plaintiff] alleges, he cannot 'be deemed to have exhausted his administrative remedies' because he was denied the opportunity to reformulate his request or appeal the determination that the request was improper."
   
• Procedural Considerations, Proper FOIA Request:  "[T]he Court denies the DOJ's motion for summary judgment."  "The Court is unconvinced that there is a rational reason to treat the language used in [this] FOIA Request . . . differently than the language used by [plaintiff] in requesting information on himself in [another] FOIA Request . . . where the DOJ was able to construe the records sought as being limited to investigative records."  "The addition of the words 'including investigative reports, transcripts, photographs, records, memorandums, electronic files or data, emails, video or audio recordings, and any other available information' does not unreasonably broaden the search."  "The DOJ could have run a reasonable search in response to [the instant] FOIA Request . . . by interpreting the scope to be limited to criminal investigative records."

However, "the Court is sympathetic to the DEA's concerns about the … authenticity" of a third party waiver and "instructs the DOJ to contact [the third party] to determine whether he signed the certification of identity and consented to the release of his information to [plaintiff]."