Fisher v. F.B.I.

• Decision Date: 07 March 2000
• Docket Number: No. Civ. 3:99CV796(PCD).,Civ. 3:99CV796(PCD).
• Citation: 94 F.Supp.2d 213
• Parties: David G. FISHER, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Connecticut

94 F.Supp.2d 213

David G. FISHER, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

No. Civ. 3:99CV796(PCD).

United States District Court, D. Connecticut.

March 7, 2000.

David G. Fisher, Stamford, Connecticut, plaintiff pro se.

Heather R. Epstein, U.S. Attorney's Office, New Haven, Connecticut, for defendants, FBI and Office of Information & Privacy.

RULING ON MOTION TO DISMISS

DORSEY, District Judge.

Plaintiff brought this action against four offices of the federal government under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), and the Privacy Act, 5 U.S.C. § 552a. Jurisdiction is invoked pursuant to 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. § 552a(g)(1), and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"). Plaintiff seeks the production of agency records pertaining to him and to enjoin defendants from conducting any investigative activity in relation to him, his family or his associates. Defendants move to dismiss the FOIA and Privacy Act claims for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(2), and 12(b)(6), respectively.

I. BACKGROUND

Plaintiff alleges the following facts. In 1996, he applied for a special agent position with the New Haven branch office of the Federal Bureau of Investigation ("FBI-NH"). In 1997, FBI-NH informed him that his application was rejected. Plaintiff alleges that in April, 1998, "numerous [unnamed] associates reluctantly implied that the Plaintiff was the subject of some type of government investigation" and that "unidentified federal employees have improperly contacted the Plaintiff's associates to keep track of the Plaintiff's activities." Pl.'s Compl., ¶ 17. He further alleges that at some time in October, 1998, and again in November, 1998, he received anonymous phone calls informing him that a federal agency was investigating him. He alleges that defendants still conduct a full field investigation of him. He wrote Attorney General Janet Reno on December 17, 1998, to complain about the alleged investigation and was told on January 6, 1999, that his letter had been distributed by the Department of Justice ("DOJ") to various components of that agency, including the FBI.

Beginning late in 1998, plaintiff requested disclosure from three FBI offices of any records that the FBI maintained on him, pursuant to FOIA and the Privacy Act. Plaintiff first wrote FBI Headquarters ("FBI-HQ") in Washington, D.C., on November 30, 1998, and then clarified his request on December 4, 1998, requesting manual and computerized searches for any records relating to him. FBI-HQ assigned the request number 442240 by a letter date-stamped December 10, 1998.

On January 19, 1999, FBI-HQ attached copies of plaintiff's prior letter to Attorney General Reno and the DOJ distribution letter to a request for him to resubmit his personal identification information so that a search could begin. On January 24, 1999, he questioned the propriety of this letter and appealed FBI-HQ's handling of his FOIA/PA request to the Office of Information and Privacy ("OIP") on January 27, 1999. This appeal remains pending.

On January 28, 1999, and February 4, 1999, FBI-HQ informed plaintiff that processing of his FOIA/PA request was delayed unavoidably. On February 22, 1999, he filed another first-party FOIA/PA request. FBI-HQ acknowledged this request on March 5, 1999, assigning it the same request number as his original request and reminding him that his request was still delayed. FBI-HQ processed the request subsequent to this suit. On November 4, 1999, FBI-HQ released nine pages of responsive material.

Substantially similar exchanges occurred between plaintiff and FBI-NH and the New York FBI office ("FBI-NY"). At first, FBI-NH denied having any documents pertaining to him. In response to a second request, FBI-NH released twenty-one pages of material. FBI-NY informed him after each of two requests that it had no pertinent records. He has appeals pending with OIP against both of these offices as well.

