Banks v. Lappin

• Decision Date: 22 March 2008
• Docket Number: Civil Action No. 07-0309 (EGS).
• Citation: 539 F.Supp.2d 228
• Court: U.S. District Court — District of Columbia
• Parties: Frederick BANKS,<SMALL><SUP>1</SUP></SMALL> Plaintiff, v. Harley LAPPIN, et al., Defendants.

539 F.Supp.2d 228

Frederick BANKS,¹Plaintiff, v.Harley LAPPIN, et al., Defendants.

Civil Action No. 07-0309 (EGS).

United States District Court, District of Columbia.

March 22, 2008.

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Frederick Banks, Yazoo City, MS, pro se.

Karen L. Melnik, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

This matter is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment or for a more definite statement.The motion will be granted in part and denied in part for the reasons explained herein.

I.BACKGROUND

A.Freedom of Information ActandPrivacy Act Claims

According to the complaint, plaintiff brings this action in part under the Freedom of Information ("FOIA")Act and the Privacy Act, see5 U.S.C. §§ 552,552a.Compl. at 2.It appears that plaintiff has requested records about himself that may be maintained by the Office of the President and Vice President of the United States, as well as the following federal government entities listed in the caption of the complaint: the Federal Bureau of Prisons ("BOP"), the United States Department of Justice("DOJ"), the United States Department of the Treasury("Treasury"), the Transportation Security Agency("TSA"), the Passport Office of the United States Department of State("Passport Office"), the Library of Congress("LOC"), the United States House of Representatives, and the United States Senate.²Id. at 1.Regarding his request to the BOP, plaintiff specifically seeks "information to defend himself about a pending investigation by the SIS Lt. Dodson and Lt. Allen at [FCC] Butner," presumably pertaining to the December 28, 2006 incident described below, as well as "all records concerning R. Partyka his theripist [sic]."Id. at 2.He demands "immediate release of [the] requested records."Id.

B.Civil Rights Claims

It appears that plaintiffs civil rights claims under Bivens v. Six Unknown Agents of Fed Bureau of Narcotics,403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619(1971), are brought against staff at the Federal Correctional Complex in Butner, North Carolina ("FCC Butner") and stem from an incident on December 28, 2006.³Plaintiff alleges that defendants Allen and Dodson "without cause or reasonable suspicion ... placed [plaintiff] in handcuffs [and] lodged [plaintiff] into the hole to curtail his legal actions in civil and criminal matters because he was black and Indian and because of his pagan religion Thelema."Compl. at 3.Further, plaintiff alleges that defendants Stansberry, Harris, Green, Dodson and Allen "accused [plaintiff] of `stalking a female staff member' to justify their unconstitutional actions" which violated his "rights to religious freedom, privacy, equal protection," and to be free from cruel and unusual punishment and from unreasonable searches and seizures.Id.In addition, he alleges that defendant Lappin, BOP's Director, "authorized the activity of these liberty rogues ... from his boardroom office in Washington[,] D.C. in accordance with his de facto policies."Id. at 3-4.For these alleged constitutional violations, plaintiff demands compensatory and punitive damages totaling $135,000,000,000.Id. at 5.

C.False Claims Act Claim

According to plaintiff, through their alleged unconstitutional actions with regard to the December 28, 2006 incident, defendants"willfully[,] knowingly[,] intentionally, purposefully, knowingly [sic], and maliciously took and stole money from the United States from their paychecks, insurance and pensions."Compl. at 5.He demands not only "33% of their assets and income" but also "the assets of their spouses."Id.

D.Defamation Claim

By subjecting plaintiff to the conditions set forth in the complaint, defendants allegedly defamed plaintiffs character and deliberately "raked [his reputation] back and forth through the mud and the gutter upon a pack of lies which was a lie by wolves within another lie."Compl. at 6.Plaintiff demands compensatory and punitive damages totaling $3,000,000.Id.

II.DISCUSSION

A.Freedom of Information ActandPrivacy Act Claims

1.Subject Matter Jurisdiction

Generally, the FOIA requires a federal government agency to disclose agency records unless information is protected under a recognized exemption.See5 U.S.C. § 552(a)(4)(B), (b).The Privacy Act generally pertains to the maintenance, use and disclosure of information about individuals.For purposes of both Acts, the term "agency" includes:

Any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

5 U.S.C. § 552(f)(1);5 U.S.C. § 552a(a)(1)(incorporating 5 U.S.C. § 552(f)(1)).

Defendants argue that the Court lacks subject matter jurisdiction over plaintiffs claims against the President and Vice President of the United States and the United States Congress because these entities are not "agencies" for purposes of FOIA and the Privacy Act.Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment or for a More Definite Statement ("Defs.'Mot.")at 6-7.The Court agrees.