II. DISCUSSION

A. Standard for Motion to Dismiss For Lack of Subject Matter Jurisdiction

On a motion to dismiss for lack of subject matter jurisdiction, the party asserting jurisdiction bears the burden of alleging "a proper basis for jurisdiction in his pleadings and must support those allegations with `competent proof' if a party opposing jurisdiction properly challenges those allegations." Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir.1998). Affidavits or other evidence outside the pleadings may be used by either party to challenge or support subject matter jurisdiction. Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). As a general rule, if a Rule 12(b)(1) motion challenges subject matter jurisdiction facially —i.e., based on the sufficiency of the pleadings — the allegations in the pleadings are taken as true and construed in the most favorable light for the complainant. Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992); Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir.1993). However, if the movant denies or controverts the complainant's jurisdictional allegations, the motion is a factual challenge and the allegations of the complainant do not control. Cedars-Sinai, 11 F.3d at 1583; accord KVOS, Inc. v. Associated Press, 299 U.S. 269, 277-79, 57 S.Ct. 197, 81 L.Ed. 183 (1936). Thus, a factual challenge to subject matter jurisdiction allows "only uncontroverted factual allegations [to be] accepted as true for purposes of the motion." Cedars-Sinai, 11 F.3d at 1583. The district court may engage in fact-finding as to any disputed facts that underpin the jurisdictional allegations, and it may view evidence outside the pleadings to do so. Finally, once the complainant's allegations are disputed factually, the allegations alone are not sufficient to carry the complainant's burden on a motion to dismiss for lack of subject matter jurisdiction. Id. at 1584.

B. Jurisdiction Under the APA and the Privacy Act

The APA is not "an implied [independent] grant of subject-matter jurisdiction permitting federal judicial review of agency action." Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); see also Bruzzone v. Hampton, 433 F.Supp. 92, 95 (S.D.N.Y.1977). The APA cannot support jurisdiction where another statute provides for judicial review in a given situation. Keen v. Brown, 958 F.Supp. 70, 76 (D.Conn.1997). Plaintiff must establish subject matter jurisdiction under either FOIA or the Privacy Act.

Under the Privacy Act, an individual can sue whenever an agency refuses to comply with an individual's request for disclosure of information pertaining to him or her. See 5 U.S.C. § 552a(g)(1).¹ For plaintiff to obtain a civil remedy under the Privacy Act for a violation of his access rights, he must first exhaust administrative remedies. Biondo v. Department of Navy, 928 F.Supp. 626, 630 (D.S.C.1995), aff'd 86 F.3d 1148, 1996 WL 279001 (4th Cir.1996). This requirement "allow[s] the agency the opportunity to exercise its expertise and develop a record for review ... [and to] correct misunderstandings or errors, [while saving the court] a considerable expenditure of time." Biondo, 928 F.Supp. at 631. Once plaintiff exhausts administrative remedies under the Privacy Act, he must then show "(1) that a request for records was made; (2) that the request was denied; and (3) that such a denial or failure to act was improper under the Privacy Act." Id.

The Privacy Act limits relief to "enjoin[ing] the agency from withholding the records and order[ing] the production to the complainant of any agency records improperly withheld from him." 5 U.S.C. § 552a(g)(3)(A). In a case involving access rights, when "the requested documents have been produced, the claim for relief ... becomes moot." Biondo, 928 F.Supp. at 631. This is true whether the litigation has already begun, as in DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir.1984), or if the requested documents are simply delivered late, as in Lovell v. Alderete, 630 F.2d 428, 430 (5th Cir.1980).

Assuming plaintiff has exhausted his administrative remedies under the Privacy Act, he alleges no facts which establish a denial of his requests or agency impropriety in the handling of those requests. Plaintiff was provided a total of thirty pages of material. The fact that the records came after some delay is not necessarily tantamount to an improper denial of the records; rather, it is an unfortunate consequence of the kind of repetitious requests made by plaintiff and numerous others who seek access to records which, in fact, may not actually exist. As a result plaintiff fails to establish jurisdiction under the Privacy Act.

C. Jurisdiction Under FOIA

Under FOIA, any person may request any records from an agency, so long as they reasonably describe them and comply with other terms of the statute. 5 U.S.C § 552(a)(3). An agency must determine whether to comply with the request within ten working days of its receipt and notify the requester of its decision and the existence of any appeals procedure in the event of an adverse determination. 5 U.S.C. § 552(a)(6)(A); see Freeman v. United States Dep't of Justice (Fed. Bureau of Investigation), 822 F.Supp. 1064, 1065 (S.D.N.Y.1993). Under "unusual circumstances" the time limit for dealing with a request can be extended, but not for longer than ten additional working days. 5 U.S.C. § 552(a)(6)(B). Should the agency fail to act within the time limits provided by FOIA, a requester is deemed to have exhausted his administrative remedies, which opens the door for suit in federal court. 5 U.S.C. § 552(a)(6)(C).

The Act "grants the district courts discretion to allow an agency additional time...