Although the Executive Office of the President is subject to the FOIA and the Privacy Act, the Office of the President is not an agency for purposes of the FOIA."The President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President are not included within the term "agency" under the FOIA."Kissinger v. Reporters Comm. for Freedom of the Press,445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267(1980)(citation and internal quotation marks omitted);seeNat'l Sec. Archive v. Archivist of the United States,909 F.2d 541, 545(D.C.Cir.1990)(concluding that FOIA does not require Counsel to the President, which is part of the Executive Office of the President, to release records under the FOIA);Dale v. Executive Office of the President,164 F.Supp.2d 22, 25-26(D.D.C.2001)(component of Executive Office whose sole function is to advise or assist the President is not an "agency" for purposes of the Privacy Act);Tripp v. Executive Office of the President,200 F.R.D. 140, 146(D.D.C.2001)(dismissingPrivacy Act claims against Executive Office of the President on the ground that the "Office of the President/White House Office" is not subject to the terms of the Privacy Act);Broaddrick v. Executive Office of the President,139 F.Supp.2d 55, 60(D.D.C.2001)(holding that "inasmuch as the EOP is not an `agency' subject to the FOIA, the EOP is not an `agency' subject to the Privacy Act"), aff'd,38 Fed.Appx. 20(D.C.Cir.2002)(per curiam);see alsoJudicial Watch, Inc. v. Nat'l Energy Policy Dev. Group,219 F.Supp.2d 20, 55(D.D.C.2002)(concluding that Vice President and his staff are not "agencies" for purposes of the FOIA).Assuming without deciding that plaintiffs"several letters to the President and Vice President" seeking "copys [sic] of all records that pertain to him about him or that mention his name," Compl. at 2, were proper requests, his FOIAandPrivacy Act claims against the Offices of the President and the Vice President are dismissed.

Similarly, plaintiffsFOIAandPrivacy Act claims against United States House of Representatives and the United States Senate fail, as neither is an agency as these Acts define the term.United We Stand Am., Inc. v. Internal Revenue Serv.,359 F.3d 595, 597(D.C.Cir.2004)("Because Congress is not an agency, congressional documents are not subject to FOIA's disclosure requirement.").

2.Exhaustion of Administrative Remedies

"Exhaustion of administrative remedies is generally required before seeking judicial review" under FOIA.Wilbur v. Central Intelligence Agency,355 F.3d 675, 677(D.C.Cir.2004)(per curiam).Exhaustion allows "the agency [] an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision."Id.(quotingOglesby v. United States Dep't of the Army,920 F.2d 57, 61(D.C.Cir.1990)).It is not a jurisdictional requirement, Hidalgo v. Fed. Bureau of Investigation,344 F.3d 1256, 1258(D.C.Cir.2003), but instead is a prudential consideration.Wilbur,355 F.3d at 677.If a requester has not exhausted his administrative remedies prior to the filing of a civil action, dismissal is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.Hidalgo,344 F.3d at 1258.Similarly, a requester must exhaust his administrative remedies on his claim for access to or amendment of agency records under the Privacy Act before filing suit in federal district court.See, e.g., Blazy v. Tenet,979 F.Supp. 10, 18(D.D.C.1997), aff'd,No. 97-5330, 1998 WL 315583(D.C.Cir.May 12, 1998)(per curiam);Crooker v. United States Marshals Serv.,577 F.Supp. 1217, 1217-18(D.D.C.1983).

a. FOIA Requests

Defendants establish that, after searching their databases which track FOIA requests to their respective agencies, neither the Treasury, the Passport Office, LOC nor TSA received a FOIA request from plaintiff.GilmoreDecl. ¶¶ 6-9;PeppeDecl. ¶¶ 6-9;RamseyDecl. ¶¶ 7-8;JanetDecl. ¶¶ 3-4.Defendants further demonstrate that the BOP did not receive a FOIA request from plaintiff pertaining to the December 28, 2006 incident at FCC Butner.CoxDecl. ¶ 6.

Plaintiff counters that, "by tendering copies [of his FOIA requests] to the correctional officer at his former place of incarceration FCC Butner under the prison mailbox rule,"he"filed" his FOIA requests with the agencies.Plaintiff's Reply in Opposition to Defendants' Motion to Dismiss or in the Alternative for Summary Judgment or for a More...